Holding

A Hindu husband who converts to Islam cannot lawfully contract a second marriage without first obtaining a divorce under the Hindu Marriage Act; the second marriage is void and the husband is guilty of an offence under Section 494 IPC.

Summary

The petitioners, Hindu wives, challenged the validity of their husbands' second marriages after the husbands converted to Islam without dissolving the first Hindu marriage. The Court examined whether conversion to Islam permits a Hindu husband to contract a second marriage, whether such a marriage is valid under the Hindu Marriage Act, and whether the husband commits an offence under Section 494 of the Indian Penal Code. Relying on pre‑1955 case law and the provisions of the Hindu Marriage Act, the Court held that a marriage solemnised under one personal law cannot be dissolved by converting to another personal law. Consequently, the second marriage is void, violates the monogamous requirement of the Hindu Marriage Act, and attracts criminal liability under Section 494 IPC. The Court also directed the Government to report steps taken towards a Uniform Civil Code.

Issues considered

Can a Hindu husband who converts to Islam contract a second marriage without a divorce under the Hindu Marriage Act?
Is the second marriage valid under the Hindu Marriage Act and personal law of the first wife?
Does the husband incur liability under Section 494 of the Indian Penal Code for such a marriage?

Legislation cited

Dissolution of Muslim Marriages Act, 1939s. 4
Hindu Marriage Act, 1955s. 11, s. 13, s. 15, s. 4, s. 5
Indian Penal Code, 1860s. 494

Subjects

Hindu Marriage ActSection 494 IPCbigamyconversion to Islampersonal lawuniform civil codemonogamycriminal liabilityconstitutional law

Judgment

A SMT. SARLA MUDGAL, PRESIDENT, KALYANI AND ORS.
v.
UNION OF INDIA AND ORS.

MAY 10, 1995

B (KULDIP SINGH AND R.M. SAHA!, JJ.]

Hindu Marriage Act, S.11-Hindu husband embracing Islam and
solemnising second maniage without dissolution of the firsHfeld, second
maniage is invalid.
c Indian Penal Code 1860, S.494-Hindu husband embracing Islam and
solemnising second maniage without dissolution of the first-Held, second
maniage void; husband would be guilty of bigamy.

Interpretation of Statutes-Indian Penal Code 1860, S.494-Hindu hus-
D band converting to Islam and contracting second maniage--Courts to adopt
a construction of law that would advance interests of justice and harmony
between conimunities.

Constitution of india, Article 44-Govemment requested to indicate
steps taken for securing a unifonn civil code.
E
The writ petitioners were Hindu wives whose husbands had, even
while the first marriage subsisted, converted to Islam and contracted a
second marriage. One petitioner was the second wife who along with the
husband converted to Islam before the second marriage and whose hus-
band had thereafter reverted to being a Hindu and failed to maintain her.
F The questions for consideration were whether a Hindu husband, married
under Hindu law, could by embracing Islam soleminse a second marriage;
whether such a marriage without having the first marriage dissolved under
law, was a valid marriage qua the first wife who continued to be Hindu;
whether the apostate husband would be guilty of the offence under s.494
G of the Indian Penal Code (IPC).

Disposing of the writ petitions, this Court

HELD : 1.1. The second marriage of a Hindu husband after conver-
sion to Islam, without having his first marriage dissolved under law, would
H be invalid. [267-H]
250
SARLAMUDGALv. U.0.l. 251

1.2. A marriage solemnised under a particular statute and according A
to personal law could not be dissolved according to another personal law,
simply because one of the parties had changes his or her religion, (P.7).
Prior to 1955, a Hindu marriage continued to subsist even after one of the
spouses converted to Islam. The position has not changed after the Hindu
Marriage Act, 1955 ('Act'). [256-C, 260-F]
B
In Re Ram Kuma1i 1891 Calcutta 246; Budansa v. Fatima, [1914] IC
697; Gut Mohammed v. Emperor, AIR (1947) Nagpur 121; Na11di@Zai11ab
v. The Crown, ILR (1920) Lahore 440; Emperor v. Mt. Ruri, AIR (1919)
Lahore 389; Sayeda Khatoo11@A.M. Obadiah v. M. Obadiah, 49 CWN 745;
Robasa Kha11um v. Khodadad Boma11ji Ira11i, (1946) Bombay Law Reporter C
864 and Anda! Vaidyanathan v. Abdul Allam Vaidya, (1946) Madras,
referred to .

