INTRODUCTION

A happy marriage is a harbor in the tempest of life, an unhappy marriage is a tempest in the
harbor of life J.Petit Senn
Marriage is a sacred institution; it is the very foundation of a stable family and civilized
society.1 All personal laws lay down some conditions which need to be complied with to enter
into or solemnize a legal marriage and lay down some provisions which make marriages
illegal mostly leading to divorce according to various Personal laws in India . One among the
illegal device is bigamous marriage. Religion is a very sensitive and personal aspect of
individual's life and the Constitution of India guarantees the freedom of conscience and
religion to people of all denominations2. Thus, a person is free to profess any faith or
relinquish his faith of birth and convert to another religion.
But this conversion of religion is taken as an illegal device for second marriages. For a long
time past, married men whose personal law does not allow bigamy have been involving in the
alternate illegal idea which the married men resort is by way of converting into Islam. This
resorting to the unhealthy and immoral practice of converting to Islam for the sake of second
bigamous marriage under a belief that such conversion enables them to enter into second
marriage without dissolution of the first marriage is illegal.
Marriage laws other than that of the Muslims now in force in the country prohibit
bigamy and treat a bigamous marriage as void. The provisions of the Indian Penal Code is
applicable to a bigamous marriage under Sections 494-495. The Supreme Court of India has
outlawed the type of practice of conversion to Islam for the sake of conversion by its

1 Prof Kusum, Family Law Lectures- I, Lexis Nexis, Haryana, (4th Edition 2015), p.3
2 The Constitution of India, 1950, Articles 25 to 28.
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decision in the case of SarlaMudgal v Union of India3. This ruling by the Supreme Court of
India was again re-affirmed in the case of Lily Thomas V. Union of India 4Five Years later.
Though these cases deal with Hindu Marriage Act, 1955, the ratio decidendi laid in the case
is applicable to all marriages whose governing laws do not permit bigamy. The Supreme
Court decision on this subject is the law of the land.
There is a Percentage increase in the Incidence of Polygamy is India.

3 AIR 1995 SC 1531

4 (2000) 6 SCC 224
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The prevalence of bigamy by Hindus is more in the past decades and it is more in the case of
conversion to Islam.5

CHAPTER I
ANTI-BIGAMY PROVISIONS UNDER CIVIL MARRIAGE6 LAWS
SPECIAL MARRIAGE ACT 1954
The Special Marriage Act is also based on Monogamy 7 rule. The condition for solemnizing of
a civil marriage under SMA :Section 4(a) - "neither party has a spouse living" which specifies Monogamy rule.
With respect to bigamy, the Special Marriage Act envisages two different penal provisions
under the Act. Under Chapter VIII,
Section 43 - Penalty on married person marrying again under this Act - "Save as
otherwise provided in Chapter III, every person who, being at the time married, procures a
marriage of himself or herself to be solemnized under this Act shall be deemed to have
committed an offence under section 494 or section 495 of the Indian Penal Code, as the case
may be, and the marriage so solemnized shall be void."
The other provision relating to bigamy is Section 44 which says:"44.Punishment of bigamy - Every person whose marriage is solemnized under the Act and
who, during the lifetime of his or her wife or husband, contracts any other marriage shall be
subject to the penalties provided in section 494 and section 495 of the Indian Penal Code (45
of 1860), for the offence o marrying again during the lifetime of a husband or wife, and the
marriage so contracted shall be void."
Chapter III which is mentioned in section 43 of the act, provided the facility of turning a preexisting marriage solemnized as per religious or customary rites into a civil marriage by
5www.milligazette.com/.../0046-practice-of-bigamy-is-prevalent-more-among-hindus, Accessed on 18
Sep 2016 at 11.30 A.M I.S.T
6 A Marriage solemnized as a civil contract without religious ceremony
7 Monogamy is essentially voluntary union for life of one man with one woman. It states that neither
party must have a spouse living at the time of marriage.
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registering it under this Act. This facility is available based on certain conditions and one of
the conditions mentioned in section 15 is:Section 15(b) - "neither party at the time of registration more than one spouse living ". It
means the Monogamous rule is followed and prohibits bigamy. If a person having more than
one spouse living fraudulently registers either of his marriages under this Act will be guilty of
the offence of knowingly making a false statement punishable under Section 45 of the Act.
"45.Penalty for signing false declaration or certificate - Every person making, signing or
attesting any declaration or certificate required by or under this Act containing a statement
which is false and which he wither knows or believes to be false or does not believe to be true
shall be guilty of the offence described in section 1998 of the Indian Penal Code (45 of
1860)."
The anti-bigamy provisions of this Act applies to all the religions. The court has specifically
held that if a Muslim contracts a civil marriage under the Special Marriage Act instead of his
personal law the anti-bigamy provisions of the Act will apply to him. 9 It is not clear from the
language of the Act whether Section 44 of the Act will apply if a person who has registered
his pre-existing marriage under the Special Marriage Act in terms of Section 15 contracts a
second bigamous marriage. Since ex post facto registration of a religion or customary
marriage turns it into a civil marriage for all purposes, the anti-bigamy provisions of the Act
applies to such a case.
FOREIGN MARRIAGE ACT 1969

8 Section 199 IPC - False statement made in declaration which is by law receivable as evidence Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or
any public servant or other person, is bound or authorized by law to receive as evidence of any fact,
makes any statement which is false, and which he either knows or believes to be false or does not
believe to be true, touching any point material to the object for which the declaration is made or used,
shall be punished in the manner as if he gave false evidence.
9S.RadhikaSameena v. S.H.O.,Habeeb Nagar Police Station, Hyderabad 1997 CriLJ 1655(AP)
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This Act facilitates solemnization of civil marriages in foreign countries between two Indians
or an Indian and a foreigner. Monogamy is also the general rule under this Act. Section 4
which deals with Conditions relating to solemnization of foreign marriage states thatSection 4 (a) -Neither party has a spouse living. Parties intending to marry shall give
notice in writing and this notice is published, an objection can be sought if the notice does not
satisfy any of the conditions laid down in Section 4 of the Act. This also shows the
monogamy rule to be followed.
Section 8 - (1) "Any person may, before the expiration of thirty days from the date of
publication of the notice under Section 7, object to the marriage on the ground that it would
contravene one or more of the conditions specified in section 4."
And if there is no objections, marriage may be solemnized.10
If the condition of monogamy and the other conditions mentioned in Section 4 of the Act are
satisfied11, a pre-existing marriage between two Indians or an Indian and a foreigner
solemnized in a foreign country under a local law can be registered under the Foreign
Marriage Act. A marriage once registered under the proposed Act will be deemed to have
been solemnized under Section 17 of the Act.
The anti-bigamy provisions of the Act are provided under Section 19 of the Act which
follows section 44 of the Special Marriage Act and it is applicable for both the marriages
solemnized under Foreign Marriage Act and marriages registered under foreign local law
afterwards registered under this Act.
Section 19 - Punishment for Bigamy - "(1) Any person whose marriage is solemnized or
deemed to have been solemnized under this Act and who, during the subsistence of his
marriage, contracts any other marriage in India shall be subject to the penalties in section
494 and section 495 of the Indian Penal Code (45 of 1860) and the marriage so contracted
shall be void."

