Author: Deeksha Karunakar, a student of fifth-year at Law College Dehradun, Uttaranchal University.
Title of Case: Lily Thomas, Etc. Etc. vs Union Of India & Ors. AIR 2000 SC 1650.
Court: Supreme Court of India
Bench: Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Judgement Date: 10.07.2013
The case involved Smt. Sushmita Ghosh, wife of Shri S.C. Ghosh, filing a Writ Petition stating that she was married to Shri S. C. Ghosh since 10th May 1984 according to the Hindu Marriage Act,1995 and the two were happily living in Delhi. Shri G. C. Ghosh told the petitioner, around 1 April 1992, that she would consent to her divorce by mutual agreement, as he had gone either way to Islam for the purpose of remarriage and, indeed, he had already planned marriage in the second week of July 1992 with Miss Vanita Gupta, a divorcee with two children resident of the D-152 Preet Vihar, Delhi. Shri G.C. Ghosh also showed certificates of Islamic embrace issued on June 17, 1992, by the Office of Maulana Qari Mohammad Idris, Shahi Qazi. The petitioner consulted her father and aunt and informed them about the conversion and plan of her husband to remarry. They all attempted to convince Shri G.C. Ghosh talked out of the marriage and he exhorted that Sushmita must accept her divorce or else she would have to adjust with the second wife. The petition implied that Shri G.C. Ghosh has only become an Islam for re-marriage purposes and has no actual belief in Islam. No Muslim rituals have been practiced as specified and no names or beliefs or records have been modified.
1. Whether a Hindu husband can solemnize the second marriage by converting to Islam?
2. Whether Shri S.C. Ghosh would be liable for bigamy under section 494 of The Indian Penal Code?
3. Whether all citizens of India should be subject to the Uniform Civil Code?
The arguments presented by the Petitioner focused on marriage being a sacred practice and an individual’s exercise to religious conversion to Muslim to commit bigamy under the Muslim Marriage Act is an infringement of Article 21 of The Constitution of India for women living in such bigamous marriage. Therefore, Lily Thomas pleaded before the court to male polygamy in Muslim Law to be unconstitutional. In support of Lily Thomas's plea many Muslim women came forward and filed a petition to High Court and Supreme Court for declaration of Polygamy in Muslim law to be unconstitutional and to have the Uniform Civil Code so that no personal religious law make fundamental right violation.
The respondent’s arguments focused on the term ‘embraced to Islam’ and the fact that they can have four wives irrespective of the first wife continues to be Hindu. Thus the question of applicability of Section 11 and Section 17 of The Hindu Marriage Act,1955 is null and void.
The Apex Court held that the infringement of Article 21 had been misinterpreted. Article 21 states that “no person shall be deprived of his right and personal liberty except as per the procedure established by law” and herein such an act of marriage while the first marriage still persists is codified in Indian Penal Code Section 494 there is no infringement of Article 21.
Justice S.Sagir Ahmed interpreted that “if a party has a living spouse and he contracted or tries to contract a second marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the said Act which deals with the offense of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of The Indian Penal Code, 1860. If a Hindu wife files complaint against her husband who during the existence of first marriage do second marriage after conversion to another religion then the offence of Bigamy shall be dealt with Hindu Marriage Act, 1959.”
Further interpreted by Justice R.P. Sethi, “if a Hindu husband after converting to Islam contracts the second marriage without dissolving the first marriage then the second marriage would be invalid under Section 494 and 495 of Indian Penal Code and the husband will be punished according to that.”
The judgement is one of the landmark judgements delivered by the Apex Court, since men had been using the conversion of religion practice for marrying or having more than one wife for decades. Bigamy is the sin of marrying another when the first marriage continues to exist. In such cases, the second marriage is considered to be illegal and void ab initio. For decades, married men whose personal law did not permit bigamy have recurred to the unhealthy and unethical custom of converting to Islam in order to perform a second bigamous marriage under the premise that such conversion will help them get married again without dissolution of their first marriage. Section 494 of The Indian Penal Code is an attempt to further the interest of justice and avoid such bigamous acts. This case had put an end to such acts by interpreting the personal laws in the interest of justice.