Memorandum on behalf of the Respondant

In the Honourable

Supreme Court

In the matter of

S.R Bommai.........................................................................Appellant

V.

Union of India......................................................................Respondent

Counsel on behalf of Appellants

Akhil Gangesh

Semester III; Section C

Roll No. 14

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TABLE OF CONTENT

1. List of Abbreviation----------------------------------------------------- 3

2. List of Cases--------------------------------------------------------------- 4

3. Statement of Jurisdiction------------------------------------------------- 5

4. Statements of facts------------------------------------------------------ 6

5. Questions Presented----------------------------------------------------- 7

6. Summary of Pleadings-------------------------------------------------- 8

7. Written submission------------------------------------------------------ 9

8. Prayer---------------------------------------------------------------------- 13

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LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Art. Article

C.P.C. Civil Procedure Code

Ed. Edition

Etc. Et Cetera

Lrs. Legal Representatives

Ors. Others

Para Paragraph

P. Page Number

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

ipc Indian penal code

est. Established

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Legislations:

 Constitution of India

Cases:

1. Re Ram Kumari1
2. Nandi Zainab vs. The Crown2
3. Robasa Khanum vs. Khodadad Bomanji Irani3
4. Ram Kumari in Budansa vs. Fatima4

1
1891 Calcutta 246
2
ILR 1920 Lahore 440
3
1946 Bombay Law Reporter 864
4
1914 IC 697

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STATEMENT OF FACTS
1. In Karnataka, The Janata Party being the majority party in the State Legislature had
formed Government under the leadership of S.R. Bommai. In September 1988, the
Janata Party and Lok Dal merged into a new party called Janata Dal. The Ministry
was expanded with addition of 13 members. Within two days thereafter, one K.R.
Molakery, a legislator of Janata Dal defected from the party. He presented a letter to
the Governor along with 19 letters, allegedly signed by legislators supporting the
Ministry, withdrawing their support to the Ministry.
2. As a result on 19 April, the Governor sent a report to the President stating therein
there were dissensions and defections in the ruling party. He further stated that in
view of the withdrawal of the support by the said legislators, the chief Minister,
Bommai did not command a majority in the Assembly and, hence, it was
inappropriate under the Constitution, to have the State administered by an Executive
consisting of Council of Ministers which did not command the majority in the state
assembly. He, therefore, recommended to the President that he should exercise power
under Article 356(1).
3. However on the next day seven out of the nineteen legislators who had allegedly
written the said letters to the Governor sent letters to him complaining that their
signatures were obtained on the earlier letters by misrepresentation and affirmed their
support to the Ministry. The Chief Minister and his Law Minister met the Governor
the same day and informed him about the decision to summon the Assembly, even by
bringing forward the scheduled session, to prove the confidence of assembly in his
government.

4. To the same effect, he sent a telex message to the President. The Governor however
sent yet another report to the President on the same day i.e., 20-4-1989, and stated that
the Chief Minister had lost the confidence of the majority in the House and repeated
his earlier request for action under Article 356(1). On that very day, the President
issued the Proclamation in question with the recitals already referred to above. The
Proclamation was, thereafter approved by the Parliament as required by Article
356(3). A writ petition was filed on 26 April 1989 challenging the validity of the
proclamation. A special bench of 3 judges of Karnataka High Court dismissed the writ
petition.

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5. Also, in Meghalaya, On 11 October 1991 the president issued a proclamation under

Article 356(1) dismissing the government of Meghalaya and dissolving the legislative
assembly. The Proclamation stated that the President was satisfied on the basis of the
report from the Governor and other information received by him that the situation had
arisen in which the Government of the State could not be carried on in accordance
with the provisions of the Constitution. The Government was dismissed and the
Assembly was dissolved accordingly.

