Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors.
1995 AIR 1531: 1995 SCC (3) 635, [1995]Supp1SCR250
Hon’ble Judges/Coram: Kuldip Singh and R.M. Sahai, JJ.
Date of Decision: 10.05.1995
FACTS:-
The present matter has arisen out of four Writ petitions under Article 32 of the Constitution of India. According to one of the Petitioners, Meena Mathur, her legally wedded husband Jitender Mathur converted to Islam for the purpose of solemnizing second marriage with one Sunita alias Fathima and circumvented the provisions of Section 494 Indian Penal Code (in short “IPC”). In response, JitenderMathur 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 second petitioner in the case whose grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the Hindu or Muslim personal laws. Another petitioner, Geeta Rani shares the similar fate whose husband used to maltreat her and one day converted to Islam for the purpose of facilitating second marriage. Sushmita Ghosh is another unfortunate petitioner who prayed before the court to restrain his husband from solemnising second marriage after he had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam.
ISSUES:-
Following were the issues that had arisen before the Court for consideration:
- 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 guilty of the offence under Section 494 of the IPC?
JUDGMENT:-
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 opinion of the Supreme Court, 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. Court referred to In Re Ram Kumari 1891 Calcutta 246 where 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. That means conversion to another religion by one or both the Hindu spouses did not dissolve the marriage.
It is, thus, obvious from the catena of case laws referred to by the Supreme Court in this case, 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. Therefore, it held 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. 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”.
Hence, with respect to the first issue, 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, and thus, a Hindu husband, married under Hindu law, by embracing Islam, cannot solemnise second marriage
As far as second issue is concerned, 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 non-est.
At the last, in relation to third issue, Court observes that the necessary ingredients of the Section 494 of IPC 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” 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 void-ness 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.
Moreover, court says that 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 as 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.
In light of the aforesaid principles of law, all the four ingredients of Section 494 IPC are satisfied in the present 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. Thus, Court held that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.
HELD:-
The court held 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.
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