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PETITIONER: SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT10/05/1995

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1995 AIR 1531            1995 SCC  (3) 635  JT 1995 (4)   331        1995 SCALE  (3)286

ACT:

HEADNOTE:

JUDGMENT:                       THE 10TH DAY OF MAY, 1995 Present:            Hon’ble Mr. Justice Kuldip Singh            Hon’ble Mr. Justice R.M. Sahai Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr. Advs., Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.                      J U D G M E N T S/O R D E R The following Judgments/Order of the Court were delivered: Smt. Sarla Mudgal, President, Kalyani and Ors.                                Versus. Union of India & Ors. (W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92)                            J U D G M E N T Kuldip Singh, J.      "The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate  under Article 44 of the Constitution of India which  seeks to  introduce a  uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru,  while defending  the introduction  of the  Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is  ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not  in a  mood to  retrieve Article  44 from  the  cold storage where  it is  lying since  1949. The  Governments  - which have  come and  gone -  have so far failed to make any effort towards  "unified personal  law for all Indians". The

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reasons are  too obvious  to be  stated. The utmost that has been done  is to  codify the  Hindu law  in the  form of the Hindu Marriage  Act, 1955.  The Hindu  Succession Act, 1956, the Hindu  Minority and Guardianship Act, 1956 and the Hindu Adoptions and  Maintenance Act, 1956 which have replaced the traditional Hindu  law based on different schools of thought and scriptural  laws into  one unified  code. When more than 80% of  the citizens  have already  been brought  under  the codified personal  law there  is no justification whatsoever to keep  in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.      The questions for our consideration are whether a Hindu husband, married  under Hindu  law, by  embracing Islam, can solemnise second  marriage? Whether  such a marriage without having the  first marriage  dissolved under  law, would be a valid marriage  qua the first wife who continue to be Hindu? Whether the  apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?      These are  four  petitions  under  Article  32  of  the Constitution of  India. There  are two  petitioners in  Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI" - a  registered society  - which  is an organisation working for the  welfare of  needy-families and  women in  distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27,  1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked  to learn that her husband had solemnised second marriage with  one Sunita Narula @ Fathima. The marriage was solemnised after  they converted  themselves  to  Islam  and adopted  Muslim   religion.  According  to  the  petitioner, conversion of  her husband to Islam was only for the purpose of marrying  Sunita  and  circumventing  the  provisions  of Section  494,  IPC.  Jitender  Mathur  asserts  that  having embraced Islam,  he can  have four wives irrespective of the fact that his first wife continues to be Hindu.      Rather  interestingly   Sunita  alias  Fathima  is  the petitioner in  Writ Petition  347 of 1990. She contends that she along  with Jitender  Mathur who  was earlier married to Meena Mathur  embraced Islam  and thereafter  got married. A son was  born to her. She further states that after marrying her, Jitender  Prasad, under  the  influence  of  her  first Hindu-wife, gave  an undertaking  on April  28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife  and three  children. Her  grievance is  that she continues to  be Muslim, not being maintained by her husband and has no protection under either of the personal laws.      Geeta Rani, petitioner in Writ Petition 424 of 1992 was married  to  Pradeep  Kumar  according  to  Hindu  rites  on November 13,  1988. It  is alleged  in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner  learnt that  Pradeep Kumar ran away with one Deepa and  after conversion  to Islam  married  her.  It  is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.      Sushmita Ghosh  is  another  unfortunate  lady  who  is petitioner in  Civil Writ  Petition 509  of  1992.  She  was married to  G.C. Ghosh  according to  Hindu rites on May 10, 1984. On  April 20,  1992, the  husband told  her that he no longer wanted  to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that  she was  her legally  wedded wife and wanted to live with  him and  as such  the question of divorce did not arise. The  husband finally  told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had

