Sarla Mudgal, President, Kalyani v. Union of India, AIR 1995 SC 1531: (1995) 3 SCC 635: (1995) 3 SCJ 105: (1995) 3 SCALE 286
There are four petitions under Article 32 of the Constitution of India. There are two petitioners in writ petition No. 1079/89. Petitioner 1, is the President of “Kalyani”, a registered Society, which is an organization working for the welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on Feb. 27, 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 the husband to Islam was only for the purpose of marrying Sunita and circumventing the provision of section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have two wives irrespective of the fact that his first wife continue to be Hindu.
Rather interestingly Sunita alias Fathima is the Petitioner in writ petition No. 347 of 1990. She contends that she along with Jitender Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted to Hinduism and had agreed to maintain his first wife and 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.
Geeta Rani, petitioner in writ petition No. 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 second marriage.
Susmita Ghose is another unfortunate lady who is petitioner in civil writ petition No. 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 his 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.
(1) The question before the Court is whether a Hindu husband, married under Hindu Law, by embracing Islam, can solemnise second marriage?
(2) Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be a Hindu?
(3) Whether the apostate husband would be guilty of the offence under section 494 of the IPC?
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. In re Ram Kumari, (1891) ILR 18 Cal 266, where a Hindu wife became converted 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, IPC. It is held that there was no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond is concerned, such view is contrary to the spirit of Hindu Law. The Madras High Court followed Ram Kumari (in re:), (1891) ILR 18 Cal 266 in Budansa v. Fathima, AIR 1914 Mad 192. In Gul Mohammed v. Emperor, AIR 1947 Nag 121: 1947 (48) Cr LJ 43, 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 IPC.
In Nandi alias Zainab v. Crown, ILR (1920) 1 Lah 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman. She was charged with an offence under section 494 of the IPC. 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. In Emperor v. Mt. Ruri, AIR 1919 Lah 389: 1919 (2) Cr LJ 3, a Christian wife renounced Christianity and embraced Islam and then married a Mohammedan, 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.
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. The position has not changed after coming into force of the Hindu Marriage Act, 1955, rather it has become worse for the apostate. 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 be 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.
Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage. The second marriage by a convert without having his first marriage dissolved under law would therefore be in violation of the Act and as such void in terms of section 494, IPC.