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PETITIONER:

LILY THOMAS, ETC. ETC.

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 05/05/2000

BENCH:

R.P.Sethi, S.S.Ahmad

JUDGMENT:

S. SAGHIR AHMAD, J.

I respectfully agree with the views expressed by my

esteemed Brother, Sethi, J., in the erudite judgment

prepared by him, by which the Writ Petitions and the Review

Petition are being disposed of finally. I, however, wish to

add a few words of my own. Smt. Sushmita Ghosh, who is the

wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ

Petition [W.P.(C) No. 509 of 1992] in this Court stating

that she was married to Shri G.C. Ghosh in accordance with

the Hindu rites on 10th May, 1984 and since then both of

them were happily living at Delhi. The following paragraphs

of the Writ Petition, which are relevant for this case, are

quoted below: "15. That around the 1st of April, 1992, the

Respondent No. 3 told the petitioner that she should in her

own interest agree to her divorce by mutual consent as he

had any way taken to Islam so that he may remarry and in

fact he had already fixed to marry one Miss Vanita Gupta

resident of D-152 Preet Vihar, Delhi, a divorcee with two

children in the second week of July 1992. The Respondent

No. 3 also showed a Certificate issued by office of the

Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June,

1992 certifying that the Respondent No. 3 had embraced

Islam. True copy of the Certificate is annexed to the

present petition and marked as Anneuxre-II. 16. That the

petitioner contacted her father and aunt and told them about

her husband's conversion and intention to remarry. They all

tried to convince the Respondent No. 3 and talk him out of

the marriage but of no avail and he insisted that Sushmita

must agree to her divorce otherwise she will have to put up

with second wife. 17. That it may be stated that the

Respondent No. 3 has converted to Islam solely for the

purpose of re-marrying and has no real faith in Islam. He

does not practice the Muslim rites as prescribed nor has he

changed his name or religion and other official documents.

18. That the petitioner asserts her fundamental rights

guaranteed by Article 15(1) not to be discriminated against

on the ground of religion and sex alone. She avers that she

has been discriminated against by that part of Muslim

Personal Law which is enforced by the State Action by virtue

of the Muslim Personal Law (Shariat) Act, 1937. It is

submitted that such action is contrary to Article 15 (1) and

is unconstitutional. 19. That the truth of the matter is

that Respondent No. 3 has adopted the Muslim religion and

became a convert to that religion for the sole purpose of

having a second wife which is forbidden strictly under the

Hindu Law. It need hardly be said that the said conversion

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was not a matter of Respondent No. 3 having faith in the

Muslim religion. 20. The petitioner is undergoing great

mental trauma. She is 34 years of age and is not employed

anywhere. 21. That in the past several years, it has

become very common amongst the Hindu males who cannot get a

divorce from their first wife, they convert to Muslim

religion solely for the purpose of marriage. This practice

is invariably adopted by those erring husband who embrace

Islam for the purpose of second marraige but again become

reconvert so as to retain their rights in the properties

etc. and continue their service and all other business in

their old name and religion. 22. That a Woman's

Organisation "Kalyani" terribly perturbed over this growing

menace and increase in number of desertions of the lawfully

married wives under the Hindu Law and splitting up and

ruining of the families even where there are childrn and

when no grounds of obtaining a divorce successfully on any

of the grounds enumerated in Section 13 of the Hindu

Marriage Act is available to resort to conversion as a

method to get rid of such lawful marriages, has filed a

petition in this Hon'ble Court being Civil Writ Petition No.

