Court: The Supreme Court of India
Citation: 1995 AIR 1531, 1995 SCC (3) 635, JT 1995 (4) 331, 1995 SCALE (3) 286
Bench: Kuldip Singh (J) Sahai, R.M. (J)
Theme: Apostasy is not a bar to held a person guilty for the offence under S. 494 CrPC
Subject: Hindu Marriage Act, 1955 and CrPC
BRIEF FACTS OF THE CASE
- These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of “KALYANI” – a registered society – which is an organisation working for the welfare of needy-families and women in distress.
- Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock.
- In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula alias Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion.
- According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. However, Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
- Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.
- Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.
- Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta.
(1) Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage?
(2) Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu?
(3) Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)?
ARGUMENTS ADVANCED FROM THE SIDE OF PETITIONER
- Meena Mathur contended that the marriage was solemnised after they converted themselves to Islam and adopted Muslim religion. According to the petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC.
- Geeta Rani, petitioner in Writ Petition 424 of 1992, alleged that conversion to Islam by Pradeep Kumar was only to facilitate his second marriage with Deepa.
- Sushmita Ghosh, who is petitioner in Civil Writ Petition 509 of 1992, asserted that she was the legally wedded wife and wanted to live with her husband and as such the question of divorce did not arise. Moreover, her husband be restrained from entering into second marriage with Vinita Gupta.
ARGUMENTS ADVANCED FROM THE SIDE OF RESPONDENT
- 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. Thus, they are not subject to the applicability of Hindu Marriage Act, 1955, the Section 11 of which makes bigamous marriage void.
Hon’ble Kuldip Singh J. advocated the necessity of application of uniform civil code and said, “The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation.” He strongly stood with the idea of uniform personal law for all Indians to avoid trespassing of one on another.
He further stated that, till the time we achieve the goal of uniform civil code for all the citizens of India – there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.
A marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. Therefore, under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.
A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that “the other party has ceased to be a Hindu by conversion to another religion”. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu.
The expression “void” for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation.
This expression under section 494, IPC has been used in the wider sense. The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam.
The Hon’ble Bench thus, held that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC and the apostate husband would be guilty under Section 494 of IPC.
Coming forth on the question of ‘uniform civil code’ the Court directed the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India.
The case is still applicable and is not over-ruled.
The case of Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union Of India & Ors., popularly known as Sarla Mudgal Case, is a landmark judgment in the history of family and matrimonial cases in India. It gave a constructive approach towards the concept of apostasy and bigamy, providing a new dimension to expression ‘void’ under S. 494 of IPC. The interpretation given to Section 494 IPC was an effort to advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. 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 respective ambits without trespassing on the personal laws of each other. In India, there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. This would go a long way to solve the problem and pave the way for a unified civil code.
Contributed by: Aditi Sharma (Government New Law College, Indore
The views of the author are personal only. (if any)