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obtained a  certificate dated  June 17,  1992 from  the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner  has  further  prayed  that  her  husband  be restrained from  entering into  second marriage  with Vinita Gupta.      Marriage  is  the  very  foundation  of  the  civilised society. The  relation once  formed, the  law steps  in  and binds the  parties to  various obligations  and  liabilities thereunder. Marriage is an institution in the maintenance of which the  public at  large is  deeply interested. It is the foundation of  the family and in turn of the society without which no civilisation can exist.      Till the  time we achieve the goal - uniform civil code for all  the citizens of India - there is an open inducement to a  Hindu husband, who wants to enter into second marriage while the  first marriage is subsisting, to become a Muslim. Since monogamy  is the  law for  Hindus and  the Muslim  law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.      The doctrine  of indissolubility of marriage, under the traditional Hindu  law, did  not recognise  that  conversion would have  the  effect  of  dissolving  a  Hindu  marriage. Conversion to  another religion  by one  or both  the  Hindu spouses did not dissolve the marriage. It would be useful to have a  look at  some of the old cases on the subject. In Re Ram Kumari  1891 Calcutta  246 where  a  Hindu  wife  became convert to  the Muslim  faith and then married a Mohammedan, it was  held that  her earlier marriage with a Hindu husband was not  dissolved by  her conversion.  She was  charged and convicted of  bigamy under  Section 494  of the  IPC. It was held that  there was  no authority  under Hindu  law for the proposition that  an apostate  is absolved  from  all  civil obligations and  that so  far as  the matrimonial  bond  was concerned, such view was contrary to the spirit of the Hindu law. The  Madras High  Court followed  Ram Kumari in Budansa vs. Fatima  1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121  a Hindu  wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after  converting  her  to  Islam.  It  was  held  that  the conversion of  the Hindu  wife to  Mohammedan faith  did not ipso facto  dissolve the  marriage and  she could not during the life  time of  her former  husband enter  into  a  valid contract of  marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.      In Nandi  @ Zainab  vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a  Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the  Indian Penal Code. It was held that the mere fact of her conversion  to Islam did not dissolve the marriage which could only  be dissolved  by a  decree of court. Emperor vs. Mt. Ruri  AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then  married a Mohomedan. It was held that according to the Christian  marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.      In India  there has  never been  a matrimonial  law  of general application.  Apart from  statute law a marriage was governed by  the personal  law of  the parties.  A  marriage solemnised under  a  particular  statute  and  according  to personal law  could not  be dissolved  according to  another personal law,  simply because one of the parties had changed his or her religion.

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    In Sayeda  Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:      "The parties  were originally Jews bound      by  the   Jewish  personal   law...  The      Plaintiff has  since been  converted  to      Islam  and   may  in  some  respects  be      governed by  the  Mohammedan  Law..  The      Defendant  is   not  governed   by   the      Mahommedan Law.. If this were an Islamic      country, where  the Mahommedan  Law  was      applied to all cases where one party was      a Mahommedan, it might be that plaintiff      would be  entitled  to  the  declaration      prayed for. But this is not a Mahommedan      country; and  the Mahommedan  Law is not      the  Law   of  the  Land..  Now  all  my      opinion, is  it the  Law of  India, that      when any  person is  converted to  Islam      the Mahommedan  Law shall  be applicable      to him in all his relationships?.. I can      see no  reason why  the  Mahommedan  Law      should be preferred to the Jewish Law in      a   matrimonial    dispute   between   a      Mahommdan and  a Jew  particularly  when      the relationship,  viz.:  marriage,  was      created under  the  Jewish  Law..  As  I      stated in  a previous  case there  is no      matrimonial law  of general  application      in India.  There  is  a  Hindu  Law  for      Hindus,    a    Mahommedan    Law    for      Mahommedans,   a   Christian   Law   for      Christians, and  a Jewish  Law for Jews.      There  is  no  general  matrimonial  law      regarding mixed marriages other than the      statute law,  and there is no suggestion      that the  statute law  is applicable  in      the present  case.. It  may  be  that  a      marriage solemnised  according to Jewish      rites may  be dissolved  by  the  proper      authority under  Jewish Law  when one of      the parties  renounces the Jewish Faith.      It may  be that  a  marriage  solemnised      according  to   Jesish  rites   may   be      dissolved by  the proper authority under      Jewish  Law  when  one  of  the  parties      renounces the  Jewish Faith.  It may  be      that a  marriage solemnised according to      Mahommedan   Law    may   be   dissolved      according to the Mahommedan Law when one      of  the   parties   ceases   to   be   a      Mahommedan. But  I can find no authority      for the  view that a marriage solemnized      according to  one personal  law  can  be      dissolved according  to another personal      law  simply   because  one  of  the  two      parties   has   changed   his   or   her      religion." Sayeda Khatoon’s case was followed with approval by Blagden, J. of  the Bombay  High Court  in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were  married according to Zoroastrian law. The wife became Muslim  whereas the  husband declined  to do  so. The wife claimed  that her  marriage stood  dissolved because of her conversion  to Islam.  The learned  Judge dismissed  the suit. It would be useful to quote the following observations

