DOC-20241129-WA0009.

Lily Thomas, Etc. Etc. vs Union Of India & Ors.
on 5 April, 2000
Lily Thomas, Etc. Etc. vs Union Of India & Ors. on 5 April, 2000
Equivalent citations: 2000(2)ALD(CRI)686, 2000(1)ALT(CRI)363,

2001(1)BLJR499, 2000CRILJ2433, II(2000)DMC1SC, JT2000(5)SC617,
2000(4)SCALE176, (2000)6SCC224, 2000(2)UJ1113(SC)
Author: S. Saghir Ahmad
Bench: R.P. Sethi, S. Saghir Ahmad
ORDER
S. Saghir Ahmad, J.
1. I respectfully agree with the views expressed by my esteemed Brother, Sethi, J., in the erudite
judgment prepared by him, by which the Writ Petitions and the Review Petition are being disposed
of finally. I, however, wish to add a few words of my own.
2. Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ
Petition [W.P.(C) No. 509 of 1992] in this Court stating that she was married to Shri G.C. Ghosh in
accordance with the Hindu rites on 10th May, 1984 and since then both of them were happily living
at Delhi. The following paragraphs of the Writ Petition, which are relevant for this case, are quoted
below.
15. That around the 1st of April, 1992, the Respondent No. 3 told the petitioner that she should in
her own interest agree to her divorce by mutual consent as he had any way taken to Islam so that he
may remarry and in fact he had already fixed to marry one Miss Vanita Gupta resident of D-152
Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992. The Respondent
No. 3 also showed a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi
dated 17th June, 1992 certifying that the Respondent No. 3 had embraced Islam. True copy of the
Certificate is annexed to the present petition and marked as Annexure-II.
16. That the petitioner contacted her father and aunt and told them about her husband's conversion
and intention to remarry. They all tried to convince the Respondent No. 3 and talk him out of the
marriage but of no avail and he insisted that Sushmita must agree to her divorce otherwise she will
have to put up with second wife.
17. That it may be stated that the Respondent No. 3 has converted to Islam solely for the purpose of
re-marrying and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor
has he changed his name or religion and other official documents.
Indian Kanoon - http://indiankanoon.org/doc/80351/ 1

18. That the petitioner asserts her fundamental rights guaranteed by Article 15(1) not to be
discriminated against on the ground of religion and sex alone. She avers that she has been
discriminated against by that part of Muslim Personal Law which is enforced by the State Action by
issue of the Muslim Personal Law (Shariat) Act, 1937. It is submitted that such action is contrary to
Article 13(1) and is unconstitutional.
19. That the truth of the matter is that Respondent No. 3 has adopted the Muslim religion and
became a convert to that religion for the sole purpose of having a second wife which is forbidden
strictly under the Hindu Law. It need hardly be said that the said conversion was not a matter of
Respondent No. 3 having faith in the Muslim religion.
20. The petitioner is undergoing great mental trauma. She is 34 years of age and is not employed
anywhere.
21. That in the past several years, it has become very common amongst the Hindu males who cannot
get a divorce from their first wife, they convert to Muslim religion solely for the purpose of marriage.
This practice is invariably adopted by those erring husband who embrace Islam for the purpose of
second marriage but again become reconvert so as to retain their rights in the properties etc. and
continue their service and all other business in their old name and religion.
22. That a Woman's Organisation "Kalyani" terribly perturbed over this growing menace and
increase in number of desertions of the lawfully married wives under the Hindu Law and splitting
up and ruining of the families even where there are children and when no grounds of obtaining a
divorce successfully on any of the grounds enumerated in Section 13 of the Hindu Marriage Act is
available to resort to conversion as a method to get rid of such lawful marriages, has filed a petition
in this Hon'ble Court being Civil Writ Petition No. 1079 of 1989 in which this Hon'ble Court has
been pleased to admit the same. True copy of the order dated 23.4.90 and the order admitting the
petition is annexed to the present petition and marked as Annexure-III (Collectively)
3. She ultimately prayed for the following reliefs:
(a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus

and non-Hindus after conversion to Islam religion are illegal and void;
(b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable
amendments in the Hindu Marriage Act so as to curtail and forbid the practice of
polygamy;
(c) Issue appropriate direction to declare that where a non Muslim male gets
converted to the "Muslim" faith without any real change of belief and merely with a
view to avoid an earlier marriage or enter into a second marriage, any marriage
entered into by him after conversion would be void;

(d) Issue appropriate direction to Respondent No. 3 restraining him from entering
into any marriage with Miss" Vanita Gupta or any other woman during the
subsistence of his marriage with the petitioner; and
(e) pass such other and further order or orders as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the case.
4. This Petition was filed during the summer vacation in 1992. Mr. Justice M.N. Venkatachaliah (as
he then was), sitting as Vacation Judge, passed the following order on 9th July, 1992:
The Writ Petition is taken on board. Heard Mr. Mahajan, learned senior counsel for
the petitioner. Issue notice. Learned Counsel says that the respondent who was a
Hindu by religion and who has been duly and legally married to the petitioner
purports to have changed his religion and embraced Islam and that he has done only
with a view to take another wife, which would otherwise be an illegal bigamy.
Petitioner prays that there should be interdiction of the proposed second marriage
which is scheduled to take place tomorrow i.e. 10th July, 1992. It is urged that the
respondent, whose marriage with the petitioner is legal and subsisting cannot take
advantage of the feigned conversion so as to be able to take a second wife.
All that needs to be said at this stage is that if during the pendency of this writ
petition, the respondent proceeds to contract a second marriage and if it is ultimately
held that respondent did not have the legal capacity for the second marriage, the
purported marriage would be void.
5. On 17th July, 1992, when this case was taken up, the following order was passed:
Counter affidavit shall be filed in four weeks. Place this matter before a Bench of
which Hon'ble Pandian, J. is a member.
Shri Mahajan submitted that since the apprehended second marriage has not yet
taken place, it is appropriate that we stop the happening of that event till disposal of
this petition. Learned Counsel for the respondent-husband says that he would file a
counter affidavit within four weeks. He assures that his client would not enter into a
marriage in hurry before the counter-affidavit is filed.
6. On 30th November, 1992, this Writ Petition was directed to be tagged with Writ Petition (C) No.
1079/89 (Smt. SarlaMudgal, President, "Kalyani" and Ors. v. Union of India and Ors. and W.P.
(Civil) No. 347/90 Sunita @ Fatima v. Union of India and Ors..
7. It may be stated that on 23rd April,1990 when the Writ Petition (C) No. 10797 89 and Writ
Petition (C) No. 347/90 were taken up together, the Court had passed the following order:

