Lily
Thomas, Vs. Union of India & Ors [2000] INSC 294 (5 May 2000)
R.P.Sethi,
S.S.Ahmad S. SAGHIR AHMAD, J.
I
respectfully agree with the views expressed by my esteemed Brother, Sethi, J.,
in the erudite judgment prepared by him, by which the Writ Petitions and the
Review Petition are being disposed of finally. I, however, wish to add a few
words of my own. Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd.
Karim Ghazi) filed a Writ Petition [W.P.(C) No. 509 of 1992] in this Court
stating that she was married to Shri G.C. Ghosh in accordance with the Hindu
rites on 10th May, 1984 and since then both of them were happily living at
Delhi. The following paragraphs of the Writ Petition, which are relevant for
this case, are quoted below: "15. That around the 1st of April, 1992, the
Respondent No. 3 told the petitioner that she should in her own interest agree
to her divorce by mutual consent as he had any way taken to Islam so that he
may remarry and in fact he had already fixed to marry one Miss Vanita Gupta
resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the
second week of July 1992. The Respondent No. 3 also showed a Certificate issued
by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that the Respondent No.
3 had embraced Islam. True copy of the Certificate is annexed to the present
petition and marked as Anneuxre-II. 16. That the petitioner contacted her
father and aunt and told them about her husband's conversion and intention to
remarry. They all tried to convince the Respondent No. 3 and talk him out of
the marriage but of no avail and he insisted that Sushmita must agree to her
divorce otherwise she will have to put up with second wife. 17. That it may be
stated that the Respondent No. 3 has converted to Islam solely for the purpose
of re-marrying and has no real faith in Islam. He does not practice the Muslim
rites as prescribed nor has he changed his name or religion and other official
documents.
18.
That the petitioner asserts her fundamental rights guaranteed by Article 15(1)
not to be discriminated against on the ground of religion and sex alone. She
avers that she has been discriminated against by that part of Muslim Personal
Law which is enforced by the State Action by virtue of the Muslim Personal Law
(Shariat) Act, 1937. It is submitted that such action is contrary to Article 15
(1) and is unconstitutional. 19. That the truth of the matter is that
Respondent No. 3 has adopted the Muslim religion and became a convert to that
religion for the sole purpose of having a second wife which is forbidden
strictly under the Hindu Law. It need hardly be said that the said conversion
was not a matter of Respondent No. 3 having faith in the Muslim religion. 20.
The petitioner is undergoing great mental trauma. She is 34 years of age and is
not employed anywhere. 21. That in the past several years, it has become very
common amongst the Hindu males who cannot get a divorce from their first wife,
they convert to Muslim religion solely for the purpose of marriage. This
practice is invariably adopted by those erring husband who embrace Islam for
the purpose of second marraige but again become reconvert so as to retain their
rights in the properties etc. and continue their service and all other business
in their old name and religion. 22. That a Woman's Organisation "Kalyani"
terribly perturbed over this growing menace and increase in number of
desertions of the lawfully married wives under the Hindu Law and splitting up
and ruining of the families even where there are childrn and when no grounds of
obtaining a divorce successfully on any of the grounds enumerated in Section 13
of the Hindu Marriage Act is available to resort to conversion as a method to
get rid of such lawful marriages, has filed a petition in this Hon'ble Court
being Civil Writ Petition No.
1079
of 1989 in which this Hon'ble
Court has been
pleased to admit the same. True copy of the order dated 23.4.90 and the order
admitting the petition is annexed to the present petition and marked as
Annexure-III (Collectively)." She ultimately prayed for the following reliefs
: "(a) by an appropriate writ, order or direction, declare 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 direction 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 direction 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." This Petition
was filed during the summer vacation in 1992. Mr. Justice M.N.