1079 of 1989 in which this Hon'ble Court has been pleased to

admit the same. True copy of the order dated 23.4.90 and

the order admitting the petition is annexed to the present

petition and marked as Annexure-III (Collectively)." She

ultimately prayed for the following reliefs : "(a) by an

appropriate writ, order or direction, declare polygamy

marriages by Hindus and non-Hindus after conversion to Islam

religion are illegal and void; (b) Issue appropriate

directions to Respondent Nos.1 and 2 to carry out suitable

amendments in the Hindu Marriage Act so as to curtail and

forbid the practice of polygamy; (c) Issue appropriate

direction to declare that where a non Muslim male gets

converted to the "Muslim" faith without any real change of

belief and merely with a view to avoid an earlier marriage

or enter into a second marriage, any marriage entered into

by him after conversion would be void; (d) Issue

appropriate direction to Respondent No. 3 restraining him

from entering into any marriage with Miss Vanita Gupta or

any other woman during the subsistence of his marriage with

the petitioner; and (e) pass such other and further order

or orders as this Hon'ble Court may deem fit and proper in

the facts and circumstances of the case." This Petition was

filed during the summer vacation in 1992. Mr. Justice M.N.

Venkatachaliah (as he then was), sitting as Vacation Judge,

passed the following order on 9th July, 1992 : "The Writ

Petition is taken on board. Heard Mr. Mahajan, learned

senior counsel for the petitioner. Issue notice. Learned

counsel says that the respondent who was a Hindu by religion

and who has been duly and legally married to the petitioner

purports to have changed his religion and embraced Islam and

that he has done only with a view to take another wife,

which would otherwise be an illegal bigamy. Petitioner

prays that there should be interdiction of the proposed

second marriage which is scheduled to take place tomorrow,

i.e. 10th July, 1992. It is urged that the respondent,

whose marriage with the petitioner is legal and subsisting

cannot take advantage of the feigned conversion so as to be

able to take a second wife. All that needs to be said at

this stage is that if during the pendency of this writ

petition, the respondent proceeds to contract a second

marriage and if it is ultimatley held that respondent did

not have the legal capacity for the second marriage, the

purported marriage would be void." On 17th July, 1992, when

this case was taken up, the following order was passed :

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"Counter affidavit shall be filed in four weeks. Place this

matter before a Bench of which Hon'ble Pandian, J. is a

member. Shri Mahajan submitted that since the apprehended

second marriage has not yet taken place, it is appropriate

that we stop the happening of that event till disposal of

this petition. Learned counsel for the respondent-husband

says that he would file a counter affidavit within four

weeks. He assures that his client would not enter into a

marriage in hurry before the counter-affidavit is filed." On

30th November, 1992, this Writ Petition was directed to be

tagged with Writ Petition (C) No. 1079/89 (Smt. Sarla

Mudgal, President, "Kalyani" & Ors. vs. Union of India &

Ors.) and W.P. (Civil) No. 347/90 (Sunita @ Fatima vs.

Union of India & Ors.). It may be stated that on 23rd

April, 1990 when the Writ Petition (C) No. 1079/89 and Writ

Petition (C) No. 347/90 were taken up together, the Court

had passed the following order : "Issue Notice to

respondent No. 3 returnable within twelve weeks in both the

Writ Petitions. Learned counsel for the petitioners in the

Writ Petitions, after taking instructions, states that the

prayers in both the writ petitions are limited to a single

relief, namely, a declaration that where a non-Muslim male

gets converted to the Muslim faith without any real change

of belief and merely with a view to avoid any earlier

marriage or to enter into a second marriage any marraige

entered into by him after conversion would be void." Thus,

in view of the pleadings in Smt. Sushmita Ghosh's case and

in view of the order passed by this Court in the Writ

Petitions filed separately by Smt. Sarla Mudgal and Ms.

Lily Thomas, the principal question which was required to be

answered by this Court was that where a non-Muslim gets

converted to the `Muslim' faith without any real change or

belief and merely with a view to avoid an earlier marriage

or to enter into a second marriage, whether the marriage

entered into by him after conversion would be void? Smt.

