SARLA MUDGAL AND ORS. V. UNION OF INDIA: AIR 1995 SC 1531

BY: Kaustubh Singh Thakur and Kunal Mittal

BACKGROUND

Marriage is one of the foundation stones of a civilised society. It is the foundation of the family and in turn of the society without which no civilisation can exist.The pious relation once entered into, lets the law step in and bind the partners to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which there is public interest at large.[1] The culmination of the Hindu Code Bill in the 1950s led to the codification and unification of the variant personal laws of Hindus in India. The Hindu Marriage Act, 1955 was one the four acts that were passed as a part of the Hindu Code Bill. A marriage entered in accordance with the Hindu Marriage Act, 1955, confers a status and certain rights upon the parties. Such marriage cannot be dissolved except on the grounds available under section 13 of the Act. A spouse does not have the right to dissolve the marriage in such a manner that infringes the existing rights of the other spouse. There can be no automatic dissolution of the marriage.

The Supreme Court of India while dealing with a bunch of writ petitions under Article 32 of the Constitution, in Sarla Mudgal and Ors. v. Union of India[2], directed the state to enact a uniform civil code counting on the directive principles contained in Part IV, Article 44 of the Constitution. The court observed that “there was no necessary connection between a religion and personal law in a civilized society.” Such an enactment was considered necessary as it would help stabilize the institution of marriage and family; and promote social homogeneity and thereby national integration.[3] The judgment is hailed as precedent for uniform civil code and is considered a decisive step towards national consolidation.The verdict discusses issue of bigamy, the conflict between the personal laws and the misuse of the freedom of religion.

FACTS

Four writ petitions were filed under Article 32 of the Constitution of India.Writ Petition 1079/89 had two petitioners. Sarla Mudgal, Petitioner 1, was the President of a registered society -“Kalyani”. The society was a welfare organisation working for women in distress.Petitioner 2, Meena Mathur had been married to Jitender Mathur since February 27, 1978. Three children (two sons and a daughter) were born out of the wedlock.In early 1988, Jitendra Mathur and Sunita Narula alias Fathima converted to Islam and entered into a marriage. The petitioneralleged that her husband’s conversion to Islam was only for the purpose of marrying Sunita and evading the provisions of Section 494, IPC. In the second Writ Petition, no. 347 of 1990, the petitioner Sunita Narula alias Fathima contended that Jitendra Mathur along with her had entered the wed lock after converting to Islam and adopting Muslim religion. A son was born out of the wed lock. The petitioner further alleged that under the influence of his first wife Meena Mathur, Jitendra Mathur gave an undertaking on April 28, 1988. The undertaking stated that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. The petitioner’s grievance was that she had no protection under either of the personal laws as she continued to be Muslim, not being maintained by her husband. In the third petition, Writ Petition no. 424 of 1992, it was stated that petitioner Geeta Rani,was married to Pradeep Kumar according to Hindu rites since November 13, 1988. The petition alleged that her husband maltreated her. On one occasion, the petitioner was beaten to an extent that her jawbone was broken. In December 1991, Pradeep Kumar converted to Islam and married Deepa. It was alleged that the conversion to Islam was only for the purpose of facilitating the second marriage.The fourth petition, Civil Writ Petition 509 of 1992 was filed by Sushmita Ghosh. The petitioner stated that she was married to G.C. Ghosh according to Hindu rites since May 10, 1984. On April 20, 1992, the husband tried to convince the petitioner to agree to divorce by mutual consent as he no longer wanted to live with her.On June 17, 1992, the husband converted to Islam and was set to marry one Vinita Gupta. The petitioner had prayed that her husband be restrained from entering into second marriage with Vinita Gupta.

ISSUES RAISED

Several critical questions were raised during this case relating to the enactment of a uniform civil code, the issue of bigamy, the conflict between the personal laws and the misuse of the freedom of religion. Thus, three broad issues were raised:

(1) Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage?

(2) 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?

(3) Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)?

REASONING

The apex court strongly advocated the necessity of implementation of uniform civil code throughout the country so that personal laws could not trespass each other. Hon’ble Kuldip Singh J. further stated that in the absence of uniform civil code, there is an open inducement to Hindu husband to embrace Islam for the sole purpose of marrying again and consequently escaping the provisions of family and criminal law.[4]

It was reasoned in the instant case that holding second marriage of converted Hindu valid would tantamount to trespass of one personal law in other’s territory. A marriage solemnised according to one personal law cannot be dissolved by following the provisions of other. When the marriage under Hindu law takes place, the parties acquire rights and obligations against each other and validity of second marriage of Hindu husband would destroy the existing rights of another spouse. It is due to this reason that under customary Hindu law, a Hindu marriage continued to subsist even after one of the spouses converted to Islam.

