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Surajmani Stella Kujur v. Durga Charan Hansdah
AIR 2001 SC 938 : (2001) 3 SCC 13
R.P. SETHI, J. - 2. Who is a ―Hindu‖ for the purposes of the applicability of the Hindu
Marriage Act, 1955 (―the Act‖) is a question of law to be determined in this appeal.
- Section 2 of the Act specifies the persons to whom the Act is applicable. Clauses ( a ), ( b ) and ( c ) of sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist, Jain or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.
- The term ―Hindu‖ has not been defined either under the Act or the Indian Succession Act or any other enactment of the legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose [ILR (1902) 31 Cal 11, 15] observed:
We shall not attempt here to lay down a general definition of what is meant by the term ‗Hindu‘. To make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent, but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamars who profess Hinduism, but who eat beef and the flesh of dead animals, are however low in the scale included within its pale. It is easier to say who are not Hindus, and practically the separation of Hindus from non-Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not.
- The Act, is, therefore, applicable to: (1) All Hindus including a Virashaiva, a Lingayat, a Brahmo, Prarthana Samajist and an Arya Samajist, (2) Buddhists; (3) Jains; (4) Sikhs.
- In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of sub-section (2) of Section 2 of the Act. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that ―the parties to the petition are two tribals, who otherwise profess Hinduism, but their marriage being out of the purview of the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santhal customs and usage‖.
- The appellant has, however, relied upon an alleged custom in the tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code.
- No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the legislature including intra vires statutory orders and orders made in exercise of powers conferred by the statutory rules.
- The expression ―custom and usage‖ has been defined under Section 3( a ) of the Act as:
- ( a ) the expression ‗custom‘ and ‗usage‘ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
- For custom to have the colour of a rule or law, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar [(1871-72) 14 Moo IA 570, 585-86] it was held:
It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
- The importance of the custom in relation to the applicability of the Act has been acknowledged by the legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act. Nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act.
- In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi stating therein that her marriage was solemnised with the respondent in
S. Nagalingam v. Sivagami
(2001) 7 SCC 487
K.G. BALAKRISHNAN, J. - 3. The appellant S. Nagalingam married respondent
complainant Sivagami on 6-9-1970. Three children were born from that wedlock. The respondent alleged that the appellant started ill-treating her and on many occasions she was physically tortured. As a result of ill-treatment and severe torture inflicted by the appellant as well as his mother, she left her marital home and started staying with her parents. While so, the respondent came to know that the appellant had entered into a marriage with another woman on 18-6-1984, by the name of Kasturi, and that the marriage was performed in a marriage hall at Thiruthani. The respondent then filed a criminal complaint before the Metropolitan Magistrate against the appellant and six others All the accused were acquitted by the trial court. Aggrieved thereby, the respondent filed Criminal Appeal No. 67 of 1992 before the High Court of Madras. The learned Single Judge, by his judgment dated 1-11-1996 upheld the acquittal of Accused 2- 7, but as regards the acquittal of the appellant, the matter was remitted to the trial court permitting the complainant to adduce evidence regarding the manner in which the marriage was solemnized. Upon remand, the priest (PW 3), who is alleged to have performed the marriage of the appellant with the second accused, Kasturi, on 18-6-1984, was further examined and the appellant was allowed further cross-examination. The learned Metropolitan Magistrate by his judgment dated 4-3-1999 acquitted the accused. Aggrieved by the said judgment, the respondent preferred a criminal appeal before the High Court of Madras. By the impugned judgment, the learned Single Judge held that the appellant had committed the offence punishable under Section 494 IPC. This is challenged before us.
- The short question that arises for our consideration is whether the second marriage entered into by the appellant with the second accused, Kasturi, on 18-6-1984 was a valid marriage under Hindu law so as to constitute an offence under Section 494 IPC.
- The essential ingredients of the offence under Section 494 IPC are: ( i ) the accused must have contracted the first marriage; ( ii ) whilst the first marriage was subsisting, the accused must have contracted a second marriage; and ( iii ) both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed.