Sushmita Ghosh, in her Writ Petition, had clearly spelt out

that her husband, Shri G.C. Ghosh, had not really converted

to `Muslim' faith, but had only feigned conversion to

solemnise a second marriage. She also stated that though

freedom of religion is a matter of faith, the said freedom

cannot be used as a garb for evading other laws where the

spouse becomes a convert to `Islam' for the purpose of

avoiding the first marriage. She pleaded in clear terms

that IT MAY BE STATED THAT THE RESPONDENT NO. 3 HAS

CONVERTED TO ISLAM SOLELY FOR THE PURPOSE OF RE-MARRYING AND

HAS NO REAL FAITH IN ISLAM. HE DOES NOT PRACTICE THE MUSLIM

RITES AS PRESCRIBED NOR HAS HE CHANGED HIS NAME OR RELIGION

AND OTHER OFFICIAL DOCUMENTS. She further stated that the

truth of the matter is that Respondent No. 3 has adopted

the `Muslim' religion and become a convert to that religion

for the sole purpose of having a second wife, which is

forbidden strictly under the Hindu Law. It need hardly be

said that the said conversion was not a matter of Respondent

No. 3 having faith in the Muslim religion. This statement

of fact was supported by the further statement made by her

in Para 15 of the Writ Petition in which she stated that her

husband, Shri G.C. Ghosh, told her that he had taken to

`Islam' "so that he may remarry and in fact he had already

fixed to marry one Miss Vanita Gupta resident of D-152 Preet

Vihar, Delhi, a divorcee with two children in the second

week of July, 1992." At the time of hearing of these

petitions, counsel appearing for Smt. Sushmita Ghosh filed

certain additional documents, namely, the birth certificate

issued by the Govt. of the Union Territory of Delhi in

respect of a son born to Shri G.C. Ghosh from the second

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wife on 27th May, 1993. In the birth certificate, the name

of the child's father is mentioned as "G.C. Ghosh" and his

religion is indicated as "Hindu". The mother's name is

described as "Vanita Ghosh" and her religion is also

described as "Hindu". In 1994, Smt. Sushmita Ghosh

obtained the copies of the relevant entries in the electoral

list of polling station No. 71 of Assembly Constituency-44

(Shahdara), in which the name of Shri G.C. Ghosh appeared

at S.No. 182 while the names of his father and mother

appeared and S.Nos. 183 and 184 respectively and the name

of his wife at S.No. 185. This entry is as under : "S.No.

House Name Father's/ M/F Age in the No. Husband's list Name

----- ---- ------------- ----------------- --- --- 185.

C-41 Vanita Ghosh Gyan Chand Ghosh F 30" In 1995, Shri G.C.

Ghosh had also applied for Bangladesh visa. A photostat

copy of that application has also been filed in this Court.

It indicates that in the year 1995 Shri G.C. Ghosh

described himself as "Gyan Chand Ghosh" and the religion

which he professed to follow was described as "Hindu". The

marriage of Shri G.C. Ghosh with Vanita Gupta had taken

place on 3.9.1992. The certificate issued by Mufti Mohd.

Tayyeb Qasmi described the husband as "Mohd. Carim Gazi",

S/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite

of his having become "Mohd. Carim Gazi", he signed the

certificate as "G.C. Ghosh". The bride is described as

"Henna Begum" D-152 Preet Vihar, Delhi. Her brother, Kapil

Gupta, is the witness mentioned in the certificate and Kapil

Gupta has signed the certificate in English. From the

additional documents referred to above, it would be seen

that though the marriage took place on 3.9.1992, Shri G.C.

Ghosh continued to profess `Hindu' religion as described in

the birth certificate of his child born out of the second

wedlock and also in the application for Bangladesh visa. In

the birth certificate as also in the application for

Bangladesh visa, he described himself as "G.C. Ghosh" and

his wife as "Vanita Ghosh" and both were said to profess

"Hindu" religion. In the electoral roll also, he has been

described as "Gyan Chand Ghosh" and the wife has been

described as "Vanita Ghosh". It, therefore, appears that

conversion to `Islam' was not the result of exercise of the

right to freedom of conscience, but was feigned, subject to

what is ultimately held by the trial court where G.C. Ghosh

is facing the criminal trial, to get rid of his first wife,

Smt. Sushmita Ghosh and to marry a second wife. In order

to avoid the clutches of Section 17 of the Act, if a person

renounces his "Hindu" religion and converts to another

religion and marries a second time, what would be the effect

on his criminal liability is the question which may now be

considered. It is in this background that the answer to the

real question involved in the case has to be found. Section

5 of the Hindu Marriage Act prescribes the conditions for a

valid Hindu marriage. A portion of this Section, relevant

for our purposes, is quoted below:- "5. Conditions for a

Hindu marriage.- A marriage may be solemnized between any

two Hindus, if the following conditions are fulfilled,

namely :- (i) neither party has a spouse living at the time

of marriage, (ii) ................................. (iii)

