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RAFFLES SCHOOL OF LAW, RAFFLES UNIVERSITY

IN THE HONBLE SUPREME COURT OF INDIA,

DELHI

THE WRIT PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

WRIT PETITION NO: ____/ 2015
CASE CONCERNING BIGAMY
SARLA MUDGAL
PETITIONER
v.

UNION OF INDIA
RESPONDENT
ON SUBMISSION TO THE HONORABLE SUPREME COURT OF INDIA

MEMORIAL for the PETITIONER

SARLA MUDGAL c/o KALYANI FOUNDATION

~MEMORIAL for the PETITIONER~

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TABLE OF CONTENTS
TABLE OF CONTENTS.2
LIST OF ABBREVIATIONS..3
INDEX OF AUTHORITIES.4
STATEMENT OF JURISDICTION6
STATEMENT OF FACTS.7
STATEMENT OF ISSUES..9
SUMMARY OF ARGUMENTS.10
ARGUMENTS ADVANCED.11
SUBMISSION TO THE HONBLE COURT..25

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LIST OF ABBREVIATIONS

All India Report

And
Another
Article
Corporation
Et Cetera
Fundamental Rights
Honorable
Indian penal Code, 1860
Limited
Madhya Pradesh
Maximum
Minimum
National Human Rights Commission
Number
Others
Page
Public Interest Litigation
Section
Supreme Court
Supreme Court Cases
Supreme Court Judges Library
Through
Union of India
United Nations

AIR
&
Anr.
A
Corp.
Etc
FRs
Honble
IPC
Ltd
M.P.
Max.
Min.
NHRC
No.
Ors
Pg.
PIL
S.
SC
SCC
SCJL
Thr.
UOI
UN

INDEX OF AUTHORITIES
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STATUTES
Constitution of India
Indian Penal Code,1860
Civil Procedure Code,1908
Hindu Marriage Act, 1955
JUDICIAL PRONOUNCEMENTS
CASE
Abdul Rehman Antulay v. R.S. Naik
Akhil Bhartiya Soshit Karmachari (ABSK)
Sangh v. Union Of India
Andal Vaidyanathan vs. Abdul Allam Vaidya
Arvindar Singh Bagga v. State Of U.P
Ashok Kumar Thakur v. Union of India
Bandhua Mukti Morcha v. Union of India
Bodhisattwa Gautam v. Subhra Chakraborty
CB Boarding & Lodging v. State of Mysore
Choki v.state
Consumer Education & Research Centre V.
Union Of India
Emperor v. Mt. Ruri
Francis Coralie v. Union Territory Of Delhi
Fertilizer Corporation Kamgar Union V. Union
Of India
Girghar gopal v. state

CITATION
AIR 1992 SC 1701
ART.I.R 1981 SC 298

Govt.of A.P. v P.B. Vijaya Kumar

Gul Mohammed v. Emperor
Hussainara Khatoon v. State Of Bihar

AIR 1995 SC 1648

AIR 1947 Nag 121
AIR 1979 SC 1369,1373

Janata Dal v. H.S. Chowdharv

AI.R 1993 SC 892

Kartar Singh v. State Of Punjab

Kesavananda Bharti v. State of Kerala
Kharak Singh v. State Of U.P
Minerva Mills Ltd V. Union Of India
Mumbai Kamgar Sabha V. Abdul Bhai
Nandi @ Zainab v. The Crown
Olga Tellis v. Bombay Municipal Corporation
Peoples Union for Democratic Rights v. Union
of India

(1994) 3 SCC 569

AIR 1973 SC 1461
AIR 1963 SC 1295
AIR 1980 SC 1789, 1806.
ART.I.R 1976 SC 1455
ILR(1920) Lahore 440
AIR 1986 SC 180
AIR 1982 SC

1946 Indlaw MAD 96

AIR 1995 SC 117

(2008) 6 SCC 1
(1984) 3 SCC 161
AIR 1996 SC 922
AIR 1970 SC 2042
AIR 1957 RAJ 10
AIR 1995 SC 922
AIR 1919 Lah 389
AIR 1981 SC 746
ART.I.R 1981 SC 344
AIR 1953MB 147

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Prem Shankar v. Delhi Administration

