CASE COMMENT- LILY THOMAS V.

UOI (AIR 2000 SC 1650)

Introduction:Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition in the 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. around the 1st of April, 1992, her husband told the her 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. Her husband also showed a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that her husband had embraced Islam. The petitioner contacted her father and aunt and told them about her husband's conversion and intention to remarry. They all tried to convince her husband 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. It may be stated that her husband 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.

Comment:The question before the Honble Apex Court was- where a non-Muslim gets converted to the 'Muslim' 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? In other words it can be said that second marriage by Hindu after conversion to Islam during subsistence of first marriage is offence/void and punishable or not? It was held that any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 the Indian Penal Code 1860 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. In the present case, Mr. GC Gosh could not be considered as Muslim and this can be conferred from his visa application, birth certificate and electoral list of polling station where he has described himself as GC Gosh along with his first wife and has mentioned his religion as Hindu. He is still professing the Hindu religion infact he has no faith in the Islam. At this stage, it would be inappropriate to treat him as Muslim because conversion to 'Islam' was not the result of exercise of the right to freedom of conscience, but was feigned to get rid of his first wife. The court was right to holding that he is to be punished and the second marriage is void because one should not be allowed hide behind the veil to escape from its responsibility. Suffice it to say that the question as to applicability if the Hindu Marriage Act could not be raised at any stage. 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 5 of the Act makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled and one of those conditions is that neither party has a spouse living at the time of the marriage. The usage of the expression `may' in the opening line of the Section does not make the provision of Section 5 optional. On the other hand, it in positive terms indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. The expression `may' used in the opening words of Section 5 is not directory, as has been sought to be argued, but mandatory and non-fulfillment thereof would not permit a marriage under the Act.1 Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. It could be taken only as ground for divorce according to the Section 13 (1) (ii) as also a ground for judicial separation under Section 10(1) of the Act.
1

Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipili Pavani , http://indiankanoon.org/doc/421764/ (last visited 2 Oct. 2011).

Suffice it to say 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. In 227th Law Commission Report mentions that the conversion of religion only for purpose of marriage would not be treated as defence and second marriage during subsisting first marriage would be void. It has been held by the judiciary in number of cases that 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 could be liable to be prosecuted under Section 494 IPC.2 As in the present, second marriage took place when his first wife was alive and he has not legally got a divorce from the prior wife. The fact of the present case does not fulfill the conditions mentioned under section 5 of the Act therefore it was appropriate for the court to hold that the second marriage is void and to hold him liable for bigamy.

Kanwal Ram v. H.P. Administration, 1966CriLJ472; Priya Bala Ghosh v. Suresh Chandra Ghosh,1971CriLJ939; Gopal Lal v. State of Rajasthan,1979CriLJ652