................................ (iv)

................................ (v)

................................ (vi)

................................" Section 11 provides as

under:- "11. Void Marriages.- Any marriage solemnized after

the commencement of this Act shall be null and void and may,

on a petition presented by either party thereto, be so

declared by a decree of nullity if it contravenes any one of

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the conditions specified in clause (i), (iv) and (v) of

section 5." Thus, Section 5(i) read with Section 11

indicates that any marriage with a person whose previous

marriage was subsisting on the date of marriage, would be

void ab initio. The voidness of the marriage is further

indicated in Section 17 of the Act in which the punishment

for bigamy is also provided. This Section lays down as

under:- "17. Punishment of bigamy.- Any marriage between

two Hindus solemnized after the commencement of this Act is

void if at the date of such marriage either party had a

husband or wife living; and the provisions of sections 494

and 495 of the Indian Penal Code shall apply accordingly."

The first part of this Section declares that a marriage

between two Hindus which is solemnized after the

commencement of this Act, would be void if on the date of

such marriage either party had a husband or wife living. It

has already been pointed out above that one of the essential

requisites for a valid Hindu marriage, as set out in Section

5(i), is that either party should not have a spouse living

on the date of marriage. Section 11 which has been quoted

above indicates that such a marriage will be void. This is

repeated in Section 17. The latter part of this Section

makes Sections 494 and 495 of the Indian Penal Code

applicable to such marriages by reference. Now, Section 494

provides as under:- "494. Marrying again during life-time

of husband or wife.- 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. Exception.- This

section does not extend to any person whose marriage with

such husband or wife has been declared void by a Court of

competent jurisdiction. Nor to any person who contracts a

marriage during the life of a former husband or wife, if

such husband or wife, at the time of the subsequent

marriage, shall have been continually absent from such

person for the space of seven years, and shall not have

beeen heard of by such person as being alive within that

time provided the person contracting such subsequent

marriage shall, before such marriage takes place, inform the

person with whom such marriage is contracted of the real

state of facts so far as the same are within his or her

knowledge." We are not in this case concerned with the

exception of Section 494 and it is the main part of Section

494 which is involved in the present case. A perusal of

Section 494 indicates that in order to constitute an offence

under this Section, the following ingredients must be found

to be existing:- (i) First marriage of the accused, (ii)

Second marriage of the accused, (iii) The first wife or

husband, as the case may be, should be alive at the time of

the second marriage. (iv) Under law, such marriage should

be void by reason of its taking place during the life-time

of such husband or wife. We have already seen above that

under the Hindu Marriage Act, one of the essential

ingredients of the valid Hindu marriage is that neither

party should have a spouse living at the time of marriage.

If the marriage takes place in spite of the fact that a

party to that marriage had a spouse living, such marriage

would be void under Section 11 of the Hindu Marriage Act.

Such a marriage is also described as void under Section 17

of the Hindu Marriage Act under which an offence of bigamy

has been created. This offence has been created by

reference. By providing in Section 17 that provisions of

Section 494 and 495 would be applicable to such a marriage,

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the Legislature has bodily lifted the provisions of Section

494 and 495 IPC and placed it in Section 17 of the Hindu

Marriage Act. This is a well- known legislative device.

