A SMT. SARLA MUDGAL, PRESIDENT, KALYANI AND ORS.

B

c

v.

UNION OF INDIA AND ORS.

MAY

10,

1995

(KULDIP SINGH AND R.M. SAHA!, JJ.]

Hindu Marriage Act, S.11-Hindu husband embracing Islam and

solemnising second maniage without dissolution

of the

firsHfeld, second

maniage is invalid.

Indian Penal Code

1860,

S.494-Hindu husband embracing Islam and

solemnising second maniage without dissolution

of the first-Held, second

maniage void; husband would be guilty

of bigamy.

Interpretation of

Statutes-Indian Penal Code 1860, S.494-Hindu hus­

D band converting to Islam and contracting second maniage--Courts to adopt

a construction

of law that would advance interests of justice and harmony

between

conimunities.

E

Constitution of india, Article 44-Govemment requested to indicate

steps taken for securing a unifonn civil

code.

The writ petitioners were Hindu wives whose husbands had, even

while the first marriage subsisted, converted to Islam

and contracted a

second marriage. One petitioner was the second

wife who along with the

husband converted to Islam before the second marriage

and whose

hus­

band had thereafter reverted to being a Hindu and failed to maintain her.

F The questions for consideration were whether a Hindu husband, married

under Hindu

law, could by embracing Islam soleminse a second marriage;

whether such a marriage without having the first marriage dissolved under

law, was a valid marriage qua the first

wife who continued to be Hindu;

whether the apostate husband would be guilty of the offence under s.494

G of the Indian

Penal Code (IPC).

Disposing of the writ petitions, this Court

HELD :

1.1. The second marriage of a Hindu husband after conver­

sion to Islam, without having his first marriage dissolved under

law, would

H be invalid. [267-H]

250

SARLAMUDGALv. U.0.l. 251

1.2. A marriage solemnised under a particular statute and according A

to personal law could not be dissolved according to another personal law,

simply because one of the parties had changes his or her religion, (P.7).

Prior to 1955, a Hindu marriage continued to subsist even after one of the

spouses converted to Islam. The position has not changed after the Hindu

Marriage

Act, 1955 ('Act'). [256-C,

260-F]

In Re Ram Kuma1i 1891 Calcutta 246; Budansa v. Fatima, [1914] IC

697; Gut Mohammed v. Emperor, AIR (1947) Nagpur 121; Na11di@Zai11ab

B

v. The Crown, ILR (1920) Lahore 440; Emperor v. Mt. Ruri, AIR (1919)

Lahore 389; Sayeda Khatoo11@A.M. Obadiah v. M. Obadiah, 49 CWN 745;

Robasa Kha11um v. Khodadad Boma11ji Ira11i, (1946) Bombay Law Reporter C

864 and Anda! Vaidyanathan v. Abdul Allam Vaidya, (1946) Madras,

referred to .

. '1.3. The second marriage of an apostate husband would be an illegal

marriage qua his

wife who married him under the Act and continues to be a

Hindu. Between the apostate

and his Hindu wife the second marriage is in

violation of the provisions

of the Act and as such wonld be nones!. [261-H]

2.1. The second marriage by a convert would be in violation of the

D

Act and as such void in terms of

S.494 IPC. The expression "void" under

s.494 IPC has been used in the wider sense. A marriage which is in E

violation of any provisions of Jaw would be void in terms of the expression

used under Section

494,

IPC. [262-G-F]

2.2. The interpretation given

to

Sec. 494 IPC would advance the

interests 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 F

communities.

Since it is not the object of Islam that 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

persnaded to adopt a construction of the laws resulting in denying the

Hindu husband converted to Islam the right to marry again without having

G

his existing marriage dissolved in accordance with law. [263-F-GJ

Attomey General

Ceylon v. Reid, (1965) All. E.R 812, distinguished.

2.3. The second marriage of a Hindu husband after embracing Islam

being violative of justice, equity

and good conscience would be void on that H

252 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A ground also and attract the provisions of S.494 IPC. (263-C]

Robasa Khanum v. Khodadad Bomanji Irani, (1946) Bombay Law

Report 864, followed.

