FINAL DRAFT – BASICS OF CASE LAW

DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

STUDY OF BASICS OF CASE LAW

(FINAL DRAFT)

Topic
Case Briefing of “Sarla Mudgal, & Others vs Union Of
India (AIR 1995 SC 1531)”

SUBMITTED BY: UNDER THE GUIDANCE OF:

Gaurav Bhadkariya MR. ABDULLAH NASIR

ROLL NO: 53 ASSITANT PROFESSOR (LAW)
SECTION ‘A’ DR. RAM MANOHAR LOHIYA
B.A. LLB (Hons.), SEMESTER I NATIONAL LAW UNIVERSITY
 FINAL DRAFT – BASICS OF CASE LAW

TABLE OF CONTENTS

ACKNOWLEDGMENT………………………………………………………3

TENTATIVE CHAPTERISATION

• INTRODUCTION………………………………………………………4
• HEADING / CITATION………………………………………………..5
• NAME OF THE JUDGES………………………………………………5
• COUNSELS……………………………………………………………..5
• FACTS…………………………………………………………………..6
• ISSUES………………………………………………………………….7
• JUDGEMENT…………………………………………………………..8
• HOLDING………………………………………………………………8
• ANALYSIS……………………………………………………………..9
• CONCLUSION…………………………………………………………14

BIBLIOGRAPHY……………………………………………………………...15
 FINAL DRAFT – BASICS OF CASE LAW

ACKNOWLEDGEMENT

This draft would not have been possible without the kind support and help of many individuals.
I would like to extend my sincere thanks to all of them. I am highly indebted to Mr. Abdullah
Nasir for his guidance and constant supervision. I am grateful to my parents for their kind co-
operation and encouragement. Also, I am grateful to my colleagues who helped me out in its
development and all the other people who have willingly helped me out with their abilities.

Yours sincerely,

Gaurav Bhadkariya
 FINAL DRAFT – BASICS OF CASE LAW

INTRODUCTION

This paper concerns itself with the case law Sarla Mudgal v. Union of India, AIR 1995 SC
1531. It is a review of the above-mentioned case. The case holds extreme importance as it laid
down principles against the practice of solemnizing second marriage by conversion to Islam,
with first marriage not being dissolved, followed by Hindu husbands. This paper briefly states
the facts of the case, issues raised in the case and discusses relevant laws applied in the case,
decisions and analysis of the judgment followed by a conclusion. Several case laws which are
related to the present case have been referred to and only relevant parts of the judgments have
been taken into consideration.
 FINAL DRAFT – BASICS OF CASE LAW

HEADING/CITATION

Name of the case : Sarla Mudgal,& Others vs Union Of India

Citation : AIR 1995 SC 1531
Court’s name : Supreme Court
Page number : 1531
Date of Judgment : 11.01.1952

NAME OF THE JUDGES

➢ Justice Kuldip Singh

➢ Justice R.M.Sahai

COUNSELS

• Appellants : Sarla Mudgal ,President ,Kalyani And Others

• Respondent : Union OF India And Others
 FINAL DRAFT – BASICS OF CASE LAW

FACTS

• The present case has 4 petitioners. It is a writ petition under Article 32 of the Indian

Constitution. Petitioner 1 is the President of “KALYANI” – a registered society –

which is an organisation working for the welfare of needy-families and women in

distress. Petitioner 2, Meena Mathur was married t Jitender Mathur in 1978. In 1988

she shocked to learn that her husband had solemnized second marriage with one

Sunita Narula alias Fathima. The marriage was solemnised after they converted

themselves to Islam and adopted Muslim religion. According to the petitioner,

conversion of her husband to Islam was only for the purpose of marrying Sunita and

circumventing the provisions of Section 494, IPC. Jitender Mathur asserts that having

embraced Islam, he can have four wives irrespective of the fact that his first wife

continues to be Hindu.

• Sunita alias Fathima is another petitioner of 1990. She contends that she along with

Jitender Mathur who was earlier married to Meena Mathur embraced Islam and

thereafter got married. A son was born to her. She further states that after marrying

her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking

on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain

his first wife and three children. Her grievance is that she continues to be Muslim, not

being maintained by her husband and has no protection under either of the personal

laws.
 FINAL DRAFT – BASICS OF CASE LAW

• Geeta Rani, was married to Pradeep Kumar in 1988. In 1991, the petitioner learnt that

Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It

is stated that conversion to Islam was only for the purpose of facilitating the second

marriage.