The important words used in Section 494 are "MARRIAGE IN ANY

CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING

PLACE DURING THE LIFE-TIME OF SUCH HUSBAND OR WIFE". These

words indicate that before an offence under Section 494 can

be said to have been constituted, the second marriage should

be shown to be void in a case where such a marriage would be

void by reason of its taking place in the life-time of such

husband or wife. The words "Husband or Wife" are also

important in the sense that they indicate the personal law

applicable to them which would continue to be applicable to

them so long as the marriage subsists and they remain

"Husband and Wife". Chapter XX of the Indian Penal Code

deals with offences relating to marriage. Section 494 which

deals with the offence of bigamy is a part of Chapter XX of

the Code. Relevant portion of Section 198 of the Code of

Criminal Procedure which deals with the prosecution for

offences against marriage provides as under : "198.

Prosecution for offences against marriage---(1) No Court

shall take cognizance of an offence punishable under Chapter

XX of the Indian Penal Code (45 of 1860) except upon a

complaint made by some person aggrieved by the offence :

Provided that --- (a) where such person is under the age of

eighteen years, or is an idiot or a lunatic, or is from

sickness or infirmity unable to make a complaint, or is a

woman who, according to the local customs and manners, ought

not to be compelled to appear in public, some other person

may, with the leave of the Court, make a complaint on his or

her behalf; (b) where such person is the husband, and he is

serving in any of the Armed Forces of the Union under

conditions which are certified by his Commanding Officer as

precluding him from obtaining leave of absence to enable him

to make complaint in person, some other person authorised by

the husband in accordance with the provisions of sub-(s) (4)

may make a complaint on his behalf; (c) where the person

aggrieved by an offence punishable under s 494 or s 495 of

the Indian Penal Code (45 of 1860) is the wife, complaint

may be made on her behalf by her father, mother, brother,

sister, son or daughter or by her father's or mother's

brother or sister, or, with the leave of the court, by any

other person related to her by blood, marraige or adoption.

(2) For the purposes of sub-s(1), no person other than the

husband of the woman shall be deemed to be aggrieved by any

offence punishable under s 497 or s 498 of the said Code :

Provided that in the absence of the husband, some person who

had care of the woman on his behalf at the time when such

offence was committed may, with the leave of the Court, make

a complaint on his behalf. (3) .. .. .. (4) .. .. ..

(5) .. .. .. (6) .. .. .. (7) .. .. .." It would

thus be seen that the Court would take cognizance of an

offence punishable under Chapter XX of the Code only upon a

complaint made by any of the persons specified in this

Section. According to clause (c) of the Proviso to

sub-section (1), a complaint for the offence under Section

494 or 495 can be made by the wife or on her behalf by her

father, mother, brother, sister, son or daughter or by her

father's or mother's brother or sister. Such complaint may

also be filed, with the leave of the Court, by any other

person related to the wife by blood, marriage or adoption.

If a Hindu wife files a complaint for the offence under

Section 494 on the ground that during the subsistence of the

marriage, her husband had married a second wife under some

other religion after converting to that religion, the

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offence of bigamy pleaded by her would have to be

investigated and tried in accordance with the provisions of

the Hindu Marriage Act. It is under this Act that it has to

be seen whether the husband, who has married a second wife,

has committed the offence of bigamy or not. Since under the

Hindu Marriage Act, a bigamous marriage is prohibited and

has been constituted as an offence under Section 17 of the

Act, any marriage solemnized by the husband during the

subsistence of that marriage, in spite of his conversion to

another religion, would be an offence triable under Section

17 of the Hindu Marriage Act read with Section 494 IPC.

