This article is written by Shivani Panda, from Amity Law School, Delhi. Here she discusses the laws prohibiting Bigamy in India in relation to the Sarla Mudgal case.
Marriage can be understood as a culturally and legally recognised union, generally between two people. Black’s Law Dictionary defines it as, “the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex” Thus, monogamy is a conventional rule which is recognised by the legal systems all over the world. A contravention of this general rule, that is, bigamy or polygamy, is also punishable by law. In this article, the author analyses the laws against bigamy in India and landmark judgements of the same.
Bigamy and Indian law
Polygamy or bigamy in India was not perse prohibited in ancient times, but it was also not a practice among the common populace. It was widely practised among the Hindu aristocrats and kings. Monogamy has always been imposed on Hindu females. Manusmriti, which is one of the sources of Hindu jurisprudence, states that when a wife is barren, diseased, or vicious, she could be superseded, and the second marriage would be valid. However, if a Hindu man solemnizes a second marriage when the first wife is not barren or diseased, she and her son would always have primacy over the other wife and her son. In the British era, the Privy Council held that a Hindu male cannot marry again without the consent of the first wife. After independence, the personal law was codified and a blanket ban was imposed on bigamy regardless of the religion, except for the Muslims. Further, the Parsi Marriage and Divorce Act, 1936, which governs the Parsis in India, made bigamy punishable.
Hindu Marriage Act, 1955
Under the Hindu Marriage Act, 1955, there are a few conditions given under Section 5, fulfilling which a marriage can be legally solemnized. Section 5(i) of the Act stipulates that marriage between two Hindus can be contracted only when “neither party has a spouse living at the time of the marriage.” Here, ‘Hindu’ includes any person who is a Buddhist, Jain and Sikh. Further, Section 11 declares all marriage which is solemnized after the enactment of this act, that is in contravention of Section 5(i), it is void. Lastly, Section 17 provides for the punishment for bigamy in accordance with Section 494 and 495 of the Indian Penal Code (hereinafter IPC), which is discussed in detail below. Further, for a wife to file a case under Section 11, she needs to be a part of the marriage.
In the case of Ajay Chandrakar v. Ushabai, when a husband entered into a second marriage while the first marriage was subsisting, the petition to declare the second marriage null and void by the first wife was rejected and the court held that the remedy under Section 11 is available to the second wife, who is a party to the subsequent marriage.
Indian Penal Code, 1860
Bigamy is criminalised under Section 494 of IPC, which is based upon the English law of bigamy. This section makes it an offence for both males and females, regardless of their religion, except male Muslims. Under the Muhammadan Law, male Muslims are permitted polygamy and they can have up to four wives. Thus, this section applies to a Muslim man marrying a fifth wife during the subsistence of four earlier marriages. Further, all four marriages have to be conducted under Muslim law. If a marriage takes place under the Special Marriage Act, 1954, a subsequent wedding will be held invalid, and the man will be guilty of bigamy.
The section states that, if a valid marriage subsists between a man and a woman, and either of them contracts another valid marriage while they are living, such marriage will be void. They will also be punished with imprisonment of either description which may extend to seven years, and will also be liable to fine. However, this section also states some exceptions to the general rule against bigamy. They are as following:
- When the husband or wife has been absent for seven years or more, or they have not been heard of being alive by the other party within that period. Further, the party marrying shall also inform the absence of their former spouse to the person they are marrying.
- When a court of competent jurisdiction has either declared the first marriage as void or has granted a valid divorce to the first marriage.
To attract this Section, both the first and second marriage must be valid, that is, necessary ceremonies should take place according to a religion’s personal law. If the marriage is not a valid marriage, it is no marriage in the eye of law. The offence is non-cognizable, bailable, compoundable and triable by the magistrate of the first class.
Further, Section 495 of IPC covers the aggravated form of bigamy. It states that, if a person solemnizes a second marriage and conceals the fact about his or her first marriage from the person with whom subsequent marriage is contracted, the punishment may extend up to imprisonment of either description of 10 years and shall also be liable for fine. The offence is non-cognizable, bailable, non-compoundable and triable by a magistrate of the second class.
Sarla Mudgal v. Union of India
Our Constitution gives the freedom to practice and professes any religion, which also includes the freedom to convert to any other religion which was not assigned to a person by birth. However, with diverse religions and personal laws, this provision is sometimes misused. Bigamy is punishable for all religion under IPC, except those tribes or communities whose personal law permits polygamy, such as, the Muslim law. In order to practice bigamy, all a person has to do is relinquish his religion and adopt Islam. The instances of men doing this are not uncommon. Under the Parsi Marriage and Divorce Act and Special Marriage Act, the second marriage of any party is void if the first marriage is already subsisting under this act. In other words, the second marriage after the conversion to any other religion allowing bigamy is not valid. However, the Hindu Marriage Act, 1955 has not specified the status of a person marrying after conversion. It declares subsequent marriage between two Hindus is void if their partner is living and they have not divorced at that time. This issue was scrutinized by the Supreme Court at length in the landmark case of Sarla Mudgal & Ors. v. Union of India and it settled the ambiguity surrounding the rights, duties and obligations of people who change religion to defeat the law. The court held that a change of religion does not permit a person to defeat the provisions of law and to commit bigamy. The detailed analysis of the case is given below.