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from the judgment:      "We have,  therefore,  this  position  -      British India  as a  whole,  is  neither      governed  by  Hindu,  Mahommedan,  Sikh,      Parsi, Christian,  Jewish or  any  other      law  except   a  law  imposed  by  Great      Britain under  which Hindus, Mahomedans,      Sikhs, Parsis,  and  all  others,  enjoy      equal rights  and  the  utmost  possible      freedom   of    religious    observance,      consistent in every case with the rights      of other  people. I  have to decide this      case according  to the law as it is, and      there seems,  in principle,  no adequate      ground for  holding that  in  this  case      Mahomedan law  is applicable  to a  non-      Mahomedan..  Do   then  the  authorities      compel me to hold that one spouse can by      changing his  or her  religious opinions      (or purporting  to do  so) force  his or      her newly  acquired personal  law  on  a      party to  whom it  is entirely alien and      who does  not want  it? In  the name  of      justice, equity and good conscience, or,      in  more   simple  language,  of  common      sense, why  should this  be possible? If      there were  no authority  on the point I      (personally) should have thought that so      monstrous an  absurdity carried  its own      refutation with  it, so  extravagant are      the results  that follow from it. For it      is not only the question of divorce that      the plaintiff’s  contention affects.  If      it  is   correct,  it   follows  that  a      Christian husband can embrace Islam and,      the next moment, three additional wives,      without even the consent of the original      wife." Against the  judgment of  Blagden, J.  appeal was heard by a Division  Bench  consisting  of  Sir  Leonard  Stone,  Chief Justice and  Mr. Justice  Chagla (as  the learned Judge then was). Chagla,  J. who spoke for the Bench posed the question that  arose  for  determination  as  under:  "what  are  the consequences of  the plaintiff’s  conversion to Islam?". The Bench upheld  the judgment  of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:-      "We have here a Muslim wife according to      whose personal  law conversion to Islam,      if the other spouse does not embrace the      same religion,  automatically  dissolves      the  marriage.  We  have  a  Zoroastrian      husband according  to whose personal law      such conversion does not bring about the      same  result.   The  Privy   Council  in      Waghela  Rajsanji   v.  Shekh   Masludin      expressed the  opinion that if there was      no rule  of Indian  law which  could  be      applied to  a particular  case, then  it      should be  decided by  equity  and  good      conscience, and  they interpreted equity      and good conscience to mean the rules of      English  law   if  found  applicable  to      Indian society  and  circumstances.  And      the same  view was  confirmed  by  their