Issue Notice to respondent No. 3 returnable within twelve weeks in both the Writ
Petitions. Learned Counsel for the petitioners in the Writ Petitions, after taking
instructions, states that the prayers in both the writ petitions are limited to a single
relief, namely, a declaration that where a non-Muslim male gets converted to the
Muslim faith without any real change of belief and merely with a view to avoid any
earlier marriage or to enter into a second marriage any marriage entered into by him
after conversion would be void.
8. Thus, in view of the pleadings in Smt. Sushmita Ghosh's case and in view of the order passed by
this Court in the Writ Petitions filed separately by Smt. Sarla Mudgal and Ms. Lily Thomas, the
principal question which was required to be answered by this Court was that where a non-Muslim
gets converted to the 'Muslim' faith without any real change or belief and merely with a view to
avoid an earlier marriage or to enter into a second marriage, whether the marriage entered into by
him after conversion would be void?
9. Smt. Sushmita Ghosh, in her Writ Petition, had clearly spelt out that her husband, Shri G.C.
Ghosh, had not really converted to 'Muslim' faith, but had only feigned conversion to solemnise a
second marriage. She also stated that though freedom of religion is a matter of faith, the said
freedom cannot be used as a garb for evading other laws where the spouse becomes a convert to
'Islam' for the purpose of avoiding the first marriage. She pleaded in clear terms that IT MAY BE
STATED THAT THE RESPONDENT NO. 3 HAS CONVERTED TO ISLAM SOLELY FOR THE
PURPOSE OF RE-MARRYING AND HAS NO REAL FAITH IN ISLAM. HE DOES NOT PRACTICE
THE MUSLIM RITES AS PRESCRIBE NOR HAS HE CHANGED HIS NAME OR RELIGION AND
OTHER OFFICIAL DOCUMENTS.
10. She further stated that the truth of the matter is that Respondent No. 3 has adopted the 'Muslim'
religion and become a convert to that religion for the sole purpose of having a second wife, which is
forbidden strictly under the Hindu Law. It need hardly be.said that the, said conversion was not a
matter of Respondent No. 3 having faith in the Muslim religion.
11. This statement of fact was supported by the further statement made by her in Para 15 of the Writ
Petition in which she stated that her husband, Shri G.C. Ghosh, told her that he had taken to 'Islam'
"so that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta resident of
D-152 Preet Vihar, Delhi, a divorcee with two children in the second week of July, 1992."
12. At the time of hearing of these petitions, counsel appearing for Smt. Sushmita Ghosh filed
certain additional documents, namely, the birth certificate issued by the Govt. of the Union Territory
of Delhi in respect of a son born to Shri G.C. Ghosh from the second wife on 27th May, 1993. In the
birth certificate, the name of the child's father is mentioned as "G.C. Ghosh" and his religion is
indicated as "Hindu". The mother's name is described as "Vanita Ghosh" and her religion is also
described as "Hindu". In 1994, Smt. Sushmita Ghosh obtained the copies of the relevant entries in
the electoral list of polling station No. 71 of Assembly Constituency-44 (Shahdara), in which the
name of Shri G.C. Ghosh appeared at S.No. 182 while the names of his father and mother appeared
and S. Nos. 183 and 184 respectively and the name of his wife at S.No. 185. This entry is as under:

S.No. House Name Father's/ M/F Age in the No. Husband's list _____ _____
_____ _____ _____ _____ 185 C-41 Vanita Gyan Chand Ghosh Ghosh F 30
13. In 1995, Shri G.C. Ghosh had also applied for Bangladesh visa. A photostat copy of that
application has also been filed in this Court. It indicates that in the year 1995 Shri G.C. Ghosh
described himself as "Gyan Chand Ghosh" and the religion which he professed to follow was
described as "Hindu". The marriage of Shri G.C. Ghosh with Vanita Gupta had taken place on
3.9.1992. The certificate issued by Mufti Mohd. Tayyeb Qasmi described the husband as "Mohd.
Carim Gazi", S/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite of his having become
"Mohd. Carim Gazi", he signed the certificate as "G.C. Ghosh". The bribe is described as "Henna
Begum" D-152 Preet Vihar, Delhi. Her brother, Kapil Gupta, is the witness mentioned in the
certificate and Kapil Gupta has signed the certificate in English.
14. From the additional documents referred to above it would be seen that though the marriage took
place on 3.9.1992, Shri G.C. Ghosh continued to profess 'Hindu' religion as described in the birth
certificate of his child born out of the second wedlock and also in the application for Bangladesh
visa. In the birth certificate as also in the application for Bangladesh visa, he described himself as
"G.C. Ghosh" and his wife as "Vanita Ghosh" and both were said to profess "Hindu" religion. In the
electoral roll also, he has been described as "Gyan Chand Ghosh" and the wife has been described as
"Vanita Ghosh".
15. It, therefore, appears that conversion to 'Islam' was not the result of exercise of the right to
freedom of conscience, but was feigned, subject to what is ultimately held by the trial court where
G.C. Ghosh is facing the criminal trial, to get rid of his first wife, Smt. Sushmita Ghosh and to marry
a second wife. In order to avoid the clutches of Section 17 of the Act, if a person renounces his
"Hindu" religion and converts to another religion and marries a second time, what would be the
effect on his criminal liability is the question which may not be considered.
16. It is in this background that the answer to the real question involved in the case has to be found.
17. Section 5 of the hindu Marriage Act prescribes the conditions for a valid Hindu marriage. A
portion of this Section , relevant for our purposes, is quoted below:
5. 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,
(ii)...
(Hi)...
(iv)...

(v)...
(vi)...
18. Section 11 provides as under:
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 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.
19. Thus, Section 5(i) read with Section 11 indicates that any marriage with a person whose previous
marriage was subsisting on the date of marriage, would be void ab initio.
20. The voidness of the marriage is further indicated in Section 17 of the Act in which the
punishment for bigamy is also provided. This Section lays down as under:
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 shall apply accordingly.
21. The first part of this Section declares that a marriage between two Hindus which is solemnized
after the commencement of this Act, would be void if on the date of such marriage either party had a
husband or wife living. In his already been pointed out above that one of the essential requisites for
a valid Hindu marriage, as set out in Section 5(i), is that either party should not have a spouse living
on the date of marriage. Section 11 which has been quoted above indicates that such a marriage will
be void. This is repeated in Section 17. The latter part of this Section makes Sections 494 and 495 of
the Indian Penal Code applicable to such marriages by reference.
22. Now, Section 494 provides as under:
494. 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 description for a term which may extend to seven years,
and shall also be liable to fine.
Exception.- This 0 does not extend to any person whose marriage with such husband or wife has
been declared void by a Court of competent jurisdiction.
Nor to any person who contracts a marriage during the life of a former husband or wife, if such
husband or wife, at the time of the subsequent marriage, shall have been continually absent from
such person for the space of seven years, and shall not have been heard of by such person as being