2.4. The second marriage after conversion to Islam would

be in

B violation of the rules of natural justice and as such would be void. [264-B]

3.1. There

is no justification whatsoever in delaying indefinitely the

. introduction of a uniform personal law in the country. The government is

requested to have a fresh look

at Article 44 of the Constitution and file an

affidavit indicating therein the steps taken and efforts made towards

C securing a

"uniform civil code' for the citizens of India. [266-B, 267-E]

D

Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945 and

Ms. Jordan Deingdeh v. S.S. Chopra, AIR (1985) SC 935, referred to.

Per Sahai, !. (concurring) :

The government could entrust the responsibility to the Law Commis­

sion which may in consultation with Minorities Commission examine the

matter and bring about a comprehensive legislation in keeping with the

modern-day concept of human rights for women. The government may

E consider appointing a Committee to enact a Conversion of Religion

Act,

immediately, to check the abuse of religion by any person. 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

F Christian or a

Sikh or a Jain or a Budh. Provision may be made for

maintenance

and succession etc. also to avoid clash of interests after

G

death.

[269·H, 270-A-C]

CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1079 of

1989 Etc. Etc.

(Under Article 32 of the Constitution of India)

D.N. Diwedi, Additional Solicitor General, V.C. Mahajan, Shankar

Ghosh, R.K Garg, Ms. S. Janani, P. Parmeswaran, R.P. Srivastava, Ms. A.

Subhashini,

Ms. Janki Ramachandran, K.J. John (N.P.), Shakeel Ahmed

H

Syed for the appearing parties.

-

SARLA MUDGAL v. U.0.1. [KULDIP SINGH, J. J 253

The Judgments of the Court were delivered by A

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 of India which

seeks to introduce a uniform personal

law - a decisive step towards national B

consolidation.

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 mod to retrieve Article 44

from the cold storage where it

is lying since 1949. The Government -which C

have come and gone -have so far failed to make any effort towards

"unified

personal law for all Indians". The reasons are too obvious to be stated. The

utmost that has been done

is to codify the Hindu law in the form of the

Hindu Marriage Act,

1955, The Hindu Succession Act,· 1956, the Hindu

Minority and Guardianship Act,

1956 and the Hindu Adoptions and Main- D

tenance Act, 1956 which have replaced the traditional Hindu law based on

different schools

cif thought and scriptural laws into one unified code.

When more than

80% of the citizens. have already been brought under the

codified personal

law there is no justification whatsoever to keep in

abeyance, any more, the introduction of

"uniform civil code

11

for all citizens

in the territory of India. E

The questions for consideration are whether a Hindu husband, mar-

ried under Hindu

law, by embracing

Isl~m, can solemnise second mar­

riage? 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 F

Hindu? Whether the apostate husband would be guilty of the offence under

Section

494 of the Indian

Penal Code (!PC)?

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 G

President of "KAL YAN!" - 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 H

254 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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 circum-

-venting the provisions of Section 494, !PC. Jitender Mathur asserts that

having embraced Islam, he can have four

wives irrespective of the fact that

B

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,

c

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.

D 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

E

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

F 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

G

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.

H Marriage is the very foundation of the civilised society. The relation

-

SARLA MUDGAL v. U.O.l. [KUI.DIP SINGH, J.] 255

once formed, the law steps in and binds the parties to various obligations A

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.

Till the time

we achieve the goal -uniform civil code for all the

citizens of India -there

is an open inducement to a Hindu husband, who B

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.

C

The doctrine of indissolubility of marriage, under the traditional

Hindu

law, did not recognise that conversion would have the effect of

dissolving a Hindu marriage. Conversion to another religion by one or both

the Hindu spouses did not dissolve the marriage.

It would be useful to have

a look at some of the old cases on the subject. In

Re Ram Kumari 1891 D

Calcutta 246 where a Hindu wife became convert to the Muslim faith and

then married a Mohammedan,

it was held that her earlier marriage with a

Hindu husband

was not dissolved by her conversion.

She was charged and

convicted of bigamy under Section

494 of the

!PC. It was held that there

was no authority under Hindu law for the proposition that an apostate is E

absolved from all

civil obligations and that so far as the matrimonial bond

was concerned, such view was contrary to the spirit of the Hindu law. The

Madras High Court followed

Ram

Kumari in Budansa v. Fatima, [1914) IC

697. In Gui Mohammed v. Emperor, AIR (1947) Nagpur 121 a Hindu wife

was fraudulently taken away by the accused a Mohammedan who married <

her according to Muslim law after converting her to Islam. It was held that F

the conversion of the Hindu

wife to Mohammedan faith did not ipso fact.o

dissolve the marriage and she could

no~ during the life time of her former

husband enter into a valid contract of marriage. Accordingly the accused

was convicted for adultery under Section 497 of the

!PC.

