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PETITIONER: LILY THOMAS, ETC.  ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       05/05/2000

BENCH: R.P.Sethi, S.S.Ahmad

JUDGMENT:

S.  SAGHIR AHMAD, J.       I  respectfully  agree with the views expressed by  my esteemed  Brother,  Sethi,  J.,  in  the  erudite   judgment prepared  by him, by which the Writ Petitions and the Review Petition are being disposed of finally.  I, however, wish to add a few words of my own.  Smt.  Sushmita Ghosh, who is the wife  of Shri G.C.  Ghosh (Mohd.  Karim Ghazi) filed a  Writ Petition  [W.P.(C)  No.  509 of 1992] in this Court  stating that  she was married to Shri G.C.  Ghosh in accordance with the  Hindu  rites on 10th May, 1984 and since then  both  of them were happily living at Delhi.  The following paragraphs of  the Writ Petition, which are relevant for this case, are quoted below:  "15.  That around the 1st of April, 1992, the Respondent No.  3 told the petitioner that she should in her own  interest  agree to her divorce by mutual consent as  he had  any  way 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.  The  Respondent No.   3  also showed a Certificate issued by office  of  the Maulana  Qari  Mohammad Idris, Shahi Qazi dated  17th  June, 1992  certifying  that  the Respondent No.  3  had  embraced Islam.   True  copy  of the Certificate is  annexed  to  the present  petition and marked as Anneuxre-II.  16.  That  the petitioner contacted her father and aunt and told them about her husband’s conversion and intention to remarry.  They all tried  to convince the Respondent No.  3 and talk him out of the  marriage but of no avail and he insisted that  Sushmita must  agree to her divorce otherwise she will have to put up with  second  wife.   17.  That it may be  stated  that  the Respondent  No.   3  has converted to Islam solely  for  the purpose  of re-marrying and has no real faith in Islam.   He does  not practice the Muslim rites as prescribed nor has he changed  his name or religion and other official  documents. 18.   That  the  petitioner asserts her  fundamental  rights guaranteed  by Article 15(1) not to be discriminated against on the ground of religion and sex alone.  She avers that she has  been  discriminated  against  by that  part  of  Muslim Personal Law which is enforced by the State Action by virtue of  the  Muslim  Personal Law (Shariat) Act,  1937.   It  is submitted that such action is contrary to Article 15 (1) and is  unconstitutional.  19.  That the truth of the matter  is that  Respondent No.  3 has adopted the Muslim religion  and became  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

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was  not  a matter of Respondent No.  3 having faith in  the Muslim  religion.   20.  The petitioner is undergoing  great mental  trauma.  She is 34 years of age and is not  employed anywhere.   21.   That  in the past several  years,  it  has become  very common amongst the Hindu males who cannot get a divorce  from  their  first  wife, they  convert  to  Muslim religion  solely for the purpose of marriage.  This practice is  invariably  adopted by those erring husband who  embrace Islam  for  the purpose of second marraige but again  become reconvert  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 number of desertions of the lawfully married  wives  under  the Hindu Law and  splitting  up  and ruining  of  the families even where there are  childrn  and when  no grounds of obtaining a divorce successfully on  any of  the  grounds  enumerated  in Section  13  of  the  Hindu Marriage  Act  is  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 23.4.90  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  polygamy marriages by Hindus and non-Hindus after conversion to Islam religion  are  illegal  and  void;   (b)  Issue  appropriate directions  to Respondent Nos.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 No.  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 9th July, 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 ultimatley held that respondent  did not  have  the legal capacity for the second  marriage,  the purported  marriage would be void." On 17th July, 1992, when this  case  was taken up, the following order was  passed  :

