Lily Thomas, Etc. Etc. vs Union of India & Ors. 

Lily Thomas, Etc. Etc. vs Union of India & Ors. 

By Ashmit Sen[1]

In the Supreme Court of India

NAME OF THE CASELily Thomas, Etc. Etc. vs Union of India & Ors. 
CITATIONAIR 2000 (2) ALD Cri 686
DATE OF THE CASE5th April, 2000
PETITIONERLily Thomas
RESPONDENTUnion of India & Ors.
BENCH/JUDGEHon’ble Justice Saiyed Saghir Ahmad and Hon’ble Justice R.P. Sethi  
STATUTES INVOLVEDCode of Criminal Procedure, Indian Penal Code, Constitution of India, Hindu Marriage Act, Code of Civil Procedure, The Special Marriage Act, Muslim Personal Law (Shariat) Application Act, The Divorce Act, The Parsi Marriage and Divorce Act
IMPORTANT SECTIONS/ARTICLESCode of Criminal Procedure: Sections – 198 Indian Penal Code: Sections – 494, 495, 497 Constitution of India: Articles – 13(1), 15(1), 20(1), 21, 25, 32, 44, 136, 137, 145 Hindu Marriage Act: Sections – 5, 10, 11, 13, 17, 18 The Special Marriage Act: Sections – 43, 44 The Parsi Marriage and Divorce Act: Section – 5  

Abstract

The present case is a landmark case which dealt with the offence of bigamy where the respondent no. 3 had changed his religion to Islam only for the reason so that he could marry a second time which was strictly prohibited under Hindu Law. Such action of the respondent had clearly aggrieved the petitioner and resulted in great mental trauma for her and she had no other option but to file a case in the Supreme Court praying for the relief that the court passes the order that the conversion of the respondent to Islam was clearly invalid as it was not because of his change of faith but only because, he wanted to marry a second time and therefore the Court should declare his second marriage to be void. A large number of married women in India have to face these kinds of inhumane circumstances but not all incidents come to light, hence Lily Thomas, learned senior advocate not only presented the arguments on behalf of the petitioner but on behalf of all such aggrieved women in India facing such similar problems and prayed to the court for passing such order which would do justice not only to the petitioner but to all such aggrieved women in India and the Supreme Court had decided the case in favour of the petitioner and declared the conversion invalid and therefore the subsequent second marriage to be void.

Introduction

Marriage is a social practice through which two people and their families unite which gives rise to conjugal rights. The word conjugal means rights which arise between husband and wife after marriage. Marriage is one of the oldest sacraments in the society. It is a universal social institution which brings men and women into family life where they are socially permitted to have children. According to Gillin and Gillin, “Marriage is a socially approved way of establishing a family of procreation.”[2] The Merriam-Webster Dictionary defines Marriage as “the state of being united as spouses in a consensual and contractual relationship recognized by law.”[3]

The essential elements of a valid Hindu Marriage have been given in Section 5 of Hindu Marriage Act, 1955 which states that a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled[4], namely: –

  1. neither party has a spouse living at the time of the marriage;
  2. at the time of the marriage, neither party –
    • (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
    • (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
    • (c) has been subject to recurrent attacks of insanity.
  3. the bridegroom has completed the age of twenty-one years and the bride has completed the age ofeighteen years at the time of the marriage;
  4. the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
  5. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

It is when the first condition of a valid marriage i.e., neither party should have a spouse living at the time of marriage, is violated, the offence of bigamy takes place. The Merriam-Webster Dictionary defines Bigamy as “the act of entering into a marriage with one person while still legally married to another”[5] and it is strictly prohibited according to Hindu Law and is a criminal offence according to Section 494 of IPC, 1860. Even though bigamy is prohibited according to Hindu Law but Muslim laws promote polygamous nature of marriage up to four wives and the holy book of Quran, a primary source of Muslim law had also stated that a Muslim man could marry with a maximum number of four wives treating them with equal love and affection.

A person can very well change his religion as the constitution has given the right to freedom of religion under Article 25 where the citizens have been given the freedom to choose their own religion and propagate them but the main issue that arose in the present case was whether the conversion of religion of the respondent no. 3 was due to his change of faith or merely because he wanted to marry a second wife for which he tried to change his religion to Islam where polygamous nature of marriage was allowed, which would in fact lead to the violation of the fundamental right of not to be discriminated on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15 of the Petitioner. This was the main issue for the Supreme Court to decide which they decided in favour of the petitioner and held the conversion to be invalid and subsequently the second marriage of the respondent no. 3 to be void.