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    Lordships  of   the  Privy   Council  in      Muhammad Raza  v. Abbas  Bandi Bibi. But      there is  no rule  of English  law which      can be  made applicable  to a  suit  for      divorce by  a Muslim  wife  against  her      Zoroastrian  husband.  The  English  law      only  deals   and  can  only  deal  with      Christian marriages and with grounds for      dissolving   a    Christian    marriage.      Therefore we  must decided  according to      justice and  right, or  equity and  good      conscience    independently    of    any      provisions of  the English  law. We must      do  substantial   justice  between   the      parties and  in doing  so hope  that  we      have  vindicated   the   principles   of      justice and  right or  equity  and  good      conscience... It is impossible to accept      the  contention  of  Mr.  Peerbhoy  that      justice  and   right  requires  that  we      should apply  Muslim law in dealing this      case. It  is difficult  to see  why  the      conversion of  one party  to a  marriage      should necessarily  afford a  ground for      its dissolution.  The bond  that keeps a      man and  woman happy  in marriage is not      exclusively the  bond of religion. There      are  many   other  ties  which  make  it      possible for  a husband and wife to live      happily  and  contentedly  together.  It      would indeed  be a startling proposition      to lay  down that  although two  persons      may  want  to  continue  to  live  in  a      married state  and disagree  as  to  the      religion  they   should  profess,  their      marriage    must     be    automatically      dissolved. Mr.  Peerbhoy has  urged that      it is rarely possible for two persons of      different  communities   to  be  happily      united in  wedlock. If conversion of one      of the  spouses  leads  to  unhappiness,      then  the   ground  for  dissolution  of      marriage would not be the conversion but      the resultant  unhappiness. Under Muslim      law, apostasy from Islam of either party      to a marriage operates as a complete and      immediate dissolution  of the  marriage.      But s.4  of the  Dissolution  of  Muslim      Marriages Act  (VIII of  1939)  provides      that the  renulciation  of  Islam  by  a      married Muslim  woman or  her conversion      to a faith other than Islam shall not by      itself operate to dissolve her marriage.      This  is   a  very  clear  and  emphatic      indication that  the Indian  legislature      has departed  from;  the  rigor  of  the      ancient Muslim  law and  has  taken  the      more modern  view that  there is nothing      to    prevent     a    happy    marriage      notwithstanding the  fact that  the  two      parties  to   it   professed   different      religious.. We  must also point out that      the plaintiff  and  the  defendant  were      married  according  to  the  Zoroastrian      rites. They  entered into  a solemn pact

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    that the  marriage would  be  monogamous      and could only be dissolved according to      the tenets  of the Zoroastrian religion.      It would be patently contrary to justice      and right  that one  party to  a  solemn      pact should  be allowed  to repudiate it      by  a   unilateral  act.   It  would  be      tantamount to  permitting  the  wife  to      force  a   divorce  upon   her   husband      although he may not want it and although      the marriage  vows which  both  of  them      have taken would not permit it. We might      also point out that the Shariat Act (Act      XXVI of  1937) provides that the rule of      decision in the various cases enumerated      in  s.2   which  includes  marriage  and      dissolution of  marriage  shall  be  the      Muslim  personal   law  only  where  the      parties are Muslims; it does not provide      that the Muslim personal law shall apply      when  only  one  of  the  parties  is  a      Muslim." (the  single Judge judgment and      the Division Bench judgment are reported      in 1946 Bombay Law Reporter 864)      In Andal  Vaidyanathan  vs.  Abdul  Allam  Vaidya  1946 Madras, a  Division Bench  of the  High Court dealing with a marriage under the Special Marriage Act 1872 held:      "The Special  Marriage Act  clearly only      contemplates  monogamy   and  a   person      married under the Act cannot escape from      its provisions  by merely  changing  his      religion. Such  a person  commits bigamy      if he  marries again during the lifetime      of his  spouse, and  it matters not what      religion he professes at the time of the      second marriage. Section 17 provides the      only means  for  the  dissolution  of  a      marriage  or   a  declaration   of   its      nullity.           Consequently,  where   two  persons      married  under   the  Act   subsequently      become converted  to Islam, the marriage      can  only   be   dissolved   under   the      provisions of  the Divorce  Act and  the      same would  apply even  if only  one  of      them becomes  converted to Islam. Such a      marriage  is   not  a  marriage  in  the      Mahomoden sense  which can  be dissolved      in a Mahomedan manner. It is a statutory      marriage and  can only  be dissolved  in      accordance with  the Statute:  (’41)  28      A.I.R.1941 Cal.  582 and  (1917) 1  K.B.      634, Rel.  on; (’35) 22 A.I.R. 1935 Bom.      8 and 18 Cal. 264, Disting."      It is, thus, obvious from the catena of case-low that a marriage celebrated  under a  particular personal law cannot be dissolved  by the  application of another personal law to which one  of the  spouses converts and the other refuses to do so.  Where a  marriage takes  place under  Hindu Law  the parties acquire  a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the  parties is  allowed  to  dissolve  the  marriage  by adopting  and   enforcing  a  new  personal  law,  it  would tantamount to  destroying the  existing rights  of the other spouse who  continues to  be Hindu. We, therefore, hold that

