Author: Shravani Kale, a student of ILS Law College
Introduction
The family is recognised as the fundamental unit of civilisation across all societies. One such institution that serves as the foundation for the family unit is marriage. The partners, after marriage, enjoy certain marital rights and have to perform certain marital duties and obligations. In essence, the institution of marriage gives society and civilisation as a whole its existence. For a large part of Indian history, this institution remained uncodified with no codified personal laws in place.
The Hindu Marriage Act, established in 1955 after India’s independence, formally defined the institution of marriage for Hindus and firmly supports monogamous relationships. Monogamy restricts a person from taking more than one spouse simultaneously during their partner’s lifetime. Bigamy, the practice of taking more than one partner, was essentially banned in every religion of India except for the religion of Islam, as their personal laws allow a Muslim man to be married to 4 women simultaneously.
Background
However, there was a popular trend witnessed in the 70s in India whereby, whenever Hindu men wanted to marry more than once and their first marriage was valid – the first wife was alive and not divorced, these men used to convert to Islam and marry other woman under the false pretext that the second marriage done after conversion would dissolve the first marriage as Hindu personal laws would not be applicable to them anymore. The Sarla Mudgal case was a landmark judgment which set straight these apprehensions and upheld natural justice for women who fell victim to such injustice by their own husbands. The Judiciary, through this case, also prohibited the blatant misuse of conversion and others’ personal laws, which creates a mockery of the institution of marriage.
Facts of the case
The conversion trend witnessed in the 70s in India, where Hindu men converted to Islam and got remarried to other women, while still having a Hindu wife alive and not divorced, caused the first wife to suffer a number of injustices. Many such women filed a writ petition under Article 32 to seek justice in the Supreme Court, and the Supreme Court clubbed these cases and heard them in the Sarla Mudgal Case. On May 10, 1995, a two-judge panel consisting of Justices Kuldip Singh and RM Sahai rendered the ruling for the Supreme Court of India. Among the petitioners was Sarla Mudgal, President of Kalyani, a recognised non-governmental organisation that was dedicated to helping distressed women.
The second is Meena Mathur, a Hindu woman who married Jitendra Mathur and had two sons and a daughter. Meena Mathur learned about Jitendra Mathur’s conversion to Islam and his second marriage to Sunita Narula, also known as Fatim, in early 1988. Meena contested that the only purpose of Jitendra’s converting to Islam was to marry Sunita in order to evade Section 494 of the IPC, which provides bigamy as a punishable offence. Jitendra, on the other hand, raised the point that his conversion to Islam now allowed him to have four wives, as after conversion, he would be governed by the Muslim Personal Laws. Hence, this meant that even if the marriage with Meena was not dissolved by his mere conversion, he still could have four wives as per the Islamic law and should not be held guilty of bigamy. Moreover, Sunita also filed a writ petition. She converted to Islam and got married to Jitendra, who was already married to Meena. Then, under Meena’s persuasion, Jitendra converted back to Hinduism and consented to maintain his first Hindu wife, Meena, and their kids. The main issue that arose was that she was still a Muslim, and Muslim wives did not have the protection of maintenance under the Muslim Personal Laws.
Another petitioner who has been harmed by a similar circumstance is Sushmita Ghosh. On May 10, 1984, she married G.C. Ghosh in a Hindu ceremony. However, on April 20, 1992, her husband asked to get a divorce by mutual consent and expressed his unwillingness to cohabitate with her, while she had no desire to break off their marital ties. The spouse eventually disclosed that he had become an Islamic convert and intended to wed Vinita Gupta. The petitioner sought a court order in her writ case to prevent her spouse from marrying Vinita Gupta.
Arguments of the petitioners
A Hindu marriage is only considered lawful if both parties are unmarried at the time of the marriage, which means neither has a spouse who is currently living, as stated in Section 5 of the Hindu Marriage Act. The married Hindus could remarry only in the case when their spouse had divorced them or had been deceased.
Section 17 of this Act states that if someone engages in bigamy, ie, marries more than one person while the first spouse is alive and no decree of divorce has been granted, the person is held liable for punishment under Section 494 of the IPC, 1860.
According to Section 494 of the IPC, anyone who, while having a living spouse, enters into a marriage with another person commits bigamy. Because it occurs within the lifespan of an existing spouse, this second marriage is regarded as null and invalid. This offence carries a potential fine in addition to a maximum sentence of seven years in jail. Since bigamy is a serious offence under Section 494 of the Indian Penal Code, the petitioners said that the respondents had converted to Islam to get around the law and marry other women. There is a contention that there is no equality, as people of one religion can marry more than the other religions.
Arguments of the respondents
Since the respondent has converted to Islam, he should fall under the jurisdiction of the Muslim Personal Laws, and because of his conversion, the Hindu laws should not apply to him anymore. Hence, Section 494 of the IPC should not be applied to them as they are no longer Hindus by religion and are not to be subject to punishment under it.
Section 2 of the Muslim Personal Law Shariat Application Act, 1937, allows bigamy for Muslim men and permits them to have 4 wives.
The respondents contended that, despite having a first wife who remained Hindu, their conversion to Islam allowed them to take up to four wives, as permitted by Islamic law. They claimed that neither the Indian Penal Code nor the Hindu Marriage Act of 1955 applied to them after their conversion.