. '1.3. The second marriage of an apostate husband would be an illegal
marriage qua his wife who married him under the Act and continues to be a
Hindu. Between the apostate and his Hindu wife the second marriage is in D
violation of the provisions of the Act and as such wonld be nones!. [261-H]

2.1. The second marriage by a convert would be in violation of the
Act and as such void in terms of S.494 IPC. The expression "void" under
s.494 IPC has been used in the wider sense. A marriage which is in E
violation of any provisions of Jaw would be void in terms of the expression
used under Section 494, IPC. [262-G-F]

2.2. The interpretation given to Sec. 494 IPC would advance the
interests 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 F
communities. Since it is not the object of Islam that Hindu husbands
should be encouraged to become Muslims merely for the purpose of
evading their own personal laws by marrying again, the courts can be
persnaded to adopt a construction of the laws resulting in denying the
Hindu husband converted to Islam the right to marry again without having G
his existing marriage dissolved in accordance with law. [263-F-GJ

Attomey General Ceylon v. Reid, (1965) All. E.R 812, distinguished.

2.3. The second marriage of a Hindu husband after embracing Islam
being violative of justice, equity and good conscience would be void on that H
252 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A ground also and attract the provisions of S.494 IPC. (263-C]
Robasa Khanum v. Khodadad Bomanji Irani, (1946) Bombay Law
Report 864, followed.

2.4. The second marriage after conversion to Islam would be in
B violation of the rules of natural justice and as such would be void. [264-B]

3.1. There is no justification whatsoever in delaying indefinitely the
. introduction of a uniform personal law in the country. The government is
requested to have a fresh look at Article 44 of the Constitution and file an
affidavit indicating therein the steps taken and efforts made towards
C securing a "uniform civil code' for the citizens of India. [266-B, 267-E]

Mohd. Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945 and
Ms. Jordan Deingdeh v. S.S. Chopra, AIR (1985) SC 935, referred to.

Per Sahai, !. (concurring) :
D
The government could entrust the responsibility to the Law Commis-
sion which may in consultation with Minorities Commission examine the
matter and bring about a comprehensive legislation in keeping with the
modern-day concept of human rights for women. The government may
E consider appointing a Committee to enact a Conversion of Religion Act,
immediately, to check the abuse of religion by any person. The law may
provide that every citizen who changes his religion cannot marry another
wife unless he divorces his first wife. The provision should be made
applicable to every person whether he is a Hindu or a Muslim or a
F Christian or a Sikh or a Jain or a Budh. Provision may be made for
maintenance and succession etc. also to avoid clash of interests after
death. [269·H, 270-A-C]

CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1079 of
1989 Etc. Etc.
G
(Under Article 32 of the Constitution of India)

D.N. Diwedi, Additional Solicitor General, V.C. Mahajan, Shankar
Ghosh, R.K Garg, Ms. S. Janani, P. Parmeswaran, R.P. Srivastava, Ms. A.
Subhashini, Ms. Janki Ramachandran, K.J. John (N.P.), Shakeel Ahmed
H Syed for the appearing parties.
SARLA MUDGAL v. U.0.1. [KULDIP SINGH, J. J 253

The Judgments of the Court were delivered by A

- KULDIP SINGH, J. "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 B
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 mod to retrieve Article 44
from the cold storage where it is lying since 1949. The Government - which C
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 Main- D
tenance Act, 1956 which have replaced the traditional Hindu law based on
different schools cif 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
11
abeyance, any more, the introduction of "uniform civil code for all citizens
in the territory of India. E

The questions for consideration are whether a Hindu husband, mar-
ried under Hindu law, by embracing Isl~m, can solemnise second mar-
riage? 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 F
Hindu? Whether the apostate husband would be guilty of the offence under
Section 494 of the Indian Penal Code (!PC)?

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 G
President of "KALYAN!" - 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 H
254 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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 circum-
venting the provisions of Section 494, !PC. Jitender Mathur asserts that
having embraced Islam, he can have four wives irrespective of the fact that
-
his first wife continues to be Hindu.
B
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,
c 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.

D 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
E
conversion to Islam was only for the purpose of facilitating the second
marriage.

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
F 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
G
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.

H Marriage is the very foundation of the civilised society. The relation
SARLA MUDGAL v. U.O.l. [KUI.DIP SINGH, J.] 255

