Lily Thomas v. Union of India, 2000 Case Analysis

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Lily Thomas v. Union of India
AIR 2000 SC 1650 : (2000) 6 SCC 224
S. SAGHIR AHMAD, J. – I respectfully agree with the views expressed by my esteemed
brother, Sethi, J., in the erudite judgment prepared by him, by which the writ petitions and the
review petition are being disposed of finally. I, however, wish to add a few words of my own.

2. Smt Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed a
   writ petition [Writ Petition (C) No. 509 of 1992] in this Court stating that she was married to
   Shri G.C. Ghosh in accordance with Hindu rites on 10-5-1984 and since then both of them were
   happily living at Delhi. The following paragraphs of the writ petition, which arerelevant for
   this case, are quoted below:
3. That around 1-4-1992, Respondent 3 told the petitioner that she should in her
   own interest agree to a divorce by mutual consent as he had anyway taken to Islam so
   that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta,
   resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the second week
   of July 1992. Respondent 3 also showed a certificate issued by the office of the
   Maulana Qari Mohammad Idris, Shahi Qazi dated 17-6-1992 certifying that
   Respondent 3 had embraced Islam. True copy of the certificate is annexed to the
   present petition and marked as Annexure II.
4. That the petitioner contacted her father and aunt and told them about her
   husband’s conversion and intention to remarry. They all tried to convince Respondent
   3 and talk him out of the marriage but to no avail and he insisted that Sushmita must
   agree to a divorce otherwise she will have to put up with the second wife.
5. That it may be stated that Respondent 3 has converted to Islam solely for the
   purpose of remarrying and has no real faith in Islam. He does not practise the Muslim
   rites as prescribed nor has he changed his name or religion and other official
   documents.
6. That the petitioner asserts her fundamental rights guaranteed by Article 15(1) not
   to be discriminated against on the ground of religion and sex alone. She avers thatshe
   has been discriminated against by that part of the Muslim personal law which is
   enforced by the State action by virtue of the Muslim Personal Law (Shariat) Act, 1937.
   It is submitted that such action is contrary to Article 15(1) and is unconstitutional.
7. That the truth of the matter is that Respondent 3 has adopted the Muslim religion
   and become a convert to that religion for the sole purpose of having a secondwife which
   is forbidden strictly under the Hindu law. It need hardly be said that the said conversion
   was not a matter of Respondent 3 having faith in the Muslim religion.
8. The petitioner is undergoing great mental trauma. She is 34 years of age and is
   not employed anywhere.
9. That in the past several years, it has become very common amongst the Hindu
   males who cannot get a divorce from their first wife, they convert to Muslim religion
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   solely for the purpose of marriage. This practice is invariably adopted by those erring
   husbands who embrace Islam for the purpose of second marriage but again become
   reconverts so as to retain their rights in the properties etc. and continue their service
   and all other business in their old name and religion.
10. That a woman’s organisation ‘Kalyani’ terribly perturbed over this growing
    menace and increase in a number of desertions of the lawfully married wives under the
    Hindu law and splitting up and ruining of the families even where there are children
    and when no grounds of obtaining a divorce successfully on any of the grounds
    enumerated in Section 13 of the Hindu Marriage Act are available, to resort to
    conversion as a method to get rid of such lawful marriages, has filed a petition in this
    Hon’ble Court being Civil Writ Petition No. 1079 of 1989 in which this Hon’ble Court
    has been pleased to admit the same. True copy of the order dated 23-4-1990 and the
    order admitting the petition is annexed to the present petition and marked as Annexure
    III (collectively).”
11. She ultimately prayed for the following reliefs:
    (a) by an appropriate writ, order or direction, declare polygamous marriages by
    Hindus and non-Hindus after conversion to Islam religion as illegal and void;
    (b) issue appropriate directions to Respondents 1 and 2 to carry out suitable
    amendments in the Hindu Marriage Act so as to curtail and forbid the practice of
    polygamy;
    (c) issue appropriate direction to declare that where a non-Muslim male gets
    converted to the ‘Muslim’ faith without any real change of belief and merely with a
    view to avoid an earlier marriage or enter into a second marriage, any marriage entered
    into by him after conversion would be void;
    (d) issue appropriate direction to Respondent 3 restraining him from entering into
    any marriage with Miss Vanita Gupta or any other woman during the subsistence of
    his marriage with the petitioner; and
    (e) pass such other and further order or orders as this Hon’ble Court may deem fit
    and proper in the facts and circumstances of the case.
