There are several instances where people convert their religion to take
advantage of one religion over the other. This article is concerned with those
cases where people renounced their religion to take the benefits from the
personal laws of other religions. Sarla Mudgal v. Union of India
is one of those
cases where one of the spouses converted to the Muslim religion to tie the knot
with another woman without dissolving their first marriage which was solemnized
under Hindu marriage laws.
Sarla Mudgal v/s Union Of India:
On one hand, Hindu marriages are governed by the Hindu Personal law which
applies to Hindus, Jain, Sikhs, and Buddhists. Hindu Personal laws are
secularized and modernized by the statutory enactment. On the other hand, Muslim
marriages are governed under the archaic provisions of Shariat law, 1937. Hindu
marriage laws allow monogamy whereas Muslim individuals are allowed to marry as
many as four women at a time.
- The fact of the case:
Petitions were filed in the Supreme Court of India under Article 32 of the
Indian Constitution. Sarla Mudgal is the president of an NGO named Kalyani which
aims to help women in distress. Meena Mathur, who was married to Jitender Mathur
in 1978 found that her husband Jitender Mathur married another woman named
Sunita Narula alias Fathima. Petitioner also learned that both Jitender Mathur
and Fathima were converted to Islam before solemnizing their marriage. Fathima
contended that the purpose of converting themselves to Islam and adopting the
Muslim religion is to marry each other and circumvent the provision of section
494 of the Indian Penal Code, 1860.
In another petition, Sunita Narula accused Jitender Mathur, who was influenced
by his Hindu wife Meena Mathur and her children. After marrying Sunita Narula,
Jitender Mathur converted back to Hinduism. Jitender Mathur agreed to maintain
his first Hindu wife and children born out of his first marriage. As a result,
Jitender Mathur refuses to maintain his second wife who continues to be Muslim
and has no protection under either of the personal law.
In another petition, petitioner Geeta Rani married respondent Pradeep Kumar
according to Hindu rites in 1988. The petitioner alleged that her husband
assaulted her and in one of the assaults her husband broke her jawbone.
Petitioner's Husband elopes with another woman named Deepa and married her after
adopting Islam. The Petitioner also stated that the objective of conversion to
Islam is to bypass the provision of section 494 of the Indian Penal Code, 1860.
- Arguments of the parties:
Marriage between petitioner and respondent solemnized according to the
particular personal law. Petitioners have contended that the second marriage of
their spouses is a violation of rights guaranteed under personal laws.
Respondents are solemnizing their marriages without dissolving their first
marriage. It would be tantamount to the violation of the rights of one of the
spouses who are reluctant to adopt another religion.
There are some cases where
spouses are coerced to convert their religion. Such actions violate the
fundamental right to freedom of religion guaranteed under article 25 of the
Indian Constitution. The aggrieved parties knock on the door of the guardian of
the constitution and ask to deliver justice to secure the rights of the
Respondents believe the provision of one particular personal law shall apply to
all personal laws. In other words, the provisions of Muslim personal law must
apply to Hindu personal law and other religious personal laws. Respondent
contended that according to Muslim personal law if either of the spouses does
not embrace the same religion that is Islam, a consequence has resulted in the
dissolution of the marriage.
The respondent argues that if one of the spouses
converts oneself from the Hindu religion to the Muslim faith, the other spouse
is duty-bound to convert to Islam to sustain their marriage. If the spouse
failed to convert her religious faith the apostate husband is eligible to marry
another woman without dissolving his first marriage and shall not be liable
under section 494 of the Indian Penal Code, 1860 for bigamy.
- The issue before the Supreme Court:
Religious conversion is the way out for people to tie the knot with another
woman without dissolving their prior marriage according to the procedure
established by law. Several issues were raised in the court regarding the
immoral act of deserting one's partner and taking undue advantage of the freedom
of religion in a secular state.
There are primarily three issues that need to be addressed in the first place.
Can a Hindu man solemnize his second marriage by converting himself to Islam
without dissolving his first marriage?
Is such a marriage a valid marriage without dissolving the first marriage under
Whether the apostate husband would be liable under section 494 of the Indian
Penal Code, 1860?
- Case laws:
There are case laws related to the offense of bigamy under section 494 of the
Indian Penal Code, 1860. In these cases, individuals by religious conversion
solemnize their second marriage without dissolving their first marriage.
In Budansa V. Fathima, 1914 IC 692, a Hindu Woman fraudulently married a Muslim man
after converting her faith to Islam. Madras High Court held that the conversion
of a Hindu woman to the Muslim faith did not ispo facto dissolve the marriage.
