CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW & GOVERNANCE

FAMILY LAW
PROJECT TOPIC :-
SARLA MUDGAL V. UNION OF INDIA
AIR 1995 SC 1531

SUBMITTED TO:-
MR. MANI PRATAP
ASSISTANT PROFESSOR
SLG , CUSB

SUBMITTED BY :-
SHUBHAM SINGH
Enrollment No. - CUSB1913125100
5TH SEM , B.A.LL.B
 ACKNOWLEDGEMENT

The researcher takes this opportunity to express his profound gratitude and deep regards to MR.
MANI PRATAP for his expert guidance, monitoring and constant encouragement throughout
the course of this project. The blessings, helps and guidance given by him time to time shall
carry the researcher along with the journey of life on which the researcher is about to embark.
The researcher is obliged to staff members of CENTRAL UNIVERSITY OF SOUTH BIHAR
for the valuable information provided by them in their respective fields. The researcher is
grateful for their co-operation during the period of his assignment.
Lastly,
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way. I would also like to extend my sincere gratitude to my parents and all those unseen hands
that helped me at every stage of my project.

THANKING YOU,

NAME: SHUBHAM SINGH

COURSE: B A. LL.B. (Hons.)

ENROLLMENT NO. – CUSB1913125100

 INDEX

1. BACKGROUND OF THE CASE

2. ISSUES RELATED TO THE CASE
3. RELEVANT LAWS AND ACTS
4. CONSTITUTION OF INDIA
5. HINDU MARRIAGE ACT 1995
6. CASE ANALYSIS
7. CONCLUSION
8. BIBLIOGRAPHY
BACKGROUND

There are two main petitioners to the case. Petitioner one is a registered society by the name
Kalyani which helps needy and distressed women. Sarla Mudgal is the head of this organization.
Another petitioner is Meena Mathur who was married to Jitender Mathur on February 27, 1978.
Three children (two sons and a daughter) were born out of the marriage. In early 1988, the
petitioner found out that her husband had solemnized second marriage with one Sunita Narula
aka Fathima which took place after their conversion to Islam and adoption of Muslim religion.
This conversion of her husband, as contended by the petitioner, was only for the purpose of
marrying Sunita Narula and circumvented the provisions of Section 494 of IPC. Jitender Mathur
contended that having embraced Islam, he can have four wives irrespective of the fact that his
first wife continues to be Hindu. An interesting fact to be noted here is that Sunita alias Fathima
is the petitioner in Writ Petition 347 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. Another petitioner in Writ Petition 424 of 1992, Geeta Rani, who was married to
Pradeep Kumar on November 3, 1988, alleged that her husband harassed her physically and
mentally and once broke her jaw bone. In 1991, she found out that he eloped with another
woman and married her after converting to Islam for getting married. Sushmita Ghosh is
another unfortunate lady who is a petitioner in Civil Writ Petition 509 of 1992. She was married
to G.C. Ghosh according to Hindu rituals 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.
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)?

LAWS

Indian Penal Code, 1860:

Section 494: Marrying again during the 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.
Exception.—This section does not extend to any person whose marriage with such husband or
wife has been declared void by a Court of competent jurisdiction, nor to any person who
contracts a marriage during the life of a former husband or wife, if such husband or wife, at the
time of the subsequent marriage, shall have been continually absent from such person for the
space of seven years, and shall not have been heard of by such person as being alive within that
time provided the person contracting such subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.

Classification of Offence

Punishment- Imprisonment for 7 years and fine- Non-cognizable- Bailable- Triable by

Magistrate of the first class- Compoundable by the husband or wife of the person so marrying
with the permission of the court.
Constitution of India:

Article 14: Equality before law The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.

Article 25: Freedom of conscience and free profession, practice and propagation of religion.

Article 26: Freedom to manage religious affairs subject to public order, morality and health.

Article 27: Freedom as to payment of taxes for promotion of any particular religion.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain

educational institutions.

Article 32: Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.

Article 44: Uniform civil code for the citizens. The State shall endeavor to secure for the
citizens a uniform civil code throughout the territory of India.
Hindu Marriage Act, 1955:

Section 11: Void Marriages. Any marriage solemnized after the commencement of this Act
shall be null and void and may, on a petition presented by either party thereto [against the other
party], be so declared by a decree of nullity if it contravenes any one of the conditions specified
in clauses (i), (iv) and (v) of section 5.

Section 13: Divorce.

(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party-

(i)[has, after the solemnization of the marriage, had voluntary, sexual intercourse with any
person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has
deserted the petitioner for a continuous period of not less than two years immediately preceding
the presentation of the petition; or]

(ii) has ceased to be a Hindu by conversion to another religion; or

(vi) has renounced the world by entering any religious order; or

(1A) [Either party to a marriage, whether solemnized before or after the commencement of this
Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground-

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of 5[ one year] or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for
a period of 5[ one year] or upwards after the passing of a decree for restitution of conjugal rights
in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce
on the ground,-

(i) in the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before such commencement or that any other wife of the husband
married before such commencement was alive at the time of the solemnization of the marriage of
the petitioner: Provided that in either case the other wife is alive at the time of the presentation of
the petition.

Section 15: Divorced persons when may marry again. When a marriage has been dissolved by a
decree of divorce an either there is no right of appeal against the decree or, if there is such right
of appeal, the time for appealing has expired without an appeal having been presented, or an
appeal has been presented but has been dismissed it shall be lawful for either party to the
marriage to marry again.

The Hindu Succession Act, 1956.

Hindu Minority and Guardianship Act, 1956.

Hindu Adoptions and Maintenance Act, 1956.

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).

"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".13 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.

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.
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. In the case Re Ram Kumari,
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 Crown 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 case 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 Vaidya, 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 dissolved in a
Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the
Statute.”
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.

The primary components of the section are:

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.22

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.

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.

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'.”25

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.”
 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.27

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 India.
 BIBLIOGRAPHY

STATUTES

• Constitution of India.

• Hindu Marriage Act, 1955.

• Indian Penal Code, 1860.

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.

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.