Can a Hindu man (who is prohibited to practice bigamy) convert to Islam and marry a second time? Can he face any legal repercussions?
Facts:
- Sushmita Ghosh married Shri G. C. Ghosh in accordance with the Hindu rites on 10th May in 1984. However, on 1st April 1992, G.C Ghosh asked Sushmita Ghosh to agree to a divorce by mutual consent.
- He informed her that he had converted to Islam in order to marry Ms. Vanita Gupta and that if she did not agree to the divorce she would have to put up with being the second wife.
- Petitioner then asserted her rights guaranteed under Article 15(1) of the Indian Constitution and claimed that she had been discriminated against by Muslim Personal Law.
Issues:
- Where a non-Muslim gets converted to the Muslim faith without any real change in 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 and whether the husband would be guilty of the offence of Section 494 of the Indian Penal Code?
- Whether there is a violation of Article 25 of the Indian Constitution due to the law laid down in the SarlaMugdal judgement?
- Whether the prosecution of a person for charges of bigamy under section 494 of the Indian Penal Code violates Article 21 of the Indian constitution?
Application:
- Mere conversion does not end the marital ties unless a divorce is obtained from court. Any other marriage during the subsistence of the first marriage would be void and would constitute as an offence under Section 494 of the Indian Penal Code read with section 17 of the Hindu Marriage Act.
- There is no violation of Article 25 as apart from guaranteeing a right to freedom of religion, it also does not allow such freedom to encroach upon the religious right and personal freedom of other persons.
- Article 21 guarantees that no person shall be deprived of personal law and liberty except according to the procedure established by law. It has been factually conceded that none of the petitioners have been deprived of this right. The court held it would be too premature at this stage to foresee that the petitioners would be deprived of this right without following procedure. This procedure mentioned in Article 21 implies the law laid down by the Legislature. The SarlaMugdal judgement has neither changed the procedure nor created any law for the people being prosecuted under section of 494 IPC.The judgement merely interpreted an already existing law.
Conclusion:
A Hindu man cannot convert to Islam to simply contract to a second marriage, without any real change of belief or to simply avoid his first marriage. If he does so, his second marriage would be held void and he would be prosecuted under section 494 IPC read with section 17 of the Hindu Marriage Act.
