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INDIA PIL Supreme Court Judgements Sarla Mudgal Islam bigamy

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WARNING : THIS JUDGEMENT HAS BEEN OBTAINED OVER THE INTERNET, INDIA PIL TAKES NO RESPONSIBILITY FOR THE ACCURACY OF THIS JUDGEMENT OR ANY COPYRIGHT ISSUES ETC.

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AIR 1995 SUPREME COURT 1531

KULDIP SINGH AND R.M. SAHAI, JJ.*

Writ Petn. (Civil) No. 1079 of 1989, With W.P.(C) Nos. 347 of 1990 and 509 and 424 of 1992,
Dt.10.5.1995.
Smt. Sarla Mudgal, President, Kalyani and others, Petitioners v. Union of India and others, Respondents.

(A) Penal Code (45 of 1860), S.494 - Bigamy - Expression "void" in S.494 - Scope - Second Marriage of
Hindu husband after his conversion to Islam- Is void marriage in terms of S.494 - It is violative of justice,
equity and good conscience - Said marriage would also be in violation of rules of natural justice.
Constitution of India, Art.14.
The expression "void" under Section 494, 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 A
Hindu marriage solemnised under the Hindu marriage Act can only be dissolved on any of the grounds
specified under the said 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 of Hindu husband after his conversion to Islam would
therefore be in violation of the Act and as such void in terms of Section 494, I.P.C. Any Act which is in
violation of mandatory provisions of law is per se void. And the apostate husband would be guilty of
offence under S.494, as all the four ingredients of S.494 are satisfied in the Case.
AIR 1947 Bom. 272 Approved.
(1965) A11 ER 812, Disting. (Paras 14, 17, 20, 21, 26, 27, 39, 48)
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, I.P.C. (Para 23)
The second marriage of an apostate-husband would also be in violation of the rules 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 against without getting his earlier 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.
(Para 24)

(B) Constitution of India, Art.44 - Implementation of - Securing "uniform civil code" for citizens of India -
Supreme Court requested Govt. of India through Prime Minister to have fresh look at Art.44.

PER KULDIP SINGH, J.

The respective personal laws permitted by the British to govern the matters relating to inheritance,
marriages etc, only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not
religion - being the authority under which personal law was permitted to operate and is
continuing to operate, the same can be superseded / supplemented by introducing a uniform civil code for
all the citizens in the territory of India. The successive Governments till date have been wholly remiss in
their duty of implementing the constitutional mandate under Article 44. Therefore, Supreme Court
requested the Government of India, through the Prime Minister of the country to have a fresh look at
Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code
throughout the territory of India." (Paras 35, 36, 37)

PER R.M. SAHAI, J.

Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest
deviation shakes the social fibre. 'But religious practices, violative of human rights and dignity and
sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression.'
Therefore, a unified code is imperative both for protection of the oppressed and promotion of national
unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop
religious and cultural amity. The Government would be well advised to entrust the responsibility to the
Law Commission which may in consultation with Minorities Commission examine the matter and bring
about the comprehensive legislation in keeping with modern day concept of human rights for women. The
government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act,
immediately, to check the abuse of religion by any person. The law may provide that every citizen who
changes his religion cannot marry another wife unless he divorces his first wife. The provisions should be
made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a
Budh. Provision may be made for maintenance and succession etc. also to avoid clash of interest after
death.
This would go a long way to solve the problem and pave the way for a unified civil code. (Paras 45, 46, 47)

Cases Referred : Chronological Paras

AIR 1985 SC 935 31
AIR 1985 SC 945 : 1985 Cri LJ 875 30, 31
(1965) 1 All ER 812 : (1965) 2 WLR 671 (Disting) Attorney General of Ceylon v. Reid 28, 29
AIR 1947 Bombay 272 : 48 Bom LR 864 (Approved) 12, 23
AIR 1947 Nagpur 121: 48 Cri LJ 43 9
AIR 1946 Madras 446 13
(1945) 49 Cal WN 745 12
AIR 1941 Cal 582 13
AIR 1935 Bombay 5 13
AIR 1932 PC 158 : 59 Ind App 236 12
AIR 1920 Lahore 379 : ILR (1920) 1 Lahore 440 : 22 Cri LJ 1 10
AIR 1919 Lahore 389 : 20 Cri LJ 3 10
(1917) 1 KB 634 : 115 LT 882 : 86 LJ KB 210 Rex v. Hammer Smith 13
AIR 1914 Madras 192 : 22 Ind Cas 697 9
(1891) ILR 18 Cal 264 9,13
(1887) 14 Ind App 89 : ILR 11 Bom 551 12

* The judgments are printed in the order in which they are given in the Certified copy. Ed.

