Lily Thomas v. UOI by Samidha Hegde@Lexcliq

Facts:

Sushmita Ghosh filed a writ petition in the Supreme Court claiming that she was the wife of G.C. Ghosh (Mohd. Karim Ghazi) and that they were married to each other on 10th May, 1984 in accordance with Hindu rites and ceremony.

On 1st April, 1992 the husband of the petitioner told her that he had taken up Islam in order to remarry and that he had decided to marry Miss Vanita Gupta a resident of Delhi. So the petitioner should agree to divorce him for own interest.

The petitioner contended that by the act of the husband she had been discriminated on the ground of religion and sex and therefore her right envisaged in Article 15(1) of the Constitution was infringed. It was asserted that the true intent behind the husband’s action to adopt Islam was to have second wife which is strictly forbidden in Hindu Law.

Due to such actions of the husband, the petitioner is undergoing huge mental trauma and at the age of 34 is unemployed. Furthermore it was contended by the petitioner that it had been common among Hindu male who could not get divorce and desired to have a second wife, used to convert to Islam to fulfil its desire. But after remarriage, again re-converted to retain their title in properties.

 

Issues:

  1. Whether there should be Uniform Civil Code for all citizens of India?
  2. Whether a Hindu husband can solemnise second marriage by converting to Islam?
  3. Whether the husband would be liable for bigamy under section 494 of IPC?

 

ARGUMENTS BY THE PARTIES:

Petitioner: 

  • Petitioner’s first issue was that since the act of marriage is a sacred institution then how can resorting to the act of religious conversion to Islam commit the act of bigamy as Muslim personal law allows it is an attempt where the women freedom of facing such marriage and such betrayal is violative of Art.21(right to life and liberty).
  • Lily Thomas pleaded that the male polygamy in Muslim Law to be declared unconstitutional.
  • It was urged before the bench to apply the Uniform Civil Code to deal with vast socio-legal issues that could be applied to various religious personal laws.
  • Many Muslim women have also approached both the Supreme and High Courts to declare Polygamy in Muslim law to be unconstitutional.

 

Respondent:

  • The respondents in all the above petitions had a common contention that having taken to Islam, they can have four wives irrespective of the fact that the first wife continues to be of any other religion. Thus, they are not subjected to the Hindu Marriage Act, 1955, Section 11 of which makes a second marriage without the divorce or death of the first wife void and also to section 17 of which made them guilty for bigamy under the Indian Penal Code (IPC).

 

JUDGMENT:

Justice S. Sagir Ahmad said if a party has a living spouse and he tries to have a second marriage then such marriage would be null and void under Section 11 of the Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the Hindu Marriage Act,1959 which deals with the offense of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860. If a Hindu wife lodges a complaint against her husband who during the existence of first marriage marries another woman after his conversion to another religion then the offense of Bigamy shall be dealt with Hindu Marriage Act, 1959.

The Supreme Court said that violation of Article 21 is misconceived, article 21 of the Constitution states that “no person shall be deprived of his right and personal liberty except as per the procedure established by law” and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494 and article 21 of the constitution has not been violated.

R.P.Sethi Ji said if a Hindu man after converting to Islam contracts the second marriage without dissolving the first marriage then the second marriage would be invalid under Section 494 & 495 of IPC and the husband will be punished according to that.

 

Conclusion-

It has been two long decades since the Lily Thomas judgement but several questions still remain unanswered regarding conversion and the implementation of the Uniform Civil Code. Issues that attract personal law, fundamental rights and the penal provisions keep propping up every now and then as was seen with the issue of Triple Talaq recently. The recommendations of several law commissions seem to fall on deaf ears while a concrete and long-lasting framework that will comprehensively deal with these issues is still missing. A solution that deals with these issues in a sensitive manner is a sine qua non for avoiding further litigation in this regard.

References-

byjus.com

lawsisito.com

lawlex.org

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