In Nandi @Zainab v. The Crown, !LR (1920) Lahore 440, Nandi, the

wife of the complainant, changed her religion and became a Mussalman

and thereafter married a Mussalman named Rukan Din. She was charged

with an offence under Section 494 of the Indian Penal Code. It was held

G

that the mere fact of her conversion to Islam did not dissolve the marriage

which could only be dissolved by a decree of court.

Emperor v. Mt. Ruri, H

256 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A AIR (1919) Lahore 389, was a case of Christian wife. The Christian wife

renounced Christianity and embraced Islam and then married a

Mahomedan.

It was held that according to the Christian marriage law,

which was the law applicable to the case, the first marriage was not

dissolved and therefore the subsequent marriage

was bigamous.

B

c

D

E

F

G

H

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. A marriage solemnised under a particular statute and according to

personal law could not be dissolved according to another personal

law, simp­

ly because one of the parties had changed his or her religion.

In

Sayeda Khatoon @ A.M. Obadiah v. M. Obadiah, 49 CWN 745,

Lodge, J. speaking for the court held as under :

"The parties were originally Jews bound by the Jewish personal

law

... The plaintiff has since been converted to Islam and may in

some respects

be governed by the Mahommedan Law. The Defen­

dant

is not governed by the Mahommedan Law. If this were an

Islamic country, where the Mahommedan Law was applied to

all

cases where one party was a Mahommedan, it might be that

plaintiff would be entitled to the declaration prayed for. But this

is not a Mahommedan country; and the Mahommedan Law is not

the Law of the Land

.. Now, in my opinion, is it the Law of India,

that when any person

is converted to Islam the Mahommedan Law

shall be applicable to him in all his relationships? I can see no

reason

why the Mahommedan Law should be preferred to the

Jewish Law in a matrimonial dispute between a Mahommdan and

a Jew particularly when the relationship,

viz.: marriage, was created

under the Jewish Law. As I stated

in a previous case there is no

matrimonial law of general application

in India. There is a Hindu

Law for Hindus, a Mahommedan Law for Mahommedans, a Chris­

tian Law for Christians, and a Jewish Law for Jews. There

is no

general matrimonial law regarding mixed marriages other than the

statute

law, and there is no suggestion that the statute law is

applicable in the present case. It may be that a marriage solem­

nised according to Jewish rites may be dissolved

by the proper

authority under Jewish Law when one of the parties renounces the

Jewish Faith.

It may be that a marriage solemnised according to

-

SARLAMUDGAL v. U.0.1. [KULDIP SINGH, J.] 257

Mahommedan Law may be dissolved according to the Mahom- A

medan Law when one of the parties ceases to be a Mahommedan.

But I can find no authority for the

view that a marriage solemnized

according to one personal

law can be dissolved according to

another personal

law simply because one of the two parties has

changed his or her

religion."

Sayeda Khatoon 's case was followed with approval by Blagden, J. of the

Bombay High Court

in Robasa Khanum v. Khodadad Bomanji Irani, [1946]

Bombay Law Reporter 864. In this case the parties were married according

B

to Zoroastrian law. The wife became Muslim whereas the husband

declined to do

so. The wife claimed that her marriage stood dissolved C

because of her conversion to Islam. The learned Judge dismissed the suit.

It would be useful to quote the following observations from the judgment: "We have, therefore, this position -British India as a wlltlle; is

another governed by Hindu, Mahommedan, Sikh, Parsi, Christian, D

Jewish or any other law except a law imposed by Great Britain

under which Hindus, Mahomedans, Sikhs, Parsis, and all others,

enjoy equal rights and the utmost possible freedom of religious

observance, consistent in every case with the rights of other people.