AIR 1980 SC 1535
Re Ram Kumari
1891 Calcutta 246
Robasa Khanum vs. Khodabad Irani's
1946 Indlaw MUM 87
S.P. Gupta v. Union Of India
1981 Supp SCC 87
Sayeda Khatoon @ A.M. Obadiah v. M. Obadiah (1944) 49 CWN 745
State Of M.P. V. Kedia Leather & Liquor Ltd.
AIR 2003 SC 727
State Of Madras v. Champakam Dorairajan
AIR 1951 SC 226
Sunil Batra v. Delhi Administration
ART.I.R 1978 SC 1675
Thamsi v. kanai ,
AIR 1952 MAD 529
Unnikrishnan v. State of A.P.
(1993) 1 S.C.C. 645.
Vincent V. Union Of India
(1987) 2 SCC 165
Visakha v. State Of Rajasthan
AIR 1997 SC 3011
Yusuf Abdul aziz v. state of Bombay
AIR 1954 SC 321
BOOKS
BAKSHI P.M., The Constitution of India, 10th Edition,2012, Universal Law Publishing Co
BASU DD, Commentary on the Constitution of India, Vol.-10,8th Edition, 2012, LexisNexis,
ButterworthsWadhwa
JAIN M.P., Indian Constitutional Law, 6th Edition, 2010, LexisNexis, ButterworthsWadhwa
PANDEY J.N., The Constitutional Law of India, 48th Edition, 2013 ,Central Law Agency
SHUKLA V.N., Constitution of India, 11th Edition,2012 Eastern Book Co
NELSONS RA, Indian Penal Code, 10th Edition, 2008 LexisNexis, Buttersworths Wadhwa,
Nagpur
JETHMALANI, The Indian Penal Code, 1st Edition, 2014 Thomson Reuters
PILLAIS P S A, Criminal Law, 12th Edition, 2014 LexisNexis
RATANLAL & DHIRAJLAL, The Indian Penal Code, 1st Edition, 2014, LexisNexis
DYNAMIC LINKS
www.scconline .com
www.westlaw.com
www.manupatra.com
www.judis.nic.in
www.jstor.org

STATEMENT OF JURISDICTION

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CASE CONCERNING BIGAMY

SARLA MUDGAL

..Petitioner

v.

UNION OF INDIA

..Respondent

The counsel for petitioner has invoked the jurisdiction of the Honble Supreme Court of India
under Art. 321 of constitution. The petitioner most humbly submit themselves to the jurisdiction
of Honble court & shall bound by all orders, directions that this Honble court may pass in
exercise of the power conferred in its entirety & good faith.
All of which is most respectfully submitted.

STATEMENT OF FACTS
1 Art. 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

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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 ofthe 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 347of 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 grievances
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
Petition509 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. Heha
d obtained a certificate dated June 17, 1992 from the Qazi indicating that he had

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embraced Islam. In the writ petition, the petitioner has further prayed that her husband be
restrained from entering into second marriage with Vinita Gupta.

STATEMENT OF ISSUES

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1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?

2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY
EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?
3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE OFFENCE
UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)?

SUMMARY OF ARGUMENTS
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?

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The petitioner has filed the present petition under the head of PIL, which is maintainable because
there is a gross violation of rights of the women which are bestowed upon them by the various
constitutional principles and other allied laws. Petitioner acting bonafide in good faith filed the
present petition for the cause of rights of children who cannot lobby themselves for their rights.
2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY
EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?
Hindu husband cant solemnize second marriage after embracing Islam because conversion to
other religion doesnt dissolve the earlier marriage which was done under Hindu Marriage Act,
1955. The dissolution of the earlier marriage is must in order to solemnize second marriage
under the Hindu law.
3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE
OFFENCE UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)?
The second marriage of a Hindu husband after his conversion to Islam is a void marriage in
terms of S. 494 IPC and the same would be liable to punishment under Sec. 495 of IPC. As all
the ingredients of sec. 494 are present, therefore the apostate husband would be guilty of the
offence.

ARGUMENTS ADVANCED
1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?

