Law Commission Report
227Th Report On
GOVERNMENT OF INDIA
LAW
COMMISSION
OF
INDIA
Preventing Bigamy via Conversion to Islam - A
Proposal for giving Statutory Effect to Supreme
Court Rulings
Report No. 227
August 2009
2
THE LAW COMMISSION OF INDIA
(REPORT NO. 227)
Preventing Bigamy via Conversion to Islam - A
Proposal for giving Statutory Effect to Supreme
Court Rulings
Forwarded to the Union Minister of Law and Justice,
Ministry of Law and Justice, Government of India by Dr.
Justice AR. Lakshmanan, Chairman, Law Commission of
India, on 5th day of August, 2009.
3
The 18th Law Commission was constituted for a period of three
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The Law Commission consists of the Chairman, the Member-
Secretary, one full-time Member and seven part-time Members.
Chairman
The Hon'ble Dr. Justice AR. Lakshmanan
Member Secretary
Dr. Brahm A. Agrawal
Full-time Member
Prof. (Dr.) Tahir Mahmood
Part-time Members
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Dr. K.N. Chandrasekharan Pillai
Prof. (Mrs.) Lakshmi Jambholkar
Smt. Kirti Singh
Justice I. Venkatanarayana
Shri O.P. Sharma
Dr. (Mrs.) Shyamlha Pappu
4
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5
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6
Dr. Justice AR. Lakshmanan ILI Building (IInd Floor)
(Former Judge, Supreme Court of India), Bhagwandas Road,
Chairman, Law Commission of India New Delhi - 110 001
Tel. 91-11-23384475
Fax. 91-11 - 23383564
D.O. No. 6(3)/159/2009-LC (LS) 5 August, 2009
Dear Dr Veerappa Moily ji,
Subject: Preventing Bigamy via Conversion to Islam - A Proposal
for giving Statutory Effect to Supreme Court Rulings
I am forwarding herewith the 227th Report of the Law Commission of
India on the above subject.
2. For a long time past, married men whose personal law does not allow
bigamy have been resorting to the unhealthy and immoral practice of
converting to Islam for the sake of contracting a second bigamous marriage
under a belief that such conversion enables them to marry again without
getting their first marriage dissolved.
3. The Supreme Court of India outlawed this practice by its decision in
the case of Sarla Mudgal v Union of India, AIR 1995 SC 1531. The ruling
was re-affirmed five years later in Lily Thomas v Union of India (2000) 6
SCC 224.
4. In view of the above, the Law Commission suo motu took up the
subject to examine the existing legal position on Bigamy in India along with
judicial rulings on the subject and to suggest changes in various family law
statutes.
5. We have recommended in this Report as under:
i) In the Hindu Marriage Act 1955, after Section 17 a new
Section 17-A be inserted to the effect that a married
person whose marriage is governed by this Act cannot
marry again even after changing religion unless the first
7
marriage is dissolved or declared null and void in
accordance with law, and if such a marriage is
contracted it will be null and void and shall attract
application of Sections 494-495 of the Indian Penal
Code 1860.
ii) A similar provision be inserted at suitable places into
the Christian Marriage Act 1872, the Parsi Marriage
and Divorce Act 1936 and the Dissolution of Muslim
Marriages Act 1939.
iii) The Proviso to Section 4 of the Dissolution of Muslim
Marriages Act 1939 - saying that this Section would
not apply to a married woman who was originally a
non-Muslim if she reverts to her original faith - be
deleted.
iv) In the Special Marriage Act 1954 a provision be
inserted to the effect that if an existing marriage, by
whatever law it is governed, becomes inter-religious
due to change of religion by either party it will
thenceforth be governed by the provisions of the
Special Marriage Act including its anti-bigamy
provisions.
v) The offences relating to bigamy under Sections
494-495 of the Indian Penal Code 1860 be made
cognizable by necessary amendment in the Code of
Criminal Procedure 1973.
With warm regards,
Yours sincerely,
(Dr AR. Lakshmanan)
Dr M. Veerappa Moily,
Union Minister of Law and Justice,
Government of India,
Shastri Bhawan,
New Delhi - 110 001.
8
Preventing Bigamy via Conversion to Islam - A Proposal for giving
Statutory Effect to Supreme Court Rulings
Contents
Page Nos.
Chapter I
Introduction 9-11
Chapter II
Penal Law on Bigamy 12-15
Chapter III
Bigamy under Civil Marriage Laws 16-19
Chapter IV
Bigamy under Community-Specific Legislation 20-27
Chapter V
Bigamy under Muslim Personal Law 28-32
Chapter VI
Bigamy by Non-Muslims on Embracing Islam 33-34
Chapter VII
Judicial Rulings on Bigamy by Conversion 35-39
Chapter VIII
Recommendations 40-42
9
Chapter I
Introduction
Marriage laws other than that of the Muslims now in force in the country
prohibit bigamy and treat a bigamous marriage as void. For this reason a
marriage to which any of these laws apply attracts the anti-bigamy
provisions of the Indian Penal Code which are applicable to a bigamous
marriage if it is void under the governing law for the reason of being
bigamous [Sections 494-495].
