Sarla Mudgal v. Union of India

Hindu husbands married under the Hindu Marriage Act, 1955 embraced Islam and then married a second wife, with the first marriage still in force. Four women went to the Supreme Court under Article 32. The Court held that conversion does not dissolve a Hindu marriage, and that the second marriage is void under Section 494 of the Indian Penal Code. It also asked the Government to act on the uniform civil code in Article 44.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

Smt. Sarla Mudgal, President, Kalyani — petitioner 1 in Writ Petition 1079 of 1989; Kalyani is a registered society working for the welfare of needy families and women in distress.

Meena Mathur — petitioner 2 in that petition; married Jitender Mathur on 27 February 1978, and had three children (two sons and a daughter).

Sunita Narula alias Fathima — petitioner in Writ Petition 347 of 1990; the second wife of Jitender Mathur.

Geeta Rani — petitioner in Writ Petition 424 of 1992; married Pradeep Kumar according to Hindu rites.

Sushmita Ghosh — petitioner in Civil Writ Petition 509 of 1992; married G.C. Ghosh according to Hindu rites.

Union of India and others — respondents.

Procedural History

1. Four petitions were filed directly in the Supreme Court under Article 32 of the Constitution. They are Writ Petition 1079 of 1989, W.P.(C) No. 347 of 1990, W.P.(C) No. 509 of 1992 and W.P.(C) No. 424 of 1992 (Kuldip Singh, J.).
2. The judgment was delivered on 10 May 1995 in two separate but concurring opinions (opinions that agree with the result), by Kuldip Singh, J. and Sahai, J. (Kuldip Singh, J.; Sahai, J.).
3. The order records that the writ petitions are allowed in terms of the answers to the questions in Kuldip Singh, J.'s opinion (order).

Facts

1. Meena Mathur married Jitender Mathur on 27 February 1978. They had three children (Kuldip Singh, J.).
2. In early 1988, she learnt that her husband had solemnised a second marriage with Sunita Narula alias Fathima. This happened after they converted to Islam (Kuldip Singh, J.).
3. According to Meena Mathur, the conversion was only to marry Sunita and circumvent Section 494 IPC. Jitender Mathur asserts that, having embraced Islam, he can have four wives even though his first wife remains Hindu (Kuldip Singh, J.).
4. Sunita alias Fathima, petitioner in Writ Petition 347 of 1990, says she and Jitender Mathur embraced Islam and then married, and a son was born to her (Kuldip Singh, J.).
5. She says that on 28 April 1988, under the influence of his first Hindu wife, Jitender gave an undertaking that he had reverted to Hinduism and would maintain his first wife and three children (Kuldip Singh, J.).
6. Her grievance is that she remains Muslim, is not maintained by her husband, and has no protection under either personal law (Kuldip Singh, J.).
7. Geeta Rani married Pradeep Kumar according to Hindu rites on 13 November 1988. She alleges that he maltreated her and once beat her so badly that her jaw bone was broken (Kuldip Singh, J.).
8. In December 1991, she learnt that Pradeep Kumar ran away with one Deepa and, after converting to Islam, married her. The conversion was only to facilitate the second marriage (Kuldip Singh, J.).
9. Sushmita Ghosh married G.C. Ghosh according to Hindu rites on 10 May 1984. On 20 April 1992, he asked her to agree to divorce by mutual consent (Kuldip Singh, J.).
10. She refused. He then told her that he had embraced Islam and would soon marry one Vinita Gupta. He had a certificate dated 17 June 1992 from the Qazi saying he had embraced Islam (Kuldip Singh, J.).
11. She prayed that he be restrained from entering into a second marriage with Vinita Gupta (Kuldip Singh, J.).

Issues Raised

1. Can a Hindu husband, married under Hindu law, solemnise a second marriage by embracing Islam?
2. Would such a marriage, without the first marriage being dissolved under law, be a valid marriage qua (as regards) the first wife, who continues to be Hindu?
3. Would the apostate husband be guilty of the offence under Section 494 of the Indian Penal Code?

Arguments Contended

The reported judgment does not record the arguments of counsel. It lists counsel only in the appearance note. It records the following positions of the parties, as stated in the petitions.