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It is humbly submitted before this honble court that the writ petition is maintainable under Art.
322 of the Indian constitution. In the above given facts there has been gross violation of
fundamental rights enshrined in our constitution. All the above petitions are clubbed and filed by
way of public interest litigation by petitioners. As the petition filed by the petitioner against the
rights of women which has been infringed when their spouses easily get converted to other
religion merely to fancy another marriage.
1.1 Maintainability of public interest litigation
The Constitution of India emphasizes on the equal justice to all persons. The Public Interest
Litigation in India is comparatively a recent innovation of the judiciary, initiated primarily to
provide access to justice and equal justice to the disadvantaged Sections of the society who are
not possessed of adequate means or sufficient awareness to enforce their fundamental rights
guaranteed under the constitution. India has a congruence development of concept of PIL as till
1960 and seventies, the concept of litigation in India was still in rudimentary form and was seen
as a private pursuit for the vindication of private vested interest. Litigation in early 1960
consisted mainly of some action initiated and continued by certain individuals, usually,
addressing their own grievances or problems. Thus, the initiation and continuance of litigation
was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by
the resources available with those individuals. There were very little organized efforts or
attempts to take up wider issues that affected classes of consumers or the general public at large.
PIL emerged as an exceptional weapon under the jurisprudence of Indian constitution
paving the way for liberalized locus standi, enable a social activist, individual or group of
persons to bring to the Supreme Court any issue of public interest wherein violation of any
fundamental right is alleged, for its protection by resort to constitutional remedy under article 32 3
of the constitution. This is the underlying principle in Article 39A 4of the constitution. The
procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil Procedure Code, 1908
for representative action.
2 Ibid note 1
3 Ibid note 1

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Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in the
interest of that nebulous entity: the public in general.
The concept of public interest litigation had its origin in the American legal system during the
period of 1960s. The Council for Public Interest Law set up by the Ford Foundation in the
United States of America stated that Public Interest Law is the name, which was able to provide
legal representation to previously unrepresented groups.
The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in
1976 in Mumbai Kamgar Sabha v. Abdul Bhai5

further, the celebrated case of Fertilizer

Corporation Kamgar Union v. Union of India 6, the terminology Public Interest Litigation was
used by Justice Iyer. In this particular judgment he used the expression Epistolary Jurisdiction.
The Honble Supreme Court held that the procedure had to be relaxed to meet the ends of justice.
During the last three decades the our judiciary has been playing a very creative role in the
administration of justice, which is the departure from the committed judiciary of the past to the
activist judiciary of today under the principle of public interest litigation that was innovated by
the Apex Court through judicial activism. With the advent of public interest litigation this
traditional strict rule of standing has been broadened and liberalized. As a result of this any
person acting bona fide having no personal gain or political motive can move the Court alone for
the enforcement of constitutional or legal rights of socially or economically disadvantaged
Sections of the immunity7. The cause of justice cannot be allowed to overlook on the technical
ground of Locus Standi or absence of personal loss or injury.8 The most important
pronouncement of the Supreme Court in the field of public interest litigation involving the
4 39 A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes
justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason
of economic or other disabilities.

5 AIR 1976 SC 1455

6 AIR 1981 SC 344
7 Janata Dal v. H.S. Chowdharv, AIR 1993 SC 892

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question of Locus Standi is S. P. Gupta v. Union of India9, popularly known as Judges Transfer
Case.
In this case the Locus Standi of the petitioners was challenged. Delivering the judgment the
Court held that, any member of the public acting bona fide and having sufficient interest in the
matter can maintain an application for appropriate directions or orders. The decision of this
case had made a far-reaching impact on the question of Locus Standi. Similarly, the Supreme
Court gave historic judgments in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of
India10, Peoples Union for Democratic Rights v. Union of India 11 and Bandhua Mukti Morcha v.
Union of India12conferring standing to the petitioners. The court justified such extension of
standing in order to enforce rule of law and provide justice to disadvantaged Sections of
society13. Furthermore, the Supreme Court observed that the term appropriate proceedings in
Art.32 of the Constitution14does not refer to the form but to the purpose of proceeding: so long
as the purpose of the proceeding is to enforce a FR, any form will do 15. This was achieved by
both interpreting existing FRs widely and by creating new FRs. Article 21no person shall be
deprived of his life or personal liberty except according to the procedure established by law
8 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675
9 AIR 1982 SC 149
10 AIR 1981 SC 298
11 AIR 1982 SC 1473
12 AIR 1984 SC 802
13 Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy
(2002) 116 Harvard Law Review 16, 107108.
14 Ibid note 3 (clause 1)
15 Shukla V.N.,Constitution of India, 11th Edition, Eastern Book Co pp.278279.

