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
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
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.
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
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
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
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
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
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
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
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)."
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
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
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
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.
