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Convert and remarry?

By Rakesh Shukla

If a non-Muslim converts to Islam without any real change in belief, merely to avoid an earlier marriage and enter into a second one, should the second marriage be considered void and the person prosecuted for bigamy?

Sushmita Ghosh married G C Ghosh in May 1984, in accordance with Hindu rites, and they were living together. In May 1992, Ghosh advised his wife to agree to a divorce by mutual consent in her own interest, as he had converted to Islam in order to remarry. He had already fixed up his marriage to someone called Vanita Gupta. Ghosh showed her a certificate issued by the office of Maulana Qari Mohammed Idris, Shahi Qazi, dated June 1992, certifying that he had embraced Islam.

All efforts to get Ghosh to change his mind failed; he said that if Sushmita did not agree to a divorce she would have to put up with a second wife.

Sushmita Ghosh petitioned the courts saying that her husband G C Ghosh alias Mohammed Karim Ghazi had converted to Islam solely for the purpose for remarriage, and that he had no real faith in Islam. He neither practised the prescribed Muslim rites nor changed his name or religion on other official documents, she claimed. Ghosh asserted her fundamental right not to be discriminated against on grounds of sex or religion.

The petition also submitted that in the past several years it had become common for Hindu males who could not get a divorce from their wives to convert to Islam solely for the purpose of remarriage. And that, after the second marriage, they re-converted to Hinduism in order to retain their rights over property. They then went about their business in their old name and religion.

Ghosh asked the courts to declare polygamous marriages by Hindus and non-Hindus after conversion to Islam, illegal. And to make suitable amendments to the Hindu Marriage Act to curtail and forbid the practice of polygamy. If a non-Muslim male converted to the Muslim faith without any change of belief, merely to avoid an earlier marriage and enter into a second one, then any marriage entered into after the so-called conversion should be considered void. Ghosh also prayed for an order restraining G C Ghosh from marrying Vanita Gupta or any other woman during the time he was married to her.

Meena Mathur got married to Jitender Mathur in 1978 and had three children by him. In 1988, she learnt that her husband had married Sunita Narula, alias Fathima. The marriage had been solemnised after Jitender and Sunita converted to Islam. Meena contended that her husband’s conversion was done solely for the purpose of marrying Sunita, and to circumvent the provisions of Section 494 of the IPC (Indian Penal Code), which punishes bigamy.

Sunita, alias Fathima, filed a petition submitting that she and Jitender Mathur had embraced Islam, got married and had a son. After marrying her, Jitender, under the influence of Meena Mathur, reverted to Hinduism and agreed to maintain his first wife and their three children. Sunita (Fathima), who is still a Muslim, pleaded that she receives no maintenance from husband and has no protection under either of the two laws.

Geeta Rani was married to Pradeep Kumar according to Hindu rites, in 1988. Her husband mistreated and beat her. In 1991, he converted to Islam and married Deepa. Kalyani, a women’s organisation, filed a petition to check the growing number of desertions of wives married under Hindu law, and husbands resorting to conversion in order to rid themselves of their wives.

These petitions were heard together and a judgment delivered in 1995 in the Sarla Mudgal versus Union of India case.

A review of the 1995 judgment was sought and was heard along with a public interest petition by Lily Thomas. A judgment was delivered in 2000.

The central issue in all these petitions where a non-Muslim has converted to Islam without any real change in belief, merely to avoid an earlier marriage and enter into a second one, is whether the marriage after conversion should be considered void and the person liable for bigamy.

The court examined the provisions of the Hindu Marriage Act, 1955 (HMA) and Section 494 of the IPC that makes bigamy an offence. According to Section 5 of the Act, one of the conditions for marriage between two Hindus is that neither party should have a living spouse at the time of marriage. If either party does indeed have a spouse living at the time of marriage, that marriage can be declared null and void under Section 11 of the Act. Section 17 further declares that a marriage between two Hindus is void if either has a husband or wife living and that the provisions of Section 494 of the IPC punishing bigamy would be applicable. 

Section 494 of the IPC punishes bigamy and lays down that a person who marries whilst having a husband or wife living (and the marriage is void by reason of having taken place during the life of such husband or wife), is punishable with seven years’ imprisonment and a fine. Complaints of bigamy can only be made by the aggrieved person, ie, by the spouse. In the wife’s case, the complaint can be made by her father, mother or brother.

The court declared that if a Hindu wife complained that her husband had converted and remarried, the offence of bigamy would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. According to the Act, conversion of one of the spouses does not automatically dissolve a marriage solemnised under Hindu law. The persons continue to be ‘husband and wife’, despite the conversion of one of them. Conversion is only grounds for divorce or judicial separation.  

Therefore, unless a decree of divorce is obtained the ‘marital bond’ persists. A second marriage, even after conversion, would be void under Section 11 of the Hindu Marriage Act. The marriage would also be void under Section 17 of the Act, which makes bigamy punishable by making Section 494 of the IPC applicable. The court declared that as long as the first marriage subsists, according to the Hindu Marriage Act, a second marriage is not permissible even under another personal law. Even after conversion to Islam, if a second marriage is performed during the subsistence of the first one, the person is held liable for prosecution for bigamy under Section 494 of the IPC. Prosecution under Section 494 of the IPC with respect to a second marriage under Muslim law can be avoided only if the first marriage too was under Muslim law.

The argument that there should be no prosecution for bigamy of persons who had solemnised their second marriage before the passing of the judgment, as this would violate Article 20 (1) of the Constitution, was rejected. Article 20 (1) declares that a person cannot be convicted for an offence that was not a violation of law in force at the time of the commission of the act. The court declared that the judgment had not made second marriage by a person converted to Islam an offence, but had merely interpreted the existing law that was in force and so was not violative of Article 20 (1).
 
The contention that prosecuting a person contracting a second marriage after conversion was a violation of the right to freely profess and practise religion was also rejected. The court observed that freedom to practise religion guaranteed under Article 25 is a freedom that does not encroach upon the freedom and rights of another. The argument that making a Hindu who converts to Islam and solemnises a second marriage liable for bigamy is against Islam was also dismissed. The court observed that it would be doing an injustice to Islamic law to urge that a convert be entitled to practise bigamy notwithstanding the continuance of his marriage under the law to which he belonged prior to conversion.

The Jaat-e-Ulema Hind and the Muslim Personal Law Board argued that the interpretation given by the court would render the status of the second wife to that of a concubine, and children born out of that marriage as illegitimate. The court took the view that the issue before it was ascertaining the criminal liability of a person who undergoes a second marriage after conversion under Section 17 of the Hindi Marriage Act, read with Section 494 of the IPC. It observed that the legitimacy of the second wife and children was not an issue that had arisen in the case, and hence no ruling was necessary on the matter. The court also clarified that the judges had merely expressed their views in the 1995 Sarla Mudgal case, and that no directions had been issued for codification of a common civil code.

The judgment reported as Lily Thomas versus Union of India, 2000 (6) SCC 224 unequivocally declares that if the first marriage was under any personal law where there is a prohibition on contracting a second marriage during the lifetime of the spouse, as in Hindu or Christian law, then a second marriage performed under Muslim law would make the person liable for prosecution for bigamy.

(Rakesh Shukla is a Supreme Court lawyer)

InfoChange News & Features, February 2006