Report No. 227
Preventing Bigamy via Conversion to Islam - A Proposal for Giving Statutory Effect to Supreme Court Rulings
Marriage laws other than that of the Muslims now in force in the country prohibit bigamy and treat a bigamous marriage as void. For this reason a marriage to which any of these laws apply attracts the anti-bigamy provisions of the Indian Penal Code which are applicable to a bigamous marriage if it is void under the governing law for the reason of being bigamous [Sections 494-495].
For a long time past, married men whose personal law does not allow bigamy have been resorting to the unhealthy and immoral practice of converting to Islam for the sake of contracting a second bigamous marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved.
The Supreme Court of India outlawed this practice by its decision in the case of Sarla Mudgal v Union of India, AIR 1995 SC 1531 The ruling was re-affirmed five years later in Lily Thomas v Union of India (2000) 6 SCC 224.
Though these cases related to marriages governed by the Hindu Marriage Act 1955, their ratio decidendi would obviously apply to all marriages whose governing laws do not permit bigamy.
The Supreme Court decision on this subject is now the law of the land, and yet it is being widely violated across the country. Two conspicuous cases of unlawful bigamy through the route of conversion to Islam have made headlines in recent days.
In one of these cases a prominent politician, already a husband and a father, mysteriously disappeared and surfaced a month later with a new bride claiming that they had become husband and wife under the law of Islam to which both of them had since converted. The fact that the new bride in this case, who is a lawyer and has been a law officer with the government of her State, keeps on publicly claiming that her marriage to the convert-bigamist is fully legal due to his conversion to Islam clearly shows the ignorance about the law settled in this respect by the Supreme Court prevails also in the community of lawyers.
In the second case another married man, an army physician of India serving in Afghanistan, converted to Islam in order to marry an Afghan Muslim girl serving him as an interpreter. The poor girl was kept in the dark about his marital antecedents and discovered the same only when years later he returned to India leaving her behind in Afghanistan.
These are, of course, not the only prominent instances where married non-Muslim men claiming to have converted to Islam have duped their first wives; many such cases go unnoticed. There is, thus, a need to make the legal position as settled by the Supreme Court clear enough by introducing necessary provisions to that effect in all the existing legislative enactments governing marriages among various communities. This Report examines the existing legal position of bigamy in India and suggests ways to check the social malaise of bigamy through the route of sham conversion.
Depending on the number of plural marriage in a particular case and the gender of the person indulging in them, etymologists use different expressions for various situations of plural marriages - bigamy (double marriages by a man or woman), polygamy (triple or more marriages by a man or woman), polygyny (bigamy by men) and polyandry (bigamy by women). Avoiding these subtle differences and for the sake of brevity and convenience, we are using in this Report the common terms 'bigamy' or `polygamy' which are opposite of monogamy and may be applied to all cases of plural marriages irrespective of gender and number of spouses.