Author : Shivanjali Mane
Title of the case
Sarla Mudgal, President, Kalyani and ors vs. Union of India and ors
AIR 1955 SC 1531
Kuldip Singh and R.M.Shai
Sarla Mudgal, President, Kalyani and ors
Union of India and ors
Marriage is one of the foundation stones of a civilized society. It is the foundation of the family and in turn of the society without which no civilization can exists.
The pious relation once entered into, lets the law step in and blinds the partners to various obligations and liabilities there under. Marriage is an institution in the maintenance of which there is public interest at large.
The culmination of the Hindu code bill in the 1950.s led to the codification and unification of the variant personals laws of Hindus in India. The Hindu Marriage Act, 19555, confers a status and certain rights upon the parties.
Such marriage cannot be dissolved accepts on the grounds available under section 13 of the Act. A spouse dies not having the right to dissolve the marriage in such a mere that infringes the existing rights of the other spouse. There can be no automatic dissolution of to 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 vs. Union of India, directed the state to enact a uniform civil code counting on the directive principles contained of 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 generality and thereby national integration.
The judgment is hailed a 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.
Four writ cases were filed under article 32 o the Constitution of India. Writ petition 1079/89 had two petitions, first is Sarla Mudgal- she is the president of the registered society “kalyani”.
This society work for a welfare organization working for woman in a distress the second petitioners was Meena Mature had been married to Jitrendra Mature since February 27, 1978. Three children (two sons and daughter) were born out of the wedlock.
In early 1988, Jitrendra Mathura and Sunita Narula aliens Fathima converted to Islam and entered into marriage. The petitioner alleged that her husband conversion to Islam was only for the purpose of marrying sunita and evading the provisions of section 494, IPC.
In second writ petition, no. 397 of 1990 The petitioners Sunita Narula alias Fthima contended that Jitrendra Mathure 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 petitioners further alleged that under the influence of his first wife Meena Mathure, 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 there children. The petitioner’s grievance was that she had no protection under either of 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 petitioners Geeta Rani, was married to Pradeep Kumar according to Hindu Rites since November 13, 1988. The petitioners alleged that her husband maltreated her. On one occasion, the petitioner was beaten to an extant that her jawbones were broken.
In December 1991, Prdeep Kumar converted to Islam and married Deepa. It was alleged that the conversion to Islam was only for the purpose of facility the second marriage. The fourth petition, Civil Writ petition 509 of 1992 was filed by Sushmita Ghose.
The petitioner stated that she married to G.C. Ghose according to Hindu rites since May 10, 1984. On April 20, 1992, the husband tried to conscience 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 petitioners had prayed that her husband be restrained from entering into second marriage with Vinita Gupta.
- Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnize second marriage?
- Whether such a marriage without having the first marriage dissolved under law. Would be a valid marriage qua the first wife who continues to be Hindu?
- Whether the apostate husband would be guilty of an offence under section 484 of Indian Penal Code, 1860?
Argument advanced from both the sides
Petitioners- all petitioners collectively argues that the respondent converted themselves to Islam to circumvent the provision of bigamy given under section 494 of IPC and facilities their second marriage with other women.
Respondent- the respondent in all the petitions assert a common contention that once they converted to Islam, they can have four wives despite having a first wife ho continue to be Hindu. Thus, they are not subject to the application of the Hindu Marriage Act, 1955 and IPC.
The apex court strongly advocated the necessity of Uniform Civil Code throughout the country so there personal laws could not stress pass each other. Honorable Kuldip Singh J. further stated that in the absence of uniform civil code, there is an open inducement to Hindu husband to emirs Islam for the sole purpose of marrying again and consequently the provisions of family and criminal law.
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 territory. A marriage solemnized according tone personal law cannot be dissolved by following the provisions of others. When the marriage under Hindu law takes place, each other and validity of second marriage of Hindu husband would destroy the existing rights of another spouse. It is due to this reason the under customary Hindu law, a Hindu marriage continued to suits even after one of the spouse converted to Islam.
