By Janvi Shukla [1]
In The Supreme Court of India
| Name of the case | Smt. Sarla Mudgal, President, Kalyani vs Union of India |
| Citation | 1995 AIR 1531, 1995 SCC (3) 635 |
| Date of Judgement | 10th May, 1995 |
| Appellant | Smt. Sarla Mudgal, President Kalyani & Ors. |
| Respondent | Union of India & Ors. |
| Bench/Judge | Justice Kuldip Singh, Justice R.M. Sahai |
| Statutes/Constitution involved | The Constitution of India, 1949; Indian Penal Code, 1860; The Hindu Marriage Act, 1955 |
| Important Sections/Articles | The Constitution of India, 1949– Article 32, Article 44 The Indian Penal Code, 1860– S. 494 The Hindu Mariage Act, 1955– Ss. 4, 11, 13, 15 |
Abstract
In the present case, the issue of bigamy was raised. Section 494 of The Indian Penal Code, 1860 was emphasized in the case. In a writ petition filed to the Supreme Court, the petitioner claimed that their husbands had converted to Islam solely to wed another woman. They argued that such marriages were illegal. The supreme court ruled that the previous marriage is still legally valid and that converting to Islam does not provide the man the right to choose a new wife. Section 494 of the Indian Penal Code consequently punishes the husband.
Introduction
Marriage is said to be a social contract that binds two unrelated people’s lives together socially, legally, and emotionally. India is a secular nation where everyone has the constitutional freedom to practice whatever religion they want. The foundation of a civilized society is marriage. Once a relationship has been established, the law intervenes and binds the parties to certain duties and responsibilities thereunder. In India, each party’s personal law would apply to the marriage. Simply because one of the parties changed their faith, a marriage that was solemnized under a certain legislation and according to personal law could not be dissolved under a different personal law.
Bigamy is defined as the practice of being married to someone when you are still legally married to someone else. Hindu law forbids bigamy, but Muslim law in India allows for up to four wives, thus an errand Hindu husband converts to Islam to avoid Hindu law’s restrictions and avoid punishment. For Hindu husbands, this has become a commonly used practice.
Four petitions were filed in the present case. The petitioners in the case contended that the respondents changed their religion to Islam to have a second marriage and further protect themselves from Section 494 of the Indian Penal Code’s consequences.
Facts of the Case
Four petitions were filed under Article 32 of the Indian Constitution. The first petitioner is the president of Kalyani a group that works to improve the lives of needy families and distressed women. Meena Mathur, the second petitioner, wed Jitender Mathur on February 27, 1978. Three kids (two sons and a daughter) were born out of wedlock. The petitioner was shocked to discover that her husband had registered a second marriage with a woman named Sunita Narula alias Fathima in the early months of 1988. They converted to Islam and started practicing the Muslim faith before getting married. The petitioner claims that her husband’s conversion to Islam was solely done so that he can wed Sunita and get over the restrictions of Section 494 of the IPC. Jitender Mathur claims that even if his first wife is still Hindu, now that he has converted to Islam, he is permitted to have four spouses.
The petitioner in Writ Petition 347 of 1990 is Sunita alias Fathima. She claims that she and Jitender Mathur, who was previously married to Meena Mathur, converted to Islam before getting married. She gave birth to a boy. She further claims that after they got married, Jitender Prasad, under the influence of her first Hindu wife, committed on April 28, 1988, pledging to support his first wife and their three kids. She complains that she still practices Islam, that her spouse does not support her, and that neither of the personal laws provides her with any protection.
Geeta Rani, the third petitioner in Writ Petition 424 of 1992, wed Pradeep Kumar on November 13, 1988, following Hindu customs. In the petition, it is claimed that her husband beat her frequently and once gave her such a severe beating that her jawbone was damaged. The petitioner discovered in December 1991 that Pradeep Kumar had left with a woman named Deepa before marrying her after converting to Islam. It is said that the conversion to Islam was done solely to make the second marriage possible.
