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Case Brief: Smt. Sarla Mudgal V. Union of India

Citation:  1995 AIR 1531, 1995 SCC (3) 635
Bench: Kuldip Singh, J.; R. M. Sahai, J.

Facts

The Supreme Court clubbed the four petitions which were received under Article 32 of the Constitution of India and gave a collective decision on similar issue of law. The first petition is by a registered society, Kalyani who filed this petition along with Meena Mathur who was married to Jitender Mathur. They got married in 1978 and have three children. While the husband in 1988 solemnized second marriage with Fathima after converting to Islam. Further, Fatima filed a petition whereby she says that Jintender has converted back to Hinduism in April, 1988 and thus, she is not maintained by her husband. In the third petition, Geeta Rani married Pradeep in 1988 according to Hindu rites and rituals. She was further maltreated and beaten by her husband so much that at one occasion her jaw was broken by him. Geeta came to know that Pradeep had run away with Deepa and converted to Islam in 1991. She further stated that this was for the purpose of having a second marriage by her husband.

Further, the fourth petition is by Sushmita Ghosh was married G. C. Ghosh in May, 1984 according to Hindu rites and rituals. In 1992, the husband informed her that he does not want to continue in marriage and thus, they both should go for divorce by mutual divorce. Sushmita was shocked to hear the question of divorce and wanted to live with him. Further, the husband informed her that he has converted to Islam and is going to marry Vinita. He also showed his certificated of conversion by Qazi dated June, 1992.

Thus, all the above petitions are revolving around the similar question regarding the personal marriage and divorce laws since in Muslim personal laws; they are allowed to have more than one wife while in Hindu law it is prohibited.

Issues

  1. Whether a Hindu husband who is married under Hindu can solemnise second marriage after embracing Islam?
  2. Whether the husband will be guilty under Section 494 of the Indian Penal Code, 1860?
  3. Whether the second marriage will be a valid marriage even if the first marriage is not dissolved?

Holding

The court held that the first marriage does not dissolve because of the conversion of husband to another religion. The first marriage still exists and therefore, it will violate the provision of Section 494 of IPC which talks about the offence of marrying again during the life of the spouse.

Rationale

A. Uniform Civil Code

One of the major things that the court addressed was the lack of uniform civil code in the country along the lines of Article 44 of the Indian Constitution. The court cited the case of Mohd. Ahmed Khan V. Shah Bano Begum, it was said that a uniform civil code will help in national integration and remove the disparities in personal laws that prevails. Thus, a common code will aid in furthering justice as well. The court, thus requested the government to look again at the Directive Principle to secure such a uniform code. It further said that it will be furthering the freedoms given from Article 25 to 28 which ensure freedom of religion. This uniform code is necessary as said by Justice Sahai whereby many spouses try to escape penalty in the garb of conversion of religion which is permitted in one while prohibited in another. The court also cited the case of Ms. Jordan Diengdeh V. S. S. Chopra where it said there is urgency for the provision of Article 44 to be brought to life. The court said that it will ensure “national unity and solidarity”. For this purpose, government can appoint a committee and work in consultation with the Minorities Commission.

B. Hindu Marriage Act and Section 494 of IPC

The court has next referred to the doctrine of indissolubility of marriage. The important thing is that the conversion to a particular religion does not automatically mean that it has lead to the dissolution of Hindu marriage. It becomes a ground for dissolution or divorce but does not mean that the dissolution or divorce has happened on conversion of previous marriage. For that purpose, the court has cited several High Court cases one of which is Nandi V. Zainab whereby, the wife was charged with offence under Section 494 for marrying when her previous marriage existed, even though she converted to Mussalman. That was because the previous marriage still existed.

Further, the court said that a marriage under a particular personal law cannot be dissolved according to another personal law. It means that when a person is married under Hindu rites, then dissolution of marriage will take place according Hindu practices and not on another personal law basis. Thus, a change to another religion does not mean the previous marriage stopped existing. For this purpose, the court cited the case of Robasa Khanum V. Khodadad Bomanji Irani, it said that the position is such that the British India is governed by multiple personal laws and suppose a particular Mahomedan law cannot be said to be applicable to a non-Mahomedan. The court also said that according to Hindu Marriage Act, 1955, it has no application on Muslims, Christains and Parsees. The marriage can be dissolved only through the grounds given under Section 13. Furthermore, Section 15 provides when the divorced person can marry again and in no other condition. So, in accordance to all the provisions above, the court said that the first marriage remains valid and existing even when they embrace another religion because Hindu Marriage Act enforces on monogamy. The second marriage would become illegal because the husband married when his first wife was still living. In that case, it would invite the provision of Section 494 which says the same and prescribes a punishment up to seven years and fine.
The court also talked about the expression void under Section 11 of the Hindu Marriage Act. It said that the expression “void” is used in wider sense in Section 494. Under the Hindu Marriage Act, the dissolution can only happen according to the specified grounds under the Act, if that does not happen then the marriage still exist. Thus, the second marriage will violate the void part of Section 494 by violating the “mandatory provision” of the Act, 1955. For that, the court again cited the Robasa case and it was held that it violated “justice, equity and good conscience” when a Hindu husband contracts second marriage by embracing Islam which would make it void and thus, Section 494 will be applicable. Therefore, another point is that it would be against the natural justice principle which gives right to husband to convert but not before dissolving the marriage on the grounds given in the Act. The second marriage with previous marriage still persisting will violate the rule of natural justice.

AUTHOR:

Arushi Anand
College: Vivekananda Institute of Professional Studies