Divorce

CASE NAME Smt. Sarla Mudgal, President, Kalyani & ors. Vs Union of India
CITATION 1995 AIR 151
COURT
India
Level of Court: Su!reme "ourt
Name of Judges: Kuldip Singh, R.M Sahai
SUMMARY OF
FACTS
The present case has petitioners. !t is a "rit petition under #rticle
$% of the !ndian Constitution. &etitioner ' is the &resident of
(K#L)#N!( * a registered societ+ * "hich is an organisation "or,ing
for the "elfare of need+*families and "omen in distress. &etitioner %,
Meena Mathur married Jitender Mathur in '-./. !n '-//, she
shoc,ed to learn that her hus0and had solemni1ed second marriage
"ith one Sunita Narula alias 2athima. The marriage "as solemnised
after the+ converted themselves to !slam and adopted Muslim
religion. #ccording to the petitioner, conversion of her hus0and to
!slam "as onl+ for the purpose of marr+ing Sunita and circumventing
the provisions of Section -, !&C. Jitender Mathur asserts that
having em0raced !slam, he can have four "ives irrespective of the
fact that his first "ife continues to 0e 3indu.
Sunita alias 2athima is another petitioner of '--4. She contends that
she along "ith Jitender Mathur "ho "as earlier married to Meena
Mathur em0raced !slam and thereafter got married. # son "as 0orn
to her. She further states that after marr+ing her, Jitender &rasad,
under the influence of her first 3indu*"ife, gave an underta,ing on
#pril %/, '-// that he had reverted 0ac, to 3induism and had agreed
to maintain his first "ife and three children. 3er grievance is that she
continues to 0e Muslim, not 0eing maintained 0+ her hus0and and
has no protection under either of the personal la"s.
5eeta Rani, "as married to &radeep Kumar in '-//. !n '--', the
petitioner learnt that &radeep Kumar ran a"a+ "ith one 6eepa and
after conversion to !slam married her. !t is stated that conversion to
!slam "as onl+ for the purpose of facilitating the second marriage.
Sus#mita $#os# %as married to $.". $#os# in '-/. !n '--% The
hus0and finall+ told the petitioner that #e #ad em&ra'ed Islam and
%ould soon marry one Vinita $u!ta. 3e had o0tained a certificate
dated from the 7a1i indicating that he had em0raced !slam. !n the
"rit petition, the petitioner has further pra+ed that her hus0and 0e
restrained from entering into second marriage "ith 8inita 5upta.
LEGAL
REASONING
1) Whether a Hindu husband !arried under Hindu "a# b$ e!bra%in&
Is"a! s'"e!ni(e a se%'nd !arria&e)

9under 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. here was no automatic dissolution of the marriage.!

:here a marriage ta,es place under 3indu La" the parties ac;uire a status
and certain rights 0+ the marriage itself under the la" governing the 3indu
Marriage and if one of the parties is allo"ed to dissolve the marriage 0+
adopting and enforcing a ne" personal la", it "ould as good as to
destro+ing the e<isting rights of the other spouse "ho continues to 0e 3indu.

The court further o0served that the second marriage of an apostate*hus0and
married under the 3indu Marriage #ct "ould 0e in violation of the rules of
e;uit+, =ustice and good conscience, as also those of natural =ustice
'
.
"#ssuming that a Hindu husband has a right to embrace Islam as his
religion, he has no right under the #ct to marr$ again without getting his
marriage under the #ct dissolved. he second marriage after conversion to
Islam would, thus, be in violation of the rules of natural %ustice and as such
would be void.!

Keeping in mind the interests of 0oth the 3indu and Muslim communities
and the pluralit+ of la"s, the court concluded that:
&'ince it is not the ob%ect of Islam nor is the intention of the enlightened
(uslim communit$ that the Hindu husbands should be encouraged to
become (uslim merel$ for the purpose of evading their own personal law b$
marr$ing again, the courts can be persuaded to adopt a construction of the
laws resulting in den$ing the Hindu husband converted to Islam the right to
marr$ again without having his existing marriage dissolved in accordance
with law&.