12. This petition was filed during the summer vacation in 1992. Mr Justice M.N.
    Venkatachaliah (as he then was), sitting as Vacation Judge, passed the following order on 9- 7-
    1992:
    The writ petition is taken on board.
    Heard Mr Mahajan, learned Senior Counsel for the petitioner. Issue notice.
    Learned counsel says that the respondent who was a Hindu by religion and who has
    been duly and legally married to the petitioner purports to have changed his religion
    and embraced Islam and that he has done only with a view to take another wife, which
    would otherwise be an illegal bigamy. Petitioner prays that there should be interdiction
    of the proposed second marriage which is scheduled to take place tomorrow, i.e. 10th
    July, 1992. It is urged that the respondent, whose marriage with the petitioner is legal
    and subsisting cannot take advantage of the feigned conversion so as to be able to take
    a second wife.
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    All that needs to be said at this stage is that if during the pendency of this writ
    petition, the respondent proceeds to contract a second marriage and if it is ultimately
    held that respondent did not have the legal capacity for the second marriage, the
    purported marriage would be void.
13. Thus, in view of the pleadings in Sushmita Ghosh case and in view of the order passed
    by this Court in the writ petitions filed separately by Smt Sarla Mudgal and Ms Lily Thomas,
    the principal question which was required to be answered by this Court was that where a nonMuslim gets converted to the “Muslim” faith without any real change of belief and merely with
    a view to avoid an earlier marriage or to enter into a second marriage, whether the marriage
    entered into by him after conversion would be void.
14. Smt Sushmita Ghosh, in her writ petition, had clearly spelt out that her husband, Shri
    G.C. Ghosh, had not really converted to the “Muslim” faith, but had only feigned conversion
    to solemnise a second marriage. She also stated that though freedom of religion is a matter of
    faith, the said freedom cannot be used as a garb for evading other laws where the spouse
    becomes a convert to “Islam” for the purpose of avoiding the first marriage. She pleaded in
    clear terms that it may be stated that respondent 3 has converted to islam solely for the purpose
    of remarrying and has no real faith in islam. he does not practise the muslim rites as prescribed
    nor has he changed his name or religion and other official documents.
15. She further stated that the truth of the matter is that Respondent 3 has adopted the
    “Muslim” religion and become a convert to that religion for the sole purpose of having a second
    wife, which is forbidden strictly under the Hindu law. It need hardly be said that the said
    conversion was not a matter of Respondent 3 having faith in the Muslim religion.
16. This statement of fact was supported by the further statement made by her in para 15
    of the writ petition in which she stated that her husband, Shri G.C. Ghosh, told her that he had
    taken to “Islam” “so that he may remarry and in fact he had already fixed to marry one Miss
    Vanita Gupta, resident of D-152, Preet Vihar, Delhi, a divorcee with two children in the second
    week of July 1992”.
17. At the time of hearing of these petitions, counsel appearing for Smt Sushmita Ghosh
    filed certain additional documents, namely, the birth certificate issued by the Government of
    the Union Territory of Delhi in respect of a son born to Shri G.C. Ghosh from the second
    wife on 27-5-1993. In the birth certificate, the name of the child’s father is mentioned as “G.C.
    Ghosh” and his religion is indicated as “Hindu”. The mother’s name is described as “Vanita
    Ghosh” and her religion is also described as “Hindu”. In 1994, Smt Sushmita Ghosh obtained
    the copies of the relevant entries in the electoral list of Polling Station 71 of Assembly
    Constituency 44 (Shahdara), in which the name of Shri G.C. Ghosh appeared at Sl.No. 182
    while the names of his father and mother appeared at Sl. Nos. 183 and 184 respectively and the
    name of his wife at Sl. No. 185.
18. In 1995, Shri G.C. Ghosh had also applied for Bangladeshi visa. A photostat copy of
    that application has also been filed in this Court. It indicates that in the year 1995 Shri G.C.
    Ghosh described himself as “Gyan Chand Ghosh” and the religion which he professed to follow
    was described as “Hindu”. The marriage of Shri G.C. Ghosh with Vanita Gupta had taken place
    on 3-9-1992. The certificate issued by Mufti Mohd. Tayyeb Qasmi described the
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    husband as “Mohd. Karim Ghazi”, s/o Biswanath Ghosh, 7 Bank Enclave, Delhi. But, in spite
    of his having become “Mohd. Karim Ghazi”, he signed the certificate as “G.C. Ghosh”. The
    bride is described as “Henna Begum”, D-152, Preet Vihar, Delhi. Her brother, Kapil Gupta, is
    the witness mentioned in the certificate and Kapil Gupta has signed the certificate in English.