alive within that time provided the person contracting such subsequent marriage shall, before such
marriage takes place, inform the person with whom such marriage is contracted of the real state of
facts SO far as the same are within his or her knowledge.
23. We are not in this case concerned with the exception of Section 494 and it is the main part of
Section 494 which is involved in the present case. A perusal of Section 494 indicates that in order to
constitute an offence under this Section , the following ingredients must be found to be existing:
(i) First marriage of the accused,
(ii) Second marriage of the accused,
(iii) The first wife or husband, as the case may be, should be alive at the time of the
second marriage.
(iv) Under law, such marriage should be void by reason of its taking place during the
life-time of such husband or wife.
24. We have already seen above that under the Hindu Marriage Act, one of the essential ingredients
of the valid Hindu marriage is that neither party should have a spouse living at the time of marriage.
If the marriage takes place in spite of the fact that a party to that marriage had a spouse living,such
marriage would be void under Section 11 of the Hindu Marriage Act. Such a marriage is also
described as void under Section 17 of the Hindu Marriage Act under which an offence of bigamy has
been created. This offences has been created by reference. By providing in Section 17 that provisions
of Section 494 and 495 would be applicable to such a marriage, the Legislature has bodily lifted the
provisions of Section 494 and 495 IPC and placed it in Section 17 of the Hindu Marriage Act. This is
a well-known legislative device. The important words used in Section 494 are "MARRIAGE IN ANY
CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE DURING THE
LIFE-TIME OF SUCH HUSBAND OR WIFE". These words indicate that before an offence under
Section 494 can be said to have been constituted, the second marriage should be shown to be void in
a case where such a marriage would be void by reason of its taking place in the life-time of such
husband or wife. The words "Husband or Wife" are also important in the sense that they indicate the
personal law applicable to them which would continue to be applicable to them so long as the
marriage subsists and they remain "Husband and Wife".
25. Chapter XX of the Indian Penal Code deals with offences relating to marriage. Section 494 which
deals with the offence of bigamy is a part of Chapter XX of the Code. Relevant portion of Section 198
of the CrPC which deals with the prosecution for offences against marriage provides as under:
198. 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 -

(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or
is from sickness or infirmity unable to make a complaint, or is a woman who,
according to the local customs and manners, ought not to be compelled to appear in
public, some other person nay, with the leave of the Court, make a complaint on his
or her behalf;
(b) where such person is the husband, and he is serving in any of the Armed Forces of
the Union under conditions which are certified by his Commanding Officer as
precluding him from obtaining leave of absence to enable him to make complaint in
person, some other person authorized by the husband in accordance with the
provisions of Sub-section (4) may make a complaint on his behalf; (c) where the
person aggrieved by an offence punishable under Section 494 or Section 495 of the
Indian Penal Code (45 of 1860) 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.
(2) For the purposes of Sub-section (1), no person other than the husband of the
woman shall be deemed to be aggrieved by any offence punishable under Section 497
or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the
woman on his behalf at the time when such offence was committed may, with the
leave of the Court, make a complaint on his behalf.
(3)...
(4)...
(5)...
(6)...
(7)...
26. It would thus be seen that the Court would take cognizance of an offence punishable under
Chapter XX of the Code only upon a complaint made by any of the persons specified in this Section .
According to Clause (c) of the Proviso to Sub-section (1), a complaint for the offence under Section
494 or 495 can be made by the wife or on her behalf by her father, mother, brother, sister, son or
daughter or by her father's or mother's brother or sister. Such complaint may also be filed, with the
leave of the Court, by any other person related to the wife by blood, marriage or adoption. If a Hindu
wife files a complaint for the offence under Section 494 on the ground that during the subsistence of
the marriage, her husband had married a second wife under some other religion after converting to
that religion, the offence of bigamy pleaded by her would have to be investigated and tried in

accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen
whether the husband, who was married a second wife, has committed the offence of bigamy or not.
Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as
an offence under Section 17 of the Act, any marriage solemnized by the husband during the
subsistence of that marriage, in spite of his conversion to another religion, would be an offence
triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC. Since taking of
cognizance of the offence under Section 494 is limited to the complaints made by the persons
specified in Section 198 of the CrPC, it is obvious that the person making the complaint would have
to be decided in terms of the personal law applicable to the complainant and the respondent
(accused) as mere conversion does not dissolve the marriage automatically and they continue to be
"husband and wife".
27. It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to Sections 43 and
44 of the Special Marriages Act. It also corresponds to Sections 4 & 5 of the Parsi Marriage &
Divorce Act, Section 61 of the Indian Divorce Act and Section 12 of the Matrimonial Causes Act
which is an English Act.
28. In Bhaurao Shankar Lokhande v. State of Maharashtra , this Court held as under:
Section 17 provides that any marriage between two Hindus solemnized after the
commencement of the Act is void if at the date of such marriage either party had a
husband or wife living and that the provisions of Sections 494 and 495 I.P.C.shall
apply accordingly. The marriage between two Hindus is void in view of Section 17 if
two conditions are satisfied:
(i) the marriage is solemnized after the commencement of the Act;
(ii) at the date of such marriage, either party had a spouse living. If the marriage
which took place between the appellant and Kamlabai in February, 1962 cannot be
said to be "solemnized', that marriage will not be void by virtue of Section 17 of the
Act and Section 494 I.P.C. will not apply to such parties to the marriage as had a
spouse living.
29. This decision was followed in Kanwal Ram v. H.P. Administration . The matter was again
considered in Priya Bala Ghosh v. Suresh Chandra Ghosh . In Gopal Lal v. State of Rajas than ,
Murtaza Fazal Ali, J., speaking for the Court observed as under:
Where a spouse contracts a second marriage while the first marriage is still subsisting
the spouse would be guilty of bigamy under Section 494 if it is proved that the second
marriage was a valid one in the sense that the necessary ceremonies required by law
or by custom have been actually performed. The voidness of the marriage under
Section 17 of the Hindu Marriage Act is in fact one of the essential ingredients of
Section 494 because the second marriage will become void only because of the
provisions of Section 17 or the Hindu Marriage Act.

30. In view of the above, if a person marries a second time during the lifetime of his wife, such
marriage apart from being void under Section 11 & 17 of the Hindu Marriage Act would also
constitute an offence and that person could be liable to be prosecuted under Section 494 IPC. While
Section 17 speaks of marriage between two "Hindus", Section 494 does not refer tc any religious
denomination.
31. Now, conversion or apostasy does not automatically dissolve a marriage already solemnized
under the Hindu Marriage Act. It only provides a ground for divorce under Section 18. The relevant
portion of Section 13 provides as under:
13. Any marriage solemnized, whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party (i) ...
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) ...
(iv) ...
(v) ...
(vi)...
(vii)...
(viii) ...
(ix)...
32. Under Section 10 which provides for judicial separation, conversion to another religion is now a
ground for a decree for judicial separation after the Act was amended by Marriage Laws
(Amendment) Act, 1976. The first marriage, therefore, is not affected and it continues to subsist. If
the 'marital' status is not affected on account of the marriage still subsisting, his second marriage
qua the existing marriage would be void and in spite of conversion he would be liable to be
prosecuted for the offence of bigamy under Section 494.
33. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act
between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial
bond, but apostasy is a ground for divorce under Section 13 as also a ground for judicial separation
under Section 10 of the Hindu Marriage Act. Hindu Law does not recognised bigamy. As we have
seen above, the Hindu Marriage Act, 1955 provides for "Monogamy". A second marriage, during the
life-time of the spouse, would be void under Sections 11 and 17, besides being an offence.