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"Counter affidavit shall be filed in four weeks.  Place this matter  before  a Bench of which Hon’ble Pandian, J.   is  a member.   Shri Mahajan submitted that since the  apprehended second  marriage has not yet taken place, it is  appropriate that  we  stop the happening of that event till disposal  of this  petition.  Learned counsel for the  respondent-husband says  that  he  would file a counter affidavit  within  four weeks.   He  assures that his client would not enter into  a marriage in hurry before the counter-affidavit is filed." On 30th  November, 1992, this Writ Petition was directed to  be tagged  with  Writ  Petition (C) No.  1079/89  (Smt.   Sarla Mudgal,  President, "Kalyani" & Ors.  vs.  Union of India  & Ors.)  and  W.P.  (Civil) No.  347/90 (Sunita @  Fatima  vs. Union  of  India  & Ors.).  It may be stated  that  on  23rd April, 1990 when the Writ Petition (C) No.  1079/89 and Writ Petition  (C) No.  347/90 were taken up together, the  Court had  passed  the  following  order   :   "Issue  Notice   to respondent No.  3 returnable within twelve weeks in both the Writ  Petitions.  Learned counsel for the petitioners in the Writ  Petitions, after taking instructions, states that  the prayers  in both the writ petitions are 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  marraige entered  into by him after conversion would be void."  Thus, in  view of the pleadings in Smt.  Sushmita Ghosh’s 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  or 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  ‘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 THE  RESPONDENT  NO.   3  HAS CONVERTED TO ISLAM SOLELY FOR THE PURPOSE OF RE-MARRYING AND HAS NO REAL FAITH IN ISLAM.  HE DOES NOT PRACTICE 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 No.  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 No.   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  Govt.  of the Union Territory of  Delhi  in respect  of  a son born to Shri G.C.  Ghosh from the  second

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wife  on 27th May, 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 No.  71 of Assembly Constituency-44 (Shahdara),  in which the name of Shri G.C.  Ghosh  appeared at  S.No.   182  while the names of his  father  and  mother appeared  and S.Nos.  183 and 184 respectively and the  name of his wife at S.No.  185.  This entry is as under :  "S.No. House Name Father’s/ M/F Age in the No.  Husband’s list Name -----  ----  -------------  ----------------- ---  ---  185. C-41  Vanita Ghosh Gyan Chand Ghosh F 30" In 1995, Shri G.C. Ghosh  had  also applied for Bangladesh visa.   A  photostat copy  of that application has also been filed in this Court. It  indicates  that  in  the  year  1995  Shri  G.C.   Ghosh described  himself  as "Gyan Chand Ghosh" and  the  religion which  he professed to follow was described as "Hindu".  The marriage  of  Shri G.C.  Ghosh with Vanita Gupta  had  taken place  on  3.9.1992.  The certificate issued by Mufti  Mohd. Tayyeb  Qasmi described the husband as "Mohd.  Carim  Gazi", S/o  Biswanath Ghosh, 7 Bank Enclave, Delhi.  But, in  spite of  his  having  become "Mohd.  Carim Gazi", he  signed  the certificate  as  "G.C.  Ghosh".  The bride is  described  as "Henna  Begum" D-152 Preet Vihar, Delhi.  Her brother, Kapil Gupta, is the witness mentioned in the certificate and Kapil Gupta  has  signed  the certificate in  English.   From  the additional  documents  referred to above, it would  be  seen that  though the marriage took place on 3.9.1992, Shri  G.C. Ghosh  continued to profess ‘Hindu’ religion as described in the  birth  certificate of his child born out of the  second wedlock and also in the application for Bangladesh visa.  In the  birth  certificate  as  also  in  the  application  for Bangladesh  visa, he described himself as "G.C.  Ghosh"  and his  wife  as "Vanita Ghosh" and both were said  to  profess "Hindu"  religion.  In the electoral roll also, he has  been described  as  "Gyan  Chand  Ghosh" and the  wife  has  been described  as  "Vanita Ghosh".  It, therefore, appears  that conversion  to ‘Islam’ was not the result of exercise of the right  to freedom of conscience, but was feigned, subject to what is ultimately held by the trial court where G.C.  Ghosh is  facing the criminal trial, to get rid of his first wife, Smt.   Sushmita Ghosh and to marry a second wife.  In  order to  avoid the clutches of Section 17 of the Act, if a person renounces  his  "Hindu"  religion and  converts  to  another religion and marries a second time, what would be the effect on  his criminal liability is the question which may now  be considered.  It is in this background that the answer to the real question involved in the case has to be found.  Section 5  of the Hindu Marriage Act prescribes the conditions for a valid  Hindu marriage.  A portion of this Section,  relevant for  our  purposes, is quoted below:- "5.  Conditions for  a Hindu  marriage.-  A marriage may be solemnized between  any two  Hindus,  if  the following  conditions  are  fulfilled, namely  :- (i) neither party has a spouse living at the time of  marriage, (ii) .................................   (iii) ................................                        (iv) ................................                         (v) ................................                        (vi) ................................"  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