• Sushmita Ghosh was married to G.C. Ghosh in 1984. In 1992 The husband finally told

the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He

had obtained a certificate dated from the Qazi indicating that he had embraced Islam.

In the writ petition, the petitioner has further prayed that her husband be restrained

from entering into second marriage with Vinita Gupta.

ISSUES

1. Does India need a Uniform Civil Code for all its citizens?
2. Whether a Hindu husband, married under Hindu law, by embracing Islam, can
solemnize second marriage?
3. Whether such a marriage without having the first marriage dissolved under law, would
be a valid marriage where the first wife who continues to be Hindu?
4. Whether the apostate husband would be guilty of the offence under Section 494 of the
Indian Penal Code (IPC)?
 FINAL DRAFT – BASICS OF CASE LAW

JUDGEMENT

The Supreme Court held that the second marriage of a Hindu- husband after conversion to
Islam, without having his first marriage dissolved under law, would be invalid. The second
marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband
would be guilty of the offence under Section 494 IPC. No costs were awarded.

HOLDING

The Court remarked the interpretation we have given to Section 494 IPC would advance the
interest of justice. 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 the
interpretation, we have given to Section 494 IPC, 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.
 FINAL DRAFT – BASICS OF CASE LAW

ANALYSIS

The Constitution of India provides for a uniform civil code for its citizens under Article 44 in
Directive Principles. It is a goal to be achieved. In the present case, the court took steps to
resolve the “inter-personal conflict of law, which is a byproduct of lack of a “Uniform Civil
Code” (UCC). 1
"The State shall endeavor to secure for the citizens a uniform civil code throughout the territory
of India". Justice Kuldip Singh, in the present case, is of the view that there is no reason for
delay of Uniform Civil Code so that all the citizens of India can be governed uniformly. Pandit
Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a
uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment
the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter,
the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is
lying since 1949. The Governments - which have come and gone - have so far failed to make
any effort towards "unified personal law for all Indians".2 The reasons are too obvious to be
stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu
Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship
Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the
traditional Hindu law based on different schools of thought and scriptural laws into one unified
code. When more than 80% of the citizens have already been brought under the codified
personal law there is no justification whatsoever to keep in abeyance, any more, the
introduction of "uniform civil code" for all citizens in the territory of India. 3
Until the Government prescribes and sets a uniform civil code for the whole country, a Hindu
husband, who wants to enter into a second marriage while the first marriage still continues, can
be allured to convert into Islam as it provides room for bigamy and a Muslim can keep four
wives at a time. But since Hindu law only permits monogamy, Hindu husband embraces Islam
to circumvent the provisions of the Hindu law and to escape from penal consequences.

1
Praveen Dalal, Insight of Sarla Mudgal, (6/7/05) http://india.indymedia.org/en/2005/06/210648.shtml.
2
Sarla Mudgal v. UOI, AIR 1995 SC 1531.
3
Id.
 FINAL DRAFT – BASICS OF CASE LAW

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognize
that conversion would have the effect of dissolving a Hindu marriage. Marriage will not be
dissolved by converting to another religion by one or both spouses. 4 In the case Re Ram
Kumari5, where a Hindu wife converted to Islam to marry a Muslim was charged with bigamy
under Section 494 of IPC. It was held that there was no authority under Hindu law for the
proposition that an apostate is absolved from all civil obligations and that so far as the
matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law.
In Nandi alias Zainab v. The Crown6 Nandi, the wife of the complainant, changed her religion
and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was
charged with an offence under Section 494 of the Indian Penal Code. It was held that the mere
fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by
a decree of court.
In India, there have never been matrimonial laws which have uniform application. A marriage
takes place under one personal law and cannot be dissolved due to another personal law just
because of the conversion of the parties.
In Sayeda Khatoon’s case7 Muslim laws were not favored over Jews laws. They were both
declared equal. A marriage solemnized according to one personal law can be dissolved
according to another personal law simply because one of the two parties has changed his or her
religion.
In Andal Vaidyanathan vs. Abdul Allam Vaidya8, a Division Bench of the High Court dealing
with a marriage under the Special Marriage Act 1872 held that “the Special Marriage Act
clearly only contemplates monogamy and a person married under the Act cannot escape from
its provisions by merely changing his religion. Such a person commits bigamy if he marries
again during the lifetime of his spouse, and it matters not what religion he professes at the time
of the second marriage. Section 17 provides the only means for the dissolution of a marriage
or a declaration of its nullity. Consequently, where two persons married under the Act
subsequently become converted to Islam, the marriage can only be dissolved under the
provisions of the Divorce Act and the same would apply even if only one of them becomes
converted to Islam. Such a marriage is not a marriage in the Mahomedan sense which can be