19. From the additional documents referred to above, it would be seen that though the
    marriage took place on 3-9-1992, Shri G.C. Ghosh continued to profess “Hindu” religion as
    described in the birth certificate of his child born out of the second wedlock and also in the
    application for Bangladeshi visa. In the birth certificate as also in the application for
    Bangladeshi visa, he described himself as “G.C. Ghosh” and his wife as “Vanita Ghosh” and
    both were said to profess “Hindu” religion. In the electoral roll also, he has been described as
    “Gyan Chand Ghosh” and the wife has been described as “Vanita Ghosh”.
20. It, therefore, appears that conversion to “Islam” was not the result of exercise of the
    right to freedom of conscience, but was feigned, subject to what is ultimately held by the trial
    court where G.C. Ghosh is facing criminal trial, to get rid of his first wife, Smt Sushmita Ghosh
    and to marry a second time. In order to avoid the clutches of Section 17 of the Act, if aperson
    renounces his “Hindu” religion and converts to another religion and marries a second time,
    what would be the effect on his criminal liability is the question which may now be considered.
21. We have already seen above that under the Hindu Marriage Act, one of the essential
    ingredients of a valid Hindu marriage is that neither party should have a spouse living at the
    time of marriage. If the marriage takes place in spite of the fact that a party to that marriage
    had a spouse living, such marriage would be void under Section 11 of the Hindu Marriage Act.
    Such a marriage is also described as void under Section 17 of the Hindu Marriage Act under
    which an offence of bigamy has been created. This offence has been created by reference. By
    providing in Section 17 that provisions of Sections 494 and 495 would be applicable to such a
    marriage, the legislature has bodily lifted the provisions of Sections 494 and 495 IPC and placed
    them in Section 17 of the Hindu Marriage Act. This is a well-known legislative device. The
    important words used in Section 494 are “marries in any case in which such marriage is void
    by reason of its taking place during the life of such husband or wife”. These words indicate that
    before an offence under Section 494 can be said to have beenconstituted, the second marriage
    should be shown to be void in a case where such a marriage would be void by reason of its
    taking place in the lifetime of such husband or wife. Thewords “husband or wife” are also
    important in the sense that they indicate the personal law applicable to them which would
    continue to be applicable to them so long as the marriage subsists and they remain “husband
    and wife”.
22. Chapter XX of the Indian Penal Code deals with offences relating to marriage. Section
    494 which deals with the offence of bigamy is a part of Chapter XX of the Code. Relevant
    portion of Section 198 of the Code of Criminal Procedure which deals with the prosecution for
    offences against marriage provides as under:
23. Prosecution for offences against marriage.—(1) No court shall take cognizance of
    an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except
    upon a complaint made by some person aggrieved by the offence:
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    Provided that—
    (a) where such person is under the age of eighteen years, or is an idiot or a lunatic,
    or is from sickness or infirmity unable to make a complaint, or is a woman who,
    according to the local customs and manners, ought not to be compelled to appear in
    public, some other person may, with the leave of the court, make a complaint on his
    or her behalf;
    (b) where such person is the husband and he is serving in any of the armed forces
    of the Union under conditions which are certified by his Commanding Officer as
    precluding him from obtaining leave of absence to enable him to make a complaint in
    person, some other person authorised by the husband in accordance with the provisions
    of sub-section (4) may make a complaint on his behalf;
    (c) where the person aggrieved by an offence punishable under Section 494 or
    Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made
    on her behalf by her father, mother, brother, sister, son or daughter or by her father’s
    or mother’s brother or sister, or, with the leave of the court, by any other person related
    to her by blood, marriage or adoption.
    (2) For the purposes of sub-section (1), no person other than the husband of the
    woman shall be deemed to be aggrieved by any offence punishable under Section 497
    or Section 498 of the said Code:
    Provided that in the absence of the husband, some person who had care of the woman
    on his behalf at the time when such offence was committed may, with the leave of the
    court, make a complaint on his behalf.