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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.  This Section lays  down  as under:-  "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 shall apply  accordingly." The  first  part  of this Section declares that  a  marriage between   two   Hindus  which  is   solemnized   after   the commencement  of  this Act, would be void if on the date  of such marriage either party had a husband or wife living.  It has already been pointed out above that one of the essential requisites for a valid Hindu marriage, as set out in Section 5(i),  is that either party should not have a spouse  living on  the date of marriage.  Section 11 which has been  quoted above  indicates that such a marriage will be void.  This is repeated  in  Section 17.  The latter part of  this  Section makes  Sections  494  and  495  of  the  Indian  Penal  Code applicable to such marriages by reference.  Now, Section 494 provides  as under:- "494.  Marrying again during  life-time of  husband  or  wife.- Whoever, having a  husband  or  wife living,  marries 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 beeen  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."  We  are  not in this case  concerned  with  the exception  of Section 494 and it is the main part of Section 494  which  is involved in the present case.  A  perusal  of Section 494 indicates that in order to constitute an offence under  this Section, the following ingredients must be found to  be  existing:- (i) First marriage of the  accused,  (ii) Second  marriage  of  the accused, (iii) The first  wife  or husband,  as the case may be, should be alive at the time of the  second marriage.  (iv) Under law, such marriage  should be  void by reason of its taking place during the  life-time of  such  husband or wife.  We have already seen above  that under  the  Hindu  Marriage  Act,   one  of  the   essential ingredients  of  the  valid Hindu marriage is  that  neither party  should have a spouse living at the time of  marriage. If  the  marriage  takes place in spite of the fact  that  a party  to  that marriage had a spouse living, such  marriage would  be  void under Section 11 of the Hindu Marriage  Act. Such  a marriage is also described as void under Section  17 of  the Hindu Marriage Act under which an offence of  bigamy has  been  created.   This  offence   has  been  created  by reference.   By  providing in Section 17 that provisions  of Section  494 and 495 would be applicable to such a marriage,

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the  Legislature has bodily lifted the provisions of Section 494  and  495 IPC and placed it in Section 17 of  the  Hindu Marriage  Act.   This is a well- known  legislative  device. The important words used in Section 494 are "MARRIAGE IN ANY CASE  IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE  DURING THE LIFE-TIME OF SUCH HUSBAND OR WIFE".  These words  indicate that before an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void  by reason of its taking place in the life-time of such husband  or  wife.   The words "Husband or  Wife"  are  also important  in the sense that they indicate the personal  law applicable  to them which would continue to be applicable to them  so  long  as  the marriage subsists  and  they  remain "Husband  and  Wife".  Chapter XX of the Indian  Penal  Code deals with offences relating to marriage.  Section 494 which deals  with the offence of bigamy is a part of Chapter XX of the  Code.   Relevant portion of Section 198 of the Code  of Criminal  Procedure  which  deals with the  prosecution  for offences  against  marriage  provides  as  under  :    "198. Prosecution  for  offences against marriage---(1)  No  Court shall take cognizance of an offence punishable under Chapter XX  of  the  Indian Penal Code (45 of 1860)  except  upon  a complaint  made  by some person aggrieved by the  offence  : Provided  that --- (a) where such person is under the age of eighteen  years,  or  is an idiot or a lunatic, or  is  from sickness  or  infirmity unable to make a complaint, or is  a woman who, according to the local customs and manners, ought not  to be compelled to appear in public, some other  person may, with the leave of the Court, make a complaint on his or her behalf;  (b) where such person is the husband, and he is serving  in  any  of  the Armed Forces of  the  Union  under conditions  which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make complaint in person, some other person authorised by the husband in accordance with the provisions of sub-(s) (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, marraige or adoption. (2)  For the purposes of sub-s(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  : 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.  (3) ..  ..  ..  (4) ..  ..   .. (5)  ..   ..  ..  (6) ..  ..  ..  (7) ..  ..  .."  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

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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 wife, 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  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. 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 Marriages Act.  It  also corresponds  to  Sections  4  & 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 Bhaurao Shankar Lokhande vs.  State of Maharashtra (1965)  2  SCR  837 = AIR 1965 SC 1564, this Court  held  as under  :  "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  I.P.C.  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  I.P.C.  will not apply to such parties to the  marriage as  had  a  spouse living." This decision  was  followed  in Kanwal  Ram vs.  H.P.  Administration (1966) 1 SCR 539 = AIR 1966  SC 614.  The matter was again considered in Priya Bala Ghosh  vs.  Suresh Chandra Ghosh (1971) 3 SCR 961 = AIR 1971 SC  1153  =  1971(1) SCC 864.  In Gopal Lal  vs.   State  of Rajasthan  AIR 1979 SC 713 = 1979(2) SCR 1171 = 1979 (2) SCC 170, 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 Section 11 & 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 apostacy  does not  automatically  dissolve a marriage  already  solemnized under the Hindu Marriage Act.  It only provides a ground for