Venkatachaliah
(as he then was), sitting as Vacation Judge, passed the following order on 9th July, 1992 : "The Writ Petition is taken
on board. Heard Mr. Mahajan, learned senior counsel for the petitioner. Issue
notice. Learned counsel says that the respondent who was a Hindu by religion
and who has been duly and legally married to the petitioner purports to have
changed his religion and embraced Islam and that he has done only with a view
to take another wife, which would otherwise be an illegal bigamy. Petitioner
prays that there should be interdiction of the proposed second marriage which
is scheduled to take place tomorrow, i.e. 10th July, 1992. It is urged that the respondent,
whose marriage with the petitioner is legal and subsisting cannot take
advantage of the feigned conversion so as to be able to take a second wife. All
that needs to be said at this stage is that if during the pendency of this writ
petition, the respondent proceeds to contract a second marriage and if it is ultimatley
held that respondent did not have the legal capacity for the second marriage,
the purported marriage would be void." On 17th July, 1992, when this case was taken up, the following order was passed
:
"Counter
affidavit shall be filed in four weeks. Place this matter before a Bench of
which Hon'ble Pandian, J. is a member. Shri Mahajan submitted that since the
apprehended second marriage has not yet taken place, it is appropriate that we
stop the happening of that event till disposal of this petition. Learned
counsel for the respondent-husband says that he would file a counter affidavit
within four weeks. He assures that his client would not enter into a marriage
in hurry before the counter-affidavit is filed." On 30th November, 1992, this Writ Petition was directed to
be tagged with Writ Petition (C) No. 1079/89 (Smt. Sarla Mudgal, President,
"Kalyani" & Ors. vs. Union of India & Ors.) and W.P. (Civil)
No. 347/90 (Sunita @ Fatima vs.
Union of India & Ors.). It may be
stated that on 23rd
April, 1990 when the
Writ Petition (C) No. 1079/89 and Writ Petition (C) No. 347/90 were taken up
together, the Court had passed the following order : "Issue Notice to
respondent No. 3 returnable within twelve weeks in both the Writ Petitions.
Learned counsel for the petitioners in the Writ Petitions, after taking
instructions, states that the prayers in both the writ petitions are limited to
a single relief, namely, a declaration 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 any earlier marriage or to enter into a second marriage any marraige
entered into by him after conversion would be void." Thus, in view of the
pleadings in Smt. Sushmita Ghosh's case and in view of the order passed by this
Court in the Writ Petitions filed separately by Smt. Sarla Mudgal and Ms.
Lily
Thomas, the principal question which was required to be answered by this Court
was that 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? 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 cannot be used as a garb for evading other laws
where the spouse becomes a convert to `Islam' for the purpose of avoiding the
first marriage. She pleaded in clear terms
HAS NO
REAL FAITH IN ISLAM. HE DOES NOT PRACTICE THE MUSLIM
RITES
AS PRESCRIBED NOR HAS HE CHANGED HIS NAME OR RELIGION AND OTHER OFFICIAL
DOCUMENTS. She further stated that the truth of the matter is that Respondent
No. 3 has adopted the `Muslim' religion and become a convert to that religion
for the sole purpose of having a second wife, which is forbidden strictly under
the Hindu Law. It need hardly be said that the said conversion was not a matter
of Respondent No. 3 having faith in the Muslim religion. This statement of fact
was supported by the further statement made by her in Para 15 of the Writ
Petition in which she stated that her husband, Shri G.C. Ghosh, told her that
he had taken to `Islam' "so that he may remarry and in fact he had already
fixed to marry one Miss Vanita Gupta resident of D-152 Preet Vihar, Delhi, a
divorcee with two children in the second week of July, 1992." At the time
of hearing of these petitions, counsel appearing for Smt. Sushmita Ghosh filed
certain additional documents, namely, the birth certificate issued by the Govt.
of the Union Territory of Delhi in respect of a son born to Shri G.C. Ghosh
from the second wife on 27th
May, 1993. In the
birth certificate, the name of the child's father is mentioned as "G.C. Ghosh"
and his religion is indicated as "Hindu". The mother's name is
described as "Vanita Ghosh" and her religion is also described as
"Hindu". In 1994, Smt. Sushmita Ghosh obtained the copies of the
relevant entries in the electoral list of polling station No. 71 of Assembly
Constituency-44 (Shahdara), in which the name of Shri G.C. Ghosh appeared at S.No.