- Admittedly, the marriage of the appellant with the respondent, entered into by them on 6- 9-1970, was subsisting at the time of the alleged second marriage. The Metropolitan Magistrate held that an important ceremony, namely, ―saptapadi‖ had not been performed and therefore, the second marriage was not a valid marriage and no offence was committed by the appellant. The learned Single Judge reversing this decision in appeal held that the parties are governed by Section 7-A of the Hindu Marriage Act as the parties are Hindus residing within the State of Tamil Nadu. It was held that there was a valid second marriage and the appellant was guilty of the offence of bigamy.
- In the complaint filed by the respondent, it was alleged that the appellant had contracted the second marriage and this marriage was solemnised in accordance with Hindu rites on 18-6- 1984 at RCC Mandapam, Thiruthani Devasthanam. To support this contention, PWs 2 and 3 were examined. PW 3 gave detailed evidence regarding the manner in which the marriage on 18-6-1984 was performed.
- Learned counsel for the appellant contended that as per the evidence of PW 3, it is clear that ―saptapadi‖, an important ritual which forms part of the marriage ceremony, was not performed and therefore, there was no valid marriage in accordance with Hindu rites.
- It is undoubtedly true that the second marriage should be proved to be a valid marriage according to the personal law of the parties, though such second marriage is void under Section 17 of the Hindu Marriage Act having been performed when the earlier marriage is subsisting. The validity of the second marriage is to be proved by the prosecution by satisfactory evidence.
- In Kanwal Ram v. H.P. Admn [AIR 1966 SC 614] this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed. It was held that mere admission on the part of the accused may not be sufficient.
- The question as to whether ―saptapadi‖ is an essential ritual to be performed, came up for consideration of this Court in some cases. One of the earliest decisions of this Court is Priya Bala Ghosh v. Suresh Chandra Ghosh [(1971) 1 SCC 864] wherein it was held that the second marriage should be a valid one according to the law applicable to the parties. In that case, there was no evidence regarding the performance of the essential ceremonies, namely, ―datta homa‖ and ―saptapadi‖. In para 25 of the judgment, it was held that the learned Sessions Judge and the High Court have categorically found that ―homa‖ and ―saptapadi‖ are the essential rites for a marriage according to the law governing the parties and there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. It is pertinent to note that in para 9 of the judgment it is stated that both sides agreed that according to the law prevalent amongst the parties, ―homa‖ and ―saptapadi‖ were essential rites to be performed to constitute a valid marriage. Before this Court also, the parties on either side agreed that according to the law prevalent among them, ―homa‖ and ―saptapadi‖ were essential rites to be performed for solemnization of the marriage and there was no specific evidence regarding the performance of these two essential ceremonies.
- Lingari Obulamma v. L. Venkata Reddy [(1979) 3 SCC 80] was a case where the High Court held that two essential ceremonies of a valid marriage, namely, ―datta homa‖ and ―saptapadi‖ (taking seven steps around the sacred fire) were not performed and, therefore, the marriage was void in the eye of the law. This finding was upheld by this Court. The appellant therein contended that among the ―Reddy‖ community in Andhra Pradesh, there was no such custom of performing ―datta homa‖ and ―saptapadi‖, but the High Court held that under the Hindu law, these two ceremonies were essential to constitute a valid marriage and rejected the plea of the appellant on the ground that there was no evidence to prove that any of these two ceremonies had been performed. The finding of the High Court was upheld by this Court that there was no evidence to prove a second valid marriage.
- In Santi Deb Berma v. Kanchan Prava Devi [1991 Supp (2) SCC 616] also, the appellant was acquitted by this Court as there was no proof of a valid marriage as the ceremonial ―saptapadi‖ was not performed. This Court noticed in this case also that the High Court proceeded on the footing that according to the parties, performance of ―saptapadi‖ is one of the essential ceremonies to constitute a valid marriage.
be sufficient to complete a valid marriage. Sub-section (2)( a ) of Section 7-A specifically says that notwithstanding anything contained in Section 7, all marriages to which this provision applies and solemnised after the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, shall be good and valid in law. Sub-section (2)( b ) further says that notwithstanding anything contained in Section 7 or in any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, or in any other law in force immediately before such commencement or in any judgment, decree or order of any court, all marriages to which this section applies solemnised at any time before such commencement, shall be deemed to have been valid. The only inhibition provided is that this marriage shall be subject to sub-section (3) of Section 7-A. We need not elaborately consider the scope of Section 7-A(3) as that is not relevant for our purpose.