34. In Govt. of Bombay v. Ganga ILR (1880) 4 Bombay 330, which obviously is a case decided prior
to the coming into force of the Hindu Marriage Act, it was held by the Bombay High Court that
where a Hindu married woman having a Hindu husband living marries a Mohammedan after
conversion to 'Islam', she commits the offence of polyandry as, by mere conversion, the previous
marriage does not come to an end. The other decisions based on this principle are Budansa Rowther
and Anr. v. Fatima Bi and Ors. AIR 1914 Madras 192; Emperor v. Mst. Ruri AIR 1919 Lahore 389;
and Jamna Devi v. Mul Raj 1907 (PR No. 49) 198. In Rakeya Bibi v. Anil Kumar Mukherji ILR
(1948) 2 Cal. 119, it was held that under Hindu Law, the apostasy of one of the spouses does not
dissolve the marriage. In fiayeda Khatoon @ A.M. Obadiah v. M. Obadiah (1944-45) 49 CWW 745, it
was held that a marriage solemnized in India according to one personal law cannot be dissolved
according to another personal law simply because one of the parties has changed his or her religion.
InAmarNathvs. Mrs. Amar Nath (1047) 49 PLR 147 (FB), it was held that nature and incidence of a
Vedic marriage bond, between the parties are not in any way affected by the conversion to
Christianity of one of Theban and the bond will retain all the characteristics of a Hindu marriage
notwithstanding such conversion unless there shall follow upon the conversion of one party,
repudiation or desertion by the other, and unless consequential legal proceedings are taken and a
decree is made as provided by the Native Converts Marriage Dissolution Act.
35. In the case of Gul Mohammad v. Emperor AIR 1947 Nagpur 121, the High Court held that the
conversion of a Hindu wife to Mahomedanism does not, ipso facto, dissolve the marriage with her
Hindu husband. It was further held that she cannot, during his life-time, enter into a valid contract
or marriage with another person. Such person having sexual relation with a Hindu wife converted to
Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was
already married and her husband was alive.
36. From the above, it would be seen that mere conversion does not bring to an end the marital ties
unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the
marriage subsists. Any other marriage, during the subsistence of first marriage would constitute an
offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in
spite of his conversion to some other religion, would be liable to be prosecuted for the . offence of
bigamy. It also follows that if the first marriage was solemnized under the Hindu Marriage Act, the
'husband' or the 'wife', by mere conversion to another religion, cannot bring to an end the marital
ties already established on account of a valid marriage having been performed between them. So
long as that marriage subsists, another marriage cannot be performed, not even under any other
personal law, and on such marriage being performed, the person would be liable to be prosecuted
for the offence under Section 494 IPC.
37. The position under the Mahommedan Law would be different as in spite of the first marriage, a
second marriage can be contracted by the husband, subject to such religious restrictions as have
been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point
also. This is the vital difference between Mahommedan Law and other personal laws. Prosecution
under Section 494 in respect of a second marriage under Mahommedan Law can be avoided only if
the first marriage was also under the Mahommedan Law and not if the first marriage was under any
other personal law where there was a prohibition on contracting a second marriage in the life-time

of the spouse.
38. In any case, as pointed out earlier in the instant case, the conversion is only feigned, subject to
what may be found out at the trial.
39. Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief
which binds the spiritual nature of man to a super-natural being; it is an object of conscientious
devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of
worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every
system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to
have adopted another religion just for some worldly gain or benefit, it would be religious bigotry.
Looked at from this angle, a person who mockingly adopts another religion where plurality of
marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be
permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The
institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage
is a sacrament. Both have to be preserved.
40. I also respectfully agree with Brother Sethi, J. that in the present case, we are not concerned
with the status of the second wife or the children born out of that wedlock as in the instant case we
are considering the effect of the second marriage qua the first subsisting marriage in spite of the
husband having converted to 'Islam'.
41.1 also agree with Brother Sethi, J. that any direction for the enforcement of Article 44 of the
Constitution could not have been issued by only of the Judges in Sarla Mudgal's case. In fact, Sarla
Mudgal's case was considered by this Court in Ahmedabad Women Action Group and Ors. v. Union
of India and it was held that the question regarding the desirability of enacting a Uniform Civil Code
did not directly arise in Sarla Mudgal's case. I have already reproduced the order of this Court
passed in Sarla Mudgal's case on 23.4.1990 in which it was clearly set out that the learned Counsel
appearing in that case had, after taking instructions, stated that the prayers were limited to a single
relief, namely, a declaration that where a non-Muslim male gets converted to the Muslim faith
without any real change of belief and merely with a view to avoid any earlier marriage or to enter
into a second marriage, any marriage entered into by him after conversion would be void.
42. In another decision, namely, Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr. , this Court
had indicated that enactment of a uniform law, though desirable, may be counter-productive.
43. It may also the pointed out that in the counter affidavit filed on 30th August, 1996 and in the
supplementary affidavit filed on 5th December, 1996 on behalf of Govt. of India in the case of Sarla
Mudgal, it has been stated that the Govt. would take steps to make a uniform code only if the
communities which desire such a code approach the Govt. and take the initiative themselves in the
matter. With these affidavits, the Govt. of India had also annexed a copy of the speech made by Dr.
B.R. Ambedkar in the Constituent Assembly on 2nd December, 1948 at the time of making of the
Constitution. While discussing the position of common civil code, Dr. Ambedkar, inter alia, had
stated in his speech (as revealed in the Union of India's affidavit) that "....I should also like to point

out that all that the State is claiming in this matter is a power to legislate. There is no obligation
upon the State to do away with personal laws. It is only giving a power. Therefore, no one need be
apprehensive of the fact that if the State has the power, the State will immediately proceed to
execute or enforce that power in a manner that may be found to be objectionable by the Muslims or
by the Christians or by any other community in India." He further stated in his speech as under:
We must all remember - including Members of the Muslim community who have
spoken on this subject, though one can appreciate their feelings very well - that
sovereignty is always limited, no matter even if you assert that it is unlimited,
because sovereignty in the exercise of that power must reconcile itself to the
sentiments of different communities.
44. Moreover, as pointed out by Brother Sethi, J., learned ASG appearing for the respondent has
stated before the Court that the Govt. of India did not intend to take any action in this regard on the
basis of that judgment alone.
45. These affidavits and the statement made on behalf of the Union of India should clearly dispel
notions harboured by the Jamat-e-Ulema Hind and the Muslim Personal Law Board. I am also of
the opinion, concurring with Brother Sethi, J., that this Court in Sarla Mudgal's case had not issued
any DIRECTION for the enactment of a common civil code.
46. The Review Petition and the Writ Petition are disposed of finally with the clarifications set out
above.
Sethi, J.
47. IA No. 2 of 1995 in Writ Petition (c) No. 588 of 1995 is allowed.
48. Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court in Sarla
Mudgal (Smt.). President. Kalyani and Ors. v. Union of India and Ors. held:
...that the second marriage of a Hindu husband after conversion to islam, without
having his first marriage dissolved under law, would be invalid. The second marriage
would be void in terms of the provisions of Section 494 IPC and the
apostate-husband would be guilty of the offence under Section 494 IPC.
The findings were returned answering the questions formulated by the Court in para
2 of its judgment.
49. The judgment in Sarla Mudgal's case is sought to be reviewed set aside, modified and quashed
by way of the present Review and Writ Petitions filed by various persons and Jamiat-Ulema Hind
and Anr. It is contended that the aforesaid judgment is contrary to the fundamental rights as
enshrined in Articles 20, 21, 25, and 26 of the Constitution of India.

