CASE ANALYSIS:

LILY THOMAS, ETC. ETC.

VS
UNION OF INDIA & ORS.1

BLUE PRINT OF THE CASE ANALYSIS

1.) FACTS OF THE CASE

2.) ISSUES RAISED

3.) RULE APPLICABLE

4.) ARGUMENTS OF BOTH PARTIES

5.) ANALYSIS: SUPREME COURT ON THE ISSUES OF THE CASE

6.) CRITICAL ANALYSIS

7.) CONCLUSION

1
Lily Thomas Etc. Etc. v. Union of India & Ors., (2000) 6 SCC 224

1
 FACTS OF THE CASE

 The case came to the court when the petitioner, Sushmita Ghosh filed a writ
petition stating that she was married to Shri GC Ghosh as per Hindu rites and
rituals since 1984.

 On 1st April 1992, the respondent asked the petitioner to agree to divorce by
mutual consent as he had decided to take Islam as his religion. He also submitted
a certificate issued by Maulana Qari Mohammad Idris, Shahi Qazi stating that he
had embraced Islam on his own will.

 The petitioner claimed that the respondent had no real faith in Islam and had
changed his religion only to marry another woman named “Vanita Gupta” which
was not an exercise of his freedom of religion.

 She pointed out that there was no change in his way of living and he had not
even changed his name and religion and had taken to Islam only to avoid the
clutches of Hindu Marriage Act,1955 which prohibit bigamy.

 She submitted the evidence of a VISA application of the respondent to

Bangladesh, where the respondent and his second wife had written their religion
as Hindu and names as, G.C. Ghosh and Vanita Ghosh respectively. Moreover,
the birth certificate of the child born out of the second marriage too showed its
parents’ names as GC Ghosh and Vanita Ghosh which meant that the respondent
had not changed his religion because of his faith but for the fulfillment of his
ulterior motives.

 The petitioner was only 34 years old, not employed anywhere and was thus
undergoing mental trauma and distress.

 A review petition was filed for Sarla Mudgal v. Union of India2 on the ground
that it violated Article 20(1),21, 25,26 of the Constitution.

ISSUES RAISED

2
Sarla Mudgal v. Union of India (1995) 3 SCC 635

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 ISSUE I:

Whether a Hindu husband can solemnize a second marriage after

converting to Islam and what would be its validity?

ISSUE II:

Would such husband be held liable for bigamy and attract criminal
provisions under Section 494 of IPC?

ISSUE III:

Whether there should be a Uniform Civil Code for all citizens of India?

ISSUE IV:

Whether the judgement given in Sarla Mudgal v. Union of India is violative

of Articles 20(1),21, 25,26 of the Constitution?

RULES APPLICABLE
3
1. HINDU MARRIAGE ACT 1955
SECTION 5(i)
SECTION 11
SECTION 17

2. INDIAN PENAL CODE 1860

SECTION 494

3. CRIMINAL PROCEDURE CODE 1973

SECTION 198

RULES APPLICABLE

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 SECTION 5 OF HINDU MARRIAGE ACT 1955

Section 5 of the act prescribes the conditions for a valid Hindu marriage.
The relevant sub-section is discussed below.

“Conditions for a Hindu marriage – A marriage may be solemnized

between any two Hindus, if the following conditions are fulfilled,
namely:

(i) neither party has a spouse living at the time of marriage”3

One of the essential requisites for a valid Hindu marriage is that either
party should not have a spouse living on the date of marriage.

SECTION 11 OF HINDU MARRIAGE ACT 1955

Section 11 provides 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, 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”4.

Thus, Section 11 read with Section 5(i) indicates that any marriage with
a person whose previous marriage was subsisting on the date of such
marriage would be void.

