A CASE ANALYSIS OF THE OFFENCE OF BIGAMY IN THE LIGHT OF SARLA MUDGAL & ORS. VS UNION OF INDIA (1955)

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9 months ago

Author: Anubha Kumar, a student at Symbiosis Law School, Hyderabad

Abstract

The paper discusses and provides an analysis of the case of Sarla Mudgal & Ors. vs Union of India (1995). It highlights the main viewpoint of the offence and correlates the issues and role of the topic with the recent and landmark cases that had rendered judgments under the role of personal law. It also further inculcates the role of the implementation of a Uniform Civil Code and its debate under the ambit of personal law. It also explains the conflict between personal laws and constitutional law. Various case laws, judgments, and sections have been discussed to expand the knowledge and relevance of the topic. A famous exceptional case has also been highlighted which had rendered an opposite judgment of that of the Sarla Mudgal Case. The research paper aims to prepare a study of the revolvement around the topic by providing a key study on the reasoning behind the judgments rendered under Hindu Laws with legal provisions and procedures of Bigamy. The conflicting opinions and their showcase have been discussed with analysis and proper evaluation has been done in the research paper.

Personal law in India

Various laws are enacted in relation to the notion of diversity in India. Personal law governs different laws including matters of marriage, divorce adoption, etc. Different personal laws are subject to different practices and their faith and they can be codified or uncodified. Is an offence in one personal law also an offence in the other? Such a question was dealt with in the present case of Sarla Mudgal. The court had noted its applicability in the aspect of religion and matters of faith and belief as it needed to be dealt with religious sensitivity taking consideration of the intricacies under the ambit of personal law. Bigamy is having a second marriage or a marriage taking place during the existing marriage. A question of bigamy was raised by the accused as it is not subject to an offence under the Islamic faith however Hindu law only enforces monogamy in consideration of the sacredness of marriage. A Hindu man cannot claim the defence of freedom of religion if he has converted to another religion without dissolving his present marriage.

Facts of the case

Sarla Mudgal, the Petioner was the president of Kalyani, an NGO that worked for women’s social welfare and rights. Two petitions were filed in the High Court on the applicability of the offence of bigamy under personal law and its significance.

The first petition was when one Meena Mathur and Jitendra Mathur were married under the Hindu Marriage Act, of 1955. The husband had married a Muslim woman by converting their religion to Islam and thereby having a second marriage. The first wife held the husband liable for the offence of bigamy under Section 494 of the Indian Penal Code,1860. The husband contended that it did not constitute bigamy since he had converted to Islam and Section 494 of IPC is not applicable under Muslim Personal Law.

The second petition was filed by the Muslim women who had accused Jitendra Mathur of being influenced by his first wife and refusing to maintain his second marriage as he had converted back into a Hindu.

Issues held

What will be the applicability of a second marriage by a Hindu after converting to Islam?
What is the validity of the first marriage as a Hindu?
Will the Husband be liable under section 494 of IPC?

Provisions under the law

Bigamy as an offence in India

Section 17 of the Hindu Marriage Act of 1955 lays the punishment for bigamy as an offence under sections 494 and 495 of the Indian Penal Code,1860.

Section 494 and 495 of IPC provides for a punishment that extends to imprisonment of up to 7 years and shall also be liable to a fine when there is for a second marriage during the lifetime of either spouse and a concealment of the former marriage with whom the subsequent marriage is solemnized, respectively.

Muslim personal law

The aforementioned sections are not applicable under Muslim personal law, thereby giving it an exception in the Penal Code. Section 2 of the Muslim Personal Law (Shariat)Application Act,1937 states the application of Muslim law to Muslims and their enforcement of the same.

Under Muslim law, polygamy is not an offence, and marrying up to 4 wives is limited. It protects bigamous marriages among Muslim men since the sanction of the Personal Law Act.

Conversion under the Hindu Marriage Act,1955

Conversion is held as a ground for divorce mentioned in section 13 (ii) of the Hindu Marriage Act of 1955 which holds that any Hindu who converts to another religion, his marriage solemnized under the Hindu Marriage Act can be dissolved by divorce.

Any marriage solemnized between a Hindu and a non-Hindu shall be considered null and void as it does not fulfill the essentials laid down in section 5 of the Hindu Marriage Act submitting that “a marriage may be solemnized between any two Hindus” shall fulfill the five conditions to be solemnized under the Hindu Marriage Act.

Judgment and Analysis

The Supreme Court held that marriage is not restricted to being a religious bond but rather an institution that binds two individuals together in the interests of the citizen and can be laid down as the trust and basis of the family in a societal institution and shall not be misused or taken advantage in the light of plundering under the ambit of personal law.

The Court further submitted that when the institution of marriage has been solemnized under one particular marriage act shall not be subject to dissolution under another personal law based on the conversion of one’s religion. It stated that when a Hindu man had solemnized under the Hindu Marriage Act, his dissolution of such marriage shall only be subject under the Hindu Marriage Act of 1955 and not under any distinct personal law.