50. In Review Petition No. 1310 of 1995 this Court had issued notice limited to the question of
Article 20(1) of the Constitution of India and in the writ petitions directions were issued for their
listing after the disposal of the Review Petition. However, at the request of the learned Counsel for
the parties this Court vide order dated 31 st August, 1999 directed the hearing of all the writ
petitions along with the review petition.
51. Learned Additional Solicitor General appearing for the respondent submitted that the prayer in
the review and writ petitions were contrary to law inasmuch as the judgment of the Court given on
merits cannot be reviewed for the reasons urged on behalf of the petitioners. It is contended that
review being the creation of statute, the powers have to be exercised only within the limits
prescribed by law. It is further contended that notice in review being limited to Article 20(1) of the
Constitution would not warrant the consideration of the other pleas raised. Learned Counsel
appearing for the petitioners have, however, submitted that in view of the judgment in A.R. Antulay
v. R.S. Nayak and Ors. this Court has the power to review. The Court can exercise the power of
review in a petition under Article 136 or Article 32 or under any other provision of the Constitution
of India if the Court is satisfied that its directions have resulted in the deprivation of fundamental
rights of a citizen or any legal right of the petitioner because no-one can be forced to suffer because
of the mistake of the Court. Rules of procedures are the hand-maids of justica and not mistress of
justice.
52. We have heard the lengthy arguments addressed at the Bar from both sides and perused the
relevant record in the present petitions and the petitions which were earlier disposed of along with
Sarla Mudgal's case.
53. The dictionary meaning of the word "review" is "the act of looking; offer something again with a
view to correction or improvement. It cannot be denied that the review is the creation of a statute.
This Court in Patel Narshi Thakersh and Ors. v. Pradyunman singh ji Arjun singh ji held that the
power of review is not an inherent power. It must be conferred by law either specifically or by
necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is
a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot
stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that
the error pointed out in the review petition was under a mistake and the earlier judgment would not
have been passed but for erroneous assumption which in fact did not exist and its perpetration shall
result in miscarriage of justice nothing would preclude the Court from rectifying the error. This
Court in S. Nagaraj and Ors etc. v. State of Karnataka and Anr. etc. 1993 Supp.(4) SCC 595 held:
Review literally and even judicially means re-examination or reconsideration. Basic

philosophy inherent in it is the universal acceptance of human fallibility. Yet in the
realm of law the courts and even the statutes lean strongly in favour of finality of
decision legally and properly made. Exceptions both statutorily and judicially have
been carved out to correct accidental mistakes or miscarriage of justice. Even when
there was no statutory provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its order the courts culled out
such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand

Law Choudhury v. Sukhraj Rai the Court observed that even though no rules had
been framed permitting the highest Court to review its order yet it was available on
the limited and narrow ground developed by the Privy Council and the House of
Lords. The Court approved the principle laid down by the Privy Council in Rajunder
Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the
Court was final and could not be altered:
...neverthless, if by misprision in embodying the judgments, by errors have been

introduced, these Courts possess, by Common Law, the same power which the Courts
of record and statute have of rectifying the mistakes which have crept in....The House
of Lords exercises a similar power of rectifying mistakes made in drawing up its own
judgments, and this Court must possess the same authority. The Lords have however
gone a step further, and have corrected mistakes introduced through inadvertence in
the details of judgments; or have supplied manifest defects in order to enable the
decrees to be enforced, or have added explanatory matter, or have reconciled
inconsistencies. Basis for exercise of the power was stated in the same decision as
under:
It is impossible to doubt that the indulgence extended in such cases is mainly owing
to the natural desire prevailing to prevent irremediable injustice being done by a
Court of last resort, where by some accident, without any blame, the party has not
been heard and an order has been inadvertently made as if the party had been heard.
Rectification of an order thus stems from the fundamental principle that justice is
above all. It is exercised to remove the error and not for disturbing finality. When the
Constitution was framed the substantive power to rectify or recall the order passed by
this Court was specifically provided by Article 137 of the Constitution. Our
Constitution makers who had the practical wisdom to visualise the efficacy of such
provision expressly conferred the substantive power to review any judgment or order
by Article 137 of the Constitution. And Clause (c) of Article 145 permitted this Court
to frame rules as to the conditions subject to which any judgment or order may be
reviewed. In exercise of this power Order XL had been framed empowering this Court
to review an order in civil proceedings on grounds analogous to Order XL VII Rule 1
of the Civil Procedure Code. The expression, 'for any other sufficient reason' in the
clause has been given an expanded meaning and a decree or order passed under
misapprehension of true state of circumstances has been held to be sufficient ground
to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this
Court has the inherent power to make such orders as may be necessary in the interest
of justice or to prevent the abuse of process of Court. The Court is thus not precluded
from recalling or reviewing its own order if it is satisfied that it is necessary to do so
for sake of justice.
The mere fact that two views on the same subject are possible is no ground to review
the earlier judgment passed by a Bench of the same strength.

54. This Court in MJs Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi considered the
powers of this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order
40 Rule 1 of the Supreme Court Rules and held:
It is well settled that a party is not entitled to seek a review of a judgment delivered by
this Court merely for the purpose of a rehearing and a fresh decision of the case. The
normal principle is that a judgment pronounced by the Court is final, and departure
from that principle is justified only when circumstances of a substantial and
compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan .
For instance, if the attention of the Court is not drawn to a material statutory
provision during the original hearing. G.L Gupta v. D.N. Mehta . The Court may also
reopen its judgment if a manifest wrong has been done and it is necessary to pass an
order to do full and effective justice ON Mohindroo v. Dist. Judge, Delhi . Power to
review its judgments has been conferred on the Supreme Court by Article 137 of the
Constitution, and that power is subject to the provisions of any law made by
Parliament or the rules made under Article 145. In a civil proceeding, an application
for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the CPC
and in a criminal proceeding on the ground of an error apparent on the face of the
record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the
proceeding, it is beyond dispute that a review proceeding cannot be equated with the
original hearing of the case, and the finality of the judgment delivered by the Court
will not be reconsidered except where a glaring omission or patent mistake or like
grave error has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib .
Article 137 empowers this Court to review its judgments subject to the provisions of
any law made by Parliament or any rules made under Article 145 of the Constitution.
The Supreme Court. Rules made in exercise of the powers under Article 145 of the
Constitution prescribe that in civil cases, review lies on any of the ground specified in
Order 47 Rule 1 of the CPC which provides:
Application for review of judgment-
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which, no appeal
has been preferred.
(b) by a decree of order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the
discovery of new and important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced by him at the time
when the decree was passed or order made, or on account of some mistake or error
apparent on the face of the record, or for any other sufficient reason, desires to obtain