I have to decide this case according to the law

as it is, and there E

seems, in principle, no adequate ground for holding that in this

case Mahomedan law is applicable to a non-Mahomedan .. Do then

the authorities compel

me to hold that one spouse can by changing

his or her religious opinions (or purporting to do so) force his or

her newly acquired personal law on a party to whom

it is entirely

alien and who does to want it? In the name of justice, equity and

F

good conscience, or, in more simple language, of common sense,

why should this be possible? If there were no authority on the point

I (personally) should have thought that

so monstrous an absurdity

carried its own refutation with it,

so extravagant are the results that

follow from

it. For it is not only the question of divorce that the G

plaintiffs contention affects. If it is cqrrect, it follows that a

Christian husband can embrace Islam and, the next moment, three

additional

wives, without even the consent of the original

wife."

Against the judgment of Blagden, J. appeal was heard by a ;Jivision Bench H

258 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A consisting of Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as

the learned Judge then was). Chagla,

J. who spoke for the Bench posed

the question that arose for determination as under :

"what are the conse­

quences

of the

plaintiffs conversion to Islam?" The Bench upheld the

judgment of Blagden, J. and dismissed the appeal. Chagla, J. elaborating

B the legal position held as under :-

c

D

E

F

G

H

"We have here a Muslim wife according to whose personal law

conversion to Islam, if the other spouse docs not embrace the same

religion, automatically dissolves

the marriage. We have a

Zoroastrian husband according to whose personal

law such con­

version does not bring about the same result. The

Privy Council

in

Waghela Rajsanji v. Shekh Mas/udin expressed the opinion that

if there was no rule

of Indian law which could be applied to a

particular case, then

it should be decided by equity and good

conscience, and they interpreted equity and good conscience, to

mean the rules of English

law if found applicable to Indian society

and circumstances. And the same view was confirmed by their

Lordships

of the

Privy Council in Mohammed Raja v. Abbas Bandi

Bibi.

But there is no rule of English law which can be made

applicable to a suit for divorce by a Muslim wile against

her

Zoroastrian husband. The English law only deals and can only deal

with Christian marriages and with grounds for dissolving a Chris­

tian marriage. Therefor

we must decided according to justice and

right,

or equity and good conscience independently of any

provisions of the English

law. We must do substantial justice

between the parties and in doing so hope that we have vindicated

the principles of justice and right or equity and good conscience ......

It is impossible to accept the contention of Mr.

Peerbhoy that

justice and right requires that

we should apply Muslim law in

dealing this case. It

is difficult to see why the conversion of one

party to a marriage should necessarily afford a ground for its

dissolution. The bond that keeps a man and woman happy in

marriage

is not exclusively the bond of religion. There are many

other ties which make it possible for a husband and wife to live

happily and contentedly together.

It would indeed be a starting

proposition to

lay down that although two persons may want to

continue to

live in a married state and disagree as to the religion

they should profess, their marriage must be automatically dis-

·'

"'

SARLAMUDGALv. U.0.1.[KULDIPSINGH,J.] 259

solved. Mr. Peerbhoy has urged that it is rarely possible for two A

persons of different communities to be happily united iii wedlock.

If conversion of one of the spouses leads to unhappiness, then the

grourid for dissolution of marriage could not be the conversion but

the resultant unhappiness. Under Muslim law apostasy from Islam

of either party to a marriage operates

as a complete and immediate B

dissolution of the marriage. But s.4 of the Dissolution of Muslim

Marriages Act (Vlli of 1939) provides that the renunciation of

Islam by a married Muslim woman or her conversion to a faith

other than Islam shall not by itself operate to dissolve her marriage.

This

is a very clear and emphatic indication that the Indian legis­

lature has departed from;the rigor of the ancient Muslim

law and C

has taken the more modern view that there is nothing to prevent

a happy marriage notwithstanding the fact that the

two parties to

it professed different religious .. We must also point out that the

plaintiff

and the defendant were married according to the

Zoroastrian rites. They entered into a solemn pact that the mar- D

riage would be monogamous and could only be dissolved according

to the tenets of the Zoroastrian religion.

It would be patently

'

contrary to justice and right that one party to a solemn pact should

be allowed to repudiate it by a unilateral act.

It would be tan­

tamount to permitting the wife to force a divorce upon her husband

although he may not want it and although the marriage

vows which E

both of them have taken would not permit

it. We might also point

out that the

Shariat Act (Act XXVI of 1937) provides that the rule

of decision in the various cases enumerated in s.2 which includes

marriage and dissolution of marriage shall

be the Muslim personal

law

only

where the parties are Muslims; it does not provide that F

ee Muslim personal law shall apply when only one of the parties

1s a.Muslim."

