Lily Thomas v. Union of India AIR 2000 SC 1650 : (2000) 6 SCC 224
Writ Petn. (Civil) No. 798 of 1995 with W. P. (C) No. 1079 of 1989, R. P. (C) No. 1310 of 1995, in W. P. (C) Nos. 509 of 1992, 347 of 1990, 424 of 1992, 503 of 1995, 509 of 1992, 588 of 1995 and 835 of 1995 decided on 05/05/2000
Headnote
Cases referred
Gopal Lal v. State of Rajasthan [AIR 1979 SC 713] para 28
In Govt. of Bombay v. Ganga [ILR (1880) 4 Bom. 330] para 33
Sayeda Khatoon v. M. Obadiah [(1944-45) 49 CWN 745] para 33
Amar Nath v. Amar Nath [AIR 1948 Lah. 129] para 33
Gul Mohd. v. Emperor [AIR 1947 Nag. 121] para 34
Sarla Mudgal, President, Kalyani v. Union of India [AIR 1995 SC 1531] para 47
Bhaurao Shankar Lokhande v. State of Maharashtra [AIR 1965 SC 1564] para 63
Mohd. Ahmed Khan v. Shah Bano Begum [AIR 1985 SC 945] para 65
Maharshi Avadhesh v. Union of India [1994 Supp (1) SCC 713] para 66
Judgement
S. SAGHIR AHMAD, J. – 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 [Writ Petition (C) No. 509 of 1992] in this Court stating that she was married to Shri G.C. Ghosh in accordance with Hindu rites on 10-5-1984 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 1-4-1992, Respondent 3 told the petitioner that she should in her own interest agree to a divorce by mutual consent as he had anyway 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. Respondent 3 also showed a certificate issued by the office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17-6-1992 certifying that Respondent 3 had embraced Islam. True copy of the certificate is annexed to the present petition and marked as Annexure II.
6. 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 Respondent 3 and talk him out of the marriage but to no avail and he insisted that Sushmita must agree to a divorce otherwise she will have to put up with the second wife.
17. That it may be stated that Respondent 3 has converted to Islam solely for the purpose of remarrying and has no real faith in Islam. He does not practise the Muslim rites as prescribed nor has he changed his name or religion and other official documents.
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 the Muslim personal law which is enforced by the State action by virtue of the Muslim Personal Law (Shariat) Act, 1937. It is submitted that such action is contrary to Article 15(1) and is unconstitutional.
19. That the truth of the matter is that Respondent 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 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 husbands who embrace Islam for the purpose of second marriage but again become reconverts 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 a 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 are 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 23-4-1990 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 polygamous marriages by Hindus and non-Hindus after conversion to Islam religion as illegal and void;
(b) issue appropriate directions to Respondents 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 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 9-7-1992:
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.
8. Thus, in view of the pleadings in Sushmita Ghosh 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 of 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 the “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 respondent 3 has converted to islam solely for the purpose of remarrying and has no real faith in islam. he does not practise the muslim rites as prescribed 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 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 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 Government of the Union Territory of Delhi in respect of a son born to Shri G.C. Ghosh from the second wife on 27-5-1993. 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 71 of Assembly Constituency 44 (Shahdara), in which the name of Shri G.C. Ghosh appeared at Sl. No. 182 while the names of his father and mother appeared at Sl. Nos. 183 and 184 respectively and the name of his wife at Sl. No. 185.
13. In 1995, Shri G.C. Ghosh had also applied for Bangladeshi 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. Karim Ghazi”, s/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite of his having become “Mohd. Karim Ghazi”, he signed the certificate as “G.C. Ghosh”. The bride 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 Bangladeshi visa. In the birth certificate as also in the application for Bangladeshi 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 criminal trial, to get rid of his first wife, Smt Sushmita Ghosh and to marry a second time. 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 now be considered.
23. We have already seen above that under the Hindu Marriage Act, one of the essential ingredients of a 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 offence has been created by reference. By providing in Section 17 that provisions of Sections 494 and 495 would be applicable to such a marriage, the legislature has bodily lifted the provisions of Sections 494 and 495 IPC and placed them in Section 17 of the Hindu Marriage Act. This is a well-known legislative device. The important words used in Section 494 are “marries in any case in which such marriage is void by reason of its taking place during the life 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 lifetime 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”.
24. 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 Code of Criminal Procedure 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 may, 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 a complaint in person, some other person authorised 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.
