|MANU/SC/3519/2000; W.P.(C) No. 798 of 1995; 2000 SCC OnLine SC 897
|DATE OF JUDGMENT
|05th MAY, 2000
|SUPREME COURT OF INDIA
|LILY THOMAS 8
|UNION OF INDIA.
|Justice Saiyed Saghir Ahmad and Justice R.P. Sethi
The case of “Lily Thomas v/s Union of India, 2000” revolves around a critical legal dispute concerning the concept of Bigamy, conversion to Islam and constitutional aspect to them. The judgment is a watershed moment in the history, it throws light on various sections under Hindu Marriage Act, 1955 and their interrelation with the Indian Penal Code, 1860. These provisions are to be considered and interpreted in the interest of justice and equality. The Constitutional provisions of part III and Part IV were also involved in the present case. This case holds pivotal importance in establishing legal precedents regarding the offence of bigamy under Hindu Marriage Act, 1955. Initially, the Lily Thomas case was tied up with the case Sarla Mudgal because the principle question in both the questions was same. But somehow or the other, it got separated from the Sarla Mudgal case and it took another five years to reach its culmination.
FACTS OF THE CASE
Sushmita Ghosh, the petitioner, filed Writ Petition [W.P.(C) No. 509 of 1992] in the court. She claimed that she was married to G.C. Ghosh on 10th May, 1984, as per Hindu rituals and rites and thereafter, they were living happily in Delhi. G.C. Ghosh, the respondent, on 1st April, 1992 conveyed to his wife herein the petitioner that he is no longer willing to live with her and she should agree with him for getting a mutual consent divorce. G.C. Ghosh, the respondent, presented a certificate of his conversion to Islam dated 17th June, 1992 and expressed his intent to remarry. Sushmita Ghosh, the petitioner, accused the respondent that his conversion to Islam is feigned and all his intention is to marry a woman named Vanita Gupta, who lives in Delhi and is a divorcee with two children in second week of July 1992. He has no faith in Islam nor he practice Muslim rites as prescribed and has not changed his name or religion in any of the official documents. The petitioner even told about this situation to her father and aunt, they tried talking him out of this marriage to the respondent but it was all futile, because he already made up his mind about the second marriage. Sushmita Ghosh, the petitioner claimed that the respondent’s conversion to Islam was a tactic used by Hindu Males to obtain divorce from their first wives and subsequently revert to Hinduism to retain rights in properties and continue their lives as before. Sushmita Ghosh, the petitioner, asserted that her fundamental rights guaranteed by Article 15(1) not to be discriminated against on the grounds of religion and sex.
Sushmita Ghosh, the petitioner, is a 34 years of age who is undergoing mental trauma as she is unemployed. She has filed writ petition to seek various reliefs, including declaration that polygamous marriage by Hindus and Non- Hindus after conversion to Islam are illegal and void, amendment to Hindu Marriage Act, and restriction on the respondent from getting married during subsistence of the marriage with the petitioner.
- Whether the Hindu or Non Hindu husband can solemnize a second marriage by converting to Islam and whether the marriage entered into by him would be void?
- Whether the husband can be held liable for the offence of bigamy under section 494 of Indian Penal Code, 1860?
- Whether there should be Uniform Civil Code for all the citizens?
CONTENTIONS OF APPEALENT
- The Petitioner raised concerns about the exploitation of religious conversion to Islam as a loophole for practicing polygamy, which is permissible under Muslim personal law. The petitioner contended that such a practice amounted to a violation of women’s rights to life and freedom guaranteed under Article 21 of the Indian Constitution.
- Additionally, the petitioner invoked the principle of natural justice, drawing parallels with the Sarla Mudgal case. It was argued that the respondent’s second marriage, facilitated through religious conversion, ran contrary to this principle, thereby further encroaching upon the rights protected under Article 21. They claimed that fundamental rights enshrined in Article 21 had been infringed upon due to this practice.