182 while the names of his father and mother appeared and S.Nos. 183 and 184
respectively and the name of his wife at S.No. 185. This entry is as under :
"S.No.
House
Name Father's/ M/F Age in the No. Husband's list Name ----- ---- -------------
----------------- --- --- 185.
C-41 Vanita
Ghosh Gyan Chand Ghosh F 30" In 1995, Shri G.C.
Ghosh
had also applied for Bangladesh visa. A photostat copy of that
application has also been filed in this Court.
It
indicates that in the year 1995 Shri G.C. Ghosh described himself as "Gyan
Chand Ghosh" and the religion which he professed to follow was described
as "Hindu". The marriage of Shri G.C. Ghosh with Vanita Gupta had
taken place on 3.9.1992. The certificate issued by Mufti Mohd.
Tayyeb
Qasmi described the husband as "Mohd. Carim Gazi", S/o Biswanath Ghosh,
7 Bank Enclave, Delhi. But, in spite of his having become
"Mohd. Carim Gazi", he signed the certificate as "G.C. Ghosh".
The bride is described as "Henna Begum" D-152 Preet Vihar, Delhi. Her brother, Kapil Gupta, is the
witness mentioned in the certificate and Kapil Gupta has signed the certificate
in English. From the additional documents referred to above, it would be seen
that though the marriage took place on 3.9.1992, Shri G.C.
Ghosh
continued to profess `Hindu' religion as described in the birth certificate of
his child born out of the second wedlock and also in the application for Bangladesh visa. In the birth certificate as
also in the application for Bangladesh
visa, he described himself as "G.C. Ghosh" and his wife as "Vanita
Ghosh" and both were said to profess "Hindu" religion. In the
electoral roll also, he has been described as "Gyan Chand Ghosh" and
the wife has been described as "Vanita Ghosh". It, therefore, appears
that conversion to `Islam' was not the result of exercise of the right to
freedom of conscience, but was feigned, subject to what is ultimately held by
the trial court where G.C. Ghosh is facing the criminal trial, to get rid of
his first wife, Smt. Sushmita Ghosh and to marry a second wife. In order to
avoid the clutches of Section 17 of the Act, if a person renounces his
"Hindu" religion and converts to another religion and marries a
second time, what would be the effect on his criminal liability is the question
which may now be considered. It is in this background that the answer to the
real question involved in the case has to be found. Section 5 of the Hindu
Marriage Act prescribes the conditions for a valid Hindu marriage. A portion of
this Section, relevant for our purposes, is quoted below:- "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 marriage, (ii) .................................
(iii) ................................ (iv) ................................ (v)
................................ (vi) ................................"
Section 11 provides as under:- "11. Void Marriages.- Any marriage
solemnized after the commencement of this Act shall be null and void and may,
on a petition presented by either party thereto, be so declared by a decree of
nullity if it contravenes any one of the conditions specified in clause (i),
(iv) and (v) of section 5." Thus, Section 5(i) read with Section 11
indicates that any marriage with a person whose previous marriage was
subsisting on the date of marriage, would be void ab initio. The voidness of
the marriage is further indicated in Section 17 of the Act in which the
punishment for bigamy is also provided. This Section lays down as under:-
"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 shall apply accordingly." The first part
of this Section declares that a marriage between two Hindus which is solemnized
after the commencement of this Act, would be void if on the date of such
marriage either party had a husband or wife living. It has already been pointed
out above that one of the essential requisites for a valid Hindu marriage, as
set out in Section 5(i), is that either party should not have a spouse living
on the date of marriage. Section 11 which has been quoted above indicates that
such a marriage will be void. This is repeated in Section 17. The latter part
of this Section makes Sections 494 and 495 of the Indian Penal Code applicable
to such marriages by reference. Now, Section 494 provides as under:- "494.
