Sarla Mudgal, President, Kalyani v Union of India [AIR 1995 SC 1531 ]

Title of case: Sarla Mudgal, President, Kalyani and Ors. v. Union of India (UOI) and Ors.

Citation: AIR 1995 SC 1531

Court: Supreme Court of India

Bench: Kuldip Singh and R.M. Sahai

Date Decided: 10th May, 1995

Appellant: Sarla Mudgal, President, Kalyani  and Ors.

Respondent: Union of India (UOI) and Ors.

Facts of Sarla Mudgal, President, Kalyani v Union of India 

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  

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. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.

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 Mathur, 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 a second marriage with Vinita Gupta.

Issues in Sarla Mudgal, President, Kalyani v Union of India 

• Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise 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 Indian Penal Code (IPC)

Statutes and Provisions Discussed 

Section 494 of Indian Penal Code – According to section 494 of Indian penal code, 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. It’s a non-cognizable bailable offence.

Article 44 of Constitution of India – Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India

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, the 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 is restrained from entering into a second marriage with Vinita Gupta.

 Arguments from Petitioners

All the petitioners collectively argued that the respondents converted themselves to Islam to circumvent the provisions of bigamy given under Section 494 IPC and facilitate their second marriage with other women.

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.

Judgement

The court discussed all the issues in question in detail and laid down the following:

When a marriage takes place under Hindu Marriage Act, 1955 certain rights and status are acquired by both the parties, and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the spouse who continues to be Hindu.

A marriage performed under the act cannot be dissolved except on the grounds given under Section 13 of the same act. Until this is done neither can marry again. 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.

It further held that such marriage is violative of justice, equity, and good conscience. It also emphasized the need for harmonious working of the two systems of law, in the same manner as to bring harmony between two communities.

Secondly, the court further held that the apostate husband would be guilty under Section 494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal Code have different purposes. Conversion to Islam and marrying again would not, by itself, dissolve the previous Hindu marriage under the Act, but it will be a ground for divorce.

However, it can be inferred from the ingredients of Section 494 explained in detail in the above section that the second marriage would be void and the apostate husband would be guilty under IPC.

Lastly, the court advocated the necessity of the Uniform Civil Code (hereinafter UCC) in the Indian legal system, which will stop Indians from trespassing the personal law of one another. T

The court further directed the Government of India through the Secretary of the Ministry of Law and Justice, to file an affidavit regarding the steps taken by the Government of India towards securing a UCC for the citizens of India.

Conclusion

The Indian legal system recognizes bigamy only when there is a valid marriage between a male and a female. Even though live-in relationships recently were given legal recognition, a person cohabitating with another person while their first marriage is still subsisting is yet to be acknowledged as bigamy in India.

The inclusion of UCC in the system is a step towards secularism, and the legislature shall take steps to enact it in the Indian legal structure. Prof. H.L.A. Hart propounded the theory of modern Analytical Legal Positivism, where he differentiated a static and non-static society. In both societies, the rule of change shall be applied along with the primary principles, for the civilization to move forward.

If the author may interpret it in a modern sense, it is fundamental for the law to keep up with the change in society. Thus, reforming the law of bigamy and personal laws in India is pertinent to suit the need of modern Indian society.

This article has been contributed by Poonam, a student from School of Law, Punjabi University, Patiala.