LexSMT. SARLA MUDGAL, PRESIDENT, KALYANI AND ORS. versus UNION OF INDIA AND ORS.
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A
SMT. SARLA MUDGAL, PRESIDENT, KALYANI AND ORS.
B
c
v.
UNION OF INDIA AND ORS.
MAY 10, 1995
(KULDIP SINGH AND R.M. SAHA!, JJ.]
Hindu Marriage Act, S.11-Hindu husband embracing Islam and
solemnising second maniage without dissolution of the firsHfeld, second
maniage is invalid.
Indian Penal Code 1860, S.494-Hindu husband embracing Islam and
solemnising second maniage without dissolution of the first-Held, second
maniage void; husband would be guilty of bigamy.
Interpretation of Statutes-Indian Penal Code 1860, S.494-Hindu hus-
D band converting to Islam and contracting second maniage--Courts to adopt
a construction of law that would advance interests of justice and harmony
between conimunities.
E
Constitution of india, Article 44-Govemment requested to indicate
steps taken for securing a unifonn civil code.
The writ petitioners were Hindu wives whose husbands had, even
while the first marriage subsisted, converted to Islam and contracted a
second marriage. One petitioner was the second wife who along with the
husband converted to Islam before the second marriage and whose hus-
band had thereafter reverted to being a Hindu and failed to maintain her.
F The questions for consideration were whether a Hindu husband, married
under Hindu law, could by embracing Islam soleminse a second marriage;
whether such a marriage without having the first marriage dissolved under
law, was a valid marriage qua the first wife who continued to be Hindu;
whether the apostate husband would be guilty of the offence under s.494
G of the Indian Penal Code (IPC).
Disposing of the writ petitions, this Court
HELD : 1.1. The second marriage of a Hindu husband after conver-
sion to Islam, without having his first marriage dissolved under law, would
H be invalid. [267-H]
250
SARLAMUDGALv. U.0.l.
251
1.2. A marriage solemnised under a particular statute and according A
to personal law could not be dissolved according to another personal law,
simply because one of the parties had changes his or her religion, (P.7).
Prior to 1955, a Hindu marriage continued to subsist even after one of the
spouses converted to Islam. The position has not changed after the Hindu
Marriage Act, 1955 ('Act'). [256-C, 260-F]
In Re Ram Kuma1i 1891 Calcutta 246; Budansa v. Fatima, [1914] IC
697; Gut Mohammed v. Emperor, AIR (1947) Nagpur 121; Na11di@Zai11ab
B
v. The Crown, ILR (1920) Lahore 440; Emperor v. Mt. Ruri, AIR (1919)
Lahore 389; Sayeda [email protected]. Obadiah v. M. Obadiah, 49 CWN 745;
Robasa Kha11um v. Khodadad Boma11ji Ira11i, (1946) Bombay Law Reporter C
864 and Anda! Vaidyanathan v. Abdul Allam Vaidya, (1946) Madras,
referred to .
. '1.3. The second marriage of an apostate husband would be an illegal
marriage qua his wife who married him under the Act and continues to be a
Hindu. Between the apostate and his Hindu wife the second marriage is in
violation of the provisions of the Act and as such wonld be nones!. [261-H]
2.1. The second marriage by a convert would be in violation of the
D
Act and as such void in terms of S.494 IPC. The expression "void" under
s.494 IPC has been used in the wider sense. A marriage which is in E
violation of any provisions of Jaw would be void in terms of the expression
used under Section 494, IPC. [262-G-F]
2.2. The interpretation given to Sec. 494 IPC would advance the
interests 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 F
communities. Since it is not the object of Islam that 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
persnaded to adopt a construction of the laws resulting in denying the
Hindu husband converted to Islam the right to marry again without having G
his existing marriage dissolved in accordance with law. [263-F-GJ
Attomey General Ceylon v. Reid, (1965) All. E.R 812, distinguished.
2.3. The second marriage of a Hindu husband after embracing Islam
being violative of justice, equity and good conscience would be void on that H
252
SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.
A ground also and attract the provisions of S.494 IPC. (263-C]
Robasa Khanum v. Khodadad Bomanji Irani, (1946) Bombay Law
Report 864, followed.
2.4. The second marriage after conversion to Islam would be in
B violation of the rules of natural justice and as such would be void. [264-Excerpt shown. Read the full judgment & AI analysis in Lexace.