10 Section 9 of Foreign Marriage Act, 1969.

11 Section 17(2) of Foreign Marriage Act, 1969.
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The anti-bigamy provisions of the Foreign Marriage Act, like those of the Special Marriage
act, 1954, are applicable to all cases governed by it, irrespective of the religion of the parties.
EFFECT OF CHANGE OF RELIGION : - Post marriage conversion by either party to a
civil marriages has no legal consequences, the convert still remains subject to the provisions
of the Special Marriage Act 1954 or the Foreign Marriage Act 1969, as the case may be.
If either party in such situation marries again after changing religion, but without obtaining
divorce or a decree of nullity, his or her conduct will still attract anti-bigamy provisions of the
Indian Penal Code.
CHAPTER - II
ANTI BIGAMY PROVISIONS UNDER COMMUNITY SPECIFIC LEGISLATION
CHRISTIAN MARRIAGE ACT 1872
In India, Christian marriages are governed by The Indian Christian Marriage Act, 1872. This
act applies to all sorts of marriages between the parties when both of them are Christians or
any one of them is Christian12. Marriages can, under this Act, be either solemnized by a
'Minister of Religion' of a Church, or by, or in the presence of a, Marriage Registrar
appointed under the Act13.
In the first case, whenever a marriage is intended to be solemnized by a Minister of Religion
licensed to solemnize marriages under this Act, one of the persons intending marriage shall
give notice in writing14 and it is to be accompanied with a declaration of parties marital status
12 Section 4 of Indian Christian Marriage Act,1872 - "Every Marriage between persons, one or both
of whom is (or are ) a Christian, or Christians, shall be solemnized in accordance with the provisions
of the next following section; and any such marriage solemnized otherwise than in accordance with
such provisions shall be void."
13 Section 5(3),(4) of Indian Christian Marriage Act,1872
14 Section 12 of Indian Christian Marriage Act, 1872
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at the time of marriage, and the prescribed form15 for this purpose mentions only two
possibilities - the person giving notice may be either a bachelor/spinster or widower/widow.
A certificate shall be issued by the Ministers of Religion upon the parties appearing
personally in front of the Minister and declaring that "he or she believes that there is not any
impediment of kindred or affinity, or other lawful hindrance, to the said marriage,"16 and the
marriage shall be solemnized only after such a certificate has been issued.
In the second case for marriages to be solemnized by or in presence of Marriage Registrar,
after notice of intended marriage before Marriage Registrar has been given in writing 17, the
certificate shall be given by the Marriage registrar after oath prescribed is been taken by the
parties of marriage that " he or she believes that there is not nay impediment of kindred or
affinity, or other lawful hindrance, to the said marriage"18 and then the marriage is
solemnized after such a certificate is issued19.
The marriage of the Native Christians shall be without the preliminary notice required be
certified, inter alia, that "neither of the persons intending to be married shall have a wife or
husband still living"20
According to this Act, whoever, for the purpose of procuring a marriage or license of
marriage, intentionally makes a false oath or declaration or signs a false notice or certificate,
shall be deemed to be have committed the offence punishable under section 193 of the Indian
15 Schedule I - Notice of Marriage
16 Section 17,18 of Indian Christian Marriage Act,1872
17 Section 38 of Indian Christian Marriage Act, 1872
18 Section 41,42 of Indian Christian Marriage Act, 1872
19 Section 51 of Indian Christian Marriage Act, 1872
20 Section 60 of Indian Christian Marriage Act, 1872
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Penal Code (45 of 1860) with imprisonment of either description for a term which may
extend to three years and, at the discretion of the Court with fine.21
A decree of nullity may be made if the former husband or wife of either party was living at
the time of the marriage, and the marriage with such former husband or wife was then in
force. 22
Also the Indian Divorce Act 1869 which governs Christians makes bigamy as a ground for
dissolution of marriage23 and remarriage can be done if there is dissolution or nullity of
marriage.24So, it can be concluded that Christian law prohibits bigamy.
It may be pointed out that while there is no section as a ground to declare bigamous marriage
Void. Section 60(2) bars only certification under Chapter VI of the Act. The legality of a
bigamous marriage is not assailed in Parts IV and V, of the Act. This is anomalous and needs
to be rectified25.
PARSI MARRIAGE AND DIVORCE ACT 1936
The Parsi Marriage and Divorce Act 1936, specifically provides that it prohibits bigamous
marriages as provided under Sections 4 and 5 of the Act.
Section 4 - Remarriage when unlawful "(1) No Parsi (whether such Parsi has changed his or her religion or domicile or not) shall
contract any marriage under this Act or nay other law in the lifetime of his or her wife or
husband, whether a Parsi or not, except after his or her lawful divorce from such wife or
21 Section 66 of Indian Christian Marriage Act, 1872
22 Section 19(4) of the Divorce Act 1869.
23 Section 10(ii) of Divorce Act, 1869 - "has ceased to be Christian by conversion to another
religion"
24 Section 57 of Divorce Act, 1869
25 Prof Kusum, Family Law Lectures I, Lexis Nexis, Haryana, (4th Edition 2015), p.113
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husband or after his or her marriage with such wife or husband has lawfully been declared
null and void or dissolved, and, if the marriage was contracted with such wife or husband
under the Parsi Marriage and Divorce Act, 1865(15 of 1865), or under this Act, except after
a divorce, declaration or dissolution as aforesaid under either of the said Acts.
(2) every marriage contracted to the provisions of sub-section (1) shall be void."
Section 5 - Punishment of bigamy
"Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not,
contracts a marriage without having been lawfully divorced from such wife or husband, or
without his or her marriage with such wife or husband having legally been declared null and
void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the
Indian Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a
husband or wife."
Section 11 provides for penalizing any priest who knowingly and willfully solemnizes any
marriage contrary to and in violation of S.4. Punishment prescribed is simple imprisonment
for a term which may extend to six months, or fine which may extend to two hundred rupees,
or both.

HINDU MARRIAGE ACT 1955

Since times immemorial it was believed which may be wrong or right that Hindu religious
law allowed polygamy which was practiced in many sections of Hindu Society in ancient
times. In post Vedic India a King could take and generally used to have more than one wife.
Section 426, of Hindu Marriage Act nullifies and supersedes such practice all over India
among the Hindus. Prior to the enactment of the Hindu Marriage Act in 1955, bigamy was
26 S.4 HMA Overriding effect of Act Save as otherwise expressly provided in this Act,- 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 this Act shall cease to have effect with respect to any matter for which
provision is made in this Act.
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permissible amongst the Hindus, except in some states which prohibited it by legislation. 27
After the HMA 1955, Monogamy is the law, except among some communities and tribes,
whose personal laws or customs permit polygamy.
The sections which relate to the subject matter of bigamy in HMA 1955 are:i.

ii.

iii.

iv.

Section 5(i) neither party has a spouse living at the time of the marriage. Thus
the conditions of marriage in HMA 1955, indicates monogamy and any violation of
this condition shall make the marriage null and void and liable to be so declared by a
decree of nullity on a petition filed by either party against the other party.28
Section 11 - Any marriage solemnized after the commencement of this Act shall be
null and void and may, on a petition presented by either party thereto, be so declared
by a decree of nullity if it contravenes any one of the conditions specified in clause (i),
(iv) and (v) of section 5."
Section 17 Punishment of bigamy - Any marriage between two Hindus solemnized
after the commencement of this Act is 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.
Section 7(2) Where such rites and ceremonies include the saptapadi (that is, 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.

