B.A.

LLB 4th Semester 1183007

Lily Thomas v. Union of India

Anirudhya Dutta

Facts:

Mrs. Sushmita Ghosh was married to Mr. Gyan Chand Ghosh, who to reap benefit of a second
marriage with one Ms. Vinita Gupta (divorcee with 2 children) had converted to Islam as the
Hindu Marriage Act prohibited bigamy under s.5 read with s.11 of the Hindu Marriage Act and
further substantiated under s.17 of the Hindu Marriage Act which provides the Punishment for
Bigamy to be the same as under s.474 and 475, IPC.

The three petitions viz., 1) Mrs. Sushmita Ghosh v. Union of India and Ors.1 ; 2) Smt.Sarla
Mudgal, President, Kalyani and others v. Union of India and Ors.2 ; 3) Sunita @ Fatima v.
Union of India and Ors.3 , here they had been tagged together and the Supreme Court made the
law that “marriage resulting from religious conversion to Islam for taking a second wife is
void when during the existence of first marriage under The Hindu Marriage Act because such
conversion of faith is feigned rather than exercise of freedom of conscience.4

The case Lily Thomas v. Union of India is where various persons and Jamiat Ulema Hind & Anr.
, have filed review petition under Art.136 of the Constitution of India to review law laid down by
Sarla Mudgal Case in 1995 and which was upheld through the Lily Thomas case before in the
criminal proceedings5. Other writ petitions for breach of fundamental rights (Art. 20, 21, 25, 26)
due to the law set by Sarla Mudgal case was also filed. Lily Thomas is the lawyer of the
distressed wife, Mrs. Sushmita Ghosh and other such women who have been a victim to
bigamous marriage through religious conversion.6 This case is resided by the two Judges bench
of S. Saghir Ahmed, J. and R.P. Sethi, J.

From this case the vital issue that arises on Art.21:

Whether religious conversion for the purpose of committing bigamy and polygamy is violation of
Art.21 as long as Muslim Personal laws or any other marriage law allows polygamy?

And

1
2001(2) ACR 1809(SC)
2
AIR 1995 SC 1531
3
W.P. (Civil) No. 347/90 (SC)
4
2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363 and also was the principle in Sarla Mudgal v. Union of India, AIR
1995 SC 1531
5
2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363
6
http://timesofindia.indiatimes.com/india/End-polygamy-Muslim-woman-pleads-with-
SC/articleshow/41545339.cms visited on 15th March, 2013.
B.A.LLB 4th Semester 1183007

whether apprehension of a person for charges of bigamy after religious conversion to Islam is
breach of the fundamental right to life and liberty due to the judgment passed by a Court of law
or not?

Contention from the Parties

The first issue has been raised by Lily Thomas on behalf of the women wronged, the argument
was that marriage is a sacred institutions and resorting to the act of religious conversion to
Muslim so as to commit the act of bigamy as Muslim Personal Law allows it, is a feigned
attempt where freedom of conscience is not at stake but the women’s freedom of facing such
conditions of bigamous marriage and this betrayal is violative of Art.21 right to life and liberty.
Furthur, Lily Thomas urged the court to declare polygamy in the Muslim law to be
unconstitutional.

This was one of the most profound arguments placed before the Supreme Court for adopting a
Uniform Civil Code so as to absolve vast majority of socio-legal issues that were being
uncovered due to Religious Personal Laws. The few were 1) Many Muslim women had filed writ
petition before the Supreme Court and other high courts to declare polygamy in Muslim law to
be unconstitutional. 2) To reframe Muslim personal law in the likes as present in Tunisia where
polygamy is disallowed as the custom and usage of polygamy is disrespectful to the liberty and
integrity of women who have to face and live within bigamous and polygamous marriages. 3) To
have a Uniform Civil Code so that no Personal Religious laws makes fundamental rights
violation.7

The latter issue has been raised from the petitioners’ side as some of them have been
apprehended under s.475, IPC due to the law made by the Supreme Court in the Sarla Mudgal’s
Case; hence review of the same has been raised against the Court’s previous judgment. The
counsel for the petitioners have argued that the aggrieved parties while exercising their freedom
of conscience and to profess any religion have sought conversion to Islam and due to such
reasons they are allowed to commit Bigamy. The judgment in Sarla Mudgal Case have laid down
the law that such marriage done after conversion to Islam is void as under the Hindu law before
conversion their exists the previous marriage and hence, due to such voidness of marriage, some
have been apprehended under s.475, IPC. This is a violation of right to life and liberty due to the
contention that the Muslim Personal Law (Shariat) Act allows bigamy and hence, the
apprehended have not committed any offence of IPC.

Judgment

The Supreme Court bench of Sagir Ahmed, J. and Sethi, J. has upheld the decision of the Sarla
Mudgal case and further has enforced the same. Marriage resulting from conversion to Muslim
from any other faith during the existence of previous marriage before conversion is deemed void

7
http://en.wikipedia.org/wiki/Uniform_Civil_Code visited 15/3/2013.
B.A.LLB 4th Semester 1183007

even when Muslim Personal Law (Shariat) Act allows polygamy because such conversion is not
exercise of freedom of conscience but rather feigned and fraudulent without the change of faith.
The reason derived from the facts that lead to this judgment was due to the practice of the
husband who had converted to Islam but had not registered his new name or faith as recognition
for the child born out of the second wedlock. Even bank accounts hold identification of the
husband to have been Hindu. All these were seen as evidence to justify that the conversion was
feigned and solely for bigamous marriage rather than any changes in neither faith nor practice of
faith. Hence, marriage resulting from such conversion is void also due to violation of Art.21.

The violation of Article 21 on behalf of those apprehended under the law laid down in Sarla
Mudgal is being seen as no violation at all but the Court speaking from Sethi J. have contended
that Article 21 states no person shall be derived of his right of life and personal liberty except as
per procedure establish by law. Here the persons are apprehended for offences under s.474 and
475, IPC therefore no right has been violated because such apprehension has been laid down by
law. The Court has said that alleged violation of Article 21 is misconceived.

Analysis:

This law as laid down in Sarla Mudgal v. Union of India and upheld in Lily Thomas v. Union of
India has raised issues for having a Uniform Civil Code for India (such though has been laid
down in Lily Thomas case) and also the 227th Report of The 18th Law Commission of India in
August 2009 have made this issue of preventing Bigamous marriage though Conversion to Islam
it’s subject and the commission headed by Dr. Justice A.R. Lakshmanan have provided sound
measures to keep this rampant practice of fraudulent conversion for benefits of
bigamy/polygamy under strict constrains so as to prevent such atrocities from ever occurring.
Though such implementation of the report in Indian Statutory law is yet to be seen. The law
exists in judicial precedent and the ratio decidendi is applicable to all religious laws and not
confined to prevention under Hindu Marriage law.8

The order dismissed the review petition and other petition due to no substance but also assured
the Jamiat Ulema Hind and the Muslim Personal Law Board that the Judiciary or the Union have
not thought of making a Uniform Civil code. All interim orders passed including stay of the
Criminal Case in subordinate Courts shall stand vacated. Both judges have given a concurring
opinion.

Henceforth, the law on this issue reads: Any Marriage instituted after conversion to Muslim
while a marriage already remains from before conversion, will be void.

8
18th Law Commission of India, 227th Report: Preventing Bigamy via Conversion to Islam – A Proposal for giving
Statutory Effect to Supreme Court Rulings; August, 2009.