For the petitioners (the deserted first wives and Kalyani):

• Meena Mathur said her husband converted to Islam only to marry Sunita and circumvent Section 494 IPC (Kuldip Singh, J.).
• Geeta Rani said the conversion was only to facilitate the second marriage (Kuldip Singh, J.).
• Sushmita Ghosh said she was his legally wedded wife, wanted to live with him, and that no question of divorce arose. She asked the Court to restrain the second marriage (Kuldip Singh, J.).
• Sunita alias Fathima said she is not maintained by her husband and has no protection under either personal law (Kuldip Singh, J.).

Positions attributed to the husbands (as recorded in the petitions):

• Jitender Mathur asserts that, having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu (Kuldip Singh, J.).
• No other arguments of the husbands or of the Union of India are recorded.

Court's Reasoning

The judgment has two opinions. Kuldip Singh, J. wrote the main opinion. Sahai, J. added a short concurring opinion. The judgment has no numbered paragraphs, so steps cite the opinion.

Kuldip Singh, J.

Article 44 and the uniform civil code

1. Noted: Article 44 says "The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India". The opinion calls this an unequivocal mandate and a decisive step towards national consolidation. (Kuldip Singh, J.)
2. Noted: Pandit Jawaharlal Nehru, defending the Hindu Code Bill in Parliament in 1954, said the time was not ripe to push through a uniform code. The opinion says the rulers of the day, 41 years later, still have not retrieved Article 44 from cold storage. (Kuldip Singh, J.)
3. Noted: The most that has been done is to codify Hindu law. The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 replaced the traditional Hindu law of different schools with one code. (Kuldip Singh, J.)
4. Held: When more than 80 per cent of citizens are already under codified personal law, there is no justification to keep the introduction of a uniform civil code in abeyance. (Kuldip Singh, J.)
5. Noted: The Court then states the three questions for decision. It also records the facts of the four petitions. (Kuldip Singh, J.)

Marriage and the inducement to convert

1. Noted: Marriage is the very foundation of civilised society. Once the relation is formed, the law binds the parties to obligations, and the public is deeply interested in maintaining the institution. (Kuldip Singh, J.)
2. Noted: Till a uniform civil code is achieved, there is an open inducement to a Hindu husband who wants a second marriage to become Muslim. Monogamy (one spouse at a time) is the law for Hindus, and Muslim law in India permits four wives. (Kuldip Singh, J.)
3. Noted: An errant Hindu husband embraces Islam to circumvent Hindu law and escape penal consequences. (Kuldip Singh, J.)