(the single Judge judgment and the Division Bench judgment are

reported

in 1946 Bombay Law Reporter 864)

In

Anda/ Vaidyanathan v. Abdul Allam

Vaitiya, [1946] Madras, a

Division Bench of the High Court dealing with a marriage under the

Special marriage Act 1872 held :

G

"The Special Marriage Act clearly only contemplate~ monogamy H

260

A

B

SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

and a person married under the Act cannot escape from its

provisions

by merely changing his religion. Such a person commits

bigamy if he marries again during the lifetime of his spouse, and

it matters not what religion he professes at the time of the second

marriage. Section

17 provides

the only means for the dissolution

of a marriage or a declaration of

its nullity.

Consequently, where

two persons married under the Act sub­

sequently become converted to Islam, the marriage can only be

dissolved under the provisions of the Divorce Act and the same

would apply even if only one of them becomes converted to Islam.

C

Such a marriage is not a marriage in the Mahomedan sense which

can be dissolved

in a Mahomedan manner. It is a statutory mar­

riage and can only be dissolved in accordance with the Statute :

('41)28 A.LR. (1941) Cal.

582 and (1917) I K.B. 634, Rel. on; ('35)

22 A.LR. 1935 Born. 8 and 18 Cal. 264,

Disting."

D It is, thus, obvious form the catena of case-law that 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 take place under Hindu

Law the parties acquire a status and certain rights

by the marriage itself

E 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

F Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu

Marriage Act,

1955 (the Act) rather it has become worse for the apostate.

The Act applies to Hindus by religion in

any of its forms or developments.

G It also applied to Buddhists, Jains and Sikhs. It has no application to

Muslims, Christians and

Parsecs. Section 4 of the Act is as under :

"Oveniding effect of Act. -Save as otherwise expressly provided

in this Act, -

H (a) any text, rule or interpretation of Hindu law or any custom or

...

SARLAMUDGALv. U.O.L[KULDIPSINGH,J.] 261

usage as part of that Jaw in force immediately before the commen- A

cement of this Act shall cease to have effect with respect to any

matter for which provision is made in this Act;

(b)

any other law in force immediately before the commencement

of this Act shall cease to have effect

in so far as it is inconsistent B

with any of the provisions contained in this Act."

A marriage solemnised, whether before or after the commencement

of the Act, can only be dissolved

by a decree of divorce on any of the

grounds enumerated in

Section 13 of the Act. One of the grounds under

Section 13(1)(ii) is that "the other party has ceased to be a Hindu by C

conversion to another religion". Sections 11and15 of the Act is as under:-

"Void marriages. -Any marriage solemnized after the commence­

ment of this Act shall be null and void and

may, on a petition

presented

by either party thereto against the other party, be so D

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

conditions specified in clauses (i),

(iv) and (v) of

Section 5."

Divorced persons when may marry again.-When a marriage has

been dissolved

by a decree of divorce and either there is no right

of appeal against the decree

or, of there is such a right of appeal E

the time

for appealing has expired without an appeal having been

presented or an appeal has been presented but has been dismissed,

it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern F

Hindu Law strictly enforces monogamy. 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

G

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 H

262 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A violation of the provisions of the Act and as such would be nonest. Section

494 Indian Penal Code is as under :-

B

"Marrying again during lifetime 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.

The necessary ingredients of the

Section are : (1) having a husband or wife

C 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

D 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.

On the other hand the same expression

E has a different purpose under Section 494, !PC and has to be given

meaningful interpretation.

F

The expression

"void" under section 494, !PC 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, !PC.

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

G 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,

!PC. 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

H subsisting of the first marriage which is not dissolved even by the conver-

...

SARLA MUDGAL v. U.0.1. [KULDIP SINGH,J.] 263

sion of the husband. It would be giving a go-bye to the substance of the A

matter and acting against the spirit of the Statute if the second marriage

of the convert

is held

tci be legal.

We also agree with the

law laid down by Chagla, J. in Robasa

Kha11um v. Khodadad Ira11i's case (supra) wherein the learned Judge has

held that the conduct of a spouse who converts to Islam has to be judged B

on the basis of the rule of justice and right or equity and good conscience.

A matrimonial dispute between a convert to Islam and his or her non-Mus-

lim 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 C

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,

!PC.

Looked from another angle, the second marriage of an apostate-D

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 earlier 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 E

be

void.

