A MAN PERFORMS SECOND MARRIAGE WITHOUT DIVORCING HIS FIRST WIFE AND SHE IS ALIVE, SUCH MARRIAGE WILL BE VOID.

A MAN PERFORMS SECOND MARRIAGE WITHOUT DIVORCING HIS FIRST WIFE AND SHE IS ALIVE, SUCH MARRIAGE WILL BE VOID.

Case Summary of Lily Thomas Vs. Union of India

 Lily Thomas V Union of India & Ors.  

Citation: AIR 2000 SC 1650
Court: Supreme Court of India

Bench: Saiyed Saghir Ahmad and R.P. Sethi, JJ.

Date Decided: 10.07.2013

Appellant: Lily Thomas
Vs.
Respondent: Union of India (UOI) and Ors

Background of the case

In LILY THOMAS V UNION OF INDIA & ORS. case, the landmark judgement was taken, the case was filed as a writ petition and it was filed as a review petition of the case SARLA MUGDAL V UOI, the case was filed under article 20,21,25 and 26 of the Indian Constitution, 1950.

The first issue was of the implementation of a uniform civil code as it has been envisaged by Article 44 but the problem is that if such uniformity is implemented that it would possess a direct challenge to each and every citizens right to practice and propagate their religion as it has been provided by Article 25, moreover this was a landmark judgement because in this case only the Supreme Court took into consideration that if a man performs second marriage without divorcing his first wife and she is alive, such marriage will be void. It was also taken into fact that, if a man converts his religion into Islam and then solemnize his second marriage according to Islam then also the marriage will be considered void only, until and unless the first marriage has been dissolved according to the Hindu Marriage Act and if a man does the same then he will be liable under section 494 and 495 of the Indian Penal Code for the offence of bigamy.  

This decision was taken because even if a man converts into Islam that does not mean that the first marriage has been ended or that the liabilities of the husbands are over, the husband would be liable to all the obligations as he was before the conversion happened. The earlier judgment with respect to the equivalent was exceptionally right and significant since men were taking unfair advantage to such conversion of wedding and having more than one spouse. As indicated by the Indian Penal Code, Bigamy is the offense of wedding another while the principal marriage actually perseveres and such bigamous relations are unlawful and furthermore the subsequent marriage is void abdominal muscle initio.

Nearly all the religions have their personal law which did not permit polygamy so the wedded men have been repeating to the undesirable and shameless act of changing over to Islam for the interest of solemnizing a second bigamous marriage under the presumption that such transformation would assist them with wedding again without getting their first marriage disintegrated, since the significant stretch.

A few Petitions were all things considered taken by the supreme court to conclude the situation with bigamous marriage by changing over the Islam as in MRS. SHUSHMITA GHOSH V. UOI, Smt. Sarla Mudgal, president and others v. UOI and Sunita and Fatima v. UOI. Page Contents Issues Raised Constitutional and Statutory Provisions Discussed by the Honble Court Facts of the case Contentions of the Petitioner Contentions of the Respondent Judgement Legal Overview Conclusion Issues Raised.

Whether there should be Uniform Civil Code for all citizens?

Whether a Hindu Husband can solemnize second marriage by converting to Islam?

Whether the husband would be liable for bigamy under section 494 of IPC?  

CONSTITUTIONAL AND STATUTORY PROVISIONS DISCUSSED BY THE HONBLE COURT

1. Article 20 of the Indian Constitution, 1950 Protection in respect of conviction for offences No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence No person shall be prosecuted and punished for the same offence more than once No person accused of any offence shall be compelled to be a witness against himself.

2. Article 21 of the Indian Constitution, 1950 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.

3. Article 25 of the Constitution, 1950 Freedom of conscience and free profession, practice and propagation of religion Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion Nothing in this article shall affect the operation of any existing law or prevent the State from making any law a. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; b. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation

I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation

II. In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

4. Article 26 of the Constitution, 1950 Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes;

to manage its own affairs in matters of religion;

to own and acquire movable and immovable property.

to administer such property in accordance with law

5. Article 44 of the Constitution, 1950 Uniform civil code for the citizens The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.

6. Section 494 of the Indian Penal Code 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 it 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.