Conversion and the Hindu marriage under the old law

1. Noted: The traditional Hindu law doctrine of indissolubility of marriage did not treat conversion as dissolving a marriage. Conversion of one or both spouses did not dissolve it. (Kuldip Singh, J.)
2. Noted: In In Re Ram Kumari (1891 Calcutta 246), a Hindu wife converted to Islam and married a Mohammedan. Her earlier marriage was held not dissolved. She was convicted of bigamy (a second marriage while the first subsists) under Section 494 IPC. (Kuldip Singh, J.)
3. Noted: The court in Ram Kumari said no authority in Hindu law absolves an apostate from all civil obligations. Such a view, so far as the matrimonial bond is concerned, was contrary to the spirit of Hindu law. (Kuldip Singh, J.)
4. Noted: The Madras High Court followed Ram Kumari in Budansa v. Fatima (1914 IC 697). (Kuldip Singh, J.)
5. Noted: In Gul Mohammed v. Emperor (AIR 1947 Nagpur 121), a Hindu wife was fraudulently taken away by a Mohammedan who converted her and married her. Her conversion did not ipso facto (by that fact alone) dissolve the marriage. The accused was convicted of adultery under Section 497 IPC. (Kuldip Singh, J.)
6. Noted: In Nandi alias Zainab v. The Crown (ILR 1920 Lahore 440), the wife of the complainant became a Mussalman and married Rukan Din. She was charged under Section 494 IPC. Her conversion did not dissolve the marriage, which only a court decree could dissolve. (Kuldip Singh, J.)
7. Noted: In Emperor v. Mt. Ruri (AIR 1919 Lahore 389), a Christian wife renounced Christianity and embraced Islam and married a Mohomedan. Under the Christian marriage law, the first marriage was not dissolved, so the second was bigamous. (Kuldip Singh, J.)
8. Noted: In India there has never been a matrimonial law of general application. Apart from statute, a marriage was governed by the parties' personal law. A marriage under one personal law could not be dissolved under another because a party changed religion. (Kuldip Singh, J.)
9. Noted: In Sayeda Khatoon alias A.M. Obadiah v. M. Obadiah (49 CWN 745), Lodge, J. dealt with parties who were Jews, one of whom converted to Islam. He said this is not a Mahommedan country, and Mahommedan law is not the law of the land. (Kuldip Singh, J.)
10. Noted: Lodge, J. said "there is no matrimonial law of general application in India". He found no authority for holding that a marriage under one personal law can be dissolved under another because one party changed religion. (Kuldip Singh, J.)
11. Noted: Blagden, J. followed Sayeda Khatoon in Robasa Khanum v. Khodadad Bomanji Irani (1946 Bombay Law Reporter 864). The parties married under Zoroastrian law, and the wife became Muslim. The husband declined to convert. The suit for a declaration that her marriage stood dissolved was dismissed. (Kuldip Singh, J.)
12. Noted: Blagden, J. asked why one spouse should be able to force a newly acquired personal law on a spouse to whom it is alien. He called it a monstrous absurdity. He said a Christian husband could otherwise embrace Islam and, the next moment, take three more wives without the first wife's consent. (Kuldip Singh, J.)
13. Noted: The Division Bench of Sir Leonard Stone, C.J. and Chagla, J. upheld this. Chagla, J. asked what the consequences of the plaintiff's conversion to Islam were. (Kuldip Singh, J.)
14. Noted: Chagla, J. cited Waghela Rajsanji v. Shekh Masludin and Muhammad Raza v. Abbas Bandi Bibi. Where no rule of Indian law applies, the case is decided by equity and good conscience, meaning English rules if suitable to Indian society. No English rule could apply to a Muslim wife's suit against her Zoroastrian husband. (Kuldip Singh, J.)
15. Noted: Chagla, J. said the case must be decided by justice and right, or equity and good conscience, independently of English law, doing substantial justice between the parties. (Kuldip Singh, J.)
16. Noted: He said it is difficult to see why conversion of one party should afford a ground for dissolving a marriage. The bond of marriage is not exclusively the bond of religion. If conversion leads to unhappiness, the ground for dissolution would be the resulting unhappiness, not the conversion. (Kuldip Singh, J.)
17. Noted: Chagla, J. observed that under Muslim law, apostasy of either party operates as complete and immediate dissolution. But Section 4 of the Dissolution of Muslim Marriages Act, 1939 says renunciation of Islam by a married Muslim woman does not by itself dissolve her marriage. It shows the legislature departed from the rigour of the ancient law. (Kuldip Singh, J.)
18. Noted: Chagla, J. also said the parties married under Zoroastrian rites, on a solemn pact that the marriage would be monogamous and dissolved only by Zoroastrian tenets. It would be contrary to justice for one party to repudiate the pact by a unilateral act. (Kuldip Singh, J.)
19. Noted: Chagla, J. added that the Shariat Act, 1937 makes Muslim personal law the rule of decision only where the parties are Muslims. It does not apply when only one party is a Muslim. (Kuldip Singh, J.)
20. Noted: In Andal Vaidyanathan v. Abdul Allam Vaidya (1946 Madras), a Division Bench dealt with a marriage under the Special Marriage Act, 1872. It said the Act contemplates monogamy, and a person married under it cannot escape by changing religion. (Kuldip Singh, J.)
21. Noted: Andal Vaidyanathan said such a person commits bigamy by marrying again in his spouse's lifetime, whatever religion he professes. Section 17 gives the only means of dissolution or nullity. If both convert to Islam, dissolution is only under the Divorce Act. It is a statutory marriage, dissolved only in accordance with the statute. (Kuldip Singh, J.)
22. Held: From this catena of cases, a marriage celebrated under one personal law cannot be dissolved by applying another personal law to which one spouse converts and the other refuses to convert. (Kuldip Singh, J.)
23. Held: Where a marriage takes place under Hindu law, the parties acquire a status and rights by the marriage itself. If one party could dissolve it by adopting a new personal law, it would destroy the existing rights of the other spouse who continues to be Hindu. (Kuldip Singh, J.)
24. Held: Under Hindu personal law as it stood before codification in 1955, a Hindu marriage continued to subsist even after one spouse converted to Islam. There was no automatic dissolution. (Kuldip Singh, J.)