Facts of the Case

The fact of the case is that Smt. Sushmita Ghosh, was the lawfully wedded wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) who were married according to Hindu rites on 10th May, 1984 and were living happily together at Delhi.

 It was on 1st April, 1992, that the Respondent No. 3, Shri G.C. Ghosh (Mohd. Karim Ghazi) told the petitioner, Smt. Sushmita Ghosh that she should agree to their divorce by mutual consent in her own interest as he had taken to Islam so that he could remarry and had already fixed to marry Miss Vanita Gupta, resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992. On 17th June, 1992, Respondent No. 3 had embraced Islam after a certificate was issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi for this purpose.

The petitioner had contacted her father and aunt and told them about her husband’s conversion and intention to remarry and they all had tried to convince the Respondent No. 3 and talk him out of the marriage but he kept on insisting that Sushmita should agree to her divorce otherwise she would have to put up with second wife. It was also stated by the Petitioner that the Respondent No. 3 had converted to Islam solely for the purpose of re-marrying which was prohibited by the Hindu Law and had no real faith in Islam which was also confirmed by Respondent No. 3 himself and that he did not practice the Muslim rites as prescribed and had not changed his name or religion in other official documents.

Due to this situation, the petitioner had undergone great mental trauma and she was 34 years of age and was not employed anywhere and hence she decided to file a writ petition in the Supreme Court under Article 32 to assert her fundamental rights guaranteed by Article 15(1) which was not to be discriminated against on the ground of religion and sex alone and she prayed for the following reliefs –

“(a) The Court, by an appropriate writ, order or direction, should declare that polygamy marriages by Hindus and non-Hindus after conversion to Islam religion are illegal and void;

(b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable amendments in the Hindu Marriage Act so as to curtail and forbid the practice of polygamy;

(c) Issue appropriate directions to declare that where a non-Muslim male gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void;

(d) Issue appropriate directions to Respondent No. 3 restraining him from entering into any marriage with Miss Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner; and

(e) Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”[6]

Issues raised before the Court

  1. Where a non-Muslim gets converted to the ‘Muslim’ faith without any real change or belief and merely with a view to avoid an earlier marriage or to enter into a second marriage, whether the marriage entered into by him after conversion would be void or not?
  2. Whether the husband, who had married a second wife, had committed the offence of bigamy or not according to the provisions of Hindu Marriage Act along with Sec. 494 of Indian Penal Code, 1860?
  3. Whether there was a violation of fundamental rights under Article 21 or not?
  4. Whether the Court can entertain the reliefs prayed by the petitioner in the writ petition?
  5. Whether there should be a Uniform Civil Code for all citizens?