The curt referred to section 13 of the act which talks about the grounds of the divorce. One of the other parties has ceased to be Hindu by converting to another religion. It was observed that converting to other religion is just a ground for other spouse to obtain a decree of divorce from the curt. It does not imply that the marriage comes to an end with the conversion into another religion. The marriage is good and amid till the decree of divorce is granted by the court. Therefore the second marriage of an apostate shall be illegal qua his wife who married under Hindu Marriage Act, 1955 and continue to be Hindu.
The court observed that a marriage entered in accordance with Hindu law continues to be valid even if on one the spouse converts to other religion. A marriage could be dissolved only by a decree of court and there is no automatic dissolution of marriage. The court held that mere fact of conversion to Islam does not dissolve the marriage. A marriage entered in accordance with the Hindu Marriage Act, 1955, confers a statute and certain rights upon the parties.
A spouse does not have nay right to dissolve the marriage in such a manner that infringes the existing rights to the other spouse. This would-be violets the law of natural justice, equity and good conscience The court considered the conflicts 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 husband to convert to Islam only for the purpose of legalization their second marriage” and the concluded that the Hindi husband married under Hindu law cannot solemnized 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 a decree of divorce obtained on any on the grounds enumerated in section 13 of the act. A marriage which contras of the conditions mentioned in the act it will be void.
The court while considering legal prepositions 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 I section 13. Therefore, the husband and the first wife remain married. Hence the second marriage violates the provisions of the act.
The court further observed that the scope and meaning of the expression ‘void’ wider in the section 494 of IPC. Compared to definition of section 11 of Hindu Marriage Act, 1955 the conversion of one of the spouse 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 sprit and nature of the act makes the second marriage illegal and such marriage would be violates of the principle of justice, equity and good conscience. Considering the above disruption 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 494IPC and therefore the husband would be guilty of bigamy.
For the reason and conclusion reached in separate but concerning judgment the writ petitions are allowed in terms of the answer to the questions posted in the opinions of Kuldip Singh. J.
The verdict in this case gives important to article 44of the Indian Constitution, “the state shall endeavors to secure for the citizens a uniform civil code throughout the territory of India.” The court directed that the Article 44 is no more dead letters and directed to take effective action. The Supreme Court suggested a way to reach consensus amongst different communities but still the guidelines wear not every clear as to how the Uniform Civil Code shall took like.
Till the date the Uniform civil code has not been implemented in our country for obvious reasons. Even if there implementations of Article 44 is to be considered, the following questions remain unanswered. Justice Sahai made an observation that Muslim majority country like Pakistan, morocco codifies with the personal laws and strictly prohibited polygamy. These countries did not face much problem in such codifications because these are Islamic countries.
However if we consider such a step to be taken in India, It would be seen an oppression of the minorities and might incite communalism. It may lead to widespread protest and agitations in the country just like recent anti-CAA protest. It is not easy to enforce such 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 reason which raciest the government from taking such bold step.
The apex court needs t be given credit for finding a way out to uphold provisions of different laws along with securing justice at the same e time. It was like a slap on the face of those who take undue advantages of loopholes in the law do selfish motive. The perusal of the ruling highlights the role which 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 emphasizes on the basic human rights of women while issuing guild lines about the making of the comprehensive legislation. All those show the consent of the endeavors of the judiciary to secure social justice by filling up lacunas in the law through dynamic and creative interpretation of the law.
A direction was also given to enact conversion of religion act which deal with the provisions of marriage, religion. However such legislation has not been enacted till date.
The case popularly known as Sarla Mudgal case is a landmark judgment in a history of family and matrimonial cases in India. It gave a constructive approach towards the concept of bigamy. They provide new dimension to the section 494 of IPC.
It is necessary to advance the interest if justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between two religious communities. The Uniform Civil Code is enacted for all citizens of the country, there will be always a loophole in the system because different faiths have different beliefs, and naturally due to the different beliefs and practices of communities, there will be conflict.