Lily Thomas v UOI
In the Supreme Court of India
AIR 2000 SC 1650
Union of India and Others
5th April 2000
A.K Patnaik, Sudhanshu Jyoti Mukhopadhaya
In this case the landmark Judgment was given in the legal history of India. Lily Thomas case was filed as a writ petition, in the nature of review petition for Sarla mugdal vs UOI case. Under Article 20,21,25 and 26 of the Indian Constitution, 1950. First and foremost was the issue of implementation of a Uniform Civil Code as envisaged by Article 44 of the Constitution? But such implementation poses a direct challenge to every citizen’s right to practice and propagate his/her religion as provided in Article 25 of the Constitution. Also this case was landmark due to the fact that in this case Supreme Court considered second marriage without prior divorce from the first wife (being alive) to e void wherein men were converting their religion to Islam to solemnize the second marriage but all of this was considered void unless and until first marriage was dissolved according to the Hindu Marriage Act. If Husband done so then he would be liable for the offence of bigamy under section 494 and 495 of Indian Penal Code. This was because merely converting to Islam would not dissolve the first marriage and the husband is liable to all the obligations as he would be prior to the conversion. The prior judgment regarding the same was very correct and important since men were taking resource to such conversion of marrying and having more than one wife. According to the Indian Penal Code, Bigamy is the offence of marrying another while the first marriage still persists and such bigamous relations are illegal and also the second marriage is void ab initio. Many religions Personal Law did not allow bigamy so the married men have been recurring to the unhealthy and immoral practice of converting to Islam for the interest of solemnizing a second bigamous marriage under the assumption that such conversion would help them to marry again without getting their first marriage dissolved, since the long period. Several Petitions were collectively taken by SC to decide the status of bigamous marriage by converting the Islam as in Mrs.ShushmitaGhosh v. UOI, Smt. Sarla Mudgal, president & others v. UOI and Sunita & Fatima v. UOI.
- Whether there should be Uniform Civil Code for all citizens?
- Whether a Hindu Husband can solemnize second marriage by converting to Islam?
- Whether the husband would be liable for bigamy under section 494 of IPC?
Constitutional and Statutory Provisions Discussed by the Hon’ble Court
- Article 20 of the Indian Constitution, 1950
- Protection in respect of conviction for offences
- (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
- (2) No person shall be prosecuted and punished for the same offence more than once
- (3) No person accused of any offence shall be compelled to be a witness against himself.
- Article 21 of the Indian Constitution, 1950
. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.
- Article 25 of the Constitution, 1950
Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
- Article 26 of the Constitution, 1950
. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property.
(d) to administer such property in accordance with law
- Article 44 of the Constitution, 1950
Uniform civil code for the citizens The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.
- Section 494 of the Indian Penal Code
Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- Hindu Marriage Act, 1955 – Section 11 – Void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses- (i), (iv) and (v) of section 5
- Hindu Marriage Act, 1955 – Section 17- Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition 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.Around the 1st of April, 1992, Shri G.C. Ghosh told the petitioner that she should in her own interest agree to her 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 resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992. Shri G.C. Ghosh also showed a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that he had embraced Islam.The petitioner contacted her father and aunt and told them about her husband’s conversion and intention to remarry. They all tried to convince Shri G.C. Ghosh and talk him out of the marriage but of no avail and he insisted that Sushmita must agree to her divorce otherwise she will have to put up with second wife.It was stated in the petition that Shri G. C. Ghosh 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.
Mrs. Sushmita Ghosh has prayed that her husband should be restricted from entering into another marriage with someone else. Also requested appropriate direction to declare that where a non Muslim male gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void. All she was asked, appropriate direction to declare that where a non Muslim male gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void.
Contention of the Petitioner
- Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the act of religious conversion to muslim to commit the act of bigamy as Muslim personal law allows it is an attempt where the women freedom of facing such bigamous marriage and such betrayal is violative of Art.21(right to life and liberty). The second marriage of the respondent is also against the principle of natural justice which has been included in the Article 21, in the famous case of Maneka Gandhi v. UOI. So by all these grounds it can be said that there has been violation of fundamental Rights given under Article 21of the Indian Constitution.
