Sarla Mudgal v. Union of India [1995 SC] | Current Affairs & General Knowledge - CLAT PDF Download

Kuldip Singh, J.

“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 which seeks to  introduce a  uniform personal law–a decisive step towards national consolidation.

Questions for our consideration are 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?

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 @ Fathima. The marriage was solemnised after they converted to Islam.

Marriage is the very foundation  of  civilised society. The relation once formed, the law steps  in and binds the  parties to  various obligations  and    liabilities thereunder. Marriage is an institution in the maintenance of which the public at  large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

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. We, therefore, hold that 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.

The position has not changed after coming into force of the Hindu  Marriage Act, 1955, rather it has become worse for  the apostate.

A marriage performed  under the Act cannot be dissolved except on the   grounds available under section 13 of the Act. In that situation parties who  have  solemnised  the  marriage under the  Act remain married even when the husband embraces Islam in  pursuit of  other wife.  A second  marriage by  an apostate under the shelter  of conversion  to Islam  would nevertheless be a marriage in violation of the provisions of the Act by which  he would  be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. 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. Between the apostate  and his Hindu wife the second marriage is in violation of  the provisions of the Act and as such would be non est.

Necessary  ingredients of  Section  494 IPC 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.

It is  no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the fact remains  that the said marriage would be  in violation of the Act which strictly professes monogamy.

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. The expression  “void” under  section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions of  law would be  void  in  terms  of the expression used under Section 494, IPC.

A Hindu  marriage solemnised  under the Act can only be dissolved on  any of  the grounds  specified under  the Act. Till the  time a  Hindu marriage  is dissolved under the Act none of the spouses can contract second marriage. 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. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the  subsisting  of   the first marriage  which  is  not dissolved even by the conversion of the husband. It would be giving a  go-bye to  the substance  of the matter and acting against the  spirit of the Statute if the second marriage of the convert is held to be legal.

A matrimonial dispute  between a convert to  Islam and his or her non-Muslim spouse is obviously not a dispute “where the parties are Muslims” and, therefore, the rule of decision in such a case was  or is not  required to  be the  “Muslim Personal Law”.  In such cases the  Court shall act and the Judge shall  decide according  to justice,  equity and good conscience. The second marriage  of a Hindu husband  after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from  another angle,  the second  marriage of an apostate-husband would           be in  violation  of  the  rules  of natural justice.  Assuming that a Hindu husband has a right to embrace  Islam as his religion, he has no right under the Act to marry again  without getting  his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

The interpretation we have  given to  Section 494 IPC would 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 the interpretation, we have given to Section 494 IPC, 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. Since  it is  not the object of Islam nor is the intention  of the  enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of  evading  their  own  personal laws  by marrying again, the courts  can be  persuaded to  adopt  a construction of laws resulting in denying  the  Hindu husband converted  to Islam the right to marry again without having his  existing marriage  dissolved in  accordance with law.

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. He has a wife living, he marries again. The said marriage  is void  by reason  of its taking place during the life of the first wife.

R.M. SAHAI, J.

The problem  with which  these appeals are concerned is that many Hindus have changed their religion and have become convert to   Islam  only   for purposes  of  escaping the consequences of bigamy. For instance, Jitendra  Mathur was married to  Meena Mathur. He and another Hindu girl embraced Islam. Obviously  because Muslim  Law permits  more than one wife and  to the  extent of  four. But no religion  permits deliberate distortions. Much misapprehension prevails about bigamy in  Islam. To check the misuse many Islamic countries have codified  the personal  Law, `Wherein  the practice  of polygamy has  been either  totally  prohibited or  severely restricted. (Syria,  Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to  be remembered  in this context’.

The law may provide  that every  citizen  who changes his religion cannot marry another wife unless  he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain    or a Budhist.

O R D E R

For reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of answers in  the opinion  of Kuldip Singh, J.