Report on LILY Thomas VS Union OF India PDF

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LILY Thomas VS Union OF India...

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Report Submitted By: MAHESH

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Lily Thomas vs. Union of India Citation: AIR 2000 SC 1650 Appellant: Lily Thomas

Court: Supreme Court of India Respondent: Union of India (UOI) and Ors.

Bench: S Ahmed, R Sethi

INTRODUCTION: Background of the above case 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. FACTS OF THE CASE: 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.494 and 495, IPC. Mrs. Sushmita Ghosh, filed a Writ Petition [W.P.(C) No. 509 of 1992] Prayed that she was the legally wedded wife and wanted to live with him has prayed that her husband should be restricted from entering into another marriage with Vinita Gupta. Mrs. Sushmita Ghosh was stated in the petition that Shri G. C. Ghosh has converted to Islam solely for the purpose of re-marrying and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he changed his name or religion and other official documents 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 proceedings. Other writ petitions for breach of fundamental rights (Art. 20, 21, 25, 26) due to the law set by Sarla

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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. On 30th November, 1992, this Writ Petition was directed to be tagged with Writ Petition (C) No. 1079/89 (Smt. SarlaMudgal, President, "Kalyani" and Ors. v. Union of India and Ors. and W.P. (Civil) No. 347/90 Sunita @ Fatima v. Union of India and Ors.. ISSUES: 1. Whether a Hindu husband can solemnise second marriage by converting to Islam? 2. Whether the husband would be liable for bigamy under section 494 of IPC? 3. Whether there should be Uniform Civil Code for all citizens of India? CONTENTIONS OF PETITIONER: 1. The Petitioner’s first issue has been raised by Lily Thomas on behalf of the women wronged, 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 pretend 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. It is an attempt to abridge women’s freedom and betrayal by the Muslim Personal Law Board as it is a violation of Article 15(1) and Article 13(1). 2. Lily Thomas pleaded the court to declare polygamy in the Muslim law to be unconstitutional. 3. Many Muslim women have filed petitions before the SC and HC to declare Polygamy in Muslim law to be unconstitutional. 4. Lily Thomas pleaded 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.

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5. To have Uniform Civil Code so that no personal religious law make fundamental right violation so as to deal with vast sociolegal issues that were due to various religious personal law. 6. Respondent has no actual faith and belief in the religion as his name and religion were not changed in the official documents, which means that the conversion was merely for the solemnisation of the second marriage. 7. The petitioner asserted that the uniform civil code would ensure that personal religious laws do not violate fundamental rights ARGUMENTS ADVANCED RESPONDEDNT:

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1. The respondents in all the above petitions assert a common contention that having embraced Islam, they can have four wives irrespective of the fact that the first wife continues to be Hindu. Thus, they are not subject to the applicability of Hindu Marriage Act, 1955, the Section 11 of which makes bigamous marriage void and also to the section 17 of which made them guilty for bigamy under section 494 of Indian Penal Code (IPC). 2. Gyan Chand Ghosh explained that he has the inherent right to profess, practice, and propagate any religion as it is part of the freedom of conscience; it is his valuable fundamental right guaranteed under Article 25 of the Constitution of India. 3. In the pursuance of his right, it can be deduced that he fulfills some formal prerequisite evidence of conversion as testimony by the certificate submitted in his possession issued by one Mufti, Mohd. TayyebQasmi. 4. His plea was initiated as a converted Muslim, he has taken the second wife, and according to Mohammedan law, it is permissible. Hence, their marriage must not be declared void. OBSERVATIONS: • According to Section 494 of the Indian Penal Code, if a person remarries during the lifetime of husband or wife, then the second

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marriage would be considered void, and the spouse is punishable for the term which can extend to 7 years and shall also be subject to fine. Bigamy is also punishable under sections 5 and 17 of the Hindu Marriage Act, 1955. However, Muslim law permits polygamy, which creates a significant conflict over whether a person married under Hindu law would be held liable if he gets converted. Sarla Mudgal’s case was diluted because the primary concern of enforcing the uniform civil code was not attainable; the recommendation was given to solve the problem of conflicts arising due to personal religious law. Nevertheless, during the judgment, judges only gave directions and expressed their views, which does not ensure its application. Uniform civil code or any other code rarely arises before the court for its enforceability. It marked the significant difference between legislative activity and judicial activity. The case in hand with the court was of conflict of personal law, so they wanted to resolve the issue through proper legal action and, thus, in the following process, reminded the state of uniform civil code. Another reason which prevents its enforceability was the state cannot act in haste. As it can increase the suspicions among the religious communities; which can lead to clashes of opinions along with this state has to look upon all the relevant factors not only one isolated observation in the judgment.

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The contention that the law stated in the Sarla Mudgal case cannot be applied to those marriages that have been solemnized in violation of the mandate a law before the date of judgment is not acceptable. The Supreme Court has not initiated any new law, but only interpretations were made in the existing one, which is in practice. It is an enraged principle that the interpretation of the provision of law relates to the date of the law itself and cannot be prospective from the date of judgment because concededly, the court does not legislate anything but only give their interpretation to an already accepted law. The argument that the second marriage by a convert male Muslim is treated as an offence only by judicial pronouncement is not accurate. The judgment has only amended the existing law after taking into account the several arguments put forth in front of the bench and argued at length. The violation of Article 21 of the Constitution without any appropriate reasoning and evidence is liable to be dissolved on this ground alone.

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It was stated that mere conversion to another religion does not end the marriage unless a decree of divorce is not recognized from

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the court. Till the decree is not accepted, the marriage subsists. Any other marriage before the divorce would be liable for the offence of bigamy. The alleged violation of Article 21 is misconceived. It contended that no person shall be deprived of personal life or liberty, which is a premature notion here because factually and none of the petitioner’s right to life and personal liberty has been violated. The person is apprehended to be penalised only under section 494 and 495 of IPC; the judgment in Sarla Mudgal has not created or changed the procedure for the alleged commission of bigamy. •

The grievance, which is put forth that the freedom of violation of Article 25 has taken place, but in reality, propagation, profession, and practice of religion are not breached. On the contrary, violation of the law under the cloak of religion was executed by the respondent. As a result after the commission of second marriage when from the first marriage the husband or wife still alive that person is persecuted under section 494 and 495 of bigamy and the contention of the respondent that his freedom of following any religion without any interference cannot be dismissed on this basis. •

Supreme Court does not have the power to give the supervision to enforce the directive principles of state policy described in chapter four of the Constitution, which includes Article 44.

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JUDGEMENT: The Supreme Court bench of Justice Sagir Ahmed, 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 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....