~MEMORIAL for the PETITIONER~

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proved to be the most fertile provision to mean more than mere physical existence 16; it includes
right to live with human dignity and all that goes along with it. 17Ever-widening horizon of
Art.21 is illustrated by the fact that the Court has read into it, inter alia, the right to health 18,
livelihood19, free and compulsory education up to the age of 14 years 20, unpolluted
environment21, shelter22, clean drinking water, privacy23, legal aid24, speedy trial25, and various
rights of under-trials26, convicts and prisoners27. It is important to note that in a majority of cases
the judiciary relied upon DPs for such extension.
16 Kharak Singh v State of U.P., AIR 1963 SC 1295 ; Olga Tellis v Bombay Municipal Corp AIR 1986
SC 180:; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Consumer Education & Research
Centre v Union of India, AIR 1995 SC 922; Bodhisattwa Gautam v Subhra Chakraborty, AIR 1996 SC
922; Visakha v State of Rajasthan AIR 1997 SC 3011
17 Ibid
18 Vincent v. Union of India, AIR 1887 SC 990
19 Olga Tellis v. Bombay Muncipal Corp. AIR 1986 SC 180
20 Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1
21 State of M.P. V.kedia Leather& Liquor Ltd., AIR 2003 SC 727
22 Supra 19
23 Kharak Singh v. State of U.P., AIR 1963 SC 1295; Govind v. State of M.P., AIR 1975 SC 1378
24 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369,1373
25 Kartar Singh v. State of Punjab, (1994) 3 SCC 569 ; Abdul Rehman Antulay v. R.S. Naik, AIR 1992
SC 1701
26 Prem Shankar v. Delhi Administration, AIR 1980 SC 1535
27 Arvindar Singh Bagga v. State of U.P., AIR 1995 SC 117

~MEMORIAL for the PETITIONER~

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After 2 years 11 months and 18 Days of assiduous deliberation and incessant debate, the framers
of the Constitution created the sacrosanct Constitution of India. With an impermeable and
perpetual desire to serve the nation with the hope to establish a sovereign socialist secular 28
democratic republic. Among others, the Constitution aims to secure to all its citizens justice
(social, economic and political), liberty (of thought, expression, belief, faith and worship) and
equality (of status and of opportunity) 29. The main tools employed to achieve such social change
were the provisions on fundamental rights (FRs) and the directive principles of state policy
(DPs), which Austin described as the conscience of the Constitution30. After initial
deviation,31 the Supreme Court accepted that FRs are not superior to DPs on account of the latter
being non-justifiable: rather FRs and DPs are complementary and the former are a means to
achieve the goals indicated in the latter 32.The issue was put beyond any controversy in Minerva
Mills Ltd v. Union of India33 where the Court held that the, harmony and balance between
fundamental rights and directive principles is an essential feature of the basic structure of the

28 The terms socialist and secular were inserted by the 42nd amendment in 1976.
29 These values are expressly declared in the Preamble and form the essence of the Indian Constitution,
the Indian Legal System and the Indian Polity.
30 Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50
31 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
32 CB Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042; Kesavananda Bharti v. State of
Kerala, AIR 1973 SC 1461; Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789; Unni Krishnan v.
State of AP, (1993) 1 S.C.C. 645. Rajiv Dhavan, Republic of India: The Constitution as the Situs of
Struggle: Indias Constitution Forty Years On in Lawrence W. Beer (ed.), Constitutional Systems in Late
Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382383, 405 and 413
416.
33 Supra note 34

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Constitution34 Since then the judiciary has employed DPs to derive the contents of various
FRs.35
Our constitution by the way of A.15 (3)36 does not prevent state to make special provisions for
women. It recognizes the fact that the women in India have been socially and economically
handicapped for centuries and ,as a result thereof, they cannot fully participate in the socio
economic footing of the nation on a footing of equality 37. The object of A.15 (3) is to strengthen
and improve the status of women. Under S.497, I.P.C., the offence of adultery can be committed
only by a male and not by a female who cannot even be punished as an abettor. As this provision
makes a special provision for women, it is saved by A.15 (3) 38.S.354 of I.P.C. which only
protects the modesty of women39further, S.488 of crpc which obliges the husband to maintain his
wife, but not vice versa;40S.497(I) of the same code which provides for special treatment of
women accused of a non-bailable offence, in matter of bail. 41in the above facts PIL has been filed
to protect the right of married women and thus petition is filed bona fide and is maintainable.