3
S. 5(i), Hindu Marriage Act, 1955
4
S. 11, Hindu Marriage Act, 1955

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 SECTION 17 OF HINDU MARRIAGE ACT 1955

This section lays down as under:

“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 shall
apply accordingly”.5

The first part talks about the marriage being void as repeated in Section
5(i) and 11 of the Act. The second part attracts penal provisions for
bigamy (Section 494 and 495 of IPC). Any marriage solemnized by the
husband during the subsistence of previous marriage, in spite of his
conversion would be an offence triable under Section 17 of the Hindu
Marriage Act read with Section 494 IPC.

SECTION 494 OF INDIAN PENAL CODE 1860

Section 494 provides as under:

“Marrying again during life-time of husband or wife.- Whoever,

having a husband or wife living, marriages 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

5
S. 17, Hindu Marriage Act, 1955

6
 description for a term which may extend to seven years, and shall also
be liable to fine”.6

The words "Husband or Wife" are important as they indicate the

personal law applicable to them. Additionally, Section 494 does not
refer to any religious denomination.

SECTION 198 OF CRIMINAL PROCEDURE CODE 1973

Relevant portion of Section 198 of the CrPC is as under:

“Prosecution for offences against marriage –

(1) No Court shall take cognizance of an offence punishable under

Chapter XX of the Indian Penal Code (45 of 1860) except upon a
complaint made by some person aggrieved by the offence: Provided
that –

(c) where the person aggrieved by an offence punishable under

Section 494 or Section 495 of the Indian Penal Code is the wife,
complaint may be made on her behalf by her father, mother, brother,
sister, son or daughter or by her father's or mother's brother or sister,
or, with the leave of the court, by any other person related to her by
blood, marriage or adoption”.7

A complaint has to be made by the persons specified in the above

section for the Court to take cognizance of an offence. In the present
case, the wife filed a writ petition in the Court for the offence of bigamy
after her husband converted to another religion and married and
therefore it has to be investigated under the Hindu Marriage Act.

6
S. 494, Indian Penal Code, 1860
7
S. 198, Criminal Procedure Code, 1973

7
 ARGUMENTS OF BOTH PARTIES

ISSUE I:

Whether a Hindu husband can solemnize a second marriage after

converting to Islam and what would be its validity?

PETITIONER:

The petitioner pointed out that the respondent had not changed his name
and religion even after conversion to Islam. The evidence of the electoral
card, visa application to Bangladesh and the birth certificate of the child
born from second marriage showed that the name of the respondent was
“G.C. Ghosh” and the second wife was “Vanita Ghosh”. Both wrote their
religion as “Hindu” which showed that the respondent had no faith in Islam
and had changed his religion in order to remarry and therefore the second
marriage should be dissolved for being void.

RESPONDENT:

8
The respondent exercised his freedom of religion by taking to Islam and
thus he claimed that he can have two wives even if the first one is Hindu. It
was his fundamental right and therefore he claimed that the second
marriage should be held legal.

ISSUE II:

Would such husband be held liable for bigamy and attract criminal
provisions under Section 494 of IPC?

PETITIONER:

The petitioner pleaded that the male polygamy in Muslim Law should be
held unconstitutional as it violates the Article 21 i.e., Right to Life and
Liberty of women who face the marriage and betrayal and therefore be
criminally liable under Section 494 of IPC.

RESPONDENT:

The respondent stated that it was his right to freedom of conscience and
since he initiated the plea as a converted Muslim, he has contracted the
second marriage as per Muslim personal law and thus he is not subject to
the HINDU MARRIAGE ACT 1955 which makes bigamy an offence. So,
he cannot be held liable.

ISSUE III:

Whether there should be a Uniform Civil Code for all citizens of India?

PETITIONER:

9
The petitioner argued that there should be a Uniform Civil Code to deal
with the differences in various personal laws. She said that many women
have filed petitions in the courts to declare polygamy in Muslim Law as
unconstitutional. She pleaded on the behalf of such women that the practice
disrespects their liberty and integrity. Thus, Uniform Civil Code should be
applied so that the fundamental rights are not violated by any personal law.