Judgement

KULDIP SINGH, J.:- "The State shall endeavour to secure for the citizens a uniform civil code through-
out the territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which
seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar
Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the
Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to
push it through." It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve
Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and
gone - have so far failed to make any effort towards "unified personal law for all Indians." The reasons are
too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu
Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956
and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based
on different schools of thought and scriptural laws into one unified code. When more that 80% of the
citizens have already been brought under the codified personal law there is no justification whatsoever to
keep in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.

2. The questions for our consideration are whether a Hindu husband, married under Hindu law, by
embracing Islam, can solemnise second marriage? Whether such a marriage without having the first
marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu?
Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)?

3. These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ
Petition 1979/89. 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 to Jitender Mathur on February 2, 1978. Three children (two sons and a daughter) were born
out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised
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, I.P.C.
Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his
first wife continues to be Hindu.

4. Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends
that she along with Jitender Mathur was earlier married to Meena Mathur embraced Islam and therefore 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.

5. Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu
rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one
occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner learnt
that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that
the conversion to Islam was only for the purpose of facilitating the second marriage.

6. Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was
married to G.C.Ghosh according to Hindu rites on May 10, 1984. On April 20,1992, the husband told her
that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The
petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and
as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced
Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 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.

7. Marriage is the very foundation of the civilised society. The relation once formed, the law steps in and
binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the
maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn
of the society without which no civilisation can exit.

8. Till the time we achieve the goal - uniform civil code for all the citizens of India - there is an open
inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is
subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as
many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the
Hindu law and to escape from penal consequences.

9. The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that
conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one
or both the Hindu spouses did not dissolve the marriage. It would be useful to have a look at some of the
old cases on the subject. In Re Ram Kumari (1891) ILR 18 Calcutta 266, where a Hindu wife became
convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a
Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under
Section 494, of the I.P.C. It was held that there was no authority under Hindu Law for the proposition that
an appostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned,
such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari (ILR
18 Cal 264) in Budansa v Fatima (1914) 22 Ind Cas 697: (AIR 1914 Madras 192). In Gul Mohammed v.
Emperor, AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan
who married her according to Muslim law after converting her to Islam. It was held that the conversion of
the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the
life-time of her former husband enter into a valid contract of marriage. Accordingly the accused was
convicted for adultery under Section 497 of the I.P.C.

10. In Nandi alias Zainab v. Crown ILR (1920) 1 Lahore 440: (AIR 1920 Lahore 379) Nandi, the wife of
the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman
named Rukan Din. She was charged with an offence under Section 494, of the Indian Penal Code. It was
held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be
dissolved by a decree of Court. Emperor v. Mt. Ruri, AIR 1919 Lahore 389, was a case of Christian wife.
The Christian wife renounced Christianity and embraced Islam and then married a Mahomedan. It was
held that according to the Christian marriage law, which was the law applicable to the case, the first
marriage was not dissolved and therefore the subsequent marriage was bigamous.

11. In India there has never been a matrimonial law of general application. Apart from statute law a
marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute
and according to personal law could not be dissolved according to another personal law, simply because
one of the parties had changed his or her religion.

