In any civilised society, marriage is the main foundation of a family. Once the partners unite in wedlock, the couple gets bound by different responsibilities, duties, liabilities, and obligations, both legal and customary. Marriage, as an institution, serves the public interest in multiple ways. It is indubitably the foundation of every family, which forms the society as a whole, and is a safeguard for traditional values. The present case contemplated landmark precedents that reflect the different aspects of laws intertwined together like personal laws, criminal law and constitutional law. The case observes the issue of bigamy [offence under s-494 of IPC] and if conversion into other religion to perform second marriage is permissible or not. The judgment in the kalyani & ors. case scrutinizes the exploitation of women under matrimonial bonds. The judgment inspects the need for uniform civil code in society.
Writ Petition 1079/89, 347 of 1990, 424 of 1992, 509 of 1992
Facts
The case involves four petitioners:-
- Petition 1 – Kalyani, leader of registered society, works for women and family in agony, was the first petitioner. Petitioner number 2 is Meena Mathur, wife of Jitendar Mathur, married in 1978. Meena Mathur came to know that her husband married Sunita Narula, alias Fatima. Both her husband and Fatima converted into Islam and adopted the Muslim religion. The marriage was solemnized after the conversion.
- Petition 2- Sunita alias Fatima claimed in this petition that in 1988, Jitendra took the undertaking while being influenced by Meena Mathur. The undertaking was about converting back to Hinduism and maintaining his kids and first wife Meena Mathur. The contention was that she, Fatima, continued being muslim and didn’t get maintenance or protection under either personal laws.
- Petition 3 – Geeta rani married Pradeep Kumar on November 13, 1988 following all the Hindu traditions. She tells the court that her husband embraced Islam after running away with Deepa. He solemnized his marriage with her.
- Petition 4- Sushmita Ghosh wedded to G.C Ghosh on May 10, 1984. On April 20, 1992, the husband expressed his will to discontinue the matrimonial bond. The husband informed Sushmita that he adopted Islam religion and will get married soon to Vinita Gupta.
Issues
The following issues were addressed to the Hon’ble Court in Kalyani & ors:
- Can a Hindu husband solemnize second marriage after converting into Islam religion?
- What would be the validity of such marriage if the first marriage is not dissolved and the first wife remains Hindu?
- Will apostate husband be guilty of bigamy?
Arguments
On petitioner’s side, both Meena Mathur (by kalyani) and Geeta Rani has some contentions that their husbands embraced Islam to assist the next marriage and circumventing provisions under S-494 of IPC. While Sunita put the grievance upfront in the court that she is not getting any maintenance by her husband Jitendar and has no safeguard provided to her under any laws. Sushmita Ghosh prayed to the court for restricting her husband from penetrating into the second marriage with Vinita Gupta. On respondent’s side Jitendar Mathur have argued that by embracing Islam, he can have four wives even though his first wife remains to be Hindu.
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Judgment
This judgment started with the doctrine of indissolubility in marriages and its procedure if available or not. As the traditional Hindu law in India does not recognize any effects of conversion on the dissolution of a Hindu marriage. The court further observed that India lacks a matrimonial law that has general application. A wedding solemnised under a special statue and according to other personal statues, it should not end merely because one of the parties adopted another religion.
The courts in kalyani & ors. referred to the following judgements:
- In Re: Ram Kumari case [1]– the court held that it was against the spirit of Hindu law to absolve a Hindu citizen of his duty related to the matrimonial relationship.
- In Nandi Zainab’s Case[2] – the court held that the wife conversion to Islam didn’t end the marriage. A marriage can only end through proper procedure.
The court further stated in kalyani case that when a marriage takes place under Hindu law, the parties gain, by the marriage itself, a status and certain liabilities under the Hindu marriage law and whether one of the parties is approved to marry, by implementing and applying a new personal rule, dissolving the marriage will be equal to the destruction of the other spouse’s current rights who continues to be Hindu.