Arguments from the Petitioner

  • Senior Advocate Lily Thomas, representing the petitioner in this case, had submitted that Smt. Sushmita Ghosh, in her Writ Petition, had clearly spelt out that her husband, Shri G.C. Ghosh, had not really converted to ‘Muslim’ faith, but had only feigned conversion to solemnise a second marriage. She also stated that though freedom of religion is a matter of faith, the said freedom could not be used as an excuse for evading other laws where the spouse had converted to ‘Islam’ for the purpose of avoiding the first marriage. It was also argued that the Respondent No. 3 did not practise any Muslim rites and had not changed his name and religion in several official documents such as the birth certificate of the son born out of his marriage with Miss Vanita Gupta, in his visa application for Bangladesh as well as in his electoral roll where the name and religion of the Respondent No. 3 was mentioned as “Gyan Chand Ghosh” and “Hindu” respectively. The learned counsel therefore submitted that the conversion to ‘Islam’ was not the result of exercise of the right to freedom of conscience, but was feigned in order to marry a second wife and hence, was not a valid conversion to ‘Islam’ and the marriage entered into by him after such conversion would be void as the Counsel relied on Section 11 of Hindu Marriage Act which dealt with void marriages and the marriage solemnized between Respondent No. 3 and Miss Vanita Gupta on 3rd September, 1992 would fall under void marriage as it violated the first condition a valid marriage according to Section 5 of Hindu Marriage Act that neither party should have a spouse living at the time of marriage and if that happened, the second marriage would automatically be void-ab-initio.
  • For the second issue, the counsel had relied on the provisions of Section 494 and 495 of Indian Penal Code along with Section 17 of Hindu Marriage Act which stated the punishment for an offence of bigamy. The counsel argued that as seen in the present case, the second marriage between Respondent No. 3 and Miss Vanita Gupta violated the first condition of a valid marriage under Section 5 of HMA and hence was a void marriage under Section 11. Since, the Respondent had married a second wife in spite of his first marriage with the petitioner not dissolved at the time of the second marriage, an offence of bigamy had been constituted and hence, the offence is punishable according to Sections 494 and 495 of IPC along with Section 17 of HMA.
  • On the third issue, the counsel had submitted that by having a second marriage, Respondent No. 3 had indeed violated the petitioner’s fundamental right to live with dignity under Article 21 by performing such marriage which was strictly prohibited under Hindu Law and hence caused the petitioner immense mental trauma.
  • For the issue on Uniform Civil Code, the counsel submitted that measures could be undertaken by the Government regarding the constitution of a Uniform Civil Code to check the abuse of religion by people, who under the cloak of conversion were found to be otherwise guilty of polygamy.
  • Learned Counsel appearing for the petitioner submitted that in view of the judgment in A.R. Antulay v. R.S. Nayak and Anr.[7]., the Supreme Court had the power to review in a petition under Article 136 or Article 32 or under any other provision of the Constitution of India if the Court was satisfied that its directions have resulted in the deprivation of fundamental rights of a citizen or any legal right of the petitioner because no-one could be forced to suffer because of the mistake of the Court.
  • Senior Advocate Lily Thomas, thus presented her arguments in this writ petition, in the nature of a review petition, on behalf of all the aggrieved women in India who had to face such inhumane circumstances and prayed to the court for passing such order which would do justice not only to the petitioner but to all such aggrieved women in India.

Arguments from the Respondent

  • The Learned Counsel, representing the respondents, submitted that there were mainly two essentials to convert into Islamic faith namely that he must be of sound mind and he must have given consent to such conversion. Both the essentials were fulfilled in the present case, and also, a certificate of conversion was obtained by Mohammad Kareem Ghazi (Respondent No. 3) from Maulana Qari Mohammad Idris, Shahi Qazi. The Counsel, also stated that Article 25 of India Constitution guaranteed freedom of religion and hence, one could expressly convert into the other religions expressing their rights of freedom religion given by Constitution of India and therefore, in the present case, the conversion would be valid and thus, there was no question of application section 11 of Hindu Marriage Act, as this act was only applicable on the Hindus but the respondent no. 3 had turned into Islamic faith after the conversion so, only Muslim personal laws could be applied in this matter. The Counsel stated that bigamy was prohibited in Hindu Laws but Muslim laws promote polygamous nature of marriage up to four wives. The holy book of Quran, a primary source of Muslim law also stated that a Muslim man could marry with a maximum number of four wives treating them with equal love and affection. Therefore, the second marriage between Respondent No. 3 and Miss Vanita Gupta would be valid under Muslim Personal Laws.
  • For the second issue, the Counsel argued that for the application of section 494 and 495 of Indian Penal Code along with Section 17 of Hindu Marriage Act, the marriage must be declared void under the laws but here the Muslim laws binding upon the respondent no. 3 permitted him to have a second wife and thus, no offence of bigamy was constituted and therefore, the said sections of the acts would not be applicable in the present case.
  • The Counsel argued that there had been no such violation of any fundamental rights given under Article 21 of Indian constitution as the respondent had been charged with the sections of IPC and HMA, which was a matter of personal laws and hence, there was no such question of violation of any fundamental rights.
  •  The Counsel appearing for the respondents, submitted that the prayer in the review and writ petitions were contrary to law in as much as the judgment of the Court given on merits could not be reviewed for the reasons urged on behalf of the petitioners. It was contended that review being the creation of statute, the powers have to be exercised only within the limits prescribed by law. It was further contended that notice in review being limited to Article 20(1) of the Constitution, would not warrant the consideration of the other pleas raised.
  • The Counsel, on the question of implementation of a Uniform Civil Code in India, submitted before the Court that the Govt. of India did not intend to take any action in this regard on the basis of the judgment alone, in the present case.

Related Provisions

  • Code of Criminal Procedure, 1973:

Section 198 – “Prosecution for offences against marriage.