Madras High Court convicted the accused for the offense of adultery under
section 497 of the Indian Penal Code.
In the case of Nandi alias Zainab v. Crown, ILR 1920, the wife of the
complainant named Nandi changed her religion and converted to Mussalman. The
conversion was intended to circumvent the provision of the Indian Penal Code,
1860, and solemnize her second marriage. The court held that conversion from one
religion to another does not amount to the sipo facto dissolution of marriage. A
marriage can only cease to exist by the decree of the court. The convict was
penalized under section 494 of the Indian Penal Code, 1860.
In Andal Vaidyanathan V. Abdul Allam Vaida, 1946 Madras, the High Court observed
that the Special Marriage Act only contemplates monogamy. Whoever tied the knot
under the act cannot escape from the provision of the act by converting their
religion. When two individuals married under the act subsequently converted to
Muslim. The marriage can only be dissolved under the provisions of the Divorce
Act. The provisions of the Divorce Act also dissolve the marriage if one of the
spouses converted to Islam.
Hon'ble Justice M.C. Chagla elaborated on the legal position of the consequence
of converting one's religion. According to Muslim personal law, the conversion
of one of the spouses' religions resulted in the dissolution of the marriage
because the other spouse does not embrace the same religion. On the contrary,
the provisions of personal laws of other faiths, and conversions do not bring
the same results.
- Therefore, the cases should be judged according to justice and
rights and good conscience independently of any provision of law. The parties
are entitled to subsequent justice and judgment should be based on principles of
justice, equity, and good conscience. Hence, the provision of Muslim personal
law shall not apply to parties belonging to other religions or faith.
The Supreme Court of India is also known as the guardian of the Indian
Constitution. Since India's Independence, the Supreme Court of India has never
failed to protect the integrity and sovereignty of the constitution. The
doctrine of dissolubility of marriage under traditional Hindu marriage law does
not give any effect on the conversion of religion. The conversion of religion
and marrying another woman will not result in the dissolution of the previous
marriage solemnized under Hindu marriage law.
Marriage is the foundation of
civilized society. Once the relationship of marriage is formed, it binds the
parties to various obligations and liabilities. On one hand, monogamy is the law
for Hindus. On the other hand, Muslim law permits four wives for a Muslim male
in India according to the Shariat law of 1937. Hindu man embraces Islam to
solemnize his second marriage without dissolving his first marriage and escape
from the liabilities which were imposed upon him under section 494 of the Indian
Penal Code, 1860.
A marriage can be dissolved under the provision of the Divorce act. A marriage
can also be dissolved on the death of either of the spouses. According to Hindu
Marriage Act, a marriage cannot be dissolved except on the grounds of section 13
of the Hindu Marriage Act, 1954. The second marriage of an apostate husband
under Muslim law would be a marriage in violation of the provision of the act by
which he would be continuing his first marriage.
As a result, a second marriage
is illegal in the eyes of law. The second marriage of an apostate husband is
against natural justice. It is arbitrary to allow individuals to solemnize their
marriage without dissolving their prior marriage after conversion to Islam. It
is a clear way out to circumvent the provision of section 494 of the Indian
The Supreme Court of India emphasizes the enforcement and implementation of the
Uniform Civil Code in India to regulate matters related to marriage, divorce,
adoption, inheritance, custody of the child, and other matters related to
matrimonial disputes under a uniform law applicable to all religious communities
uniformly. The objective of the Uniform Civil Code is to govern all the
religious communities in India uniformly.
Offenses Relating To Marriage :
Section 494 of the Indian Penal Code, 1860 deals with offenses against valid
marriages in India. According to section 494 of the India Penal Code, 1860
whoever, once already married under a valid marriage contract with a living
person, shall not be eligible to solemnize another marriage with another person.
The essential ingredients for committing the offense relating to marriages under
section 494 of the Indian Penal Code, 1860 are as follows:
- The first marriage must be legal.
- The second marriage must be solemnized.
- The first marriage should not be dissolved as per the provision of law and still
exist in nature.
- The spouse from the first marriage must be alive.
- Both marriages must be valid.
Section 494 of the India Penal Code, 1860 does not extend to any person whose
marriage has been declared void by the court of competent jurisdiction. It is
not extended to the person who is contracted marriage with a man or a woman who
has been continuously absent from such person for more than seven years and
shall not be heard of such person being alive within that time.
It is a non-cognizable and bailable offense tried by the magistrate of the first
class. A person who is liable under section 494 of the Indian Penal Code, 1860
shall be punishable with imprisonment up to seven years or fine, or both.