- In the Lily Thomas Case, the petitioner, along with other Muslim women, sought a declaration that polygamy within Muslim personal law was unconstitutional.
- The petitioner argued that the respondent’s conversion to Islam did not align with Muslim laws, as a genuine conversion necessitates renouncing one’s prior religious faith. However, evidence revealed that the respondent continued practicing Hinduism and maintained his Hindu name, Gyan Chand Ghosh, in official documents like his child’s birth certificate, Bangladesh visa application, electoral roll, and other records. Despite the purported conversion to Islam, it was evident that he identified as Hindu, using the conversion as a means to contract a second marriage with Miss Vanita, disregarding the principles of both religions.
- The petitioner contended that the second marriage was void under Section 11 of the Hindu Marriage Act since it failed to meet the conditions outlined in Section 5 of the same Act. Specifically, the first condition in Section 5 stipulated the absence of living spouses, which was not fulfilled since Mrs. Ghosh was alive during the second marriage. The petitioner urged the court to declare the marriage void and hold the respondent liable under Section 17 of the Hindu Marriage Act, along with Sections 494 and 495 of the Indian Penal Code.
- The petitioner compared various section from different personals which draws on the line of section 17 of Hindu Marriage Act, 1955 such as sections 43 and 44 of Special Marriage Act, sections 4 and 5 of Parsi Marriage & divorce Act, section 61 of the Indian Divorce Act. Even case reference was made to the case of Bhaurao Shankar Lokhande V. State of Maharashtra (1965); concluding it by emphasizing that marrying second during the lifetime of a spouse, besides being void under sections 11 and 17 of Hindu Marriage Act, also constitute an offence under section 494 of IPC.
CONTENTIONS OF REPONDENT
- The the state supported the petitioners’ arguments, while the respondents presented a common counter-argument. The respondents asserted that, upon converting to Islam, they were entitled to have four wives, regardless of the religious affiliation of their first wife. They argued that since the issue pertained to personal laws, and the accusations were made under sections of the Indian Penal Code (IPC), there was no violation of fundamental rights.
- Section 13 of the Hindu Marriage Act, stated the ground for divorce which is inclusive of conversion and section 10 judicial separation also has ground which sate conversion allows other spouse to file for judicial separation, whereas Mahommedan Law, a second marriage can be contracted by husband, subject to religious restrictions. The concept of feigned conversion for worldly gains are frowned upon by both parties.
- The respondents contended that many aspects of Muslim personal laws are not codified, and the rules for conversion to Islam are based on long-standing beliefs and traditions. They highlighted two primary requirements for conversion: soundness of mind and full consent. In this case, both criteria were met, and Mohammad Carim Ghazi obtained a conversion certificate from Maulana Qari Mohammad Idris, Shahi Qazi.
- Additionally, the respondents invoked Article 25 of the Indian Constitution, emphasizing the freedom of religion it guarantees. They argued that individuals can explicitly convert to another religion, exercising their constitutional right.
- The respondents in the Lily Thomas Case also emphasized that Section 11 of the Hindu Marriage Act, 1955, is applicable only to Hindus. They argued that, having converted to Islam, the respondent was no longer bound by laws applicable to Hindus, as he had abandoned the Hindu faith after the conversion date. Therefore, they asserted that laws and acts exclusively binding on Hindus no longer applied to the respondent.
- Polygamy is forbidden in Hindu laws, but Muslim laws allow a Muslim man to have up to four wives. The Quran, a principal source of Muslim laws, explicitly states that a Muslim man can marry a maximum of four wives and should treat them with equal love and affection. In light of this, the respondents argued that the application of Section 494 and 495 of the Indian Penal Code necessitated declaring the marriage void under those laws. However, according to the Muslim laws applicable to the respondent, he was permitted to have multiple wives.