24. It would thus be seen that the court would take cognizance of an offence punishable
    under Chapter XX of the Code only upon a complaint made by any of the persons specified in
    this section. According to clause (c) of the proviso to sub-section (1), a complaint for the
    offence under Section 494 or 495 can be made by the wife or on her behalf by her father,
    mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister. Such
    complaint may also be filed, with the leave of the court, by any other person related to the wife
    by blood, marriage or adoption. If a Hindu wife files a complaint for the offence under Section
    494 on the ground that during the subsistence of the marriage, her husband had married a
    second wife under some other religion after converting to that religion, the offence of bigamy
    pleaded by her would have to be investigated and tried in accordance with the provisions of the
    Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who has
    married a second time, has committed the offence of bigamy or not. Since under the Hindu
    Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under
    Section 17 of the Act, any marriage solemnised by the husband during the subsistence of that
    marriage, in spite of his conversion to another religion, would be an offence triable under
    Section 17 of the Hindu Marriage Act read with Section 494 IPC. Since taking of cognizance
    of the offence under Section 494 is limited to the complaints made by the persons specified in
    Section 198 of the Code of Criminal Procedure, it is obvious that the person making the
    complaint would have to be decided in terms of the personal law applicable to the complainant
    and the respondent (accused) as mere conversion does not dissolve the marriage automatically
    and they continue to be “husband and wife”.
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25. It may be pointed out that Section 17 of the Hindu Marriage Act corresponds to
    Sections 43 and 44 of the Special Marriage Act. It also corresponds to Sections 4 and 5 of the
    PaRsi Marriage & Divorce Act, Section 61 of the Indian Divorce Act and Section 12 of the
    Matrimonial Causes Act which is an English Act.
26. In Gopal Lal v. State of Rajasthan [AIR 1979 SC 713] Murtaza Fazal Ali, J., speaking
    for the Court, observed as under:
    Where a spouse contracts a second marriage while the first marriage is still subsisting
    the spouse would be guilty of bigamy under Section 494 if it is proved thatthe second
    marriage was a valid one in the sense that the necessary ceremonies required by law or
    by custom have been actually performed. The voidness of the marriage under Section
    17 of the Hindu Marriage Act is in fact one of the essential ingredients of Section 494
    because the second marriage will become void onlybecause of the provisions of
    Section 17 of the Hindu Marriage Act.
27. In view of the above, if a person marries a second time during the lifetime of his wife,
    such marriage apart from being void under Sections 11 and 17 of the Hindu Marriage Act,
    would also constitute an offence and that person would be liable to be prosecuted under Section
    494 IPC. While Section 17 speaks of marriage between two “Hindus”, Section 494 does not
    refer to any religious denomination.
28. Now, conversion or apostasy does not automatically dissolve a marriage already
    solemnised under the Hindu Marriage Act. It only provides a ground for divorce under Section
    13.
29. Under Section 10 which provides for judicial separation, conversion to anotherreligion
    is now a ground for a decree for judicial separation after the Act was amended by the Marriage
    Laws (Amendment) Act, 1976. The first marriage, therefore, is not affected and it continues to
    subsist. If the “marital” status is not affected on account of the marriage still subsisting, his
    second marriage qua the existing marriage would be void and in spite of conversion he would
    be liable to be prosecuted for the offence of bigamy under Section 494.
30. Change of religion does not dissolve the marriage performed under the Hindu
    Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or
    the matrimonial bond, but apostasy is a ground for divorce under Section 13 as also a ground
    for judicial separation under Section 10 of the Hindu Marriage Act. Hindu law does not
    recognise bigamy. As we have seen above, the Hindu Marriage Act, 1955 provides for
    “monogamy”. A second marriage, during the lifetime of the spouse, would be void under
    Sections 11 and 17, besides being an offence.
31. In Govt. of Bombay v. Ganga [ILR (1880) 4 Bom. 330] which obviously is a case
    decided prior to the coming into force of the Hindu Marriage Act, it was held by the Bombay
    High Court that where a Hindu married woman having a Hindu husband living marries a
    Mohammedan after conversion to “Islam”, she commits the offence of polyandry as, by mere
    conversion, the previous marriage does not come to an end. In Sayeda Khatoon v. M. Obadiah
    [(1944-45) 49 CWN 745] it was held that a marriage solemnised in India according to one
    personal law cannot be dissolved according to another personal law simply becauseone of the
    parties has changed his or her religion. In Amar Nath v. Amar Nath [AIR 1948
    18
    Lah. 129] it was held that the nature and incidence of a Vedic marriage bond, between the
    parties are not in any way affected by the conversion to Christianity of one of them and the
    bond will retain all the characteristics of a Hindu marriage notwithstanding such conversion
    unless there shall follow upon the conversion of one party, repudiation or desertion by the other,
    and unless consequential legal proceedings are taken and a decree is made as provided by the
    Native Converts Marriage Dissolution Act.