once formed, the law steps in and binds the parties to various obligations A

-
and liabilities thereunder. Marriage_is an institution in the maintenance of
which the public at large is deeply interested. It is the foundation of the
family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal - uniform civil code for all the
citizens of India - there is an open inducement to a Hindu husband, who B
wants to enter into second marriage while the first marriage is subsisting,
to become a Muslim. Since monogamy is the law for Hindus and the
Muslim law permits as many as four wives in India, errand Hindu husband
embraces Islam to circumvent the provisions of the Hindu law and to
escape from penal consequences. C
The doctrine of indissolubility of marriage, under the traditional
Hindu law, did not recognise that conversion would have the effect of
dissolving a Hindu marriage. Conversion to another religion by one or both
the Hindu spouses did not dissolve the marriage. It would be useful to have
a look at some of the old cases on the subject. In Re Ram Kumari 1891 D
Calcutta 246 where a Hindu wife became convert to the Muslim faith and
then married a Mohammedan, it was held that her earlier marriage with a
Hindu husband was not dissolved by her conversion. She was charged and
convicted of bigamy under Section 494 of the !PC. It was held that there
was no authority under Hindu law for the proposition that an apostate is E
absolved from all civil obligations and that so far as the matrimonial bond
was concerned, such view was contrary to the spirit of the Hindu law. The
Madras High Court followed Ram Kumari in Budansa v. Fatima, [1914) IC
697. In Gui Mohammed v. Emperor, AIR (1947) Nagpur 121 a Hindu wife
was fraudulently taken away by the accused a Mohammedan who married <
her according to Muslim law after converting her to Islam. It was held that F
the conversion of the Hindu wife to Mohammedan faith did not ipso fact.o
dissolve the marriage and she could no~ during the life time of her former
husband enter into a valid contract of marriage. Accordingly the accused
was convicted for adultery under Section 497 of the !PC.
G
In Nandi @Zainab v. The Crown, !LR (1920) Lahore 440, Nandi, the
wife of the complainant, changed her religion and became a Mussalman
and thereafter married a Mussalman named Rukan Din. She was charged
with an offence under Section 494 of the Indian Penal Code. It was held
that the mere fact of her conversion to Islam did not dissolve the marriage
which could only be dissolved by a decree of court. Emperor v. Mt. Ruri, H
256 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A AIR (1919) Lahore 389, was a case of Christian wife. The Christian wife

-
renounced Christianity and embraced Islam and then married a
Mahomedan. It was held that according to the Christian marriage law,
which was the law applicable to the case, the first marriage was not
dissolved and therefore the subsequent marriage was bigamous.

B In India there has never been a matrimonial law of general application.
Apart from statute law a marriage was governed by the personal law of the
parties. A marriage solemnised under a particular statute and according to
personal law could not be dissolved according to another personal law, simp-
ly because one of the parties had changed his or her religion.
c
In Sayeda Khatoon @ A.M. Obadiah v. M. Obadiah, 49 CWN 745,
Lodge, J. speaking for the court held as under :

"The parties were originally Jews bound by the Jewish personal
D law... The plaintiff has since been converted to Islam and may in
some respects be governed by the Mahommedan Law. The Defen-
dant is not governed by the Mahommedan Law. If this were an
Islamic country, where the Mahommedan Law was applied to all
cases where one party was a Mahommedan, it might be that
plaintiff would be entitled to the declaration prayed for. But this
E is not a Mahommedan country; and the Mahommedan Law is not
the Law of the Land .. Now, in my opinion, is it the Law of India,
that when any person is converted to Islam the Mahommedan Law
shall be applicable to him in all his relationships? I can see no
reason why the Mahommedan Law should be preferred to the
F Jewish Law in a matrimonial dispute between a Mahommdan and
a Jew particularly when the relationship, viz.: marriage, was created
under the Jewish Law. As I stated in a previous case there is no
matrimonial law of general application in India. There is a Hindu
Law for Hindus, a Mahommedan Law for Mahommedans, a Chris-
tian Law for Christians, and a Jewish Law for Jews. There is no
G general matrimonial law regarding mixed marriages other than the
statute law, and there is no suggestion that the statute law is
applicable in the present case. It may be that a marriage solem-
nised according to Jewish rites may be dissolved by the proper
authority under Jewish Law when one of the parties renounces the
H Jewish Faith. It may be that a marriage solemnised according to
SARLAMUDGAL v. U.0.1. [KULDIP SINGH, J.] 257

Mahommedan Law may be dissolved according to the Mahom- A
medan Law when one of the parties ceases to be a Mahommedan.
But I can find no authority for the view that a marriage solemnized
according to one personal law can be dissolved according to
another personal law simply because one of the two parties has
changed his or her religion."
B
Sayeda Khatoon 's case was followed with approval by Blagden, J. of the
Bombay High Court in Robasa Khanum v. Khodadad Bomanji Irani, [1946]
Bombay Law Reporter 864. In this case the parties were married according
to Zoroastrian law. The wife became Muslim whereas the husband
declined to do so. The wife claimed that her marriage stood dissolved C
because of her conversion to Islam. The learned Judge dismissed the suit.
It would be useful to quote the following observations from the judgment:

"We have, therefore, this position - British India as a wlltlle; is
another governed by Hindu, Mahommedan, Sikh, Parsi, Christian, D
Jewish or any other law except a law imposed by Great Britain
under which Hindus, Mahomedans, Sikhs, Parsis, and all others,
enjoy equal rights and the utmost possible freedom of religious
observance, consistent in every case with the rights of other people.
I have to decide this case according to the law as it is, and there E
seems, in principle, no adequate ground for holding that in this
case Mahomedan law is applicable to a non-Mahomedan .. Do then
the authorities compel me to hold that one spouse can by changing
his or her religious opinions (or purporting to do so) force his or
her newly acquired personal law on a party to whom it is entirely
alien and who does to want it? In the name of justice, equity and F
good conscience, or, in more simple language, of common sense,
why should this be possible? If there were no authority on the point
I (personally) should have thought that so monstrous an absurdity
carried its own refutation with it, so extravagant are the results that
follow from it. For it is not only the question of divorce that the G
plaintiffs contention affects. If it is cqrrect, it follows that a
Christian husband can embrace Islam and, the next moment, three
additional wives, without even the consent of the original wife."