In Civil Writ Petition 509 of 1992, Sushmita Ghosh, a second unhappy woman, is the fourth petitioner. On May 10, 1984, she wed G.C. Ghosh following Hindu customs. The husband informed her that he no longer wanted to live with her and that she should agree to a divorce by mutual consent on April 20, 1992. The petitioner was astonished and hoped that since she was his legally wedded wife and desired to live with him, the issue of divorce would not come up. Finally, the husband informed the petitioner that he had converted to Islam and was about to wed Vinita Gupta. He had gotten a certificate from the Qazi stating that he had accepted Islam, with a date of June 17, 1992. The petitioner additionally requested in the writ suit that her husband not be permitted to be married a second time to Vinita Gupta.[2]
Issue Raised
- Is it legal for a Hindu husband who married under Hindu law to marry again after converting to Islam?
- Whether such a marriage, without the former marriage, is legally dissolved, would be a lawful marriage qua the first wife, who remains Hindu?
- Is the apostate husband guilty of the crime under Section 494 of the Indian Penal Code?
Argument from the Appellant side
- Meena Mathur argues that her husband allegedly converted to Islam to avoid the bigamy punishments imposed by Section 494 of the IPC and to permit their second marriages to other women.
- Sunita, alias Fathima, argues that neither of the personal laws protects her and that her husband does not support her.
- Geeta Rani argues that her husband changed his religion to Islam just to get married for a second time.
- Sushmita Ghosh asked that her husband shall be prevented from being remarried to Vinita Gupta in her writ case.
Argument from the Respondent side
- Respondents in the case claimed that even if they still had a first wife who is a Hindu, they can have four wives once they convert to Islam. As a result, neither the Hindu Marriage Act of 1955 nor Section 494 of the Indian Penal Code applies to them.
Related Provision
The Constitution of India, 1949
- Article 32
Remedies for enforcement of rights conferred by this Part.
- The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
ii. The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
iii. Without prejudice to the powers conferred on the Supreme Court by clauses (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).
iv. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.[3]
- Article 44
Section 44 of The Constitution of India states that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.[4]
The Indian Penal Code, 1860
- Section 494
Section 494 of The Indian Penal Code, 1860 states that any person who marries while their husband or wife is still alive, yet the marriage is invalid because it occurred while they were still alive shall be subject to a fine as well as imprisonment for a time that may last up to seven years.[5]
The Hindu Marriage Act, 1955
- Section 4
Unless otherwise expressly provided in this Act:
- any text rule or interpretation of Hindu law, or any custom or usage as part of that law, in effect immediately before the commencement of this Act, shall cease to have effect concerning any matter for which this Act makes provision
- any other law in effect immediately before the commencement of this Act shall cease to have effect in so far as it conflicts with any provision contained in this Act.[6]
- Section 11
Any marriage performed after the implementation of this Act shall be null and void and may be so proclaimed by a decree of nullity on a petition brought by either party thereto 2 if it violates any one of the terms outlined in clauses (i), (iv), and (v) of section 5.[7]
- Section 13
Section 13 of the Hindu Marriage Act lists the common grounds for divorce that apply to both parties in a dissolution of marriage.[8]
- Section 15
It is legal for either spouse to remarry after a marriage has been dissolved by a divorce decree and there is no right of appeal against the decree, a right of appeal exists but the time to file an appeal has passed without one being presented, or an appeal has been filed but has been rejected.[9]
Judgement
The Supreme Court referred to previous cases on the subject.
In Ram Kumari in Budansa vs Fatima[10], It was decided that her conversion did not end her previous marriage to a Hindu husband. She was accused of bigamy and found guilty under Section 494 of the Indian Penal Code. It was determined that the idea that an apostate is exempt from all civil responsibilities is unsupported by Hindu law and that this perspective violates the spirit of Hindu law regarding marriage bonds.
A marriage performed under the Act cannot be dissolved other than for the reasons specified in section 13 of the Act. In such a case, even if the husband converts to Islam in pursuit of another wife, the parties who had their marriage solemnized following the Act continue to be married. A second marriage by an apostate under the cover of conversion to Islam would still constitute a breach of the Act’s rules since it would mean that, notwithstanding his conversion to Islam, he would still be subject to those rules concerning his previous marriage. Because his wife was married to him under the Act and is still a Hindu, the second marriage of an apostate would be prohibited. As a result, the second marriage of a convert would be illegal under the Act and invalid under Section 494 of the IPC.
