Topic: Smt. Sarla Mudgal v/s Union of India

Smt. Sarla Mudgal, President v/s Union of India & Ors
Supreme Court of India - Equivalent citations: 1995 AIR 1531, 1995 SCC (3) 635 - Bench: KULDIP SINGH (J), SAHAI, R.M. (J) - DATE OF JUDGMENT: 10/05/1995

THE 10TH DAY OF MAY, 1995 Present:

Hon'ble Mr. Justice Kuldip Singh Hon'ble Mr. Justice R.M. Sahai Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr. Advs., Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.

J U D G M E N T S/O R D E R The following Judgments/Order of the Court were delivered: Smt. Sarla Mudgal, President, Kalyani and Ors.


Union of India & Ors.

(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92) J U D G M E N T Kuldip Singh, J.

"The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not    in a mood to    retrieve Article 44 from the    cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards    "unified personal law for all Indians". The reasons are too obvious to be    stated. The utmost that has been done is to codify the Hindu law    in the    form of the Hindu Marriage    Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural    laws into one unified    code. When more than 80% of    the citizens have already been brought under    the codified personal law there is no justification whatsoever to keep    in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.

The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage    qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?

These are    four petitions    under    Article    32 of    the Constitution of    India. There are two    petitioners in    Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI"

- a registered society    - which is an organisation working for the    welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted    Muslim    religion. According    to the    petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing    the provisions of Section    494, IPC. Jitender Mathur asserts    that having embraced Islam,    he can    have four wives irrespective of the fact that his first wife continues to be Hindu.

Rather interestingly Sunita alias Fathima is    the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was    born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Geeta Rani, petitioner in Writ Petition 424 of 1992 was married    to Pradeep Kumar according    to Hindu rites on November 13, 1988. It    is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner    learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married    her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

Sushmita Ghosh is    another unfortunate lady who is petitioner in Civil Writ Petition 509    of 1992. She    was married to G.C. Ghosh    according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17,    1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner    has further prayed that her    husband be restrained from    entering into    second marriage    with Vinita Gupta.

Marriage is the    very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and    liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is    deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal - uniform civil code for all    the citizens of India - there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy    is the    law for    Hindus and the Muslim    law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the    effect    of dissolving    a Hindu marriage. Conversion to another religion    by one    or both the Hindu spouses did not dissolve the marriage. It would be useful to have a    look at    some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu    wife became convert to the Muslim    faith and then married a Mohammedan, it was    held that her earlier marriage with a Hindu husband was not    dissolved by her conversion.    She was charged and convicted of bigamy under Section 494    of the    IPC. It was held that there was no authority under Hindu    law for the proposition that an apostate is absolved from all civil obligations and    that so far as the matrimonial bond    was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her    to Islam. It    was held that    the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and    she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Nandi @ Zainab    vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the    Indian Penal Code. It was held that the mere fact of her conversion    to Islam did not dissolve the marriage which could only be dissolved by a    decree of court. Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties.    A marriage solemnised under a particular    statute and according to personal law could not    be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

In Sayeda    Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:

"The parties were originally Jews bound by    the Jewish personal    law... The Plaintiff has since been    converted to Islam and    may in some    respects be governed by the Mohammedan Law.. The Defendant    is not governed by    the Mahommedan Law.. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled    to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law    of the    Land..    Now all my opinion, is it the Law of India, that when any person is converted to    Islam the Mahommedan Law shall    be applicable to him in all his relationships?.. I can see no reason why    the Mahommedan Law should be preferred to the Jewish Law in a    matrimonial    dispute    between a Mahommdan and a Jew particularly    when the relationship,    viz.: marriage, was created under the    Jewish    Law..    As I stated in    a previous case there    is no matrimonial law of general application in India.    There is a Hindu Law for Hindus,    a Mahommedan    Law for Mahommedans, a    Christian Law    for Christians, and a Jewish    Law for Jews. There is    no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.. It may be that a marriage solemnised according to Jewish rites may    be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a    marriage solemnised according    to Jesish rites may be dissolved by the proper authority under Jewish Law when    one of    the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan    Law may be dissolved according to the Mahommedan Law when one of    the parties    ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal    law can be dissolved according to another personal law simply because one    of the two parties has changed his or    her religion."
Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her    marriage stood    dissolved because of her conversion    to Islam. The learned    Judge dismissed    the suit. It would be useful to quote the following observations from the judgment:

"We have,    therefore, this position - British India as a whole, is neither governed by Hindu, Mahommedan,    Sikh, Parsi, Christian,    Jewish or any    other law except a law imposed by    Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others,    enjoy equal rights and    the utmost possible freedom of religious    observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this    case Mahomedan law is applicable to a    non- Mahomedan.. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly    acquired personal law    on a party to whom it    is entirely alien and who does not want    it? In    the name of justice, equity and good conscience, or, in    more    simple    language, of common sense, why    should this be possible? If there were    no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff's contention affects. If it    is correct,    it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife."
Against the judgment of Blagden, J. appeal was heard by a Division Bench    consisting of    Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination    as under: "what are    the consequences of    the plaintiff's conversion to Islam?". The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We    have a Zoroastrian husband according    to whose personal law such conversion does not bring about the same result. The Privy    Council in Waghela Rajsanji    v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to    a particular case, then it should be    decided by equity and    good conscience, and they interpreted equity and good conscience to mean the rules of English law if    found applicable to Indian society and circumstances. And the same view was    confirmed by    their Lordships    of the Privy    Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule    of English law which can be made applicable to a suit for divorce by    a Muslim wife    against her Zoroastrian husband. The    English law only deals and    can only deal    with Christian marriages and with grounds for dissolving    a Christian marriage. Therefore we must decided    according to justice and right, or equity and    good conscience    independently of    any provisions of the English law. We must do    substantial justice    between    the parties and in doing so hope that we have vindicated    the principles of justice and right or equity and    good conscience... It is impossible to accept the contention of Mr. Peerbhoy    that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily    afford a ground for its dissolution. The bond    that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many    other    ties which make it possible for a husband and wife to live happily and contentedly    together. It would indeed be a startling proposition to lay down that    although two persons may want    to continue to live    in a married state and disagree as to the religion they should profess,    their marriage    must    be    automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different    communities to be happily united in    wedlock. If conversion of one of the spouses leads to    unhappiness, then the    ground    for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of    Islam    by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is    a very    clear    and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to    prevent a happy marriage notwithstanding the fact that the two parties to it    professed different religious.. We must also point out that the plaintiff and    the defendant    were married according    to the Zoroastrian rites. They entered into    a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets    of the Zoroastrian religion.
It would be patently contrary to justice and right    that one party to a solemn pact should be allowed to repudiate it by    a unilateral    act.    It would be tantamount to permitting    the wife to force a    divorce    upon    her husband although he may not want it and although the marriage vows which both of    them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in    s.2 which includes    marriage and dissolution of marriage shall be the Muslim personal    law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only    one of the parties    is a Muslim." (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul    Allam    Vaidya    1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act    clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely    changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means    for the dissolution    of a marriage or a declaration of    its nullity.
Consequently,    where    two persons married under the Act    subsequently become converted to Islam, the marriage can only    be dissolved    under    the provisions of the Divorce    Act and the same would    apply even if only one of them becomes converted to Islam. Such a marriage is not    a marriage in the Mahomoden sense which can    be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: ('41) 28 A.I.R.1941 Cal. 582 and (1917) 1    K.B. 634, Rel.    on; ('35) 22 A.I.R. 1935 Bom. 8 and 18 Cal. 264, Disting."
It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so.    Where a    marriage takes    place under Hindu Law the parties acquire    a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the    parties is allowed to    dissolve the    marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights    of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to    its codification in    1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the    apostate. The    Act applies to Hindus by religion in any of its forms    or developments. It    also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under:

"Overriding effect of Act. save as otherwise    expressly provided in    this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to    have effect with respect to any matter for    which provision is made in this Act;
(b) any other law in force immediately before the commencement    of this Act shall cease to have effect in so far as it    is inconsistent with    any of the provisions contained in this Act."
A marriage    solemnised, whether before or after    the commencement of    the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that "the other party has ceased to be a Hindu by conversion to another religion". Sections    11 and    15 of the Act is as under:-

"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 against the other    party, be so declared by a decree of nullity    if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

"Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such    a right of appeal the time for appealing has expired without an appeal    having been presented or an appeal has    been presented    but has been dismissed, it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern Hindu    Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the    grounds available under section 13 of    the Act. In that situation    parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under    the shelter of conversion to    Islam would nevertheless be a marriage in violation of the provisions of the Act    by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion    to Islam. The second marriage of an apostate would, therefore, be illegal marriage    qua his wife    who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:-

"Marrying    again    during    lifetime 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.
The necessary ingredients    of the Section are:    (1) having a husband or wife living; (2) marries in any case; (3) in    which such marriage is    void; (4) by reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu    husband after embracing Islam may not be strictly 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 solemnised 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-bye 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.

We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's case (supra) wherein the learned Judge has held    that the conduct of a spouse    who converts to Islam has to be judged on the basis of the rule of justice and right or equity and    good conscience. A matrimonial dispute between a    convert to Islam and his or her non-Muslim    spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a    case was or is    not required    to be    the "Muslim Personal Law".    In such    cases the Court shall    act and the Judge shall decide according to justice, equity and    good conscience. The    second marriage of a Hindu husband after embracing Islam    being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would    be in violation of the rules of natural justice. Assuming that    a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to    marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

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. 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. Since it is not the object of Islam nor is the intention of the enlighten Muslim    community that    the Hindu husbands should be encouraged to become Muslims merely for the    purpose of evading their own personal laws 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.

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at    Colombo according to the statutory formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy    Council, the respondent was absolved from the offence of bigamy.    It was held by Privy Council as under :-

"In their    Lordship's view, in    such countries    there must be    an inherent right in the inhabitants domiciled there to change    their religion    and personal law and    so to contract a    valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute."
Despite there being an    inherent right to change religion the applicability of    Penal laws would depend upon the two    personal laws    governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid's case is, thus,    of no help to    us in the facts and legal background of the present cases.

Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution    Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

"It is also a matter of    regret    that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a    uniform civil    code throughout    the territory of India". There is no evidence of    any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms    of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to    bell    the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil    code for the citizens of the    country    and, unquestionably; it    has the legislative competence to do so. A counsel in the case whispered, somewhat audibly,    that legislative competence is one thing, the political courage to use that competence is    quite    another. We understand the difficulties involved    in bringing persons of different    faiths    and persuasions on a common platform. But, a beginning    has to be made is    the Constitution is to have    any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond    the endurance    of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing    justice than    justice    from case to case."
In Ms.    Jordan Diengdeh    vs. S.S. Chopra AIR 1985 SC 935 O. Chinnappa Reddy, J. speaking for the Court referred to the observations of    Chandrachud, CJ in Shah Bano Begum's case and observed as under:

"It was just the other    day that a Constitution Bench    of this Court had to emphasise the urgency of    infusing life into Art.    44 of the Constitution which provides that "The State shall endeavour to secure    for the    citizens a uniform civil code    throughout the territory of India." The present case is yet another which focuses .. on the immediate and compulsive    need for a uniform    civil code. The    totally unsatisfactory    state of affairs consequent on    the lack of a uniform civil code is exposed by the facts of    the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent    case decided by the Constitution Bench (Mohd. Ahmed Khan vs. Shah Bano Begum)."
One wonders how long will it take for the Government of the day to    implement the mandate of the framers of    the Constitution under Article 44 of the Constitution of India. The traditional Hindu law - personal    law of    the Hindus - governing inheritance, succession and marriage was given go- bye as    back as    1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely    the introduction of a uniform personal law in the country.

