CASE BRIEF
Case Type: Writ Petition (Civil)
Case No: 798 of 1995
Appellants: Lily Thomas
Respondents: Union of India
Decided On: 05-05-2000
Statues Referred: Constitution of India.
Case Referred:
- Bhaurao Shankar Lokhande vs. State of Maharashtra
- Kanwal Ram vs. H.P. Administration
Bench: R.P.Sethi, S.S.Ahmad
Facts:
Sushmita Ghosh filed a writ petition in the Supreme Court claiming that she was the wife of G.C. Ghosh (Mohd. Karim Ghazi) and that they were married to each other on 10th May, 1984 in accordance with Hindu rites and ceremony.
On 1st April, 1992 the husband of the petitioner told her that he had taken up Islam in order to remarry and that he had decided to marry Miss Vanita Gupta a resident of Delhi. So the petitioner should agree to divorce him for own interest.
The petitioner contended that by the act of the husband she had been discriminated on the ground of religion and sex and therefore her right envisaged in Article 15(1) of the Constitution was infringed. It was asserted that the true intent behind the husband’s action to adopt Islam was to have second wife which is strictly forbidden in Hindu Law.
Due to such actions of the husband, the petitioner is undergoing huge mental trauma and at the age of 34 is unemployed. Furthermore it was contended by the petitioner that it had been common among Hindu male who could not get divorce and desired to have a second wife, used to convert to Islam to fulfil its desire. But after remarriage, again re-converted to retain their title in properties.
Issue:
To issue writ to declare polygamy marriage by Hindu and non-Hindus after conversion to Islam as illegal and void.
To issue direction to amend the Hindu Marriage Act in order to curtail the practice of polygamy.
To declare the conversion from Hindu to Islam for the purpose of second marriage as void.
Obiter Dicta:
A marriage solemnized between two Hindus would be void U/S 17 of Hindu Marriage Act, only if two condition are satisfied: a) the marriage is solemnized after the commencement of the Act, b) at the date of such marriage, either party had a spouse living at the date of such marriage.
Where spouse contracted a second marriage at the time when the first marriage subsist then it amounts to the offence of bigamy. And the person shall be guilty of bigamy U/S 494 IPC and such marriage shall be void. But it is essential to prove that the second marriage is was contracted legally following the due ceremony as may be required by law or by custom prevalent upon the parties.
“If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited.”
Ratio Decedendi:
The birth certificate issued by the Govt. of Union Territory of Delhi with respect a son born to Shri G.C. Ghosh from the second wife on 27th May, 1993. And the name of the father was recorded as G.C. Ghosh and religion as Hindu. The mother’s name is recorded as Vanita Ghosh and religion as Hindu.
Even in the application of visa for Bangladesh the name of the applicant was recorded as G.C. Ghosh professing Hindu religion. And the same was also depicted in the electoral roll. Hence it appeared that the said conversion was a feign to give effect to second marriage.
Section 5 of the Hindu Marriage Act pronounces that one the essential requisite of a valid Hindu marriage is that the either party should not have a spouse living on the date of marriage. And that U/S 11 such marriage shall be void in nature. Also U/S 17 of the Act, punishment for bigamy is provided and stated that Section 494 and 495 of Indian Penal Code shall be applicable.
The offence of bigamy alleged by the wife shall be investigated and tried in accordance with the provision of Hindu Marriage Act. Bigamous marriage is prohibited U/S 17 of the Act and is regarded as an offence triable U/S 17 of the Act read with Section 494 of IPC. But the Court cannot sue moto take cognizance of the offence and it the complainant who needs to file a complaint according to the procedure prescribed in Section 198 of CrPC.
Conversion to another religion itself does not automatically terminate the marriage but only provides a ground for divorce U/S 13 of the Hindu Marriage Act. Under Section 10 of the Act conversion to another can be a ground for a decree for judicial separation and the consequences of it is that the first marriage remains valid and the second marriage is void and despite conversion the person shall be liable for prosecution U/S 494 IPC.
The Court held that a mere conversion does not dissolve a marriage until a decree of divorce is being obtained from the competent Court and until the decree is passed the marriage remains valid and subsist.
Judgment:
The Apex Court’s bench comprising of R.P.Sethi, S.S.Ahmad held the following:
If a Hindu spouse converts its religion to convene a second marriage with no intention to genuinely profess such religion but to only achieve ulterior motive then the second marriage is void. It is violative of Article 21 of the Constitution.
First is not dissolved merely upon the conversion of the either party. Especially when the first marriage subsist such an action would amount to offence of bigamy U/S 17 of Hindu Marriage Act. It shall invite the provision of Section 494 and 495 of IPC.
In India the marriage is convened in accordance with the provision of personal laws applicable upon the parties. And therefore it is not feasible to uniformly codify them and apply Uniform Civil Code. But definitely the wrong acts being conducted under the personal law shall always be subject to the appropriate penal measure as the Court directs or as prescribed by law.
Conclusion;
This landmark judgement was regarded as important on the account of evil conduct of Hindu male to convert to Islam for the purpose of second marriage. Bigamy is an offence under Hindu law. In Hindu law marriage is regarded as sacred and therefore the concept of remarrying when the first marriage is valid and subsisting is inadmissible. However the recommendation of 18th Law Commission of India in August 2009 is still due. A concrete solution to such mischievous attempt to conversion for worldly motive is a sine quo non for shunning atrocities upon women and further litigation.