Marrying again during life-time of husband or wife.- 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. 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 beeen 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." We are not in this case
concerned with the exception of Section 494 and it is the main part of Section
494 which is involved in the present case. A perusal of Section 494 indicates
that in order to constitute an offence under this Section, the following
ingredients must be found to be existing:- (i) First marriage of the accused,
(ii) Second marriage of the accused, (iii) The first wife or husband, as the
case may be, should be alive at the time of the second marriage. (iv) Under
law, such marriage should be void by reason of its taking place during the
life-time of such husband or wife. We have already seen above that under the
Hindu Marriage Act, one of the essential ingredients of the valid Hindu
marriage is that neither party should have a spouse living at the time of
marriage.
If the
marriage takes place in spite of the fact that a party to that marriage had a
spouse living, such marriage would be void under Section 11 of the Hindu
Marriage Act.
Such a
marriage is also described as void under Section 17 of the Hindu Marriage Act
under which an offence of bigamy has been created. This offence has been
created by reference. By providing in Section 17 that provisions of Section 494
and 495 would be applicable to such a marriage, the Legislature has bodily
lifted the provisions of Section 494 and 495 IPC and placed it in Section 17 of
the Hindu Marriage Act. This is a well- known legislative device.
The
important words used in Section 494 are "MARRIAGE IN ANY CASE IN WHICH
SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE DURING THE LIFE-TIME OF
SUCH HUSBAND OR WIFE". These words indicate that before an offence under
Section 494 can be said to have been constituted, the second marriage should be
shown to be void in a case where such a marriage would be void by reason of its
taking place in the life-time of such husband or wife. The words "Husband
or Wife" are also important in the sense that they indicate the personal
law applicable to them which would continue to be applicable to them so long as
the marriage subsists and they remain "Husband and Wife". Chapter XX
of the Indian Penal Code deals with offences relating to marriage. Section 494
which deals with the offence of bigamy is a part of Chapter XX of the Code.
Relevant portion of Section 198 of the Code of Criminal Procedure which deals
with the prosecution for offences against marriage provides as under :
"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 --- (a) 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; (b) 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 complaint in person, some
other person authorised by the husband in accordance with the provisions of
sub-(s) (4) may make a complaint on his behalf; (c) where the person aggrieved
by an offence punishable under s 494 or s 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, marraige or adoption.
(2)
For the purposes of sub-s(1), no person other than the husband of the woman
shall be deemed to be aggrieved by any offence punishable under s 497 or s 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 committed may, with the leave of
the Court, make a complaint on his behalf. (3) .. .. .. (4) .. .. ..
(5) ..
.. .. (6) .. .. .. (7) .. .. .." It would thus be seen that the Court
would take cognizance of an offence punishable under Chapter XX of the Code
only upon a complaint made by any of the persons specified in this Section.
According to clause (c) of the Proviso to sub-section (1), a complaint for the
offence under Section 494 or 495 can be made by the wife or on her behalf by
her father, mother, brother, sister, son or daughter or by her father's or
mother's brother or sister. Such complaint may also be filed, with the leave of
the Court, by any other person related to the wife by blood, marriage or
adoption.