  1.  No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that-
  2.  Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf[8];
  3. Where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf[9];
  4. Where the person aggrieved by an offence punishable undersection 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’ s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption[10].
  5. For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.[11]
  6.  When in any case falling under clause (a) of the proviso to subsection (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard[12].
  7.  The authorisation referred to in clause (b) of the proviso to subsection (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.[13]
  8.  Any document purporting to be such an authorisation and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence[14].
  9. No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse that a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.[15]
  10. The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.[16]”
  • Indian Penal Code, 1860:

Section 494 – “Marrying again during lifetime of husband or wife. — Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of it 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.

(Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”[17]

Section 495 – “Same offence with concealment of former marriage from person with whom subsequent marriage is contracted. — Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprison­ment of either description for a term which may extend to ten years, and shall also be liable to fine.”[18]

Section 497 – “Adultery. — Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”[19]

  • Constitution of India, 1950:

Article 13(1) – “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”[20]

Article 15(1) – “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”[21]

Article 20(1) – “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”[22]

Article 21 – “Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.”[23]

Article 25 – “Freedom of conscience and free profession, practice and propagation of religion

  1.  Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.[24]
  2.  Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
  3.  regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice[25];
  4.  providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus

Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.[26]”

Article 32 – “Remedies for enforcement of rights conferred by this Part –

  1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.[27]
  2.  The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.[28]
  3.  Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).[29]
  4.  The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.[30]”

Article 44 – “Uniform civil code for the citizens – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”[31]

Article 136 – “Special leave to appeal by the Supreme Court –

  1. Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India[32]
  2. Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.[33]”

Article 137 – “Review of judgments or orders by the Supreme Court – Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”[34]

Article 145 – “Rules of Court, etc –

  1. Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including
  2.  rules as to the persons practising before the Court[35],
  3.  rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time within which appeals to the Court are to be entered[36];
  4. rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III[37];

      cc.  rules as to the proceedings in the Court under Article 139A[38];

  • rules as to the entertainment of appeals under sub clause (c) of clause (1) of Article 134[39];
  •  any judgment pronounced or order made by the Court may be received and rules as to the conditions the procedure for such review including the time within which applications to the Court for such review are to be entered[40];
  • rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceeding therein[41];
  • rules as to the granting of bail[42];
  • rules as to stay of proceedings[43];
  • rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay[44];
  • rules as to the procedure for inquiries referred to in clause (1) of Article 317[45]
  • Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts[46]
  •  The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion[47]
  •  No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open Court[48]
  •  No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.[49]”
  • Hindu Marriage Act, 1955:

Section 5 – “Conditions for a Hindu marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: –

(i) neither party has a spouse living at the time of the marriage[50];

[(ii) at the time of the marriage, neither party –

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity [***];][51]

(iii) the bridegroom has completed the age of[twenty-one years] and the bride, the age of[eighteen years] at the time of the marriage[52];

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two[53];

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.[54]”

Section 10 – “Judicial separation –

  1.  Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.[55]
  2.  Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.[56]”

Section 11 – “void marriages. – Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section5.”[57]

Section 13 – “Divorce. –

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

 [(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or]

 [(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or]

[(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation. – In this clause,

(a) the expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression ‘psychopathic disorder’ means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]

(iv) hasbeen suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation. – In this sub-section, the expression ‘desertion’ means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] [58]

[(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground –

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.][59]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or [bestiality; or]

 [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898)], a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

[(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.]

Explanation. – This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976) *][60]”

Section 17 – “Punishment of bigamy.  – Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.”[61]

Section 18 – “Punishment for contravention of certain other conditions for Hindu marriage. – Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv),[and (v)] of section 5 shall be punishable.

[(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both;][62]

(b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both[63]; “

  • Special Marriage Act, 1954:

Section 43 – “Penalty on married person marrying again under this Act. — Save as otherwise provided in Chapter III, every person who, being at the time married, procures, a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, 1860 (45 of 1860), as the case may be, and the marriage so solemnized shall be void.”[64]

Section 44 – “Punishment of bigamy. — Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in section 494 and section 495 of the Indian Penal Code, 1860 (45 of 1860), for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void.”[65]

Parsi Marriage and Divorce Act, 1936:

Section 5 – “Punishment of bigamy. — Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or wife.”[66]