RESPONDENT:

The state agreed and remarked that a comprehensive legislation would be

introduced keeping in mind the human rights of women. On the question of
Uniform Civil Code, it stated that it could only be done if the communities
which desire such code approach the government and take some initiatives
in the matter.

ISSUE IV:

Whether the judgement given in Sarla Mudgal v. Union of India is violative

of the fundamental rights of the Constitution?

PETITIONER:

The petitioner mentioned that the Court has power to review and can
exercise its power under Article 136 and 32 or any provisions of
Constitution if it is satisfied that its directions have resulted in deprivation
of fundamental or any legal rights of any citizen. The petitioner pleaded
that the judgement of Sarla Mudgal v. Union of India interpreting Section
494 is violative of fundamental rights of the people and contended that the
law declared in that case could not be applied to marriages solemnized in
violation of mandate of law before the date of judgement.

RESPONDENT:

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The respondents submitted that such review petition was contrary to law
and the judgement given in Sarla Mudgal v. Union of India. They stated
that review is a creation of statute and has to be exercised only within the
limits prescribed by law. Therefore, the judgement cannot be reviewed for
the reasons urged by petitioners.

ANALYSIS

11
 SUPREME COURT ON THE ISSUES

ISSUE I:

The Court held that if a party contracts second marriage during the lifetime
of the first, then such marriage would be null and void under Section 11 of
the Hindu Marriage Act 1955 and thus will be an offence punishable under
Section 17 of the Act which talks about bigamy. It held that mere
conversion does not dissolve the marriage solemnized under Hindu
Marriage Act automatically and the parties continue to be “husband and
wife”. Conversion is now a ground for judicial separation under Section 10
and if a decree is not passed, any marriage solemnized while the first one is
subsisting is null and void under Section 5 read with Section 11 of Hindu
Marriage Act. He will also be made liable for the offence of bigamy in
spite of his conversion to Islam.

The Court also stated that religion is a matter of faith and belief and if a
person has converted only for some worldly gain or benefit, it would be
religious bigotry. Such person will not be permitted to take such advantage
as religion is not a commodity to be exploited8.

ISSUE II:

The court held that the marriage contracted without dissolving the prior
would be void in spite of conversion and would attract the penal provisions
of Section 494 and 495 of IPC read with Section 17 of HMA.

It also distinguished Muslim law from other personal laws. It stated that
the offence of bigamy could be avoided only if the first marriage was also
contracted under Muslim law (this case) and if the first marriage is under
any other law, then it should be dissolved as per their personal law
otherwise the person would be held liable for bigamy.
Thus, any person converting to Islam only to remarry/desert his wife and actually
marrying would be liable for prosecution under Section 494 and 495 of the Indian Penal
Code 1860 for the offence of bigamy and all such cases will be seen from the lenses of
Hindu Marriage Act.

8
Lily Thomas v. Union of India (2000) 6 SCC 224

12
ISSUE III:
The court, in the present case, denied the drafting for Uniform Civil Code. It cleared
that it has no power to give directions for the enforcement of the Directive Principles of
the State Policy as it cannot legislate.9

It marked that while having a Uniform Civil Code is desirable, enacting it in one go
would do much harm to the unity and integrity of India.10 It was therefore held that the
question of uniform civil code does not arise in the present case.

In the case of Sarla Mudgal v. Union of India, the judges only expressed their views on
the matter which is not binding. However, the court in the present case suggested some
measures to the government to bring in a comprehensive legislation which is in line
with the human rights of women.

ISSUE IV:
The court said the dictionary meaning of the word “review” is the act of looking
something again with a view to correction or improvement. It pointed out the errors in
law cannot stand in the way of Justice and if an error is pointed in review petition, the
Court will surely rectify the error.11

It held that two views on the same subject are possible is no ground for reviewing any
earlier judgement. Therefore, the power to review can be exercised for a correction of a
mistake and not to substitute a view. It was given to the Court by the lawmakers in
Article 137 of the Constitution keeping in mind the human fallibility. In the present
case, the notice for review has been issued for the interpretation of Section 494 of IPC
and not the whole judgement. The court did not find any error in the judgement on the
face of record requiring review. The petitioners did not make out any case for reviewing
the judgement.