Against the judgment of Blagden, J. appeal was heard by a ;Jivision Bench H
258 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A consisting of Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as
the learned Judge then was). Chagla, J. who spoke for the Bench posed
the question that arose for determination as under : "what are the conse-
quences of the plaintiffs conversion to Islam?" The Bench upheld the
judgment of Blagden, J. and dismissed the appeal. Chagla, J. elaborating
B the legal position held as under :-

"We have here a Muslim wife according to whose personal law
conversion to Islam, if the other spouse docs not embrace the same
religion, automatically dissolves the marriage. We have a
Zoroastrian husband according to whose personal law such con-
c version does not bring about the same result. The Privy Council
in Waghela Rajsanji v. Shekh Mas/udin expressed the opinion that
if there was no rule of Indian law which could be applied to a
particular case, then it should be decided by equity and good
conscience, and they interpreted equity and good conscience, to
D mean the rules of English law if found applicable to Indian society
and circumstances. And the same view was confirmed by their
Lordships of the Privy Council in Mohammed Raja v. Abbas Bandi
Bibi. But there is no rule of English law which can be made
applicable to a suit for divorce by a Muslim wile against her
Zoroastrian husband. The English law only deals and can only deal
E with Christian marriages and with grounds for dissolving a Chris-
tian marriage. Therefor we must decided according to justice and
right, or equity and good conscience independently of any
provisions of the English law. We must do substantial justice
between the parties and in doing so hope that we have vindicated
F the principles of justice and right or equity and good conscience ......
It is impossible to accept the contention of Mr. Peerbhoy that
justice and right requires that we should apply Muslim law in
dealing this case. It is difficult to see why the conversion of one
party to a marriage should necessarily afford a ground for its
dissolution. The bond that keeps a man and woman happy in
G marriage is not exclusively the bond of religion. There are many
other ties which make it possible for a husband and wife to live
happily and contentedly together. It would indeed be a starting
proposition to lay down that although two persons may want to
continue to live in a married state and disagree as to the religion
H they should profess, their marriage must be automatically dis-
SARLAMUDGALv. U.0.1.[KULDIPSINGH,J.] 259

solved. Mr. Peerbhoy has urged that it is rarely possible for two A
·' persons of different communities to be happily united iii wedlock.
"' If conversion of one of the spouses leads to unhappiness, then the
grourid for dissolution of marriage could not be the conversion but
the resultant unhappiness. Under Muslim law apostasy from Islam
of either party to a marriage operates as a complete and immediate B
dissolution of the marriage. But s.4 of the Dissolution of Muslim
Marriages Act (Vlli of 1939) provides that the renunciation of
Islam by a married Muslim woman or her conversion to a faith
other than Islam shall not by itself operate to dissolve her marriage.
This is a very clear and emphatic indication that the Indian legis-
lature has departed from;the rigor of the ancient Muslim law and C
has taken the more modern view that there is nothing to prevent
a happy marriage notwithstanding the fact that the two parties to
it professed different religious .. We must also point out that the
plaintiff and the defendant were married according to the
Zoroastrian rites. They entered into a solemn pact that the mar- D
riage would be monogamous and could only be dissolved according
to the tenets of the Zoroastrian religion. It would be patently '
contrary to justice and right that one party to a solemn pact should
be allowed to repudiate it by a unilateral act. It would be tan-
tamount to permitting the wife to force a divorce upon her husband
although he may not want it and although the marriage vows which E
both of them have taken would not permit it. We might also point
out that the Shariat Act (Act XXVI of 1937) provides that the rule
of decision in the various cases enumerated in s.2 which includes
marriage and dissolution of marriage shall be the Muslim personal
law only where the parties are Muslims; it does not provide that F
ee Muslim personal law shall apply when only one of the parties
1s a.Muslim."

(the single Judge judgment and the Division Bench judgment are
reported in 1946 Bombay Law Reporter 864)
G
In Anda/ Vaidyanathan v. Abdul Allam Vaitiya, [1946] Madras, a
Division Bench of the High Court dealing with a marriage under the
Special marriage Act 1872 held :

"The Special Marriage Act clearly only contemplate~ monogamy H
260 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A and a person married under the Act cannot escape from its
provisions by merely changing his religion. Such a person commits
bigamy if he marries again during the lifetime of his spouse, and
...
it matters not what religion he professes at the time of the second
marriage. Section 17 provides the only means for the dissolution
of a marriage or a declaration of its nullity.
B
Consequently, where two persons married under the Act sub-
sequently become converted to Islam, the marriage can only be
dissolved under the provisions of the Divorce Act and the same
would apply even if only one of them becomes converted to Islam.
C Such a marriage is not a marriage in the Mahomedan sense which
can be dissolved in a Mahomedan manner. It is a statutory mar-
riage and can only be dissolved in accordance with the Statute :
('41)28 A.LR. (1941) Cal. 582 and (1917) I K.B. 634, Rel. on; ('35)
22 A.LR. 1935 Born. 8 and 18 Cal. 264, Disting."