Linking the anti-bigamy provisions of the Act with the requirement of a ceremonial
solemnization of marriages under Section 7(2) of the Act, the Supreme Court 29 as held that if
a customary ceremony is incompletely or defectively performed (to get married again), the
resulting second marriage will be non-existent in eyes of law and hence will not attract the
anti-bigamy provisions of the Act, or the IPC.
There were many cases pertaining that prohibiting bigamy under the HMA 1955 is being an
infringement of the right to religion under Article 25 30 of the Constitution of India. The court

27 Madras Marumakkathyam Act, 1932; Bombay Prevention of Hindu Bigamous Marriage Act,1946;
Madras Hindu (Bigamy prevention and Divorce) Act,1946; Saurashtra Prevention of Hindu Bigamous
Marriage Act,1950; MP Prevention of Hindu Bigamy Act, 1955.
28 Section 11 of HMA 1955.
29 Bhaurao v State of Maharashtra AIR 1965 SC 1564.
30 Article 25 of Constitution of India - Freedom of conscience and free profession, practice and
propagation of religion.
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in this case held that Clause 2(b) of the Article 25 does not prevent the state from making any
law providing for, ' Social welfare and reform. Prohibition of bigamy was a measure of
social welfare and reform, and hence not ultra vires, the court ruled31.
Effect of Change of Religion

Post-marriage change of religion by either spouse may have no effect on Anti-bigamy

provisions under the Christian law since both the Christian Marriage Act 1872 and its
divorce supplement, the Indian Divorce Act 1869, apply also to cases where only one

spouse is a Christian
Post marriage change of religion is prohibited in Parsi Marriage and Divorce Act 1936

with a special reference in the Act itself in Under Section 4 of the Act.
Post-marriage change of religion by either party under Hindu Marriage Act is a
ground for divorce for the opposite party32. The Anti-bigamy provisions for those of
Hindus, Buddhists, Jains and Sikhs are strictly followed and when they need to
remarry again, the law wants them to first dissolve the existing marriage legally. The
HMA makes room for dissolution of marriages33 but the Judicial procedure in this
regard in the appropriate courts due to the long drawn process makes the married men
to look into some illegal devices to marry again and one of the illegal device that they

sort for is the Conversion to Islam as the Muslim Provisions permits polygamy.
Unlike the Parsi Marriage and Divorce Act,1936, and the Special Marriage Act, 1954,
which specifically provide that the second marriage of any party whose marriage was
solemnized under this Acts and is subsisting, would be void and constitute the offence
of bigamy, the Hindu Marriage Act, 1955 states that any marriage between 'two'
Hindu, solemnized after the commencement of this Act is void if at the date of such

31 Ram Prasad v. State of Uttar Pradesh, AIR 1961 All 334.

32 Section 13(1)(ii) has ceased to be a Hindu by conversion to another religion
33 Section 13 of Hindu Marriage Act, 1955.
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marriage either party had a husband or wife living; and the provisions of Sections 494
and 495 of the IPC, 1860 shall apply. Thus a man who converts to Islam no longer
remains a Hindu so as to be governed by the Provisions of Section 17, as the section
clearly says 'any marriage between two Hindus'.34
BIGAMY UNDER MUSLIM PERSONAL LAW
Of all things allowed, divorce is the most hateful in the sight of Allah.
- The Prophet Muhammad
As Muslim Law is concerned, Muslim Male may legally have upto four wives at a time, a
Muslim woman cannot remarry during the subsistence of first marriage.
A Mahomedan may have as many as four wives at the same time, but not more. If he marries
a fifth wife when he has already four, the marriage is not void, but merely irregular.35
It is not lawful for a Mahomedan woman to have more than one husband at the same time. A
marriage with a woman who has her husband alive and who has not been divorced by him, is
void'36.
A Mahomedan woman marrying again in the lifetime of her husband is liable to be punished
under s.494 of the Indian Penal Code, 1860. Children of such marriage are illegitimate, and
cannot be legitimated by acknowledgement either.37
BIGAMY BY NON-MUSLIM

34 Prof Kusum, Family Law Lectures-I , Lexis Nexis, Haryana, (4th Edition 2015), p.112
35 Ibid., p.114
36 Ibid
37 Ibid
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There are much misapprehension prevailing about bigamy in Islam. The Quranic concept of
bigamy is that two women happily married to the same man and getting from him equally all
that a lawfully wedded wife could rightfully expect from the husband. Where this is not
possible, the Quran states to be in monogamy. The popular belief that Quran enables a nonMuslim husband who has deceived his wife without a legal divorce to marry again by
renouncing to Islam is absolutely false. Derecognizing bigamous marriages of non-Muslims
husbands contracted in such a fraudulent manner indeed enforces Quranic Justice.
PENAL LAW ON BIGMAY
The Chapter XX of Indian Penal Code(1860) which deals with offences relating to Marriage
contains provisions relating to bigamy (Section 494 and 495, IPC)
Section 494 Marrying again during lifetime of husband or wife: -Whoever having a
husband or wife living married in any case in which such marriage is void by reason of its
taking place during the life of such husband or wife, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be liable to
fine.
Exception This section does not extend to any person whose marriage with such husband
or wife has been declared void by a Court of competent jurisdiction, nor to any person who
contracts a marriage during the life of a former husband or wife, if such husband or wife, at
the time of the subsequent marriage, shall have been continually absent from such person for
the space of seven years, and shall not have been heard of by such person as being alive
within that time provided the person contracting such subsequent marriage shall, before such
marriage takes place, inform the person with whom such marriage is contracted of the real
state of facts so far as the same are within his or her knowledge."
So this section is applicable to married persons marrying again without concealing from the
second spouse the fact of the first marriage.
Section 495 of the Indian Penal Code States:495. Same offence with concealment of former marriage from person with whom
subsequent marriage is contracted Whoever commits the offence defined in the last
preceding section having concealed from the person with whom the subsequent marriage is
contracted, the fact of the former marriage, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
It is seen that application of these provisions of the Indian Penal Code would be attracted
only if the second marriage is void, for the reason of being bigamous. The Anti-bigamy
provisions of the Indian Penal Code would apply to all those whose marriages are governed

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by any one of the following legislative enactments all of which regard a second bigamous
marriage, by a man or woman, as void:
1. Special Marriage Act 1954
2. Foreign Marriage Act 1969
3. Christian Marriage Act 1872
4. Parsi Marriage and Divorce Act 1936
5. Hindu Marriage Act 1955
As regards the Muslims, the IPC provisions relating to bigamy apply to women. Since
Muslim law treats a second bigamous marriage by a married woman as void but not to men
as under a general reading of the traditional Muslim law men states that men are free to
contract plural marriages38.
The anti-bigamy provisions of the Indian Penal Code would not also apply to tribal men and
women if their customary law and practice does not treat their plural marriages as void. It has
also been judicially affirmed39 that Section 494 of the Indian Penal Code will not apply to
members of Scheduled Tribes unless the tribal law applicable to a case treats a bigamous
marriage as void.
Nature of Offence
The offence under Section 494 of the Indian Penal Code is non-cognizable40, bailable41 and
compoundable42by the aggrieved spouse with the permission of the court. That the offence is
38 Plural Marriages Bigamy (double marriages by a man or woman), polygamy(triple or more
marriages by a man or woman), polygamy (triple or more marriages by a man or woman),
polygyny( bigamy by men) and polyandry (bigamy by men)
39Surajmani Stella Kujur v DurgaCharan Hansdah AIR 2001 SC 938
40 Police cannot arrest a person without orders of court
41 A Bailable offence is an offence of relatively less severity and for which the accused has a right to
be released on bail.
42 Section 320 of CrPC - Compoundable offences are less serious in nature and they impact the
victim
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compoundable by mutual consent of the parties was affirmed in Narotam Singh V. State of
Punjab. 43
In the State of Andhra Pradesh, however by a local amendment of 1992 the offence under
Section 494 was made cognizable44, non-bailable45 and non-compoundable46.
The offence under Section 495 of the Penal Code is non-cognizable, bailable and unlike that
under Section 494- Non compoundable. Notably, in Andhra Pradesh this offence too has been
made cognizable47 and non-bailable48.