The Hindu Marriage Act, 1955 and Section 494 IPC

1. Held: The position has not changed after the Hindu Marriage Act, 1955. It has become worse for the apostate. (Kuldip Singh, J.)
2. Noted: The Act applies to Hindus by religion in any of its forms or developments. It also applies to Buddhists, Jains and Sikhs. It does not apply to Muslims, Christians and Parsees. (Kuldip Singh, J.)
3. Noted: Section 4 gives the Act overriding effect. Any text, rule, custom or usage of Hindu law in force before the Act ceases to have effect on any matter it provides for. Any other inconsistent law in force before the Act ceases to have effect to that extent. (Kuldip Singh, J.)
4. Noted: A marriage solemnised before or after the Act can only be dissolved by a decree of divorce on the grounds in Section 13. One ground in Section 13(1)(ii) is that the other party has ceased to be a Hindu by conversion to another religion. (Kuldip Singh, J.)
5. Noted: Section 11 deals with a void marriage. A marriage that contravenes clauses (i), (iv) and (v) of Section 5 is null and void, on a petition presented by either party. Section 15 lets divorced persons marry again once the marriage is dissolved and appeal rights have ended. (Kuldip Singh, J.)
6. Held: Modern Hindu law strictly enforces monogamy. A marriage under the Act can be dissolved only on the grounds in Section 13. Parties who married under the Act remain married even when the husband embraces Islam in pursuit of another wife. (Kuldip Singh, J.)
7. Held: A second marriage by an apostate under the shelter of conversion is a marriage in violation of the Act, which continues to govern his first marriage. It is an illegal marriage qua his wife who married him under the Act and continues to be Hindu. As between them, it is nonest (non-existent). (Kuldip Singh, J.)
8. Noted: Section 494 IPC punishes anyone who, having a husband or wife living, marries in a case where the marriage is void by reason of its taking place during the life of that spouse. The punishment is imprisonment up to seven years and fine. (Kuldip Singh, J.)
9. Noted: The ingredients are: having a husband or wife living; marrying in any case; the marriage being void; and its being void by reason of its taking place during the life of the husband or wife. (Kuldip Singh, J.)
10. Noted: A marriage solemnised by a Hindu husband after embracing Islam may not strictly be void under the Act, because he is no longer a Hindu. But it violates the Act, which strictly professes monogamy. (Kuldip Singh, J.)
11. Held: The expression void in the Act has a limited meaning within Section 11. In Section 494 IPC it serves a different purpose and needs a meaningful interpretation. It is used in the wider sense. A marriage in violation of any provision of law is void in terms of Section 494 IPC. (Kuldip Singh, J.)
12. Held: Until a Hindu marriage is dissolved under the Act, neither spouse can contract a second marriage. Conversion and marrying again does not by itself dissolve it. A second marriage by a convert violates the Act and is void in terms of Section 494 IPC. (Kuldip Singh, J.)
13. Held: Any act in violation of mandatory provisions of law is void per se (by its own nature). (Kuldip Singh, J.)
14. Held: The real reason for the voidness of the second marriage is that the first marriage subsists and is not dissolved even by the husband's conversion. Holding the second marriage legal would give a go-by to the substance and act against the spirit of the statute. (Kuldip Singh, J.)
15. Held: The Court agrees with Chagla, J. in Robasa Khanum. The conduct of a spouse who converts is judged by justice and right, or equity and good conscience. (Kuldip Singh, J.)
16. Held: A dispute between a convert to Islam and a non-Muslim spouse is not a dispute where the parties are Muslims. So the rule of decision need not be Muslim personal law. The Court decides according to justice, equity and good conscience. (Kuldip Singh, J.)
17. Held: A Hindu husband's second marriage after embracing Islam violates justice, equity and good conscience. It is void on that ground too and attracts Section 494 IPC. (Kuldip Singh, J.)
18. Held: Assuming a Hindu husband has a right to embrace Islam, he has no right under the Act to marry again without dissolving his marriage under the Act. The second marriage would violate the rules of natural justice and be void. (Kuldip Singh, J.)
19. Held: This reading of Section 494 IPC advances the interest of justice. There should be harmony between the two systems of law, as between communities. Hindu law and Muslim law should each operate within their own ambit without trespassing on the other. (Kuldip Singh, J.)
20. Noted: It is not the object of Islam, nor the intention of the enlightened Muslim community, that Hindu husbands should become Muslims merely to evade their personal laws by marrying again. So courts can adopt a construction denying the convert the right to marry again without dissolving his existing marriage in accordance with law. (Kuldip Singh, J.)
21. Held: All four ingredients of Section 494 IPC are met where a Hindu husband marries again after conversion to Islam. He has a wife living, he marries again, and the marriage is void by reason of its taking place during the first wife's life. (Kuldip Singh, J.)
22. Held: The Court holds that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC. (Kuldip Singh, J.)