The court referred to section 13 which talks about the grounds of divorce. One of the grounds is that “the other party has ceased to be a Hindu by conversion to another religion”.[5] It was observed that conversion into other religion is just a ground for other spouse to obtain a decree of divorce from the court. It does not imply that the marriage comes to an end with the conversion into another religion. The marriage is good and valid till the decree of divorce is granted by the court of competent jurisdiction. Therefore, second marriage of an apostate shall be illegal qua his wife who married him under the Hindu Marriage Act, 1955 and continues to be Hindu.

DISPOSITION

The court observed that a marriage entered in accordance with Hindu Law continues to be valid even if one of the spouses converts to other religion. A marriage could be dissolved only by the decree of court and there is no automatic dissolution of Marriage.[6] The court held that mere fact of conversion to Islam does not dissolve the marriage.[7]A marriage entered in accordance with the Hindu Marriage Act, 1955, confers a status and certain rights upon the parties. A spouse does not have the right to dissolve the marriage in such a manner that infringes the existing rights of the other spouse. This would also violate the laws of natural justice, equity, and good conscience. The court considered the conflict of personal laws arising out of the interest of both the communities. It felt that “it is not the intention of the enlightened Muslim community to encourage Hindu husbands to convert to Islam only for the purpose of legitimising their second marriage” and therefore,concluded that the Hindu husband married under Hindu Law cannot solemnize second marriage by embracing Islam.

To answer the question of validity of second marriage, the court stated that dissolution of a marriage can only take place by decree of divorce obtained on any of the grounds enumerated in Section 13 of the Hindu Marriage Act. A marriage which contravenes any of the conditions specified in the Act is void, thus a marriage performed when the spouse is living is void.[8]The court while considering legal propositions from the Hindu Marriage Act observed that the Act strictly enforces monogamy. The marriage performed under Hindu Law can only be dissolved on the grounds available in Section 13. Therefore, the husband and the first wife remain married. Hence, the second marriage violates the provisions of the Act and is illegal.

The court further observed that the scope and meaning of the expression ‘void’is wider in Section 494 of IPC as compared to its definition under Section 11 of the Hindu Marriage Act, 1955. The conversion of one of the spouses to another religion would not, by itself, dissolve the Hindu Marriage and until the dissolution of first marriage, no spouse can enter into second marriage. The spirit and nature of the Act makes the second marriage illegal as such a marriage would be violative of the principle of justice, equity, and good conscience. Considering the above discussion, the court concluded that the second marriage of Hindu husband, without dissolution of the first marriage, would be invalid. The second marriage would violate Section 494 of IPC and therefore the husband would be guilty of bigamy.

CRITICAL ANALYSIS

The verdict in this case emphasises on the importance of Article 44 of Indian Constitution which is read as: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The apex court gave guidelines to the Government of India to ensure that Article 44 is no more a dead letter and directed the state to take effective actions to secure its implementation throughout India. However, the judges were well-aware of the fact that considering the social fabric of the country, such a common legislation would not be easy to implement. It was suggested that the Law Commission may work in coordination with the Minorities Commission on the said proposal. Although the Supreme Court suggested a way to reach consensus amongst different communities but still the guidelines were not very clear as to how the Uniform Civil Code shall look like. Till date the Uniform Civil Code has not been implemented in our country for obvious reasons. Even if the implementation of Article 44 is to be considered, the following questions remain unanswered:

a.What shallthe provisions of Uniform Civil Code look like?

b.Would it be possible to give enough representation to the minority opinion in the new legislation?

c.How would the provisions of such a codebe balanced as against the freedom of religion?

Marriage, divorce and succession are equally a matter of faith and belief as worship itself. It is a fundamental right in India to freely profess, practice and propagate any religion.[9] The question is how the balance between freedom of religion and Article 44 of the DPSPs would be maintained.