12. In Sayeda Khatoon alias A. M. Obadiah v. M. Obadiah (1945) 19 Cal 12 CWN 745, Lodge J. speaking
for the Court held as under:
"The parties were originally Jews bound by the Jewish personal law...The Plaintiff has since been
converted to Islam and may in some respects be governed by the Mahommedan Law. The Defendant is not
governed by the Mohommedan Law. If this were an Islamic country, where the Mahommedan Law was
applied to all cases where one party was a Mahommedan, it might be that Plaintiff would be entitled to the
declaration prayed for. But this is not a Mohammedan country; and the Mahommedan Law is not the Law
of the Land. Now, in my opinion, is it the Law of India, that when any person is converted to Islam the
Mohammedan Law shall be applicable to him in all his relationships? I can see no reason why the
Mohammedan Law should be no reason why the Mohammedan Law should be preferred to the Jewish Law
in a matrimonial dispute between a Mahommedan and a Jew particularly when the relationship, viz :
marriage, was created under the Jewish Law. As I stated in a previous case there is no matrimonial law of
general application in India. There is a Hindu Law for Hindus, a Mahommedan Law for Mohammedans, a
Christian Law for Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding
mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in
the present case. It may be that a marriage solemnised according to Jewish rites may be dissolved by the
proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a
marriage solemnised according to Mahommedan Law may be dissolved according to the Mohammedan
Law when one of the parties ceases to be a Mohammedan. But I can find no authority for the view that a
marriage solemnized according to one personal law can be dissolved according to another personal law
simply because one of the two parties has changed his or her religion."
Sayeda Khatoon's case (49 Cal WN 745) was followed with approval by Blagden, J. of the Bombay High
Court in Robasa Khanum v. Khodadad Bomanji Irani (1946) 48 Bom LR 864: (AIR 1947 Bom 272). In
this case the parties were married according to Zorastrian law. The wife became Muslim whereas the
husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion
to Islam. The learned Judge dismissed the suit. It would be useful to quote the following observations
from the judgment:
"We have, therefore, this position - British India as a whole, is neither governed by Hindu, Mahommedan,
Sikh, Parsi, Christian, Jewish or any other law except a law imposed by Great Britain under which Hindus,
Mahommedans, Sikhs, Parsis, and all others, enjoy equal rights and the utmost possible freedom of
religious observance, consistent in every case with the rights of other people. I have to decide this case
according to the law as it is, and there seems, in principle, no adequate ground for holding that in this case
Mahomedan Law is applicable to a non-Mahomedan. Do then the authorities compel me to hold that one
spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly
acquired personal law on a party to whom it is entirely alien and who does not want it? In the name of
justice, equity and good conscience or,in more simple language, of common sense, why should this be
possible? If there were no authority on the point I (personally) should have thought that so monstrous an
absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not
only the question of divorce that the plaintiff's contention affects. If it is correct, it follows that a Christian
husband can embrace Islam and, the next moment, three additional wives, without even the consent of the
original wife."
Against the judgment of Blagden, J. appeal was heard by a Division Bench consisting of
Sir Leonard Sone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who
spoke for the Bench posed the question that arose for determination as under: "what are the consequences
of the plaintiff's conversion to Islam?" The Bench upheld the judgment of Blagden, J. and dismissed the
appeal, Chagla, J. elaborating the legal position held as under:-
"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse
does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband
according to whose personal law such conversion does not bring about the same result. The Privy Council
in Waghela Rajsanji v. Shekh Masludin (1887 (14) Ind. App 89) expressed the opinion that if there was no
rule of Indian law which could be applied to a particular case, then it should be decided by equity and good
conscience to mean the rules of English law if found applicable to Indian society and circumstances. And
the same view was confirmed by their Lordships of privy Council in Muhammad Raza v, Abbas Bandi Bibi
(59 Ind App 236: AIR 1932 PC 158). But there is no rule of English law which can be made applicable to
a suit for divorce by a Muslim wife against her Zoroastrain husband. The English law only deals and can
only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we
must decide according to justice and right, or equity and good conscience independently of any provisions
of the English law. We must do substantial justice between the parties and in doing so hope that we have
vindicated the principles of justice and right or equity and good conscience.... It is impossible to accept the
contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in dealing this
case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground
for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of
religion. There are many other ties which make it possible for a husband and wife to live happily and
contentedly together. It would indeed be a startling proposition to lay down that although two persons may
want to continue to live in a married state and disagree as to the religion they should profess, their marriage
must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of
different communities to be happily united in wedlock. If conversion of one of the spouses leads to
unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant
unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete
and immediate dissolution of the marriage. But S.4 of the Dissolution of Muslim Marriages Act (VIII of
1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith
other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic
indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken
the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the
two parties to it professed different religions..... We must also point out that the plaintiff and the defendant
were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be
monogamous and could only be dissolved according to the tenents of the Zoroastrain religion. It would be
patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a
unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although
he may not want it and although the marriage vows which both of them have taken would not permit it.
We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the
various cases enumerated in S.2, which includes marriage and dissolution of marriage shall be the Muslim
personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall
apply when only one of the parties is a Muslim." (the single Judge judgment and the Division Bench
judgment are reported in (1946) 48 Bom LR 864: (AIR 1947Bom 272 at p. 274).