6. In Nagaland, on 7 August 1988, the president issued the proclamation on the basis of
Governor Report and dismissed the Government of Nagaland thus dissolving the
Legislative assembly. Vamuzo, leader of opposition party, challenged the validity of
Proclamation in Gauhati High Court. A Division Bench comprising the Chief Justice
and Hansaria, J. heard the petition. The Bench differed on the effect and operation of
Article 74 (Constitution of India)(2) and hence the matter was referred to the third
Judge. But before the third learned judge could hear the matter, the Union of India
moved this Court for grant of special leave which was granted and the proceedings in
the High Court were stayed.

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QUESTIONS PRESENTED

1. Whether a proclamation issued by the president on the advice of his counsil of ministers
is amenable to judicial review ?

2. Whether the provisions of article 74(2) of the constitution of India permits withholding
of the reasons and material forming the basis for the ministerial advice tendered to the
president ?

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SUMMARY OF PLEADINGS

1. A Hindu husband married under Hindu law by embracing Islam, does not solemnize
a second marriage as the first marriage was not dissolved hence it would be in the
violation of justice, equity and good conscience.

2. A marriage without having first marriage dissolved under the law , would not be a
valid marriage as the first marriage was not dissolved under the decree of divorce,
by which only a Hindu marriage can be dissolved.

3. The apostate husband is guilty of the offence under section 494 of IPC,1860 as
already he has his living wife and without dissolution of the first marriage he marries
again with the other woman, which according to the Indian Penal Code is a
punishable offence.

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WRITTEN SUBMISSION

1. A HINDU HUSBAND MARRYING UNDER HINDU LAW

BY EMBRACING ISLAM DOES NOT SOLEMNIZE A
SECOND MARRIAGE

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.”

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 as
good as to destroying the existing rights of the other spouse who continues to be Hindu.

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 justice5. “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.”

5
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. August 2009.

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In the case of Nandi Zainabvs The Crown6 it was held that mere fact of her conversion to
Islam did not dissolve the marriage which could only be dissolved by a decree of court.

Keeping in mind the interests of both the Hindu and Muslim communities and the plurality of
laws, the court concluded that: "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."

2. A MARRIAGE WITHOUT HAVING THE FIRST

MARRIAGE DISSOLVED UNDER THE LAW, WOULD
NOT BE A VALID MARRIAGE QUA THE FIRST WIFE
WHO CONTINUED TO BE A HINDU

The Court interpreted the provisions of the Hindu Marriage Act 1955 while answering this
question. It held 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.

6
ILR 1920 Lahore 440

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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 5.7

"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.8

After looking at the legal provisions and giving a fair interpretation, the Court 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. THE APOSTATE HUSBAND IS GUILTY OF THE

OFFENCE OF SECTION 494 OF IPC, 1860

Section 494 Indian Penal Code is as under: "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
7
In the present case clause (i) is applicable, i.e. (i) neither party has a spouse living at the time of the marriage.
8
Section 15, Hindu Marriage Act 1955.

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with imprisonment of either description for a term which may extend to seven years, and
shall also be liable to fine.”

“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. Any act
which is in violation of mandatory provisions of law is per se void. The real reason for the
void-ness 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.”

It is humbly submitted that the learned Judges further reiterated in the case of Robasa
Khanum vs. Khodabad Irani's9that: "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 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

9
1946 Bombay Law Reporter 864

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PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
This Honourable Court may be pleased to pass a decision and declare that:

 The appeal stands allowed.

 A Hindu husband married under Hindu Law by embracing Islam does not solemnize a second
marriage.
 Marriage without having the first marriage dissolved under the law would not be a valid
marriage qua the first wife who continued to be a Hindu.
 The apostate husband be guilty of the offence of Section 494 of IPC.

Or pass any other order which can be deemed fit in the spirit of justice, equity and good
conscience.

All of which is humbly submitted before the Honourable Court.

Date: 5th April 2014 Counsel for Appellants

Place: New Delhi Akhil Gangesh

Roll No. 14

Section ‘C’ Semester II

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