Section 13 of the Hindu Marriage Act,1955 states the grounds for divorce and sub-clause (ii) conversion as a ground for the dissolution of the marriage by enforcing monogamy. The Court in furtherance of the aforementioned section held that a Hindu man cannot marry after following and converting to Islam in the lifetime of his first marriage. It is against the system of fairness, impartiality, and morality to follow the offence of Bigamy. It therefore held the second marriage with a Muslim woman as invalid and void.

The marriage that takes place during the lifetime of either spouse is considered to be void when all the essentials of section 494 of the Indian Penal Code,1860 are fulfilled during a conversion.

Therefore, Section 494 IPC, 1860 would deem the husband guilty of the offence. Given that his wife married him following the Act and continues to be Hindu, thereby resulting in the apostate’s second marriage being unlawful.

There was also a suggestion of an implementation of the Uniform Civil Code which mandates a uniform law being secured to all the citizens of India under Article 44 of the Constitution of India. This suggestion was put forward in light of multiple conversions taking place at that particular time and to stop its misuse or advantage under the ambit of personal laws. This suggestion had a dissenting judgment on the following grounds –

The enforcement of UCC will lead to more harm than good due to the conflict of interests of citizens and their sensitivity to their laws.
It may lead to a disintegration of harmony between the people of different religions. Religion is a matter that shall be dealt with sensitivity and in accordance without causing amendments in their customs and traditions.
It also recommended an act to stop and check the exploitation of conversion known as the ‘Conversion of Religion Act’.

Similar Case laws

In Gul Mohammed v. Emperor, the defendants deceitfully took a Hindu spouse and married her following her coerced conversion to Islam. It was further held by the court that a Hindu woman who converts to a different religion does not inherently terminate her previous marriage.

In another case of Robasa Khanum vs Khodabad Bomanji, it held that a second marriage was solemnized by the accused, a Hindu spouse to enjoy polygamy under Muslim law who had converted to Islam. It held that such acts were against justice and good conscience and also discouraged the use of particular practices under personal law.

In Nandi V. Zainab, the court held a Hindu wife for the offence of Bigamy as it had fulfilled all the ingredients of Section 494 of IPC,1860 and she had married again in the lifetime of her subsequent marriage. Therefore, she was held liable for committing Bigamy even after converting to a Muslim.

An exception to the judgment

Dharmendra Deol, a famous actor married Hema Malini in the year 1980 while he was still married to his first wife. He had converted to Islam for the second marriage and held the defence of polygamy being allowed in Islam. However, the court dismissed the suit against bigamy. Section 198(c) of the Criminal Procedure Code,1973 states that any person who is aggrieved by an offence under section 494 or 495 of the Indian Penal Code,1860, then a complaint may be made by the Wife or the wife’s relatives can be her mother, sister, father or aunt or anyone related to blood. In the case mentioned, there was an absence of a complaint by the wife or anyone on her behalf, and therefore the suit was dismissed.

The conflict between personal law and constitutional law- which prevails and in what instance?

Article 25 of the constitution talks about the freedom to practice and propagate religion that extends to every religion in India. Such fundamental rights have been guaranteed and cannot be infringed. It also includes freedom to practice any religion of their choice and conversion of their own choice and interest. However, in the present case, such a right guaranteed has led to misuse due to diverse religions and its relation with the personal law. The court had observed that there is a lack of connection between the religion and the personal law. The practice of bigamy being used illicitly for personal gains is against public morals in the constitution. The question of which law prevails over the other also depends on the facts and circumstances of the case. When there is an abuse on the part of the accused and a claim of defence under personal law arises, such defence shall be arbitrary and cannot be pleaded up against the court. The moral rights and good conscience of the system are what keep a smooth functioning of the diversity in a nation. No law is above man but a man cannot be said to exercise his rights under the shadow of religious faith and practices as a matter of an escape from the law.

Conclusion

Bigamy under Hindu law is considered to be an offence causing harm to the institution of marriage. A marriage is not limited to a religious path, but it is also a means to provide social, physical, and emotional needs of the two individuals in the bond made. It is of a sacred nature under Hindu law and does not correlate with a contract or a mere societal being. An offence against the marriage puts a mark on the legal as well as social right. The morality of a man is also put into question. It shall be noted that this landmark judgment had led to seriousness like personal laws and their misuse. The judgment had also been used in cases of conversion and a conflict between two personal laws. This is one of the few cases which led to a new question of a uniform civil code in India. Creating a ruckus between various laws of religion and constitutional rights creates a whirlwind of the litigious cycle against the institution of religious practices. It is further relied that religion cannot be used as a means of a component to take undue advantage of the other and such unfavorable practices shall not be encouraged within the ambit of personal laws.

Sources:

Bigamy and Religion. (2009). Economic and Political Weekly, 44(35), 6–7. http://www.jstor.org/stable/25663483
Kumar, V. (2000). TOWARDS A UNIFORM CIVIL CODE: JUDICIAL VICISSITUDES [from Sarla Mudgal (1995) to Lily Thomas (2000)]. Journal of the Indian Law Institute, 42(2/4), 314–334. http://www.jstor.org/stable/43953817