CHAPTER III
JUDICIAL RULINGS ON BIGAMY BY CONVERSION TO ISLAM

43 AIR 1978 SC 1542.

44 Police can arrest a person without court order
45 A non-bailable offence is a serious offence and for it, the accused cannot demand to be released on
bail as a right.
46 All other offences not classified under Section 320 CrPC are considered non0compoundable
offences which are more serious in nature and they impact not only the victim, but society at large.
47 Police officer has the authority to make an arrest without warrant and to start an investigation with
or without the permission of a court.
48 Vide Andhra Pradesh Act 3 of 1992, Section 2 (w.e.f. 15.2.1992)
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The judiciary has tried to control the practice of conversion to Islam for the sole reason to
marry for the second time.
In Vilayat Raj v Sunila49, Justice Leela Seth of the Delhi High Court had decided that "the
Hindu Marriage Act would continue to apply to a person who was a Hindu at the time of
marriage despite his subsequent conversion to Islam and that he could still seek divorce
under the Act."
In In re P Nagesashayya50,Justice Bhaskar Rao of Andhra Pradesh High Court severely
criticized the unhealthy practice of bigamy by conversion and observed that "the old rule that
the motive behind conversion could never be questioned had to be rejected at least in the
cases of conversion coupled with bigamy". Similar observations were made in the case of B
Chandra Manikyamma v B.Sudarsana Rao alias Saleem Mohammed51.
In suresh Babu v. V.P.Leela52, a husband converted to Islam and wife filed a petition for
divorce on this ground. The husband's defense was that since she had given him such
permission she was not entitled to seek divorce on this ground. The court however, rejected
her argument and held that "even if she had given her consent, the act of renunciation of
Hinduism and conversion to Islam is a matrimonial wrong and a ground for divorce under
s.13 (1) (ii) of the Hindu Marriage Act, 1955."
Finally, in the leading case of Smt.Sarla Mudgal V Union of India, 53the Supreme Court
decided that every bigamous marriage of a Hindu convert to Islam would be void and
49 AIR 1983 Delhi 352
50 (1998) Mat LR 123
51 1988 CriLJ 1849
52 AIR 2007 (NOC) 285 (Ker).
53 (1955) 3 SCC 635
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therefore punishable under the Indian Penal Code. This case was a set of four petitions. One
by President of "Kalyani"- a registered society which is an organization working for the
welfare of needy families and women in distress. Another petition by Meena Mathur who
married Jitender Mathur in 1978 and in 1988 her husband solemnized second marriage with
one Sunita Narula alias Fathima. The marriage was solemnized after they converted
themselves to Islam and adopted Muslim religion. According to Meena Mathur, conversion of
her husband to Islam was only for the purpose of marrying Sunita and circumventing the
provisions of Sections 494 IPC. Sunita alias Fathima, she contended that she along with
jitender mathur had embraced Islam and therefore got married. Geetha Rani another
petitioner was married to pradeep kumar in 1988. In 1991, the petitioner learnt that Pradeep
Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that
conversion to Islam was only for the purpose of facilitating the second marriage. Sushmita
Ghosh another petitioner was married to G.C.Ghosh in 1984. In 1992, the husband told the
petitioner that he had embraced Islam and would soon marry one Vinita Gupta. The petitioner
contended that the sole purpose of conversion to Islam was for second marriage.
The issue raised were
(a) Whether a Hindu husband married under the Hindu law can be , by embracing Islam,
solemnize a second marriage;
(b) Whether such marriage without having the first marriage dissolved under the law,
would be a valid marriage qua the first wife who continued to be a Hindu;
(c) Whether the apostate husband would be guilty of the offence of bigamy under s.494
of the Indian Penal Code, 1860.
The Court observed:"Since it is not the object of Islam nor is the intention of the enlightened Muslim community
that the Hindu husbands should be encouraged to become Muslim merely for the purpose of
evading their own personal law by marrying again, the courts can be persuaded to adopt a
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construction of the laws resulting in denying the Hindu husband converted to Islam the right
to marry again without having his existing marriage dissolved in accordance with law".
As regard the point that a married non-Muslim's second bigamous marriage contracted after
conversion to Islam could be treated as void under the Hindu Marriage Act, the court argued
as follows:
"It is no doubt correct that the marriage solemnized by a Hindu husband after embracing
Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but
the fact remains that the said marriage would be in violation of the Act which strictly profess
monogamy. The expression 'Void' for the purpose of that Act has been defined under Section
11 of the Act. It has a limited meaning within the scope of the definition under the section. On
the other hand of the same expression has a different purpose under Section 494 IPC and has
to be given meaningful interpretation. The expression 'void' under Section 494 IPC has been
used in the wider sense. A marriage which is in violation of any provisions of law would be
void in terms of the expression used under Section 494 IPC. A Hindu marriage solemnized
under the Act can only be dissolved on any of the grounds specified under the Act none of the
spouses can contract second marriage. Conversion to Islam and marrying again would not,
by itself, dissolve the Hindu Marriage under the Act. The second marriage by a convert
would therefore be in violation of the Act and as such void in terms of Section 494 IPC. Any
act which is in violation of mandatory provisions of law is per se void. The real reason for
the voidness of second marriage is the subsisting of the first marriage which is not dissolved
even by the conversion of the husband. It would be giving a go-by to the substance of the
matter and acting against the spirit of the statue if the second marriage of the convert is held
to be legal."
The court further observed that the second marriage of an apostate husband married
under the Hindu Marriage Act would be in violation of the rules of equity, justice and good
conscience, as also those of natural justice. The court concluded that:
"The interpretation we have given to Section 494 IPC would advance the interest of Justice.
It is necessary that there should be harmony between the two systems of law just as there
should be harmony between the two communities. The result of the interpretation, we have
given to Section 494 IPC, would be that the Hindu Law on the one hand and the Muslim law
on the other hand would operate within their respective ambits without trespassing on the
personal laws of each other."

The Final Judgment was The Supreme Court held that the second marriage of a
Hindu-Husband after conversion to Islam, without having its first marriage dissolved under
law, would be invalid. The second marriage would be void in terms of the provisions of

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Section 494 IPC and the apostate husband would be guilty of the offence under Section 494
IPC."
This case ruling was looked as disfavor in certain people on the ground that it
infringes a person's fundamental right to freedom of conscience and profession of religion he
likes as guaranteed by Article 25 of the Constitution
This case also talked about the necessity of a Uniform Civil Code to be implemented in India.
The court observed that:Since in the absence of a uniform civil code there is an open inducement to a Hindu
husband wanting to enter into another marriage to become a Muslim, courts need to adopt a
construction of the laws resulting in denying the Hindu husband converted to Islam the right
to marry again without having his existing marriage dissolved in accordance with law."
"A unified code is imperative both for protection of the oppressed and promotion of national
unity and solidarity"
It directed the Government of India to file an affidavit indicating the steps taken and
efforts made, towards securing a "Uniform civil code" for its citizens.

