Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Lily Thomas v. Union of India
AIR2000SC1650, (2000)6SCC224, 2000(4)SCALE176
Hon’ble Judges/Coram: Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Date of Decision: 05.04.2000
FACTS:-
Smt. Sushmita Ghosh, petitioner in the case, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition [W.P.(C) No. 509 of 1992] in this Court stating that she was married to Shri G.C. Ghosh in accordance with the Hindu rites on 10th May, 1984 and since then both of them were happily living at Delhi. At around the 1st of April, 1992, Shri Ghosh, Respondent No. 3 in this case, told the petitioner that she should in her own interest agree to divorce by mutual consent as he had any way taken to Islam so that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta.
The Respondent No. 3 also showed a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that the Respondent No. 3 had embraced Islam. Petitioner in her writ petition stated that the Respondent No. 3 has converted to Islam solely for the purpose of re-marrying and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he changed his name or religion and other official documents, and therefore, inter alia, she prayed before the Court to issue an appropriate writ, order or direction, declaring polygamy marriages by Hindus and non-Hindus after conversion to Islam religion as illegal and void. That apart, the judgment in Sarla Mudgal’s case 1995 CriLJ 2926 is sought to be reviewed, set aside, modified and quashed by way of the present Review and Writ Petitions filed by various persons and Jamiat-Ulema Hind and Anr. It is contended that the aforesaid judgment is contrary to the fundamental rights as enshrined in Articles 20, 21, 25, and 26 of the Constitution of India.
ISSUE:-
Where a non-Muslim gets converted to the ‘Muslim’ faith without any real change or belief and merely with a view to avoid an earlier marriage or to enter into a second marriage, whether the marriage entered into by him after conversion would be void?
JUDGEMENT:-
Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a super-natural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament. Both have to be preserved.
Court observed that under the Hindu Marriage Act, one of the essential ingredients of the valid Hindu marriage is that neither party should have a spouse living at the time of marriage. If the marriage takes place in spite of the fact that a party to that marriage had a spouse living such marriage would be void under Section 11 of the Hindu Marriage Act. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act under which an offence of bigamy has been created. This offence has been created by reference. By providing in Section 17 that provisions of Section 494 and 495 would be applicable to such a marriage, the Legislature has bodily lifted the provisions of Section 494 and 495 IPC and placed it in Section 17 of the Hindu Marriage Act. This is a well-known legislative device. The important words used in Section 494 are “MARRIAGE IN ANY CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE DURING THE LIFE-TIME OF SUCH HUSBAND OR WIFE”. These words indicate that before an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the life-time of such husband or wife. The words “Husband or Wife” are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain “Husband and Wife”.
In this connection, Court referred to various Supreme Court judgments and found out that if a person marries a second time during the lifetime of his wife, such marriage apart from being void under Section 11 & 17 of the Hindu Marriage Act would also constitute an offence and that person could be liable to be prosecuted under Section 494 IPC. While Section 17 speaks of marriage between two “Hindus”, Section 494 does not refer to any religious denomination. Court further noticed that conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act. It only provides a ground for divorce under Section 18
Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation under Section 10 of the Hindu Marriage Act. Hindu Law does not recognised bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “Monogamy”. A second marriage, during the life-time of the spouse, would be void under Sections 11 and 17, besides being an offence.
In the case of Gul Mohammad v. Emperor AIR 1947 Nag 121, the High Court held that the conversion of a Hindu wife to Mahomedanism does not, ipso facto, dissolve the marriage with her Hindu husband. It was further held that she cannot, during his life-time, enter into a valid contract or marriage with another person. Such person having sexual relation with a Hindu wife converted to Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was already married and her husband was alive.
From the above reasoning, it would be seen that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy. It also follows that if the first marriage was solemnized under the Hindu Marriage Act, the ‘husband’ or the ‘wife’, by mere conversion to another religion, cannot bring to an end the marital ties already established on account of a valid marriage having been performed between them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable to be prosecuted for the offence under Section 494 IPC.
Regarding the issue of review of the Sarla Mudgal case AIR 1995 SC 1531, Court did not find any mistake or error apparent on the face of the record requiring a review. Court pointed out that error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. The only arguments advanced were that the judgment interpreting Section 494 amounted to violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. Therefore, it is held that the petitioners have hot made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal’s case, and hence, the petition is misconceived and bereft of any substance.
In light of this it is summarily held that alleged violation of Article 20 & 21 is misconceived and without any substance. And as far as alleged violation of Articles 25 & 26 is concerned, it is held that it is also farfetched and apparently artificially carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. It is further held that, the progressive outlook and wider approach of Islamic Law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means, who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion. It is nobody’s case that any such converted has been deprived of practising any other religious right for the attainment of spiritual goals. The Islam which is pious, progressive and respected religion with rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.
HELD:-
Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any marriage solemnized by the husband during the subsistence of first marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC.
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