The interpretation we have given to Section 494

!PC 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 F

!PC, 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

G

purpose of evading their own personal laws by marrying again, the courts

can be persuaded

to· adopt a construction of the 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

!PC are satisfied in the case H

264 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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.

B

We, therefore, hold that the second marriage of a Hindu husband

after

his conversion to islam is a void marriage in terms of

Section 494 !PC.

We may at this stage notice the Privy Council judgment in Attorney

General Ceylon

v. Reid, [1965] AL E.R. 812. A Christian lady was married

according to the Christian rites.

Years later she embraced Islamic faith and

got married

by the Registrar of Muslim Marriages at Colombo according

C to the statutory formalities prescribed for a Muslim marriage. The husband

was charged and convicted by the

Supreme Court, Ceylon of the offence

of bigamy under the Ceylon Penal Code. In an appeal before the Privy

Council, the respondent was absolved from the offence of bigamy. It was

held

by

Privy Council as under :-

D

E

"In their Lordship's view, in such countries there must be an

inherent right in the inhabitants domiciled there to change their

religion and personal

law and so to contract a valid polygamous

marriage if recognised

by the laws of the country notwithstanding

an earlier marriage.

If such inherent right is to be abrogated, it

must be done

by

statute."

Despite there being an inherent right to change religion the ap­

plicability of Penal laws would depend upon the two personal laws govern­

ing the marriage. The decision of Privy Council was on the facts of the

case, specially in the background

of the two personal laws operating in

F Ceylon. Reid's case is, thus, of no help to us in the facts and legal

background of the present cases.

Coming back to the question

11

uniform civil code" we may refer to

the earlier judgments of this Court on the subject. A Constitution Bench

of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd.

G Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945 held as under :

"It is also a matter of regret that Article 44 of our Constitution has

remained a dead letter.

It provides that

"The State shall endeavour

to secure for the citizens a uniform

civil code throughout the

H territory of

India". There is no evidence of any official activity for

.~

-

. ..,

)

SARLA MUDGAL v. U.0.I. [KULDIP SINGH, J.] 265

framing a common civil code for the couatry. A belief seems to

have gained ground that it is for the Muslim community to take a

lead

in the. matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing

disparate loyalties to

laws which have conflicting ideologies. No

community is likely to bell the cat by making gratuitous concessions

on this issue.

It is the

State which is charged with the duty of

securing a uniform

civil code for the citizens of the country and,

unquestionably; it has the legislative competence

to do so. A

counsel

is the case whispered, somewhat audibly, that legislative

competence in one thing, the political courage to use that com-

petence

is quite another. We understand the difficulties involved

in bringing persons of different faiths and persuasions on a com-

man platform. But, a beginning has to be made

is the

Constitution

is to have any meaning. Inevitably, the role of the reformer has to

be assumed

by the courts because, it is beyond the endurance of

sensitive minds to allow injustice to be suffered when

it is so

palpable. But piecemeal attempts of courts to bridge that gap

between personal

laws cannot take the place of a common

Civil

Code. Justice to all is a far more satisfactory way of dispensing

justice than justice from case to case."

In Ms. Jordan Diengdeh v. S.S. Chopra, AIR (1985) SC 935 0. Chinnappa

Reddy, J. speaking for the Court referred to the observations of

Chandrachud, CJ in Shah Bano Begum's case and observed as under :

A

B

c

D

E

"It was just the other day that a Constitution Bench of this Court F

had to emphasise the urgency of infusing

life into Art. 44 of the Constitution which provides that "The State shall endeavour to

secure for the citizens a uniform

civil code throughout the territory

of

India." The present case is yet another which focuses .. on the

immediate and compulsive need for a uniform

civil code. The

totally unsatisfactory state of a affairs consequent on the lack of a

G

uniform civil code is exposed by the facts of the present case.

Before mentioning the facts of the case,

we might as well refer to

the observations of

Chandrachud, CJ in the recent case decided

by the Constitution Bench (Mohd. Ahmed Khan v. Shah Bano

Begum)." H

266 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A One wonders how long will it take for the Government of the day to

implement the mandate of the framers of the Constitution under Article

44 of the Constitution of India. The traditional Hindu Law -personal law

of the Hindu -governing inheritance, succession and marriage was given

go-bye

as back as 1955-56 by codifying the same. There is no justification

B whatsoever in delaying indefinitely the introduction of a uniform personal

law in the country.