4 Supra note 13.

5
(1891) ILR 18 Cal 264.
6
ILR 1920 Lahore 440.
7
49 CWN 745.
8 (1946) 1 MLJ 402.
 FINAL DRAFT – BASICS OF CASE LAW

dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in

accordance with the Statute.”9
The repetitive statements and decisions have made it clear now that a marriage that has taken
place in under one personal law cannot be dissolved even if one spouse has converted to another
religion and the other refuses to do so. When a marriage takes place under Hindu personal law,
some rights and duties are created by way of it and the parties acquire certain status under the
laws governing the Hindu Marriage. If one spouse tries to end the marriage by converting to
another religion without dissolving the marriage then it will amount to destruction of the rights
and status of the other spouse who is still a Hindu. It is, therefore, maintained that hold that
under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage
continued to subsist even after one of the spouses converted to Islam. There was no automatic
dissolution of the marriage. The position has not changed after coming into force of the Hindu
Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to
Hindus by religion in any of its forms or developments. It also applied to Buddhists, Jains and
Sikhs. It has no application to Muslims, Christians and Parsees.
One of the main principles of Hindu law is monogamy which it strictly adheres to. A marriage
cannot be dissolved except under the provisions laid down in Section 13 of Hindu Marriage
Act. In that situation, parties who have married under the Act remain married even when the
husband converts to Islam for the purpose of other marriage. A second marriage by an apostate
under the shelter of conversion to Islam would nevertheless be a marriage in violation of the
provisions of the Act by which he would be continuing to be governed so far as his first
marriage under the Act is concerned despite his conversion to Islam. The second marriage of
an apostate would, therefore, be illegal marriage as his wife who married him under the Act
and continues to be a Hindu. Between the apostate and his Hindu wife the second marriage is
in violation of the provisions of the Act and as such would be under Section 494 of Indian
Penal Code:
Marrying again during lifetime of 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, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine. 10

The primary components of the section are:

9 Supra note 19.

10 Indian Penal Code, 1860, Section 494.
 FINAL DRAFT – BASICS OF CASE LAW

1. Having a husband or a wife living;

2. Marries in any case;
3. In which such marriage is void;
4. By reason of its taking place during the life of such husband or wife.11

The expression "void" under Section 494, IPC has been used in the wider sense. A marriage
which is in violation of any provisions of law would be void in terms of the expression used
under Section 494, IPC. 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 second marriage. The real reason for the voidness of
the second marriage is the subsisting of the first marriage which is not dissolved even by the
conversion of the husband.12

Also, the second marriage of an apostate-husband would be in violation of the rules of natural
justice. It is opposed to the principles of justice, equity and good conscience. Even if the spouse
converts to Islam, he has no right to solemnize the second marriage unless his first marriage
dissolves and, thus, be in violation of the rules of natural justice and as such would be void.13

All the four aspects of Section 494 IPC are satisfied in the case of a Hindu husband who marries
for the second time after conversion to Islam with his first wife living. The said marriage is
void by reason of its taking place during the life of the first wife. Therefore, the second marriage
of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

Justice R.M. Sahai J was of the view that, “The pattern of debate, even today, is the same as
was voiced forcefully by the members of the minority community in the Constituent Assembly.
If, 'the non implementation of the provisions contained in Article 44 amounts to grave failure
of Indian democracy' represents one side of the picture, then the other side claims that, 'logical
probability appears to be that the code would cause dissatisfaction and disintegration than serve
as a common umbrella to promote homogeneity and national solidarity'.” 14