13. In Andal Vaidyanathan v. Abdul Allam Vaidya AIR 1946 Madras 446, a Division Bench of the High
Court dealing with a marriage under the Special Marriage Act 1872 held:
"The Special Marriage Act clearly only contemplates monogamy and a person married under the Act
cannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he
marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of
the second marriage. Section 17, provides the only means for the dissolution of a marriage or a declaration
of its nullity.
Consequently, where two persons married under the Act subsequently become converted to Islam,
the marriage can only be dissolved under the provisions of the Divorce Act and the same would
apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the
Mahomedan sense which can be dissolved in a Mahomedan manner. It is a statutory marriage and can only
be dissolved in accordance with the Statute : ('41) 28 AIR 1941 Cal. 582 and (1917) 1 KB 634 Rel. on;
('35) 22 AIR 1935 Bom 5 (8) and (1891) ILR 18 Cal. 264, Disting."

14. It is, thus, obvious from the catena of case law that a marriage celebrated under a particular personal
law cannot be dissolved by the application of another personal law to which one of the spouses converts
and the other refuses to do so. 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
tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore,
hold that 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.

15. The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather
it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or
developments. It also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians
and Parsees. Section 4, of the Act is as under:
"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."

16. 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(1) (ii), is that "the other party has ceased to be a Hindu by conversion to another religion."
Sections 11 and 15 of the Act are as under:-
"Void marriages. - Any marriage solemnised 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."

17. 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 by 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. 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.
The necessary ingredients of the Section are :(1) having a husband or wife living; (2) marries in any case;
(3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife.

18. It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not
be strictly 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.

19. 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 I.P.C. and has to be given meaningful interpretation.

20. The expression "void" under Section 494, I.P.C. 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, I.P.C.

21. A Hindu marriage solemnised 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, I.P.C. Any act which is in violation of mandatory provisions of law is per se
void.

22. The real reason for the voidness 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-bye 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.

23. We also agree with the law laid down by Chagla, J. in Robasa Khanum v. Khodadad Irani's case (AIR
1947 Bom 272) (supra) wherein the learned Judge has held that 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, I.P.C.

24. Looked from another angle, the second marriage of an apostate-husband would be in violation of the
rules 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 earlier 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.

25. The interpretation we have given to Section 494, I.P.C. 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. Result of the interpretation, we have given to Section 494, I.P.C. 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. Since it is not the object of Islam
nor is the intention of the enlighten Muslim community that the Hindu husband should be encouraged to
become Muslims merely for the purpose of evading their own personal laws 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.

26. All the four ingredients of Section 494, I.P.C. are satisfied in the case of a Hindu husband who marries
for the second time after conversion to Islam. He has a wife living, he marries again. the said marriage is
void by reason of its taking place during the life of the first wife.

27. We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void
marriage in terms of Section 494, I.P.C.

28. We may at this stage notice the Privy Council judgment in Attorney General of Ceylon v. Reid, (1965)
1 A11 ER 812. A Christian lady was married according to the Christian rites. Years later she embraced
Islamic faith and got married by the Registrar of Muslim Marriages at Colombo according to the statutory
formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme
Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy
Council, the respondent was absolved from the offence of bigamy. It was held by Privy Council as under:-
"In their Lordship's view, in such countries there must be an inherent right in the inhabitants domiciled
there to change their religion and personal law and so to contract a valid polygamous marriage if
recognised by the laws of the country notwithstanding an earlier marriage. If such inherent
right to be abrogated, it must be done by statute."