- Lily Thomas and many other Muslim women had pleaded before the court to declare polygamy in Muslim Law to be unconstitutional
- Petitioner argues that the conversion done by the respondent is not in accordance with the Muslim Laws. For being a Muslim one must forfeit his earlier religious faith but here respondent can be easily seen practicing his earlier Hindu faith and continues to be Hindu. The various documents like the name and religion on the birth certificate of the child from his second wife, his name on the VISA application to Bangladesh, his name in the electoral roll and his name in the account details clearly reveals he continues to live with his Hindu name Gyan Chand Ghosh instead the name given after conversion to Islam i.e. Mohammad Kareem Ghazi. His only motive of the conversion was to enter a second marriage with Miss Vanita ignoring the religious faith of either religion.
- The marriage solemnized on the date of 3rd Sept. 1992 can be termed as void under section 11 of Hindu Marriage Act, 1955. Section 11 of HMA talks about the void marriages and any such marriage which violates the conditions given in clause (i), (iv) and (v) of section 5 of Hindu Marriage Act, 1955 is termed as void marriage. It clearly violates the first condition of Hindu marriage i.e. no other spouse should be living at the time of marriage. Here, Mrs. Sushmita Ghosh is alive at the time of marriage of his husband with Miss Vanita. So, the second marriage is void.
- Section 17 of the Hindu Marriage Act, 1955 talks about the punishment of bigamy and section 494 and 495 of IPC should be applied. For the application of these sections of Indian Penal Code the marriage must be declared void by the laws and here it is clear cut a void marriage under section 11 of HMA.
. The petitioner requested honorable judges to punish the offender and pass such an order or decre so that justice could be done with the aggrieved party.
Contention of Respondent
The state agreed with the petitioners in their plea. The respondents in all the above petitions assert a common contention that having embraced Islam, they can have four wives irrespective of the fact that the first wife continues to be Hindu. Also As it is the matter of personal laws and the respondent has been charged with the sections of IPC. So, there is no such question of violation of any fundamental rights.
Since many a things in Muslim laws are not codified, the conversion rules in the Islam religion is also based on the beliefs and customs which they are following for many years. For being converted into Islamic faith, there are mainly two essentials that are, he must be of sound mind and he must have given consent of conversion. Both the essentials were duly fulfilled in this matter and also the certificate of conversion was obtained by Mohammad Kareem Ghazi from MaulanaQari Mohammad Idris, ShahiQazi. And also the Article 25 of India Constitution guarantees freedom of religion. So, one can expressly convert into the other religious expressing their rights of freedom religion given by Constitution of India.
There is no question of application section 11 of Hindu Marriage At, 1955 as this act only applies on the Hindus but the respondent has turned into an Islamic faith after the conversion. So, no personal laws other that Muslim laws can be applied in this matter. Since, the date of conversion, he has forfeited the Hindu faith and after such forfeiture, all the laws and acts which are binding upon Hindus only are automatically forfeited.
Bigamy is prohibited in Hindu Laws but Muslim laws promote polygamous nature of marriage up to four wives. The holy book of Quran, which is also a primary source of Muslim laws states, a Muslim man can marry with a maximum number of four wives treating them with equal love and affection. For the application of section 494 and 495 of Indian Penal Code (Code 45 of 1860), the marriage must be declared void under the laws. But here the Muslim laws binding upon the respondent permits him to do so.
The respondent requested honorable court to pass such an order or decree lifting all the charges leveled against the respondent and dismissing all the pleas and petitions filed by the petitioners.
Justice S. Sagir Ahmad said if party has a living spouse and he contracted or attempt to contract second marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959. The Honble Court further stated that, the second marriage solemnized y the Hindu during the subsistence of first marriage is void. Freedom guaranteed under Article 25 of the India Constitution is such freedom which does not encroach upon a similar freedom of other person.
Under the Constitutional Scheme, every person has Fundamental Right not merely to entertain the religious belief of this choice but also it exhibits his beliefs and ideas in such a manner which does not infringe the religious right and personal freedom of others. The word Islamic means, submission to god not just marriage meaning. Muslim law is permitted in India to second marriage but the condition you can do justice to the co-wives then only you are permitted, sanctity and purity of marriage is always there in priority. Merely for marriage you cannot solemnize the second marriage by converting the religion. If a Hindu wife files complaint against her husband who during existence of first marriage do second marriage after conversion to another religion then the offence of Bigamy shall be dealt with Hindu Marriage Act, 1959.
The apex Court has said that violation of Article 21 is misconceived, article 21 of the Constitution states that “no person shall be deprived of his right and personal liberty except as per procedure established by law” and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494 there is no violation of Art. 21.
So in a nutshell following are the answers given by the honorable court on the issues arose out of the matter;
- No, the violation of fundamental rights given under Article 21 of Indian Constitution has not occurred in this matter.
