Supreme Court of India
Petitioner
Lily Thomas, etc. etc
Respondent
Union of India & Ors.
Bench
R.P. Sethi, S.S Ahmad
Introduction
This case pertains to the complexities of bigamy and the conversion to Islam for the purpose of formalizing a second marriage. The case interrogates the legal legitimacy of bigamy and its ramifications on personal laws within the Indian legal framework.
Case Fact
Sushmita Ghosh filed the petition stating that she was married to Mr. MC Ghosh in accordance with Hindu rites since 1984. In 1992, Mr Ghosh solicited a divorce by mutual consent, proclaiming his conversion to Islam to facilitate his nuptials with Ms. Vinita Gupta, a divorcee with two children. Under the Hindu marriage Act of 1955, there was no provision for second marriage so he presented a certificate attesting to his conversion to Islam as a means to legitimize his subsequent marriage.
This case was originally presented as a writ petition and served as a review of the Sarla Mudgal versus Union of India. Case involves multiple articles of the Indian Constitution, particularly Article 20, 21, 25, and 26. The primary issue involved was the enforcement of Uniform Civil Code. However, the concern was that enforcing such uniformity could potentially violate citizen’s right to practice and propagate their religion, which are safeguarded by Article 25.
Petitioner’s claim
Sushmita Ghosh, the wife of Gc Ghosh (Mohd. Karim Ghazi), filed a writ petition in the Supreme Court, asserting that they were married to each other on 10th May 1984 according to Hindu Religion. GC Ghosh told that he converted to Islam only to facilitate a subsequent marriage with Ms. Vanita Gupta. It is contended that Sushmita Ghosh’s husband converted to Islam solely for the ulterior motive of re-marrying, lacking faith in Islam. He does not adhere to the prescribed Islamic rituals, and has not altered his name or religious affiliation in official documents, nor has he engaged in any practices characteristics of a devout Muslim.
Sushmita Ghosh contends that she has been subjected to discrimination on the basis of both religion and gender due to the actions of her husband. She claims that her rights, under Article 15(1) of the Indian Constitution have been violated. She argues that her discrimination stems from the provisions of the Muslim Personal Law (Shariat) Act of 1937, which she posits is in direct contravention of Article 13(1) and thus unconstitutional. In her petition, she asserts that her husband did not genuinely convert to Islam but merely pretended to do so in order to formalise a second marriage.
Counsel representing Smt. Sushmita Ghosh submitted documents, including a birth certificate issued by the Government of the Union Territory of Delhi for a son born to G.C. Ghosh from his second wife on May 27, 1993. This birth certificate explicitly lists G.C. Ghosh as the child’s father, identifying his religion as “Hindu”, while the mother, named “Vanita Ghosh”, as “Hindu”.
The counsel further submitted a photocopy of the visa application that G.C. Ghosh filed for entry into Bangladesh. This documents reveals that in the year 1995, Shri. G.C. Ghosh identified himself as “Gayan Chand Ghosh”, explicitly asserting his adherence to the Hindu faith. The marriage between G.C. Ghosh and Vanita Ghosh were solemnized on September 3, 1992. A certificate issued by Mufti Mohd. Tayyeb Qasmi denotes G.C. Ghosh “Mohd. Carim Gazi”, however, in spite his conversion, he signed the certificate as ”G.C. Ghosh”.
The bride is described as “Henna Begum”. Her brother serves as the witness delineated in the certificate, having affixed his signature in the English language. It becomes evident that the purported conversion to “Islam” was not an outcome of the exercise of one’s right freedom of conscience, but was solely purpose of second marriage. The petitioner contended that this practice infringed upon women’s right to life and liberty as guaranteed by Article 21 of the Indian Constitution.
Respondent’s claim
The respondents in the petitions provided a unified counter-argument, asserting that upon converting to Islam, they had the right to marry up to four wives, irrespective of the fact that their first wife was still Hindu. They contended that since the issues pertains to personal laws and the respondents faced accusations under various sections of the Indian Penal Code, there was no infringement of any fundamental rights.
The respondent also contended that many elements of Muslim personal laws remain uncodified, leading to conversion rules that are rooted in beliefs and traditions. They stated that two essential criteria must be fulfilled for an individual to convert to Islam: the person must possess sound mind and provide full consent for the conversion. Additionally, the respondents invoked Article 25 of the Indian Constitution, which guarantees the right to freedom of religion. They asserted that individuals have the explicit right to convert to another faith, thereby exercising their constitutional freedom of religion.
The respondent also asserted that, since respondent has converted himself to Islam, section11 of the Hindu Marriage Act, 1955 is not applicable. Polygamy is not allowed under Hindu laws, whereas Muslim laws permit a man to have as many as four wives. The Quran, clearly indicates that a Muslim man may marry up to four wives and must treat them all with equal love and respect. The respondent also contended that the enforcement of section 494 and 495 of the IPC necessitated declaring the marriage void according to Hindu laws. But according to Muslim law he is permitted to have multiple wives.
Judgement
The apex court in Lily Thomas vs Union of India clarified that a second marriage while a spouse is alive is invalid under section 11 of the Hindu Marriage Act, 1955. The court emphasized that a Hindu’s subsequent marriage during the first marriage is legally void. The court also clarified that Article 25 of the Indian Constitution guarantees individual religious freedom but should not infringe upon the rights of others. While Muslim law allows for second marriage, it requires equitable treatment of both spouses, highlighting the sanctity of marriage. Changing one’s religion solely to marry again is against the religious principles.
The court added that there is no violation of fundamental rights under Article 21 of the Indian Constitution which guarantees that “no one can be deprived of their right to life and their personal liberty” except according to the procedure established by law. The court noted that this issue is addressed under Section 494 of the IPC, which governs bigamy.
The court further added that second marriage without the dissolution of the first is void and inconsistent with the principles of justice and equality enshrined in the constitution.
