Lily Thomas, Etc. Etc vs Union Of India & Ors on 5 May, 2000

    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
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 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 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.