Attorney General Ceylon v. Reid

1. Noted: In Attorney General Ceylon v. Reid (1965 All E.R. 812), a Christian lady married in Christian rites, later embraced Islam and married under the Muslim marriage formalities before the Registrar of Muslim Marriages at Colombo. (Kuldip Singh, J.)
2. Noted: The husband was charged with bigamy under the Ceylon Penal Code and convicted by the Supreme Court of Ceylon. The Privy Council absolved the respondent of bigamy. (Kuldip Singh, J.)
3. Noted: The Privy Council said inhabitants domiciled there have an inherent right to change their religion and personal law and contract a valid polygamous marriage. It said that if this right is to be abrogated, it must be done by statute. (Kuldip Singh, J.)
4. Held: Despite an inherent right to change religion, whether penal laws apply depends on the two personal laws governing the marriage. The Privy Council decided on the facts and on the two personal laws operating in Ceylon. Reid's case is no help here. (Kuldip Singh, J.)

The uniform civil code

1. Noted: The Constitution Bench in Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), through Chandrachud, C.J., said Article 44 has remained a dead letter. It said there is no evidence of any official activity for framing a common civil code. (Kuldip Singh, J.)
2. Noted: Shah Bano said a belief seems to have gained ground that the Muslim community should lead reform of its personal law. A common civil code will help national integration by removing disparate loyalties to laws with conflicting ideologies. (Kuldip Singh, J.)
3. Noted: Shah Bano said no community is likely to bell the cat by making gratuitous concessions. The State is charged with securing a uniform civil code and has the legislative competence to do so. (Kuldip Singh, J.)
4. Noted: It recalled a counsel's remark that legislative competence is one thing and the political courage to use it another. It said a beginning has to be made if the Constitution is to have any meaning. (Kuldip Singh, J.)
5. Noted: Shah Bano said that the role of the reformer has inevitably to be assumed by the courts when injustice is palpable. But piecemeal attempts of courts cannot take the place of a common civil code. Justice to all is more satisfactory than justice from case to case. (Kuldip Singh, J.)
6. Noted: In Ms. Jordan Diengdeh v. S.S. Chopra (AIR 1985 SC 935), O. Chinnappa Reddy, J. referred to Shah Bano. He said the case focused on the immediate need for a uniform civil code. He called the state of affairs without one totally unsatisfactory. (Kuldip Singh, J.)
7. Noted: The opinion wonders how long the Government will take to implement Article 44. Traditional Hindu law on inheritance, succession and marriage was given a go-by in 1955-56 by codification. There is no justification for delaying a uniform personal law indefinitely. (Kuldip Singh, J.)
8. Held: "Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society". (Kuldip Singh, J.)
9. Held: Article 25 guarantees religious freedom, while Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot come within the guarantee in Articles 25, 26 and 27. (Kuldip Singh, J.)
10. Noted: Personal laws of Hindus on marriage and succession have a sacramental origin, as do those of Muslims and Christians. Hindus, with Sikhs, Buddhists and Jains, have forsaken their sentiments for national unity. Some other communities would not, though the Constitution enjoins a common civil code. (Kuldip Singh, J.)
11. Noted: In the United States, polygamy has been judicially held injurious to public morals, even if a religion makes it obligatory. The State can supersede it, as it can prohibit human sacrifice or Suttee. (Kuldip Singh, J.)
12. Noted: Bigamous marriage is punishable among Christians by Act XV of 1872, among Parsis by Act III of 1936, and among Hindus, Buddhists, Sikhs and Jains by Act XXV of 1955. (Kuldip Singh, J.)
13. Noted: During Muslim rule, Qazis applied Muslim scriptural law to Muslims, with no similar assurance for Hindus. Warren Hastings made Regulations in 1772 for civil justice without discrimination between Hindus and Mahomedans. (Kuldip Singh, J.)
14. Noted: The Regulations of 1781 said each community was governed by its personal law on inheritance, marriage, religious usage and institutions. The British superseded Muslim criminal law in 1832 and applied English common law. The Indian Penal Code was enacted in 1860. (Kuldip Singh, J.)
15. Noted: This policy continued until independence and the division of the country on religious lines. Those who stayed in India knew the leaders did not believe in a two-nation or three-nation theory. There was to be only one Indian nation, and no community could claim to remain a separate entity on the basis of religion. (Kuldip Singh, J.)
16. Held: The British permitted personal laws only under the Regulations of 1781. Legislation, and not religion, is the authority under which personal law operates. So it can be superseded or supplemented by a uniform civil code, and no community can oppose that. (Kuldip Singh, J.)
17. Noted: Successive governments have been wholly remiss in implementing Article 44. (Kuldip Singh, J.)
18. Held: The Court requests the Government of India, through the Prime Minister, to take a fresh look at Article 44 and endeavour to secure a uniform civil code. It directs an affidavit on the steps taken (see Judgement). (Kuldip Singh, J.)
19. Held: Answering the questions posed, the second marriage of a Hindu husband after conversion to Islam, without dissolving his first marriage under law, is invalid. It is void under Section 494 IPC, and the apostate husband is guilty of that offence. (Kuldip Singh, J.)
20. Held: The Court disposes of the writ petitions. The petitioners may seek any relief through any available remedy as a result of the judgment or otherwise. There is no order as to costs. (Kuldip Singh, J.)