Judgement

The Supreme Court bench of Saghir Ahmad, J. and Sethi, J., after listening to the arguments of both the sides upheld the decision of Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors.[67] and declared that the second marriage of the respondent no. 3 was void despite polygamy being permitted by Muslim Shariat Laws. The court gave its reason that the intention of the respondent No. 3’s conversion was malafide in nature as the sole motive of respondent to be converted into Islam religion was only to enter a second marriage with Miss Vanita Gupta. Since the Hindu law prohibited bigamy, the respondent found a way of conversion to Islam for second marriage as a loophole and thus, his conversion was not deemed to be fit in the eyes of court as he was still living with the Hindu name and Hindu religion in official documents like birth certificate of his child, name in the electoral roll, his account details as well as in his visa application for Bangladesh. The Court also stated that Islam was not only a religion but was also a faith and belief but the respondent had shown no interest in the faith of Islam even after conversion and continued living as a Hindu which clearly violated the basic requirement of conversion to any other religion that one had to forfeit his earlier religious faith which was not done by the respondent in the present case. Even though Quran permitted polygamy, it did not mean that a person of Islamic faith was free to marry four persons as the Quran clearly said that only if one was able to give equal love, affection and rights to all the wives then only could enter into second, third or fourth marriage.

On the issue of whether an offence of bigamy had been constituted or not, the Supreme Court relied on the judgement given in Gopal Lal v. State of Rajasthan[68], where it was held that “Where a spouse contracts a second marriage while the first marriage is still subsisting, the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed. The voidness of the marriage under Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the Hindu Marriage Act.” In view of the above judgement, the Supreme Court held that if a person married a second time during the lifetime of his first wife, such marriage apart from being void under Section 11 and 17 of the Hindu Marriage Act, would also constitute an offence and that person could be liable to be prosecuted under Section 494 of IPC. The Court also talked about the judgement given in the case of Gul Mohammad v. Emperor[69], where the Nagpur High Court held that the conversion of a Hindu wife to Islam, did not dissolve the marriage with her Hindu husband. It was further held that she could not, during his life-time, enter into a valid contract or marriage with another person and such person having sexual relation with a Hindu wife converted to Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was already married and her husband was alive. From the above judgement, the Supreme Court stated that it would be seen that a mere conversion did not bring to an end the marital ties unless a decree for divorce on that ground was obtained from the court and until a decree was passed, the marriage subsisted and any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 of IPC, 1860 read with Section 17 of the Hindu Marriage Act, 1955 and the person, whether ‘husband’ or ‘wife’, in spite of his/her conversion to some other religion, would be liable to be prosecuted for the offence of bigamy. Hence, the Supreme Court, after referring to such relevant judgements, held respondent no. 3 guilty of the offence of bigamy under Section 494 and 495 of IPC, read with Section 17 of HMA and dismissed the entire review petition of the respondent.

Regarding the issue of whether there was any violation of article 21 or not, the Supreme Court held that the petitioner’s argument of violation of article 21 in the present case, was misconceived. Article 21 guaranteed that no person should be deprived of his life and personal liberty except according to the procedure established by law but in this case, none of the petitioners had been deprived of any right of life and personal liberty so far and the respondent no. 3 was to be prosecuted for the commission of offence punishable under Section 494 of IPC and hence, it could not be said that they would be deprived of their life and liberty without following the procedure established by law. The procedure established by law, as mentioned in Article 21 of the Constitution, meant the law prescribed by the Legislature and the judgment in Sarla Mudgal’s case[70] had neither changed the procedure nor created any law for the prosecution of the person sought to be proceeded with for the alleged commission of the offence under Section 494 of the IPC.

For the issue regarding whether the review petition could be entertained by the court or not, the Supreme Court had referred its previous judgements in Prem Chand Garg v. Excise Commissioner U.P., Allahabad[71] and Smt. Ujjam Bai v. State of U.P.[72] and concluded that the citizens should not suffer on account of directions of the Court based upon erroneous factors and held that the power of review could be exercised for correction of a mistake and not to substitute a view and such powers could be exercised within the limits of the statute dealing with the exercise of power. The Supreme Court also relied on the judgement given in Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others[73], where it was held that for a review petition to be entertained, there should be something more than a mere error and it must be one which must be manifested on the face of the record. The Supreme Court, thus, in the present case, had held that the petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal’s case[74] and therefore, the petition was misconceived and bereft of any substance.