For a long time past, married men whose personal law does not allow
bigamy have been resorting to the unhealthy and immoral practice of
converting to Islam for the sake of contracting a second bigamous marriage
under a belief that such conversion enables them to marry again without
getting their first marriage dissolved.
The Supreme Court of India outlawed this practice by its decision in
the case of Sarla Mudgal v Union of India, AIR 1995 SC 1531. The ruling
was re-affirmed five years later in Lily Thomas v Union of India (2000) 6
SCC 224.
Though these cases related to marriages governed by the Hindu
Marriage Act 1955, their ratio decidendi would obviously apply to all
marriages whose governing laws do not permit bigamy.
10
The Supreme Court decision on this subject is now the law of the
land, and yet it is being widely violated across the country. Two
conspicuous cases of unlawful bigamy through the route of conversion to
Islam have made headlines in recent days.
In one of these cases a prominent politician, already a husband and a
father, mysteriously disappeared and surfaced a month later with a new bride
claiming that they had become husband and wife under the law of Islam to
which both of them had since converted. The fact that the new bride in this
case, who is a lawyer and has been a law officer with the government of her
State, keeps on publicly claiming that her marriage to the convert-bigamist is
fully legal due to his conversion to Islam clearly shows the ignorance about
the law settled in this respect by the Supreme Court prevails also in the
community of lawyers.
In the second case another married man, an army physician of India
serving in Afghanistan, converted to Islam in order to marry an Afghan
Muslim girl serving him as an interpreter. The poor girl was kept in the dark
about his marital antecedents and discovered the same only when years later
he returned to India leaving her behind in Afghanistan.
These are, of course, not the only prominent instances where married
non-Muslim men claiming to have converted to Islam have duped their first
wives; many such cases go unnoticed. There is, thus, a need to make the
legal position as settled by the Supreme Court clear enough by introducing
necessary provisions to that effect in all the existing legislative enactments
governing marriages among various communities.
11
This Report examines the existing legal position of bigamy in India
and suggests ways to check the social malaise of bigamy through the route
of sham conversion.
Depending on the number of plural marriage in a particular case and
the gender of the person indulging in them, etymologists use different
expressions for various situations of plural marriages - bigamy (double
marriages by a man or woman), polygamy (triple or more marriages by a
man or woman), polygyny (bigamy by men) and polyandry (bigamy by
women). Avoiding these subtle differences and for the sake of brevity and
convenience, we are using in this Report the common terms 'bigamy' or
`polygamy' which are opposite of monogamy and may be applied to all
cases of plural marriages irrespective of gender and number of spouses.
12
Chapter II
Penal Law on Bigamy
Bigamy in General
The Chapter on Offences relating to Marriage under the Indian Penal Code
of 1860 contains two provisions relating to bigamy - the first of these
applicable to married persons marrying again without concealing from the
second spouse the fact of the first marriage, and the second to those who do
so by keeping the second spouse in the dark about the first marriage. Section
494 of the Code reads as:-
"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,
13
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."
Coming to the cases of bigamy where a person indulges in it by deceiving
the second spouse, Section 495 of the Indian Penal Code says:-
"Whoever commits the offence defined in the last preceding
section having concealed from the person with whom the
subsequent marriage is contracted, the fact of the former marriage,
shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to
fine".
It will be seen that application of these provisions of the Indian Penal
Code would be attracted only if the second marriage is void, for the reason
of being bigamous, under the law otherwise applicable to the parties to a
particular case; but not so otherwise.
As such the anti-bigamy provisions of the Indian Penal Code apply to
all those whose marriages are governed by any of the following legislative
enactments all of which regard a second bigamous marriage, by a man or
woman, as void :
(i) Special Marriage Act 1954
(ii) Foreign Marriage Act 1969
(iii) Christian Marriage Act 1872
14
(iv) Parsi Marriage and Divorce Act 1936
(v) Hindu Marriage Act 1955
As regards the Muslims, the IPC provisions relating to bigamy apply to
women - since Muslim law treats a second bigamous marriage by a
married woman as void - but not to men as under a general reading of the
traditional Muslim law men are supposed to be free to contract plural
marriages. The veracity of this belief, of course, needs a careful scrutiny.
The anti-bigamy provisions of the Indian Penal Code would not apply
also to tribal men and women if their customary law and practice does not
treat their plural marriages as void. It has been judicially affirmed that
Section 494 of the Indian Penal Code will not apply to members of
Scheduled Tribes unless the tribal law applicable to a case treats a bigamous
marriage as void. See, for instance, Surajmani Stella Kujur (Dr.) v Durga
Charan Hansdah AIR 2001 SC 938.