CHAPTER IV
CASE ANALYSIS OF LILY THOMAS Vs. UNION OF INDIA (2000) 6 SCC 224

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This case is filed as a Public Interest Litigation by Lily Thomas, a famous advocate for the
review of the 1995 Sarla Mudgal Judgment.
BRIEF FACTS OF THE CASE
One Shri.G.C.Ghosh and Smt. Sushmita Ghosh were married in accordance with the Hindu
rites on 10th May, 1984 and since then they were living happily at Delhi. On 1st April, 1992,
the Respondent Husband told the Petitioner that she should accept for divorce by mutual
consent as he had already converted to Islam so that he would remarry. The respondent
husband has already fixed the marriage with one Miss Vanita Gupta, a divorcee with two
children. The Respondent also showed a certificate issued by office of the MaulanaQari
Mohammad Idris, shahiQazi date 17th June,1992 certifying that Respondent Husband had
embrace Islam. The petitioner contacted with her father and aunt and told the happenings.
They all tried to convince the respondent husband but he insisted upon the same that
Sushmita must accept for divorce. The present petition is file by a Woman's Organization
"Kalyani" terribly disturbed by the growing practice of increase in desertions of the lawfully
married wives under the Hindu Law.
On 30th November, 1992, this writ petition was tagged with Smt.SarlaMudgal,
President, "Kalyani"& ors vs. Union of India and Sunita @ Fatima vs. Union of India
because these writ petitions also seek a single remedy, namely, to declare that where a nonMuslim 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 second marriage, any marriage
entered into by him after conversion would be void.

LEGAL ISSUE OF THE CASE

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1. Whether the marriage entered into by non-Muslim who converts to 'Muslim' faith
without any real change or belief and merely with a view to avoid an earlier marriage
or to enter into second marriage would be void?
2. What would be the effect on criminal liability if a person renounces his "Hindu"
religion and converts to another religion and marries a second time?
3. (c) Whether the apostate husband would be guilty of the offence of bigamy under
s.494 of the Indian Penal Code, 1860.
CONTENTION OF THE PARTIES
Arguments on behalf of the Petitioner

Lily Thomas on behalf of the petitioner argued that the Respondent Husband has
converted to Islam for the sole purpose of having a second wife which is forbidden

strictly under the Hindu Law.

Even though it can be stated that the Respondent Shri. Ghosh had embraced Islam but
the real intention was for second marriage and also he had no faith in Islam. He does
not practice the Muslim rites as prescribed nor has he changed his name or religion

and other official documents

The certificate issued by Mufti Mohd.TayyebQasmi described the husband as

"Mohd.CarimGazi", but he signed the certificate as "G.C.Ghosh".

The marriage of Shri.G.C.Ghosh with Vanita Gupta had taken place on 3.9.1992. But
in 1995, when the Respondent Husband applied for Bangladesh Visa, he mentioned
his name as G.C.Ghosh and religion as "Hindu" and he has done the same mentioning
in the Electoral Roll and also in the maternity hospital where a child was born to

them.
Further it was argued that her Fundamental Rights guaranteed under Article 15(1)
cannot be discriminated against the ground of religion and sex and state that she has
been discriminated against by that part of Muslim Personal Law which is enforced by

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the State Action by virtue of the Muslim Personal Law (Shariat) Act, 1937. It is thus

contrary to Article 15(1) and unconstitutional

Smt.Sushmitha Ghosh is also under great mental trauma due to the happening and
moreover she is not employed.

Therefore the Petitioner Prayed before the Hon'ble Court:

To declare polygamy marriages by Hindus and non-Hindus after conversion to Islam

religion are illegal and void;

To direct Respondent No.1 and Respondent No.2 to carry out suitable amendments in

the Hindu Marriage Act so as to curtail and forbid the practice of polygamy;
To declare that where a non Muslim male gets converted to "Muslim" faith without
any real change of belief and merely with a view to avoid an earlier marriage and to
enter into second marriage, any marriage entered into by him after conversion would

be void;
To direct Respondent Husband restraining him from entering into any marriage with
Miss Vanita Gupta or any other woman during the subsistence of his marriage with
the petitioner;

Argument on behalf of the Respondent

The Respondent contended against the arguments put forth by the petitioner. He contended
that since he had embraced Islam, the petitioner cannot sue him for bigamous marriage
because the Islam law permits Polygamous marriage and he contended that no criminal
liability be applied on him with regard to the Indian Penal Code. Prosecuting a person
contracting a second marriage after conversion was a violation of the right o freely profess
and practice religion as guaranteed under Art 25 of the Constitution of India.
LEGAL REASONING AND RATIO DECIDENDI

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According to Section 5 of the Hindu Marriage Act, 1955 prescribes the conditions for a valid
Hindu Marriage.
Section 5. Conditions for a Hindu Marriage - A marriage may be solemnized between any
two Hindus, if the following conditions are fulfilled, namely:1. neither Party has a spouse living at the time of the marriage; "
Section 11 provides as under:"11. Void Marriages - Any marriage solemnized after the commencement of this Act shall be
null and void and may, on a petition presented by either party thereto, be so declared by a
decree of nullity if it contravenes any one of the conditions specified in clause (i), (iv) and (v)
of section 5."
Thus section 5(i) read with section 11 indicates that any marriage with a person whose
previous marriage was subsisting on the date of marriage, would be void ab initio. The
voidness of the marriage is further indicated in Section 17 of the Act in which the punishment
for bigamy is also provided.
Section 17 - Punishment of bigamy - Any marriage between two Hindus solemnized after
the commencement of this Act is 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.
Section 49454 and Section 49555 are related to the Punishment of bigamy.
Section 494 indicated that in order to constitute an offence under this Section, the following
ingredients must be found to be existing:1. First marriage of the accused,
2. Second marriage of the accused,
3. The first wife or husband, as the case may be, should be alive at the time of the
second marriage.
4. Under law, such marriage should be void by reason of its taking place during the lifetime of such husband or wife.

