TMI Blog2000 (5) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... ny marriage entered into by him after conversion would be void. - WRIT PETITION (CIVIL) NO. 798 OF 1995 with (W.P.(C) No. 1079/89, RP(C) No. 1310/95, WP(C) 509/92, WP(C) No.347/90, WP(C) No. 424/92, WP(C) No. 503/95, WP(C) No.509/92, WP(C) No. 588/95, WP(C) No.835/95) - - - Dated:- 5-5-2000 - R.P. Sethi and S.S. Ahmad, JJ. ORDER S. Saghir Ahmad, J. I respectfully agree with the views expressed by my esteemed Brother, Sethi, J., in the erudite judgment prepared by him, by which the Writ Petitions and the Review Petition are being disposed of finally. I, however, wish to add a few words of my own. Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition [W.P.(C) No. 509 of 1992] 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. The following paragraphs of the Writ Petition, which are relevant for this case, are quoted below. 15. That around the 1st of April, 1992, the Respondent No. 3 told the petitioner that she should in her own interest agree to her divorce by mutual consent as he had any way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the properties etc. and continue their service and all other business in their old name and religion. 22. That a Woman's Organisation "Kalyani" terribly perturbed over this growing menace and increase in number of desertions of the lawfully married wives under the Hindu Law and splitting up and ruining of the families even where there are children and when no grounds of obtaining a divorce successfully on any of the grounds enumerated in Section 13 of the Hindu Marriage Act is available to resort to conversion as a method to get rid of such lawful marriages, has filed a petition in this Hon'ble Court being Civil Writ Petition No. 1079 of 1989 in which this Hon'ble Court has been pleased to admit the same. True copy of the order dated 23.4.90 and the order admitting the petition is annexed to the present petition and marked as Annexure-III (Collectively) 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 suitabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-husband says that he would file a counter affidavit within four weeks. He assures that his client would not enter into a marriage in hurry before the counter-affidavit is filed. On 30th November, 1992, this Writ Petition was directed to be tagged with Writ Petition (C) No. 1079/89 (Smt. SarlaMudgal, President, "Kalyani" and Ors. v. Union of India and Ors. and W.P. (Civil) No. 347/90 Sunita @ Fatima v. Union of India and Ors.. It may be stated that on 23rd April,1990 when the Writ Petition (C) No. 10797 89 and Writ Petition (C) No. 347/90 were taken up together, the Court had passed the following order: Issue Notice to respondent No. 3 returnable within twelve weeks in both the Writ Petitions. Learned Counsel for the petitioners in the Writ Petitions, after taking instructions, states that the prayers in both the writ petitions are limited to a single relief, namely, a declaration 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 any earlier marriage or to enter into a second marriage any marriage entered into by him after conversion would be void. Thus, in view of the pleadings in Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is described as "Vanita Ghosh" and her religion is also described as "Hindu". In 1994, Smt. Sushmita Ghosh obtained the copies of the relevant entries in the electoral list of polling station No. 71 of Assembly Constituency-44 (Shahdara), in which the name of Shri G.C. Ghosh appeared at S.No. 182 while the names of his father and mother appeared and S. Nos. 183 and 184 respectively and the name of his wife at S.No. 185. This entry is as under: S. No. House Name Father's/ M/F Age in the No Husband's list 185 C-41 Vanita Gyan Chand Ghosh Ghosh F 30 In 1995, Shri G.C. Ghosh had also applied for Bangladesh visa. A photostat copy of that application has also been filed in this Court. It indicates that in the year 1995 Shri G.C. Ghosh described himself as "Gyan Chand Ghosh" and the religion which he professed to follow was described as "Hindu". The marriage of Shri G.C. Ghosh with Vanita Gupta had taken place on 3.9.1992. The certificate issued by Mufti Mohd. Tayyeb Qasmi described the husband as "Mohd. Carim Gazi", S/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite of his having become "Mohd. Carim Gaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriage was subsisting on the date of marriage, would be void ab initio. The voidness of the marriage is further indicated in Section 17 of the Act in which the punishment for bigamy is also provided. This Section lays down as under: 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 shall apply accordingly. The first part of this Section declares that a marriage between two Hindus which is solemnized after the commencement of this Act, would be void if on the date of such marriage either party had a husband or wife living. In his already been pointed out above that one of the essential requisites for a valid Hindu marriage, as set out in Section 5(i), is that either party should not have a spouse living on the date of