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divorce  under Section 13.  The relevant portion of  Section 13  provides  as  under :  "13.   Any  marriage  solemnized, whether  before or after the commencement of this Act,  may, on  a petition presented by either the husband or the  wife, be  dissolved by a decree of divorce on the ground that  the other  party-  (i) .............................   (ii)  has ceased  to be a Hindu by conversion to another religion;  or (iii)           .............................           (iv) .............................                            (v) .............................                           (vi) .............................                          (vii) ............................. (viii).............................                     (ix) ............................"   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  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  recognised  bigamy.  As we have seen above,  the  Hindu Marriage  Act,  1955  provides  for  "Monogamy".   A  second marriage,  during the life-time of the spouse, would be void under  Sections  11  and 17, besides being an  offence.   In Govt.   of Bombay vs.  Ganga ILR (1880) 4 Bombay 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 Mahommedan after  conversion  to ‘Islam’,  she  commits the offence of polyandry as, by  mere conversion,  the previous marriage does not come to an  end. The  other  decisions  based on this principle  are  Budansa Rowther  & Anr.  vs.  Fatima Bi & Ors.  AIR 1914 Madras 192; Emperor vs.  Mst.  Ruri AIR 1919 Lahore 389;  and Jamna Devi vs.   Mul Raj 1907 (PR No.49) 198.  In Rakeya Bibi vs.  Anil Kumar  Mukherji  ILR  (1948) 2 Cal.  119, it was  held  that under Hindu Law, the apostasy of one of the spouses does not dissolve  the  marriage.  In Sayeda Khatoon @ A.M.   Obadiah vs.   M.   Obadiah (1944-45) 49 CWN 745, 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 Amar Nath vs.  Mrs.  Amar Nath (1947) 49 PLR 147 (FB), it was held that nature and incidence of a Vedic marriage bond, between  the  parties  are not in any way  affected  by  the conversion  to Christianity of one of them and the bond will retain   all  the  characteristics  of  a   Hindu   marriage notwithstanding  such  conversion unless there shall  follow upon  the conversion of one party, repudiation or  desertion by the other, and unless consequential legal proceedings are taken  and  a  decree  is made as  provided  by  the  Native Converts  Marriage  Dissolution  Act.  In the  case  of  Gul Mohammad  vs.   Emperor AIR 1947 Nagpur 121, the High  Court held  that  the conversion of a Hindu wife  to  Mahomedanism does  not, ipso facto, dissolve the marriage with her  Hindu husband.   It  was further held that she cannot, during  his

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life-time,  enter  into  a valid contract of  marriage  with another  person.  Such person having sexual relation with  a Hindu  wife converted to Islam, would be guilty of  adultery under Section 497 IPC as the woman before her conversion was already  married and her husband was alive.  From the above, it  would be seen that mere conversion does not bring to  an end  the  marital ties unless a decree for divorce  on  that ground is obtained from the court.  Till a decree is passed, the  marriage  subsists.   Any other  marriage,  during  the subsistence  of  first marriage would constitute an  offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other  religion,  would be liable to be prosecuted  for  the offence  of  bigamy.   It  also follows that  if  the  first marriage  was  solemnized under the Hindu Marriage Act,  the ‘husband’  or  the  ‘wife’, by mere  conversion  to  another religion,  cannot  bring to an end the marital ties  already established  on  account  of a valid  marriage  having  been performed  between them.  So long as that marriage subsists, another  marriage  cannot be performed, not even  under  any other  personal  law, and on such marriage being  performed, the  person would be liable to be prosecuted for the offence under  Section  494 IPC.  The position under the  Mahommedan Law would be different as, in spite of the first marriage, a second marriage can be contracted by the husband, subject to such  religious  restrictions  as have been spelled  out  by Brother  Sethi,  J.  in his separate judgment, with which  I concur  on  this point also.  This is the  vital  difference between Mahommedan Law and other personal laws.  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.   In any case,  as  pointed  out earlier in the instant case, the conversion is only feigned, subject  to what may be found out at the trial.  Religion is a  matter of faith stemming from the depth of the heart  and mind.  Religion is a belief which binds the spiritual nature of  man  to  a  super- natural being;  it is  an  object  of conscientious  devotion, faith and pietism.  Devotion in its fullest  sense  is  a  consecration and denotes  an  act  of worship.   Faith  in  the   strict  sense  constitutes  firm reliance on the truth of religious doctrines in every system of  religion.   Religion, faith or devotion are  not  easily interchangeable.   If  the  person feigns  to  have  adopted another  religion just for some worldly gain or benefit,  it would  be  religious bigotry.  Looked at from this angle,  a person who mockingly adopts another religion where plurality of  marriage  is  permitted so as to renounce  the  previous marraige and desert the wife, he 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 also  agree  with Brother Sethi, J.  that any direction for the enforcement of Article 44 of the Constitution could not have been issued by only  one  of the Judges in Sarla Mudgal’s case.   In  fact, Sarla  Mudgal’s  case  was  considered   by  this  Court  in