If a
Hindu wife files a complaint for the offence under Section 494 on the ground
that during the subsistence of the marriage, her husband had married a second
wife under some other religion after converting to that religion, the offence
of bigamy pleaded by her would have to be investigated and tried in accordance
with the provisions of the Hindu Marriage Act. It is under this Act that it has
to be seen whether the husband, who has married a second wife, has committed
the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous
marriage is prohibited and has been constituted as an offence under Section 17
of the Act, any marriage solemnized by the husband during the subsistence of
that marriage, in spite of his conversion to another religion, would be an
offence triable under Section 17 of the Hindu Marriage Act read with Section
494 IPC.
Since
taking of cognizance of the offence under Section 494 is limited to the
complaints made by the persons specified in Section 198 of the Code of Criminal
Procedure, it is obvious that the person making the complaint would have to be
decided in terms of the personal law applicable to the complainant and the
respondent (accused) as mere conversion does not dissolve the marriage automatically
and they continue to be "husband and wife". It may be pointed out
that Section 17 of the Hindu Marriage Act corresponds to Sections 43 and 44 of
the Special Marriages Act. It also corresponds to Sections 4 & 5 of the Parsi
Marriage & Divorce Act, Section 61 of the Indian Divorce Act and Section 12
of the Matrimonial Causes Act which is an English Act. In Bhaurao Shankar Lokhande
vs. State of Maharashtra (1965) 2 SCR 837 = AIR 1965 SC 1564, this Court held
as under : "Section 17 provides that any marriage between two Hindus
solemnized after the commencement of the Act is void if at the date of such
marriage either party had a husband or wife living and that the provisions of
Sections 494 and 495 I.P.C. shall apply accordingly. The marriage between two
Hindus is void in view of Section 17 if two conditions are satisfied : (i) the
marriage is solemnized after the commencement of the Act; (ii) at the date of
such marriage, either party had a spouse living. If the marriage which took
place between the appellant and Kamlabai in February 1962 cannot be said to be
`solemnized', that marriage will not be void by virtue of Section 17 of the Act
and Section 494 I.P.C. will not apply to such parties to the marriage as had a
spouse living." This decision was followed in Kanwal Ram vs. H.P.
Administration (1966) 1 SCR 539 = AIR 1966 SC 614. The matter was again
considered in Priya Bala Ghosh vs. Suresh Chandra Ghosh (1971) 3 SCR 961 = AIR
1971 SC 1153 = 1971(1) SCC 864. In Gopal Lal vs. State of Rajasthan AIR 1979 SC
713 = 1979(2) SCR 1171 = 1979 (2) SCC 170, Murtaza Fazal Ali, J., speaking for
the Court, observed as under : "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, if a
person marries a second time during the lifetime of his wife, such marriage
apart from being void under Section 11 & 17 of the Hindu Marriage Act,
would also constitute an offence and that person would be liable to be
prosecuted under Section 494 IPC. While Section 17 speaks of marriage between
two "Hindus", Section 494 does not refer to any religious
denomination. Now, conversion or apostacy does not automatically dissolve a
marriage already solemnized under the Hindu Marriage Act. It only provides a
ground for divorce under Section 13. The relevant portion of Section 13 provides
as under : "13. Any marriage solemnized, 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) ............................. (ii) has ceased to be a Hindu by
conversion to another religion; or (iii) ............................. (iv)
............................. (v) ............................. (vi)
............................. (vii) .............................
(viii).............................
(ix) ............................" Under Section 10 which provides for
judicial separation, conversion to another religion is now a ground for a
decree for judicial separation after the Act was amended by Marriage Laws (Amendment)
Act, 1976. The first marriage, therefore, is not affected and it continues to
subsist. If the `marital' status is not affected on account of the marriage
still subsisting, his second marriage qua the existing marriage would be void
and in spite of conversion he would be liable to be prosecuted for the offence
of bigamy under Section 494. Change of religion does not dissolve the marriage
performed under the Hindu Marriage Act between two Hindus.
Apostasy
does not bring to an end the civil obligations or the matrimonial bond, but
apostasy is a ground for divorce under Section 13 as also a ground for judicial
separation under Section 10 of the Hindu Marriage Act. Hindu Law does not recognised
bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for
"Monogamy". A second marriage, during the life-time of the spouse,
would be void under Sections 11 and 17, besides being an offence. In Govt. of
Bombay vs. Ganga ILR (1880) 4 Bombay 330, which obviously is a case decided
prior to the coming into force of the Hindu Marriage Act, it was held by the
Bombay High Court that where a Hindu married woman having a Hindu husband
living marries a Mahommedan after conversion to `Islam', she commits the
offence of polyandry as, by mere conversion, the previous marriage does not
come to an end.