34 Minerva Mills Ltd v Union of India , AIR 1980 SC 1789, 1806.

35 Jain M.P., The Supreme Court and Fundamental Rights in Verma and Kusum 6th edition, Fifty
Years of the Supreme Court of India, pp.6576.
36 Art. 15(3) Nothing in this article shall prevent the State from making any special provision for women
and children.
37 Govt.of A.P. v P.B. Vijaya Kumar ,AIR 1995 SC 1648
38 Yusuf abdul aziz v.state of Maharashtra,AIR 1954 SC 321
39 Girghar gopal v. state,AIR 1953MB 147
40 Thamsi v. kanai ,AIR 1952 MAD 529
41 Choki v.state ,AIR 1957 RAJ 10

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2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY

EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?
In response to the second issue petitioners would like to humbly submit before this honble court
that a Hindu husband, married under Hindu law, by embracing Islam, cannot solemnize second
marriage.
"The State shall endeavour to secure for the citizens a uniform civil code through-out the
territory of India" is an unequivocal mandate under art. 4442 of the Constitution of India which
seeks to introduce a uniform personal law - a decisive step towards national consolidation. 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 Art. 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". 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. Marriage is the very foundation of the civilised 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
civilisation can exist.
Till the time we achieve the goal - uniform civil code for all the citizens of India - there is an
open inducement to a Hindu husband, who wants to enter into second marriage while the first
42 Art. 44. Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.

~MEMORIAL for the PETITIONER~

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marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the
Muslim law permits as many as four wives in India, errand 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 recognise
that conversion would have the effect of dissolving a Hindu marriage. Conversion to another
religion by one or both the Hindu spouses did not dissolve the marriage.

In case of Re Ram Kumari43, where a Hindu wife became convert to the Muslim faith and then
married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not
dissolved by her conversion. She was charged and convicted of bigamy u/s. 494 of the 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 Gul Mohammed v. Emperor44, a Hindu wife was fraudulently taken away by the accused a
Mohammedan who married her according to Muslim law after converting her to Islam. It was
held that the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the
marriage and she could not during the life time of her former husband enter into a valid contract
of marriage. Accordingly the accused was convicted for adultery u/s. 497 of the IPC.
In Nandi @ Zainab vs. The Crown45 , 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 u/s. 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

43 1891 Calcutta 246

44 AIR 1947 Nag 121
45 ILR(1920) Lahore 440

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court. Emperor vs. Mt. Ruri46, was a case of Christian wife. The Christian wife renounced
Christianity and embraced Islam and then married a Mohomedan. It was held that according to
the Christian marriage law, which was the law applicable to the case, the first marriage was not
dissolved and therefore the subsequent marriage was bigamous.
In India there has never been a matrimonial law of general application. Apart from statute law a
marriage was governed by the personal law of the parties. A marriage solemnised under a
particular statute and according to personal law could not be dissolved according to another
personal law, simply because one of the parties had changed his or her religion.
Further, In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah47 , Lodge, J. speaking for the court
held as under:
There is a Hindu Law for Hindus, a Mahommedan Law for Mahommedans, a Christian Law for
Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding mixed
marriages other than the statute law, and there is no suggestion that the statute law is applicable
in the present case. It may be that a marriage solemnised according to Jewish rites may be
dissolved by the proper authority under Jewish Law when one of the parties renounces the
Jewish Faith. It may be that a marriage solemnised according to Jesish rites may be dissolved by
the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It
may be that a marriage solemnised according to Mahommedan Law may be dissolved according
to the Mahommedan Law when one of the parties ceases to be a Mahommedan. But I can find no
authority for the view that 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."

46 AIR 1919 Lah 389

47 (1944) 49 CWN 745

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In Andal Vaidyanathan vs. Abdul Allam Vaidya48, a Division Bench of the High Court dealing
with a marriage under the Special Marriage Act 1872 held:
"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. S. 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 Mahomoden sense which can be dissolved in a Mahomedan manner. It is a
statutory marriage and can only be dissolved in accordance with the Statute: Disting."
It is, thus, obvious from the catena of case-law 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. It, 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.
Further observed that the second marriage of an apostate-husband married under the Hindu
Marriage Act would be in violation of the rules of equity, justice and good conscience, as also
those of natural justice49.
48 1946 Indlaw MAD 96
49 Preventing Bigamy via Conversion to Islam A Proposal for giving Statutory Effect to Supreme Court
Rulings- Law Commission of India, Report No. 227, Government of India. Last accessed on 2. may .2015