Since taking of cognizance of the offence under Section 494

is limited to the complaints made by the persons specified

in Section 198 of the Code of Criminal Procedure, it is

obvious that the person making the complaint would have to

be decided in terms of the personal law applicable to the

complainant and the respondent (accused) as mere conversion

does not dissolve the marriage automatically and they

continue to be "husband and wife". It may be pointed out

that Section 17 of the Hindu Marriage Act corresponds to

Sections 43 and 44 of the Special Marriages Act. It also

corresponds to Sections 4 & 5 of the Parsi Marriage &

Divorce Act, Section 61 of the Indian Divorce Act and

Section 12 of the Matrimonial Causes Act which is an English

Act. In Bhaurao Shankar Lokhande vs. State of Maharashtra

(1965) 2 SCR 837 = AIR 1965 SC 1564, this Court held as

under : "Section 17 provides that any marriage between two

Hindus solemnized after the commencement of the Act is void

if at the date of such marriage either party had a husband

or wife living and that the provisions of Sections 494 and

495 I.P.C. shall apply accordingly. The marriage between

two Hindus is void in view of Section 17 if two conditions

are satisfied : (i) the marriage is solemnized after the

commencement of the Act; (ii) at the date of such marriage,

either party had a spouse living. If the marriage which

took place between the appellant and Kamlabai in February

1962 cannot be said to be `solemnized', that marriage will

not be void by virtue of Section 17 of the Act and Section

494 I.P.C. will not apply to such parties to the marriage

as had a spouse living." This decision was followed in

Kanwal Ram vs. H.P. Administration (1966) 1 SCR 539 = AIR

1966 SC 614. The matter was again considered in Priya Bala

Ghosh vs. Suresh Chandra Ghosh (1971) 3 SCR 961 = AIR 1971

SC 1153 = 1971(1) SCC 864. In Gopal Lal vs. State of

Rajasthan AIR 1979 SC 713 = 1979(2) SCR 1171 = 1979 (2) SCC

170, Murtaza Fazal Ali, J., speaking for the Court, observed

as under : "Where a spouse contracts a second marriage

while the first marriage is still subsisting the spouse

would be guilty of bigamy under Section 494 if it is proved

that the second marriage was a valid one in the sense that

the necessary ceremonies required by law or by custom have

been actually performed. The voidness of the marriage under

Section 17 of the Hindu Marriage Act is in fact one of the

essential ingredients of Section 494 because the second

marriage will become void only because of the provisions of

Section 17 of the Hindu Marriage Act." In view of the above,

if a person marries a second time during the lifetime of his

wife, such marriage apart from being void under Section 11 &

17 of the Hindu Marriage Act, would also constitute an

offence and that person would be liable to be prosecuted

under Section 494 IPC. While Section 17 speaks of marriage

between two "Hindus", Section 494 does not refer to any

religious denomination. Now, conversion or apostacy does

not automatically dissolve a marriage already solemnized

under the Hindu Marriage Act. It only provides a ground for

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divorce under Section 13. The relevant portion of Section

13 provides as under : "13. Any marriage solemnized,

whether before or after the commencement of this Act, may,

on a petition presented by either the husband or the wife,

be dissolved by a decree of divorce on the ground that the

other party- (i) ............................. (ii) has

ceased to be a Hindu by conversion to another religion; or

(iii) ............................. (iv)

............................. (v)

............................. (vi)

............................. (vii)

.............................

(viii)............................. (ix)

............................" Under Section 10 which

provides for judicial separation, conversion to another

religion is now a ground for a decree for judicial

separation after the Act was amended by Marriage Laws

(Amendment) Act, 1976. The first marriage, therefore, is

not affected and it continues to subsist. If the `marital'

status is not affected on account of the marriage still

subsisting, his second marriage qua the existing marriage

would be void and in spite of conversion he would be liable

to be prosecuted for the offence of bigamy under Section

494. Change of religion does not dissolve the marriage

performed under the Hindu Marriage Act between two Hindus.

Apostasy does not bring to an end the civil obligations or

the matrimonial bond, but apostasy is a ground for divorce

under Section 13 as also a ground for judicial separation

under Section 10 of the Hindu Marriage Act. Hindu Law does

not recognised bigamy. As we have seen above, the Hindu

Marriage Act, 1955 provides for "Monogamy". A second

marriage, during the life-time of the spouse, would be void

under Sections 11 and 17, besides being an offence. In

Govt. of Bombay vs. Ganga ILR (1880) 4 Bombay 330, which

obviously is a case decided prior to the coming into force

of the Hindu Marriage Act, it was held by the Bombay High

Court that where a Hindu married woman having a Hindu

husband living marries a Mahommedan after conversion to

`Islam', she commits the offence of polyandry as, by mere

conversion, the previous marriage does not come to an end.