Judgment of the court
The Supreme Court, having examined all the facts and circumstances of these cases, gave the judgment in favour of the petitioner. The Supreme Court simply ruled that marriage celebrated and solemnised under one personal law cannot be dissolved by application of any other personal law whereby a spouse has converted and the other refuses to do so. A Hindu man who has entered into marriage with a Hindu woman would be subject to the provisions of the Hindu Marriage Act. The man’s marriage, carried out according to Hindu rituals, will not necessarily end if he converts to Islam. The only way his marriage gets dissolved is either by the death of his wife or by a decree of divorce obtained as per Section 13 of the Hindu Marriage Act. Until either death or the divorce of their spouse takes place, neither party can remarry. This basically indicates that a Hindu marriage can only be dissolved by death or divorce in accordance with Section 13, regardless of conversion.
In a case where, after conversion, any remarriage takes place without the dissolution of the first marriage, the second marriage will be null and void in the eyes of the law, and the person is liable for bigamy. As per Section 11 of this Act, a marriage is declared void if it violates either (i),(iv) or (v) of Section 5, which strictly mandates monogamy in marriage. If a Hindu man, who has a valid marriage with a living Hindu woman that has not been dissolved, converts to Islam and marries another woman, his second marriage is unlawful. On the grounds of bigamy, the man faces a penalty under Section 494 of the IPC. Hence, a person is thus prohibited from using conversion as a veil to mask his liability for his first marriage. As his marriage derived its validity from the Hindu Marriage Act, its dissolution is also subject to the same Act. In a marriage, both parties have shared responsibilities, duties and obligations towards each other. If, at all, by mere conversion to Islam, the dissolution of a Hindu marriage was permitted, it would be violative of the rights of the first wife, who continued to be a Hindu and had no say in the dissolution of her marriage. It would violate the principles of natural justice, fairness, and equity. While a spouse converting to another religion can serve as a valid reason for divorce under Section 13 of the Hindu Marriage Act, it does not automatically render the previously solemnised marriage invalid. The court also highlighted the necessity of a Uniform Civil Code, as it would put an end to Indian citizens trespassing on the personal laws of each other for outright abuse of its provisions as they see fit. The Directive Principles of State Policy mentions Article 44, which suggests the establishment of a Uniform Civil Code, where there is uniformity in personal laws of all citizens, irrespective of their religious identity.
However, according to Justice RM Sahai, the application of UCC was certainly not a one-size-fits-all solution. According to him, UCC is indeed an important and relevant provision of the DSPS in the Constitution, but implementing it at that time would have led to more harm than good. He opined that uniform personal law can only be laid down in a society when there exists harmony among all religions and none of the religions feels threatened. The judges also recommended that the government establish a committee to enact a Conversion of Religion Act in order to control the abuse of the provision of conversion and penalise them.
Conclusion
This case has been a landmark judgement for not only upholding the rights of women but also making sure that the misuse of the personal laws is duly punished. Even though Justice Sahai felt that society was not ready then for the implementation of UCC, in my opinion, the implementation of UCC is a need for this hour today. Uniformity in personal laws would make sure there are no different laws applied to a set of citizens of the same country just because of the difference in religion, and would bring homogeneity in the application of laws.
FAQs
What was the Sarla Mudgal case about?
The conversion trend witnessed in the 70s in India, where Hindu men converted to Islam and got remarried to other women, while still having a Hindu wife alive and not divorced, caused the first wife to suffer a number of injustices. Many such women filed a writ petition under Article 32 to seek justice in the Supreme Court, and the Supreme Court clubbed these cases and heard them in the Sarla Mudgal Case
Is Bigamy punishable in India for Hindus?
Section 17 of the Hindu Marriage Act states that if someone engages in bigamy, ie, marries more than one person while the first spouse is alive and no decree of divorce has been granted, the person is held liable for punishment under Section 494 of the IPC, 1860.
What is the status of the second marriage of the Hindu man after conversion to Islam?
As per Section 11 of the Hindu Marriage Act, a marriage is declared void if it violates either (i),(iv) or (v) of Section 5, which strictly mandates monogamy in marriage. If a Hindu man, who has a valid marriage with a living Hindu woman that has not been dissolved, converts to Islam and marries another woman, his second marriage is unlawful.
What was the opinion of Justice Sahai on the application of UCC?
According to Justice RM Sahai, the application of UCC was certainly not a one-size-fits-all solution. According to him, UCC is indeed an important and relevant provision of the DSPS in the Constitution, but implementing it at that time would have led to more harm than good. He opined that uniform personal law can only be laid down in a society when there exists harmony among all religions and none of the religions feels threatened. The judges also recommended that the government establish a committee to enact a Conversion of Religion Act in order to control the abuse of the provision of conversion and penalise them.
What was the judgment of the Supreme Court?
The Supreme Court simply ruled that marriage celebrated and solemnised under one personal law cannot be dissolved by application of any other personal law whereby a spouse has converted and the other refuses to do so. A Hindu man who has entered into marriage with a Hindu woman would be subject to the provisions of the Hindu Marriage Act. The man’s marriage, carried out according to Hindu rituals, will not necessarily end if he converts to Islam. The only way his marriage gets dissolved is either by the death of his wife or by a decree of divorce obtained as per Section 13 of the Hindu Marriage Act.
References
Sarla Mudgal vs. Union of India (1995)