32. In the case of Gul Mohd. v. Emperor [AIR 1947 Nag. 121] the High Court held that
    the conversion of a Hindu wife to Mohammedanism does not, ipso facto, dissolve themarriage
    with her Hindu husband. It was further held that she cannot, during his lifetime, enter into a
    valid contract of marriage with another person. Such person having sexual relations with a
    Hindu wife converted to Islam, would be guilty of adultery under Section 497IPC asthe woman
    before her conversion was already married and her husband was alive.
33. From the above, it would be seen that mere conversion does not bring to an end the
    marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree
    is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage
    would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act,
    1955 and the person, in spite of his conversion to some other religion, wouldbe liable to be
    prosecuted for the offence of bigamy. It also follows that if the first marriage was solemnised
    under the Hindu Marriage Act, the “husband” or the “wife”, by mere conversion to another
    religion, cannot bring to an end the marital ties already established on account of a valid
    marriage having been performed between them. So long as that marriage subsists, another
    marriage cannot be performed, not even under any other personal law, andon such marriage
    being performed, the person would be liable to be prosecuted for the offence under Section
    494 IPC.
34. The position under the Mohammedan law would be different as, in spite of the first
    marriage, a second marriage can be contracted by the husband, subject to such religious
    restrictions as have been spelled out by brother Sethi, J. in his separate judgment, with which
    I concur on this point also. This is the vital difference between Mohammedan law and other
    personal laws. Prosecution under Section 494 in respect of a second marriage under
    Mohammedan law can be avoided only if the first marriage was also under the Mohammedan
    law and not if the first marriage was under any other personal law where there was a prohibition
    on contracting a second marriage in the lifetime of the spouse.
35. In any case, as pointed out earlier in the instant case, the conversion is only feigned,
    subject to what may be found out at the trial.
36. Religion is a matter of faith stemming from the depth of the heart and mind. Religion
    is a belief which binds the spiritual nature of man to a supernatural being; it is an object of
    conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and
    denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of
    religious doctrines in every system of religion. Religion, faith or devotion are not easily
    interchangeable. If the person feigns to have adopted another religion just for some worldly
    gain or benefit, it would be religious bigotry. Looked at from this angle, a person who
    mockingly adopts another religion where plurality of marriage is permitted so as to renounce
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    the previous marriage and desert the wife, cannot be permitted to take advantage of his
    exploitation as religion is not a commodity to be exploited. The institution of marriage under
    every personal law is a sacred institution. Under Hindu law, marriage is a sacrament. Both have
    to be preserved.
37. I also respectfully agree with brother Sethi, J. that in the present case, we are not
    concerned with the status of the second wife or the children born out of that wedlock as in the
    instant case we are considering the effect of the second marriage qua the first subsisting
    marriage in spite of the husband having converted to “Islam”.
38. I have already reproduced the order of this Court passed in Sarla Mudgal case on 23-
    4-1990 in which it was clearly set out that the learned counsel appearing in that case had,
    after taking instructions, stated that the prayers were limited to a single relief, namely, a
    declaration that where a non-Muslim male gets converted to the Muslim faith without any real
    change of belief and merely with a view to avoid any earlier marriage or to enter into a second
    marriage, any marriage entered into by him after conversion would be void.
39. It may also be pointed out that in the counter-affidavit filed on 30-8-1996 and in the
    supplementary affidavit filed on 5-12-1996 on behalf of the Government of India in the case of
    Sarla Mudgal it has been stated that the Government would take steps to make a uniform code
    only if the communities which desire such a code approach the Government and take the
    initiative themselves in the matter.
    R.P. SETHI, J. – IA No. 2 of 1995 in Writ Petition (C) No. 588 of 1995 is allowed.
40. Interpreting the scope and extent of Section 494 of the Indian Penal Code this Court
    in Sarla Mudgal, President, Kalyani v. Union of India [AIR 1995 SC 1531] held:
    [T]hat 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.
    The findings were returned answering the questions formulated by the Court in para 2 of its
    judgment.