The other decisions based on this principle are Budansa

Rowther & Anr. vs. Fatima Bi & Ors. AIR 1914 Madras 192;

Emperor vs. Mst. Ruri AIR 1919 Lahore 389; and Jamna Devi

vs. Mul Raj 1907 (PR No.49) 198. In Rakeya Bibi vs. Anil

Kumar Mukherji ILR (1948) 2 Cal. 119, it was held that

under Hindu Law, the apostasy of one of the spouses does not

dissolve the marriage. In Sayeda Khatoon @ A.M. Obadiah

vs. M. Obadiah (1944-45) 49 CWN 745, it was held that a

marriage solemnized in India according to one personal law

cannot be dissolved according to another personal law simply

because one of the parties has changed his or her religion.

In Amar Nath vs. Mrs. Amar Nath (1947) 49 PLR 147 (FB), it

was held that nature and incidence of a Vedic marriage bond,

between the parties are not in any way affected by the

conversion to Christianity of one of them and the bond will

retain all the characteristics of a Hindu marriage

notwithstanding such conversion unless there shall follow

upon the conversion of one party, repudiation or desertion

by the other, and unless consequential legal proceedings are

taken and a decree is made as provided by the Native

Converts Marriage Dissolution Act. In the case of Gul

Mohammad vs. Emperor AIR 1947 Nagpur 121, the High Court

held that the conversion of a Hindu wife to Mahomedanism

does not, ipso facto, dissolve the marriage with her Hindu

husband. It was further held that she cannot, during his

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life-time, enter into a valid contract of marriage with

another person. Such person having sexual relation with a

Hindu wife converted to Islam, would be guilty of adultery

under Section 497 IPC as the woman before her conversion was

already married and her husband was alive. From the above,

it would be seen that mere conversion does not bring to an

end the marital ties unless a decree for divorce on that

ground is obtained from the court. Till a decree is passed,

the marriage subsists. Any other marriage, during the

subsistence of first marriage would constitute an offence

under Section 494 read with Section 17 of the Hindu Marriage

Act, 1955 and the person, in spite of his conversion to some

other religion, would be liable to be prosecuted for the

offence of bigamy. It also follows that if the first

marriage was solemnized under the Hindu Marriage Act, the

`husband' or the `wife', by mere conversion to another

religion, cannot bring to an end the marital ties already

established on account of a valid marriage having been

performed between them. So long as that marriage subsists,

another marriage cannot be performed, not even under any

other personal law, and on such marriage being performed,

the person would be liable to be prosecuted for the offence

under Section 494 IPC. The position under the Mahommedan

Law would be different as, in spite of the first marriage, a

second marriage can be contracted by the husband, subject to

such religious restrictions as have been spelled out by

Brother Sethi, J. in his separate judgment, with which I

concur on this point also. This is the vital difference

between Mahommedan Law and other personal laws. Prosecution

under Section 494 in respect of a second marriage under

Mahommedan Law can be avoided only if the first marriage was

also under the Mahommedan Law and not if the first marriage

was under any other personal law where there was a

prohibition on contracting a second marriage in the

life-time of the spouse. In any case, as pointed out

earlier in the instant case, the conversion is only feigned,

subject to what may be found out at the trial. Religion is

a matter of faith stemming from the depth of the heart and

mind. Religion is a belief which binds the spiritual nature

of man to a super- natural being; it is an object of

conscientious devotion, faith and pietism. Devotion in its

fullest sense is a consecration and denotes an act of

worship. Faith in the strict sense constitutes firm

reliance on the truth of religious doctrines in every system

of religion. Religion, faith or devotion are not easily

interchangeable. If the person feigns to have adopted

another religion just for some worldly gain or benefit, it

would be religious bigotry. Looked at from this angle, a

person who mockingly adopts another religion where plurality

of marriage is permitted so as to renounce the previous

marraige and desert the wife, he cannot be permitted to take

advantage of his exploitation as religion is not a commodity

to be exploited. The institution of marriage under every

personal law is a sacred institution. Under Hindu Law,

Marriage is a sacrament. Both have to be preserved. I also

respectfully agree with Brother Sethi, J. that in the

present case, we are not concerned with the status of the

second wife or the children born out of that wedlock as in

the instant case we are considering the effect of the second

marriage qua the first subsisting marriage in spite of the

husband having converted to `Islam'. I also agree with

Brother Sethi, J. that any direction for the enforcement of

Article 44 of the Constitution could not have been issued by

only one of the Judges in Sarla Mudgal's case. In fact,

Sarla Mudgal's case was considered by this Court in

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Ahmedabad Women Action Group & Ors. vs. Union of India

