CASE ANALYSIS: Lily Thomas vs. Union of India (2013) 7 SCC 653

Background:

The case that we discuss today is a landmark judgment in the legal history of India. The case Lily Thomas vs. Union of India &Ors is landmark due to the fact that in this case SC considered second marriage without prior divorce from the first marriage to be void wherein men were converting their religion to Islam to solemnize the second marriage but all of this was considered void unless and until first marriage was dissolved according to the Hindu Marriage Act otherwise the husband would be liable for bigamy under section 494 and 495 of Indian Penal Code. This was because converting to Islam would not dissolve the first marriage and the Husband is liable to all the obligations as he would be prior converting to Islam. Such a judgment was important since men were taking recourse to such conversion for marrying and having more than one wife. Bigamy is the offence of marrying another while the first marriage still persists and such bigamous relations are illegal and the second marriage is void ab initio. For a long period, married men whose personal law did not allow bigamy have been recurring to the unhealthy and immoral practice of converting to Islam for the interest of condensing a second bigamous marriage under the assumption that such conversion would help them to marry again without getting their first marriage dissolved. Mrs.Sushmita Ghosh v. Union of India and Ors, Smt. SarlaMudgal, President, Kalyani and others v. Union of India and Ors, Sunita&Fatima v. Union of India and Ors these petitions were collectively taken by SC to decide the status of bigamous marriage by converting to Islam.

Facts:

1. Mrs.Sushmita Ghosh was married to Mr.Gyan Chand Ghosh according to hindu rituals on 10th May, 1984.

2. On 22nd April her husband told her that he does not want to live with her any further and should agree for divorce by mutual consent.

3. All of this came as a shock to Petitioner and prayed that she was the legally wedded wife and wanted to live with him therefore the question of divorce should not arise.

4. The husband told her that he has converted to Islam and would marry Vinita Gupta.

5. He procured a certificate dated 17th June, 1992 from Qazi indicating that he has converted to Islam.

6. Mrs.Sushmita Ghosh has prayed that her husband should be restricted from entering into another marriage with Vinita Gupta.

Issues Raised:

1. Whether there should be Uniform Civil Code for all citizens?

2. Whether a Hindu husband can solemnise second marriage by converting to Islam?

3. Whether the husband would be liable for bigamy under section 494 of IPC?

Argument of the parties:

Arguments on behalf of Petitioner:

1. Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the act of religious conversion to muslim to commit the act of bigamy as Muslim personal law allows it is an attempt where the women freedom of facing such bigamous marriage and such betrayal is violative of Art.21(right to life and liberty).

2. Lily Thomas pleaded before the court to male polygamy in Muslim Law to be unconstituutional.

3. It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-legal issues that were due to various religious personal law.

4. Many Muslim women have filed petitions before the SC and HC to declare Polygamy in Muslim law to be unconstitutional.

5. To reframe Muslim personal law with the change in time and disallow the practice of Polygamy as it is disrespectful to the integrity and liberty of women who have to face such situations.

6. To have Uniform Civil Code so that no personal religious law make fundamental right violation.

7. Such contentions were made by Lily Thomas in pretext of all the aggrieved women.

Arguments on behalf of Respondent:

1. The state agreed with the petitioner in their plea.

2. Several recommendations were made in this context.

Decision of the court:

1.Marriage resulting from conversion to Muslim from any other faith during the existence of previous marriage before conversion is deemed void even when Muslim Personal Law (Shariat) Act allows polygamy because such conversion is not exercise of freedom  but rather it is a fraudulent act without the  change in one’s faith.

2. The reason derived from the facts that lead to this judgment was due to the practice of the husband who had converted to Islam but had not had any relevant change in any document which would conclude such conversion to be of concrete nature provided this act also not provided any significance to the child born from that wedlock.

3. Even bank accounts hold identification of the husband to have been Hindu. All this adds to the fact that such conversion was solely done in order to enter into second marriage ie. Bigamy and there was no change in one’s faith.

4.Therefore, marriage resulting from such a conversion is void also due to violation of Art.21. The violation of Article 21 on behalf of those considered under the law laid down in SarlaMudgal is being seen as no violation at all but have contended that Article 21 states no person shall be derived of his right of life and personal liberty except as per procedure establish by law.

5. Here the persons are apprehended for offences under s.474 and 475, IPC therefore no right has been violated because such apprehension has been laid down by law.

6. The Court has said that violation of Article 21 is misconceived. Since Art.21 states that no person shall be deprived of his right and personal liberty except as per procedure established by law and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494 there is no violation of Art. 21.

7. The doctrine of indissolubility of marriage is not recognized in traditional Hindu law even when conversion led to the change in one’s religion. Marriage would not be dissolved only by the pretext of one converting to another religion.

8. Unless the law permits for uniform civil code a non Islamic husband would have the opportunity to convert to another religion ie. Islam to legalize one’s marriage but since such an act has become an act that would be penalize such conversion would not have any validity if the first marriage is not dissolved.

9. In India there are no marriage related law since marriage take place according to one’s personal law therefore such thing could not be codified and applying uniform civil code to such an issue would not do just to one’s own personal belief but what could be penalized are the wrong acts done in pretext of such personal law which is what the SC has done in this case by making it illegal to marry another person while already in marriage with the first wife by converting to Islam.

Conclusion:

This law as laid down in SarlaMudgal v. Union of India and which was upheld in Lily Thomas v. Union of India has raised pertinent issues for having a Uniform Civil Code (such has been laid down in Lily Thomas case) and also the 227th Report of The 18th Law Commission of India in August 2009 have made this issue of preventing Bigamous marriage though Conversion to Islam it’s subject and the commission headed by Dr. Justice A.R. Lakshmanan have provided sound measures to keep this rampant practice of fraudulent conversion for benefits of bigamy/polygamy under strict constrains so as to prevent such atrocities from ever occurring.

 Such an implementation from this law commission report is yet to be seen in the existing time. Thus this law persists in judicial precedents and ration decidendi which is applicable to every citizen of India irrespective of their religion.

Aishwarya Says:

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