Analysis Of The Judgment:
The Supreme Court of India in Sarla Mudgal V. Union of India
has rightly stated
that the apostate husband is not allowed to marry another woman without
dissolving his first marriage. The first marriage is solemnized under a
particular personal law, and solemnizing the second marriage without dissolving
the first marriage violates the rights of the partner who continues to believe
in the same religion and is reluctant to change one's religious faith.
also against natural justice because it allows a married person who wants to
desert his spouse to circumvent the provision of section 494 of the Indian Penal
Code. If one of the spouses embraces Islam and wants to marry another person
after converting their religious faith they need to dissolve their first
marriage according to the procedure established by law.
The Supreme Court of
India emphasizes the implementation of the Uniform Civil Code to deal with
matrimonial issues such as divorce, child adoption, marriage, custody of
children, and so on. Implementation of the Uniform Civil Code (UCC) regulates
all personal laws under the ambit of unified law. No one should be allowed to
convert one's religion and solemnize second marriage during the lifetime of his
or her first wife or husband.
Topics Related To Sarla Mudgal v/s Union Of India:
There are some topics related to Sarla Mudgal V. Union of India
that should be
discussed with the readers to have a better understanding of the case. The
topics mentioned under the heading "Topic related to Sarla Mudgal V. Union of
India" definition of marriage, acts passed by legislation regulating marriages,
adoption, inheritance, and other related issues among different communities
within the territory of India.
Marriage is a social and religious ceremony that creates legal obligations
between men and women. Marriage is a legally recognized union of a man and
woman as spouses in a consensual and contractual relationship recognized by law.
It establishes rights and obligations between men and women who became partners
for life under the institution which is recognized by law. A marriage is a legal
procedure to recognize a man and a woman as a single identity in society.
Marriage is a cultural phenomenon where two individuals solemnize a relationship
of uniting two families.
In India, marriages between men and women regulate primarily under Hindu
Marriage Act, Muslim Marriage Act, and Special Marriage Act. Hindu Marriages
synchronize under Hindu Marriage Act, 1955. Muslim marriages manage under the
Muslim Marriage Act, 1954 which deals with marriages, succession, inheritance,
and charities among Muslims. The special Marriage Act, 1954 is central
legislation to validate and register inter-religious and inter-caste marriages
Hindu Marriage Act, 1955:
Hindu Marriage Act, 1955 applies to any person who is Hindu by religion. It
also applies to any Buddhist, Jain, or Sikh person by religion. It solemnizes
marriages of the individuals domiciled in the territories of the country,
individuals who are not Muslim, Christian, Parsi, or Jews by religion. Hindu
Marriage Act, 1955 deals with Hindu marriages, divorce, judicial separation,
restitution of conjugal rights, void and voidable marriages, punishment for
having more than one marriage, and other related provisions.
Hindu Marriage Act, 1955 allows monogamy between Hindus. A marriage may be
solemnized between any two Hindus by satisfying a few conditions which were laid
down in the Hindu Marriage Act, 1955.
These conditions are as follows:
Muslim Marriage Act, 1955:
- Neither of the party has a spouse living at the time of marriage
- Both parties must be of sound mind and capable of giving valid consent to the
- The female completed at the age of 21 and the male completed at the age of 18.
- The parties are not engaged within the degrees of prohibited relationship.
- The parties are not "Sapindus" of each other.
Muslim Marriage Act was drafted and implemented into the Indian Legal System
in the year 1955. It regulates Muslim marriages among the Muslim community in
India. A formal binding contract is considered an integrated part of a religious
valid Muslim marriage. The bidding contract determines the rights and
responsibilities of the bride and groom.
Both bride and groom must give consent
to the marriage of their free will without any undue influence or coercion or
threat on either of the parties. Both parties must belong to and profess the
Muslim faith or religion to solemnize a marriage under Muslim Marriage Act.
person who belongs to the Muslim community is capable of contracting marriage at
the minimum age of 16 years. A male who is less than twenty-one years of age and
a female who is less than eighteen years of age are eligible to contract
marriage under Muslim Marriage Act. Such marriages are registered in the
presence of the father, mother, or guardian of the Individuals.
Special Marriage Act, 1954:
The Special Marriage Act of 1954 allows two individuals to solemnize their
marriage through a civil contract without any religious formalities.
Section 5 of the Special Marriage Act, 1954 instructs the parties willing to
marry each other to give notice of their marriage to the marriage officer in an
area where one of the spouses has to live for the last 30 days. Then the
marriage officer is required to publish the notice of marriage to interrogate
whether anyone has objections to the intended marriage.