(1997) 3 SCC 573 and it was held that the question regarding

the desirability of enacting a Uniform Civil Code did not

directly arise in Sarla Mudgal's case. I have already

reproduced the order of this Court passed in Sarla Mudgal's

case on 23.4.1990 in which it was clearly set out that the

learned counsel appearing in that case had, after taking

instructions, stated that the prayers were limited to a

single relief, namely, a declaration that where a non-Muslim

male gets converted to the Muslim faith without any real

change of belief and merely with a view to avoid any earlier

marriage or to enter into a second marriage, any marraige

entered into by him after conversion would be void. In

another decision, namely, Pannalal Bansilal Pitti & Ors.

vs. State of A.P. & Anr. (1996) 2 SCC 498, this Court had

indicated that enactment of a uniform law, though desirable,

may be counter-productive. It may also be pointed out that

in the counter affidavit filed on 30th August, 1996 and in

the supplementary affidavit filed on 5th December, 1996 on

behalf of Govt. of India in the case of Sarla Mudgal, it

has been stated that the Govt. would take steps to make a

uniform code only if the communities which desire such a

code approach the Govt. and take the initiative themselves

in the matter. With these affidavits, the Govt. of India

had also annexed a copy of the speech made by Dr. B.R.

Ambedkar in the Constituent Assembly on 2nd December, 1948

at the time of making of the Constitution. While discussing

the position of common civil code, Dr. Ambedkar, inter

alia, had stated in his speech (as revealed in the Union of

India's affidavit) that "........I should also like to point

out that all that the State is claiming in this matter is a

power to legislate. There is no obligation upon the State

to do away with personal laws. It is only giving a power.

Therefore, no one need be apprehensive of the fact that if

the State has the power, the State will immediately proceed

to execute or enforce that power in a manner that may be

found to be objectionable by the Muslims or by the

Christians or by any other community in India." He further

stated in his speech as under : "We must all remember --

including Members of the Muslim community who have spoken on

this subject, though one can appreciate their feelings very

well -- that sovereignty is always limited, no matter even

if you assert that it is unlimited, because sovereignty in

the exercise of that power must reconcile itself to the

sentiments of different communities." Moreover, as pointed

out by Brother Sethi, J., learned ASG appearing for the

respondent has stated before the Court that the Govt. of

India did not intend to take any action in this regard on

the basis of that judgment alone. These affidavits and the

statement made on behalf of the Union of India should

clearly dispel notions harboured by the Jamat-e-Ulema Hind

and the Muslim Personal Law Board. I am also of the

opinion, concurring with Brother Sethi, J., that this Court

in Sarla Mudgal's case had not issued any DIRECTION for the

enactment of a common civil code. The Review Petition and

the Writ Petitions are disposed of finally with the

clarifications set out above. .......................J ( S.

Saghir Ahmad ) New Delhi May 5, 2000. IN THE SUPREME COURT

OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL)

NO. 798 OF 1995 Lily Thomas, etc. etc. .. Petitioners

vs. Union of India & Ors. .. Respondents WITH (W.P.(C)

No. 1079/89, RP(C) No. 1310/95 IN WP(C) 509/92, WP(C)

No.347/90, WP(C) No. 424/92, WP(C) No. 503/95, WP(C)

No.509/92, WP(C) No. 588/95, WP(C) No.835/95) O R D E R In

view of the concurring, but separate judgments the Review

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Petition and the Writ Petitions are disposed of finally with

the clarifications and interpretation set out therein. All

interim orders passed in these petitions shall stand

vacated.