The Supreme Court upheld the decision of the Sara Mudgal case, declaring the respondent’s second marriage void despite the permissibility of polygamy under Muslim Shariat laws. The judgment was based on the court’s finding that the respondent’s conversion to Islam was driven by malafide intentions to enter into a second marriage, and it was not deemed genuine as he continued to use his Hindu name and identified as Hindu in various documents. The court emphasized that Muslim laws apply only when both parties are Muslim, and the respondent’s conversion lacked authenticity. Despite the allowance of polygamy in the Quran, the court stressed the requirement of equal treatment for all wives.
The respondent was found guilty of offenses under Sections 494 and 495 of the Indian Penal Code, and the court dismissed his review petition. The court also rejected the claim of a violation of Article 21, stating that the established legal procedure was followed in apprehending the respondent for the mentioned offenses. Mere conversion to another religion does not terminate the marriage but only provides ground for divorce under section 13 of Hindu Marriage Act, 1955 and the marriage persist until the decree of divorce has been granted.
- The apex court in its judgement of the case Lily Thomas vs. Union of India created a history and regarded as a landmark decision in the Indian judiciary. It underscores the role of the judiciary as the guardian of the constitution and the protector of laws, demonstrating its significance in individuals’ lives. The case, along with others like Sarla Mudgal vs. Union of India, Lily Thomas vs. Union of India, Ahmad Khan v Shah Bano Begum, and Shayara Bano vs. Union of India, has played a crucial role in addressing malpractices carried out under the guise of freedom of religion.
- This case has dealt with various provision of the various laws such as Hindu Marriage Act, 1955; section 5 (conditions for valid marriage), section 11 (void marriage), section 17 (bigamy); Indian Penal Code, 1860, sections 494 and 495 (penal provision for committing bigamy), Criminal Procedure Code, 1973, Section 198 (prosecution for offences against marriage)
- While Article 25 of the Indian Constitution guarantees freedom of religion, the judgment highlights that this freedom has limitations, and individuals cannot use it as a pretext for any action. Despite these judicial interventions, one lingering question remains unanswered—the need for a Uniform Civil Code (UCC). Article 44 in the Directive Principles of State Policy advocates for a UCC, emphasizing the state’s endeavor to provide citizens with a uniform civil code throughout India.
- However, the court did not explicitly address the question of the Uniform Civil Code in the Lily Thomas case. Article 44, residing in the non-justiciable Part IV of the Constitution, raises concerns about its practical enforceability. UCC is a subject which seems difficult to apply as all these are intricate in personal laws and with their religious sentiments.
- They accentuated that simply conversion to another religion does not dissolve your marriage or free you from the prior roles and responsibilities as an individuals have been misusing the personal laws loopholes for their own benefits.
- The historic case of Shah Bano vs. Union of India, where the government altered the law after a judgment in favor of the petitioner, serves as an example of the challenges in implementing reforms in personal laws. The existing disparities between personal laws, such as the prohibition of bigamy under Hindu Law and permission for up to four marriages in Muslim laws, highlight the need for a comprehensive and uniform approach to civil laws.
- The court, while delivering justice in the Lily Thomas case, declared the respondent’s second marriage void but did not provide a long-term solution to the conflicts between personal and common laws. The reluctance to address the issue of a Uniform Civil Code in this case suggests that the broader question of unifying civil laws for all citizens remains a complex and challenging task. The hope lies in the continued efforts of the judiciary and elected governments to explore a resolution to the longstanding issue of implementing a Uniform Civil Code in line with constitutional principles.
In conclusion, the case of “Lily Thomas V/s Union of India, 2000”, establishes a crucial legal precedent in relation to bigamous offenses. Over an extended period, married men, whose personal law did not allow bigamy have been recurring to the unhealthy and immoral practice of converting to Islam, paving a way to avail a second wife and without dissolving the first marriage. The interpretation of section 494 IPC was an effort to advance the interest of justice and as the present case did not fall in the exception of the concerned section. This case’s significance is showing the misconduct of Hindu male resorting to unpleasant options.
This Article is written by Saumya Raj student of ILS Law College, Pune; Intern at Legal Vidhiya.
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