Published On: 29th December, 2023
JUDGEMENT AND ITS BRIEF BACKGROUND
The freedom to practice and proclaim any religion—including the freedom to convert to any other religion that one is not born into—is guaranteed by our Constitution. still, with different persuasions and particular laws, this provision is occasionally misused. Bigamy is punishable for all religions under IPC, except those lines or communities whose particular law permits polygamy, similar to, the Muslim law. To exercise bigamy, all a person has to do is relinquish his religion and borrow Islam. The cases of men doing this aren’t uncommon. Any party’s second marriage is null and void under the Parsi Marriage and Divorce Act and Special Marriage Act if the previous marriage is already in effect. In other words, the alternate marriage after the conversion to any other religion allowing bigamy isn’t valid. still, the Hindu Marriage Act, of 1955 has not specified the status of a person marrying after conversion. It declares posterior marriage between two Hindus is void if their mate is living and they’ve not disassociated at that time. This issue was scanned by the Supreme Court at length in the corner case of Sarla Mudgal & Ors. Vs. Union of India[1] and settled the nebulosity girding the rights, duties, and scores of people who changed religion to master the law. The court held that a change of religion doesn’t permit a person to master the vittles of law and to commit bigamy. A detailed analysis of the case is given below.
Sarla Mudgal’s judgment was hailed as a precedent for the Uniform Civil Code and cited various cases where particular laws of different persuasions have come in conflict. The alternate marriage of a Hindu Husband was considered void under Section 494 of IPC, in the judgment the judge gets into a detailed examination of the case, Justice Kuldip Singh, while delivering the judgment remarked, when further than 80 of the citizens have formerly been brought under the codified particular law there’s no defence whatsoever to keep in latency, anymore, the preface of invariant civil law for all citizens in the home of India. There was an appeal to the government to have a look at Composition 44 of the Indian Constitution, which suggests Uniform civil law for the citizens.
COMPOSITION OF BENCH
The Citation no. of the case is AIR 1995 SC 1531.
The Judgement was passed by the Hon’ble Supreme Court of India on 10th of May’1995.
The division bench consisting of Justice Kuldip Singh and Justice R M Sahai gave the judgment on the case.
ADVOCATES FOR PARTIES
FOR THE PETITIONERS – Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr. Advs., Ms. S. Janani, Mr. P. Parmeswaran,
FOR THE RESPONDENTS – Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs.
MATERIAL FACTS OF THE CASE
There were four desires filed in the Supreme Court under Article 32 of the Indian Constitution that were heard together. originally, in Writ Petition 1079/89 where there were two pleaders. Petitioner 1 was Sarla Mudgal, the chairman of a registered society called Kalyani, which was a not-for-profit organization, working for the weal of indigent families and worried women. Petitioner 2 was Meena Matur, who was married to Jitender Mathur since 1978 and had three children born out of connubiality. Petitioner 2 set out that her hubby had married another woman, Sunita Narula alias Fathima, after they both converted themselves to Islam. She contends that the conversion of her hubby to Islam was only to marry Sunita, thereby avoiding Section 494, IPC. The replier asserts that after converting to Islam, he can have four women irrespective of the fact that his first woman continues to be Hindu.
Another supplication was filed by Sunita Narula alias Fathima, registered as Writ Petition347/ 1990, where she contended that she and the canvasser converted to Islam to marry, and a child was born out of connubiality. still, under the influence of Meena Mathur, the replier gave an undertaking in 1988, that he’ll convert back to Hinduism and maintain his first woman and three children. As she continued being Muslim, she wasn’t being maintained by her hubby and had no protection under either of the particular laws.
Thirdly, a supplication registered as Writ Petition 424/ 1992 was filed in the apex court. The supplicant, Geeta Rani was married to Pradeep Kumar in 1988 according to the Hindu solemnities. In December 1991, the Petitioner learned that her hubby converted to Islam and married another woman, Deepa. The Petitioner asserts that the sole purpose of conversion to Islam was to grease the alternate marriage.
Incipiently, Sushmita Ghosh who was the supplicant in the Civil Writ solicitation509/1992, married G.C. Ghosh according to Hindu solemnities in 1984. In 1992, her hubby/ replier asked her to agree to divorce by collective concurrence as he didn’t want to live with her presently. The supplicant was shocked, and when she questioned him more, he revealed that he’d converted to Islam and would marry Vinita Gupta. In the writ solicitation, she supplicated that her hubby must be restrained from entering into an alternate marriage.
ISSUES/QUESTIONS RAISED
- Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnize a second marriage?
- Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu?
- Whether the apostate husband would be guilty of the offence under Section 494 of the IPC?