Regarding the enforcement of a Uniform Civil Code, the Supreme Court relied on its judgement given in Pannalal Bansilal Pitti and Ors. v. State of AP. and Anr.[75], where the Court pointed out that – “The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religious or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or Sub-sections in the society speaking different languages and dialects in different religions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualize diversity and attempted to foster uniformity among people of different faiths. A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”[76] The Supreme Court also referred to the judgement given in Maharshi Avadhesh v. Union of India[77], where the Supreme Court had specifically declined to issue a writ directing the respondents to consider the question of enacting a common Civil Code for all citizens of India holding that the issue raised being a matter of policy, it was for the Legislature to take effective steps as the Court could not legislate in this particular topic. Hence, in the present case, the Supreme Court held that regarding the issue on implementation of a Uniform Civil Code, it was not for the Court to legislate but rather it was a topic for the legislature to take steps upon.

Thus, the Supreme Court held that the review petition as also the writ petitions having no substance were hereby disposed of finally with a clarification regarding the applicability of Article 44 of the Constitution and all interim orders passed in these proceedings including the stay of Criminal Cases in subordinate courts, would stand vacated along with no costs.

Conclusion

The judgement given by the Supreme Court, hence became a landmark judgement which strictly prohibited the conversion of religion merely for the exploitation of such loopholes like in the present case where bigamy is not allowed in Hindu Law but to exploit that, the responded changed his religion to Islam to practise bigamy, which cannot be held as a valid reason for conversion and hence the court decided it was an invalid conversion. The fact that the respondent did not perform any rites of Islam and kept his Hindu Name and Hindu Religion in most of his official documents further strengthened the decision of the Court to hold it an invalid conversion. Since the conversion was invalid, the actions of the respondent were to be decided in accordance with the provisions of Hindu Law and according to the court, the respondent had in fact, committed the offence of bigamy and was to be punished in accordance to the provisions of Section 494, 495 of IPC, 1860 along with Section 17 of HMA, 1955. The Court had decided in the negative and held there was neither any violation of Article 21 fundamental right in this case nor the petitioners had made out any case for reviewing the judgement of the case of Sarla Mudgal[78]. However, on the question of Uniform Civil Code, the court refused to answer anything regarding that and held that held that regarding the issue on implementation of a Uniform Civil Code, it was not for the Court to legislate but rather it was a topic for the legislature to take steps upon. In my view, although the Supreme Court, through its judgement, provided justice to the petitioner, as Article 25, which gives the freedom of religion to citizens does not state that one can do anything under the guise of freedom of religion and hence certain restrictions need to be provided so that the fundamental right is not abused and aggrieves other people, but the Court did not provide any long term solution as to how people can be prevented from exploiting such differences in personal laws. To prevent such exploitation, the implementation of a Uniform Civil Code, hence, is the need of the hour where the citizens of India are to be guided by a common code irrespective of their religion in order to avoid the apparent conflict between Common Law and the Personal Laws that exist in India.

[1] 4th Semester Student at St. Xavier’s University, Kolkata.

[2] Navendu K. Thakur, An Introduction to Sociology, Page 141, 2nd Edition, 2016.

[3] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/marriage#:~:text=Kids%20Definition-,marriage,relation%20of%20married%20persons%20%3A%20wedlock (Last visited on June 28, 2023).

[4] Dr. Paras Diwan, Family Law, Page 42, 12th Edition, 2021.

[5] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/bigamy (Last Visited on June 28, 2023).

[6] Indian Kanoon, https://indiankanoon.org/doc/80351/ (Last Visited on June 28, 2023).

[7] A.R. Antulay v. R.S. Nayak and Anr. AIR 1988 SCR Supl. (1) 1.

[8] See The Code of Criminal Procedure, 1973, Sec. 198(1)(a).

[9] See The Code of Criminal Procedure, 1973, Sec. 198(1)(b).

[10]See The Code of Criminal Procedure, 1973, Sec. 198(1)(c).

[11] See The Code of Criminal Procedure, 1973, Sec.198(2).

[12] See The Code of Criminal Procedure, 1973, Sec.198(3).

[13]See The Code of Criminal Procedure, 1973, Sec.198(4).

[14] See The Code of Criminal Procedure, 1973, Sec.198(5).

[15]See The Code of Criminal Procedure, 1973, Sec.198(6).

[16] See The Code of Criminal Procedure, 1973, Sec.198(7).

[17] See The Indian Penal Code, 1860, Sec. 494.