7. Hindu Marriage Act, 1955  Section 11 (Void marriages). Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto11 [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[1] 8. Hindu Marriage Act, 1955  Section 17 (Punishment of bigamy). Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

Facts of the case Mrs. Sushmita Ghosh, who is the spouse of Mr. G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition against her husband expressing that she was already married to Mr. G.C. Ghosh as per the Hindu ritual on tenth May, 1984 and from that point forward the two of them were living a happy content life in Delhi. Around the first of April, 1992, Mr. G.C. Ghosh told his wife Mrs Gosh (petitioner) that it would be best for her if she would mutually agree for the divorce, as he had any way taken to Islam so he might remarry and truth be told he had effectively fixed to his marriage with Miss Vanita Gupta inhabitant of D-152 Preet Vihar, Delhi, a divorced person with two youngsters in the second week of July 1992. Mr. G.C. Ghosh additionally showed a Certificate gave by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated seventeenth June, 1992 guaranteeing that he had accepted Islam.

The petitioner than talked to her father and her aunt about the same and told them that her husband is has converted from Hindu to Muslim and the reason behind this conversion is that he is going to marry someone else. They all attempted to persuade Mr G.C. Ghosh and work him out of the marriage however of little consequence and he demanded that Sushmita should consent to the divorce any other way she should endure second wife. It was expressed in the request that Mr. G. C. Ghosh has changed over to Islam exclusively with the end goal of re-wedding and has no genuine confidence in Islam. He doesnt rehearse the Muslim ceremonies as recommended nor has he changed his name or religion and other authority archives.

Mrs. Sushmita Ghosh has supplicated that her significant other ought to be confined from going into one more marriage with another person. Additionally mentioned that the judiciary should pronounce that where a non-Muslim male gets changed over to the Muslim religion with practically no genuine difference in conviction and simply so as to keep away from a previous marriage or go into a subsequent marriage, any marriage went into by him later transformation would be void. All she was asked, suitable heading to pronounce that where a non-Muslim male gets changed over to the Muslim confidence with practically no genuine difference in conviction and simply so as to stay away from a previous marriage or go into a subsequent marriage, any marriage went into by him later transformation would be void.

Contentions of the Petitioner The first issue raised by the petitioner was that if marriage is considered to be a sacred institution at that point, how falling back on the demonstration of religion conversation to Muslim to submit the demonstration of polygamy as Muslim individual law permits it is an endeavor where the women opportunity of confronting such bigamous marriage and such double-crossing is violative of Art.21(right to life and freedom).

The second marriage of the respondent is additionally contrary to the principal of natural justice which has been remembered for the Article 21, in the well-known instance of Maneka Gandhi v. UOI. So, by this large number of grounds, one might say that there has been infringement of essential Rights given under Article 21of the Indian Constitution.

It was already appealed not just by Lily Thomas but other women of the Muslim religion as well to declare polygamy in the Muslim Law as unconstitutional Petitioner contends that the conversion done by the respondent isnt as per the Muslim Laws. For being a Muslim one should relinquish his previous religious faith however here respondent can be effortlessly seen rehearsing his prior Hindu faith and keeps on being Hindu.

The different documents like the name and religion on the birth authentication of the child from his subsequent spouse, his name on the VISA application to Bangladesh, his name in the electoral roll and his name in the record subtleties obviously uncovers he keeps on living with his Hindu name Gyan Chand Ghosh rather the name given after conversion to Islam that is Mohammad Kareem Ghazi.

His main and only idea behind the conversion was to enter a second marriage with Miss Vanita disregarding the religious faith of one or the other religion. The second marriage will be void under section 11 of the Hindu Marriage Act as the date of solemnization if marriage is 3rd September 1992 and the said section talks about void marriage and states that if any marriage is not fulfilling any condition mentioned in section 5 of the same act, then it would be avoided and according to section five the first condition is that there should be no living spouses which is not being fulfilled as during marriage Mrs. Gosh was alive.

The marriage should be declared void and Mr. Gosh should be punished under section 17 under the Hindu Marriage Act and 494 and 495 of the Indian Penal Code should also be applied. The petitioner requested honourable judges to punish the offender and pass such an order or decree so that justice could be done with the aggrieved party.