The
other decisions based on this principle are Budansa Rowther & Anr. vs.
Fatima Bi & Ors. AIR 1914 Madras 192;
Emperor
vs. Mst. Ruri AIR 1919 Lahore 389; and Jamna Devi vs. Mul Raj
1907 (PR No.49) 198. In Rakeya Bibi vs. Anil Kumar Mukherji ILR (1948) 2 Cal. 119, it was held that under Hindu Law, the apostasy
of one of the spouses does not dissolve the marriage. In Sayeda Khatoon @ A.M.
Obadiah vs. M. Obadiah (1944-45) 49 CWN 745, it was held that a marriage
solemnized in India according to one personal law cannot be dissolved according
to another personal law simply because one of the parties has changed his or
her religion.
In Amar
Nath vs. Mrs. Amar Nath (1947) 49 PLR 147 (FB), it was held that nature and
incidence of a Vedic marriage bond, between the parties are not in any way
affected by the conversion to Christianity of one of them and the bond will
retain all the characteristics of a Hindu marriage notwithstanding such
conversion unless there shall follow upon the conversion of one party,
repudiation or desertion by the other, and unless consequential legal
proceedings are taken and a decree is made as provided by the Native Converts
Marriage Dissolution Act. In the case of Gul Mohammad vs. Emperor AIR 1947 Nagpur 121, the High Court held that the
conversion of a Hindu wife to Mahomedanism does not, ipso facto, dissolve the
marriage with her Hindu husband. It was further held that she cannot, during
his life-time, enter into a valid contract of marriage with another person.
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, it would be seen
that mere conversion does not bring to an end the marital ties unless a decree
for divorce on that ground is obtained from the court. Till a decree is passed,
the marriage subsists. Any other marriage, during the subsistence of first
marriage would constitute an offence under Section 494 read with Section 17 of
the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some
other religion, would be liable to be prosecuted for the offence of bigamy. It
also follows that if the first marriage was solemnized under the Hindu Marriage
Act, the `husband' or the `wife', by mere conversion to another religion,
cannot bring to an end the marital ties already established on account of a
valid marriage having been performed between them. So long as that marriage
subsists, another marriage cannot be performed, not even under any other
personal law, and on such marriage being performed, the person would be liable
to be prosecuted for the offence under Section 494 IPC. The position under the Mahommedan
Law would be different as, in spite of the first marriage, a second marriage
can be contracted by the husband, subject to such religious restrictions as
have been spelled out by Brother Sethi, J. in his separate judgment, with which
I concur on this point also. This is the vital difference between Mahommedan
Law and other personal laws. Prosecution under Section 494 in respect of a
second marriage under Mahommedan Law can be avoided only if the first marriage
was also under the Mahommedan Law and not if the first marriage was under any
other personal law where there was a prohibition on contracting a second
marriage in the life-time of the spouse. In any case, as pointed out earlier in
the instant case, the conversion is only feigned, subject to what may be found
out at the trial. Religion is a matter of faith stemming from the depth of the
heart and mind. Religion is a belief which binds the spiritual nature of man to
a super- natural being; it is an object of conscientious devotion, faith and
pietism. Devotion in its fullest sense is a consecration and denotes an act of
worship. Faith in the strict sense constitutes firm reliance on the truth of
religious doctrines in every system of religion. Religion, faith or devotion are
not easily interchangeable. If the person feigns to have adopted another
religion just for some worldly gain or benefit, it would be religious bigotry.