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Ahmedabad  Women  Action Group & Ors.  vs.  Union  of  India (1997) 3 SCC 573 and it was held that the question regarding the  desirability  of enacting a Uniform Civil Code did  not directly  arise  in  Sarla Mudgal’s case.   I  have  already reproduced  the order of this Court passed in Sarla Mudgal’s 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  marraige entered  into  by  him after conversion would be  void.   In another  decision,  namely, Pannalal Bansilal Pitti  &  Ors. vs.  State of A.P.  & Anr.  (1996) 2 SCC 498, this Court had indicated that enactment of a uniform law, though desirable, may  be counter-productive.  It may also be pointed out that in  the counter affidavit filed on 30th August, 1996 and  in the  supplementary affidavit filed on 5th December, 1996  on behalf  of  Govt.  of India in the case of Sarla Mudgal,  it has  been stated that the Govt.  would take steps to make  a uniform  code  only if the communities which desire  such  a code  approach the Govt.  and take the initiative themselves in  the matter.  With these affidavits, the Govt.  of  India had  also  annexed  a copy of the speech made by  Dr.   B.R. Ambedkar  in the Constituent Assembly on 2nd December,  1948 at the time of making of the Constitution.  While discussing the  position  of  common civil code, Dr.   Ambedkar,  inter alia,  had stated in his speech (as revealed in the Union of India’s affidavit) that "........I should also like to point out  that all that the State is claiming in this matter is a power  to legislate.  There is no obligation upon the  State to  do away with personal laws.  It is only giving a  power. Therefore,  no one need be apprehensive of the fact that  if the  State has the power, the State will immediately proceed to  execute  or enforce that power in a manner that  may  be found  to  be  objectionable  by   the  Muslims  or  by  the Christians  or by any other community in India." He  further stated  in  his speech as under :  "We must all remember  -- including Members of the Muslim community who have spoken on this  subject, though one can appreciate their feelings very well  -- that sovereignty is always limited, no matter  even if  you assert that it is unlimited, because sovereignty  in the  exercise  of  that power must reconcile itself  to  the sentiments  of different communities." Moreover, as  pointed out  by  Brother  Sethi, J., learned ASG appearing  for  the respondent  has  stated before the Court that the Govt.   of India  did  not intend to take any action in this regard  on the  basis of that judgment alone.  These affidavits and the statement  made  on  behalf  of the Union  of  India  should clearly  dispel notions harboured by the Jamat-e-Ulema  Hind and  the  Muslim  Personal  Law Board.  I  am  also  of  the opinion,  concurring with Brother Sethi, J., that this Court in  Sarla Mudgal’s case had not issued any DIRECTION for the enactment  of a common civil code.  The Review Petition  and the  Writ  Petitions  are  disposed   of  finally  with  the clarifications set out above.  .......................J ( S. Saghir  Ahmad ) New Delhi May 5, 2000.  IN THE SUPREME COURT OF  INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION  (CIVIL) NO.   798  OF 1995 Lily Thomas, etc.  etc.  ..   Petitioners vs.   Union  of India & Ors.  ..  Respondents WITH  (W.P.(C) No.   1079/89,  RP(C)  No.  1310/95 IN WP(C)  509/92,  WP(C) No.347/90,  WP(C)  No.   424/92, WP(C)  No.   503/95,  WP(C) No.509/92,  WP(C) No.  588/95, WP(C) No.835/95) O R D E R In view  of  the concurring, but separate judgments the  Review

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Petition and the Writ Petitions are disposed of finally with the  clarifications and interpretation set out therein.  All interim  orders  passed  in   these  petitions  shall  stand vacated.