Report No. 227
All said and done, the Supreme Court of India settled the law once for all in its Sarla Mudgal ruling of 1995 affirmed in Lily Thomas case of 2000.
We are in complete agreement with the thinking of the Supreme Court. The verdict that a married non-Muslim even on embracing Islam cannot contract another marriage without first getting his first marriage dissolved is undoubtedly in conformity with the letter and spirit of Islamic law on bigamy.
In any case, this is now the inviolable law of India -- whatever one may erroneously presume the Islamic law to be. Unfortunately this law as settled by the Supreme Court is now widely known to the public at large and is being constantly violated in numerous cases. The need of the hour, therefore, is to turn the apex court's ruling into a clear legislative provision inserted into all matrimonial-law statutes of the country.
Though these rulings were handed down in the context of the Hindu Marriage Act 1955 they will apply to all marriages governed by the other family-law statutes that are pari materia.
On a careful consideration of all aspects of the trend prevailing among married non-Muslims to try to defy the law by marrying again on embracing to Islam, we recommend insertion of the following additional provisions into various family-law statutes:
1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.
2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.
3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 - saying that this Section would not apply to a married woman who was originally a non Muslim if she reverts to her original faith - be deleted.
4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.
5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.