Facts of the case
- There were four petitions filed in the Supreme Court under Article 32 of the Indian Constitution that were heard together. Firstly, in Writ Petition 1079/89 where there were two petitioners. Petitioner 1 was Sarla Mudgal, the president of a registered society called Kalyani, which was a not for profit organisation, working for the welfare of needy families and distressed women. Petitioner 2 was Meena Matur, who was married to Jitender Mathur since 1978 and had three children born out of wedlock. Petitioner 2 found out that her husband had married another woman, Sunita Narula alias Fathima, after they both converted themselves to Islam. She contends that the conversion of her husband to Islam was only to marry Sunita, thereby avoiding Section 494, IPC. The respondent asserts that after converting to Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
- Another petition was filed by Sunita Narula alias Fathima, registered as Writ Petition 347/1990, where she contended that she and the respondent converted to Islam to marry, and a child was born out of wedlock. However, under the influence of Meena Mathur, the respondent gave an undertaking in 1988, that he will convert back to Hinduism and maintain his first wife and three children. As she continues being Muslim, she was not being maintained by her husband and had no protection under either of the personal laws.
- Thirdly, a petition registered as Writ Petition 424/1992 was filed in the apex court. The petitioner, Geeta Rani was married to Pradeep Kumar in 1988 according to the Hindu rites. In December 1991, the Petitioner learned that her husband converted to Islam and married another woman, Deepa. The Petitioner asserts that the sole purpose of conversion to Islam was to facilitate the second marriage.
- Lastly, Sushmita Ghosh who was the petitioner in the Civil Writ Petition 509/1992, married to G.C. Ghosh according to Hindu Rites in 1984. In 1992, her husband/respondent asked her to agree to divorce by mutual consent as he did not want to live with her anymore. The petitioner was shocked, and when she questioned him more, he revealed that he had converted to Islam and would marry Vinita Gupta. In the writ petition, she prayed that her husband must be restrained from entering into a second marriage.
- Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise a second marriage?
- Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continues to be Hindu?
- Whether the apostate husband would be guilty of the offence under Section 494 of the IPC?
Arguments advanced from both the sides
All the petitioners collectively argued that the respondents converted themselves to Islam to circumvent the provisions of bigamy given under Section 494 IPC and facilitate their second marriage with other women.
The respondents in all the petitions assert a common contention that once they convert to Islam, they can have four wives despite having a first wife who continues to be a Hindu. Thus, they are not subject to the applicability of the Hindu Marriage Act, 1955 and IPC.
The court discussed all the issues in question in detail and laid down the following:
- When a marriage takes place under Hindu Marriage Act, 1955 certain rights and status are acquired by both the parties, and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the spouse who continues to be Hindu. A marriage performed under the act cannot be dissolved except on the grounds given under Section 13 of the same act. Until this is done neither can marry again. 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. It further held that such marriage is violative of justice, equity, and good conscience. It also emphasized the need for harmonious working of the two systems of law, in the same manner as to bring harmony between two communities.
- Secondly, the court further held that the apostate husband would be guilty under Section 494 of IPC. The expression ‘void’ used in the Hindu Marriage Act, 1955 and the Indian Penal Code have different purposes. Conversion to Islam and marrying again would not, by itself, dissolve the previous Hindu marriage under the Act, but it will be a ground for divorce. However, it can be inferred from the ingredients of Section 494 explained in detail in the above section that the second marriage would be void and the apostate husband would be guilty under IPC.
- Lastly, the court advocated the necessity of the Uniform Civil Code (hereinafter UCC) in the Indian legal system, that will stop Indians from trespassing the personal law of one another. The court further directed the Government of India through the Secretary of Ministry of Law and Justice, to file an affidavit regarding the steps taken by the Government of India towards securing a UCC for the citizens of India.
There was no dissenting opinion regarding ratio decidendi of the case that is the second marriage after converting to Islam is void and punishable under IPC, and it does not dissolve the first marriage solemnized under Hindu Marriage Act, 1955. However, the obiter dicta of the case, in which the apex court advises the implementation of UCC in the Indian legal system to avoid conflict, was dissented by Hon’ble Justice R.M. Sahai. He argues that:
- The implementation of UCC would lead to more bad than good. It will cause dissatisfaction and disintegration among different religions. The Constitution of India upholds the freedom to profess any religion, and forcing UCC upon the citizens would be arbitrary and unconstitutional.