29. Despite there being an inherent right to change religion the applicability of Penal laws would depend
upon the two personal laws governing the marriage. The decision of Privy Council was on the facts of the
case, specially in the background of the two personal laws operating the Ceylon. Reid's case (1965) (1) A11
ER 812), is thus, of no help to us in the facts and legal background of the present cases.

30. Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution Bench of this Court speaking through Chief Justice Y.V. Chandrachud in
Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, held as under (Para 32) :
"It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that
"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
There is no evidence of any official activity for framing a common civil code for the country. A belief
seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of
their personal law. A common Civil Code will help the cause of national integration by removing disparate
loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making
gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform
civil code for the citizens of the country, and, unquestionably; it has the legislative competence to do so. A
counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political
courage to use that competence is quite another. We understand the difficulties involved in bringing
persons of different faiths and persuasions on a common platform. But, a beginning has to be made in the
Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the Courts
because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so
palpable. But piecemeal attempts of Courts to bridge that gap between personal laws cannot take the place
of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from
case to case".

31. In Ms. Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935, O.Chinnappa Reddy, J. speaking for the
Court referred to the observations of Chandrachud, C.J. in Shah Bano Begum's case (AIR 1985 SC 945)
and observed as under:
"It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing
life into Art.44 of the Constitution which provides that "The State shall endeavour to secure for the citizens
a uniform civil code throughout the territory of India." The present case is yet another which focuses......
on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs
consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before
mentioning the facts of the case, we might as well refer to the observations of Chandrachud, C.J. in the
recent case decided by the Constitution Bench (Mohd. Ahmed Khan v. Shah Bano Begum)."

32. One wonders how long will it take for the Government of the day to implement the mandate of the
framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law -
personal law of the Hindus - governing inheritance, succession and marriage was given go-by as back as
1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the
introduction of a uniform personal law in the country.

33. Article 44 is based on the concept that there is no necessary connection between religion and personal
law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest
religion from social relations and personal law. Marriage, succession and like matters of a secular
character cannot be brought within the guarantee enshrined under Articles 25,26 and 27. The personal law
of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the
same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and
Jains have forsaken their sentiments in the cause of the national unity and integration, some other
communities would not, though the Constitution enjoins the establishment of a "common civil Code" for
the whole of India.

34. It has been judicially acclaimed in the United States of America that the practice of Polygamy is
injurious to "public morals", even though some religion may make it obligatory or desirable for its
followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of
"Suttee" in the interest of public order. Bigamous marriage has been made punishable amongst Christians
by Act (XV of 1872), Parsis by Act(III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of
1955).

35. Political history of India shows that during the Muslim regime, justice was administered by the Qazis
who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so
far litigations concerning Hindus was concerned. The system, more or less, continued during the time of
the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil
justice for the native population, without discrimination between Hindus and Mahomedans. The 1772
Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was
to be governed by its "personal" law in matters relating to inheritance, marriage, religious usage and
institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law
in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was
enacted in 1860. This broad policy continued throughout the British regime until independence and the
territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who
preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-
nation or three-nation theory and that in the Indian Republic there was to be one Nation - Indian nation -
and no community could claim to remain a separate entity on the basis of religion. It would be necessary to
emphasise that the respective personal laws were permitted by the British to govern the matters relating to
inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The
Legislation - not religion - being the authority under which personal law was permitted to operate and is
continuing to operate, the same can be superseded / supplemented by introducing a uniform civil code. In
this view of the matter no community can oppose the introduction of uniform civil code for all the citizens
in the territory of India.

36. The Successive Government till-date have been wholly remiss in their duty of implementing the
constitutional mandate under Article 44 of the Constitution of India.

37. We, therefore, request the Government of India through the Prime Minister of the country to have a
fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil
code throughout the territory of India."

38. We further direct the Government of India through Secretary, Ministry of Law and Justice to file an
affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts
made, by the Government of India, towards securing a "uniform civil code" for the citizens of India. Sahai,
J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by
the Government in this respect.