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under the  Hindu Personal  Law as  it existed  prior to  its codification in  1955, a Hindu marriage continued to subsist even after  one of the spouses converted to Islam. There was no automatic dissolution of the marriage.      The position has not changed after coming into force of the Hindu  Marriage Act, 1955 (the Act) rather it has become worse for  the  apostate.  The  Act  applies  to  Hindus  by religion in  any of  its  forms  or  developments.  It  also applies to Buddhists, Jains and Sikhs. It has no application to Muslims,  Christians and Parsees. Section 4 of the Act is as under:      "Overriding  effect   of  Act.  save  as      otherwise  expressly  provided  in  this      Act,-      (a)  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;      (b)  any other  law in force immediately      before  the  commencement  of  this  Act      shall cease  to have effect in so far as      it  is  inconsistent  with  any  of  the      provisions contained in this Act."      A marriage  solemnised, whether  before  or  after  the commencement of  the Act,  can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act.  One of  the grounds  under Section  13 (i) (ii) is that "the other party has ceased to be a Hindu by conversion to another  religion". Sections  11 and  15 of the Act is as under:-      "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 against  the other  party, be so      declared by  a decree  of nullity  if it      contravenes any  one of  the  conditions      specified in  clauses (i),  (iv) and (v)      of Section 5."      "Divorced persons when may marry again.-      When a  marriage has been dissolved by a      decree of divorce and either there is no      right of  appeal against  the decree or,      of there  is such  a right of appeal the      time for  appealing has  expired without      an appeal  having been  presented or  an      appeal has  been presented  but has been      dismissed, it shall be lawful for either      party to the marriage to marry again."      It is  obvious from  the various  provisions of the Act that the  modern Hindu  Law strictly  enforces  monogamy.  A marriage performed  under the Act cannot be dissolved except on the  grounds available  under section  13 of  the Act. In that situation  parties who  have  solemnised  the  marriage under the  Act remain married even when the husband embraces Islam in  pursuit of  other wife.  A second  marriage by  an apostate under  the shelter  of conversion  to  Islam  would nevertheless be a marriage in violation of the provisions of the Act  by which  he would  be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion  to Islam. The second marriage of an apostate would, therefore,  be illegal  marriage  qua  his  wife  who

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married him under the Act and continues to be Hindu. Between the apostate  and his  Hindu wife  the second marriage is in violation of  the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:-      "Marrying  again   during  lifetime   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.      The necessary  ingredients  of  the  Section  are:  (1) having a  husband or  wife living;  (2) marries in any case; (3) in  which such  marriage is  void; (4)  by reason of its taking place during the life of such husband or wife.      It is  no doubt correct that the marriage solemnised by a Hindu  husband after embracing Islam may not be strictly 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 professes monogamy.      The expression  "void" for  the purpose  of the 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  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 solemnised  under the Act can only be dissolved on  any of  the grounds  specified under  the Act. Till the  time a  Hindu marriage  is dissolved 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 the 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-bye to  the substance  of the matter and acting against the  spirit of the Statute if the second marriage of the convert is held to be legal.      We also  agree with  the law laid down by Chagla, J. in Robasa Khanum  vs. Khodabad Irani’s case (supra) wherein the learned Judge  has held  that 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. The  second marriage  of a  Hindu husband  after embracing Islam  being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.      Looked from  another angle,  the second  marriage of an apostate-husband would  be in  violation  of  the  rules  of

