This post has been written by Aditi Singh, a first year law student from Hidayatullah National Law University, Raipur.
Title of Case:Lily Thomas, Etc. Etc. vs Union Of India & Ors.
Citation : AIR 2000 SC 1650
Court : Supreme Court of India
Bench : Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Date Decided: 10.07.2013
Appellant: Lily Thomas
Respondent : Union of India (UOI) and Ors.
Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition in this 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, Shri G.C. Ghosh told the petitioner 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. Shri G.C. Ghosh also showed a Certificate issued by office of the Maulana Qari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that he 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 Shri G.C. Ghosh 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 was stated in the petition that Shri G. C. Ghosh 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.
She ultimately prayed for the following reliefs:
(a) by an appropriate writ, order or direction, declare polygamy marriages by Hindus and non-Hindus after conversion to Islam religion are illegal and void;
(b) Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable amendments in the Hindu Marriage Act so as to curtail and forbid the practice of polygamy;
(c) Issue appropriate direction to declare that where a non Muslim male gets converted to the “Muslim” faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void;
(d) Issue appropriate direction to Shri G.C. Ghosh restraining him from entering into any marriage with Miss” Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner; and
(e) pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
- Whether there should be Uniform Civil Code for all citizens of India?
- Whether a Hindu husband can solemnise second marriage by converting to Islam?
- Whether the husband would be liable for bigamy under section 494 of IPC?
Arguments Advanced from the side of Petitioner
- Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the act of religious conversion to muslim to commit the act of bigamy as Muslim personal law allows it is an attempt where the women freedom of facing such bigamous marriage and such betrayal is violative of Art.21(right to life and liberty).
- Lily Thomas pleaded before the court to male polygamy in Muslim Law to be unconstitutional.
- It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-legal issues that were due to various religious personal law.
- Many Muslim women have filed petitions before the SC and HC to declare Polygamy in Muslim law to be unconstitutional.
- To reframe Muslim personal law with the change in time and disallow the practice of Polygamy as it is disrespectful to the integrity and liberty of women who have to face such situations.
- To have Uniform Civil Code so that no personal religious law make fundamental right violation.
Arguments advanced from the side of Respondent
- The respondents in all the above petitions assert a common contention that having embraced Islam, they can have four wives irrespective of the fact that the first wife continues to be Hindu. Thus, they are not subject to the applicability of Hindu Marriage Act, 1955, the Section 11 of which makes bigamous marriage void and also to the section 17 of which made them guilty for bigamy under section 494 of Indian Penal Code (IPC).
Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to contract second marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the said Act which deals with the offence of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860. If a Hindu wife files complaint against her husband who during existence of first marriage do second marriage after conversion to another religion then the offence of Bigamy shall be dealt with Hindu Marriage Act, 1959.
The apex Court has said that violation of Article 21 is misconceived, article 21 of the Constitution states that “no person shall be deprived of his right and personal liberty except as per procedure established by law” and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494 there is no violation of Art. 21.
R.P.Sethi Ji said if a Hindu husband after converting to Islam contracts the second marriage without dissolving the first marriage then the second marriage would be invalid under Section 494 & 495 of IPC and the husband will be punished according to that.
Such a judgment was important since men were taking recourse to such conversion for marrying and having more than one wife. Bigamy is the offence of marrying another while the first marriage still persists and such bigamous relations are illegal and the second marriage is void ab initio. For a long period, married men whose personal law did not allow bigamy have been recurring to the unhealthy and immoral practice of converting to Islam for the interest of condensing a second bigamous marriage underthe assumption that such conversion would help them to marry again without getting their first marriage dissolved The interpretation given to Section 494 IPC was an effort to 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. Until Uniform Civil Code is enacted for all the citizens of the country, there will be always a loophole in the system because different faiths have different beliefs, and naturally due to different beliefs and practices of communities, there will be a conflict.
- Indian Penal Code, 1860 – Section 494 – According to section 494 of Indian penal code, 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. It’s a non-cognizable bailable offence.
- Hindu Marriage Act, 1955 – Section 11 – Void marriages. Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 11 [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
- Hindu Marriage Act, 1955 – Section 17- Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
- Lily Thomas and Ors. vs. Union of India (UOI) and Ors. (05.04.2000 – SC) : MANU/SC/0327/2000
-  https://indiankanoon.org/doc/635068/