D It is, thus, obvious form the catena of case-law that a marriage
celebrated under a particular personal law cannot be dissolved by the
application of another personal law to which one of the spouses converts
and the other refuses to do so. Where a marriage take place under Hindu
Law the parties acquire a status and certain rights by the marriage itself
E under the law governing the Hindu Marriage and if one of the parties is
allowed to dissolve the marriage by adopting and enforcing a new personal
law, it would tantamount to destroying the existing rights of the other
spouse who continues to be Hindu. We, therefore, hold that under the
Hindu Personal Law as it existed prior to its codification in 1955, a Hindu
marriage continued to subsist even after one of the spouses converted to
F Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu
Marriage Act, 1955 (the Act) rather it has become worse for the apostate.
The Act applies to Hindus by religion in any of its forms or developments.
G It also applied to Buddhists, Jains and Sikhs. It has no application to
Muslims, Christians and Parsecs. Section 4 of the Act is as under :

"Oveniding effect of Act. - Save as otherwise expressly provided
in this Act, -

H (a) any text, rule or interpretation of Hindu law or any custom or
SARLAMUDGALv. U.O.L[KULDIPSINGH,J.] 261

usage as part of that Jaw in force immediately before the commen- A
cement of this Act shall cease to have effect with respect to any
matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement
of this Act shall cease to have effect in so far as it is inconsistent B
with any of the provisions contained in this Act."

A marriage solemnised, whether before or after the commencement
of the Act, can only be dissolved by a decree of divorce on any of the
grounds enumerated in Section 13 of the Act. One of the grounds under
Section 13(1)(ii) is that "the other party has ceased to be a Hindu by C
conversion to another religion". Sections 11and15 of the Act is as under:-

"Void marriages. - Any marriage solemnized after the commence-
ment of this Act shall be null and void and may, on a petition
presented by either party thereto against the other party, be so D
declared by a decree of nullity if it contravenes any one of the
conditions specified in clauses (i), (iv) and (v) of Section 5."

Divorced persons when may marry again.- When a marriage has
been dissolved by a decree of divorce and either there is no right
of appeal against the decree or, of there is such a right of appeal E
the time for appealing has expired without an appeal having been
presented or an appeal has been presented but has been dismissed,
it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern F
Hindu Law strictly enforces monogamy. A marriage performed under the
Act cannot be dissolved except on the grounds available under section 13
of the Act. In that. situation parties who have solemnised the marriage
under the Act remain married even when the husband embraces Islam in
pursuit of other wife. A second marriage by an apostate under the shelter
of conversion to Islam would nevertheless be a marriage in violation of the G
provisions of the Act by which he would be continuing to be governed so
far as his first marriage under the Act is concerned despite his conversion
to Islam. 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. Between the apostate and his Hindu wife the second marriage is in H
262 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A violation of the provisions of the Act and as such would be nonest. Section
494 Indian Penal Code is as under :-

"Marrying again during lifetime of husband or wife. 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
B 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.

The necessary ingredients of the Section are : (1) having a husband or wife
C living; (2)_ marries in any case; (3) in which such marriage is void; (4) by
reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu
husband after embracing Islam may not be strictly a void marriage under
the Act because he is no longer a Hindu, but the fact remains that the said
D marriage would be in violation of the Act which strictly professes
monogamy.

The expression "void" for the purpose of the Act has been defined
under Section 11 of the Act. It has a limited meaning within the scope of
the definition under the Section. On the other hand the same expression
E has a different purpose under Section 494, !PC and has to be given
meaningful interpretation.

The expression "void" under section 494, !PC has been used in the
wider sense. A marriage which is in violation of any provisions of law would
be void in terms of the expression used under Section 494, !PC.
F
A Hindu marriage solemnised under the Act can only be dissolved
on any of the grounds specified under the Act. Till the time a Hindu
marriage is dissolved under the Act none of the spouses can contract
second marriage. Conversion to Islam and marrying again would not, by
G itself, dissolve the Hindu marriage under the Act. The second marriage by
a convert would therefore be in violation of the Act and as such void in
terms of Section 494, !PC. Any act which is in violation of mandatory
provisions of law is per-se void.

The real reason for the voidness of the second marriage is the
H subsisting of the first marriage which is not dissolved even by the conver-
SARLA MUDGAL v. U.0.1. [KULDIP SINGH,J.] 263

sion of the husband. It would be giving a go-bye to the substance of the A
matter and acting against the spirit of the Statute if the second marriage
... of the convert is held tci be legal.