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natural justice.  Assuming that  a Hindu husband has a right to embrace  Islam as his religion, he has no right under the Act to  marry again  without getting  his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.      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. 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. Since  it is  not the object of Islam nor is the intention  of the  enlighten Muslim  community that  the Hindu husbands should be encouraged to become Muslims merely for the  purpose of  evading  their  own  personal  laws  by marrying again,  the courts  can be  persuaded  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. All the four ingredients of Section 494 IPC are satisfied in the case  of a Hindu husband who marries for the second time after conversion  to Islam. He has a wife living, he marries again. The  said marriage  is void  by reason  of its taking place during the life of the first wife.      We, therefore, hold that the second marriage of a Hindu husband after  his conversion to Islam is a void marriage in terms of Section 494 IPC.      We may  at this stage notice the Privy Council judgment in Attorney  General Ceylon  vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later  she embraced  Islamic faith  and got married by the Registrar  of Muslim  Marriages at  Colombo according to the statutory  formalities prescribed for a Muslim marriage. The husband  was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an  appeal before  the Privy  Council, the respondent was absolved from  the offence  of bigamy.  It was held by Privy Council as under :-      "In  their   Lordship’s  view,  in  such      countries  there  must  be  an  inherent      right in the inhabitants domiciled there      to change  their religion  and  personal      law  and   so  to   contract   a   valid      polygamous marriage if recognised by the      laws of  the country  notwithstanding an      earlier marriage. It such inherent right      is to  be abrogated,  it must be done by      statute."      Despite  there   being  an  inherent  right  to  change religion the  applicability of  Penal laws would depend upon the two  personal laws  governing the marriage. The decision of Privy  Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid’s case  is, thus,  of no  help to  us in  the facts and legal background of the present cases.      Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution  Bench of  this Court  speaking through Chief Justice Y.V.  Chandrachud in  Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:      "It is  also a  matter  of  regret  that

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    Article  44   of  our  Constitution  has      remained a dead letter. It provides that      "The State shall endeavour to secure for      the  citizens   a  uniform   civil  code      throughout  the   territory  of  India".      There is  no evidence  of  any  official      activity for framing a common civil code      for the  country. A belief seems to have      gained ground  that it is for the Muslim      community to  take a  lead in the matter      of reforms  of  their  personal  law.  A      common Civil Code will help the cause of      national   integration    by    removing      disparate loyalties  to laws  which have      conflicting ideologies.  No community is      likely  to   bell  the   cat  by  making      gratuitous concessions on this issue. It      is the  State which  is charged with the      duty of  securing a  uniform civil  code      for the  citizens of  the  country  and,      unquestionably; it  has the  legislative      competence to  do so.  A counsel  in the      case whispered,  somewhat audibly,  that      legislative competence is one thing, the      political courage to use that competence      is  quite  another.  We  understand  the      difficulties   involved    in   bringing      persons   of    different   faiths   and      persuasions on a common platform. But, a      beginning  has   to  be   made  is   the      Constitution is  to  have  any  meaning.      Inevitably, the role of the reformer has      to be  assumed by the courts because, it      is beyond  the  endurance  of  sensitive      minds to  allow injustice to be suffered      when it  is so  palpable. But  piecemeal      attempts of  courts to  bridge that  gap      between personal  laws cannot  take  the      place of a common Civil Code. Justice to      all is  a far  more satisfactory  way of      dispensing  justice  than  justice  from      case to case." In Ms.  Jordan Diengdeh  vs. S.S.  Chopra AIR 1985 SC 935 O. Chinnappa Reddy,  J. speaking  for the Court referred to the observations of  Chandrachud, CJ  in Shah  Bano Begum’s case and observed as under:      "It  was  just  the  other  day  that  a      Constitution Bench  of this Court had to      emphasise the  urgency of  infusing life      into Art.  44 of  the Constitution which      provides that "The State shall endeavour      to secure  for the  citizens  a  uniform      civil code  throughout the  territory of      India." The  present case is yet another      which focuses  .. on  the immediate  and      compulsive  need  for  a  uniform  civil      code. The  totally unsatisfactory  state      of affairs  consequent on  the lack of a      uniform civil  code is  exposed  by  the      facts  of   the  present   case.  Before      mentioning the  facts of  the  case,  we      might as  well refer to the observations      of Chandrachud,  CJ in  the recent  case      decided by the Constitution Bench (Mohd.      Ahmed Khan vs. Shah Bano Begum)."