Article

44 is based on the concept that there is no necessary connec­

tion between religion and personal

law in a civilised society. Article 25

guarantees religious freedom whereas Article 44 seeks to divest religion

C from social relations and personal law. Marriage, succession and like

matters of a secular character cannot be brought within the guarantee

enshrined under Articles

25, 26 and 27. The personal law of the Hindus,

such as relating to marriage, succession and the

like have all a sacramental

origin, in the same manner

as in the case of the Muslims or the Christians.

The Hindus alongwith Sikhs, Buddhists and

fains have forsaken their

D sentiments

in the cause of the national unity and integration, some other

communities would not, though the Constitution enjoins the establishment

of a "common

civil Code" for the whole of India.

It has been judicially acclaimed in the

United States of America that

E the practice of Polygamy is injurious to "public morals", even though some

religion

may make it obligatory or desirable for its followers. It can be

superseded by the State just as it can prohibit human sacrifice or the

practice of

"Suttee" in the interest of public order. Bigamous marriage has

been made punishable amongst Christians

by Act (XV of 1872),

Parsis by

Act (III of

1936) and Hindus, Buddhists,

Sikhs and Jains by Act (XXV of

F 1955).

Political history of India shows that during the Muslim regime, justice

was administered

by the Qazis who would obviously apply the Muslim

Scriptural

law to Muslims, but there was no similar assurance so far

G litigations concerning Hindus was concerned. The system, more or less,

continued during the time of the East India Company, until

1772 when

Warren Hastings made Regulations

for the administration of civil justice

·

for the native population, without discrimination between Hindus and

Mahomedans. The

1772 Regulations followed by the Regulations of 1781

whereunder it was prescribed that either community was to be governed

H by its "personal" law in matters relating to inheritance, marriage, religious

. ~

SARLA MUDGAL v. U.0.1. [KULDIP SINGH, J.] 267

usage and institutions. So far as the criminal justice was concerned the A

British gradually superseded the Muslim law in 1832 and criminal justice

was governed by the English common law. Finally the Indian Penal Code

was enacted in 1860. This broad policy continued throughout the British

regime until independence and the territory of India was partitioned by the

British Rulers into two States on the basis of religion. Thos~ who preferred

to remain in India after the partition,

fully knew that the Indian leaders did B

not believe in two-nation or three-nation theory and that in the Indian

Republic there was to be only one Nation -Indian nation -and no

community could claim to remain a separate entity on the basis of religion.

It would be necessary to emphasise that the respective personal laws were

permitted

by the British to govern the matters relating to inheritance, C

marriages etc. only under the Regulations of 1781 framed by Warren

hastings. The Legislation -not religion -being the authority under which

personal

law was permitted to operate and is continuing to operate, the

same can be superseded/supplemented

by introducing a uniform civil code.

In this

view of the matter no community can oppose the introduction of

uniform

civil code for all the citizens in the territory of India. D

The Successive Government till-date have been wholly re-miss in

their duty of implementing the constitutional mandate under Article

44 of

the Constitution of India.

We, therefore, request the

Governinent of India through the Prime E

Minister of the country to have a fresh look at Article 44 of the Constitution

of India and "endeavour to secure for the citizens a uniform civil code

throughout the territory of India".

We further direct the Government of India through Secretary, Min­

istry

cf 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. Sahai, J. in his short and crisp supporting opinion has

suggested some of the measures which can

be undertaken by the Govern­

ment in this respect.

Answering the questions posed

by us in the beginning of the judg­

ment,

we hold that the second marriage of a Hindu-husband after conver­

sion to Islam, without having his first marriage dissolved under

law, would

be invalid. The second marriage would be void in terms of the provisions

F

G

of

Section 494 !PC and the apostate-husband would be guilty of the offence H

268 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A under Section 494 !PC.

B

The question of law having been answered we dispose of the writ

petitions. The petitioners

may seek any relief by invoking any remedy which

may be available to them as a result of this judgment or otherwise. No costs.

Petitions desposed

of.

R.M.

SAHA!, J. Considering sensitivity of the issue and magnitude

of the problem, both on the desirability of a uniform or common

civil code

and

its feasibility, it appears necessary to add a few words to

the social

necessity projected in the order proposed

by esteemed Brother Kuldip

C

Singh, J. more to focus on the urgency of such a legislation and to

emphasise that I entirely agree with the thought provoking reasons which

have been brought forth

by him in his order clearly and lucidly.