- The evidence in this case as given by PW 3 clearly shows that there was a valid marriage in accordance with the provisions of Section 7-A of the Hindu Marriage Act. PW 3 deposed that the bridegroom brought the ―thirumangalam‖ and tied it around the neck of the bride and thereafter the bride and the bridegroom exchanged garlands three times and the father of the bride stated that he was giving his daughter to ―kanniyathan‖ on behalf of and in the witness of ―agnidevi‖ and the father of the bridegroom received and accepted the ―kanniyathan‖. PW 3 also deposed that he performed the marriage in accordance with the customs applicable to the parties.
- Under such circumstances, the provisions of Section 7-A, namely, the State amendment inserted in the statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither the complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of ―saptapadi‖ was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the saptapadi i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.
- ―Saptapadi‖ was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that ―saptapadi‖ was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7-A are applicable to the parties. In any view of the matter, there was a valid marriage on 18-6-1984 between the appellant and the second accused Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6-9-1970. The learned Single Judge was right in holding that the appellant committed the offence of bigamy and the matter was correctly remanded to the trial court for awarding appropriate sentence. We see no merit in this appeal and the same is dismissed accordingly.
Bhaurao Shankar Lokhande v. State of Maharashtra
AIR 1965 SC 1564 : (1965) 2 SCR 837
RAGHUBAR DAYAL, J. - Bhaurao Shankar Lokhande, Appellant 1, was married to the
complainant Indubai in about 1956. He married Kamlabai in February 1962, during the lifetime of Indubai. Deorao Shankar Lokhande, Appellant 2, is the brother of the first appellant. These two appellants, together with Kamlabai and her father and Accused 5, a barber, were tried for an offence under Section 494 IPC. The latter three were acquitted by the Magistrate. Appellant 1 was convicted under Section 494 IPC and Appellant 2 for an offence under Section 494 read with Section 114 IPC. Their appeal to the Sessions Judge was dismissed. Their revision to the High Court also failed. They have preferred this appeal by special leave.
- The only contention raised for the appellants is that in law it was necessary for the prosecution to establish that the alleged second marriage of the Appellant 1 with Kamlabai in 1962 had been duly performed in accordance with the religious rites applicable to the form of marriage gone through. It is urged for the appellants that the essential ceremonies for a valid marriage were not performed during the proceedings which took place when Appellant 1 and Kamlabai married each other. On behalf of the State it is urged that the proceedings of that marriage were in accordance with the custom prevalent in the community of the appellant for gandharva form of marriage and that therefore the second marriage of Appellant 1 with Kamlabai was a valid marriage. It is also urged for the State that it is not necessary for the commission of the offence under Section 494 IPC that the second marriage be a valid one.
Prima facie, the expression ―whoever ...marries‖ must mean ―whoever … marries validly‖ or ―whoever ... marries and whose marriage is a valid one‖. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.
- Apart from these considerations, there is nothing in the Hindu law, as applicable to marriages till the enactment of the Hindu Marriage Act of 1955, which made a second marriage of a male Hindu, during the lifetime of his previous wife, void. Section 5 of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus if the conditions mentioned in that section are fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. 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 IPC 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 IPC will not apply
custom of the community deemed what took place at the ―marriage‖ of the Appellant 1 and Kamlabai, sufficient for a valid marriage and that the performance of the two essential ceremonies had been abrogated. There ought to have been definite evidence to establish that the custom prevalent in the community had abrogated these ceremonies for such form of marriage.
- What took place that night when Appellant 1 married Kamlabai, has been stated thus, by PW 1:
The marriage took place at 10 p.m. Pat - wooden sheets - were brought. A carpet was spread. Accused 1 then sat on the wooden sheet. On the other sheet Accused 3 sat. She was sitting nearby Accused 1. Accused 4 then performed some Puja by bringing a Tambya - pitcher. Betel leaves and coconut was kept on the Tambya. Two garlands were brought. Accused 2 was having one-and Accused 4 having one in his hand. Accused 4 gave the garland to Accused 3 and Accused 2 gave the garland to Accused
- Accused nos. 1 and 3 then garlanded each other. Then they each struck each other‘s forehead.