39. Answering the questions posed by us in the beginning of the judgment, we hold 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, I.P.C.
and the apostate-husband would be guilty of the offence under Section 494, I.P.C.

40. The question of law having been answered we dispose of the writ petitions. The petitioners may seek
any relief by invoking any remedy which may be available to them as a result of this judgment or
otherwise. No costs.

R.M.SAHAI, J. (Concurring): - 41. Considering sensitivity of the issue and magnitude of the problem, both
on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few
words to the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to
focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking
reasons which have been brought forth by him in his order clearly and lucidly.

42. The pattern of debate, even today, is the same as was voiced forcefully by the member of the minority
community in the Constituent Assembly. If, 'the non-implementation of the provisions contained in Article
44 amounts to grave failure of Indian democracy represents one side of the picture, then the other side
claims that, 'logical probability appears to be that the code would cause dissatisfaction and disintegration
that serve as a common umbrella to promote homogeneity and national solidarity."

43. When Constitution was framed with secularism as its deal and goal, the consensus and conviction to be
one, socially, found its expression in Article 44 of the Constitution. But religious freedom, the basic
foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely
worded. It guarantees all persons, not only freedom of conscience but the right to profess, practice and
propagate religion. What is religion? Any faith or belief. The Court has expanded religious liberty in its
various phases guaranteed by the Constitution and extended it to practices and even external overt acts of
the individual. Religion is more than mere matter of faith. The Constitution by
guaranteeing freedom of conscience ensured inner aspects of religious belief. And external expression of it
were protected by guaranteeing right to freely practice and propagate religion. Reading and reciting holy
scriptures, for instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much a part of religion as
offering food to deity by a Hindu or bathing the idol or dressing him and going to a temple, mosque, church
or gurudwara.

44. Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other
belief or faith. Going round the fire seven rounds or giving consent before Qazi are as much matter of
faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Muslim
becomes Hindu by reciting certain Mantras it is a matter of belief and conscience. Some of these practices
observed by members of one religion may appear to be excessive and even violative of human rights to
members of another. But these are matters of faith. Reason and logic have little role to play. The
sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohun Roy who single handed brought about that atmosphere which paved the way for Sati abolition. Nor
is a statesman of the stature of Pt.Nehru who could pilot through, successfully, the Hindu Succession Act
and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of uniform Code can
hardly be doubted. But it can concretize only when social climate is properly built up by elite of the
society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the
masses to accept the change.

45. The problem with which these appeals are concerned is that many Hindus have changed their religion
and have become convert to Islam only for purpose of escaping the consequences of bigamy. For instance,
Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously
because Muslim Law permits more than one wife and to the extent of four. But no religion permits
deliberate distortions. Much misapprehension prevails about bigamy in Islam. To check the misuse many
Islamic countries have codified the personal law, 'wherein the practice of polygamy has been either totally
prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the
Soviet Union are some of the Muslim countries to be remembered in this context: But ours is a Secular
Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes
the social fibre. 'But religious practices, violative of human rights and dignity and sacredotal suffocation of
essentially civil and material freedoms, are not autonomy but oppression.' Therefore, a unified code is
imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first
step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The
Government would be well advised to entrust the responsibility to the Law Commission which may in
consultation with Minorities Commission examine the matter and bring about the comprehensive
legislation in keeping with modern day concept of human rights for women.

46. The Government may also consider feasibility of appointing a Committee to enact Conversion of
Religion Act, immediately, to check the abuse of religion by any person. The law may provide that every
citizen who changes his religion cannot marry another wife unless the divorces his first wife. The
provision should be made applicable to every person whether he is a Hindus or a Muslim or a Christian or a
Sikh or a Jain or a Budh. Provision may be made for maintenance and succession etc. also to avoid clash of
interest after death.

47. This would go a long way to solve the problem and pave the way for a unified civil code.

48. For the reasons and conclusions reached in separate but concurring judgments the writ petitions are
allowed in terms of the answers to the question posed in the opinion of Kuldip Singh, J.

Petition allowed.