The marriage that a Hindu spouse solemnizes after converting to Islam may not legally be void under the Act since he is no longer a Hindu, but the reality remains that the marriage would be against the Act’s rigorous prohibitions of monogamy. The second marriage between the apostate and his Hindu bride would be invalid since it violates the Act’s rules.
Only one of the grounds listed in the Act may be used to dissolve a Hindu marriage that was solemnized under it. No spouse may enter a second marriage before the Act dissolves their Hindu marriage. Under the Act, converting to Islam and getting remarried do not, by themselves, terminate a Hindu marriage. Therefore, it would be against the Act for a convert to get married a second time.
All the necessary four ingredients of the Section were satisfied in the case. If a husband converted to Islam and then married for the second time. He gets remarried despite having a live wife. Since the marriage occurred while the first wife was still alive, it is void. As a result, the Supreme Court held that Section 494 IPC does not apply to the second marriage of a Hindu husband who converted to Islam.
The supreme court referred to past decisions made by this Court on the issue of uniform civil code.
In Mohd. Ahmed Khan vs. Shah Bano Begam[11] case, it was held that
“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity in framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their law. A common civil code will help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue.
It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, and the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning must be made if the Constitution is to have any meaning. Inevitably, the role of the reformer must be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
The court stated that Uniform Civil Code should be implemented to stop incidents like these. The supreme court asked the Indian government, through the prime minister, to review Article 44 of the Indian constitution and “endeavour to ensure for the citizens a consistent civil code across the territory of India.”
The Supreme Court further ordered the Indian Government, through the Secretary of the Ministry of Law and Justice, to submit an affidavit in August 1996, signed by a responsible officer, detailing the steps taken and efforts made by the Indian Government to secure a uniform civil code for Indian citizens.
Justice R.M. Sahai made several recommendations for the government’s possible course of action. He dissented against the implementation of the Uniform Civil Code in the Indian legal system as a means of preventing disputes. He argued that if one side of the argument holds that the inability of Indian democracy to execute the provisions of Article 44 constitutes a grave failure, then the opposing argument holds that, it would seem more logically probable that the code would result in discontent and division than work as a unifying force for fostering uniformity and national togetherness. To foster religious and cultural harmony, the first step should be to rationalize minority laws.
The Government would be wise to delegate this task to the Law Commission, which may investigate the situation and create comprehensive laws consistent with contemporary ideas of women’s human rights after consulting with the Minorities Commission. To prevent anyone from misusing religion, the government may also think about whether it would be feasible to immediately create a committee to establish the Conversion of Religion Act. A person who changes his faith may be prohibited from getting remarried by law unless he first gets a divorce from his previous spouse. Every individual should be entitled to use the provision, regardless of whether they are Hindu, Muslim, Christian, Sikh, Jain, or Buddhist. To prevent conflicts of interest after death, provisions for maintenance, succession, and other matters may be established.
Conclusion
It is a landmark judgement related to matrimonial cases in India. There is no Uniform civil code that applies to all of India’s citizens. Every citizen is subjected to their private law. It was deemed invalid to change one’s faith to get married a second time without ending the prior one. A person’s marriage is not dissolved by conversion from one faith to another. The ruling established guidelines against the practice of solemnizing a second marriage after converting to Islam while the prior marriage is still legal. It provided a specific meaning to the term void under Section 494 of The Indian Penal Code. India, as a country has many religions, and every religion, has its own customs and beliefs. There is a loophole present in the law and until a uniform civil code is not formed, there will be conflicts among those religions.
[1] Author is 3rd Semester Student of Amity Law School, Lucknow.
[2] Indian Kanoon, https://indiankanoon.org/doc/733037/ (last visited Jul. 10, 2022).
[3] INDIA CONST. art. 32.
[4] INDIA CONST. art. 44.
[5] See The Indian Penal Code, 1860 §494.
[6] See The Hindu Marriage, 1955 §4.
[7] See The Hindu Marriage, 1955 §11.
[8] See The Hindu Marriage, 1955 §13.
[9] See The Hindu Marriage, 1955 §15.
[10] Ram Kumari in Budansa v. Fatima, 1914 IC 697.
[11] Mohd. Ahmed Khan v. Shah Bano Begam, AIR 1985 SC 945