[18] See The Indian Penal Code, 1860, Sec. 495.

[19] See The Indian Penal Code, 1860, Sec. 497.

[20] The Constitution of India, 1950, Art. 13(1).

[21] The Constitution of India, 1950, Art. 15(1).

[22] The Constitution of India, 1950, Art. 20(1).

[23] The Constitution of India, 1950, Art. 21(1).

[24] The Constitution of India, 1950, Art. 25(1).

[25] The Constitution of India, 1950, Art. 25(2)(a).

[26] The Constitution of India, 1950, Art. 25(2)(b).

[27] The Constitution of India, 1950, Art. 32(1).

[28] The Constitution of India, 1950, Art. 32(2).

[29] The Constitution of India, 1950, Art. 32(3).

[30] The Constitution of India, 1950, Art. 32(4).

[31] The Constitution of India, 1950, Art. 44.

[32] The Constitution of India, 1950, Art. 136(1).

[33] The Constitution of India, 1950, Art. 136(2).

[34] The Constitution of India, 1950, Art. 137.

[35] The Constitution of India, 1950, Art. 145(1)(a).

[36] The Constitution of India, 1950, Art. 145(1)(b).

[37] The Constitution of India, 1950, Art. 145(1)(c).

[38] The Constitution of India, 1950, Art. 145(1)(cc).

[39] The Constitution of India, 1950, Art. 145(1)(d).

[40] The Constitution of India, 1950, Art. 145(1)(e).

[41] The Constitution of India, 1950, Art. 145(1)(f).

[42] The Constitution of India, 1950, Art. 145(1)(g).

[43] The Constitution of India, 1950, Art. 145(1)(h).

[44] The Constitution of India, 1950, Art. 145(1)(i).

[45] The Constitution of India, 1950, Art. 145(1)(j).

[46] The Constitution of India, 1950, Art. 145(2).

[47] The Constitution of India, 1950, Art. 145(3).

[48] The Constitution of India, 1950, Art. 145(4).

[49] The Constitution of India, 1950, Art. 145(5).

[50] See The Hindu Marriage Act, 1955, Sec. 5(i).

[51] See The Hindu Marriage Act, 1955, Sec. 5(ii).

[52] See The Hindu Marriage Act, 1955, Sec. 5(iii).

[53] See The Hindu Marriage Act, 1955, Sec. 5(iv).

[54] See The Hindu Marriage Act, 1955, Sec. 5(v).

[55] See The Hindu Marriage Act, 1955, Sec. 10(1).

[56] See The Hindu Marriage Act, 1955, Sec. 10(2).

[57] See The Hindu Marriage Act, 1955, Sec. 11.

[58] See The Hindu Marriage Act, 1955, Sec. 13(1).

[59] See The Hindu Marriage Act, 1955, Sec. 13(1A).

[60] See The Hindu Marriage Act, 1955, Sec. 13(2).

[61] See The Hindu Marriage Act, 1955, Sec. 17.

[62] See The Hindu Marriage Act, 1955, Sec. 18(a).

[63] See The Hindu Marriage Act, 1955, Sec. 18(b).

[64] See The Special Marriage Act, 1954, Sec. 43.

[65] See The Special Marriage Act, 1954, Sec. 44.

[66] See The Parsi Marriage and Divorce Act, 1936, Sec. 5.

[67] Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors. AIR 1995 SCC (3) 635.

[68] Gopal Lal v. State of Rajasthan AIR 1979 SCR (2) 1171.

[69] Gul Mohammad v. Emperor AIR 1945 Criminal Appeal No. 120 of 1945.

[70] Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors. AIR 1995 SCC (3) 635.

[71] Prem Chand Garg v. Excise Commissioner U.P., Allahabad AIR 1963 SCR Supl. (1) 885.

[72] Smt. Ujjam Bai v. State of U.P. AIR 1963 SCR (1) 778.

[73] Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others AIR 1955 SCR (1) 1104.

[74] Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors. AIR 1995 SCC (3) 635.

[75] Pannalal Bansilal Pitti and Ors. v. State of AP. and Anr. AIR  1996 SCC (2) 498.

[76] Indian Kanoon, https://indiankanoon.org/doc/80351/ (Last Visited on June 28, 2023).

[77] Maharshi Avadhesh v. Union of India AIR 1994 Supp. (1) SCC 713.

[78] Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors. AIR 1995 SCC (3) 635.

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