Hindu Marriage Act, 1955 - Case law – Section 5(i), 11, 17 - Lily Thomas and Ors. vs. Union of India (UOI) and Ors.
Bench: Justice SaiyedSaghir Ahmad and Justice R.P. Sethi.
Facts:
- Mrs.Sushmita Ghoshand Mr. G.C. Ghoshgot married to each other in 1984 according to Hindu rites and rituals.
- After around 8 years of marriage, G.C. Ghosh informed Sushmita Ghosh that he had already converted to Islam and was planning to get married to another woman, so it would be best for her to agree for divorce by mutual consent.
- Sushmita Ghosh took help of her relativestalk her husband out of the second marriage, but the husband did not agree.
- Consequently,Sushmita Ghosh filed a Writ Petition praying that her husband should be restricted from entering into another marriage, which violates her right under Article 21 of the Constitution.
- Lily Thomas is the lawyer of the distressed wife, Mrs. Sushmita Ghosh and other such women who have been a victim to bigamous marriage through religious conversion.
Issue:
- Whether religious conversion for the purpose of committing bigamy and polygamy is violation of Article 21 as long as Muslim Personal laws or any other marriage law allows polygamy?
- Whether there should be a Uniform Civil Code for all citizens?
- Whether the husband would be liable for bigamy under section 494 of IPC?
Arguments of the Petitioners:
- Resorting to religious conversion to only to commit bigamy violates a women’s freedom to facing such conditions of bigamous marriage and violates her right under Article 21 of the Constitution.
- There shall be a uniform civil code and the personal laws that violate fundamental rights under the Constitution shall be held unconstitutional.
Background:
The three petitions Mrs. Sushmita Ghosh v. Union of India and Ors, Smt.Sarla Mudgal, President, Kalyani and others v. Union of India and Ors, Sunita @ Fatima v. Union of India and Ors were clubbed together in the present case to decide on the issue of bigamous marriage by converting to Islam.
Review of the law laid down by the Supreme Court in the Sarla Mudgal’s Case was also sought in the present case for it being violative of Article 21.
Judgment:
The Court held that marriage solemnised after converting to Islam from any other faith during the existence of previous marriage is deemed void even when the personal laws of Islam allow polygamy. The Hindu law prohibits bigamy under Section 5 read with Section 11 of the Hindu Marriage Act,1955. When the conversion is for the sole purpose of solemnising a second marriage without change of faith, the marriage shall be fraudulent and invalid as it also violates the right to life and personal liberty of the first wife under Article 21.Hence, the respective husbands of the Petitioners shall be liable for commission of the offence of bigamy under Section 17 of the Hindu Marriage Act, 1955 read with Section 494 and 495, IPC.
The Court did not issue any directions in regard to the applicability of Article 44 of the Constitution which talks about Uniform Civil Code.
In regard to the review of the law laid down in Sarla Mudgal’s case, the Court upheld the law and ruled that the persons are apprehended for offences under Section 494 and 495 of IPC, therefore no right under Article 21 is being violated as such apprehension has been established by law.