41. The judgment in Sarla Mudgal case is sought to be reviewed, set aside, modified and
    quashed by way of the present review and writ petitions filed by various persons and Jamat-eUlema Hind and another. It is contended that the aforesaid judgment is contrary to the
    fundamental rights as enshrined in Articles 20, 21, 25 and 26 of the Constitution of India.
42. We are not impressed by the arguments to accept the contention that the law declared
    in Sarla Mudgal case cannot be applied to persons who have solemnised marriages inviolation
    of the mandate of law prior to the date of judgment. This Court had not laid down any new law
    but only interpreted the existing law which was in force. It is a settled principle that the
    interpretation of a provision of law relates back to the date of the law itself and cannot be
    prospective from the date of the judgment because concededly the court does not legislate but
    only gives an interpretation to an existing law. We do not agree with the arguments that the
    second marriage by a convert male Muslim has been made an offence only
    20
    by judicial pronouncement. The judgment has only interpreted the existing law after taking into
    consideration various aspects argued at length before the Bench which pronounced the
    judgment. The review petition alleging violation of Article 20(1) of the Constitution is without
    any substance and is liable to be dismissed on this ground alone.
43. Even otherwise we do not find any substance in the submissions made on behalf of the
    petitioners regarding the judgment being violative of any of the fundamental rightsguaranteed
    to the citizens of this country. The mere possibility of taking a different view has not persuaded
    us to accept any of the petitions as we do not find the violation of any of the fundamental rights
    to be real or prima facie substantiated.
44. The alleged violation of Article 21 is misconceived. What is guaranteed under Article
    21 is that no person shall be deprived of his life and personal liberty except according to the
    procedure established by law. It is conceded before us that actually and factually none of the
    petitioners has been deprived of any right of his life and personal liberty so far. The aggrieved
    persons are apprehended to be prosecuted for the commission of offence punishable under
    Section 494 IPC. It is premature, at this stage, to canvass that they would be deprived of their
    life and liberty without following the procedure established by law. The procedure established
    by law, as mentioned in Article 21 of the Constitution, means the law prescribed by the
    legislature. The judgment in Sarla Mudgal has neither changed the procedure nor created any
    law for the prosecution of the persons sought to be proceeded against for the alleged
    commission of the offence under Section 494 IPC.
45. The grievance that the judgment of the Court amounts to violation of the freedom of
    conscience and free profession, practice and propagation of religion is also far-fetched and
    apparently artificially carved out by such persons who are alleged to have violated the law by
    attempting to cloak themselves under the protective fundamental right guaranteed under Article
    25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of
    conscience and propagation of religion. The rule of monogamous marriage amongst Hindus
    was introduced with the proclamation of the Hindu Marriage Act. Section 17of the said Act
    provided that any marriage between two Hindus solemnised after the commencement of the
    Act shall be void if at the date of such marriage either party had a husband or wife living and
    the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860) shall apply
    accordingly. The second marriage solemnised by a Hindu during the subsistence of a first
    marriage is an offence punishable under the penal law. Freedom guaranteed under Article 25
    of the Constitution is such freedom which does not encroach upon a similar freedom of other
    persons. Under the constitutional scheme every person has a fundamental right not merely to
    entertain the religious belief of his choice but also to exhibit this belief and ideas in a manner
    which does not infringe the religious right and personal freedom of others It was contended in
    Sarla Mudgal that making a convert Hindu liable for prosecution under the Penal Code would
    be against Islam, the religion adopted by such person upon conversion. Such a plea raised
    demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings. The
    word “Islam” means “peace and submission”. In its religious connotation it is understood as
    “submission to the will of God”; according to Fyzee (Outlines of Mohammedan Law, 2nd
    Edn.), in its secular sense, the establishment of peace. The word “Muslim” in Arabic is the
    active principle of Islam, which means
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    acceptance of faith, the noun of which is Islam. Muslim law is admitted to be based upon a
    well-recognised system of jurisprudence providing many rational and revolutionary concepts,
    which could not be conceived of by the other systems of law in force at the time of itsinception.
