SC Judgement on 2nd Marriage and Conversion

PETITIONER:SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS.
Vs.
RESPONDENT:UNION OF INDIA & ORS.
(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92)

DATE OF JUDGMENT10/05/1995

BENCH:Justice Kuldip Singh,Justice R.M. Sahai

CITATION: 1995 AIR 1531 1995 SCC (3) 635 JT 1995 (4) 331 1995 SCALE (3)286

JUDGMENT:THE 10TH DAY OF MAY, 1995

Present:

Mr. D.N. Diwedi, Additional Solicitor General,
Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr.
Advs.,
Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava,
Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,)
Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.

J U D G M E N T S/O R D E R
The following Judgments/Order of the Court were delivered:

“The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law – a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments -which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956,the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.
The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu?
Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?

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These are four petitions under Article 32 of the Constitution of India. There are two petitioners in Writ Petition 1079/89. Petitioner 1 is the President of “KALYANI” – a registered society – which is an organisation working for the welfare of needy-families and women in distress.
Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter)were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion. According to the petitioner,conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
Rather interestingly Sunita alias Fathima is the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.
Geeta Rani, petitioner in Writ Petition 424 of 1992 was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991,the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

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Sushmita Ghosh is another unfortunate lady who is petitioner in Civil Writ Petition 509 of 1992. She was married to G.C. Ghosh according to Hindu rites on May 10,1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition,the petitioner has further prayed that her husband be restrained from entering into second marriage with Vinita Gupta.

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