Justice Sahai made an observation that Muslim majority countries like Pakistan, Morocco and Tunisia codified personal laws and strictly prohibited polygamy. These countries did not face much problem in such codification because these are Islamic countries. However, if we consider such a step to be taken in India, it would be seen as the oppression of the minorities and might incite communalism. It may lead to widespread protests and agitations in the country just like recent anti-CAA protests. It is not easy to enforce such a uniform civil code in the country due to conflicting practices and personal laws of different communities. The vote politics and appeasement policies are the other reasons which resist the governments from taking such bold steps. Even the Supreme Court in this case impliedly recognised it as a reason by opining in the following words: “But today there is no Raja Ram Mohan Rai who single-handedly 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 Marriage Act by revolutionising the customary Hindu law.”

Some might argue that if Goa could adopt uniform code for all, then why not other states of India? The answer to this question is that even Goa never adopted any uniform civil code after the independence, it just continued with the old Portuguese Civil Code which was a uniform law in 1962 when Goa was formed by Goa and Daman and Diu Administration Act, 1962; and since the Christians make up about 25% of the population of Goa and the personal laws of Hindus and Christians are not very different, a uniform code was easy to be enforced in Goa.

The Supreme Court, in this case, stretched the meaning of the expression ‘void’ as used in section 494 of IPC, 1860. It was not given restrictive meaning as in the section 11 of the Hindu Marriage Act, 1955. The court implied that that “a marriage which is in violation of any provision of law would be void in terms of the expression under section 494 of IPC.” The creative interpretation was made to give effect to the underlying principle of Hindu Marriage Act as it strictly professes monogamy. The court admitted to the stretching of the meaning of the term ‘void’, “else, it would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal.” This shows the application of harmonious construction rule by the apex court as such interpretation was given effect which resolves the conflict between different laws. The court while applying such principle observed as under:

“It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of interpretation they have given to section 494 of I.P.C. 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.”

The apex court needs to be given credit for finding a way out to uphold provisions of different laws along with securing justice at the same time. It was like a slap on the face of those who take undue advantage of loopholes in the law for selfish motives and unjust gains.The perusal of the ruling highlights the role of equity, justice and good conscience in reaching the decisions when law is not clear on the subject. The principles of natural justice were also applied in the given case to secure social justice. The court also emphasised on the basic human rights of women while issuing guidelines about making a comprehensive legislation. All this shows the constant endeavour of the judiciary to secure social justice by filling up lacunae in the law through dynamic and creative interpretation of the laws. A direction was also given to enact Conversion of Religion Act which shall deal with the provisions of marriage, divorce and succession in case of conversion of religion. However, such a legislation has not been enacted till date.

CONCLUSION

The court had to refer to the catena of case laws to secure justice in the instant case because of vacuum in the law in the instant case. Had uniform civil code been in place, it would have been easy to give justice to the petitioners and circuitous route in administration of justice could have been avoided. It could also have avoided the misuse of freedom of religion through sham conversion. The present case is the example of the constant endeavour of the Indian judiciary to enforce the provisions of our transformative constitution having liberty, equality and dignity as its ideals. The Supreme Court’s direction to the government to enforce the DPSP i.e. Article 44 further highlights the importance of Supreme Court as ‘Guardian of the Constitution’.

REFERENCES

Case Laws

  • Sarla Mudgal and Ors. v. Union of India, AIR 1995 SC 1531.
  • Ram Kumari in Budansa v. Fatima 1914 IC 697.
  • Nandi alias Zainab v. The crown ILR 1920 Lahore 440.

Statutes

  • The Hindu Marriage Act, 1955.
  • The Indian Penal Code, 1860.

Articles
Kumar Virendra, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily Thomas (2000)], Vol. 42, Journal of the Indian Law Institute(2000).


[1] Virendra Kumar, TOWARDS A UNIFORM CIVIL CODE: JUDICIAL VICISSITUDES [from Sarla Mudgal (1995)

to Lily Thomas (2000)], Vol. 42, Journal of the Indian Law Institute 314, 315-316, (2000).

[2]Sarla Mudgal and Ors. v. Union of India, AIR 1995 SC 1531.

[3]Supra note 1 at 315.

[4]The Indian Penal Code, No. 45 of 1860, India Code s. 494.

[5]The Hindu Marriage Act, 1955, The Parliament of India, 1955 (India) s. 13.

[6] Nandi alias Zainab v. The crown, ILR 1920 Lahore 440.

[7]Ram Kumari in Budansa v. Fatima, 1914 IC 697.

[8]The Hindu Marriage Act, 1955, The Parliament of India, 1955 (India) s. 5.

[9] The Constitution of India, 103rd AmendmentAct, 2019, art. 25.

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