Sahai, J. (separate concurring opinion)

1. Noted: He adds a few words on the social necessity of a uniform or common civil code. He wants to focus on the urgency of the legislation and says he entirely agrees with the reasons of Kuldip Singh, J. (Sahai, J.)
2. Noted: The pattern of debate today is the same as in the Constituent Assembly. One side says that non-implementation of Article 44 is a grave failure of Indian democracy. The other says the code would cause dissatisfaction and disintegration rather than homogeneity. (Sahai, J.)
3. Noted: The Constitution was framed with secularism as its ideal, and the wish to be socially one found expression in Article 44. Religious freedom, the basic foundation of secularism, is guaranteed by Articles 25 to 28. (Sahai, J.)
4. Noted: Article 25 is very widely worded. It protects freedom of conscience and the right to profess, practise and propagate religion. Religion means any faith or belief, and the Court has extended it to practices and external overt acts. (Sahai, J.)
5. Noted: Reading or reciting the Ramayana, Quran, Bible or Guru Granth Sahib is as much a part of religion as offering food to a deity or going to a temple, mosque, church or gurudwara. (Sahai, J.)
6. Noted: Marriage, inheritance, divorce and conversion are as religious in nature as any other belief. Going round the fire seven times or giving consent before a Qazi is a matter of faith and conscience, like worship. (Sahai, J.)
7. Noted: A Hindu becomes a convert by reciting the Kalma, and a Muslim becomes Hindu by reciting mantras. This is a matter of belief and conscience. (Sahai, J.)
8. Noted: Some practices of one religion may appear excessive or violative of human rights to members of another. These are matters of faith where reason and logic have little role, and sentiments must be tempered by sincere effort. (Sahai, J.)
9. Noted: Today there is no Raja Ram Mohan Rai, who brought about the atmosphere for abolishing Sati. Nor is there a statesman like Pt. Nehru who piloted the Hindu Succession Act and Hindu Marriage Act. (Sahai, J.)
10. Noted: The desirability of a uniform code can hardly be doubted. But it can concretize only when the elite and statesmen rise above personal mileage and awaken the masses to accept the change. (Sahai, J.)
11. Noted: The problem is that many Hindus have changed religion and become converts to Islam only to escape the consequences of bigamy. Jitendra Mathur, married to Meena Mathur, and another Hindu girl embraced Islam because Muslim law permits up to four wives. (Sahai, J.)
12. Noted: No religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam. Many Islamic countries have codified personal law, and polygamy has been totally prohibited or severely restricted there. He names Syria, Tunisia, Morocco, Pakistan, Iran and the Islamic Republics of the Soviet Union. (Sahai, J.)
13. Noted: India is a Secular Democratic Republic, and freedom of religion is the core of its culture. He quotes that "religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression". (Sahai, J.)
14. Held: A unified code is imperative for the protection of the oppressed and for national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. (Sahai, J.)
15. Noted: He advises the Government to entrust the matter to the Law Commission, which may consult the Minorities Commission and bring comprehensive legislation in keeping with modern human rights for women. (Sahai, J.)
16. Noted: He suggests the Government consider a Committee to enact a Conversion of Religion Act immediately, to check abuse of religion. A citizen who changes religion could not marry another wife unless he divorces his first wife. (Sahai, J.)
17. Noted: The provision should apply to every person, whether Hindu, Muslim, Christian, Sikh, Jain or Buddhist. It should also provide for maintenance and succession to avoid clashes of interest after death. This would go a long way to solve the problem and pave the way for a unified civil code. (Sahai, J.)