The pattern of debate, even today,

is the same as was voiced force­

fully by the members of the minority community in the Constituent As-

D sembly. If, 'the non implementation of the provisions contained in Article

44 amounts to grave failure of Indian democracy' represents one side of

the picture, then the other side claims that, 'logical probability appears to

be that the code would cause dissatisfaction and disintegration than serve

as a common umbrella to promote homogeneity and national solidarity'.

E

F When Constitution was framed with secularism as its ideal and

goa~

the consensus and conviction to be one, socially, found its expression in

Article

44 of the Constitution. But religious freedom, the basic foundation

of secularism, was guaranteed

by Articles 25 to 28 of the Constitution.

Article

25 is very widely worded. It guarantees all persons, not only

freedom of conscience but the right to profess, practice and propagate

religion. What

is religion? Any faith or belief. The Court has expanded

religious liberty

in its various phases guaranteed by the Constitution and

extended it to practices and even external overt acts of the individual.

Religion

is more than mere matter of faith. The Constitution by guarantee­

ing freedom of conscience ensured inner aspects of religious belief. And

G external expression of it were protected by guaranteeing right to freely,

practice and propagate religion. Reading and reciting holy scriptures, for

instance, Ramayana or Quran or Bible or Guru Granth

Sahib is as much

a part

of religion as offering food to deity by a Hindu or bathing the idol

or dressing him and going to a temple, mosque, church or gurudwara.

H Marriage, inheritance, divorce, conversion are as much religious in

•

SARLA MUDGAL v. U.0.1. [R.M. SAHA!, J.] 269

nature and content as any other belief or faith. Going round the fire seven A

rounds or giving consent before Qazi are as much matter of faith and

conscience

as the worship itself. When a Hindu becomes convert by

reciting Ka/ma or a Muslim becomes Hindu by reciting certain Mantras it

is a matter belief and conscience.

Some of these practices observed by

members of one religion

may appear to be excessive and even violative of B

human rights to members of another. But these are matters of faith. Reason

and logic have little role to

play. The sentiments and emotions have to be

cooled and tempered by sincere effort. But today there

is no Raja Ram

Mohan Rai

who single handed brought about that atmosphere which paved

the

way for

Sati abolition. Nor is a statesman of the stature of Pt. Nehru

who could pilot through, successfully, the Hindu Succession Act and Hindu C

Marriage Act revolutionising the customary Hindu Law. The desirability

of uniform Code can hardly be doubted. But it can concretize only when

social climate

is properly built up by elite of the society, statesmen amongst

leaders

who instead of gaining personal mileage rise above and awaken the

masses to accept the change.

D

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, Jin­

tendra Mathur

was married to Meena Mathur. He and another Hindu girl

embraced Islam. Obviously because Muslim Law permits more than one

E

wife and to the extent of four. But no religion permits deliberate distor­

tions. 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

F

of the

Soviet Union are some of the Muslim countries to be remembered

in this context). But ours

is a Secular Democratic Republic. Freedom of

religion

is the core of our culture. Even the slightest deviation shakes the

social fibre. 'But religious practices, violative of human

rights:·and dignity

and sacerdotal suffocation of essentially

civil and material freedoms,

are G

not autonomy but oppression'. Therefore, a unified code is imperative both

for protection of the oppressed and promotio~ of national unity and

sol.idarity. But the first step should be to rationalise the personal law of the

minorities to develop religious and cultural amity. The Government would

be well advised to entrust the responsibility to the Law Commission which

may in consultation with Minorities Commission examine the matter and H

270 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A bring about the comprehensive legislation in keeping with modern day

concept of human rights

for women.

The Government

may also consider feasibility of appointing a Com­

mittee to enact Conversion of Religion Act, immediately, to check the

abuse or religion

by any person. The law may provide that every citizen

B 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

Budh.

Provision may be made for maintenance and succession etc. also to

avoid clash of interest after death.

c

This would go a long way to solve the problem and pave the way for

a unified

civil code.

For the reasons and conclusions reached

in separate but concurring

judgments the writ petitions are allowed

in terms of the answers to the

D questions posed in the opinion of Kuldip Singh, J.

S.M. Petitions disposed of.