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One wonders  how long will it take for the Government of the day  to   implement  the  mandate  of  the  framers  of  the Constitution under  Article 44 of the Constitution of India. The traditional  Hindu law  - personal  law of  the Hindus - governing inheritance, succession and marriage was given go- bye as  back as  1955-56 by  codifying the same. There is no justification  whatsoever   in  delaying   indefinitely  the introduction of a uniform personal law in the country.      Article 44  is based  on the  concept that  there is no necessary connection  between religion and personal law in a civilised society.  Article 25  guarantees religious freedom whereas Article  44 seeks  to divest  religion  from  social relations 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 the  Hindus, such  as relating to marriage, succession and  the like  have all  a sacramental origin, in the same  manner as  in the  case  of  the  Muslims  or  the Christians. The  Hindus alongwith Sikhs, Buddhists and Jains have forsaken  their sentiments in the cause of the 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.      It has  been judicially  acclaimed in the United States of America  that the  practice of  Polygamy is  injurious to "public morals",  even though  some  religion  may  make  it obligatory  or  desirable  for  its  followers.  It  can  be superseded by  the State  just  as  it  can  prohibit  human sacrifice or  the practice  of "Suttee"  in the  interest of public order.  Bigamous marriage  has been  made  punishable amongst Christians  by Act  (XV of 1872), Parsis by Act (III of 1936)  and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).      Political history of India shows that during the Muslim regime, justice  was administered  by the  Qazis  who  would obviously apply  the Muslim  Scriptural law  to Muslims, but there was no similar assurance so far litigations concerning Hindus was  concerned. The  system, more  or less, continued during the  time of  the East India Company, until 1772 when Warren Hastings  made Regulations  for the administration of civil   justice   for   the   native   population,   without discrimination  between  Hindus  and  Mahomedans.  The  1772 Regulations followed  by the  Regulations of 1781 whereunder it was  prescribed that  either community was to be governed by its  "personal" law  in matters  relating to inheritance, marriage, religious  usage and  institutions. So  far as the criminal  justice   was  concerned   the  British  gradually superseded the  Muslim law  in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was  enacted  in  1860.  This  broad  policy  continued throughout the  British regime  until independence  and  the territory of  India was  partitioned by  the British  Rulers into  two  States  on  the  basis  of  religion.  Those  who preferred to remain in India after the partition, fully knew that the  Indian leaders  did not  believe in  two-nation or three-nation theory  and that  in the  Indian Republic there was to be only one Nation - Indian nation - and no community could claim  to remain  a separate  entity on  the basis  of religion. It  would  be  necessary  to  emphasise  that  the respective personal  laws were  permitted by  the British to govern the  matters relating  to inheritance, marriages etc. only  under   the  Regulations  of  1781  framed  by  Warren Hastings.  The  Legislation  -  not  religion  -  being  the authority under  which personal law was permitted to operate and  is   continuing   to   operate,   the   same   can   be

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superseded/supplemented by introducing a uniform civil code. In this  view of  the matter  no community  can  oppose  the introduction of  uniform civil  code for all the citizens in the territory of India.      The Successive  Governments till-date  have been wholly re-miss in  their duty  of implementing  the  constitutional mandate under Article 44 of the Constitution of India.      We, therefore,  request the Government of India through the Prime  Minister of  the country  to have a fresh look at Article 44  of the  Constitution of  India and "endeavour to secure for  the citizens  a uniform  civil code throught the territory of India".      We further  direct  the  Government  of  India  through Secretary, Ministry  of Law and Justice to file an affidavit of a  responsible officer  in this  Court  in  August,  1996 indicating therein  the steps taken and efforts made, by the Government of India, towards securing a "uniform civil code" for the  citizens of India. Sahai, J. in his short and crisp supporting opinion  has suggested some of the measures which can be undertaken by the Government in this respect.      Answering the questions posed by us in the beginning of the judgment,  we hold  that the second marriage of a Hindu- husband after  conversion to Islam, without having his first marriage dissolved  under law,  would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC  and the  apostate-husband would  be guilty  of  the offence under Section 494 IPC.      The question  of law having been answered we dispose of the writ  petitions. The  petitioners may seek any relief by invoking any  remedy which  may be  available to  them as  a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc.                                  Vs. Union of India & Ors.                            J U D G M E N T R.M. SAHAI, J.      Considering senstivity  of the  issue and  magnitude of the problem, both on the desirability of a uniform or common civil code  and its feasibility, it appears necessary to add a few  words to  the social necessity projected in the order proposed by  esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.      The pattern  of debate,  even today, is the same as was voiced forcefully  by the  members of the minority community in the  Constituent Assembly. If, ‘the non-implementation of the provisions  contained in  Article 44  amounts  to  grave failure of  Indian democracy’  represents one  side  of  the picture,  then   the  other   side  claims   that,  ‘Logical probability  appears   to  be  that  the  code  would  cause dissatisfaction and  disintegration than  serve as  a common umbrella to promote homogeneity and national solidarity’.      When Constitution  was framed  with secularism  as  its ideal and  goal, the  consensus and  conviction to  be  one, socially,  found   its  expression  in  Article  44  of  the Constitution. But religious freedom, the basic foundation of secularism, was  guaranteed by  Articles 25  to  28  of  the Constitution.  Article   25  is   very  widely   worded.  It guarantees all  persons, not  only freedom of conscience but the right  to profess, practice and propagate religion. What is religion?  Any faith  or belief.  The Court  has expanded religious liberty  in its  various phases  guaranteed by the Constitution and  extended it to practices and even external

