Smt. Sarla Mudgal, President, Kalyani & ors. V Union of India

  • The present case has 4 petitioners. It is a writ petition under Article 32 of the Indian Constitution. Petitioner 1 is the President of “KALYANI” – a registered society – which is an organisation working for the welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married t Jitender Mathur in 1978. In 1988 she shocked to learn that her husband had solemnized second marriage with one Sunita Narula alias Fathima. The 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 circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.

  • Sunita alias Fathima is another petitioner 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, 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.

  • Geeta Rani, was married to Pradeep Kumar in 1988. In 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that conversion to Islam was only for the purpose of facilitating the second marriage.

  • Sushmita Ghosh was married to G.C. Ghosh in 1984. In 1992 The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated 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. 

Legal Reasoning

1. Whether a Hindu husband, married under Hindu law, by embracing Islam, solemnize a second marriage?

under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.”

Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would as good as to destroying the existing rights of the other spouse who continues to be Hindu.

The Court further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act would be in violation of the rules of equity, justice and good conscience, as also those of natural justice.

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

Keeping in mind the interests of both the Hindu and Muslim communities and the plurality of laws, the court concluded that:

“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law 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”.

2. Whether such a marriage without having the first marriage dissolved under the law, would be a valid marriage qua the first wife who continued to be a Hindu?

The Court interpreted the provisions of the Hindu Marriage Act 1955 while answering this question. It held that a Hindu marriage cannot, under any circumstances, be dissolved unless by a decree of divorce under the grounds enumerated in the act. It also pointed out that the Act has an overriding effect on any customs or usage prevalent before the commencement of the act.

It observed:

“Overriding effect of Act save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement 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 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 (i) (ii) is that “the other party has ceased to be a Hindu by conversion to another religion”. Sections 11 and 15 of the Act is as under:-

“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 against the other party, be so 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 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.”

After looking at the legal provisions and giving a fair interpretaon, the Court concluded that:

It is obvious from the various provisions of the Act that the modern 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 provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be non est”

3. Whether the apostate husband be guilty of the offence of Section 494 of the IPC?

Section 494 Indian Penal Code is as under:-

“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.”

It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression ‘void’ for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the section. On the other hand the same expression has a different purpose under Section 494 IPC and has to be given meaningful interpretation. The expression ‘void’ under Section 494 IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 IPC. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC.

Any act which is in violation of mandatory provisions of law is per se void. The real reason for the void-ness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal.”

The learned Judges further reiterated the Robasa Khanum vs. Khodabad Irani’s case[8] and held:

“……the conduct of a spouse who converts to Islam has to be judged 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-Muslim spouse is obviously not a dispute “where the parties are Muslims” and, therefore, the rule of decision in such a case was or is not required to be the “Muslim Personal Law”. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience.”

The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Finally, the Court remarked:

The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other.”

Conclusion

The Supreme Court held that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC. No costs were awarded.

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