- Further, uniform personal law can only be laid down when there is harmony between the people of all religions, and when their religion does not feel threatened.
- He also recommended the government to establish a committee to enact ‘Conversion of Religion Act’ to check the abuse of religion by any religion. The act will be binding on all the citizens irrespective of their religion and will prohibit the conversion of religion to marry. Provisions for maintenance and succession will also be provided to avoid a clash of interest between the heirs.
Developments after the case
Lily Thomas v. Union of India
The judgement of Sarla Mudgal was reviewed by the Supreme Court in the case of Lily Thomas v. Union of India in 2000, on the ground that the judgement in the impugned case violates the fundamental right to life and liberty and freedom to practice any religion enshrined under Articles 20, 21, 25 and 26 of the Indian Constitution.
The court held that the contention of the petitioner that the judgment of Sarla Mudgal amounts to the violation of freedom of conscience and free profession, practice and propagation of religion as guaranteed under Article 25 and 26 of the Constitution, is far fetched and is alleged by those who hide behind the cloak of religion to escape the law.
The court further stipulated that the freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon similar freedom of the other persons. The petition also claimed that making converts liable for committing polygamy would be against Islam. The apex court observed the ignorance of the petitioners and rightly said that even under Islamic law, purity of marriage is upheld by Prophet Mohammad.
The interpretation of Islamic law in the modern sense would never allow such acts in its religion. Islam is a progressive, pious and respected religion that cannot be given a narrow concept as has been allegedly done by the petitioners.
Law Commission on Voluntary Legal Declaration of Conversion
The 235th report of the Law Commission of India in 2010 recommended a voluntary legal procedure to declare the conversion of the religion of a person. The procedure can help avoid controversies regarding the legal status of a person upon conversion. The procedure as laid down by the commission is discussed in brief below:
- If the convert chooses, he or she can send a declaration of conversion within a month, to the officer responsible for marriage registration. The declaration will be displayed on the notice board of office till the date of confirmation.
- The declaration shall mention the religion to which the convert originally belonged to and the religion to which he or she converted. It shall be mandatory to mention the date, place of conversion, along with the marital status of the person.
- The convert shall verify the declaration within 21 days in the registering office, and the officer shall record the same along with confirmation and objection, if any, with the details of the objector. The copies of the declaration, confirmation, objection and extracts from the register shall be forwarded to the convert.
The author respectfully implores that the procedure given by the Law Commission will not be effective, if established, for the following reasons:
- It is a voluntary process that will be avoided by most of the converts. A compulsory declaration of conversions should be observed, like the mandatory registration of marriage.
- The procedure laid down by the commission is obsolete. For the process to be worthwhile, an online declaration procedure can be thought of, as the offline display of the declaration in the office’s notice board is not practical. This process can be helpful both for the convert and the objections if any.
- The offline process laid down by the commission should be adopted as an alternative for those who want to register it offline.
Uniform Civil Code
The history of UCC can be traced back to the 1950s, when the first Prime Minister of newly independent India, Jawaharlal Nehru, wanted such a code to be enacted under the Hindu Code Bill. The bill had received various criticisms for upholding monogamy, divorce and inheritance to daughters in a Hindu Joint Family business. Since the act only applied to Hindus, other religions and tribes were left to be governed under their laws.
Further, it was established as Directive Principles of State Policy under Article 44 of the Constitution to secure for citizens a UCC throughout the territory of India. However, the discussions and debates regarding UCC ceased, until the case of Shah Bano came into limelight in 1985. A futile attempt was made in the direction of UCC by the judiciary in the case, which the Government of India ignored and went on passing the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The next discussion of UCC was in the Sarla Mudgal case, which has been discussed above. In the 21st century, there have been frequent discussions on the implementation of UCC by the judiciary, which till now has proved to be redundant. In the recent landmark judgment of Shayara Bano v. Union of India, which invalidated the practice of Talaq-ul-Biddat or triple talaq, the subject-matter of UCC, was also discussed at length. However, no step towards the implementation of the same has been taken by the Parliament, either due to protests against it by the religious communities or due to the fear of political backlash.
The Indian legal system recognizes bigamy only when there is a valid marriage between a male and a female. Even though live-in relationships recently were given legal recognition, a person cohabitating with another person while their first marriage is still subsisting is yet to be acknowledged as bigamy in India. The inclusion of UCC in the system is a step towards secularism, and the legislature shall take steps to enact it in the Indian legal structure. Prof. H.L.A. Hart propounded the theory of modern Analytical Legal Positivism, where he differentiated a static and non-static society. In both the societies, the rule of change shall be applied along with the primary principles, for the civilization to move forward. If the author may interpret it in a modern sense, it is fundamental for the law to keep up with the change in society. Thus, reforming the law of bigamy and personal laws in India is pertinent to suit the need of modern Indian society.
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