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Report No. 227

Chapter VII

Judicial Rulings on Bigamy by Conversion

There has always been a simmering discontent in the judiciary regarding the tendency of converting to Islam for the sake of contracting a second bigamous marriage and the courts have tried to control it.

In Vilayat Raj v Sunila AIR 1983 Delhi 351 Justice Leela Seth of the Delhi High Court had decided that the Act would continue to apply to a person who was a Hindu at the time of marriage despite his subsequent conversion to Islam and that he could still seek divorce under the Act (except on the ground of his own conversion).

In In re P Nagesashayya (1988) Mat LR 123 Justice Bhaskar Rao of Andhra Pradesh High Court severely criticized the unhealthy practice of bigamy by conversion and observed that the old rule that the motive behind conversion could never be questioned had to be rejected at least in the cases of conversion coupled with bigamy. Similar observations were made in the case of B Chandra Manikyamma v B. Sudarsana Rao alias Saleem Mohammed , 1988 CriLJ 1849

Finally, in the leading case of Smt. Sarla Mudgal v Union of India (1995) 3 SCC 635 the Supreme Court decided that every bigamous marriage of a Hindu convert to Islam would be void and therefore punishable under the Indian Penal Code. The court observed:

"Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law".

As regards the logic by which a married non-Muslim's second bigamous marriage contracted after conversion to Islam could be treated as void under the Hindu Marriage Act, the court argued as follows:

"It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression 'void' for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the section. On the other hand the same expression has a different purpose under Section 494 IPC and has to be given meaningful interpretation.

The expression 'void' under Section 494 IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 IPC. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC.

Any act which is in violation of mandatory provisions of law is per se void. The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal."

The court further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act would be in violation of the rules of equity, justice and good conscience, as also those of natural justice. The court concluded that:

"The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other."

In a separate judgment given in the Sarla Mudgal case Justice R.M. Sahai indeed spoke the truth when he said that "much misapprehension prevails about bigamy in Islam". Grossly caricatured now, the Qur'anic concept of bigamy envisaged two women happily married to the same man and getting from him equally all that a lawfully wedded wife could rightfully expect from the husband. Where this was not possible, the Qur'an enjoined monogamy.

While the Qur'anic norms must be strictly observed also by born Muslims, the popular belief that the Qur'an enables a non-Muslim husband who has kicked out his wife without a legal divorce to marry again 37by announcing a sham conversion to Islam is absolutely false. Derecognizing bigamous marriages of non-Muslim husbands contracted in such a fraudulent manner indeed enforces Qur'anic justice. On this point the Sarla Mudgal ruling of the Supreme Court is unassailable.

The Sarla Mudgal ruling was looked with disfavour in certain circles on the ground that it infringed a person's fundamental right to freedom of conscience and profession of religion guaranteed by Article 25 of the Constitution. The matter was brought before the Supreme Court which dismissed the idea. In Lily Thomas v Union of India, 2000(6) SCC 227 the court observed:

"The grievance that the judgment of the Court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion is also far-fetched and apparently artificially carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of conscience and propagation of religion. Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom of other persons.

Under the constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief and idea in a manner which does not infringe the religious right and personal freedom of others. It was contended in Sarla Mudgal case that making a covert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings."

Preventing Bigamy via Conversion to Islam - A Proposal for giving statutory effect to Supreme Court Rulings Back

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