a review of the decree passed of order made against him, may apply for a review of
judgment to the Court which passed the decree or made the order.
Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error
apparent on the face of the record in criminal cases. Order 40 Rule 5 of the Supreme Court Rules
provides that after an application for review has been disposed of no further application shall be
entertained in the same matter.
55. In A.R. Antulay's case (supra) this Court held that the principle of English Law that the size of
the Bench did not matter has not been accepted in this country. In this country there is a hierarchy
within the Court itself where larger Benches overrule smaller Benches. This practice followed by the
Court was declared to have been crystalised as a rule of law. Reference in that behalf was made to
the judgments in Javed Ahmed Abdttl Hamid Pawala v. State of Maharashtra , State of Orissa v.
Titaghur Paper Mills , Union of India v. Godfrey Philips India Ltd. 1985 Supp. (3) SCR 123. In that
case the Bench comprising seven judges was called upon to decide as to whether the directions given
by the Bench of this Court comprising five judges in the case of R.S. Nayak v. A.R. Antulay were
legally proper or not and whether the action and the trial proceedings pursuant to those directions
were legal and valid. In that behalf reference was made to the hierarchy of Benches and practice
prevalent in the country. It was observed that Court was not debarred from reopening the question
of giving proper directions and correcting the error in appeal if the direction issued in the earlier
case on 16th February, 1984 were found to be violative of limits of jurisdiction and that those
directions had resulted in deprivation of fundamental rights of a citizen granted by Articles 14 and
21 of the Constitution of India. The Court referred to its earlier judgment in Prem Chand Garg v.
Excise Commissioner U.P. Allahabad , Naresh Shridhar Mirajkar v. State of Maharashtra . Smt.
Ujjam Bai v. State of U.P. and concluded that the citizens should not suffer on account of directions
of the Court based upon error leading to conferment of jurisdiction. The directions issued by the
Court were found on facts to be violative of the limits of jurisdiction resulting in the deprivation of
the fundamental rights guaranteed to the appellant therein. It was further found that the impugned
directions had been issued without observing the principle of audi alteram partem.
56. It follows, therefore, that the power of review can be exercised for correction of a mistake and
not to substitute a view. Such powers can be exercised within the limits of the statute dealing with
the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of
two views on the subject is not a ground for review. Once a review petition is dismissed no further
petition of review can be entertained. The rule of law of following the practice of the binding nature
of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of
equal strength has to be followed and practised. However, this Court in exercise of its powers under
Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have
resulted in deprivation of fundamental rights of a citizen or rights created under any other statute,
can take a different view notwithstanding the earlier judgment.
57. In the light of the legal position as enumerated hereinabove, let us examine the grievances of the
petitioners in the instant case. In review petition the notice issued was limited to the question of
Article 20(1) of the Constitution. It was contended that the judgment of the Court entailed a convert

to Islam the liability of prosecution for the offence of bigamy under Section 494 of the Indian Penal
Code which would, otherwise not be an offence under the law applicable to him. Section 494 forms
part of a substantive law and is applicable to all unless specifically excluded. As no notice has been
issued for review of the main judgment which interpreted Section 494 IPC in the manner as
narrated hereinabove, if cannot be said that any person was likely to be convicted for an offence
except for violation of law in force at the time of commission of the act charged as offence.
58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with
Order XLVII of the CPC has been pleaded in the review petition or canvassed before us during the
arguments for the purposes of reviewing the judgment in Sarla Mudgal 's case. It is not the case of
the petitioners that they have discovered any new and important matter which after the exercise of
due diligence was not within their knowledge or could not be brought to the notice of the court at
the time of passing of the judgment. All pleas raised before us were in fact addressed for and on
behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment
in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the
record requiring a review. Error contemplated under the rule must be such which is apparent on the
face of the record and not an error which has to be fished out and searched. It must be an error of
inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties
seeking review of the judgment. The only arguments advanced were that the judgment interpreting
Section 494 amounted violation of some of the fundamental rights. No other sufficient cause has
been shown for reviewing the judgment. The words "any-other sufficient reason appearing in Order
XLVII Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified
in the rule" as was held in Chajju Ram v. Neki Ram AIR 1922 PC 112 and approved by this Court in
Moron Mar Baseless Catholics and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC
526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or
disregard of the provisions of law. in T.C. Basappa v. Nagappa and Anr. this Court held that such
error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v.
Ahmad is Hague and Ors. it was held:
...it is essential that it should be something more than a mere error; it must be one
which must be manifest on the face of the record. The real difficulty with reference to
this matter, however, is not so much in the statement of the principle as in its
application to the facts of a particular case. When does an error cease to be mere
error and become art error apparent on the face of the record? Learned Counsel on
either side were unable to suggest any clear-cut rule by which the boundary between
the two classes of errors could be demarcated. Mr. Pathak for the first respondent
contended on the strength of certain observations of Chagla, CJ in - "Batuk K Vyas v.
Surat Borough Municipality' , that no error could be said to be apparent on the face of
the record if it was not self-evident and if it required an examination or argument to
establish it. This test might afford a satisfactory basis for decision in the majority of
cases. But there must be cases in which even this test might break down, because
judicial opinions also differ, and an error that might be considered by one Judge as
self-evident might not be so considered by another. The fact is that what is an error
apparent on the face of the record cannot be ..defined precisely or exhaustively, there