11 Supra note 13.

12 Id.
13AR Lakshmanan, Preventing Bigamy via Conversion to Islam, (August, 2009, last visited on Aug. 23, 2012)

http://lawcommissionofindia.nic.in/reports/report227.pdf.
14 Supra note 13.
 FINAL DRAFT – BASICS OF CASE LAW

He gave a concurring judgment, along the line of Justice Kuldeep Singh. “The problem with
which these appeals are concerned is that many Hindus have changed their religion and have
become convert to Islam only for purposes of escaping the consequences of bigamy. For
instance, Jitender Mathur was married to Meena Mathur. He and another Hindu girl embraced
Islam. Obviously because Muslim Law permits more than one wife and to the extent of four.
But no religion permits deliberate distortions. Much misapprehension prevails about bigamy
in Islam. To practice of polygamy has been either totally prohibited or severely restricted.
(Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some
of the Muslim countries to be remembered in this context). But ours is a Secular Democratic
Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the
social fibre. 'But religious practices, violative of human rights and dignity and sacerdotal
suffocation of essentially civil and material freedoms, are not autonomy but oppression'.
Therefore, a unified code is imperative both for protection of the oppressed and promotion of
national unity and solidarity. But the first step should be to rationalise the personal law of the
minorities to develop religious and cultural amity. The Government would be well advised to
entrust the responsibility to the Law Commission which may in consultation with Minorities
Commission examine the matter and bring about the comprehensive legislation in keeping with
modern day concept of human rights for women.”15

15 Id.
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CONCLUSION

“Marriage is the very foundation of the civilized society. The relation once formed, the law
steps in and binds the parties to various obligations and liabilities there under. Marriage is an
institution in the maintenance of which the public at large is deeply interested. It is the
foundation of the family and in turn of the society without which no civilization can exist.”

The personal laws should not be allowed to be manipulated and exploited for worldly gains
and carnal pleasures. Thus, if a person wishes to enter second marriage, after converting to
another personal law and without dissolving his/her first marriage, such second marriage must
be held to be valid only if his/ her original personal law allows such second marriage. For
instance, if a Hindu enters into a second marriage after converting to Islam, but without
dissolving his first marriage, the he should be held liable for bigamy because his original
personal law does not allow polygamy. Similarly, if a married Muslim converts to Hindu
religion, without dissolving his first marriage, and enters into a second marriage he should not
be held liable for bigamy because his original personal law allows polygamy, though capacity
to do justice between co-wives is the condition precedent. 16

The Supreme Court has reiterated that the second marriage of a Hindu man after conversion to
Islam without having his first marriage dissolved under the law would be invalid.

“The second marriage would be void in terms of the provisions of Section 494 of the Indian
Penal Code (IPC) and the apostate husband would be guilty of the offence of bigamy under
section 494 IPC”, the court added. This decision of the court in Sarla Mudgal case was upheld
in Lily Thomas v. Union of India17.

16 Gauri Kulkarni, Hindu Men Can’t Hide Behind Islam For Bigamy, (January 23, 2006, last visited on August
23, 2012), http://www.islamawareness.net/Polygamy/poly_nm_news0005.html.
17 2000 (2) ALD Cri 686.
 FINAL DRAFT – BASICS OF CASE LAW

BIBLIOGRAPHY

STATUTES
• Constitution of India.
• Hindu Marriage Act, 1955.
• Indian Penal Code, 1860.

CASES
• Andal Vaidyanathan vs. Abdul Allam Vaidya, ILR 1920 Lahore 440.
• Nandi alias Zainab v. The Crown, (1946) 1 MLJ 402.
• Re Ram Kumari, (1891) ILR 18 Cal 264.
• Sayeda Khatoon v. M. Obadiah, 49 CWN 745.

REPORTS
• The Law Commission Of India, Report No. 227.

ONLINE SOURCES
• AR Lakshmanan, Preventing Bigamy via Conversion to Islam, (August, 2009, last
visited on Aug. 23, 2012) http:// lawcommissionofindia.nic.in/reports/ report227.pdf.
• Gauri Kulkarni, Hindu Men Can’t Hide Behind Islam For Bigamy, (January 23, 2006,
last visited on August 23, 2012), http:// www.islamawareness.net/
Polygamy/poly_nm_news0005.html.
• Praveen Dalal, Insight of Sarla Mudgal, (August 06, 2005), http:// india. indymedia.
Org /en /2005/06/210648.shtml.