Contentions of the Respondent

The state concurred with the petitioners in their plea. The respondents in all the above petitions declare a typical conflict that having accepted Islam, they can have four spouses independent of the way that the principal wife keeps on being Hindu.

Additionally, as it is the question of personal laws and the respondent has been accused of the segments of IPC. Along these lines, there is no such inquiry of infringement of any essential privileges.

Since numerous things in Muslim laws are not codified, the conversion rules in the Islam religion are additionally founded on the convictions and customs which they are following for a long time.

For being changed over into Islamic faith, there are for the most part two fundamentals that are, he should be of sound mind and he should have given full consent for the process of conversion. Both the fundamentals were appropriately satisfied in this and furthermore the authentication of conversion was acquired by Mohammad Kareem Ghazi from MaulanaQari Mohammad Idris, ShahiQazi. And furthermore, the Article 25 of India Constitution ensures freedom of religion. Along these lines, one can explicitly change over into the other religious communicating their privileges of freedom religion given by Constitution of India.

There is no doubt that section 11 of Hindu Marriage Act, 1955 just applies on the Hindus however the respondent has transformed into an Islamic faith later the conversion. Along these lines, personal laws other than Muslim laws can be applied in this. Since, the date of conversion, he has relinquished the Hindu faith and later such relinquishment, every one of the laws and acts which are restricting upon Hindus just are consequently relinquished.

Polygamy is restricted in Hindu Laws however Muslim laws advance polygamous nature of marriage up to four spouses. The holy book of Quran, which is additionally an essential source of Muslim laws expresses, a Muslim man can wed with a most extreme number of four spouses treating them with equivalent love and friendship. For the utilization of section 494 and 495 of Indian Penal (Code 45 of 1860), the marriage should be pronounced void under the laws. Be that as it may, here the Muslim laws restricting upon the respondent licenses him to do as such.

The respondent requested honorable court to pass such an order or decree lifting all the charges leveled against the respondent and dismissing all the pleas and petitions filed by the petitioners. Judgement Justice S. Sagir Ahmad stated that if a party has a living life partner and he contracted or endeavor to contract second marriage then such marriage would be invalid and void under Section 11 of Hindu Marriage Act, 1955.

The Honble Court additionally expressed that, the subsequent marriage solemnized by the Hindu during the resource of first marriage is void. Freedom ensured under Article 25 of the India Constitution is such opportunity which doesnt infringe upon a comparative freedom of other individual. Under the Constitutional Scheme, each individual has Fundamental Right not simply to engage the religious conviction of this decision yet additionally it displays his convictions and thoughts in such a way which doesnt encroach the religious right and individual flexibility of others.

The word Islamic means, accommodation to god not simply marriage meaning. Muslim law does allowed second marriage in India however the condition you can do justice to the co-spouses then just you are allowed, sacredness and immaculateness of marriage is consistently there in need. Simply for marriage you cant solemnize the subsequent marriage by changing over the religion.

If a Hindu spouse documents grievance against her significant other who during presence of first marriage in all actuality do second marriage later transformation to one more religion, then the offense of Bigamy will be managed Hindu Marriage Act, 1955.

The apex Court has said that violation of Article 21 is misconceived, article 21 of the Constitution states that no person shall be deprived of his right and personal liberty except as per procedure established by law and herein such an act of marriage while the first marriage still persists is codified in the Indian Penal Code section 494 there is no violation of Art. 21.

Conclusively the answers which the apex court has given for the issues are- In this case there has been no violation of the fundamental rights that are given under Article 21 of the constitution The conversion of religion performed by Mr. Gosh is not according to Muslim Law The second marriage performed by Mr. Gosh will be considered void under section 11 of Hindu Marriage Act as Mr. Gosh has not performed the conversion according to Muslim Law the sections 494 and 495 of Indian Penal Code (Code 45of 1860) mentioned in section 17 of the Hindu Marriage Act, 1955 is applicable.

Legal Overview As the matter involved the personals laws mostly so one must have to be clear in Hindu Laws as well as Muslim laws that are applicable in India. These are the following legal sections or articles one must know in order to understand this case.