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Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right
under the Act to marry again without getting his marriage under the Act dissolved. The second
marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and
as such would be void.
2.1 Such a marriage without having the first marriage dissolved under the law, would not
be valid marriage qua the first wife who continued to be a Hindu:Interpretating the provisions of the Hindu Marriage Act 1955 while answering this question. It is
observed that a Hindu marriage cannot, under any circumstances, be dissolved unless by a decree
of divorce under the grounds enumerated in the act. It also pointed out that the Act has an
overriding effect on any customs or usage prevalent before the commencement of the act.
It observed:
Overriding effect of Act save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in
force immediately before the commencement of this Act shall cease to have effect with respect to
any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the provisions contained in this Act.
A marriage solemnised, whether before or after the commencement of the Act, can only be
dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One
of the grounds under Section 13 (i) (ii) is that the other party has ceased to be a Hindu by
conversion to another religion. Sections 11 and 15 of the Act is as under: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 550.
50 Section 15, Hindu Marriage Act 1955

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Divorced persons when may marry again.- When a marriage has been dissolved by a decree of
divorce and either there is no right of appeal against the decree or, of there is such a 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.
After looking at the legal provisions and giving a fair interpretion, it is concluded 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 non est

3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE

OFFENCE UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)?
In response to the issue the counsel for petitioners would like to humbly submit before this
honble court that above arguendo and authorites 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

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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 necessary ingredients of the Section are:
(1) having a husband or wife living;
(2) marries in any case;
(3) in which such marriage is void;

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(4) by reason of its taking place during the life of such husband or wife.
It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam
may not be strictly a void marriage underthe Act because he is no longer a Hindu, but the fact
remains that the said marriage would be in violation of the Act which strictly professes
monogamy.
The expression "void" for the purpose of the Act has been defined u/s. 11 of the Act. It has a
limited meaning within the scope of the definition under the Section. On the other hand the same
expression has a different purpose under Section 494, IPC and has to be given meaningful
interpretation.
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 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.
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. It would be giving a go-bye to the
substance of the matter and acting against the spirit of the Statute if the second marriage of the
convert is held to be legal.
The law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's51 wherein the learned
Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis
of the rule of justice and right or equity and good conscience. A matrimonial dispute between a
convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties
511946 Indlaw MUM 87

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are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the
"Muslim Personal Law". In such cases the Court shall act and the Judge shall decide according to
justice, equity and good conscience. The second marriage of a Hindu husband after embracing
Islam being violative of justice, equity and good conscience would be void on that ground also
and attract the provisions of Section 494, IPC.
Further , the second marriage of an apostate-husband would be in violation of the rules of natural
justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no
right under the Act to marry again without getting his marriage under the Act dissolved. The
second marriage after conversion to Islam would, thus, be in violation of the rules of natural
justice and as such would be void.
Above arguendo interpretation given to S. 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. Result of the interpretation, of

S. 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. Since it is not the
object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands
should be encouraged to become Muslims merely for the purpose of evading their own personal
laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting
in denying the Hindu husband converted to Islam the right to marry again without having his
existing marriage dissolved in accordance with law.
All the four ingredients of S. 494 IPC are satisfied in the case of a Hindu husband who marries
for the second time after conversion to Islam. He has a wife living, he marries again. 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 S. 494 IPC.

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SUBMISSION TO THE HONBLE COURT

Wherefore in the light of arguments advanced and authorities cited, the Petitioner humbly
submits that the Honble Court may be pleased to adjudge and declare that:
TO HOLD
1. That the petition is maintainable.
2. That by an appropriate writ, declare polygamous marriages by Hindus and
non-Hndus after conversion to Islam religion as illegal and void.
3. That the appropriated directions should be issued to carry out suitable
amendments in the Hindu Marriage Act so as to curtail and forbid the practice
of polygamy.
4. That the appropriate direction to declare that where non-muslim male gets

converted to the Muslim faith without any real change of belief and merely with a

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view to avoid an earlier marriage or enter into a second marriage, any marriage
entered into by him after conversion would be void.

MISCELLANEOUS
1. Any other order as it deems fit in the interest of justice, equity and good

conscience .
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/(Counsel for the petitioner)

~MEMORIAL for the PETITIONER~