CONTENTIONS ADVANCED
On behalf of the Petitioner (s) / Complainant (s):
All the pleaders inclusively argued that the repliers converted themselves to Islam to circumvent the vittles of bigamy given under Section 494 IPC and grease their alternate marriage with other women.
On behalf of the Respondent (s):
The attesters in all the solicitations assert a common contention that formerly they convert to Islam, they can have four women despite having a first woman who continues to be a Hindu.
PROVISIONS APPLICABLE, DOCTRINES AND PRINCIPLES
Under the Hindu Marriage Act, of 1955, there are many conditions given under Section 5, fulfilling which a marriage can be fairly praised[2]. Section 5(i) of the Act stipulates that marriage between two Hindus can be contracted only when “neither party has a partner living at the time of the marriage. Then, ‘Hindu’ includes any person who’s a Buddhist, Jain, or Sikh. Further, Section 11 declares all marriage that is praised after the enactment of this act, which violates Section 5(i), is void. Incipiently, Section 17 provides for the discipline of bigamy in agreement with Sections 494 and 495 of the Indian Penal Code (hereinafter IPC), which is bandied in detail below. Further, for a woman to file a case under Section 11, she needs to be a part of the marriage.
In the case of Ajay Chandrakar v. Ushabai,[3] when a husband entered into a second marriage while the first marriage was subsisting, the petition to declare the second marriage null and void by the first wife was rejected. The court held that the remedy under Section 11 is available to the second wife, who is a party to the subsequent marriage.
Bigamy is criminalized under Section 494 of IPC[4], which is grounded in the English law of bigamy. This section makes it an offense for both males and ladies, anyhow of their religion, except for manly Muslims. Under the Muhammadan Law, manly Muslims are permitted polygamy and they can have up to four women. therefore, this section applies to a Muslim man marrying a fifth woman during the subsistence of four earlier marriages. Further, all four marriages have to be conducted under Muslim law. However, in 1954, a posterior marriage will be held invalid, if a marriage takes place under the Special Marriage Act.
The section states that, if a valid marriage subsists between a man and a woman, and either of them contracts another valid marriage while they’re living, a similar marriage will be void. They will also be penalized with imprisonment of either description which may extend to seven times, and will also be liable to fine. still, this section also states some exceptions to the general rule against bigamy. They’re as follows
When the hubby or woman has been absent seven times or further, or they’ve not been heard of being alive by the other party within that period. Further, the party marrying shall also inform the absence of their former partner the person they’re marrying. When a court of competent governance has either declared the first marriage as void or has granted a valid divorce to the first marriage. To attract this Section, both the first and alternate marriage must be valid, that is, necessary observances should take place according to a religion’s particular law. However, it’s no marriage in the eye of the law, If the marriage isn’t valid. The offence is non-cognizable, bailable, composite, and triable by the justice of the first class.
Further, Section 495 of IPC covers the irritated form of bigamy[5]. It states that, if a person solemnizes an alternate marriage and conceals the fact about his or her first marriage from the person with whom the posterior marriage is contracted, the discipline may extend up to imprisonment of either description 10 times and shall also be liable for fine. The offence is non-cognizable, baicalein-compoundable, and triable by a justice of the alternate class.
CONCRETE JUDGMENT, RATIO DECIDENDI AND STATUS OF THE JUDGMENT
A Hindu spouse’s rights are destroyed if they are allowed to end the marriage by promoting and enforcing a new law. This is because when a marriage is consummated under the Hindu Marriage Act, of 1955, both parties acquire certain rights and status. A marriage consummated in accordance with the legislation may only be dissolved for the reasons specified in Section 13 of the same act. Neither can be married again until this is finished. The alternate marriage of an apostate would, thus, be illegal marriage to his woman who married him under the Act and continues to be Hindu. It further held that similar marriage is violative of justice, equity, and good heart. It also stressed how important it is for the two legal systems to function in accord with one another to foster harmony between the two communities.
Secondly, the court said- that the apostate husband would be guilty under Section 494 of IPC. The definition of “void” is different under the Indian Penal Code and the Hindu Marriage Act, of 1955. Conversion to Islam and marrying again would not, by itself, dissolve the former Hindu marriage under the Act, but it would be a ground for divorce. still, it can be inferred from the constituents of Section 494 explained in detail in the below section that the alternate marriage would be void and the apostate hubby would be guilty under IPC.
Incipiently, the court supported the necessity of the Uniform Civil Code (hereinafter UCC) in the Indian legal system, that will stop Indians from trespassing on the particular law of one another. The court also ordered the Indian government, acting through the Secretary of the Ministry of Law and Justice, to submit an affidavit outlining the actions it has done to get a UCC for its residents.