Looked at from this angle, a person who mockingly adopts another religion where
plurality of marriage is permitted so as to renounce the previous marraige and
desert the wife, he cannot be permitted to take advantage of his exploitation
as religion is not a commodity to be exploited. The institution of marriage
under every personal law is a sacred institution. Under Hindu Law, Marriage is
a sacrament. Both have to be preserved. I also respectfully agree with Brother Sethi,
J. that in the present case, we are not concerned with the status of the second
wife or the children born out of that wedlock as in the instant case we are
considering the effect of the second marriage qua the first subsisting marriage
in spite of the husband having converted to `Islam'. I also agree with Brother Sethi,
J. that any direction for the enforcement of Article 44 of the Constitution
could not have been issued by only one of the Judges in Sarla Mudgal's case. In
fact, Sarla Mudgal's case was considered by this Court in Ahmedabad Women
Action Group & Ors. vs. Union of India (1997) 3 SCC 573 and it was held
that the question regarding the desirability of enacting a Uniform Civil Code
did not directly arise in Sarla Mudgal's case. I have already reproduced the
order of this Court passed in Sarla Mudgal's case on 23.4.1990 in which it was
clearly set out that the learned counsel appearing in that case had, after
taking instructions, stated that the prayers were limited to a single relief,
namely, a declaration 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 any
earlier marriage or to enter into a second marriage, any marraige entered into
by him after conversion would be void. In another decision, namely, Pannalal Bansilal
Pitti & Ors.
vs.
State of A.P. & Anr. (1996) 2 SCC 498, this Court had indicated that
enactment of a uniform law, though desirable, may be counter-productive. It may
also be pointed out that in the counter affidavit filed on 30th August, 1996
and in the supplementary affidavit filed on 5th December, 1996 on behalf of
Govt. of India in the case of Sarla Mudgal, it has been stated that the Govt.
would take steps to make a uniform code only if the communities which desire
such a code approach the Govt. and take the initiative themselves in the
matter. With these affidavits, the Govt. of India had also annexed a copy of
the speech made by Dr. B.R.
Ambedkar
in the Constituent Assembly on 2nd December, 1948 at the time of making of the Constitution. While discussing the
position of common civil code, Dr. Ambedkar, inter alia, had stated in his
speech (as revealed in the Union of India's affidavit) that "........I
should also like to point out that all that the State is claiming in this
matter is a power to legislate. There is no obligation upon the State to do
away with personal laws. It is only giving a power.
Therefore,
no one need be apprehensive of the fact that if the State has the power, the
State will immediately proceed to execute or enforce that power in a manner
that may be found to be objectionable by the Muslims or by the Christians or by
any other community in India." He further stated in his speech as under :
"We must all remember -- including Members of the Muslim community who
have spoken on this subject, though one can appreciate their feelings very well
-- that sovereignty is always limited, no matter even if you assert that it is
unlimited, because sovereignty in the exercise of that power must reconcile
itself to the sentiments of different communities." Moreover, as pointed
out by Brother Sethi, J., learned ASG appearing for the respondent has stated
before the Court that the Govt. of India did not intend to take any action in
this regard on the basis of that judgment alone. These affidavits and the
statement made on behalf of the Union of India should clearly dispel notions harboured
by the Jamat-e-Ulema Hind and the Muslim Personal Law Board. I am also of the
opinion, concurring with Brother Sethi, J., that this Court in Sarla Mudgal's
case had not issued any DIRECTION for the enactment of a common civil code. The
Review Petition and the Writ Petitions are disposed of finally with the
clarifications set out above. .......................J ( S. Saghir Ahmad ) New Delhi May 5, 2000. IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT
PETITION (CIVIL) NO. 798 OF 1995 Lily Thomas, etc. etc. .. Petitioners vs. Union of India & Ors. .. Respondents WITH (W.P.(C)
No. 1079/89, RP(C) No. 1310/95 IN WP(C) 509/92, WP(C) No.347/90, WP(C) No.
424/92, WP(C) No. 503/95, WP(C) No.509/92, WP(C) No. 588/95, WP(C) No.835/95) O
R D E R In view of the concurring, but separate judgments the Review Petition
and the Writ Petitions are disposed of finally with the clarifications and
interpretation set out therein. All interim orders passed in these petitions
shall stand vacated.
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