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Case Analysis: Smt.Sarla Mudgal,President, Kalyani v/s Union of India, 1995 AIR 1531

This case is considered as a landmark judgement by the Supreme Court. The Practice of changing one's religion to have a 2nd marriage without dissolving the first marriage was held to be invalid. As it was against justice, equity and good conscience. Conversion from one faith to another doesn't dissolve the marriage of an individual. The marriage can only be dissolved by decree of divorce obtained by the competent court on any of the ground under Section 13 of the Hindu Marriage Act, 1955. The court also declared that if a person is found guilty then he will be charged under Section 494 of the Indian Penal Code, 1860 for bigamy.

In India there is no uniform civil code applicable to all its citizens. Every citizen is governed by his or her own personal law. Justice Kuldip Singh requested the Government to look into Article 44 of the Constitution and to secure its citizen a uniform code.

Smt.Sarla Mudgal, President, Kalyani and Others v. Union of India and Others, 1995 AIR 1531
Citation: 1995 AIR 1531 - Case Number: W.P.(C) No.-001079-001079 / 1989
Diary number as per SC record: 71644 / 1989
Name of the Petitioner: Smt. Sarla Mudgal, President, Kalyani and Others v/s Name of the Defendant: Union of India and Others
Counsel for the Petitioner: S. Janani v/s Counsel for the Defendant: P. Parmeswaran
Bench: Justice Kuldip Singh and Justice R.M.Sahai
Court: The Supreme Court of India - Decided on: 10 May 1995

Facts of the Case
Four petitions were filed under Article 32 of the Constitution
  • Petitioner 1 (Writ Petition 1079/89) is the President of an organisation 'KALYANI' (works for the welfare of families in need and women). There is a second petitioner Meena Mathur who married Jitender Mathur on 27 February 1978. They have 2 sons and a daughter together. In early 1988, the petitioner learned that her husband had solemnised a second marriage with Sunita Narula alias Fathima by converting to Islam.
  • Petitioner 2 (Writ Petition 347 of 1990) is Sunita Narula alias Fatima. She had converted to Islam to marry Jitender Mathur and a child had been born out of wedlock. Under the influence of his first wife, Jitender converted back to Hinduism. Sunita continued to be a Muslim, therefore she was not being maintained by her husband and had no protection under either of the personal laws.
  • Petitioner 3 (Writ Petition 424 of 1992) is Geeta Rani. She had married Pradeep Kumar as per Hindu rites on November 13, 1988. In December 1991, the petitioner learnt that Pradeep Kumar ran away to marry Deepa after converting to Islam. During the marriage, her husband used to maltreat her and on one occasion had broken her jaw.
  • Petitioner 4 (Civil Writ Petition 509 of 1992) is Sushmita Ghosh. She had married G.C. Ghosh as per Hindu rites on May 10, 1984. On April 20, 1992, her husband asked her for a divorce by mutual consent. He revealed that he had converted to Islam and would marry a lady named Vinita Gupta.

Contention of the Petitioners:
  1. Petitioner 1- Conversion of her husband to Islam was only for the purpose of marrying Sunita and he is by-passing the provisions of Section 494, IPC. Jitender Mathur on the other hand asserted that having embraced Islam, he can have four wives irrespective of the fact that his first wife continued to be a Hindu.
  2. Petitioner 2- Sunita Narula alias Fathima contended that after her husband Jitender converted back to Hinduism she continued to be Muslim and therefore is not being maintained by her husband and has no protection under either of the personal laws.
  3. Petitioner 3- Geeta Rani pleaded that the conversion to Islam by her husband was only to facilitate the second marriage with Deepa.
  4. Petitioner 4- Sushmita Ghosh in her writ petition, prayed that her husband should be restrained from entering into a second marriage with Vinita Gupta.

Facts in Issue:
  • 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)?

Article and Acts Referred:
  • Article 25 of the Indian Constitution (Religious freedom)
  • Article 44 of the Indian Constitution (Uniform Civil Code)
  • Section 494 of the Indian Penal Code, 1860 (Marrying again during lifetime of husband or wife)
  • Section 4 of the Hindu Marriage Act, 1955 (Overriding effect of Act)
  • Section 11 of the Hindu Marriage Act, 1955 (Void marriages)
  • Section 13 of the Hindu Marriage Act, 1955 (Divorce)
  • Section 15 of the Hindu Marriage Act, 1955 (Divorced persons when may marry again)
  • Section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) (Effect of conversion to another faith)
  • Section 17 of Special Marriage Act, 1954 (Appeals from orders under section 16)
  • Section 2 of Shariat Act (Act XXVI of 1937) (Application of Personal law to Muslim)
Bigamy: Section 494 of the Indian Penal Code,

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."

Exceptions to whom this section does not apply:
  • Any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction.
  • 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 have not been heard to be alive.

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.

To prove the offence of Bigamy by the husband, the prosecution (first wife) has to prove that the second marriage of the husband was valid. There is no limitation period for taking cognizance of the offence of bigamy. A party can file a case under section 494 when they are made aware of such marriage.

The Kerala High Court in Venugopal K. v. Union of India, W.P.(C). No. 4559 of 2015 held that Section 494 IPC does not discriminate between Hindu/Muslim/Christian and can be proceeded against any citizen who commits the offence of bigamy irrespective of his/her personal law, provided that ingredients of Section 494 are made out.

Court's View
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.

In India, there has never been a matrimonial law of general application. Apart from statute law such as the Hindu Marriage Act, 1955 and Muslim Personal Law (Shariat) Application Act, 1937 a marriage is governed by the personal law of the parties. A marriage that has been 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.

From the provisions of the Hindu Marriage Act, 1955 we can conclude that 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. The second marriage of a Hindu husband after embracing Islam is in violation of justice, equity and good conscience. A Hindu husband, after embracing Islam, cannot solemnise a second marriage without dissolving the first marriage.

Therefore, 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. The expression "void" under section 494, IPC has been used in the wider sense. As a marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC. 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.

Therefore, the said marriage is void by reason of its taking place during the life of the first wife.

The apostate-husband would be guilty of the offence under Section 494 IPC. 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.

Cases Discussed in the Judgement:
  • Andal Vaidyanathan vs. Abdul Allam Vaidya 1964 Bombay Law Reporter 864
  • Emperor vs. Mt. Ruri AIR 1919 Lahore 389.
  • Gul Mohammed v. Emperor AIR 1947 Nagpur 121.
  • Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945.
  • Ms. Jordan Diengdeh vs. S.S. Chopra AIR 1985 SC 935 O.
  • Muhammad Raza v. Abbas Bandi Bibi 2002 (2) ALD Cri 116.
  • Nandi @ Zainab vs. The Crown ILR 1920 Lahore 440.
  • Ram Kumari in Budansa vs. Fatima 1914 IC 697.
  • Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864.
  • Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745.

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