- No. the conversion of respondent was not in accordance with Muslim Laws.
- Yes, the marriage done after the conversion to Islam can be termed void under section 11 of the Hindu Marriage Act, 1955 as the conversion was not in accordance with Muslim Laws.
- Yes, the sections 494 and 495 of Indian Penal Code (Code 45of 1860) mentioned in section 17 of the Hindu Marriage Act, 1955 is applicable.
Legal overview of the case
As the matter involved the personals laws mostly so one must have to be clear in Hindu Laws as well as Muslim laws that are applicable in India. These are the following legal sections or articles one must know in order to understand this case.
The list starts with the Section 5 of Hindu Marriage Act, 1955 which states the conditions for a Hindu marriage. The clause (i) of the section clearly states that “neither party has a spouse living at the time of marriage”. This section of HMA clearly prohibits the practice of bigamy under Hindu Law.
Section 11 of Hindu Marriage Act, 1955 talks about the Void marriages, as it states “any marriage solemnized after the commencement of this act shall be null and void, on a petition presented by either of the party thereto[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of section 5”.This statement clearly shows that a second marriage will be declared as void under Hindu Law.
Section 13 of Hindu Marriage Act, 1955 talks about the different grounds of divorce recognized under Hindu laws. Clause (ii) of this section made conversion a ground for divorce. In the case of Madanan Seetha vs. MadananVimla, a husband was granted divorce on his wife converting into Christianity.
Section 17 of Hindu Marriage Act, 1955 talks about the punishment of bigamy and it states “any marriage between two Hindus after the commencement of this act is void if at the date of such marriages either party had a husband or wife living; and the provisions of sections 494 and 495 of Indian Penal Code (45 of 1860), shall apply accordingly” but there are certain conditions for making this section applicable. The second marriage needs to be valid under the Hindu law. The mere admission by the respondent that he had contracted second marriage is not enough. In the case of Bhaurao vs. State of Maharashtra, it was held that the impugned marriage must have been solemnized that is, the marriage should have been celebrated or performed with proper ceremonies and in due form. Also in the case of Surjit Kaur vs. Garja Singh, it was held that if the marriage is not a valid marriage, it is no marriage in the eyes of law. If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. Having regard to section 17 of the Act the essential ceremonies set out under the Act had not been conducted and merely because there was distribution of sugar or gur would not constitute a marriage.
Such a judgment was important since men were taking recourse to such conversion for marrying and having more than one wife. Bigamy is the offence of marrying another while the first marriage still persists and such bigamous relations are illegal and the second marriage is void ab initio. For a long period, married men whose personal law did not allow bigamy have been recurring to the unhealthy and immoral practice of converting to Islam for the interest of condensing a second bigamous marriage under the assumption that such conversion would help them to marry again without getting their first marriage dissolved The interpretation given to Section 494 IPC was an effort to advance the interest of justice. Even the parliament never intended to frame laws regarding the Uniform Civil Code. Many leaders came with the promises of UCC but never worked on it as they have a fear of losing a particular vote bank. We must remember the time when Rajiv Gandhi used to be the Prime Minister of India and a judgment on the case of Shah Bano vs. Union of Indiacame in favor of petitioner but the government after few weeks altered the law and making it difficult to interfere in personal laws. This is why we say that Shah Bano lost even after winning the case.
In the present days, we talk about equality but we can witness the differences regarding the same matter in two different personal laws. Bigamy is prohibited under Hindu Law but is permitted up to four marriages in Muslim laws. Isn’t it discrimination? There are several aspects where there is a conflict between personal laws and common laws and the court has to decide which one will prevail. So, in my opinion I feel that if there will be a Uniform Civil Code for everyone then there will be no such conflicts.
In this matter court delivered justice to the petitioner declaring the second marriage of the respondent void but didn’t looked for a long term solution of such a conflict between personal laws and common laws.
But like other cases also in this matter of Lily Thomas vs. Union of India, the court was not willing to answer the question about Uniform Civil Code. We can only have our lights of hope alive towards our Judiciary and also the elected government of ours to look forward towards a very important Directive Principles of State Policy mentioned as Uniform Civil Code in article 44 of the Part IV of the Indian Constitution.
Madanan Seetha v MadananVimla  APH 183
Bhaurao v State of Maharashtra  SC 1564
Surjit Kaur v Garja Singh  SC 135
Ahmad Khan v Shah Bano Begum  3 SCR 844