We also agree with the law laid down by Chagla, J. in Robasa
Kha11um v. Khodadad Ira11i's case (supra) wherein the learned Judge has
held that the conduct of a spouse who converts to Islam has to be judged B
on the basis of the rule of justice and right or equity and good conscience.
A matrimonial dispute between a convert to Islam and his or her non-Mus-
lim spouse is obviously not a dispute "where the parties are Muslims" and,
therefore, the rule of decision in such a case was or is not required to be
the "Muslim Personal Law''. In such cases the Court shall act and the Judge C
shall decide according to justice, equity and good conscience. The second
marriage of a Hindu husband after embracing Islam being violative of
justice, equity and good conscience would be void on that ground also and
attract the provisions of Section 494, !PC.

Looked from another angle, the second marriage of an apostate- D
husband would be in violation of the rules of natural justice. Assuming that
a Hindu husband has a right to embrace Islam as his religion, he has no
right under the Act to marry again without getting his earlier marriage
under the Act dissolved. The second marriage after conversion to Islam
would, thus, be in violation of the rules of natural justice and as such would E
be void.

The interpretation we have given to Section 494 !PC would 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. Result of the. interpretation, we have given to Section 494 F
!PC, would be that the Hindu Law on the one hand and the Muslim Law
on the other hand would operate within their respective ambits without
trespassing on the personal laws of each other. Since it is not the object of
Islam nor is the intention of the enlighten Muslim community that the
Hindu husbands should be encouraged to become Muslims merely for the G
purpose of evading their own personal laws by marrying again, the courts
can be persuaded to· adopt a construction of the laws resulting in denying
the Hindu husband converted to Islam the right to marry again without
having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 !PC are satisfied in the case H
264 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A of a Hindu husband who marries for the second time after conversion to
Islam. He has a wife living, he marries again. The said marriage is void by
reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband
after his conversion to islam is a void marriage in terms of Section 494 !PC.
B
We may at this stage notice the Privy Council judgment in Attorney
General Ceylon v. Reid, [1965] AL E.R. 812. A Christian lady was married
according to the Christian rites. Years later she embraced Islamic faith and
got married by the Registrar of Muslim Marriages at Colombo according
C to the statutory formalities prescribed for a Muslim marriage. The husband
was charged and convicted by the Supreme Court, Ceylon of the offence
of bigamy under the Ceylon Penal Code. In an appeal before the Privy
Council, the respondent was absolved from the offence of bigamy. It was
held by Privy Council as under :-

D "In their Lordship's view, in such countries there must be an
inherent right in the inhabitants domiciled there to change their
religion and personal law and so to contract a valid polygamous
marriage if recognised by the laws of the country notwithstanding
an earlier marriage. If such inherent right is to be abrogated, it
must be done by statute."
E
Despite there being an inherent right to change religion the ap-
plicability of Penal laws would depend upon the two personal laws govern-
ing the marriage. The decision of Privy Council was on the facts of the
case, specially in the background of the two personal laws operating in
F Ceylon. Reid's case is, thus, of no help to us in the facts and legal
background of the present cases.

Coming back to the question 11 uniform civil code" we may refer to
the earlier judgments of this Court on the subject. A Constitution Bench
of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd.
G Ahmed Khan v. Shah Bano Begum, AIR (1985) SC 945 held as under :

"It is also a matter of regret that Article 44 of our Constitution has
remained a dead letter. It provides that "The State shall endeavour
to secure for the citizens a uniform civil code throughout the
H territory of India". There is no evidence of any official activity for
SARLA MUDGAL v. U.0.I. [KULDIP SINGH, J.] 265
.~

framing a common civil code for the couatry. A belief seems to A
have gained ground that it is for the Muslim community to take a
- lead in the. matter of reforms of their personal law. A common
Civil Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. No
community is likely to bell the cat by making gratuitous concessions B
on this issue. It is the State which is charged with the duty of
securing a uniform civil code for the citizens of the country and,
unquestionably; it has the legislative competence to do so. A
counsel is the case whispered, somewhat audibly, that legislative
competence in one thing, the political courage to use that com-
petence is quite another. We understand the difficulties involved
c
in bringing persons of different faiths and persuasions on a com-
man platform. But, a beginning has to be made is the Constitution
is to have any meaning. Inevitably, the role of the reformer has to
be assumed by the courts because, it is beyond the endurance of
D
sensitive minds to allow injustice to be suffered when it is so
. .., palpable. But piecemeal attempts of courts to bridge that gap
between personal laws cannot take the place of a common Civil
Code. Justice to all is a far more satisfactory way of dispensing
justice than justice from case to case."
E
In Ms. Jordan Diengdeh v. S.S. Chopra, AIR (1985) SC 935 0. Chinnappa
Reddy, J. speaking for the Court referred to the observations of
Chandrachud, CJ in Shah Bano Begum's case and observed as under :