*) Whether su%h a !arria&e #ith'ut ha+in& the ,irst !arria&e diss'"+ed
under the "a# #'u"d be a +a"id !arria&e -ua the ,irst #i,e #h'
%'ntinued t' be a Hindu)

The Court interpreted the provisions of the 3indu Marriage #ct '->> "hile
ans"ering this ;uestion. !t held that a 3indu marriage cannot, under an+
circumstances, 0e dissolved unless 0+ a decree of divorce under the
grounds enumerated in the act. !t also pointed out that the #ct has an
overriding effect on an+ customs or usage prevalent 0efore the
commencement of the act.

1 Preventing Bigamy via Conversion to Islam A Proposal for giving Statutory Effect to Supreme Court Rulings- Law Commission
of India, Report No. 227, Government of India. August 2!.
!t o0served:
&)verriding effect of #ct save as otherwise expressl$ provided in this #ct,*
+a, an$ text, rule or interpretation of Hindu law or an$ custom or usage as
part of that law in force immediatel$ before the commencement of this #ct
shall cease to have effect with respect to an$ matter for which provision is
made in this #ct-
+b, an$ other law in force immediatel$ before the commencement of this #ct
shall cease to have effect in so far as it is inconsistent with an$ of the
provisions contained in this #ct.&

# marriage solemnised, whether before or after the commencement of the
#ct, can onl$ be dissolved b$ a decree of divorce on an$ of the grounds
enumerated in 'ection 1. of the #ct. )ne of the grounds under 'ection 1.
+i, +ii, is that &the other part$ has ceased to be a Hindu b$ conversion to
another religion&. 'ections 11 and 15 of the #ct is as under/*

&0oid marriages/* #n$ marriage solemni1ed after the commencement of this
#ct shall be null and void and ma$, on a petition presented b$ either part$
thereto against the other part$, be so declared b$ a decree of nullit$ if it
contravenes an$ one of the conditions specified in clauses +i,, +iv, and +v, of
'ection 5.
*
&

&2ivorced persons when ma$ marr$ again.* 3hen a marriage has been
dissolved b$ 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 part$ to the marriage to marr$ again.&
.

#fter loo,ing at the legal provisions and giving a fair interpretaon, the Court
concluded that:
"It is obvious from the various provisions of the #ct that the modern Hindu
Law strictl$ enforces monogam$.
# marriage performed under the #ct cannot be dissolved except on the
grounds available under section 1. of the #ct. In that situation parties who
have solemnised the marriage under the #ct remain married even when the
husband embraces Islam in pursuit of other wife. # second marriage b$ an
apostate under the shelter of conversion to Islam would nevertheless be a
marriage in violation of the provisions of the #ct b$ which he would be
continuing to be governed so far as his first marriage under the #ct is
concerned despite his conversion to Islam. he second marriage of an
apostate would, therefore, be illegal marriage 4ua his wife who married him
under the #ct and continues to be Hindu. 5etween the apostate and his
Hindu wife the second marriage is in violation of the provisions of the #ct
and as such would be non est!


.) Whether the a/'state husband be &ui"t$ ', the ',,en%e ', Se%ti'n
2 In t"e present #ase #$ause %i& is app$i#a'$e, i.e. (i) neither party has a spouse living at the time of the marriage
( )e#tion 1*, +indu ,arriage A#t 1!**.
010 ', the I2C)

Section - !ndian &enal Code is as under:*
&(arr$ing again during lifetime of husband or wife/ 3hoever, having a
husband or wife living, marries in an$ case in which such marriage is void b$
reason of its ta6ing place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term which ma$
extend to seven $ears, and shall also be liable to fine.!