54 See Page 12
55 See Page 13
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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 complaint in person, some
other person authorized 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 s.494 or s.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 s 497 or s 498 of
the said code. Provide that in the absence of the husband, some person who had care
o 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. Since under the Hindu Marriage Act, bigamous marriage is prohibited and has been
constituted as an offence under section 17 of the Act, any marriage solemnized 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.
It held that if a husband marries a second wife under some other religion after
converting to that religion, the offence of bigamy pleaded by the Hindu wife would have to
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be investigated and tried in accordance with the provisions of the Hindu Marriage Act, 1955
i.e., the law under which the first marriage was solemnized.
PRECEDENT CASES REFERRED
In Bhaurao Shankar Lokhande vs. State of Maharashtra56, the court held as under Marriage
between two Hindus is void in view of section 17 if two conditions are satisfied :1) The marriage is solemnized after the commencement of the Act;
2) At the date of such marriage, either party had a spouse living.
If the marriage which took place between the appellant and respondent 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 to such parties to the marriage as had a spouse living".
The above decision was followed in kanwal Ram Vs, H.P.Administration57 , PriyaBala
Ghosh vs. Suresh Chandra Ghosh58.
In Gopal Lal vs. State of Rajasthan 59, the court observed that "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"
Hindu Law does not recognize bigamy, the Hindu marriage Act, 1955 provides for
"Monogamy".
In Govt. of Bombay vs. Ganga60, 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
56 (1965) 2 SCR 837 = AIR 1965 SC 1954
57 (1966) 1 SCR 539 = AIR 1966 SC 614.
58 (1971) 3 SCR 961 = AIR 1971 SC 1153 = 1971(1) SCC 864
59 AIR 1979 SC 713
60 ILR (1880) 4 Bombay 330
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married woman having a Hindu husband living marries a Mahommedan after conversion to
'Islam', she commits the offence of polyandry as, by mere conversion, the previous marriage
does not come to an end.
In SayedaKhatoon vs. M.obadiah61, it was held that a marriage solemnized 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 the case of Gul Mohammad vs. Emperor62, the High Court held that the conversion of a
Hindu wife to Mahomedanism does not, ipso facto, dissolve the marriage with her Hindu
husband. From the above, it would be said 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.
The court further made a distinction between a polygamous marriage by a Muslim under
Muslim law and one contracted by a non-Muslim after his conversion to Islam. In the former
case, in spite of first marriage, a husband can contract a second marriage. Where, however, a
man is already married under a monogamous law and then converts to Islam only to contract
a second marriage, he cannot escape prosecution under s.494 of the Indian Penal
Code,1860.63
Prosecution under Section 494 in respect of a second marriage under Mahommedan Law can
be avoided only if the first marriage was also under the Mahommedan 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 life-time of the spouse.

61 (1944-45) 49 CWN 745

62 AIR 1947 Nagpur 1221
63 Kusum, 'Hindu law', Annual Survey of Indian Law, Vol.XXXVI,2000
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If the person feigns to have embraced another religion just for some worldly gain or
benefit, it would be religious bigotry. A person who mockingly adopts another religion where
plurality of marriage is permitted so as to renounce the previous marriage and desert the wife,
he cannot be permitted to take advantage of his exploitation as religion is not a commodity to
be exploited.
JUDGEMENT
The supreme Court Bench of Sagir Ahmed, J. and Sethi,J. has upheld the decision of the
Sarla Mudgal case64 and further has enforced the same. Marriage resulting after conversion to
Islam during the existence of previous marriage before conversion is deemed void even
though the Muslim Personal Law (Shariat) Act allows polygamy because such conversion is
not exercise of freedom of conscience but rather feigned and fraudulent without the change of
faith and solely for remarriage.
The court dismissed the review petition and other petition due to no substance but also
assured the Jamiat Ulema and the Muslim Personal Law Board that the Judiciary or the
Union have not thought of making a Uniform Civil Code.
Henceforth, final conclusion made by the Judgment is that Any Marriage instituted
after conversion to Muslim while a marriage already remains from before conversion, will
be void"

CHAPTER V
REGARDING UNIFORM CIVIL CODE

64 AIR 1995 SC 1531; (1995) 3 SCC 635

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Article 44, Constitution of India The State shall endeavor to source for the citizens a
uniform civil code throughout the territory of India
The Supreme Court first directed the Parliament to frame the Uniform Civil Code in 1985 in
the Shan Bano case, which involved the question of maintenance for a Muslim woman, from
her husband under Section 125 of the Code of Civil Procedure. Chief Justice Chandrachud
observed:A common civil code will help the cause of national integration by removing disparate
loyalties to law which have conflicting ideologies.
In Pannalal Bansilal Pitti vs. State of A.P 65, Court indicated that enactment of a
uniform law, though desirable, any be counter-productive.
The term Uniform Civil Code implies the same set of secular civil laws to govern all peoples
irrespective of their Religion, Caste and tribe. 66 Article 44 of the Constitution of India
mandates upon the state for Uniform Civil Code under directive principle of state policy i.e.,
at the discretion of the state. As it is provide under Article 37 of the Constitution that directive
principles of state policy are not enforceable by the Court of Law. The Honble Supreme
Court has emphasized upon the need of Uniform civil code to settle the ambiguity which has
arisen due to the different interpretations of various personal laws.

For instance it was held in Sarla Mudgal vs. Union of India and Others that,
65 (1996) 2 SCC 498
66 Alka Bharati, Uniform Civil Code in India still a distant dream, American International Journal
of Research in Humanities, Arts and Social Sciences, Available at
http://iasir.net/AIJRHASSpapers/AIJRHASS13-370.pdf, Accessed on 15 Sep 2016 at 11.30 A.M I.S.T
28 | P a g e

Article 44 is based upon the concept that there is no necessary connection between religion
and personal law in a civilized society. Article 25 guarantees freedom whereas Article 44
seeks to divest religion and personal law. Marriage, succession and like matters of a secular
character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.
The personal law of Hindus such as relating to marriage, succession and like have all a
sacramental origin, in the same manner as in the case of the Muslims or the Christians. The
Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of
national unity and integration, some other communities would not, though the constitution
enjoins the establishment of a Common Civil Code for the whole of India.
The Government of India is therefore requested through the Prime minister of the country to
have a fresh look at Article 44 of the Constitution of India and Endeavour to secure the
citizens a uniform civil code throughout the territory of India. It was also reminded by
Kuldeep Singh that when more than 80% of the citizens have already been brought under the
codified personal law there is no justification what so ever to keep in abeyance, any more,
the introduction of Uniform Civil Code for all citizens in the territory of India.
In Lily Thomas vs. Union of India and others, The court rejected the contention that the
decision in Sarla Mudgal vs. Union of India is violative of rights guaranteed under article 21
of the constitution. The judgment in Sarla Mudgal case has neither changed the procedure nor
created any law for the prosecution of the person sought to e proceeded against for the
alleged commission of offence under section 494 IPC. So, if the Uniform Civil Code would
have been provided for the citizen as the constitutional mandate then the problems which has
arisen in the cases of Mohd. Ahmed Khan vs. Shan Bano Begum 67, Daniel Latifi and other
Vs. UOI68 would have not been there. The judges clarified that the court had not issued any
directions for the codification of a common civil code and that the judges constituting the
different benches had only expressed their views in the facts and circumstances of those
cases. Even the lack of will to do so by the Indian government can be deciphered from the
67 In Shan Bano case, the issue was whether a Muslim Woman is entitled to claim maintenance
under Sec.125 Cr.P.C. It was held that Muslim women are entitled to claim to maintenance under
section in 125 Cr.P.C. This is a secular provision and the benefit is available to every citizen
irrespective of their caste or religion etc. it was further held that although the Muslim law limits the
husbands liability to provide for maintenance of divorced wife to the period of Iddat, it does not
contemplate or countenance the situation envisaged by section 125 of the code of criminal procedure.
68 In Daniel Latifi & other Vs. Union of India, It was held that clause (1a) of section 3 does not limit the duty
of the husband to pay maintenance only for the period of Iddat rather the duty is to make the necessary
arrangements within the Iddat period but the arrangements has to be made for the entire life of the wife until
she gets remarried.