being an element of indefiniteness inherent in its very nature, and it must be left to
be determined judicially on the facts of each case.
Therefore, it can safely be held that the petitioners have hot made out any case within
the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order
XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal 's case. The
petition is misconceived and bereft of any substance.
59. We are not impressed by the arguments to accept the contention that the law declared in Sarla
Mudgal's case cannot be applied to persons who have solemnised marriages in violation of the
mandate of law prior to the date of judgment. This Court had not laid down any new law but only
interpreted the existing law which was in force.. It is settled principle that the interpretation of a
provision of law relates back to the date of the law itself and cannot be prospective from the date of
the judgment because concededly the Court does not legislate but only give an interpretation to an
existing law. We do not agree with the arguments that the second marriage by a convert male
muslim has been made offence only by judicial pronouncement. The judgment has only interpreted
the existing law after taking into consideration various aspects argued at length before the Bench
which pronounced the judgment. The review petition alleging violation of Article 20(1) of the
Constitution is without any substance and is liable to be dismissed on this ground alone.
60. Even otherwise we do not find any substance in the submissions made on behalf of the
petitioners regarding the judgment being violative of any of the fundamental rights guaranteed to
the citizens of this country. The mere possibility of taking a different view has not persuaded us to
accept any of the petitions as we do not find the violation of any of the fundamental rights to be real
or prima facie substantiated.
61. The alleged violation of Article 21 is misconceived. What is guaranteed under Article 21 is that no
person shall be deprived of his life and personal liberty except according to the procedure
established by law. It is conceded before us that actually and factually none of the petitioners has
been deprived of any right of his life and personal liberty so far. The aggrieved persons are
apprehended to be prosecuted for the commission of offence punishable under Section 494 IPC. It is
premature at this stage, to canvass that they would be deprived of their life and liberty without
following the procedure established by law. The procedure established by law, as mentioned in
Article 21 of the Constitution, means the law prescribed by the Legislature. The judgment in Sarla
Mudgal's case has neither changed the procedure nor created any law for the prosecution of the
persons sought to be proceeded with for the alleged commission of the offence under Section 494 of
the IPC.
62. The grievance that the judgment of the Court amounts to violation of the freedom of conscience
and free profession, practice and propagation of religion also far fetched and apparently artificially
carved out by such persons who are alleged to have violated the law by attempting to cloak
themselves under the protective fundamental right guaranteed under Article 25 of the Constitution.
No person, by the judgment impugned, has been denied the freedom of conscience and propagation
of religion. The rule of monogamous marriage amongst Hindus was introduced with the

proclamation of Hindu Marriage Act. Section 17 of the said Act provided that any marriage between
two Hindus solemnised after the commencement of the Act shall be 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. The second marriage solemnised by a
Hindu during the subsistence of first marriage is an offence punishable under the Penal law.
Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach
upon a similar freedom of the other persons. Under the constitutional scheme every person has
a.fundamental right not merely to entertain the religious belief of his choice but also to exhibit his
belief and ideas in a manner which does not infringe the religious right and personal freedom of
others. It was contended in Sarla Mudgal 's case that making a convert Hindu liable for prosecution
under the Penal Code would be against Islam, the religion adopted by such person upon conversion.
Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its
teachings.The word "Islam" means "peace and submission". In its religious connotation it is
understood as "submission to the Will of god". According to Fyzee (Outlines of Mohammadan Law,
II Edition) in its secular sense the establishment of peace. The word 'Muslim' in Arabic is the active
principle of Islama, which means acceptance of faith, the noun of which is Islam. Muslim Law is
admittedly to be based upon a well recognised system of jurisprudence providing many rational and
revolutionary concepts, which could not be conceived by the other systems of Law in force at the
time of its inception. Sir Ameer Ali in his book Mohammedan Law, Tagore Law Lectures IV Edition,
Volume I has observed that the Islamic system, from a historical point of view was the most
interesting phenomenon of growth. The small beginnings from which it grew up and the
comparatively short space of time within which it attained its wonderful development marked its
position as one of the most important judicial system of the civilised world. The concept of Muslim
Law is based upon the edifice of Shariat. Muslim law as traditionally interpreted and applied in
India permits more than one marriage during the subsistence of one and another though capacity to
do justice between co-wives in law is condition precedent. Even under the Muslim Law plurality of
marriages is not unconditionally conferred upon the husband. It would, therefore, be doing injustice
to Islamic Law to urge that the convert is entitled to practice bigamy notwithstanding the
continuance of his marriage under the law to which he belonged before conversion. The violators of
law who have contracted the second marriage cannot be permitted to urge that such marriage
should not be made subject matter of prosecution under the general Penal Law prevalent in the
country. The progressive outlook and wider approach of Islamic Law cannot be permitted to be
squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be
quenched by illegal means, who apparently are found to be guilty of the commission of the offence
under the law to which they belonged before their alleged conversion. It is nobody's case that any
such converted has been deprived of practising any other religious right for the attainment of
spiritual goals. The Islam which is pious, progressive and respected religion with rational outlook
cannot be given a narrow concept as has been tried to be done by the alleged violators of law.
63. Learned Counsel appearing lor the petitioners have alleged that in view of the judgment in Sarla
Mudgal 's case their clients are liable to be convicted without any further proof. Such an
apprehension without any substance inasmuch as the person seeking conviction of the accused for a
commission of offence under Section 494 is under a legal obligation to prove all the ingredients of
the offence charged and conviction cannot be based upon mere admission made outside the Court.

To attract the provisions of Section 494 of the IPC the second marriage has to be proved besides
proving the previous marriage. Such marriage is further required to be proved to. have been
performed or celebrated with proper ceremonies. This Court in Kanwal Ram and Ors. v. The
Himachal Pradesh Administration held that in a bigamy case the second marriage as a fact, that is to
say the essential ceremonies constituting it, must be proved. Admission of marriage by the accused
by itself was not sufficient for the purpose of holding him guilty even for adultery or for bigamy. In
Bhaurao Shankar Lokhande v. State of Maharashtra this Court held that a marriage is not proved
unless the essential ceremonies required for its solemnisation are proved to have been performed.
64. Learned Counsel for the Jamata-e-Ulema Hind and Mr. Y.H. Muchhala, Senior Counsel
appearing for Muslim Personal Law Board drew our attention to the following observations of this
Court in Sarla Mudgal's case (supra):
We also agree with the law laid down by Chagla, J. in Robasa Khanum V. Khodadad
Irani case wherein the learned Judge has held that the conduct of a spouse who
converts to islam has to be judged on the basis of the rule of justice and right or
equity and good conscience. A matrimonial dispute between a convert to Islam and
his or her non-Muslim spouse is obviously not a dispute "where the parties are
Muslims" and, therefore, the rule of decision in such a case was or is not required to
be the Muslims Personal Law". In such cases the court shall act and the Judge shall
decide according to justice, equity and good conscience. 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 earlier marriage under the Act dissolved. The second marriage after
conversion to Islam would, thus, be a in violation of the rules of natural justice and as
such would be void and argued that such finding would render the status of the
second wife as that of a concubine and children born of that wedlock as illegitimate.
This issue is riot involved in the present case. What we are considering is the effect of
second marriage qua the first marriage which subsists in spite of conversion of the
husband to Islam, for the limited purpose of ascertaining his criminal liability under
Section 17 of the Hindu Marriage Act read with Section 494 IPC. As and when this
question is raised, it would be open to the parties to agitate the legitimacy of such
wife and children and their rights in appropriate proceedings or forum.
65. Besides deciding the question of law regarding the interpretation of Section 494 IPC, one of the
Hon'ble Judges (Kuldeep Singh, J) after referring to the observations made by this Court in Mohd.
Ahmed Khan v. Shah Bano Begum and Ors. requested the Government of India through the Prime
Minister of the country to have a fresh look at Article 44 of the Constitution of India and "endeavor
to secure for the citizens a uniform civil code throughout the territory of India". In that behalf

