| Citation | 2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363, 2001 (1) BLJR 499, 2000 CriLJ 2433, II (2000) DMC 1 SC, JT 2000 (5) SC 617, 2000 (4) SCALE 176, (2000) 6 SCC 224, 2000 (2) UJ 1113 SC |
| Date of Judgment | 5 April, 2000 |
| Court | Supreme Court of India |
| Case Type | Writ Petition (Civil)798 of 1995 |
| Plaintiff | Lily Thomas |
| Respondent | UNION of INDIA |
| Bench | Hon’ble Justice S AHMED, R. SETHI, J. |
| Referred | To Muslim Act, Bigamy |
FACTS:
Writ Petition was filed by Smt. Sushmita Ghosh, wife of Shri GC Ghosh, stated in this court that the marriage between them was solemnized on 10.5.1984 in accordance with the religious rites and rituals of the Hindu Marriage Act, 1955.
On 01.04.1992, Ghosh sought a divorce by mutual consent from the petitioner and stated that he converted to Islam with the intention of entering into a second marriage with Miss Vanita Gupta who was divorced in the second week of July 1992 with two children.
The accused also submitted a certificate to the relevant court proving that he had converted to Islam. It was further alleged that the petitioner and her family tried several times to convince the respondent not to dissolve their marriage but all in vain. Instead, he demanded a divorce from the petitioner or he would have to accept another wife.
Thus, from the above facts, it was clear that the respondent converted to Islam only to remarry and in fact he did not believe in Islam.
The petitioner claims that his fundamental rights guaranteed by Article 15(1) cannot be discriminated against only because of religion or sex. He claims that a section of Islamic personal law implemented by the state under the Islamic Personal Law Act 1937 discriminated against him. Such activity is contrary to Article 13(1) and the Constitution. Therefore, by this petition, the petitioner seeks to prohibit the proposed second marriage on 10.7.1992. It is further urged that the respondent, whose marriage with the petitioner is valid and subsisting, cannot take advantage of the feigned conversion to take another wife.
ARGUMENTS:
In India, the watershed case is Lily Thomas v. Union of India (Writ Petition (Civil) 798 of 1995). The Supreme Court of India has taken preventive measures to prevent a second marriage without a proper and legal dissolution of the first marriage. Thus, after this decision, it was held that if a marriage is entered into without a proper and legal divorce from the first marriage, the second marriage is considered void and if the husband is found to have done so, the marriage is dissolved. liable under Sections 494 and 495 of the Indian Penal Code (IPC) 1860 for the offense of bigamy. This landmark judgment was delivered by a Supreme Court bench comprising Justices RP Sethi and SS Ahmad.
ISSUE:
- Whether a non-Muslim gets converted to the ‘Muslim’ faith with no actual change or belief and merely with a view to avoid an earlier marriage or to enter a second marriage, whether the marriage entered by him after such conversion would be void?
- Whether the Respondent would be liable for bigamy under Section 494 of IPC?
- Whether it was desirable to have a Uniform Civil Code?
RATIO DECIDENDI:
Regarding issue (1), the appellant’s statement clearly stated that the respondent did not actually convert to the “Islamic faith” but feigned conversion in order to enter into another marriage.
It further noted that while religious freedom is a matter of belief, that freedom cannot be used as a cover to avoid other laws if a spouse converts to Islam to avoid a first marriage.
The accused does not practice the Islamic rites as prescribed and has not changed his name or religion or other official documents to show that the said conversion was not to believe in the Islamic religion but only to get rid of his first marriage.
Since bigamy is prohibited under the Indian Marriage Act and is an offense under Section 17 of the Act, any marriage performed by a spouse during the validity of the marriage despite his conversion to another religion is an offence. will be investigated under Section 17 of the Hindu Marriage Act, 1955 including Section 494 of the IPC.
A marriage between two Hindus is considered void if the following conditions are met:
If the marriage is terminated after the entry into force of the law,
If both parties had a spouse living at the date of the marriage. Therefore, if a person contracts a second marriage during the validity of his previous marriage, it is also an offense under (2), except for a void marriage under Sections 11 and 17 of the Indian Marriage Act and the person can be prosecuted. under Section 494 of the IPC.
Case reference: Robasa Khanum V. Khodadad Irani was also drawn where the learned Judge said that the conduct of a spouse converting to Islam must be judged on the basis of equity and justice or equity and good conscience.
On the other hand, the second marriage of a Hindu man after conversion to Islam violates justice, equality and good conscience and would be void because it would change the status of the second wife to a concubine and produce children. that the marriage is illegal. Further, it would attract section 494. The main subject in the instant petition was the implementation of the Uniform Civil Code under Article 44 of the Constitution of India.
In Maharshi Avadhesh Vs. Union of India 1994, the court expressly refused to grant a writ compelling the respondents to consider the question of imposing a uniform civil code for all citizens of India, saying that the question arose in politics, it was for the parliament. to take effective action because the court could not legislate.
However, a uniform law is highly desirable; its simultaneous implementation may harm the unity and integrity of the nation. In a democracy under the rule of law, it should gradually bring gradual change and order. Therefore, it would be inappropriate and wrong to think that all laws will be harmonized at the same time, but the legal process can remedy the evil or deficiency in stages.
In the subject of the Uniform Civil Code, R.M. Sahai, J. the other Hon’ble Judge who constituted the bench suggested some measures that the Government could take to prevent abuse of religion by unscrupulous persons who were otherwise found guilty of polygamy under the net of proselytism.
DECISION:
The court found no substance in the contentions raised on behalf of the petitioner that the judgment violated the fundamental rights guaranteed to the citizens of India. Therefore, the Court finds that the alleged violation of Article 21 is invalid. Article 21 ensures that no one shall be deprived of his life and personal liberty except in accordance with law.
It is admitted that in fact and in fact none of the petitioners were deprived of their right to life and personal liberty. However, the affected persons were arrested to be prosecuted for the crime punishable under Section 494 of the Criminal Code. In consideration of the above facts and circumstances, it was held that conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act but only constitutes a ground for divorce under Section 18. Until the divorce decree is issued, the marriage remains intact. Any other marriage during the first marriage is an offense under Section 494 of the Indian Marriage Act, 1955 read with Section 17 of the Hindu Marriage Act, 1955 and the person can be prosecuted for the offense even if he has converted to another religion. of bigamy.
REFERENCES:
https://lawfaculty.in/lily-thomas-v-uoi-air-2000-sc-1650/?amp=1
https://indiankanoon.org/doc/80351/
This Article is written by Bhavya Arora of Lloyd Law College (3rd Semester), an Intern at Legal Vidhiya.