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recent stand stated in the Indian press. It has been reported in the Asian Age, that the Indian
government does not want to initiate changes in the personal laws of minority communities.
By Implication, Lily Thomas seems to lay down that the issue of directing the state about the
enactment of a uniform civil code did not arise directly as such, and, therefore, whatever was
said and done in Sarla Mudgal was only obiter- something said just said in passing. 69 The
Court said that the directives as detailed in Part IV of the Constitution are not enforceable in
courts as they do not create any justifiable rights in favor of any person. The Supreme Court
has no power to give directions for enforcement of the Directives principles. Therefore the
Supreme Court had not issued any directions for the codification of a common civil code.70
It appears that the Apex Court in India, which showed great judicial activism initially with
regard to uniform civil code, has taken a backward step with this clarification.
But it can be stated that India is a country of Unity in Diversity having Multi religious
and cultures. So, civil matters of the citizens should be taken in the same clutches of the law.
Different streams of religion have to merge to a common destination and some unified
principles must emerge in the true spirit of secularism for the promotion of national unity and
solidarity a unified code is an absolute necessity on which there can be no compromise.71
The Supreme Courts latest reminder to the government of its Constitutional obligations to
enact a Uniform Civil Code came in July 2003 when a Christian Priest knocked the doors of
69 Virender Kumar, Uniform Civil Code Revisited : A Juridical Analysis of John Vallamattom,
Journal of the Indian Law Institute, available at
(http://14.139.60.114:8080/jspui/bitstream/123456789/12588/1/010_Uniform%20Civil%20Code
%20Revisited_A%20Juridicial%20Analysis%20of%20John%20Vallamattom%20(315-334).pdf),
Accessed on 15 Sep 2016 at 11.30 A.M I.S.T.
70http://decipherias.com/currentaffairs/uniform-civil-code-the-challenges-that-still-remain/,
Accessed on 15 Sep 2016 at 11.45 A.M I.S.T.
71 Anil Malhotra and Ranjit Malhotra, Family law and Religion The Indian Experience, available at
(https://www.iafl.com/cms_media/files/family_law_and_religion_the_indian_experience.pdf),
Accessed on 15 Sep 2016 at 11.50 A.M I.S.T.
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the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act
1925 in the case of John Vallamattom v. Union of India 72. A Priest from Kerala, John
Vallamattom, filed a writ petition in the year 1997 stating that Section 118 of the said Act was
discriminatory against the Christians as it imposes unreasonable restrictions on their donation
of property for religious or charitable purpose by Will. While discussing the constitutionality
of Section 118 of Indian Succession Act Justice V.N.Khare, the then Chief Justice of India
reiterated that the need for Uniform Civil Code and observed that
Art. 44 provides that the State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India. The aforesaid provision is based on the premise that there is
no necessary connection between religious and personal law in a civilized society. Article 25
of the Constitution confers freedom of conscience and free profession, practice and
propagation of religion. The aforesaid two provision i.e., Articles 25 and 44 show that the
former guarantees religious freedom whereas the latter divests religion from social relations
and personal law. It is no matter of doubt that marriage, succession and the like matters of a
secular character cannot be brought within the guarantee enshrined under Arts.25 and 26 of
the Constitution. Any legislation which brings succession and the like matters of secular
character within the ambit of Arts 25 and 26 is a suspect legislation. It is a matter of regret
that Art 44 of the constitution has not been given effort 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.73

72AIR 2003 SC 2902

73 Neepa Jani, Uniform Civil Code, A Vociferous Judicial Claim and Reluctant Political Will , Voice
of Research, available at (www.voiceofresearch.org/doc/mar-2013/Mar-2013_12.pdf Vol. 1 Issue 4,
March 2013 ISSN No. 2277-7733), Accessed on 16 Sep 2016 at 1.30 P.M.
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CHAPTER VI
LAW COMMISSION REPORTS
227th LAW COMMISSION REPORT
The 227th Law Commission Report mention that they are in complete agreement with the
thinking of Supreme Court in the Verdicts of Sarla Mudgal in 1995 and then affirmed in Lily
Thomas case of 2000. The verdict that a married non-Muslim even on embracing Islam
cannot contract another marriage without first getting his first marriage dissolved is
undoubtedly in conformity with the letter and spirit of Islamic law on bigamy.
The law commission further stated that "Though these rulings were handed down in the
context of the Hindu Marriage Act 1955 they will apply to all marriages governed by the
other family-law statues that are parimateria74."
Law Commission recommended insertion of the following additional provisions into
various family-law statues:1.

In the Hindu Marriage Act 1955, after Section 17, a new Section 17-A be inserted to
the effect that a married person whose marriage is governed by this Act cannot marry
again even after changing religion unless the first marriage is dissolved or declared
null and void in accordance with law, and if such a marriage is contracted it will be
null and void and shall attract application of Sections 494-495 of the Indian Penal
Code 1860.
2. A similar provision be inserted at suitable places into the Christian Marriage Act
1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim
Marriages Act 1939.
3. The proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 - saying
that this section would not apply to a married woman who was originally a nonMuslim if she reverts to her original faith- be deleted.

74 Of the same subject/matter

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4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an
existing marriage, by whatever law it is governed, becomes inter-religious due to
change of religion by either party it will henceforth be governed by the provisions of
the Special Marriage Act including its anti-bigamy provisions.
5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code
1860 be made cognizable by necessary amendment in the Code of Criminal
Procedure 1973.
235 LAW COMMISSION REPORT
VOLUNTARY LEGAL DECLARATION OF CONVERSION
The Law Commission proposed the following recommendations
1. Within a month after the date of conversion, the converted person, if she/he chooses, can
send a declaration to the officer in charge of registration of marriages in the concerned area.
2. The registering official shall exhibit a copy of the declaration on the Notice Board of the
office till the date of confirmation.
3. The said declaration shall contain the requisite details viz., the particulars of the convert
such as date of birth, permanent address, and the present place of residence,
fathers/husbands name, the religion to which the convert originally belonged and the
religion to which he or she converted, the date and place of conversion and nature of the
process gone through for conversion.
4. Within 21 days from the date of sending/filing the declaration, the converted individual can
appear before the registering officer, establish her/his identity and confirm the contents of the
declaration.
5.The Registering officer shall record the factum of declaration and confirmation in a
register maintained for this purpose. If any objections are notified, he may simply record
them i.e., the name and particulars of objector and the nature of objection.

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6. Certified copies of declaration, confirmation and the extracts from the register shall be
furnished to the party who gave the declaration or the authorized legal representative, on
request

CHAPTER VII
CONCLUSION AND CRITICAL ANALYSIS
Our Constitution gives to every person the freedom to profess and practice any religion under
Article 25. However, in view of the diversity of personal laws under different religions,
sometimes, conversions lead to difficult and anomalous situations like the man converting to
Islam religion which permits polygamous marriage. The erring practice of Hindu males
converting to Muslim Religion solely for the purpose of second marriage has been since past
several years. It can be concluded that Except for Islam, all personal law statues in the
country impose monogamy as a rule, and any marriage performed in contravention of the
provisions imposing monogamy, is illegal. In fact, such marriage is void under almost all
statues and does not establish any relationship of husband and wife between the parties.The
Hindu Males convert to Islam for the sole purpose of Second marriage and in the faith of the
religion being converted. Unless and until the conversion is genuine, ulterior motive and even
sorbid motives would not affect the question.75 So the issue of genuineness in conversion and
faith of religion renounced is the subject which need to be dealt with.