Nature of Offence
The offence under Section 494 of the Indian Penal Code is non-cognizable,
bailable and compoundable by the aggrieved spouse with the permission of
the court. That the offence is compoundable by mutual consent of the parties
was affirmed in Narotam Singh v State of Punjab AIR 1978 SC 1542.
In the State of Andhra Pradesh, however, by a local amendment of
1992 the offence under Section 494 was made cognizable, non-bailable and
non-compoundable
15
The offence under Section 495 of the Penal Code is non-cognizable,
bailable and - unlike that under Section 494 -- non compoundable. Notably,
in Andhra Pradesh this offence too has been made cognizable and non-
bailable.
IPC Provisions in Action
Bigamy by women is very exceptional in the society, but bigamy by men is
indeed rampant. However, since the anti-bigamy provisions of the Indian
Penal Code are (except in Andhra Pradesh) non-cognizable most cases of the
offence of bigamy remain unpunished. The aggrieved first wives of all
communities silently suffer the miseries caused by the practice of bigamy.
There is also a trend in the society to use devices, supposed to be
'legal', to escape application of the IPC provisions. Among these are
holding incomplete and defective marriage ceremonies, non-marital
cohabitation and fake change of religion.
With the sole exception of Andhra Pradesh, nowhere have any
changes in the IPC provisions or the related procedural law been yet
considered in order to improve upon the working of the said provisions.
16
Chapter III
Bigamy under Civil Marriage Laws
Special Marriage Act 1954
Monogamy is the rule under the Special Marriage Act 1954. Among the
conditions for solemnization of a civil marriage spelt out in the Act the
foremost is that "neither party has a spouse living" - Section 4 (a).
In respect of bigamy there are two different penal provisions under the
Act. If a person already married, under whatever law, fraudulently contracts
a civil marriage the provision of Section 43 of the Act reproduced below will
apply:
"Save as otherwise provided in Chapter III, every person who, being
at the time married, procures a marriage of himself or herself to be
solemnized under this Act shall be deemed to have committed an
offence under section 494 or section 495 of the Indian Penal Code,
as the case may be, and the marriage so solemnized shall be void."
The other provision contained in Section 44, reproduced below, is
meant for a person married under the Special Marriage Act who contracts a
second marriage under any other law:
"Every person whose marriage is solemnized under this Act and
who, during the lifetime of his or her wife or husband, contracts any
other marriage shall be subject to the penalties provided in Section
494 and Section 495 of the Indian Penal Code, for the offence of
17
marrying again during the lifetime of a husband or wife, and the
marriage so contracted shall be void."
Chapter III of the Act, referred to in Section 43 reproduced above,
provides the facility of turning a pre-existing marriage solemnized as
per religious or customary rites into a civil marriage by registering it
under this Act. This facility is also available subject to the condition
that "neither party has at the time of registration more than one spouse
living" - Section 15 (b). If a person having more than one spouse living
fraudulently registers either of his marriages under this Act he will be
guilty of the offence of knowingly making a false statement punishable
under Section 45 of the Act.
The anti-bigamy provisions of the Special Marriage Act apply to
every marriage contracted under its provisions irrespective of the
religion of the parties. A court has specifically held that if a Muslim
contracts a civil marriage under the Special Marriage Act instead of his
personal law the anti-bigamy provisions of the Act will apply to him.
See S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station,
Hyderabad 1997 CriLJ 1655 (AP).
However, if a person who has registered his pre-existing marriage
under the Special Marriage Act in terms of Section 15 contracts a
second bigamous marriage, it is not clear from the language of the Act
if the provision of Section 44 reproduced above will apply to the case.
The words "Save as otherwise provided in Chapter III" in Section 43
are not clear in their meaning. In the fitness of things, since ex post
facto registration of a religious or customary marriage turns it into a
18
civil marriage for all purposes, the anti-bigamy provisions of the Act
should also apply to such a case.
Foreign Marriage Act 1969
This Act facilitates solemnization of civil marriages in foreign countries
between two Indians or an Indian and a foreigner. Monogamy is the
rule under this Act as well, the first condition for the solemnization of
marriage under its provisions being that "neither party has a spouse
living" - Section 4 (a).
If the condition of monogamy and the other conditions
mentioned in Section 4 of the Act are met, a pre-existing marriage
between two Indians or an Indian and a foreigner solemnized in a
foreign country under a local law can be registered under the Foreign
Marriage Act, upon which it shall be deemed to have been solemnized
under the said Act - Section 17.
The anti-bigamy penal provision of Section 19 of the Foreign
Marriage Act, reproduced below, applies to both marriages originally
solemnized under its provisions and those solemnized as per a foreign
law but later registered under the Foreign Marriage Act:
"(1) Any person whose marriage is solemnized or deemed to have
been solemnized under this Act and who, during the subsistence of
his marriage, contracts any other marriage in India shall be subject
to the penalties provided in sections 494 and 495 of the Indian
Penal Code, and the marriage so contracted shall be void.