The first section in this list is section 5 of the Hindu Marriage Act, 1955 which talks about the conditions for a Hindu marriage, and the clause (i) of the said section states that

neither party has a spouse living at the time of marriage.

This section of HMA clearly prohibits the practice of bigamy under Hindu Law.

Second would be section 11 of the above mentioned act and it states about the void marriages, according to it  

any marriage solemnized after the commencement of this act shall be null and void, on a petition presented by either of the party thereto[against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v) of section 5.This statement clearly shows that a second marriage will be declared as void under Hindu Law.

Thirdly, Section 13 of Hindu Marriage Act, 1955 states about the different grounds of divorce recognized under Hindu laws. Clause (ii) of this section also recognize conversion of religion as a ground for divorce this can be seen in the case of MADANAN SEETHA VS. MADANANVIMLA, where the husband was granted divorce as his wife converted her religion into Christianity.

Section 17 of Hindu Marriage Act, 1955 talks about the punishment of bigamy and it states

any marriage between two Hindus after the commencement of this act is void if at the date of such marriages either party had a husband or wife living; and the provisions of sections 494 and 495 of Indian Penal Code (45 of 1860), shall apply accordingly

but there are certain conditions for making this section applicable. The second marriage needs to be valid under the Hindu law. The mere admission by the respondent that he had contracted second marriage is not enough.

In the case of BHAURAO VS. STATE OF MAHARASHTRA, it was held that the impugned marriage must have been solemnized that is, the marriage should have been celebrated or performed with proper ceremonies and in due form. Also, in the case of SURJIT KAUR VS. GARJA SINGH, it was held that if the marriage is not a valid marriage, it is no marriage in the eyes of law.

If the marriage is not a valid one according to the law applicable to the parties, no question of its being void by reason of it taking place during the life of the husband or wife of the person marrying arises.

Having regard to section 17 of the Act the essential ceremonies set out under the Act had not been conducted and merely because there was distribution of sugar or gur would not constitute a marriage.

CONCLUSION

Taking this judgement was quite important as men stated to convert their religion with just the intention of performing second marriage, Bigamy is an offence of having more than spouse when the first spouse is alive and such bigamous relationship and marriages are illegal and void ab intio.

Before this decision, for long-time men were performing this type of marriage, whose personal law didnt permit polygamy have been repeating to the undesirable and unethical act of changing over to Islam for the interest of consolidating a second bigamous marriage under the supposition that such conversion would assist them with wedding again without getting their first marriage dissolved.

The understanding given to Section 494 IPC was a work to propel the interest of justice. Indeed, even the parliament never expected to outline laws with respect to the Uniform Civil Code. One should recollect when Rajiv Gandhi used to be the Prime Minister of India and a judgment looking into the case of SHAH BANO VERSUS ASSOCIATION OF INDIA came for petitioner however when the government after a few days amended the law it became difficult to interfere into the personal law (religious laws).

Therefore, it is said that Shah Bano lost the case even after winning the case. In todays time everyone talks about equality and demands for it, however one can observe the distinctions with respect to similar matter in two diverse personal laws.

Polygamy is restricted under Hindu Law however is allowed up to four marriages in Muslim laws. Isnt it discrimination? There are a several instances where there are contradictions between personal laws and common laws and in these instances the decision lies upon the court that which one is right.

Along these lines, as I would like to think I feel that assuming there will be a Uniform Civil Code for everybody, there will be no such contentions. In this matter court conveyed equity to the candidate pronouncing the second marriage of the respondent void however didnt search for a drawn-out arrangement of such a contention between personal laws and common laws.

Be that as it may, as different cases additionally in this question of LILY THOMAS VERSUS ASSOCIATION OF INDIA, the court was not ready to respond to the inquiry concerning Uniform Civil Code. We can just have our lights of trust alive towards our Judiciary and furthermore the chosen government of our own to look forward towards a vital Directive Principles of State Policy referenced as Uniform Civil Code in article 44 of the Part IV of the Indian Constitution. https://1drv.ms/b/s!AnA8RNRWqS7Zre4OesYrAeUSElw_RQ?e=G9wRoj