9It is no doubt correct that the marriage solemni1ed b$ a Hindu husband
after embracing Islam ma$ not strictl$ be a void marriage under the #ct
because he is no longer a Hindu, but the fact remains that the said marriage
would be in violation of the #ct which strictl$ professes monogam$. he
expression 7void8 for the purpose of the #ct has been defined under 'ection
11 of the #ct. It has a limited meaning within the scope of the definition
under the section. )n the other hand the same expression has a different
purpose under 'ection 999 IP: and has to be given meaningful
interpretation. he expression 7void8 under 'ection 999 IP: has been used
in the wider sense. # marriage which is in violation of an$ provisions of law
would be void in terms of the expression used under 'ection 999 IP:. #
Hindu marriage solemni1ed under the #ct can onl$ be dissolved on an$ of
the grounds specified under the #ct. ill the time a Hindu marriage is
dissolved under the #ct none of the spouses can contract second marriage.
:onversion to Islam and marr$ing again would not, b$ itself, dissolve the
Hindu marriage under the #ct. he second marriage b$ a convert would
therefore be in violation of the #ct and as such void in terms of 'ection 999
IP:.
#n$ act which is in violation of mandator$ provisions of law is per se void.
he real reason for the void*ness of the second marriage is the subsisting of
the first marriage which is not dissolved even b$ the conversion of the
husband. It would be giving a go*b$ 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.!

The learned Judges further reiterated the Ro0asa Khanum vs. Khoda0ad
!rani?s case

and held:
";;the conduct of a spouse who converts to Islam has to be %udged on the
basis of the rule of %ustice and right or e4uit$ and good conscience. #
matrimonial dispute between a convert to Islam and his or her non*(uslim
spouse is obviousl$ not a dispute &where the parties are (uslims& and,
therefore, the rule of decision in such a case was or is not re4uired to be the
&(uslim Personal Law&. In such cases the :ourt shall act and the <udge
shall decide according to %ustice, e4uit$ and good conscience.!

The second marriage of a 3indu hus0and after em0racing !slam 0eing
violative of =ustice, e;uit+ and good conscience "ould 0e void on that ground
also and attract the provisions of Section -, !&C.

2inall+, the Court remar,ed:
- 1!-. /om'a0 Law Reporter 1.-
9he interpretation we have given to 'ection 999 IP: would advance the
interest of %ustice. It is necessar$ that there should be harmon$ between the
two s$stems of law %ust as there should be harmon$ between the two
communities. he result of the interpretation, we have given to 'ection 999
IP:, would be that the Hindu law on the one hand and the (uslim law on
the other hand would operate within their respective ambits without
trespassing on the personal laws of each other.!
CONCLUSION
The Supreme Court held that the second marriage of a 3indu* hus0and after
conversion to !slam, "ithout having his first marriage dissolved under la",
"ould 0e invalid. The second marriage "ould 0e void in terms of the
provisions of Section - !&C and the apostate*hus0and "ould 0e guilt+ of
the offence under Section - !&C. No costs "ere a"arded.
RESOURCES
Statutory (a%s

3indu Marriage #ct '->>: Section >, '', '$ and '>
!ndian &enal Code: Section -
!ndian Constitution: #rticle
LAN3MAR4
2RECE3ENTS
Re Ram Kumari
5

!t "as held that her @the "ifeA earlier marriage "ith a 3indu hus0and "as not
dissolved 0+ her conversion. She "as charged and convicted of 0igam+
under Section - of the !&C. !t "as held that there "as no authorit+ under
3indu la" for the proposition that an apostate is a0solved from all civil
o0ligations and that so far as the matrimonial 0ond "as concerned, such
vie" "as contrar+ to the spirit of the 3indu la".
The Madras 3igh Court follo"ed Ram Kumari in )udansa *s. +atima
,

-andi .aina& *s. /#e "ro%n
0

!t "as held that the mere fact of her conversion to !slam did not dissolve the
marriage "hich could onl+ 0e dissolved 0+ a decree of court.