"It was just the other day that a Constitution Bench of this Court F
had to emphasise the urgency of infusing life into Art. 44 of the
Constitution which provides that "The State shall endeavour to
secure for the citizens a uniform civil code throughout the territory
of India." The present case is yet another which focuses .. on the
immediate and compulsive need for a uniform civil code. The
)
totally unsatisfactory state of a affairs consequent on the lack of a G
uniform civil code is exposed by the facts of the present case.
Before mentioning the facts of the case, we might as well refer to
the observations of Chandrachud, CJ in the recent case decided
by the Constitution Bench (Mohd. Ahmed Khan v. Shah Bano
Begum)." H
266 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A One wonders how long will it take for the Government of the day to
implement the mandate of the framers of the Constitution under Article
44 of the Constitution of India. The traditional Hindu Law - personal law
of the Hindu - governing inheritance, succession and marriage was given
go-bye as back as 1955-56 by codifying the same. There is no justification
B whatsoever in delaying indefinitely the introduction of a uniform personal
law in the country.

Article 44 is based on the concept that there is no necessary connec-
tion between religion and personal law in a civilised society. Article 25
guarantees religious freedom whereas Article 44 seeks to divest religion
C from social relations and personal law. Marriage, succession and like
matters of a secular character cannot be brought within the guarantee
enshrined under Articles 25, 26 and 27. The personal law of the Hindus,
such as relating to marriage, succession and the like have all a sacramental
origin, in the same manner as in the case of the Muslims or the Christians.
The Hindus alongwith Sikhs, Buddhists and fains have forsaken their
D sentiments in the cause of the national unity and integration, some other
communities would not, though the Constitution enjoins the establishment
of a "common civil Code" for the whole of India.

It has been judicially acclaimed in the United States of America that
E the practice of Polygamy is injurious to "public morals", even though some
religion may make it obligatory or desirable for its followers. It can be
superseded by the State just as it can prohibit human sacrifice or the
practice of "Suttee" in the interest of public order. Bigamous marriage has
been made punishable amongst Christians by Act (XV of 1872), Parsis by
Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of
F 1955).

Political history of India shows that during the Muslim regime, justice
was administered by the Qazis who would obviously apply the Muslim
Scriptural law to Muslims, but there was no similar assurance so far
G litigations concerning Hindus was concerned. The system, more or less,
continued during the time of the East India Company, until 1772 when
Warren Hastings made Regulations for the administration of civil justice ·
for the native population, without discrimination between Hindus and
Mahomedans. The 1772 Regulations followed by the Regulations of 1781
whereunder it was prescribed that either community was to be governed
H by its "personal" law in matters relating to inheritance, marriage, religious
SARLA MUDGAL v. U.0.1. [KULDIP SINGH, J.] 267

usage and institutions. So far as the criminal justice was concerned the A
British gradually superseded the Muslim law in 1832 and criminal justice
was governed by the English common law. Finally the Indian Penal Code
was enacted in 1860. This broad policy continued throughout the British
regime until independence and the territory of India was partitioned by the
British Rulers into two States on the basis of religion. Thos~ who preferred
to remain in India after the partition, fully knew that the Indian leaders did B
not believe in two-nation or three-nation theory and that in the Indian
Republic there was to be only one Nation - Indian nation - and no
community could claim to remain a separate entity on the basis of religion.
It would be necessary to emphasise that the respective personal laws were
permitted by the British to govern the matters relating to inheritance, C
marriages etc. only under the Regulations of 1781 framed by Warren
hastings. The Legislation - not religion - being the authority under which
personal law was permitted to operate and is continuing to operate, the
same can be superseded/supplemented by introducing a uniform civil code.
In this view of the matter no community can oppose the introduction of
uniform civil code for all the citizens in the territory of India. D

. ~
The Successive Government till-date have been wholly re-miss in
their duty of implementing the constitutional mandate under Article 44 of
the Constitution of India.

We, therefore, request the Governinent of India through the Prime E
Minister of the country to have a fresh look at Article 44 of the Constitution
of India and "endeavour to secure for the citizens a uniform civil code
throughout the territory of India".

We further direct the Government of India through Secretary, Min-
istry cf Law and Justice to file an affidavit of a responsible officer in this F
Court in August, 1996 indicating therein the steps taken and efforts made,
by the Government of India, towards securing a "uniform civil code" for
the citizens of India. Sahai, J. in his short and crisp supporting opinion has
suggested some of the measures which can be undertaken by the Govern-
ment in this respect. G
Answering the questions posed by us in the beginning of the judg-
ment, we hold that the second marriage of a Hindu-husband after conver-
sion to Islam, without having his first marriage dissolved under law, would
be invalid. The second marriage would be void in terms of the provisions
of Section 494 !PC and the apostate-husband would be guilty of the offence H
268 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A under Section 494 !PC.
The question of law having been answered we dispose of the writ
petitions. The petitioners may seek any relief by invoking any remedy which
may be available to them as a result of this judgment or otherwise. No costs.