Article 44    is based on the concept that    there is no necessary connection between religion and personal law in a civilised society. Article 25    guarantees religious freedom whereas Article    44 seeks to divest religion    from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.    The personal law of the Hindus, such as relating to marriage, succession and    the like have all a sacramental origin, in the same manner as in the case of the Muslims or    the Christians. The    Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities    would    not, though the Constitution enjoins the    establishment of a "common civil Code" for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or    desirable for    its followers.    It can be superseded by the State just    as it    can prohibit human sacrifice or the practice of "Suttee"    in the    interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

Political history of India shows that during the Muslim regime, justice    was administered by the Qazis who would obviously apply    the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings    made Regulations for the administration of civil    justice    for    the native population, without discrimination    between    Hindus    and Mahomedans. The    1772 Regulations followed by the Regulations of 1781 whereunder it was    prescribed that    either community was to be governed by its    "personal" law    in matters relating to inheritance, marriage, religious usage and    institutions. So far as the criminal justice was    concerned the British gradually superseded the    Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the    British regime    until independence and    the territory of India was    partitioned by    the British Rulers into two States on the basis of religion. Those    who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain    a separate entity on the basis of religion. It would be    necessary to    emphasise that    the respective personal laws were    permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations    of 1781 framed by Warren Hastings. The Legislation -    not religion - being    the authority under    which personal law was permitted to operate and is    continuing to operate, the same can    be superseded/supplemented by introducing a uniform civil code. In this    view of the matter no community can    oppose    the introduction of uniform civil    code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty    of implementing    the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of    the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throught the territory of India".

We further    direct    the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August,    1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a "uniform civil code" for the    citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

Answering the questions posed by us in the beginning of the judgment, we hold    that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law,    would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC    and the apostate-husband would be guilty of    the offence under Section 494 IPC.

The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc. Vs.

Union of India & Ors.


Considering senstivity of the issue and    magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to    the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the    Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy' represents one side of    the picture, then    the other side claims that, `Logical probability appears to be that the code    would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity'.

When Constitution    was framed with secularism as    its ideal and goal, the consensus and conviction to be    one, socially, found its    expression in    Article    44 of    the Constitution. But religious freedom, the basic foundation of secularism, was    guaranteed by    Articles 25 to    28 of    the Constitution. Article    25 is    very    widely    worded. It guarantees all    persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith    or belief. The Court    has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious    belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance,    Ramayana or Quran or Bible or Guru Granth    Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or    dressing him and going to a temple, mosque, church or gurudwara.

Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the    fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter    of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even    violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram    Mohan Rai who single    handed brought about that atmoophere    which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully,    the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of    uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst    leaders    who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert    to Islam only for    purposes of escaping    the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But    no religion permits deliberate distortions.    Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited    or severely restricted. (Syria, Tunisia, Morocco,    Pakistan, Iran,    the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context'. But ours is a Secular Democratic Republic. Freedom of religion is the core of our    culture. Even the slightest deviation    shakes    the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are    not autonomy    but oppression'. Therefore,    a unified code is imperative both for protection    of the    oppressed and promotion of national unity and solidarity. But the    first    step should be to rationalise the    personal law of the minorities to develop religious and cultural amity.    The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.

The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to    check the abuse of religion by any person. The law    may provide that every citizen who    changes    his religion cannot    marry another    wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or    a Jain    or a    Budh. Provision may be made    for maintenance and succession etc. also    to avoid clash of interest after death.

This would    go a long way to solve the problem and pave the way for a unified civil code.

Smt. Sarla Mudgal, President Kalyani and Ors.


Union of India & Ors.

(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).

O R D E R For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the    answers to the questions posed in the opinion of Kuldip Singh, J.