19
(2) the provisions of sub-section (1) apply also to any such offence
committed by any citizen of India without and beyond India."
The anti-bigamy provisions of the Foreign Marriage Act, like those of
the Special Marriage Act 1954, are applicable to all cases governed by
it, irrespective of the religion of the parties.
Effect of change of religion
Post-marriage conversion by either party to a civil marriages has no
legal consequences - the convert remains subject to the provisions of
the Special Marriage Act 1954 or the Foreign Marriage Act 1969, as the
case may, and neither the converting spouse can contract another
marriage nor the other spouse can seek divorce on the ground of
change of religion.
If either party in such a situation marries again after changing
religion, but without obtaining divorce or a decree of nullity, his or her
conduct will still attract anti-bigamy provisions of the Indian Penal
Code.
20
Chapter IV
Bigamy under Community-Specific Legislation
Christian Marriage Act 1872
As is well known, the Christian religion prohibits bigamy. In India Christian
marriages are governed by an old Act of the British period - the Christian
Marriage Act 1872. It applies to all sorts of marriages among the Christians
of India and requires them to be solemnized under its provisions not only
when both parties are Christian but also when one of them is a Christian and
the other a non-Christian (see Section 4 of the Act).
Marriages can, under this Act, be either solemnized by a 'Minister of
Religion' of a Church, or by or in the presence of a Marriage Registrar.
In the first case, the notice to be given for marriage by either party is
to be accompanied by a declaration of the parties' marital status at the time
of marriage, and the prescribed form for this purpose mentions only two
possibilities - the person giving a notice may be either a bachelor/spinster or
widower/widow. A certificate of compliance with the notice requirement is
to be issued upon the applicant filing a declaration affirming that "he or she
believes that there is not any impediment of kindred or affinity or other
lawful hindrance, to the said marriage;" and the marriage shall be
solemnized only after such a certificate has been issued (Sections 12, 18, 25
& Schedule I).
For obtaining a certificate in the case of a marriage solemnized by or
in the presence of a Marriage Registrar, instead of filing a written
declaration the person giving the notice has to take an oath to the same effect
21
- that "he or she believes that there is not any impediment of kindred or
affinity or other lawful hindrance, to the said marriage" (Sections 41-42).
The marriage of a native Christian can be certified without the
preliminary notice mentioned above subject to the condition, inter alia, that
"neither of the persons intending to be married shall have a wife or husband
still living"(Section 60).
The Act provides that a person making a false oath or declaration or
signing a false notice, intentionally and for the purpose of procuring a
marriage, shall be guilty of the offence punishable under Section 193 of the
Indian Penal Code - Section 66.
There is no specific reference in this Act to the anti-bigamy provisions
contained in Sections 494-495 of the Indian Penal Code. Since bigamy is
strictly prohibited by the Christian religious law and the Act also impliedly
prohibits it, applicability of the said IPC provisions to married Christians
may be seen as a foregone conclusion. Yet, there is a case for making the
Act specific on this point.
A post-marriage change of religion by either spouse may have no
effect on prohibition of bigamy under the Christian law since both the
Christian Marriage Act 1872 and its divorce supplement, the Indian Divorce
Act 1869, apply also to cases where only one spouse is a Christian.
Parsi Marriage and Divorce Act 1936
Unlike the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act
1936 specifically prohibits bigamy and says that Sections 494-495 of the
22
Indian Penal Code will be attracted by every case of bigamy in any marriage
governed by that Act. Sections 4 and 5 of the Act read as follows:
Section 4
"(1) No Parsi (weather such Parsi has changed his or her religion
or domicile or not) shall contract any marriage under this Act or
any other law in the life time of his or her wife or husband,
whether a Parsi or not, except after his or her lawful divorce from
such wife or husband or after his or her marriage with such wife or
husband has lawfully been declared null and void or dissolved;
and, if the marriage was contracted with such wife or husband
under the Parsi Marriage and Divorce Act, 1865, or under this Act,
except after a divorce, declaration or dissolution as aforesaid under
either of the said Acts.
(2) Every marriage contracted contrary to the provisions of sub-
section (1) shall be void."
Section 5
"Every Parsi who during the lifetime of his or her wife or husband,
whether a Parsi or not, contracts a marriage without having been
lawfully divorced from such wife or husband, or without his or her
marriage with such wife or husband having legally been declared
null and void or dissolved, shall be subject to the penalties
provided in sections 494 and 495 of the Indian Penal Code (45 of
1860) for the offence of marrying again during the lifetime of a
husband or wife".
