What Are The Distinctions Between The Terms “Unmarried”, “Bachelor”, And “Divorcee” In India?
- By Aashna
- Articles
INTRODUCTION:
While there are no defined meanings for the terms “bachelor”, “unmarried”, and “divorcee” in Indian laws, an interpretation of these might be necessary in cases where concealment of prior marriage status may be a bone of contention.
Oxford Dictionary defines “bachelor” as” a man who has never been married”, while “unmarried” is defined as “not married”.
The Merriam-Webster Dictionary provides a deeper insight into the definition of “unmarried” as “not now or previously married” and “being divorced or widowed”, implying that both conditions may be interchangeable when it comes to the usage of the term “unmarried”. It also defines “bachelor” as “not married”.
According to the Lexis Nexis publication “ Concise Law Theory” by P Ramanatha Aiyar, “unmarried” means “not married”, elucidating that while the popular sense of the word means “never having been married”, it is flexible and used in either sense. Hence, context is necessary for interpretation. It states, however, that in the case of deeds or wills, if no context is given, the popular meaning is usually adopted.
IN DIFFERENT COUNTRIES:
US – According to Title 8 of the United States Code (8 U.S. Code § 1101) which provides definitions, unmarried is “ used about any individual as of any time, means an individual who at such time is not married, whether or not previously married.” This implies that the term “unmarried” includes anyone who is not married currently, regardless of any previous marriages.
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1101&num=0&edition=prelim
Canada – The Canadian Government provides an exhaustive list of “classes” of marital status for income tax filing purposes – married (has a spouse), living common law (living in a conjugal relationship for 12 months without legally marrying), separated (living apart for at least 90 days due to breakdown of the relationship), widowed (the spouse or common-law partner has passed away), divorced (legally divorced from spouse) and “single” if none of the above applies.
This implies unmarried may be interchangeably used with “single” as one who is not married or in a common-law relationship currently and explicitly excludes “divorcee”.
UK – According to the Office for National Statistics (govt agency), “single” is defined as “never married or never had a civil partnership” and distinguishes it from “divorced” as someone who has legally annulled a marriage. https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulletins/populationestimatesbymaritalstatusandlivingarrangements/2019#:~:text=single%2C%20never%20married%20or%20never,civil%20partnered%2C%20including%20separated
In the Marriage Act 1949, there is no definition of “unmarried”.
According to the Person Act 1861 section 57, bigamy is an offence.
AUSTRALIA – The Marriage Act 1961 (section 23) provides restrictions on bigamy. No clear distinguishing factor between someone who has never been married and someone who has had a previous marriage.
The consensus is that “unmarried” is an arbitrary term which, unless specified, may be used interchangeably for someone who has never married and someone who is currently not in a marriage but has been married previously.
Most laws outlaw bigamy ie the person must be “unmarried” at the time of his marriage.
If one has mentioned “unmarried” as his marital status, it may dubiously refer to either circumstance, i.e. he could have never married before or has a previous marriage but is currently unwed.
INDIA
SUPPRESSION OF INFORMATION REGARDING PREVIOUS MARRIAGE is an offence under section 495 of the IPC ie section 82(2) of the BNS (THIS PROVISION DEALS ONLY WITH BIGAMY)
IPC SECTION 494/BNS SECTION 82(1) (punishes bigamy) states “Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
IPC SECTION 495 is “Same offence with concealment of former marriage from person with whom subsequent marriage is contracted”, implying that concealment of previous marriage is an offence punishable by 10 years of imprisonment.
BNS SECTION 82(2), which is the equivalent of this section, clarifies this position further by stating the offence as “Marrying again during lifetime of husband or wife with concealment of former marriage from person with whom subsequent marriage is contracted.”. Therefore, these legal provisions only deal with a previous marriage that is still subsisting and, hence, don’t address the law’s position concerning the concealment of a marriage that has been dissolved.
CASE LAWS:
- Director of Treasuries in Karnataka vs. V. Somyashree: The Supreme Court held that an “unmarried” daughter can not treated the same as a “divorced” daughter as she had voluntarily obtained a divorce subsequent to the death of her mother employed in Karnataka Civil Services and hence, can not claim compassionate appointment. https://www.livelaw.in/top-stories/supreme-court-compassionate-appointment-divorced-widowed-unmarried-daughter-181534
- MALINI CHAUDHRI v. RANJIT CHAUDHRI & ANR.: Delhi High Court ruled that Divorced Daughter Not ‘Dependant’ U/S 21 Hindu Adoptions & Maintenance Act, unlike unmarried or widowed daughter. Here, “unmarried” refers to a woman who has never been married.
Most of the case laws in India provide a distinction between the definitions of unmarried with respect to property disputes, claims for maintenance, and compassionate appointments. However, they are also only in relation to the status of the dependent woman in such situations and don’t provide insight into the case for men.
Would active concealment of a divorce amount to fraud?
“Fraud” is defined u/s 17 of the Contract Act. Marriage as per Muslim Personal Law and Special Marriage Act 1954 is treated as a “contract”. Hence, a marriage may be voidable and annulled if there is a fraud case.
Case law – Ali v Ummu Selma: In 2018, the Kerala High Court observed that concealment of a vital fact about earlier marriage while entering into a contract of marriage by itself amounts to fraud and the marriage can be declared null and void according to Muslim Personal Law as it is voidable at the option of the aggrieved party. (https://www.livelaw.in/concealing-earlier-marriage-while-entering-into-contract-of-marriage-amounts-to-fraud-by-itself-kerala-hc-read-judgment/)
Is fraud grounds for annulment in the Hindu Marriage Act?
Section 12(c) of the Hindu Marriage Act provides grounds for voidable marriages where the consent of the petitioner had been obtained via means of fraud as to the “nature of the ceremony or as to any material fact or circumstance concerning the respondent”.
Hence, a marriage where there is an active concealment of some fact about the other can be annulled.
It is important to note that an “annulment” is not the same as a “divorce” as it implies that the marriage was void ab initio.
Case Law – In Raghunath Gopal Daftardar vs Vijaya Raghunatha Gopal Daftarda (1971), The Bombay High Court defined “fraud” as fraudulent concealment of any “material fact” or “circumstance” regarding the person, which if disclosed could result in withdrawal of consent of marriage and held it to be valid grounds for annulment under section 12(c) of the Hindu Marriage Act.
CONCLUSION:
Most countries, implicitly, refer to “unmarried” as one who is currently not in a married union, regardless of a previous divorce.
The United States of America is the only country which has defined “unmarried” in a statute law ie Title 8 of the United States Code which provides definitions of terms in relation to citizenship and aliens.
In India, most cases so far have provided little insight into such a distinction. “Unmarried daughter” in cases related to succession and wills, usually refers to a woman who has never married. However, this is also often debated in courts and some rulings have also provided compassionate appointments to divorcees.
No such distinction has been made for an “unmarried” man.
Hence, if generally understood through legal precedents, “unmarried” would contain both someone who has never married and someone who had their previous marriage(s) annulled.
However, to deal with such discrepancies in information provided by a partner, which otherwise would not led to the marriage, various Personal Laws in India have some definition of “fraud” to nullify or dissolve the marriage.