In cross-examination this witness stated:
It is not that Gandharva according to our custom is performed necessarily in a temple. It is also not that a Brahmin Priest is required to perform the Gandharva marriage. No ‗Mangala Ashtakas‘ are required to be chanted at the time of Gandharva marriage. At the time of marriage in question, no Brahmin was called and Mangala Ashtakas were chanted. There is no custom to blow a pipe called ‗Sher‘ in vernacular. Sitaram, Witness 2 for the complainant, made a similar statement about what happened at the marriage ceremony and further stated, in the examination-in-chief: Surpan is the village of Accused 3‘s maternal uncle and as the custom is not to perform the ceremony at the house of maternal uncle, so it was performed at another place. There is no custom requiring a Brahmin Priest at the time of Gandharva.
He stated in cross-examination:
A barber is not required and Accused 5 was not present at the time of marriage. There is a custom that the father of girl should make to touch the foreheads of the girl and boy to each other and the Gandharva is completed by the act.
- It is urged for the respondent that as the touching of the forehead by the bridegroom and the bride is stated to complete the act of Gandharva marriage, it must be concluded that the ceremonies which, according to this witness, had been performed, were all the ceremonies which, by custom, were necessary for the validity of the marriage. In the absence of a statement by the witness himself that according to custom these ceremonies were the only necessary ceremonies for a valid marriage, we cannot construe the statement that the touching of the foreheads completed the gandharva form of marriage and that the ceremonies gone through were all the ceremonies required for the validity of the marriage.
- Bhagwan, Witness 3 for the complainant, made no statement about the custom, but stated in cross-examination that it was not necessary for the valid performance of gandharva marriage in their community that a Brahmin priest was required and mangala ashtakas were to
be chanted. The statement of Jeebhau, Witness 4 for the complainant, does not show how the custom has modified the essential forms of marriage. He stated in cross-examination:
I had witnessed two Gandharvas before this. For the last 5 or 7 years a Brahmin Priest, a Barber and a Thakur is not required to perform the Gandharva but formerly it was essential. Formerly the Brahmin used to chant Mantras and Mangala ashtakas. It was necessary to have a maternal uncle or any other person to make touch the foreheads of the sponsors together. A Brahmin from Kasara and Dhandana comes to our village for doing rituals but I do not know their names.
This statement too, does not establish that the two essential ceremonies are no more necessary to be performed, for a Gandharva marriage. The mere fact that they were probably not performed in the two Gandharva marriages Jeebhau had attended, does not establish that their performance is no more necessary according to the custom in that community. Further, Jeebhau has stated that about five or seven years earlier the performance of certain ceremonies which, till then, were essential for the marriage, were given up. If so, the departure from the essentials cannot be said to have become a custom, as contemplated by the Hindu Marriage Act.
- Clause ( a ) of Section 3 of the Act provides that the expressions ―custom‖ and ―usage‖ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.
- We are therefore of opinion that the prosecution has failed to establish that the marriage between Appellant 1 and Kamlabai in February 1962 was performed in accordance with the customary rites as required by Section 7 of the Act. It was certainly not performed in accordance with the essential requirements for a valid marriage under Hindu law.
- It follows therefore that the marriage between Appellant 1 and Kamlabai does not come within the expression ―solemnized marriage‖ occurring in Section 17 of the Act and consequently does not come within the mischief of Section 494 IPC even though the first wife of Appellant1 was living when he married Kamlabai in February 1962.
- We have not referred to and discussed the cases referred to in support of the contention that the ―subsequent marriage‖ referred to in Section 494 IPC need not be a valid marriage, as it is unnecessary to consider whether they have been correctly decided, in view of the fact that the marriage of Appellant 1 with Kamlabai could be a void marriage only if it came within the purview of Section 17 of the Act.
- The result is that the conviction of Appellant 1 under Section 494 IPC and of Appellant 2 under Section 494 read with Section 114 IPC cannot be sustained. We therefore allow their appeal, set aside their convictions and acquit them. The bail bonds of Appellant 1 will stand discharged. Fines, if paid, will be refunded.
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- and the order admitting the petition is annexed to the present petition and marked as Annexure III (collectively).‖
- 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.
- 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.
- 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.
- 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.
- 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.
- 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‖.
- 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.
- 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
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. (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.
- 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‖.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
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.
- 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‖.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
