The case of Sarla mudgul v. Union of India, is considered a landmark case when the supreme court declared that if a Hindu convert in Islam just to do second marriage (as four marriages are allowed in Islam), he will be liable for bigamy even after his conversion
In this case, the court also emphasized the need of Uniform Civil Code as different personal code affecting the human rights of people especially women.
In this case, there were four petitions filed under Article 32 of the Constitution of India before the Supreme Court.
Petitioner 1 was the President of “KALYANI” – a registered society – which is an organization working for the welfare of needy-families and women in distress.
Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock.
In early 1988, the petitioner was shocked to learn that her husband had solemnized second marriage with one Sunita Narula @ 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 asserted that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu.
Rather interestingly Sunita alias Fathima was the petitioner in another Writ Petition. She contended 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 stated 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.
Geeta Rani was married to Pradeep Kumar according to Hindu rites on November 13, 1988. It is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken.
In December 1991, the petitioner learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.
Sushmita Ghosh was another unfortunate lady. She was married to G.C. Ghosh according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise.
The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17, 1992 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.
Thus, in these all cases, a Hindu male embraced Islam just to facilitates another marriage with a Hindu female leaving behind his formerly wedded wife.
Decision of the court
After reviewing a catena of case laws on the issue, the supreme court upheld the right of earlier hindu wife and held that,
“…. a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so.
Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu.
We, therefore, 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 court further held that,
“It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act.
In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. 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 qua his wife who married him under the Act and continues to be 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 nonest.
A Hindu marriage solemnised 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. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.”
Smt. Sarla Mudgul vs. Union of India & Ors, 1995 AIR 1531, 1995 SCC (3) 635