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Lily Thomas vs Union of India

Facts Of The Case
As the wife of Mr. Gyan Chand Ghosh, Sushmita converted to Islam because the Hindu Marriage Act prohibited bigamy under sections 5 and 11 of the Hindu Marriage Act. This was further substantiated by section 17 of the Hindu Marriage Act, which stipulates that the punishment for bigamy is the same as under sections 494 and 495 of the Indian Penal Code.

There are three petitions:
  • Mrs. Sushmita Ghosh v. Union of India and Ors.
  • Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and Ors.
  • Sunita @ Fatima v. Union of India and Ors.

 According to the Supreme Court, it is void to marry a second wife if the conversion to Islam is feigned rather than exercised freely of conscience in the presence of a first marriage under the Hindu Marriage Act, because such feigned conversion of faith does not constitute an exercise of freedom of conscience.

A Writ Petition filed by Mrs. Sushmita Ghosh, stating that she was the legally married wife and wished to live with him, requested that her husband be prohibited from entering into a second marriage with Vinita Gupta. According to the petition, Mrs. Sushmita Ghosh has converted to Islam solely for the purpose of remarrying and does not have a real faith in Islam. In this case, Lily Thomas v. Union of India, various persons and Jamiat Ulema Hind & Anr.

Are arguing that Thomas does not practice Muslim rites as prescribed nor has he changed his name or religion and other official documents. Under Article 136 of the Constitution of India, a review petition has been filed asking for a review of the law laid down by the Sarla Mudgal case in 1995, which was affirmed in the Lily Thomas case. A writ petition for breach of fundamental rights (Article 20, 21, 25, 26) was also filed against the law set by the Sarla Mudgal case.

A lawyer named Lily Thomas represents the distressed wife, Mrs. Sushmita Ghosh, as well as other women who have been victims of bigamous marriages due to religious conversion.

  • Whether there should be Uniform Civil Code for all citizens?
  • Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnize second marriage?
  • Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)?

Contention From The Parties
The first issue has been raised by Lily Thomas on behalf of the women wronged, the argument being that marriage is a sacred institution, and committing the act of bigamy through conversion to Islam, according to Muslim Personal Law, constitutes a feigned attempt where freedom of conscience is not at stake, but the right of women to face such conditions of bigamous marriage and this betrayal is in violation of Art.21's right to life and liberty.

Moreover, Lily Thomas urged the court to declare polygamy in Muslim law to be unconstitutional. The Supreme Court considered this to be one of the most profound arguments for adopting a Uniform Civil Code to resolve the major socio-legal issues arising from Religious Personal Laws.

A few of them were:
  1. Numerous Muslim women who had filed writs with the Supreme Court and other high courts seeking an order declaring polygamy in Muslim law unconstitutional.
  2. To reframe Muslim personal law in the manner of Tunisia, where polygamy is disallowed since the custom and usage of polygamy are disrespectful to the liberty and integrity of women who are bound up in bigamous and polygamous marriages.
  3. It is essential to have a Uniform Civil Code to ensure that no Personal Religious Laws violate fundamental rights.
In Sarla Mudgal's Case, a law was passed by the Supreme Court that entitled some of the petitioners to be apprehended under s.475, IPC; therefore, a review of the law has been requested against the court's previous decision. The petitioners' counsel argues that the aggrieved parties, exercising their freedom of conscience and freedom to profess any religion, have sought conversion to Islam and therefore are allowed to commit bigamy.

Based on the Sarla Mudgal Case judgment, such marriages done after conversion to Islam are void because under Hindu law, prior to conversion, there is a previous marriage and, therefore, some have been apprehended under Section 475 of the Indian Penal Code. Due to the contention that the Muslim Personal Law (Shariat) Act allows bigamy, the apprehended have not committed any offenses under IPC. This is a violation of the right to life and liberty.

Ratio Decidendi:
As to question (1), the appellant's petition clearly contended that the respondent had only feigned conversion to solemnize a second marriage, not truly converted to the Muslim faith.

Further, it was also stated that though freedom of religion is a matter of trust the said liberty cannot be used as a garb for evading further laws where the spouse becomes a adapt to 'Islam' to avoid the first marriage.

Respondent doesn't perform the Muslim rites as prescribed nor has he changed his name or religion, other official documents, proving that said conversion was not done to gain faith in the Muslim religion but rather to get rid of a previous marriage.