direction was issued to the Government of India, Secretary, Ministry of Law & Justice to file affidavit
of a responsible officer indicating therein the steps taken and efforts made towards securing a
uniform Civil Code for the citizens of India. On the question of uniform Civil Code R.M. Sahai, J. the
other Hon'ble Judge constituting the Bench suggested some measures which could be undertaken by
the Government to check the abuse of religion by unscrupulous persons, who under the cloak of
conversion were found to be otherwise guilty of polygamy. It was observed that:
Freedom of religion is the core of our culture. Even the slightest deviation shakes the
social fibre.
It was further remarked that:
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 a comprehensive legislation in keeping with modern day
concept of human rights for women.
In Maharshi Avadhesh v. Union of India 1994 Supp. (1) SCC 713 this Court had
specifically declined to issue a writ directing the respondents to consider the question
of enacting a common Civil Code for all citizens of India holding that the issue raised
being a matter of policy, it was for the Legislature to take effective steps as the Court
cannot legislate.
66. In Ahmedabad Women Action Group (AWAG) and Ors. v. Union of India this Court had referred
to the judgment in Sarla Mudgal's case and held:
We may further point out that the question regarding the desirability of enacting a
Uniform Civil Code did not directly arise in that case. The questions which were
formulated for decision by Kuldip Singh, J. in his judgment were these: (SCC p. 639,
para 2) Whether a Hindu husband, married under Hindu Law, by embracing Islam,
can solemnise a second marriage? 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? Whether the apostate husband would be guilty of the
offence under Section 494 of the Indian Penal Code (IPC)?
Sahai, J. in his separate but concurring judgment referred to the necessity for a
Uniform Civil Code and said. (SCC p. 652, para 44) ...The desirability of uniform code
can hardly be doubted. But it can concretize only when social climate is properly built
up by elite of the society, statesmen amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change.' Sahai, J. was of the
opinion that while it was desirable to have a Uniform Civil Code, the time was yet not
ripe and the issue should entrusted to the Law Commission which may examine the
same in consultation with the Minorities Commission. That is why when the Court
drew up the final order Sigrid by both the learned judges it said "the writ petitions are

allowed in terms of the answer to the questions posed/in the opinion of Kuldip Singh,
J". These questions we have extracted earlier and the decision was confined to
conclusions reached thereon whereas the observations on the desirability of enacting
the Uniform Civil Code were incidentally made.
Similarly in Pannalal Bansilal Pitti and Ors. v. State of AP. and Anr. this Court
pointed out:
The first question is whether it is necessary that the legislature should make law
uniformly applicable to all religious or charitable or public institutions and
endowments established or maintained by people professing all religions. In a
pluralist society like India in which people have faith in their respective religions,
beliefs or tenets propounded by different religious or their offshoots, the founding
fathers, while making the Constitution, were confronted with problems to unify and
integrate people of India professing different religious faiths, born in different castes,
sex or Sub-section s in the society speaking different languages and dialects in
different religions and provided a secular Constitution to integrate all sections of the
society as a united Bharat. The directive principles of the Constitution themselves
visualize diversity and attempted to foster uniformity among people of different
faiths. A uniform law, though is highly desirable, enactment thereof in one go
perhaps may be counter-productive to unity and integrity of the nation. In a
democracy governed by rule of law, gradual progressive change and order should be
brought about. Making law or amendment to a law is a slow process and the
legislature attempts to remedy where the need is felt most acute. It would, therefore,
be inexpedient and incorrect to think that all laws have to be made uniformly
applicable to all people in one go. The mischief or defect which is most acute can be
remedied by process of law at stages.
Learned Counsel appearing on behalf of the Jamiat-Ulema Hind and learned, counsel
appearing on behalf of Muslim Personal Law Board have rightly argued that this
Court has no power to give directions for the enforcement of the Directive Principles
of the State Policy as detailed in Chapter IV of the Constitution which includes Article
44. This Court has time and again reiterated the position that Directives, as detailed
in Part IV of the Constitution are not enforceable in Courts as they do not create any
justiciable rights in favour of any person. Reference in this behalf can be made to the
judgment of this Court in P.M. Ashwathanarayana Setty and Ors. v. State of
Karnataka and Ors. , His Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kerala and Anr. . In this case also no directions appeared to have been issued by this
Court for the purpose of having uniform Civil Code within the meaning of Article 44
of the Constitution. Kuldeep Singh, J. in his judgment only requested the
Government to have a fresh look at Article 44 of the Constitution in the light of words
used in that Article . In that context the direction was issued to the Government for
filing an affidavit to indicate the steps taken and efforts made in that behalf. Sahai, J.
in his concurrent but separate judgment only suggested the ways and means, if

deemed proper, for implementation of the aforesaid Directives. The judges

comprising the Bench were not the only judges to express their anguish. Such an
observation had earlier also been made in Shah Bano 's case (supra) and Ms. Jorden
Diengdeh v. S.S. Chopra . The apprehension expressed on behalf of Jamiat-Ulema
Hind and Muslim Personal Law Board is unfounded but in order to ally all
apprehensions we deem it proper to reiterate that this Court had not issued any
directions for the codification of the common Civil Code and the judges constituting
the different Benches had only expressed their views in the facts and circumstances
of those cases.
67. Learned Additional Solicitor General appearing for the respondents has submitted that the
Government of India did not intend to take any action in this regard on the basis of the judgment
alone.
68. In the circumstances the review petition as also the writ petitions having no substance are
hereby disposed of finally with a clarification regarding the applicability of Article 44 of the
Constitution. All interim orders passed in these proceedings including the stay of Criminal Cases in
subordinate courts, shall stand vacated. No costs.
order
69. In view of the concurring, but separate judgments the Review lenition and the Writ Petitions are
disposed of finally with the clarifications and interpretation set out therein. All interim orders
passed in these petitions shall stand vacated.

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Lily Thomas, Etc. Etc. vs Union Of India & Ors.

Equivalent citations: 2000(2)ALD(CRI)686, 2000(1)ALT(CRI)363,

Author: S. Saghir Ahmad

Bench: R.P. Sethi, S. Saghir Ahmad

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3. She ultimately prayed for the following reliefs:

(a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus

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

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18. Section 11 provides as under:

22. Now, Section 494 provides as under:

494. Marrying again during life-time of husband or wife.- Whoever, having a

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(i) First marriage of the accused,

(ii) Second marriage of the accused,

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(i) the marriage is solemnized after the commencement of the Act;

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(ii) has ceased to be a Hindu by conversion to another religion; or

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Review literally and even judicially means re-examination or reconsideration. Basic

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...neverthless, if by misprision in embodying the judgments, by errors have been

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Application for review of judgment-

(1) Any person considering himself aggrieved-

(b) by a decree of order from which no appeal is allowed, or

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Looked from another angle, the second marriage of an apostate-husband would be in

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It was further remarked that:

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deemed proper, for implementation of the aforesaid Directives. The judges

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