Under section 6 of the
Special Marriage Act, 1954, the marriage can be rejected if the objections
against the marriage are filed within 30 days of publishing the marriage notice
and objections against the marriage are sustained by the marriage officer.
Sections 5 and 6 of the Special Marriage Act, 1954 criticized the grounds of the
right to privacy integrated with the right to life under article 21 of the
Indian Constitution. It violates the fundamental rights of liberty and privacy
along with the right to freedom to choose their life partners by inviting
objections to the intended marriage between two major individuals.
A matrimonial relationship establishes between a man and a woman after getting
married under the legally recognized marriage procedure. A man or a woman having
more than one spouse is a violation of the rights of another spouse who is
deserted by his or her spouse by tying the knot with another person.
The practice of marrying or the state of being married to a single person
The criminal offense is prohibited under section 494 of the Indian Penal Code,
1860. It is the practice of marrying someone while already married to another
When a man is married to more than one wife or a woman is married to more than
one husband at a time.
Uniform Civil Code (UCC):
Article 44 of the Indian Constitution requires the State to strive Uniform Civil
Code to secure its citizen throughout the country. Uniform Civil Code aims
to replace personal laws based on the customs and beliefs of major religious
communities in India with common rules governing every citizen in the subject
related to marriage, divorce, custody of a child, adoption, and inheritance.
Uniform Civil Code promotes the elimination of discrimination among people in
terms of different religions and different sexes in Indian Society. Uniform
Civil Code promotes women with equal rights and access to justice in the court
It establishes a secular society integrated with the simplification of
laws. It promotes national integrity, solidarity, and sovereignty. It ensures
gender justice between men and women in patriarchal domination. It supports
women to liberate them from a patriarchal society and ensures equality and
liberty for women.
The implementation of the Uniform Civil Code is no piece of cake for the
legislation. It is subjected to constitutional challenges such as conflicting
with fundamental rights and maintaining public order, health, and morality. The
Uniform Civil code is subjected to social-political challenges where cultural
diversity and Patriarchal mindset are major setbacks in the enforcement of
Uniform Civil laws.
We are in the twenty-first century and 2023 is just around the corner but still,
there is no clue about the implementation of the Uniform Civil Code in India. We
keep emphasizing o the implementation of the Uniform Civil Code but failed to
address practical complications arising from such enforcement. The situation
demands cooperation among the executive, legislative, and judiciary to overcome
the complication and implement uniform laws to regulate legal matters related to
matrimonial, inheritance, and adoptions among different religious communities.
Frequently Asked Questions (FAQs):
- Is Uniform Civil Code a Fundamental Right?
Answer: NO. Uniform Civil Code is described under article 44 of the Indian
Constitution. It is a Directive Principle of State Policy (DPSP)
- Does a Muslim individual marry a Hindu individual?
Answer: Yes, they can marry under the Special Marriage Act, 1954
- Polygamy allowed in Muslim Marriage Act, 1955. Comment on the
Answer: Polygamy is not allowed under Muslim Marriage Act. Muslim Marriages are
regulated under Shariat law, 1937 permits Muslim individuals to marry as many as
four women at a time.
- Is valid consent an essential ingredient in the Muslim Marriage Act,
1955, and Special Marriage Act, 1954?
Answer: Yes, valid consent backed by an informed decision is one of the
essential conditions for marriage under the Muslim Marriage Act, 1955, and the
Special Marriage Act, 1954.
- Sarla Mudgal v/s Union of India AIR 1995 SC 1531
- An offense relating to marriages, Indian Penal Code, 1860
- Section 494 of the Indian Penal Code, 1960, Law Tendo, updated on 23
June 2022, Marrying Again During Lifetime of Husband or Wife - Section 494 |
Indian Kanoon (lawtendo.com)
- Exception in Section 494 of the Indian Penal Code, 1860, Indian Kanoon,
updated on 23 June 2022, Section 494 in The Indian Penal Code (indiankanoon.org)
- Definition of marriage, Oxford dictionary of law, 9th edition edited by
- Definition of marriage, Britannica, updated on 23 June 2022, marriage |
Definition, History, Types, Customs, Laws, & Facts | Britannica
- Hindu Marriage Act, 1955, A CT N O. 25 OF 1995 1[18th May 1995], 4.pdf (highcourtchd.gov.in)
- Muslim Marriage Act, 1954, India fillings, updated on 23 June
2022, Muslim Marriage Act - Applicability & Procedures - IndiaFilings
- Uniform Civil Code, Article 44 of the Indian Constitution, Constitution
- Uniform Civil Code, Drishti IAS, updated on 23 June 2022, Uniform Civil