23
The reference to bigamy after change of religion and its prohibition
constitute a unique feature of the Parsi Marriage and Divorce Act 1936
which has no parallel under any other family-law enactment for the time
being in force.
Hindu Marriage Act 1955
Since times immemorial it was believed - rightly or wrongly - that Hindu
religious law allowed an unrestricted polygamy and imposed no specific
conditions on the polygamist-husband. The Muslim rulers of India had left
the Hindu law on polygamy - whatever it was - untouched and did not
impose on any non-Muslim the rules of Islamic law tolerating limited
polygamy in a well-defined discipline of equal justice to co-wives. The
British rulers, who did reform many other aspects of Hindu law, also did not
abolish the rules on polygamy under the traditional Hindu law and custom.
Only the Brahmosamajis had managed to legally adopt monogamy under a
special law enacted for them in the erstwhile Bengal province in 1872.
After the advent of independence anti-bigamy laws were enacted for
the Hindus by provincial legislatures in Bombay, Madras, Saurashtra and
Central Provinces. Finally, in 1955 Parliament enacted the Hindu Marriage
Act putting a blanket ban on bigamy for the Hindus. Buddhists, Jains and
Sikhs, declaring bigamous marriages on their part in future to be void and
penal (see Sections 5, 11 & 17).
One of the conditions for a valid marriage under the Hindu Marriage
Act is that "neither party has a spouse living at the time of the marriage"
[Section 5 (i)]. Violation of this condition shall make the marriage null and
24
void and liable to be so declared by a decree of nullity on a petition filed by
either party against the other party ( Section 11).
Section 17 of the Hindu Marriage Act once again declares every
bigamous marriage among persons governed by the Act to be void and
makes it punishable under the anti-bigamy provisions of the Indian Penal
Code 1860. It reads as follows:
"Any marriage between two Hindus solemnized after the
commencement of this Act is 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 shall apply
accordingly."
Though Section 7 (2) says that if a marriage is solemnized through the
saptpadi ceremony the marriage will be complete and binding on taking the
sevenths step, some High Courts took the view that this is not a special rule
of evidence requiring in a case of bigamy proof of the seventh step having
been duly taken. - Padullapath Mutyala v Subbalakshmi AIR 1962 AP 311,
Trailokya Mohan v State AIR 1968 Ass 22.
In 1988 a learned judge of the Andhra Pradesh High Court, Radha
Krishna Rao, had issued an important note of caution:
"During the subsistence of the first marriage the second marriage
will generally be done in secrecy. It is too idle to expect direct
testimony. In some cases the purohit also who performed the
marriage will be treated as abettor. The courts are giving acquittals
25
on the ground that the required ceremonies for the second marriage
have not been proved beyond reasonable doubt. Suitable
legislation has to be made with regard to the mode of proof of the
second marriage. If the marriage was done publicly and openly to
the knowledge of one and all, the court can expect direct evidence.
When second marriage is being performed in secrecy, knowing
fully well that it is an offence, if the courts insist on strict proof, it
amounts to encouraging perjury. The motto of the court is not to
encourage perjury, but to find out the real truth and convict the
accused if there is a second marriage. Unfortunately, none of the
social organizations which' claim about the protection of the rights
of women, have taken any steps to see that suitable legislation be
made with regard to the mode of proof for performance of the
second marriage." - [1988 CriLJ 1848].
However, linking the anti-bigamy provisions of the Act with the
requirement of a ceremonial solemnization of marriages under Section 7 (2)
of the Act, the Supreme Court later held that if a customary ceremony is
incompletely or defectively performed (to get married again), the resulting
second marriage will be non-existent in eyes of law and hence will not
attract the anti-bigamy provisions of the Act, or of the IPC. See Bhaurao v
State of Maharashtra AIR 1965 SC 1564.
Going by this interpretation, if the saptpadi ceremony has been
incompletely employed in view of the rule of Section 7 (2) there is all the
more reason to treat the second allegedly bigamous marriage as non-existent.
26
If the anti-bigamy provisions of the Hindu Marriage Act are to be
strictly enforced, there is a case for de-linking them from the provision of
Section 7 of the Act under which some ceremony has to be necessarily
employed for solemnizing a marriage.
Effect of Change of Religion
Post-marriage change of religion by either party is under the Hindu Marriage
Act a ground for divorce in the hands of the other non-converting spouse
[Section 13 (1) (ii)]. Without obtaining this relief the non-converting spouse
cannot marry again.
As regards the converting spouse, the Act says nothing as to weather
its anti-bigamy provision, or any other provision for that matter, would cease
to apply to him or her. In the absence of a clear statutory provision on this
point, it has always been a contentious issue if a married man governed by
this Act can upon his conversion to Islam contract a second bigamous
marriage which, it is generally believed, is permissible under Muslim law.