The Supreme Court, on answering questions, rose regarding the validity of such marriages after conversion into other religions where the wife remains to be Hindu. In this context, the court escalated on interpreting ‘The Hindu Marriage Act 1955’. According to S-4 of the act specifies the applicability of the act to the Hindus, Buddhists, Jains and Sikhs and not on Muslims, Christians and Parsis. They are governed under their personal laws. The act has an overriding effect expressed-
- Any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made under this act.
- Any other law in force immediately before the commencement of this Act shall cease to have in effect so far as it is inconsistent with any of the provisions contained in this act.”[3]
The court interpreted S-13 of The Hindu Marriage Act 1955 in kalyani & ors. case and observed “a marriage solemnized, whether before or after the commencement of the act, can only be dissolved by a decree of divorce on any of the grounds. One of the grounds under is the other party has ceased to be a Hindu by conversion to another religion”.[4]
Further, the court observed in kalyani case that any marriage solemnized after the commencement of this act shall be null and void and may, on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any of the conditions specified in clause (i), (iv)and (v) of S-5.[5]
Additionally, it was observed that divorced persons 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 if there is such a right of appeal 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.[6]
The honourable judges, on the issue of bigamy, interpreted S-494 of IPC , observed “Marrying again during the lifetime of a 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 such husband or wife share be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine”.[7]
The term ‘void’ used in S-494 of IPC is seen in a broader context. If second marriage was solemnized before the dissolution of the old marriage the person will be charged under S-494 of IPC for the offence of bigamy and the marriage will be held void. The court on this issue stated – “A Hindu marriage solemnized 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 a second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage act. The second marriage by a conversion would therefore be in violation of the act and as such void in terms of S-494 of IPC, any act which is in violation of mandatory provisions of law is per-se void.”
Supreme Court concluded in kalyani & ors. case the 2nd marriage of a Hindu husband after converting himself into Islam religion, before dissolving his first marriage would be considered null and void. The 2nd marriage will become invalid under the provisions of S-494 under IPC and the converted husband would be found at fault under the offence of bigamy under S-494 of IPC.
Comments
On critically analyzing the whole kalyani& ors. case we can conclude that the court tried to remove the ambiguity of the laws, rights, and obligations around the subject of conversion to Islam for facilitating second marriage would be illegal. The court in this judgment held that a person couldn’t enter into another marriage after the conversion into Islam on the presumption that the conversion will automatically lead to the dissolution of last marriage. On doing so, the person will be charged under S-494 of IPC. Law commission after 14 years of this judgment incorporated the new laws and amendments in its 2009 report, “For a long time past, married men whose personal law does not allow bigamy have been resorting to the unhealthy and immoral practice of converting to Islam for the sake of contracting a second bigamous marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved”[8]. The judgment discourages such conversion into other religions that violate either provision of ‘The Hindu marriage act 1955’ or S-494 of IPC. Further, Justice Kuldeep Singh emphasised on the necessity of uniform civil code [hereinafter UCC] in India. As the absence of any general application of any common matrimonial laws can lead to more ambiguity in future. Justice Kuldeep requested the legislature to take this issue in accordance and take initiative to introduce the UCC system in legal structure. While supporting his opinion, Justice R.M Sahai gave a dissenting opinion on the need of UCC. He stated that the attractiveness of the UCC can hardly be challenged but only after the social environment is correctly designed by the society’s elite, statesmen and rulers who instead of prevailing what increases personal mileage, try to awaken the public to embrace the change.
The judge took account of the vulnerable conditions of the women who suffer the most during such cases. The court asserted the need of UCC to smoothen functionality of the matrimonial issues in Indian judiciary. Thus we can conclude that by strengthening the personal laws and its codification can reform the modern legal system.
References
[1]AIR 1891 CAL [246].
[2]ILR 1920 LAH [440].
[3]The Hindu Marriage Act,1955, s.4.
[4] The Hindu Marriage Act, 1955, s.13 [1][ii].
[5] The Hindu Marriage Act, 1955, s.11.
[6] The Hindu Marriage Act, 1955, s.15.
[7] The Indian Penal Code, 1860, s.494.
[8] Law Commission of India, “Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings”(2009).
BY PRERNA PATHAK | LLYOD LAW COLLEGE , NOIDA