CASE REVIEW : LILY THOMAS v.

UOI
AIR 2000 SC 1650

BENCH :JUSTICE S. AHMED AND R. SETHI

 INTRODUCTION:
• The practice of converting to Islam in the hopes of ending a second bigamous marriage has long been used
by married men whose personal law forbade bigamy. These men believed that by converting, they would
be able to remarry without having their first marriage annulled. The Supreme Court’s ruling, in this case,
Lily Thomas v Union of India, is quite a significant one. The Court had held that according to the
provisions of Hindu Personal law entering into a second marriage without ending or dissolving
the first one would make the second marriage null and void.
• The Court had observed, “men were converting to Islam to solemnise the second marriage, but all of this
was considered void unless and until the first marriage was dissolved according to the Hindu Marriage Act;
otherwise, the husband would be liable for bigamy under section 494 and 495 of Indian Penal
Code.” The Hindu Marriage Act, 1955, states that bigamy is “an offence of marrying another while the first
marriage persists and such bigamous relations are illegal and the second marriage is void ab initio.” Apart
from this, section 17 of the Act has mentioned that “any marriage solemnised by the husband during the
subsistence of that marriage, despite his conversion to another religion, would be an offence triable
under section 17 of this act, read with section 494 IPC.”
 FACTS OF THE CASE:
• Sushmita Ghosh, who was the wife of GC Ghosh (Mohd. Karim Ghazi), filed a writ petition in the Supreme
Court that they were married to each other on 10th May 1984 according to the Hindu rites and ceremony.

• Sushmita Ghosh’s husband told her on 1st April 1992 that he had converted himself to Islam to remarry and
decided to marry Miss Vanita Gupta, who lives in Delhi. The petitioner should agree to divorce him for his own
interest.

• The petitioner contended that she had been discriminated against on the grounds of religion and sex by the
act of her husband. Her fundamental rights envisaged in the Indian Constitution was infringed. It was
contended that the true intention of his husband converting to Islam was to have a second wife, which is
strictly forbidden in Hindu law.

• The petitioner has been in huge mental trauma at the age of 34, unemployed because of the actions of her
husband. It was asserted by the petitioner that it had been found common among Hindu males who could not
get divorced and desired to have a second wife to convert to Islam to fulfill his desire. After divorce or
remarriage, they convert again to gain their title in properties.
ISSUES OF THE CASE:
1Can a spouse who is Hindu or not converted to Islam have a
second wife? How legitimate are the first and second marriages?

2. Whether legal action be taken against the husband when he

converts to Islam for a second marriage? Can he be prosecuted
under section 494 of IPC?
 ARGUMENTS PRESENTED BY THE
PETITIONER :
A. The petitioner had contended that marriage is a sacred union of two individuals but taking recourse to the act of
religious conversion to Muslim with the principle aim to commit the act of marrying again as Muslim personal
law allows it is an attempt where the women freedom of facing such bigamous marriage and such betrayal is violative
of Art. 21(right to life and liberty).

B. The petitioner had demanded the declaration of polygamy as unconstitutional and invalid.

C. The question of implementation of the Uniform Civil Code was put forward before the Court. UCC was meant to
address the complicated, wide-ranging socio-legal challenges that were emerging due to multiple religious personal
laws.

D. It was argued before the Court that polygamy should be outlawed because it is detrimental to the integrity
and liberty of women who are compelled to live in such unions and that changes should be made to Muslim personal
law to reflect the passage of time; having a uniform civil code will ensure that no one’s religious law violates the
fundamental rights of women.
 ARGUMENTS PRESENTED BY THE
RESPONDENT :
A. The respondent had presented before the Court that he is not restricted under the law to get
married twice. Though Hindu Law prohibits bigamy, such is not the case under Muslim Law, which
encourages polygamous marriage, and a Muslim man may take a maximum of four wives, treating
them equally with love and affection, according to the holy book of the Quran, which is also the
main source of Muslim law. The marriage must be ruled legally void under sections 494 and 495 of
the Indian Penal Code (Code 45 of 1860) to apply. But in this case, the respondent is allowed to do
so by the Muslim laws that apply to him.

B. The respondent argued that section 11 of the Hindu Marriage Act would not apply in this case as
he has been converted to a Muslim, and section 11 only applies to Hindus.
 RATIO DECIDENDI OF THE CASE:
• The Court had observed that the conversion to Islam by Mr. Ghosh was done to bring an effect to the
second marriage. The Court came to such a conclusion after considering the birth certificate of Mr.
Ghosh, issued by the Govt. of Union Territory of Delhi concerning a son born to Shree G.C. Ghosh from
his second wife on May 27th, 1993. Shree GC Ghosh was a Hindu by religion, and his wife, the
respondent's mother, was also Hindu.
• The Court referred to the issue of Gopal Lal v State of Rajasthan, wherein it was observed by the Court
that when a spouse enters into a second marriage, while the previous marriage is still legal, the
spouse would be found guilty of bigamy under section 494 if it could be demonstrated that the second
marriage was legitimate in the sense that all legal or customary rituals had been carried
out. In this case, the Court had stated, The voidness of the marriage under Section 17 of the
Hindu Marriage Act is, in fact, one of the essential ingredients of Section 494.
• Under section 13 of the Hindu Marriage Act, converting to another religion is
neither an offence in itself nor does it automatically dissolve a marriage that
has been solemnised under the Act. Section 13 prescribes that conversion can be
a ground for divorce, but not an offence. Likewise, under section 10, it is a
ground for judicial separation as well.
• The consequence of conversion is that the original marriage continues to be lawful as
a result, while the second marriage is void. Despite conversion, the person is still
subject to prosecution under Section 494 of the IPC. The Court opined that a simple
conversion does not end a marriage; instead, a competent court must first grant a
divorce judgement before the marriage can be declared legally ended.
• The Court had expressly declined to issue a writ ordering the respondents to
take into consideration the issue of enacting a uniform civil code for all
Indian citizens, reasoning that since the issue arose as a matter of policy, it is the
Legislature that has to/should take appropriate action since the Court cannot legislate.
 JUDGEMENT OF THE CASE:
• The Hindu Marriage Act of 1959 will be used to address the offence of bigamy if a Hindu
wife files a complaint against her husband for entering into a second marriage while
they were still legally wed. The Court observed, “Renunciation of Religion does not
end the civil obligations or the matrimonial bond, but it is a ground for filing
divorce under Section 13 and judicial separation under Section 10 of the
Hindu Marriage Act. The Hindu law supports ‘monogamy’. Therefore, a second
marriage is void under Sections 11 and 17, and it is an offence under Sections
494 and 495 of the Indian Penal Code.” The Court had ruled that a Hindu husband
entering into a second marriage after conversion would constitute a fraudulent
conversion. As a result of which, such a marriage would be deemed null and void.
CONCLUSION:
The judgement of Lily Thomas was pronounced in 2000, and since then, there have been
many unanswered questions for the country. The Court had remained silent on the issue
of a uniform civil code for all. It preferred not to comment on the execution and
transformation of a standard code. There have been many stances on this issue. One
section is that a uniform code for all would be beneficial in the sense that there would be
uniformity and no room for interpretation of personal laws when the question regarding
divorce, marriage, or inheritance comes up. On the other hand, others view UCC as an
attack on their laws, claiming that with the practice of UCC, they would not have the
independence to practice their religion as per their laws. Thus, it can be seen that the
judiciary’s participation is required in a secular nation like India to prevent the abuse of
fundamental rights. The ruling will continue to be essential for protecting women from
their husbands’ wrongful actions and in the context of unethical religious conversions.