B Petitions desposed of.

R.M. SAHA!, J. Considering sensitivity of the issue and magnitude
of the problem, both on the desirability of a uniform or common civil code
and its feasibility, it appears necessary to add a few words to the social
necessity projected in the order proposed by esteemed Brother Kuldip
C Singh, J. more to focus on the urgency of such a legislation and to
emphasise that I entirely agree with the thought provoking reasons which
have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced force-
•
fully by the members of the minority community in the Constituent As-
D sembly. If, 'the non implementation of the provisions contained in Article
44 amounts to grave failure of Indian democracy' represents one side of
the picture, then the other side claims that, 'logical probability appears to
be that the code would cause dissatisfaction and disintegration than serve
as a common umbrella to promote homogeneity and national solidarity'.

E When Constitution was framed with secularism as its ideal and goa~
the consensus and conviction to be one, socially, found its expression in
Article 44 of the Constitution. But religious freedom, the basic foundation
of secularism, was guaranteed by Articles 25 to 28 of the Constitution.
Article 25 is very widely worded. It guarantees all persons, not only
freedom of conscience but the right to profess, practice and propagate
F religion. What is religion? Any faith or belief. The Court has expanded
religious liberty in its various phases guaranteed by the Constitution and
extended it to practices and even external overt acts of the individual.
Religion is more than mere matter of faith. The Constitution by guarantee-
ing freedom of conscience ensured inner aspects of religious belief. And
G external expression of it were protected by guaranteeing right to freely,
practice and propagate religion. Reading and reciting holy scriptures, for
instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much
a part of religion as offering food to deity by a Hindu or bathing the idol
or dressing him and going to a temple, mosque, church or gurudwara.

H Marriage, inheritance, divorce, conversion are as much religious in
SARLA MUDGAL v. U.0.1. [R.M. SAHA!, J.] 269

nature and content as any other belief or faith. Going round the fire seven A
rounds or giving consent before Qazi are as much matter of faith and
conscience as the worship itself. When a Hindu becomes convert by
reciting Ka/ma or a Muslim becomes Hindu by reciting certain Mantras it
is a matter belief and conscience. Some of these practices observed by
members of one religion may appear to be excessive and even violative of B
human rights to members of another. But these are matters of faith. Reason
and logic have little role to play. The sentiments and emotions have to be
cooled and tempered by sincere effort. But today there is no Raja Ram
Mohan Rai who single handed brought about that atmosphere which paved
the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru
who could pilot through, successfully, the Hindu Succession Act and Hindu C
Marriage Act revolutionising the customary Hindu Law. The desirability
of uniform Code can hardly be doubted. But it can concretize only when
social climate is properly built up by elite of the society, statesmen amongst
leaders who instead of gaining personal mileage rise above and awaken the
masses to accept the change. D

The problem with which these appeals are concerned is that many
Hindus have changed their religion and have become convert to Islam only
for purposes of escaping the consequences of bigamy. For instance, Jin-
tendra Mathur was married to Meena Mathur. He and another Hindu girl
embraced Islam. Obviously because Muslim Law permits more than one E
wife and to the extent of four. But no religion permits deliberate distor-
tions. Much misapprehension prevails about bigamy in Islam. To check the
misuse many Islamic countries have codified the personal law, 'wherein the
practice of polygamy has been either totally prohibited or severely
restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics F
of the Soviet Union are some of the Muslim countries to be remembered
in this context). But ours is a Secular Democratic Republic. Freedom of
religion is the core of our culture. Even the slightest deviation shakes the
social fibre. 'But religious practices, violative of human rights:·and dignity
and sacerdotal suffocation of essentially civil and material freedoms, are G
not autonomy but oppression'. Therefore, a unified code is imperative both
for protection of the oppressed and promotio~ of national unity and
sol.idarity. But the first step should be to rationalise the personal law of the
minorities to develop religious and cultural amity. The Government would
be well advised to entrust the responsibility to the Law Commission which
may in consultation with Minorities Commission examine the matter and H
270 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A bring about the comprehensive legislation in keeping with modern day
concept of human rights for women.

The Government may also consider feasibility of appointing a Com-
mittee to enact Conversion of Religion Act, immediately, to check the
abuse or religion by any person. The law may provide that every citizen
B who changes his religion cannot marry another wife unless he divorces his
first wife. The provision should be made applicable to every person
whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a
Budh. Provision may be made for maintenance and succession etc. also to
avoid clash of interest after death.
c This would go a long way to solve the problem and pave the way for
a unified civil code.

For the reasons and conclusions reached in separate but concurring
judgments the writ petitions are allowed in terms of the answers to the
D questions posed in the opinion of Kuldip Singh, J.
S.M. Petitions disposed of.