Unexceptional abolition of bigamy for the Hindus, Buddhists, Jains
and Sikhs has created a serious problem for those married men among these
communities who for some reason or the other, justifiable or unjustified,
want to marry again. The new law wants them to first have the existing
marriage legally dissolved. This is not easy. The Hindu Marriage Act makes
room for dissolution of marriages, but the cumbersome judicial process in
the ordinary civil courts given the jurisdiction under the Act has turned
divorce-proceedings into vexatious and long-drawn out struggles. There are
27
genuine cases of broken marriages, as also those in which people dishonestly
want to kick out their first wives and take new partners - the former cases,
of course, outnumber the latter. Those married men who want to marry again
have no religious inhibition, since they believe that their religion allows
them to have their wish; and they do not mind violating the newly imposed
legal ban on bigamy without any religious sanction for it. To avoid the
penalties threatened by the new law to be inflicted on bigamists they,
however, need a 'device'. And, different 'devices' are suggested by those who
are always ready to help lawbreakers - a fake conversion to Islam being
foremost among these devices.
The law of monogamy under the Hindu Marriage Act is, indeed, full
of serious shortcomings and loopholes. Combined with the Act's provisions
relating to marriage-rites, it provides in-built devices for an easy avoidance
of all the consequences of its violation.
28
Chapter V
Bigamy under Muslim Personal Law
Traditional Law
It is generally believed that under Muslim law a husband has an unfettered
right to marry again even where his earlier marriage is subsisting. On a
closer examination of the relevant provisions of the Qur'an and the other
sources of Islamic law, this does not seem to be the truth. The rule of
Muslim law conditionally permitting bigamy in fact visualized two or more
women happily living with a common husband - taking a second wife after
forsaking or deserting the first was not Islam's concept of bigamy.
Bigamy with no restrictions or discipline whatsoever was rampant in the
society where Islam made its first appearance and also in many other
societies across the globe. The Holy Qur'an put restrictions on it, allowing it
within limits, and even within those limits subjecting it to a strict discipline.
The Qur'an permitted polygamy subject to a strict condition that the man
must be capable of ensuring equal treatment of two wives in every respect.
Asserting that this may not be possible even with the best of intentions, the
Holy Book at the same time advised men to keep to monogamy as "this
would keep you away from injustice" (Qur'an, IV: 3 & 129). To this
Qur'anic reform the Prophet added a highly deterrent warning: "A bigamist
unable to treat his wives equally will be torn apart on the Day of Judgment."
This was the reform that the Islamic religious law could, and did, introduce
in the 7th century AD.
29
If bigamy means forsaking of the first wife without divorcing her and
bringing in a new wife, the Qur'an certainly does not permit it. In Muslim
law bigamy envisages two women happily married to the same man actually
living with him and getting from him equally all that a wife can expect from
her husband. Where this is not possible, the Qur'an enjoins the husband to
remain a monogamist. Bigamy of the type now prevalent in India in which
the first wife is wholly forsaken and thereby tortured and a second wife is
allowed to usurp her place in the husband's home is not approved anywhere
in Islamic legal texts.
The Muslim law -- as now traditionally understood, interpreted and
applied in India -- is however believed to permit four marriages during the
subsistence of one another. Though the capacity to do justice between co-
wives is in law a condition precedent for bigamy, whether a man has such
capacity or not is, for inexplicable reasons, not justiciable before he actually
contracts a bigamous marriage. The Dissolution of Muslim Marriages Act
1939 treats unequal treatment between co-wives as a ground for divorce
available to the aggrieved wife; but there is no law under which a man's
right and capacity to contract a second marriage can be examined by
anybody before he enters upon such a course of action.
Rules of Muslim law empower women to restrict the freedom of their
would-be husbands to indulge in bigamy by entering a condition to that
effect in their marriage contract. And since Muslim law allows out-of-court
divorce at the instance of both men and women, it further provides that a
woman who after availing the legally provided facility to get rid of her
husband marries again, will not face the charge of bigamy. These pro-
30
women provisions of Muslim law have been judicially recognized in India in
several cases.
Social & Judicial Trends
Bigamy has been fully abolished or severely controlled by law in most
Muslim countries of the world. Turkey and Tunisia have completely
outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan
and Bangladesh, it has been subjected to administrative or judicial control.
(Details of these reforms can be seen in Tahir Mahmood's book Statutes of
Personal Law in Islamic Countries, 2nd edition, 1995).
In India bigamy is not very common among the Muslims and cases of
men having more than one wife at a time are few and far between. The
Muslim society of India in general in fact looks at polygamy with great
disfavour and a bigamist is generally looked down upon in and outside his
family. Despite this, unfortunately, the religious leaders are not prepared for
any legislative reform in this respect and the religious sensitivities have
never allowed the State to introduce any reform in this regard.
