Bench
Justice Kuldip Singh, Justice R.MSahai
Petitioner
Smt. SarlaMudgal
Respondent
Union of India
Issue
I) Whether Hindu husband by conversion into Islam can solemnize a second marriage?
II) Whether such a marriage without having 1st marriage dissolve would be a valid marriage?
III) Whether the husband would be guilty of an offence punishable under section 494 of the Indian Penal Code?
Facts
- There are 4 petitioners under Article 32 of the Constitution of India. The 2 main petitioners in this writ petition are petitioner no. 1 having writ petition no. 1079/ 89 is the President of Kalyani which is an organisation working for the welfare of needy families and women in distress.
- Petitioner no. 2 is Meena Mathur who was married to Jitendra Mathur on 27th February 1998. The petitioner was shocked to learn that her husband had solemnized second marriage with SunitaNarulaalias Fatima. The said marriage was solemnized after they converted themselves to Islam and embraced the Muslim religion.
- According to the petitioner, conversion was only to marry Sunita and circumvent the provision of section 494 of the Indian Penal Code (IPC) i.e. Bigamy.
- The second petition was filed by SunitaNarula alias Fatima that is writ petition no. 347/ 90. She asserted in her petition that she along with Jitendra Mathur adopted Islam and thereafter got married. A son was born to her.
- She further stated that after marrying Jitendra Mathur, he gave an undertaking on 28th April 1988under the influence of 1st wife that he converted back to Hinduism and thus agreed to maintain his 1st wife and children.
- Her grievance is that she has no protection under either of the personal laws as she converted herself to Islam and continues to be so and is not even maintained by her husband who converted back to Hinduism.
- The 3rd petition is filed by Geeta Rani that is 424/ 92. It is contended in her petition that she got married to Pradeep Kumar in 1988. Her husband used to ill-treat her after marriage.
- Further in her petition, she mentioned that on one occasion, she learnt that her husband ran away with one Deepa and after conversion to Islam married her. She stated that Islam was adopted only to perform the second marriage.
- The 4th petition is filed by Sunita Ghosh that is 509/ 92. It is contended that the petitioner got married to G.C Ghosh in 1984. In the year 1992, the husband informed the petitioner that he would soon marry Vanita Gupta as he had obtained a certificate of conversion from Kazi.
- Thus the petitioner prayed that her husband should be restrained from entering into a second marriage.
Judgment
- The Court held that conversion to another religion by one or both Hindu spouses did not dissolve the marriage.
- The court said that neither did the traditional Hindu Laws, recognize that conversion to another religion would automatically dissolve the Hindu marriage nor did the codified or uncodified Hindu laws exempted a convert from his or her civil obligations.
- A marriage performed under the act that is Hindu Marriage Act, 1955 cannot be dissolved except on the grounds available under Section 13 of the act. In such a situation, parties do have solemnized marriage under the act and remain married even when the husband adopts Islam in order to perform 2nd marriage.
- Hence, 2nd marriage would be illegal marriage and the wife who is married to a husband under the act continues to be a Hindu. That means a Hindu wife's religion does not changes with that of her husband even though he converts to another religion.
- Conversion to Islam and marrying again will not dissolve the Hindu marriage. A second marriage that is a bigamous marriage by a convert without having his 1st marriage dissolved under the law would therefore be in violation of the act and as such void in terms of section 494 of the Indian Penal Code.
Relevant Paragraphs
- The Hon'ble court had several times in its judgement pointed out the need to enact a Uniform Civil Code (UCC). The court quoted article 44 of the Indian Constitution stating that – the State shall ensure that a uniform civil code is enacted throughout the territory of India for national consolidation. The Hon'ble court showing dissatisfaction about the scenario that no rulers in India have felt the need to secure a uniform civil code in our nation to unify all the personal laws for all the Indians.
- The court taking reference to the case Ram Kumari (1891) [ILR 18 CAL 266] stated where a Hindu wife converted into Islam and then married a Muslim, it was held that her marriage with a Hindu husband that was solemnized earlier will not dissolve by conversion. She was charged and convicted for committing the offence of bigamy under section 494 of IPC.
- Also, references to other cases wherein the privy council had through its verdict confirmed that a person of any religion embracing another religion cannot itself dissolve their 1st marriage. The court took reference to the following case, Gul Muhammad v. Emperor[AIR 1947 Nagpur 121] wherein a Mohammedan man took a Hindu wife converted her to Islam and married her. It was held that the marriage of the woman does not ipso facto dissolves during the lifetime of her 1st husband because of the woman's conversion to Islam. The Muslim man was thus convicted for the offence of adultery under section 497 of the Indian Penal Code.
- Even in the case of Nandi alias Zainab v. The Crown [ILR 1920 Lahore 440], The husband complained that his wife Nandi converted to Islam and married a Mohammedanman named Rukan Din. The court held that her marriage can be dissolved only by a decree of the court and not by conversion. Hence, she was convicted and charged for the offence under section 494 of the Indian Penal Code. Similarly, in the case of Emperor v. Ruri [AIR 1919 Lahore 389], A Christian wife renounced Christianity and adopted Islam to marry a Muslim man. The court held that as per the Christian Personal Laws conversion to another religion does not dissolve a person's 1st marriage.
- Many Hindus embrace Islam for the reason of escaping the consequences of bigamy obviously for the very reason as Islam permits a man to take as many as 4 wives. But many Islamic nations, to check the growing misuse have either altered the Islamic law by putting restrictions or severely prohibited this practice of polygamy. Some of the Muslim countries prohibiting misuse of this practice are Iran, Tunisia, Morocco, Pakistan and Syria. But religious practices that are violative of a person's human rights and dignity a unified civil code is a solution for the protection of the oppressed and also for the promotion of national solidarity and unity.
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