IN THE SUPREME COURT OF INDIA
Writ Petition 1079/89, 347 of 1990, 424 of 1992, 509 of 1992
Smt. Sarla Mudgal, (President of 'Kalyani'), Meena Mathur, Sunita Narula, Geeta Rani, Sushmita Ghosh
Union of India and others.
Date of Judgement
3rd May 2019
Kuldip Singh, R.M. Sahai
It is a landmark Judgement that held the practice of conversion to another religion in order to secure second marriage as against the basic principles of justice, equity and good conscience. It discontinued the practice of conversion to Islam for the purpose of constituting valid second marriage when the first Hindu Marriage is undissolved. It held that such marriages are offences under S. 494 of IPC.
- Re Ram Kumari
- Nandi Zainab v. The Crown
- Robasa Khanum v. Khodadad Bomanji Irani
- Shah Bano
- The case consists of 4 writ petitions under Article 32 of the Constitution of India.
- Petitioner 1 is president of ‘Kalyani’ , a society, working for women in distress.
- 2nd Petitioner Meena Mathur, wife of Jitender Mathur, in year 1988 shocked to learn that Jitender had married Sunita Narula after converting to Muslim Religion.
- Sunita Narula is 3rd Petitioner, who states that Jitender after marrying her, under the influence of his first wife gave an undertaking that he had reverted back to Hinduism and agreed to maintain his children and first wife. But she continues to be Muslim, and has no maintenance and protection under either of the personal laws.
- 4th Petitioner Geeta Rani who married to Pradip Kumar in 1988, in year 1991 learnt that her husband ran away with Deepa and married to her after converting to Muslim Religion.
Petitioner Meena Mathur contended that her husband converted to Islam only for the purpose of marrying Sunita circumventing the provisions of S.494 of IPC.
Geeta Rani contented that her conversion to Islam is only for the purpose of facilitating the second marriage.
Sushmita Ghosh prayed before court that her husband to be restrained from entering into 2nd marriage.
- Whether a person married under Hindu Law, solemnize a second marriage by embracing Islam?
- Whether such marriage would be a valid marriage, without having first marriage dissolved under the law and the first wife continued to be Hindu?
- Whether the apostate is guilty of bigamy under Section 494 of IPC?
1. Referring to Re Ram Kumari 1891 Calcutta 246, Ram Kumari in Budansa v. Fatima 1914 IC 697, and Nandi @ Zainab v. The crown (ILR 1920 Lahore 440 the court held that mere fact of conversion to Islam does not dissolve the marriage. A marriage could be dissolved only by the decree of court. The court observed that as per Hindu Law that existed before 1955, the marriage subsistseven if one of the spouse converts to Islam. There is no automatic dissolution of Marriage.
In marriages under Hindu Lawthe parties acquire certain rights, and if one of the spouse converts to another religion and enforce it, it would destroy the rights of the other spouse violating the rules of justice, equity, and good conscience. Considering the plurality of laws and interest of both the communities the court stated that it is not the intention of the enlightened Muslim community to encourage Hindu husbands to convert to Islam only for the purpose of legitimising their second marriage. Therefore, they concluded that the Hindu husband married under Hindu Law cannot solemnize second marriage by embracing Islam.
2. In order to answer the question of validity of second marriage, the court stated that
a. The marriage can only be dissolved by decree of divorce obtained on any of the ground enumerated in Section 13 of the Hindu Marriage Act, and
b. A marriage which contravenes any of the conditions specified in clause (I), (iv), and (v) of S. 5 is void. I.e. the marriage performed when the spouse is living is void.
c. A divorced person can marry again on dissolution of marriage by decree of divorce and there is no right to appeal against such decree if the time to appeal is over.
Considering the above legal propositions, the court concluded that the Hindu Marriage Act strictly enforces monogamy. The marriage performed under Hindu Law cannot be dissolved except on the grounds available in sec. 13. Therefore, the husband and the first wife remain married and hence the second marriage violates the provisions of the Act. Therefore the apostate’s second marriage would be illegal.
3. The Hon’ble Supreme Court observed that the expression ‘void’ defined under S.11 of the Act has limited meaning, whereas it has been used in much wider sense in S. 494 of IPC. A conversion to another religion would not, by itself, dissolve the Hindu Marriage. Before dissolution of first marriage, no spouse can perform second marriage. It would go against the spirit of the Act if the second marriage is held to be legal. The second marriage by Hindu husband would violate principle of justice, equity, and good conscience and thus also attract S. 494 IPC.
Considering the above discussion the court held that the second marriage of Hindu husband, without dissolution of the first marriage, would be invalid. The second marriage would violate S. 494 and therefore the husband would be guilty of bigamy.
The Judgement is landmark precedent in Personal, constitutional, and criminal laws. It secured position of women. It discourages bigamy. The Judgement has expressed the necessity of Uniform Civil Code, and discussed it at a length.
Edited by Sree Ramya
Approved & Published – Sakshi Raje