Lily Thomas vs. Union of India & ors.

In Supreme Court of India

Citation
AIR 2000 SC 1650
Petitioner
Lily Thomas
Respondent
Union Of India & Ors
Date of Judgement
5th April, 2000
Bench
A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya
Background:
The case that we discuss today is a landmark judgment in the legal history of India. The case
Lily Thomas vs. Union of India & Ors is landmark due to the fact that in this case SC considered
second marriage without prior divorce from the first marriage to be void wherein men were
converting their religion to Islam to solemnize the second marriage but all of this was considered
void unless and until first marriage was dissolved according to the Hindu Marriage Act otherwise
the husband would be liable for bigamy under section 494 and 495 of Indian Penal Code. This
was because converting to Islam would not dissolve the first marriage and the Husband is liable
to all the obligations as he would be prior converting to Islam. Such a judgment was important
since men were taking recourse to such conversion for marrying and having more than one wife.
Bigamy is the offence of marrying another while the first marriage still persists and such
bigamous relations are illegal and the second marriage is void ab initio. For a long period,
married men whose personal law did not allow bigamy have been recurring to the unhealthy and
immoral practice of converting to Islam for the interest of condensing a second bigamous
marriage underthe assumption that such conversion would help them to marry again without
getting their first marriage dissolved. Mrs. SushmitaGhosh v. Union of India and Ors, Smt.
SarlaMudgal, President ,Kalyani and others v. Union of India and Ors, Sunita &Fatima v. Union
of India and Ors these petitions were collectively taken by SC to decide the status of bigamous
marriage by converting to Islam.
Issues Raised:
1. Whether there should be Uniform Civil Code for all citizens?
2. Whether a Hindu husband can solemnise second marriage by converting to Islam?
3. Whether the husband would be liable for bigamy under section 494 of IPC?
Facts:
1. Mrs. Sushmita Ghosh was married to Mr. Gyan Chand Ghosh according to hindu rituals on
10th May, 1984.
2. On 22nd April her husband told her that he does not want to live with her any further and
should agree for divorce by mutual consent.
3. All of this came as a shock to Petitioner and prayed that she was the legally wedded wife and
wanted to live with him therefore the question of divorce should not arise.
4. The husband told her that he has converted to Islam and would marry Vinita Gupta.
5. He procured a certificate dated 17th June, 1992 from Qazi indicating that he has converted to
Islam.
6. Mrs. Sushmita Ghosh has prayed that her husband should be restricted from entering into
another marriage with Vinita Gupta.
Contentions Raised:
Petitioner:
1. Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the
act of religious conversion to muslim to commit the act of bigamy as Muslim personal law
allows it is an attempt where the women freedom of facing such bigamous marriage and such
betrayal is violative of Art.21(right to life and liberty).
2. Lily Thomas pleaded before the court to male polygamy in Muslim Law to be
unconstituutional.
3. It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-legal
issues that were due to various religious personal law.
4. Many Muslim women have filed petitions before the SC and HC to declare Polygamy in
Muslim law to be unconstitutional.
5. To reframe Muslim personal law with the change in time and disallow the practice of
Polygamy as it is disrespectful to the integrity and liberty of women who have to face such
situations.
6. To have Uniform Civil Code so that no personal religious law make fundamental right
violation.
7. Such contentions were made by Lily Thomas in pretext of all the aggrieved women.
Respondent:
1. The state agreed with the petitioner in their plea.
2. Several recommendations were made in this context.
Significance of the Judegement:
1.Marriage resulting from conversion to Muslim from any other faith during the existence of
previous marriage before conversion is deemed void even when Muslim Personal Law (Shariat)
Act allows polygamy because such conversion is not exercise of freedom  but rather it is a
fraudulent act without the  change in one’s faith.
2. 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 had any relevant change in any document which
would conclude such conversion to be of concrete nature provided this act also not provided any
significance to the child born from that wedlock.
3. Even bank accounts hold identification of the husband to have been Hindu. All this adds to the
fact that such conversion was solely done in order to enter into second marriage ie. Bigamy and
there was no change in one’s faith.
4.Therefore, marriage resulting from such a conversion is void also due to violation of Art.21.
The violation of Article 21 on behalf of those considered under the law laid down in Sarla
Mudgal is being seen as no violation at all but 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.
5. 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.
6. The Court has said that violation of Article 21 is misconceived. Since Art.21 states that no
person shall be deprived of his right and personal liberty except as per procedure established by
law and herein such an act of marriage while the first marriage still persists is codified in IPC sec
494 there is no violation of Art. 21.
7. The doctrine of indissolubility of marriage is not recognized in traditional Hindu law even
when conversion led to the change in one’s religion. Marriage would not be dissolved only by
the pretext of one converting to another religion.
8. Unless the law permits for uniform civil code a non Islamic husband would have the
opportunity to convert to another religion ie. Islam to legalize one’s marriage but since such an
act has become an act that would be penalize such conversion would not have any validity if the
first marriage is not dissolved.
9. In India there are no marriage related law since marriage take place according to one’s
personal law therefore such thing could not be codified and applying uniform civil code to such
an issue would not do just to one’s own personal belief but what could be penalized are the
wrong acts done in pretext of such personal law which is what the SC has done in this case by
making it illegal to marry another person while already in marriage with the first wife by
converting to Islam.
10. This law as laid down in Sarla Mudgal v. Union of India and which was upheld in Lily
Thomas v. Union of India has raised pertinent issues for having a Uniform Civil Code (such 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.
11. Such an implementation from this law commission report is yet to be seen in the existing
time.Thus this law persists in judicial precedents and ration decidendi which is applicable to
every citizen of India irrespective of their religion.