LexLILY THOMAS, ETC. ETC versus UNION OF INDIA AND ORS.
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LILY THOMAS, ETC. ETC. v. UNION OF INDIA AND ORS. MAYS, 2000 [S. SAGHIR AHMAD AND R.P. SETHI, JJ.] Constitution of India, I950: Article 20( 1) : Review of Sar/a Mudgal's case-Alleging violation of constitutional provisions-Held, not sustainable-The procedure established by law, as men- tioned in Article 21 of the Constitution m~ans the law prescribed by the Legislature-The judgment has neither changed the procedure nor created any law-It has only interpreted existing law and did not legislate. Judgment in Sar/a Mudgal's case-Operation of-Whether would be prospective-Held, no-Since the Court had not laid down any new law but · only interpreted the existing law which was in force-The interpretation of a provision of law relates back· to the date of the law itself and cannot be prospective from the date of the judgment because concededly the Court does not legislate but only give an interpretation to an existing law. Article 25-Right to freedom of conscience and free professing, practis- ing and propagation of religion-Judgment in Sar/a Mudgal's case-Held, does not amount to violation of Art. 25. Anicle 137, 32 & 136-Review Petition-Scope of-The power of review can be exercised for correction of a mistake and not to substitute a view-If an error is brought to the notice of the Courl which has the effect of resulting in miscarriage of justice, nothing would preclude the Courl from rectifying the error-Once a rnview petition is dismissed no further petition of review could be entertained-But Supreme Court in exercise of its powers under Article 136 or Article 32, and upon satisfaction that the earlier judgment have resulted in deprivation of fundamental rights of a citizen or rights crnated under any other statute, could take a differnnt view notwithstanding the earlier judgment-Civil Procedure Code, 1908-0rder47 Rule 1-Suprnme Court Rules, 1966-0rder 40 Rule 1. 1081 A B c D E F G H A B 1082 SUPREME COURT REPORTS [2000] 3 S.C.R. Article 44-Unifonn Civil Code-Plea that in Sarla Mudgal's case di- rections given for codification of common civil code was not within the power ·of the Court-Held, no such direction had been issued by this Court and the judges constituting the different Benches had only expressed their views in the facts and circumstances of those cases-Hence not enforceable in Courts as they do not create any justiciable rights in favour of any person. Indian Penal Code, 1860-Section 494-Prosecution under-In respect of second marriage under Mohammedan law-Held, can be avoided only if the first marriage was also under the Mahommedan Law and not if the first ). marriage was under any other personal law where there was a prohibition on C contracting a second marriage in the life-time of the spouse-The person seeking conviction of the accused for a commission of the offence is under a legal obligation to prove all the ingredients of the offence~Indian Evidence Act, 1872. D E F Family Law: Mohammedan Personal Law-Marriage-Plurality of-Held, is not per- mitted unconditionally. Hindu Marriage Act, 1955-Sections 11, 17, 13 & JO-Change of reli- gion does not dissolve the marriage perfonned under the Act between two Hindus-Apostasy does not bring to an end the civil obligations or the matri- monial bond, but apostasy is a ground for divorce, as also a ground for judicial separation-A second marriage during the life-time of the spouse, would be yoid, besides, an offence unless a decree for divorce on that ground is obtained from the court. Wonis and Phrases : 'Any other sufficient reason appearing in Order' -Meaning of-In the context Civil Procedure Code, 1908-0rder XLVII Rule 1. G Muslim/Islam-Meaning of H Petitioners filed writ petitions and review petition seeking to review, set aside, modify and quash the judgment in Sar/a Mudgal ( Smt.) President, Kalyani & Ors. v. Union of India & Ors., [1995] 3 .SCC 635, whereby this Court had held that second marriage of a Hindu husband after conversion to Islam without dissolving his first marriage would be void in terms of'the ).. LILY THOMAS v. U.0.1. 1083 provisions of Section 494 IPC, because the judgment in that case was A ( contrary to the fundamental rights enshrined in Articles 20, 21, 25 & 26 of ~ the Constitution. Notice was issued on the review petition limited to the question of Article 20(1). Respondent contended that the prayers in the review petition and B the writ petitions
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