Moreover, the court held that the law made in Sarla Mudgal case would apply to those
marriages solemnized before the date of judgement as they merely interpreted an
existing law and not legislated it. The petitioners were not deprived of their life and
liberty and had only been prosecuted under Section 494 of IPC. Their right to religion
was not breached as it is such freedom which should not infringe the rights of others.

Thus, the petition that the case violated the fundamental rights of the petitioners was
dismissed and it was held that it did not infringe any rights of the people.

9
Maharshi Avadhesh v. Union of India 1994 Supp. (1) SCC 713
10
Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498
11
Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji (1971) 3 SCC 844

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CRITICAL ANALYSIS

14
The present case is a landmark judgement as it reaffirmed the Sarla Mudgal case and
punished people who converted to another religion for their benefit just to avoid
clutches of their personal law.

The court resolved the first issue by stating that religion is not a commodity to be
exploited and such marriage would be null and void as it is violative of Article 21 of the
Constitution. The court added that if any person tries to take undue advantage of
religion, he shall be punished and, in this case, held that the respondent was guilty for
the offence of bigamy and would be seen from the lenses of Hindu Marriage Act as the
first marriage was solemnized as per the Act. It marked that mere conversion does not
end the marriage and the marriage shall subsist till a decree of divorce is passed.
Apostasy is a ground for divorce under Section 13 of Hindu Marriage Act.

The court answered the first two issues with ease. But the third issue is such that the
Court could not resolve then and is still a question. The enactment of uniform civil code
provided under Directive Principles of State Policy is an issue which needs to be
resolved in order to correct the loopholes of different personal laws. Looking at the
present case, it would have been easier to solve the case if every religion
prohibited/permitted polygamy. But in a society like India, where people are governed
by varied cultures, religions, traditions, linguistics etc. it is impossible to have a
common ground for all. The court gave its opinion that having a uniform code is
desirable but right now is not the time. It stated that the code should be enacted in stages
so as to avoid clashes between people.12 It also denied to give directions as it was a
matter of state policy and courts could not legislate.

Therefore, the court could not answer the issue. It has been 20 years since the
judgement and the time has still not come for Uniform Civil Code. Questions will arise
until the state and courts finally take a stand and resolve it.

The court also dismissed the review petition of the Sarla Mudgal case that the
judgement violates Article 20,21, 25,26 of the Constitution.

(1) It held that this was far-fetched and contended by those who hide behind the
cloak of religion to escape law. The Apex Court clarified that it had only
interpreted the existing law so the contention that the judgement of Sarla Mudgal
case cannot be applied to the marriages solemnized before the judgement is
mistaken.
(2) The court ruled that none of the petitioners had been deprived of their life and
liberty and had only been charged with Section 494 and Section 495 of the
Indian Penal code. Thus, the judgement does not violate Article 21 of the
Constitution.
(3) The allegation that the judgement is violative of Article 25 of the Constitution is
also far fetched as Article 25 guarantees such freedom which does not infringe
12
Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498

15
 the rights and freedom of others. The plea that the prosecution under IPC is
against Islam is an attempt to narrow down the wider outlook of Islam. Thus, the
right to freedom of practice, profess and propagate religion is not breached.

Therefore, the review petition and other writ petitions were disposed of.

CONCLUSION

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It was therefore held that any person who converts to other religion and marries while
the first marriage is still subsisting, such marriage would be null and void as violative of
Article 21 of the Constitution and such person would be prosecuted for the offence of
bigamy under Section 494 of Indian Penal Code 1860. The law interpreted in a
judgement will be applicable to similar cases before the judgement too as the court had
not legislated but only interpreted an existing law. The respondent was held liable for
bigamy. The petition for Uniform Civil Code was disposed of with clarifications. The
review petition of Sarla Mudgal v. Union of India was also dismissed.

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