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.
Contention From The Parties
- 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)?
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:
- Numerous Muslim women who had filed writs with the Supreme Court and
other high courts seeking an order declaring polygamy in Muslim law
- 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
- 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.
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
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
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
Article 44 of the Indian Constitution provides for the implementation of a
uniform civil code, which was the principal issue addressed in the instant
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.
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.