marriage. Section 11 which has been quoted above indicates that such a marriage will be void. This is repeated in Section 17. The latter part of this Section makes Sections 494 and 495 of the Indian Penal Code applicable to such marriages by reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odily lifted the provisions of Section 494 and 495 IPC and placed it in Section 17 of the Hindu Marriage Act. This is a well-known legislative device. The important words used in Section 494 are "MARRIAGE IN ANY CASE IN WHICH SUCH MARRIAGE IS VOID BY REASON OF ITS TAKING PLACE DURING THE LIFE-TIME OF SUCH HUSBAND OR WIFE". These words indicate that before an offence under Section 494 can be said to have been constituted, the second marriage should be shown to be void in a case where such a marriage would be void by reason of its taking place in the life-time of such husband or wife. The words "Husband or Wife" are also important in the sense that they indicate the personal law applicable to them which would continue to be applicable to them so long as the marriage subsists and they remain "Husband and Wife". Chapter XX of the Indian Penal Code deals with offences relating to marriage. Section 494 which deals with the offence of bigamy is a part of Chapter XX of the Code. Relevant portion of Section 198 of the CrPC which deals with the prosecution for offences against marriage provides as under: 198. Prosecution for offences against marriage - (1) No Court shall tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 494 on the ground that during the subsistence of the marriage, her husband had married a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who was married a second wife, has committed the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC. Since taking of cognizance of the offence under Section 494 is limited to the complaints made by the persons specified in Section 198 of the CrPC, it is obvious that the person making the complaint would have to be decided in terms of the personal law applicable to the complainant and the respondent (accused) as mere conversion does not dissolve the marriage automatically and they continue to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Now, conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act. It only provides a ground for divorce under Section 18. The relevant portion of Section 13 provides as under: Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (i) ... (ii) has ceased to be a Hindu by conversion to another religion; or (iii) ... (iv) ... (v) ... (vi)... (vii)... (viii) ... (ix)... Under Section 10 which provides for judicial separation, conversion to another religion is now a ground for a decree for judicial separation after the Act was amended by Marriage Laws (Amendment) Act, 1976. The first marriage, therefore, is not affected and it continues to subsist. If the 'marital' status is not affected on account of the marriage still subsisting, his second marriage qua the existing marriage would be void and in spite of conversion he would be liable to be prosecuted for the offence of bigamy under Section 494. Change of religion does not dissolve the marriage p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage with another person. Such person having sexual relation with a Hindu wife converted to Islam, would be guilty of adultery under Section 497 IPC as the woman before her conversion was already married and her husband was alive. From the above, it would be seen that mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other religion, would be liable to be prosecuted for the . offence of bigamy. It also follows that if the first marriage was solemnized under the Hindu Marriage Act, the 'husband' or the 'wife', by mere conversion to another religion, cannot bring to an end the marital ties already established on account of a valid marriage having been performed between them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y only of the Judges in Sarla Mudgal's case. In fact, Sarla Mudgal's case was considered by this Court in Ahmedabad Women Action Group and Ors. v. Union of India and it was held that the question regarding the desirability of enacting a Uniform Civil Code did not directly arise in Sarla Mudgal's case. I have already reproduced the order of this Court passed in Sarla Mudgal's case on 23.4.1990 in which it was clearly set out that the learned Counsel appearing in that case had, after taking instructions, stated that the prayers were limited to a single relief, namely, a declaration 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 any earlier marriage or to enter into a second marriage, any marriage entered into by him after conversion would be void. In another decision, namely, Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr. , this Court had indicated that enactment of a uniform law, though desirable, may be counter-productive. It may also the pointed out that in the counter affidavit filed on 30th August, 1996 and in the supplementary affidavit filed on 5th December, 1996 on behalf of Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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