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overt acts  of the  individual. Religion  is more  than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured  inner aspects  of religious  belief. And external expression  of it  were protected  by  guaranteeing right to  freely, practice  and propagate  religion. Reading and reciting  holy scriptures,  for  instance,  Ramayana  or Quran or  Bible or  Guru Granth  Sahib is  as much a part of religion as offering food to deity by a Hindu or bathing the idol or  dressing him  and going to a temple, mosque, church or gurudwara.      Marriage, inheritance,  divorce, conversion are as much religious in  nature and  content as  any  other  belief  or faith. Going  round the  fire seven rounds or giving consent before Qazi  are as  much matter  of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or  a Mulsim becomes Hindu by reciting certain Mantras it is  a matter  of belief  and conscience.  Some  of  these practices observed  by members of one religion may appear to be excessive  and even  violative of human rights to members of another. But these are matters of faith. Reason and logic have little  role to  play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no  Raja Ram  Mohan Rai  who single  handed brought about that atmoophere  which paved the way for Sati abolition. Nor is a  statesman of  the stature of Pt. Nehru who could pilot through, successfully,  the Hindu  Succession Act  and Hindu Marriage Act  revolutionising the  customary Hindu  Law. The desirability of  uniform Code  can hardly be doubted. But it can concretize only when social climate is properly built up by elite  of the  society,  statesmen  amongst  leaders  who instead of  gaining personal  mileage rise  above and awaken the masses to accept the change.      The problem  with which  these appeals are concerned is that many Hindus have changed their religion and have become convert  to   Islam  only   for  purposes  of  escaping  the consequences of  bigamy. For  instance, Jitendra  Mathur was married to  Meena Mathur. He and another Hindu girl embraced Islam. Obviously  because Muslim  Law permits  more than one wife and  to the  extent of  four. But  no religion  permits deliberate distortions.  Much misapprehension prevails about bigamy in  Islam. To check the misuse many Islamic countries have codified  the personal  Law, ‘Wherein  the practice  of polygamy has  been either  totally  prohibited  or  severely restricted. (Syria,  Tunisia, Morocco,  Pakistan, Iran,  the Islamic Republics of the Soviet Union are some of the Muslim countries to  be remembered  in this context’. But ours is a Secular Democratic Republic. Freedom of religion is the core of our  culture. Even  the slightest  deviation  shakes  the social fibre.  ‘But religious  practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil  and   material  freedoms,   are  not   autonomy   but oppression’. Therefore,  a unified  code is  imperative both for protection  of the  oppressed and  promotion of national unity and  solidarity. But  the  first  step  should  be  to rationalise the  personal law  of the  minorities to develop religious and  cultural amity.  The Government would be well advised to  entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter  and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.      The  Government   may  also   consider  feasibility  of appointing a  Committee to enact Conversion of Religion Act, immediately, to  check the  abuse of religion by any person. The law  may provide  that every  citizen  who  changes  his religion cannot  marry another  wife unless  he divorces his

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first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or  a Jain  or  a  Budh.  Provision  may  be  made  for maintenance and  succession etc.  also  to  avoid  clash  of interest after death.      This would  go a long way to solve the problem and pave the way for a unified civil code. Smt. Sarla Mudgal, President Kalyani and Ors.                                  Vs. Union of India & Ors. (W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).                               O R D E R      For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the  answers to  the questions  posed in  the opinion  of Kuldip Singh, J.