The courts in India also greatly look down upon bigamy and provide
all sorts of relief to the first wives of bigamist husbands. Several High
Courts have held that bigamy amounts to cruelty which can be pleaded as an
answer to the man's suit for restitution of conjugal rights against the first
wife - see Itwari v Asghari AIR 1960 All 684, Raz Mohammad v Saeeda
Amina Begum AIR 1976 Kant 200, Shahina parveen v Mohd Shakeel AIR
1987 Del 210.
31
The Supreme Court of India has held that the provision of Section 125
of the Code of Criminal Procedure 1973 allowing separate maintenance to a
wife on the ground of her husband's cruelty applies to Muslim women
whose husbands contract a second bigamous marriage. See Khatoon v
Yaamin AIR 1982 SC 853.
In another case the Supreme Court has severely criticized the practice
of bigamy and observed that there is no difference between a second wife
and a concubine. See Begum Subhanu v Abdul Ghafoor AIR 1987 SC 1103.
Administrative Service Rules
The Central Civil Services (Conduct) Rules 1964 provide that a person who
has contracted a bigamous marriage or has married a person having a spouse
living shall not be eligible for appointment to such services - Rule 21. The
All India Services (Conduct) Rules 1968 place the same restrictions on those
who are already member of any such service - Rule 19. Both the Rules,
however, empower the government to exempt a person from the application
of these restrictions if the personal law applicable permits the desired
marriage and "there are other grounds for so doing."
These provisions of Service Rules apply to the Muslims and their
constitutional validity has been upheld by the Central Administrative
Tribunal and the courts. See, e.g., Khaizar Basha v Indian Airlines
Corporation, New Delhi AIR 1984 Mad 379 [relating to a similar provision
found in the Regulations framed under the Air Corporation Act 1953].
32
Effect of Change of Religion
Under the traditional Muslim law if a married Muslim woman converts to
another religion her marriage would be automatically dissolved. This rule is,
however, not applicable in India. The Dissolution of Muslim Marriages Act
1939 provides that apostasy of a Muslim wife shall not dissolve her marriage
(Section 4). So, although the 1939 Act does not specifically say so, if a
married Muslim woman renounces Islam and, believing that her first
marriage has been ipso facto dissolved marries again, her second marriage
will attract application of Section 494-495 of the Indian Penal Code.
There is an exception to this rule under the Dissolution of Muslim
Marriages Act 1939 - if a married convert Muslim woman by renouncing
Islam reverts to her original religion the provision of Section 4 will not
apply. In other words, in this case her re-conversion will automatically
dissolve her marriage with her Muslim husband. In such a case, therefore,
anti-bigamy provisions of the Indian Penal Code will not apply. The
exceptional provision clearly seems to be discriminatory.
33
Chapter VI
Bigamy by non-Muslims on Embracing Islam
Bigamy by conversion - viz. a second marriage by a married non-Muslim
man after conversion to Islam - is a common practice in India. The man
having resort to it is given to believe by the lawyers ignorant of the true
Islamic law that on becoming a Muslim he will be legally entitled to freely
marry again irrespective of his previous marital status. This mistaken belief
militates against the letter and spirit of the Islamic law on bigamy. If the
conversion in any such case is sham - as in most such cases it indeed is - the
second marriage will be a fraud on Islamic law and can have no recognition
in it. If the conversion is genuine the second marriage can be allowed
subject to the bar of equal treatment of the co-wives, which obviously would
be impossible in such a case. In either case therefore the second marriage
will be repugnant to the Islamic religion and law.
As regards converts to Islam opting for bigamy, their conversion must
be judged by the Prophet's general verdict saying that "Effect of an action is
governed by the underlying intention" and so conversion by a married non-
Muslim man motivated by a desire to have another wife is of doubtful
religious validity. But even where conversion seems to be genuine, it cannot
be a license for indulging in bigamy by deserting the first wife in violation
of Islam's insistence on treating co-wives with unexceptional equality and
equal justice.
The fact, of course, is that conversion in such cases is invariably a
humbug and is generally followed by formal or informal re-conversion of
34
the newly-wed to their original faith - in fact they never convert to Islam
from the heart. This shuttle-cock playing with various religions is not
checked by our existing law, though it is neither allowed by the religion
which is dishonestly adopted nor sanctioned by the one that is forsaken for
selfish ends. What married Hindu men do and are helped with by ill-
educated religious functionaries and misinformed lawyers is a fraud on
Hinduism, a disgrace to Islam, a cruel joke on the freedom-of-conscience
clause in the Constitution of the country and a criminal scheming against the
law of the land.
35
Chapter VII
Judicial Rulings on Bigamy by Conversion
There has always been a simmering discontent in the judiciary regarding the
tendency of converting to Islam for the sake of contracting a second
bigamous marriage and the courts have tried to control it.
In Vilayat Raj v Sunila AIR 1983 Delhi 351 Justice Leela Seth of the
Delhi High Court had decided that the Act would continue to apply to a
person who was a Hindu at the time of marriage despite his subsequent
conversion to Islam and that he could still seek divorce under the Act
(except on the ground of his own conversion).