Authorities

• In Re Ram Kumari (1891 Calcutta 246): a Hindu wife's conversion to Islam did not dissolve her earlier marriage; convicted of bigamy under Section 494 IPC (Kuldip Singh, J.).
• Budansa v. Fatima (1914 IC 697): Madras High Court followed Ram Kumari (Kuldip Singh, J.).
• Gul Mohammed v. Emperor (AIR 1947 Nagpur 121): conversion did not ipso facto dissolve the marriage; adultery under Section 497 IPC (Kuldip Singh, J.).
• Nandi alias Zainab v. The Crown (ILR 1920 Lahore 440): conversion did not dissolve the marriage; only a court decree could (Kuldip Singh, J.).
• Emperor v. Mt. Ruri (AIR 1919 Lahore 389): a Christian wife's conversion did not dissolve her marriage (Kuldip Singh, J.).
• Sayeda Khatoon alias A.M. Obadiah v. M. Obadiah (49 CWN 745): no matrimonial law of general application in India; quoted at length (Kuldip Singh, J.).
• Robasa Khanum v. Khodadad Bomanji Irani (1946 Bombay Law Reporter 864): Blagden, J. and the Division Bench of Stone, C.J. and Chagla, J.; this Court agreed with the law laid down by Chagla, J. (cited in the source as Robasa Khanum v. Khodabad Irani's case) (Kuldip Singh, J.).
• Waghela Rajsanji v. Shekh Masludin and Muhammad Raza v. Abbas Bandi Bibi: Privy Council decisions on equity and good conscience, cited within Chagla, J.'s opinion (Kuldip Singh, J.).
• Andal Vaidyanathan v. Abdul Allam Vaidya (1946 Madras): a person married under the Special Marriage Act, 1872 cannot escape monogamy by changing religion (Kuldip Singh, J.). It relied on AIR 1941 Cal. 582 and (1917) 1 KB 634.
• Attorney General Ceylon v. Reid (1965 All E.R. 812): Privy Council; held not helpful here (Kuldip Singh, J.).
• Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945): Constitution Bench; Article 44 a dead letter; quoted (Kuldip Singh, J.).
• Ms. Jordan Diengdeh v. S.S. Chopra (AIR 1985 SC 935): referred to Shah Bano on the need for a uniform civil code (Kuldip Singh, J.).

Provisions mentioned

• Article 44, Constitution: the State shall endeavour to secure a uniform civil code throughout India.
• Articles 25, 26, 27 and 28, Constitution: religious freedom. Article 25 protects conscience and the right to profess, practise and propagate religion (Kuldip Singh, J.; Sahai, J.).
• Article 32, Constitution: the four petitions were filed under it.
• Section 4, Hindu Marriage Act, 1955: overriding effect over earlier Hindu law and inconsistent laws.
• Section 5, Hindu Marriage Act, 1955: conditions of a valid marriage; clauses (i), (iv) and (v) make a marriage void under Section 11.
• Section 11, Hindu Marriage Act, 1955: void marriages.
• Section 13, Hindu Marriage Act, 1955: grounds of divorce, including in Section 13(1)(ii) that the other party has ceased to be a Hindu by conversion.
• Section 15, Hindu Marriage Act, 1955: divorced persons may marry again once the marriage is dissolved and appeal time has expired.
• Section 494, Indian Penal Code: marrying again during the lifetime of a husband or wife; up to seven years and fine.
• Section 497, Indian Penal Code: adultery, under which the accused in Gul Mohammed was convicted.
• Section 17, Special Marriage Act, 1872: the only means of dissolving or declaring null a marriage under that Act.
• Section 4, Dissolution of Muslim Marriages Act, 1939 (VIII of 1939): renunciation of Islam by a married Muslim woman does not by itself dissolve her marriage.
• Section 2, Shariat Act, 1937 (XXVI of 1937): Muslim personal law is the rule of decision where the parties are Muslims.
• Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; Hindu Adoptions and Maintenance Act, 1956: the codifying Acts that replaced the traditional Hindu law.
• Act XV of 1872, Act III of 1936 and Act XXV of 1955: bigamy is punishable among Christians, Parsis, and Hindus, Buddhists, Sikhs and Jains respectively.
• The Divorce Act; the Ceylon Penal Code; the Regulations of 1772 and 1781: also mentioned in the opinion.