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.
25. 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 has married a second time, 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 solemnised 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 Code of Criminal Procedure, 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”.
26. It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to Sections 43 and 44 of the Special Marriage Act. It also corresponds to Sections 4 and 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 Gopal Lal v. State of Rajasthan [AIR 1979 SC 713] 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 of the Hindu Marriage Act.
29. 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 Sections 11 and 17 of the Hindu Marriage Act, would also constitute an offence and that person would be liable to be prosecuted under Section 494 IPC. While Section 17 speaks of marriage between two “Hindus”, Section 494 does not refer to any religious denomination.
30. Now, conversion or apostasy does not automatically dissolve a marriage already solemnised under the Hindu Marriage Act. It only provides a ground for divorce under Section 13.
31. 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 the 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.
32. 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 recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for “monogamy”. A second marriage, during the lifetime of the spouse, would be void under Sections 11 and 17, besides being an offence.
33. In Govt. of Bombay v. Ganga [ILR (1880) 4 Bom. 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. In Sayeda Khatoon v. M. Obadiah [(1944-45) 49 CWN 745] it was held that a marriage solemnised 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. In Amar Nath v. Amar Nath [AIR 1948 Lah. 129] it was held that the 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 them 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.
34. In the case of Gul Mohd. v. Emperor [AIR 1947 Nag. 121] the High Court held that the conversion of a Hindu wife to Mohammedanism does not, ipso facto, dissolve the marriage with her Hindu husband. It was further held that she cannot, during his lifetime, enter into a valid contract of marriage with another person. Such person having sexual relations 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.
35. 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 the 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 solemnised 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.
36. The position under the Mohammedan 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 Mohammedan law and other personal laws. Prosecution under Section 494 in respect of a second marriage under Mohammedan law can be avoided only if the first marriage was also under the Mohammedan 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 lifetime of the spouse.
37. 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.
38. 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 supernatural 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, 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.
39. 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”.
40. I have already reproduced the order of this Court passed in Sarla Mudgal 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. It may also be pointed out that in the counter-affidavit filed on 30-8-1996 and in the supplementary affidavit filed on 5-12-1996 on behalf of the Government of India in the case of Sarla Mudgal it has been stated that the Government would take steps to make a uniform code only if the communities which desire such a code approach the Government and take the initiative themselves in the matter.
R.P. SETHI, J. – IA No. 2 of 1995 in Writ Petition (C) No. 588 of 1995 is allowed.
47. Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court in Sarla Mudgal, President, Kalyani v. Union of India [AIR 1995 SC 1531] held:
[T]hat 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.
48. The judgment in Sarla Mudgal 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 Jamat-e-Ulema Hind and another. 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.
59. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal 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 a 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 gives 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 an 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 has neither changed the procedure nor created any law for the prosecution of the persons sought to be proceeded against for the alleged commission of the offence under Section 494 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 is 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 the 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 a 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 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 this belief and ideas in a manner which does not infringe the religious right and personal freedom of others It was contended in Sarla Mudgal 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 Mohammedan Law, 2nd Edn.), in its secular sense, the establishment of peace. The word “Muslim” in Arabic is the active principle of Islam, which means acceptance of faith, the noun of which is Islam. Muslim law is admitted to be based upon a well-recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived of 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, 4th Edn., Vol. 1 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 systems of the civilised world. The concept of Muslim law is based upon the edifice of the 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 a 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 practise bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted a second marriage cannot be permitted to urge that such marriage should not be made the 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 convertee has been deprived of practising any other religious right for the attainment of spiritual goals. Islam which is a pious, progressive and respected religion with a 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 for the petitioners have alleged that in view of the judgment in Sarla Mudgal their clients are liable to be convicted without any further proof. Such an apprehension is 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 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 v. H.P. Admn. [AIR 1966 SC 614] 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 [AIR 1965 SC 1564] this Court held that a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed.
65. Besides deciding the question of law regarding the interpretation of Section 494 IPC, one of the Hon’ble Judges (Kuldip Singh, J.) after referring to the observations made by this Court in Mohd. Ahmed Khan v. Shah Bano Begum [AIR 1985 SC 945] 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 “endeavour 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 an 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 a 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.
66. 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.
70. 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 OF THE COURT
71. In view of the concurring, but separate judgments the review petition 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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NOTE: The Supreme Court in John Vallamattom v. Union of India [ (2003) 6 SCC 611] has observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.”
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