In In re P Nagesashayya (1988) Mat LR 123 Justice Bhaskar Rao of
Andhra Pradesh High Court severely criticized the unhealthy practice of
bigamy by conversion and observed that the old rule that the motive behind
conversion could never be questioned had to be rejected at least in the cases
of conversion coupled with bigamy. Similar observations were made in the
case of B Chandra Manikyamma v B. Sudarsana Rao alias Saleem
Mohammed, 1988 CriLJ 1849.
Finally, in the leading case of Smt. Sarla Mudgal v Union of India
(1995) 3 SCC 635 the Supreme Court decided that every bigamous marriage
of a Hindu convert to Islam would be void and therefore punishable under
the Indian Penal Code. The court observed:
36
"Since it is not the object of Islam nor is the intention of the
enlightened Muslim community that the Hindu husbands should
be encouraged to become Muslim merely for the purpose of
evading their own personal law 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".
As regards the logic by which a married non-Muslim's second
bigamous marriage contracted after conversion to Islam could be treated as
void under the Hindu Marriage Act, the court argued as follows:
"It is no doubt correct that the marriage solemnized by a Hindu
husband after embracing Islam may not strictly be a void
marriage under the 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 under Section 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 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. 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.
37
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-by 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 court 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 justice. The
court concluded that:
"The interpretation we have given to Section 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. The result of the
interpretation, we have given to Section 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."
In a separate judgment given in the Sarla Mudgal case Justice R.M.
Sahai indeed spoke the truth when he said that "much misapprehension
prevails about bigamy in Islam". Grossly caricatured now, the Qur'anic
concept of bigamy envisaged two women happily married to the same man
and getting from him equally all that a lawfully wedded wife could rightfully
expect from the husband. Where this was not possible, the Qur'an enjoined
monogamy. While the Qur'anic norms must be strictly observed also by
born Muslims, the popular belief that the Qur'an enables a non-Muslim
husband who has kicked out his wife without a legal divorce to marry again
38
by announcing a sham conversion to Islam is absolutely false.
Derecognizing bigamous marriages of non-Muslim husbands contracted in
such a fraudulent manner indeed enforces Qur'anic justice. On this point the
Sarla Mudgal ruling of the Supreme Court is unassailable.
The Sarla Mudgal ruling was looked with disfavour in certain circles
on the ground that it infringed a person's fundamental right to freedom of
conscience and profession of religion guaranteed by Article 25 of the
Constitution. The matter was brought before the Supreme Court which
dismissed the idea. In Lily Thomas v Union of India (2000) 6 SCC 227 the
court observed:
"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.... 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 idea in a
manner which does not infringe the religious right and
personal freedom of others. It was contended in Sarla Mudgal
case that making a covert 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."
39
As regards the true position of the permission for bigamy under the
traditional Muslim law, the court said:
"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 practice 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 practicing any other religious right for the attainment of
spiritual goals. Islam which is a pious, progressive and
respected religion with a rational outlook cannot be given a
narrow concept as has been tried to be done by the alleged
violators of law."
40
Chapter VIII
Recommendations
All said and done, the Supreme Court of India settled the law once for all
in its Sarla Mudgal ruling of 1995 affirmed in Lily Thomas case of 2000.
We are in complete agreement with the thinking of the Supreme Court.
The verdict that a married non-Muslim even on embracing Islam cannot
contract another marriage without first getting his first marriage dissolved is
undoubtedly in conformity with the letter and spirit of Islamic law on
bigamy.
In any case, this is now the inviolable law of India -- whatever one may
erroneously presume the Islamic law to be. Unfortunately this law as settled
by the Supreme Court is now widely known to the public at large and is
being constantly violated in numerous cases. The need of the hour, therefore,
is to turn the apex court's ruling into a clear legislative provision inserted
into all matrimonial-law statutes of the country.
Though these rulings were handed down in the context of the Hindu
Marriage Act 1955 they will apply to all marriages governed by the other
family-law statutes that are pari materia.
On a careful consideration of all aspects of the trend prevailing among
married non-Muslims to try to defy the law by marrying again on embracing
to Islam, we recommend insertion of the following additional provisions into
various family-law statutes:
41
1.In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.
2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.
3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 - saying that this Section would not apply to a married woman who was originally a non- Muslim if she reverts to her original faith - be deleted.
4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.
5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.
42Although we fully agree with the fact that traditional understanding of the Muslim law on bigamy is gravely faulty and conflicts with the true Islamic law in letter and spirit, to keep our recommendations away from any unhealthy controversy we are not recommending any change in this regard in Muslim law.
(Dr Justice AR. Lakshmanan)
Chairman
(Professor Dr Tahir Mahmood) (Dr Brahm A.
Agrawal)
Member Member-Secretary