    Sir Ameer Ali in his book Mohammedan Law, Tagore Law Lectures, 4th Edn., Vol. 1 has
    observed that the Islamic system, from a historical point of view was the most interesting
    phenomenon of growth. The small beginnings from which it grew up and the comparatively
    short space of time within which it attained its wonderful development markedits position as
    one of the most important judicial systems of the civilised world. The concept of Muslim law
    is based upon the edifice of the Shariat. Muslim law as traditionally interpreted and applied in
    India permits more than one marriage during the subsistence of one and another though
    capacity to do justice between co-wives in law is a conditionprecedent. Even under the Muslim
    law plurality of marriages is not unconditionally conferred upon the husband. It would,
    therefore, be doing injustice to Islamic law to urge that the convert is entitled to practise bigamy
    notwithstanding the continuance of his marriage under the law to which he belonged before
    conversion. The violators of law who have contracted a second marriage cannot be permitted
    to urge that such marriage should not be made the subject-matter of prosecution under the
    general penal law prevalent in the country. The progressive outlook and wider approach of
    Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants,
    apparently indulging in sensual lust sought to be quenched by illegal means, who apparently
    are found to be guilty of the commission of the offence under the law to which they belonged
    before their alleged conversion. It is nobody’s case that any such convertee has been deprived
    of practising any other religious right for the attainment of spiritual goals. Islam which is a
    pious, progressive and respected religion with arational outlook cannot be given a narrow
    concept as has been tried to be done by the alleged violatoRs of law.
46. Learned counsel appearing for the petitioners have alleged that in view of the judgment
    in Sarla Mudgal their clients are liable to be convicted without any further proof. Such an
    apprehension is without any substance inasmuch as the person seeking conviction of the
    accused for a commission of offence under Section 494 is under a legal obligation to prove all
    the ingredients of the offence charged and conviction cannot be based upon mere admission
    made outside the court. To attract the provisions of Section 494 IPC the second marriage has
    to be proved besides proving the previous marriage. Such marriage is further required to be
    proved to have been performed or celebrated with proper ceremonies. This Court in Kanwal
    Ram v. H.P. Admn. [AIR 1966 SC 614] held that in a bigamy case the second marriage as a
    fact, that is to say the essential ceremonies constituting it, must be proved. Admission of
    marriage by the accused by itself was not sufficient for the purpose of holding him guilty even
    for adultery or for bigamy. In Bhaurao Shankar Lokhande v. State of Maharashtra [AIR
    1965 SC 1564] this Court held that a marriage is not proved unless the essential ceremonies
    required for its solemnisation are proved to have been performed.
47. Besides deciding the question of law regarding the interpretation of Section 494 IPC,
    one of the Hon’ble Judges (Kuldip Singh, J.) after referring to the observations made by this
    Court in Mohd. Ahmed Khan v. Shah Bano Begum [AIR 1985 SC 945] requested the
    Government of India through the Prime Minister of the country to have a fresh look at Article
    22
    44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code
    throughout the territory of India”. In that behalf direction was issued to the Government of
    India, Secretary, Ministry of Law & Justice to file an affidavit of a responsible officer indicating
    therein the steps taken and efforts made towards securing a uniform civil code for the citizens
    of India. On the question of a uniform civil code R.M. Sahai, J. the other Hon’ble Judge
    constituting the Bench suggested some measures which could be undertaken by the
    Government to check the abuse of religion by unscrupulous persons, who under the cloak of
    conversion were found to be otherwise guilty of polygamy. It was observed that:
    Freedom of religion is the core of our culture. Even the slightest deviation shakes the
    social fibre.
    It was further remarked that:
    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 a comprehensive legislation in keeping with modern-day
    concept of human rights for women.
48. In Maharshi Avadhesh v. Union of India [1994 Supp (1) SCC 713] this Court had
    specifically declined to issue a writ directing the respondents to consider the question of
    enacting a common civil code for all citizens of India holding that the issue raised being a
    matter of policy, it was for the legislature to take effective steps as the Court cannot legislate.
49. In the circumstances the review petition as also the writ petitions having no substance
    are hereby disposed of finally with a clarification regarding the applicability of Article 44 of
    the Constitution. All interim orders passed in these proceedings including the stay of criminal
    cases in subordinate courts, shall stand vacated. No costs.
    ORDER OF THE COURT
50. In view of the concurring, but separate judgments the review petition and the writ
    petitions are disposed of finally with the clarifications and interpretation set out therein. All
    interim orders passed in these petitions shall stand vacated.

NOTE: The Supreme Court in John Vallamattom v. Union of India [ (2003) 6
SCC 611] has observed: “It is a matter of regret that Article 44 of the Constitution has
not been given effect to. Parliament is still to step in for framing a common civil code
in the country. A common civil code will help the cause of national integration by
removing the contradictions based on ideologies.”