Ro&asa K#anum *s. K#odadad )oman1i Irani
2
!t "as o0served that 9Bindeed 0e a startling proposition to la+ do"n that
although t"o persons ma+ "ant to continue to live in a married state and
disagree as to the religion the+ should profess, their marriage must 0e
automaticall+ dissolved.C
The =udges also pointed out that 9s. of the 6issolution of Muslim Marriages
#ct @8!!! of '-$-A provides that the renunciation of !slam 0+ a married Muslim
* 11!1 Ca$#utta 2-.
. 1!1- IC .!7
7 ILR 1!2 La"ore --
1 1!-. /om'a0 Law Reporter 1.-
"oman or her conversion to a faith other than !slam shall not 0+ itself
operate to dissolve her marriage. This is a ver+ clear and emphatic
indication that the !ndian legislature has departed fromD the rigor of the
ancient Muslim la" and has ta,en the more modern vie" that there is
nothing to prevent a happ+ marriage not"ithstanding the fact that the t"o
parties to it professed different religions.C
=urther, " 'hariat #ct +#ct >>0I of 19.?, provides that the rule of decision in
the various cases enumerated in s.@ which includes marriage and
dissolution of marriage shall be the (uslim personal law onl$ where the
parties are (uslims- it does not provide that the (uslim personal law shall
appl$ when onl$ one of the parties is a (uslim.&
COMMENTARY
The Sarla Mudgal Case has 0een considered to 0e a landmar, precedent
not in the matter of &ersonal La"s, 0ut also Constitutional and Criminal
La"s. !t in a "a+ secured the position of "omen, "hose hus0ands in the
gar0 of religious freedom, shunned matrimonial responsi0ilit+.

!n a separate =udgment given in the 'arla (udgal case Justice R.M. Sahai
indeed spo,e the truth "hen he said that 9much misapprehension prevails
a0out 0igam+ in !slamC. 5rossl+ caricatured no", the 7urEanic concept of
0igam+ envisaged t"o "omen happil+ married to the same man and getting
from him e;uall+ all that a la"full+ "edded "ife could rightfull+ e<pect from
the hus0and. :here this "as not possi0le, the 7urEan en=oined monogam+.
:hile the 7urEanic norms must 0e strictl+ o0served also 0+ 0orn Muslims,
the popular 0elief that the 7urEan ena0les a non*Muslim hus0and "ho has
,ic,ed out his "ife "ithout a legal divorce to marr+ again 0+ announcing a
sham conversion to !slam is a0solutel+ false.
6erecogni1ing 0igamous marriages of non*Muslim hus0ands contracted in
such a fraudulent manner indeed enforces 7urEanic =ustice. Fn this point the
'arla (udgal ruling of the Supreme Court is unassaila0le
-
.

The 'arla (udgal ruling "as loo,ed "ith disfavour in certain circles on the
ground that it infringed a personEs fundamental right to freedom of
conscience and profession of religion guaranteed 0+ #rticle %> of the
Constitution. The matter "as 0rought 0efore the Supreme Court "hich
dismissed the idea
'4
.

This =udgment also tal,ed at length a0out the necessit+ of an Gniform Civil
Code to 0e implemented in !ndia. !t directed the 5overnment of !ndia to file
an affidavit indicating the steps ta,en and efforts made, to"ards securing a
(uniform civil code( for its citi1ens.

9a unified code is imperative both for protection of the oppressed and
promotion of national unit$ and solidarit$!

:hile addressing this issue, it too the help of certain other landmar,
! !Preventing Bigamy via Conversion to Islam A Proposal for giving Statutory Effect to Supreme Court Rulings- Law Commission
of India, Report No. 227, Government of India. August 2!.
1 "ily #homas v $nion of In%ia %2& . )CC 227
=udgments li,e 'hah 5ano
11
and <ordan 2iengdeh
1@
"here the ;uestion of a
Gniform Civil Code arose.
Written b$ Sneha 3e5a
Re+ie#ed and edited b$ Anna 3u&'ni and Natasha Lati,,
11 AIR 1985 SC 945
12 AIR 1985 SC 935