Bigamous marriages are prohibited under the Hindu Marriage Act, and Section 17 of the Act constitutes an offense. Therefore, any marriage solemnized by the husband during the duration of that marriage, regardless of the husband's conversion to another religion, will constitute an offense under Section 17 of the Hindu Marriage Act, 1955, as well as Section 494 of the IPC.

Any marriage solemnized among 2 Hindus is held to be void if the following situation are fulfilled:
  • If the marriage is solemnised after the commencement of the Act,
  • If at the date of such marriage, either party had a spouse living.
Therefore, in view of question (2), a person who contracts a second marriage during the duration of his earlier marriage will also be liable to be prosecuted under Section 494 of the Indian Penal Code in addition to the marriage being void under Section 11 & 17 of the Hindu Marriage Act.

In Robasa Khanum V. Khodadad Irani, the learned Judge held that a spouse who converts to Islam must be judged according to justice, equity, and good conscience.

When viewed from a second perspective, the second marriage of a Hindu husband after embracing Islam violates justice, equity, and a good conscience, and it is null and void because it would render the second wife a concubine and the children born of that marriage illegitimate. Additionally, Section 494 would apply.

Article 44 of the Indian Constitution provides for the implementation of a uniform civil code, which was the principal issue addressed in the instant petition.

It was specifically declined by the Court in Maharshi Avadhesh v. Union of India 1994 to issue a writ directing the respondents to consider the issue of enacting a common Civil Code for all citizens of India since the issue arose as a matter of policy, for which the Legislature was required to take effective action, since the Court cannot legislate.

Although uniformity of law is highly desirable, its enactment in one go may prove counterproductive to the unity and integrity of the nation. It should bring gradual progressive change and order to a democracy governed by the rule of law. So, it would be inefficient and incorrect to think that all laws must be uniformed at once. However, through the process of law, the mischief or defect can be remedied which is at stages.

R.M. Sahai, J., addressed the issue of the Uniform Civil Code. Also, another Honorable Judge of the Bench suggested that the Government take some measures to prevent the abuse of religion by unscrupulous individuals who are hiding their guilt under the cloak of conversion.

A Supreme Court bench consisting of Justice Sagir Ahmed and Justice Sethi has upheld and enforced the judgment in the Sarla Mudgal case. In spite of the fact that the Muslim Personal Law (Shariat) Act allows polygamy, marriages resulting from conversion to Islam from any other faith during the existence of previous marriages prior to conversion are considered void, since such conversions are not the exercise of freedom of conscience, but rather feigned and fraudulent without the change of faith

The reasoning behind this judgment was based on the husband's practice of converting to Islam but failing to register his new name and religion as recognition of the child born of the second marriage. Furthermore, the husband's bank accounts contain identification of his identity as a Hindu. All of these elements were used to demonstrate that the conversion had been fraudulent and intended solely for the purpose of a bigamous marriage, rather than any alteration of belief or practice. Consequently, the marriage resulting from the conversion is invalid also due to the infringement of Article 21.

According to the Court, the violation of Article 21 on behalf of those apprehended under Sarla Mudgal law is not at all a violation, as expressed by Sethi J. Sethi J. has argued that Article 21 stipulates that no person shall be deprived of his right to life or personal liberty without following legal procedure. As the individuals have been apprehended for offences under Sections 494 and 495 of the Indian Penal Code, no right has been violated since such apprehension is governed by law. It has been ruled by the Court that the alleged violation of Article 21 is misconceived.

Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to contract second marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the said Act which deals with the offence of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860. If a Hindu wife files complaint against her husband, who during existence of first marriage do second marriage after conversion to another religion then the offence of Bigamy shall be dealt with Hindu Marriage Act, 1959.

R.P.Sethi Ji said if a Hindu husband after converting to Islam contracts the second marriage without dissolving the first marriage then the second marriage would be invalid under Section 494 & 495 of IPC and the husband will be punished according to that.

The Order:
dismissed the review petition and other petition due to no substance but also assured the Jamiat Ulema Hind and the Muslim Personal Law Board that the Judiciary or the Union have not thought of making a Uniform Civil code. All interim orders passed including stay of the Criminal Case in subordinate Courts shall stand vacated. Both judges have given a concurring opinion.

Henceforth, the law on this issue reads: Any Marriage instituted after conversion to Muslim while a marriage already remains from before conversion, will be void.

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