75 Sardar Mohammad V. Maryan AIR 1936 Lah 666; David v sudha, AIR 1950 Mys 26; Marthamma
v. Munnuswami, AIR 1951 Mad 888.
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In Kailash Sonkar vs. Smt.Maya Devi76, the Supreme Court observed that: - "The test of
conversion should be genuine intention of the reconvert to abjure his new religion and
completely dissociate himself from it."
"Right to conversion connotes individual right of a person to quit one religion and embrace
another voluntarily. This kind of change from one religion to another must necessarily be in
consequence of one's conviction that the religion in which he was born into has not measured
up to his expectations, spiritual or rational. Sometimes it may also be the result of losing
faith in one's religion because of the rigidity of its tenets and practices. Sometimes one may
even lose total faith in the very concept of the existence of God and turn to Atheism. A change
of religion, a consequence of any of the above reasons, falls within the ambit of the "Right to
conversion"77
Though no particular formalities or ceremonies are required to be followed for the purpose of
conversion, credible evidence of intention to convert followed by subsequent conduct of the
convertee is necessary in reaching the conclusion that there was genuine conversion. The
convert must embrace and follow the cultural and spiritual traditions and must take the mode
of life of that converted religion.
In some states like Gujarat, Madhya Pradesh, Himachal Pradesh, Arunachal Pradesh
etc., the Freedom of Religion Acts were enacted. It casts a duty on the person who is
converted to send a notice to the District Magistrate within a stipulated period in a prescribed
form and if fails without sufficient cause to comply with this requirement, he is punishable. 78
So the recommendation of the Law Commission should be implemented in every state.

76 AIR 1984 SC 600

77 Sri,M.N.Rao, "Freedom of Religion and Right to Conversion", Eastern Book Company, 2003,
available at (www.ebc-india.com/lawyer/articles/706.htm), Accessed on 20 Sep 2016 at 3.00 P.M
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Moreover, Jayalalitha government in Tamil Nadu has gone to the extent of enacting antconversion legislation (Tamil Nadu prohibition of forcible conversion ordinance 2003) to put
a check on the incidence of religious conversion. In April 2006 The Rajasthan Dharma
Swatantrata (religious freedom) Bill, introduced by the BJP government, was passed by a
voice note. The Chhattisgarh Government passed an anti-conversion bill in form of
Chhattisgarh Religion Freedom (Amendment) Act, 2006 providing for a three-year jail term
and a fine of Rs.20, 000 for those indulging in religious conversion by force or allurement.
The Madhya Pradesh Government also passed a controversial bill to amend the state's
Freedom of Religion Act of 1968 to prevent religious conversion by force or allurement.
Along with the provision of keeping for wives, the prophet imposed a mandatory
conditions upon the persons who might keep more than one wife that if a person keeps more
than one wife he must have an equal eye upon all the wives. That is the principle of equality
which was to be observed and not to discriminate on any grounds whatsoever.
The conduct of a spouse who converts to Islam has to be judged on the basis of the
rule of justice and right or equity and good conscience. A matrimonial dispute between a
convert to Islam and his or her non-Muslim spouse is obviously not a dispute "Where the
parties are Muslims" and, therefore, the rule of decision in such a case was or is not required
to be the "Muslim Personal Law". In such cases the Court shall act and the Judge shall decide
according to justice, equity and good conscience.79.

78 Law Commission of India, 235th Law Commission Report, 2010, available at

(lawcommissionofindia.nic.in/reports/report235.pdf), accessed on 15 Sep 2016 at 2.30 P.M I.S.T

79 Robasa Khanum v Khodabad Irani 1946 Bombay Law Reporter 864

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With the effect of Supreme Court judgment in Sarla Mudgal and Lily Thomas, it is clear that
the first marriage under the monogamous law is not affected and the second marriage after
conversion to a religion which permits polygamy is void and punishable.
So it can be concluded finally that the Government must implement the Law
Commission report to prevent bigamy by conversion or to implement the Uniform Civil Code
as stated in Article 44 of the Constitution of India from preventing further implication of
polygamy cases in India.
"The need of the hour, therefore, is to turn the apex courts ruling into a clear legislative
provision inserted into all matrimonial law statues of the country."

BIBLIOGRAPHY
Reference Books
1. Agnes Flavia , Marriage, Divorce, and Matrimonial Litigation, Volume II, Oxford
University Press, New Delhi, 2011
2. Agnes Flavia, Family Laws and Constitutional Claims, Volume I, Oxford University
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4.
5.
6.

Press, New Delhi, 2011

Diwan Paras, Family Law, Allahabad Law Agency, Haryana, 2013
Kusum Prof, Family Law Lectures, Lexis Nexis, Haryana, (4th Edition 2015).
Kusum Professor , Family Law Lectures I, Lexis Nexis, Nagpur,(3rd Edition 2011).
Kusum Professor, Kumud Desais Indian Law of Marriage and Divorce, Lexis Nexis,

New Delhi, (9th Edition,2013)

7. Rao Mamata , Law Relating to Women and Children, Eastern Book Company, Lucknow,
(3rd Edition 2012)
8. Rao Subba.G.C.V.Prof, Family Law in India, NarenderGogia &Company, Hyderabad,
(10th Edition 2014)

Articles

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1. Alka Bharati, "Uniform Civil Code in India still a distant dream", American
International Journal of Research in Humanities, Arts and Social Sciences, Available
at (http://iasir.net/AIJRHASSpapers/AIJRHASS13-370.pdf), Accessed on 15 Sep
2016 at 11.30 A.M I.S.T
2. Anil Malhotra and Ranjit Malhotra, "Family law and Religion The Indian
Experience", available at
(https://www.iafl.com/cms_media/files/family_law_and_religion_the_indian_experie
nce.pdf), Accessed on 15 Sep 2016 at 11.50 A.M I.S.T.
3. Neepa Jani, "Uniform Civil Code, A Vociferous Judicial Claim and Reluctant Political
Will ", Voice of Research, available at (www.voiceofresearch.org/doc/mar-2013/Mar2013_12.pdf Vol. 1 Issue 4, March 2013 ISSN No. 2277-7733), Accessed on 16 Sep
2016 at 1.30 P.M I.S.T
4. Virendra Kumar , Uniform Civil Code Revisited : A Juridical Analysis of John
Vallamattom

Journal

of

the

Indian

Law

Institute

Available

at

(http://14.139.60.114:8080/jspui/bitstream/123456789/12588/1/010_Uniform
%20Civil%20Code%20Revisited_A%20Juridicial%20Analysis%20of%20John
%20Vallamattom%20(315-334).pdf ) Accessed on 15 Sep 2016 at 11.30 A.M I.S.T.
Newspapers
1. Times of India, Bigamy: An issue of one too many dated September 13, 2009
available at (Bigamy: An issue of one too many), Accessed on 10 Sep 2016 at 4.00
P.M I.S.T.
2. Frontline,

"Bigamy

Myth",

dated

October

2,

2015

available

at

(http://www.frontline.in/cover-story/bigamy-myth/article7654832.ece), Accessed on
24 Aug 2016 at 10.30 P.M I.S.T

Web Sources
1. http://www.milligazette.com/Archives/01-7-2000/Art14.htm, Accessed on 21 Aug
2016 at 11.30 P.M I.S.T

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2. http://www.islamawareness.net/Polygamy/poly_nm_news0006.html, Accessed on 24
Aug 2016 at 10.30 P.M I.S.T
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2016 at 10 A.M I.S.T
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