AIR 2000 SC 1650
Bench: R.P. Sethi, JJ. and Saiyed Saghir Ahmad.
Smt. Sushmita Ghosh, the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi), filed a Writ Petition in this Court, claiming that she married Shri G.C. Ghosh in accordance with Hindu rituals on May 10, 1984, and that they have been living peacefully in Delhi since then.
Shri G.C. Ghosh told the petitioner on April 1, 1992, that she should agree to her divorce by mutual consent in her interest because he had converted to Islam to remarry, and he had already planned to marry one Miss Vanita Gupta of D-152 Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992.
Shri G.C. Ghosh also displayed a certificate from the Maulana Qari Mohammad Idris, Shahi Qazi, dated June 17, 1992, verifying his conversion to Islam. The petitioner informed her father and aunt about her husband’s conversion and plan to marry again. They all tried to persuade Shri G.C. Ghosh to end the marriage, but to no effect, and he urged that Sushmita consent to her divorce or face being married to a second wife.
Shri G. C. Ghosh, according to the petition, converted to Islam merely for re-marrying and has no true faith in Islam. He does not follow the necessary Muslim procedures and has not changed his name, religion, or any formal papers.
Finally, she asked for the following blessings:
(a) proclaim polygamy marriages between Hindus and non-Hindus following conversion to Islam to be unlawful and invalid via an appropriate writ, order, or directive;
(b) Give appropriate instructions to Respondents 1 and 2 to make relevant modifications to the Hindu Marriage Act to limit and prohibit polygamy;
(c) Issue suitable directive declaring that any marriage entered into by a non-Muslim male after conversion will be void since he converted to the “Muslim” faith without any true change of belief and just to escape a previous marriage or engage in a second marriage.
(d) Give Shri G.C. Ghosh suitable instructions prohibiting him from marrying Miss” Vanita Gupta or any other lady while his marriage to the petitioner is still active; and
(e) make any other or additional orders as this Hon’ble Court deems appropriate in the facts and circumstances of the case.
- Is it necessary to have a Uniform Civil Code for all Indian citizens?
- Is it possible for a Hindu spouse to marry for the second time after converting to Islam?
- Is the husband liable for bigamy under section 494 of the Indian Penal Code?
Arguments from Petitioner’s side
- The petitioner’s first point was that, because marriage is a sacred institution, resorting to religious conversion to become a Muslim to commit the act of bigamy as allowed by Muslim personal law is an attempt to deny women the freedom to face such bigamous marriages and betrayal, which is a violation of Art.21 (right to life and liberty).
- Lily Thomas argued in court that male polygamy is unconstitutional under Muslim law.
- The court was requested to adopt the Uniform Civil Code to deal with a wide range of socio-legal concerns arising from religious personal law.
- Many Muslim women have petitioned the Supreme Court and the High Court to declare polygamy in Muslim law unlawful.
- To redefine Muslim personal law to reflect the passage of time and to prohibit the practice of polygamy, since it is a violation of the integrity and liberty of women who are forced to face such conditions.
- To establish a uniform civil code so that no personal religious legislation infringes on fundamental rights.
Arguments from Respondent’s side
The respondents in all of the foregoing petitions make the same claim: that because they converted to Islam, they are allowed to have four spouses, even though their first wife is still Hindu. As a result, they are exempt from the application of Section 11 of the Hindu Marriage Act, 1955, which deems bigamous marriages void, as well as Section 17 of the Hindu Marriage Act, 1955, which makes them guilty of bigamy under Section 494 of the Indian Penal Code (IPC).
- Whoever, having a living husband or wife, marries in any case in which such marriage is void because of 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, according to section 494 of the Indian penal code. It’s a bailable non-cognizable offense.
- Any marriage solemnized after the commencement of this Act shall be null and void and may be declared so by a decree of nullity on a petition presented by either party thereto 11 [against the other party] if it contravenes any of the conditions specified in clauses I (iv), and (v) of section 5.
- Section 17 of the Hindu Marriage Act, 1955, states: “Any marriage between two Hindus solemnized after the commencement of this Act is void if either party had a husband or wife living at the time of such marriage, and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply accordingly.”
According to Justice S. Sagir Ahmad, if a person has a live spouse and contracts or attempts to form a second marriage, that marriage is null and void under Section 11 of the Hindu Marriage Act, 1959. Section 17 of the same Act, which deals with the crime of bigamy, will likewise render such a marriage null and void. Bigamy under Section 17 is punishable under the provisions of Sections 494 and 495 of the Indian Penal Code, 1860.
If a Hindu wife makes a complaint against her husband for having a second marriage after converting to another faith while the previous marriage is still in effect, the charge of bigamy will be prosecuted under the Hindu Marriage Act, 1959.
The Supreme Court has ruled that there is no violation of Article 21 of the Constitution, which states that “no person shall be deprived of his right and personal liberty except as provided by law,” and that such an act of marriage while the first marriage continues is codified in IPC sec 494, so there is no violation of Art. 21.
According to R.P.Sethi Ji, if a Hindu husband forms a second marriage after converting to Islam without dissolving the original marriage, the second marriage will be declared invalid under Sections 494 and 495 of the Indian Penal Code, and the husband would be penalized accordingly.
Men were resorting to such conversion to marry and have more than one woman, thus the decision was significant. Bigamy is the act of marrying someone else while your first marriage is still going strong. Such bigamous relationships are unlawful, and the second marriage is null and invalid from the start.
For a long time, married men whose personal law prohibited bigamy have resorted to the unhealthy and immoral habit of changing to Islam to form a second bigamous marriage, assuming that such conversion would allow them to marry again without having their previous marriage destroyed.
The interpretation of Section 494 of the Indian Penal Code was made in the interest of justice. There must be harmony between the two legal systems, just as there must be peace between the two communities. There will always be a loophole in the system until a Uniform Civil Code is adopted for all inhabitants of the country, because various faiths have different views, and naturally, there will be conflict due to diverse beliefs and practices of groups.