In Lily Thomas v Union of India case, a petition was being filed in the Supreme Court on the status of the earlier marriage regarding a case where a non-Muslim gets converted to the ‘Muslim’ faith with no real change or belief without divorcing from the first wife. It was held that the mere conversion of religion would not result in the marriage’s dissolution solemnized in accordance with the Hindu Law unless a decree of divorce is being obtained.
CITATION: AIR 2000 SC 1650
BENCH: S AHMED, R. SETHI, J.
FACTS OF LILY THOMAS vs UNION OF INDIA CASE:
That a writ petition was being filed by Smt. Sushmita Ghosh, the wife of Shri GC Ghosh in the concerned Court, stated that the marriage between them was solemnized on 10.05.1984 in accordance with the religious rites and ritual of the Hindu Marriage Act, 1955.
On 01.04.1992, Mr. Ghosh asked the petitioner for divorce by mutual consent while stating that he had converted to Islam with an intention of contracting a second marriage with Miss Vanita Gupta, a divorcee with two children in the second week of July 1992.
The respondent also produced the certificate before the concerned court, certifying that he had embraced Islam. It was further contended that the petitioner and her family made several attempts to convince the respondent not to end their marital ties, but all in vain. Instead, he insisted the petitioner should divorce, otherwise, she will have to put up with the second wife.
Thus, it was amply clear from the above-stated facts that the Respondent has converted to Islam solely to remarry and had actually no faith in Islam.
The petitioner asserts her fundamental rights guaranteed by Article 15(1) not to be discriminated against on the grounds of religion and sex alone. She avers that part of Muslim Personal Law which is enforced by the State Action by issue of the Muslim Personal Law Act 1937, has discriminated against her. Such action is contrary to Article 13(1) and is unconstitutional.
Hence, through this petition, it is prayed by the petitioner that there should be interdiction of the proposed second marriage, which is scheduled to take place on 10.07.1992. It is also urged that the respondent, whose marriage with the petitioner is legal and subsisting, cannot take advantage of the feigned conversion so as to be able to take a second wife.
- Whether a non-Muslim gets converted to the ‘Muslim’ faith with no actual change or belief and merely with a view to avoid an earlier marriage or to enter a second marriage, whether the marriage entered by him after such conversion would be void?
- Whether the Respondent would be liable for bigamy under Section 494 of IPC?
- Whether it was desirable to have a Uniform Civil Code?
Regarding question (1), it was clearly contended in the appellant’s petition that the respondent had not really converted to the ‘Muslim’ faith, but had only feigned conversion to solemnize a second marriage.
Further, it was also stated that though freedom of religion is a matter of faith, the said freedom cannot be used as a garb for evading other laws where the spouse becomes a convert to ‘Islam’ to avoid the first marriage.
The respondent does not practice the Muslim rites as prescribed nor has he changed his name or religion and other official documents, proving that the said conversion was not a matter of having faith in the Muslim religion but only to get rid of first marriage.
Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage, despite his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act, 1955 read with Section 494 of IPC.
Any marriage solemnized between two Hindus is said to be void if the following conditions are satisfied:
- If the marriage is solemnised after the commencement of the Act,
- If at the date of such marriage, either party had a spouse living.
Thus, in view of question (2), if a person contracts a second marriage during the subsistence of his earlier marriage, 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 of IPC.
Reference of the case: Robasa Khanum V. Khodadad Irani was also drawn wherein the learned Judge held that the conduct of a spouse who converts to Islam has to be judged based on the rule of justice and right or equity and good conscience.
If looked at from a second angle, the second marriage of a Hindu husband after embracing Islam, violate justice, equity, and a good conscience and would be void as it would render the status of the second wife as that of a concubine and children born of that wedlock as illegitimate. In addition, it would also attract Section 494.
The foremost important issue brought by the instant petition was the implementation of a Uniform Civil Code as envisaged by Article 44 of the Indian Constitution.
In Maharshi Avadhesh v. Union of India 1994, the Court specifically declined to issue a writ directing the respondents to consider the question of enacting a common Civil Code for all citizens of India holding that the issue rose to be a matter of policy, it was for the Legislature to take effective steps as the Court cannot legislate.
A uniform law, though, is highly desirable; enactment thereof in one go perhaps may be counterproductive to the unity and integrity of the nation. In a democracy governed by the rule of law, it should bring gradually progressive change and order. Therefore, it would be inexpedient and incorrect to think that all laws be made uniform in one go, but the process of law can remedy the mischief or defect which is at stages.
On the question of Uniform Civil Code R.M. Sahai, J. the other Honorable Judge constituting the Bench suggested some measures which could be undertaken by the Government to check the abuse of religion by unscrupulous persons, who under the cloak of conversion were found to be otherwise guilty of polygamy.
The court found no substance in the submissions made on behalf of the petitioner regarding the judgment being violative of the fundamental rights guaranteed to the citizens of India. Thus, the court states that the alleged violation of Article 21 is misconceived. What is guaranteed under Article 21 is that no person shall be deprived of his life and personal liberty except according to the procedure established by law.
It is conceded that, actually and factually, none of the petitioners has been deprived of any right of his life and personal liberty so far. However, the aggrieved persons are apprehended to be prosecuted for the commission of offence punishable under Section 494 IPC.
Considering the above-mentioned facts and circumstances, it was held that the conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act but only provides a ground for divorce under Section 18. Till a decree of divorce is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, despite his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.
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