Full Judgment Text
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PETITIONER:
LILY THOMAS, ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 05/05/2000
BENCH:
R.P.Sethi, S.S.Ahmad
JUDGMENT:
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
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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 :
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"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
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. 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
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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
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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,
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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
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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
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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
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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
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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
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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.