DISSENTING OPINION
There was no differing opinion regarding rate decidendi of the case that the alternate marriage after converting to Islam is void and punishable under IPC, and it doesn’t dissolve the first marriage praised under the Hindu Marriage Act, 1955. Hon’ble Justice R.M. Sahai, however, disagreed with the case’s obiter dictum, which recommends the adoption of UCC in the Indian legal system to prevent conflict. He contends that:
The perpetration of UCC would lead to more bad than good. It’ll beget dissatisfaction and decomposition among different persuasions. The freedom to practice any religion is protected by the Indian Constitution, thus imposing UCC on the populace would be arbitrary and unlawful. Farther, invariant particular law can only be laid down when there’s harmony between the people of all persuasions, and when their religion doesn’t feel hovered.
He also recommended the government establish a commission to legislate the ‘Conversion of Religion Act’ to check the abuse of religion by any religion. The act will be binding on all the citizens irrespective of their religion and will enjoin the conversion of religion to marry. vittles for conservation and race will also be handed to avoid a clash of interests between the heirs at law.
DEVELOPMENTS AFTER THE CASE
The judgment of Sarla Mudgal was reviewed by the Supreme Court in the case of Lily Thomas v. Union of India in 2000, on the ground that the judgment in the impugned case violates the abecedarian right to life and liberty and freedom to exercise any religion elevated under Articles 20, 21, 25 and 26 of the Indian Constitution.
The court held that the contention of the supplicant that the judgment of Sarla Mudgal amounts to the violation of freedom of heart and free profession, practice, and propagation of religion as guaranteed under Articles 25 and 26 of the Constitution, is farfetched and is alleged by those who hide behind the cloak of religion to escape the law.
The court further quested that the freedom guaranteed under Composition 25 of the Constitution is similar to freedom which doesn’t worm upon analogous freedom of the other persons. The solicitation also claimed that making converts liable for committing polygamy would be against Islam. The apex court observed the ignorance of the pleaders and correctly said that indeed under Islamic law; chastity of marriage is upheld by Prophet Mohammad.
The interpretation of Islamic law in the ultramodern sense would in no way allow similar acts in its religion. Islam is a progressive, pious, and reputed religion that cannot be given a narrow conception as has been allegedly done by the pleaders.
CONCLUSION
The case of Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union of India &Ors., popularly known as Sarla Mudgal Case, is a corner judgment in the history of family and nuptial cases in India. It gave a formative approach towards the conception of apostasy and bigamy, furnishing a new dimension to the expression ‘void’ under S. 494 of IPC. The Indian legal system recognizes bigamy only when there’s a valid marriage between a man and a womanish. Indeed, though live-in connections have lately been given legal recognition, a person cohabitating with another person while their first marriage is still breathing is yet to be conceded as bigamy in India. The interpretation given to Section 494 IPC was a trouble to advance the interest of justice. There must be harmony between the two systems of law just as there should be harmony between the two communities. The result of this would be that the Hindu Law on the one hand, and the Muslim Law on the other hand would operate within their separate reaches without trespassing on the particular laws of each other.
The addition of UCC in the system is a step towards denomination, and the council shall take way to legislate it in the Indian legal structure. Prof. H.L.A. Hart proffered the proposition of ultramodern Analytical Legal Positivism, where he discerned a static and non-static society. To advance civilization, both societies must adhere to the concept of change in addition to the fundamentals. However, it’s abecedarian for the law to keep up with the change in society, If the author may interpret it in an ultramodern sense. therefore, reforming the law of bigamy and particular laws in India is material to suit the needs of ultramodern Indian society.
Pandit Jawahar Lal Nehru, while defending the preface of the Hindu Code Bill rather of an invariant civil law, in the Parliament in 1954, said I don’t suppose that at the present moment, the time is ripe in India for me to try to push it through. It appears that indeed 41 times later, the Autocrats of the day aren’t in a mood to recoup Composition 44 from the cold storehouse where it’s lying since 1949. This would go a long way to break the problem and pave the way for a unified civil law.
Reference(s):
[1] AIR 1995 SC 1531
[2] Pinninti Venkataraman and Others vs State (Andhra Pradesh HC, 1976)
[3] 2000 (2) MPHT 168
[4] Smt. Indu Bhagya Natekar vs Bhagya Panduram Natyakar and Others (Bombay High Court, 1991)
[5] Janabai Narayan Kale vs Narayan Hari Kale and Ors. (1990 (3) BomCR 223)