Judgement

1. The writ petitions are allowed in terms of the answers to the questions posed in the opinion of Kuldip Singh, J., as the order records (order).
2. The second marriage of a Hindu husband after conversion to Islam, without his first marriage being dissolved under law, is invalid. It is void under Section 494 IPC, and the apostate husband is guilty of that offence (Kuldip Singh, J.).
3. The Court requests the Government of India, through the Prime Minister, to take a fresh look at Article 44 and endeavour to secure a uniform civil code for citizens throughout India (Kuldip Singh, J.).
4. The Government of India, through the Secretary, Ministry of Law and Justice, must file an affidavit of a responsible officer in the Supreme Court in August 1996. It must state the steps taken and efforts made towards a uniform civil code (Kuldip Singh, J.).
5. The petitioners may seek any relief by invoking any remedy available to them as a result of the judgment or otherwise (Kuldip Singh, J.).
6. There is no order as to costs (Kuldip Singh, J.).

Legal Principle / Ratio

A Hindu marriage under the Hindu Marriage Act, 1955 is not dissolved by the husband's conversion to Islam. It can be dissolved only on the grounds in Section 13. A second marriage by the convert is therefore a marriage in violation of the Act and void under Section 494 IPC, so the convert is guilty of the offence under that Section. In the Court's words: "the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC".

Critical Analysis

Analysis based on the judgment text.

The word void is read differently in the two provisions. The Court accepts that the second marriage may not strictly be void under the Act, because the husband is no longer Hindu. It holds that void in Section 494 IPC has a wider sense, covering a marriage in violation of any provision of law. It also relies on justice, equity and good conscience and on natural justice. The judgment does not say whether any one of these grounds would be enough alone.

Attorney General Ceylon v. Reid is distinguished. The Privy Council recognised an inherent right to change religion and contract a valid polygamous marriage unless statute abrogates it. The Court says its result depends on the two personal laws governing the marriage, and that Reid turned on its facts and on Ceylon's two personal laws.

The two opinions differ in their first step. Kuldip Singh, J. asks the Government to file an affidavit on steps to secure a uniform civil code. Sahai, J. says that the first step should be to rationalise the personal law of minorities, and suggests a Conversion of Religion Act. He puts these as suggestions, and only Kuldip Singh, J.'s affidavit direction is an order.

Significance

• The Court held that conversion to Islam does not dissolve a Hindu marriage, either before or after the 1955 Act.
• It held that a second marriage after conversion, with the first marriage subsisting, is void under Section 494 IPC, and the husband is guilty of the offence under that Section.
• It drew on the principle that a marriage under one personal law is not dissolved by applying another personal law when one spouse converts.
• Kuldip Singh, J. joins the outcome to Article 44 and says Article 44 is based on the concept that religion and personal law need not be connected.
• Sahai, J. adds a separate suggestion for a Conversion of Religion Act, applying to every citizen who changes religion.

Exam-Important Points

• Facts in one line: Hindu husbands with living wives converted to Islam and remarried. The wives and a society petitioned under Article 32.
• Rule: conversion does not dissolve a Hindu marriage. Only a Section 13 decree can. The second marriage is void under Section 494 IPC.
• Trap: it may not be void under Section 11 of the Act, since the husband is no longer Hindu. The Court read void in Section 494 in the wider sense of any violation of law.
• Trap: the Court also relied on justice, equity and good conscience, and on natural justice. It agreed with Chagla, J. in Robasa Khanum.
• Reid: Attorney General Ceylon v. Reid was distinguished. Its result depended on the two personal laws in Ceylon.
• Two opinions: Kuldip Singh, J. (main opinion and directions) and Sahai, J. (concurring, with suggestions on the Law Commission and a Conversion of Religion Act).
• Directions: a request to the Prime Minister on Article 44 and an affidavit by an officer of the Ministry of Law and Justice in August 1996. No costs.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.