SARLA MUDGAL v UNION OF INDIA , AIR 1995 SC 1531

Court: Before Supreme Court of India

Equivalent citations: 1995 AIR 1531, 1995 SCC (3) 635

Petitioner: Smt. Sarla Mudgal, President, Kalyani & Ors.

vs.

Respondent: Union Of India & Ors.

Bench: Justice Kuldip Singh and Justice R M Sahai

Author of the judgement: Justice Kuldip Singh

Decided On: 10th May 1995

Theme of the Case: Second marriage is invalid unless and until first
marriage is dissolved.

Abstract

In the present case, the court held that the second marriage would be invalid
unless and until the first marriage is dissolved by decree under the Hindu
marriage act. According to the factual matrix, the husband has converted
himself to Muslim religion from Hindu Religion and observed polygamy. There
is no punishment prescribed for such acts. But the court in the interpretation of
section 494 of Indian Penal Code held that such marriages are invalid as it does
not serve the purpose behind the enactment.

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Brief Facts and Procedural History:

There are four petitions under Article 32 of the Constitution of India. There are two
petitioners in Writ Petition 1079/89. 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
27, 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 @ 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, IPC. Jitender Mathur asserts that having embraced Islam, he can
have four wives irrespective of the fact that his first wife continues to be Hindu.

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

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.

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 is restrained from entering into second marriage with Vinita Gupta.

Issues before the Court:

 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 the law,
would be a valid marriage qua the first wife who continues to be Hindu?
 Whether the apostate husband would be guilty of the offence under Section 494 of the
Indian Penal Code (IPC)?

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Ratio of the Court –

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 exist.

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.

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.

Until Uniform Civil Code is enacted for all the citizens of the country, there is an open
inducement to a Hindu husband, who wants to enter into a 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. The doctrine of the 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 was held by the court that no authority could be found to support the view that a marriage
solemnised 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.

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 spouse’s 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.

The Court, 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.

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 (i) (ii) is that “the other party has ceased to be a Hindu
by conversion to another religion”.

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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.

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.

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, IPC and has to be
given the meaningful interpretation.

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 a 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, IPC.
Any act which is in violation of mandatory provisions of law is per-se void.

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.

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, IPC. 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 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.

Relevant cases referred

In Re Ram Kumari 1891 Calcutta1

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 IPC. It was 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 was concerned, such view was
contrary to the spirit of the Hindu law. 

1
(1891)ILR 18 Cal 264

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In Gul Mohammed v. Emperor2

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.

Nandi alias Zainab vs. The Crown3

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 vs. Mt. Ruri4,

This was a case of Christian wife. The Christian wife renounced Christianity and embraced
Islam and then married a Mohomedan. 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.

Waghela Rajsanji v. Shekh Masludin5

The Privy Council in this case 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, and they interpreted equity and good conscience to mean the rules of English law
if found applicable to Indian society and circumstances.

Muhammad Raza v. Abbas Bandi Bibi6.

The Privy Council in  this case held that there is no rule of English law which can be made
applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The
English law only deals and can only deal with Christian marriages and with grounds for
dissolving a Christian marriage. Therefore we must decided 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.

2
AIR 1947 Nagpur
3
ILR (1920) Lahore 440

4
AIR 1919 Lahore
5
(1887) ILR 11 Bom 551
6
(1932) 34 BOMLR 1048

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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 renulciation 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
religious.. 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 tenets of the Zoroastrian religion.

Sayeda Khatoon alias A.M. Obadiah vs. M. Obadiah7,

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 Mohammedan Law.. The Defendant is not governed by the
Mahommedan 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 Mahommedan country; and the
Mahommedan Law is not the Law of the Land.. Now all my opinion, is it the Law of India,
that when any person is converted to Islam the Mahommedan Law shall be applicable to him
in all his relationships?.. I can see no reason why the Mahommedan Law should be preferred
to the Jewish Law in a matrimonial dispute between a Mahommdan 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 Mahommedans, 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 Jesish 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 Mahommedan Law when one of the parties ceases to be a Mahommedan.
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."

7
(1944- 45) 49 CWN 745

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Robasa Khanum vs. Khodadad Bomanji Irani8.

In this case the parties were married according to Zoroastrian 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, Mahomedans, 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."

 Andal Vaidyanathan vs. Abdul Allam Vaidya9,

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 Mahamedan sense which can be dissolved in a Mahomedan manner. It
is a statutory marriage and can only be dissolved in accordance with the Statute

Relevant Provisions
8
AIR 1947 Bom 272; (1946) 48 BOMLR 864
9
(1946) 1 MLJ 402

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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."

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 (i) (ii) is that "the other party has ceased to be a Hindu
by conversion to another religion". Sections 11 and 15 of the Act is as under:-

"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 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."

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 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 illegal. 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.

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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.

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.

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, IPC and has to be
given meaningful interpretation.

The expression "void" under section 494, IPC 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, IPC.

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, IPC. Any act
which is in violation of mandatory provisions of law is per-se void.

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.

Held:

All the four ingredients of Section 494 IPC 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. The
Court, therefore, hold that the second marriage of a Hindu husband after his conversion to
Islam is a void marriage in terms of Section 494 IPC.

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 solemnized 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.

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 CONCLUSION

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 Mulsim 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 problem with which these appeals are concerned is that many Hindus have changed their
religion and have become convert to Islam only for purposes of escaping the consequences of
bigamy. 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

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