Petitioner:-Lily Thomas

Respondent:-Union of India

Citation:-Writ Petition (Civil) No. 798 of 1995

Justice Late Lily Thomas, an Indian Advocate, filed a petition to the apex court and lower courts to change and improve existing laws. Her petitions led to various landmark cases.

Case summary:-

• Bigamy is the act of entering into a second marriage while the first marriage remains legally valid.

• In the case of Lily Thomas v. Union of India and others, a prominent legal decision was made.

• This case was initially brought forward as a writ petition and was a review of the Sarla Mugdal versus UOI case.

• In the case of Lily Thomas v. Union of India, Smt.Sushmitha Gosh was married to he Shri G.C.Gosh, then he converted into Islam to take advantage of marrying twice.

• Sushmitha Gosh filed a writ petition before the supreme court stating that she was married to Mr. M C Ghosh as per Hindu rituals and practices in the year 1984.

• In the year 1992, Mr.Ghosh   asked Ms.Ghosh for divorce by mutual divorce and he also stated that he had covered into islam so that he can marry for the second time to Ms.Vinita Gupta who was a divorcee with two kids.

• As there is no provision for a second marriage or bigamy under the Hindu Marriage Act,1959. He produced a certificate which confirmed that he had converted to islam.

• It is crystal clear from the above stated facts that Mr.Ghosh only converted to islaim for the sake of second marriage and he had actually no faith in his converted religion.

Issues Raised:-

• Whether there should be Uniform Civil Code for all the citizens?

• Whether a Hindu can solemnize second marriage by converting to Islam?

• Whether the husband held liable for bigamy under section 494 of IPC?

Contentions of the Petitioner:-

• The petitioner stated that in this case the practice of converting into islaim just for the sake for second marriage or polygamy, which is allowed under muslim personal law violates the women’s right to life and personal freedom which is guaranteed under Article 21 of the constitution of India.

• The petitioner along with other muslim women, appealed for the declaration of polygamy in muslim personal law as unconstitutional.

• The petitioner in Lily Thomas Case argued that the respondent’s conversion to Islam does not fulfill the essentials of Muslim laws. To be considered as a muslim, one should renounce their previous religious faith. However, the respondent continued to practice his hindu faith and was well known by his hindu name, Ryan Chad Ghosh, in different official documents. It was clear that he was converted to just have a second marriage with Miss Vanita.

• The petitioner argued that the second marriage was void under section 11 of the Hindu Marriage Act, as it did not meet the essential conditions provided in Section 5 of the Act. The first condition was that there should be no living spouse. The petitioner prayed the court to declare the second marriage as void and respondent be held liable under Section 17 of the Hindu marriage Act, as well as Sections 494 and 495 of the Indian Penal Code.

Contentions of the Respondent:-

• The respondents in this petition provided a common counter-argument. They claimed that, as they converted to islam, they were entitled to have four wives, regardless of the fact that their first wife remained Hindu. They contended that as this matter revolves around personal laws and the respondents were accused under sections of the Indian Penal Code, there was no violation of fundamental rights.

• The respondents also argued that many aspects of muslim personal laws are not codified. So, to convert into a islam person should be sound mind with full consent for converting. Here, both the requirements are fulfilled and Mohammad Kareem Ghazi obtained a conversion certificate from Maulana Qari Mohammad Idris, Shahi Qazi.

• The respondents invoked about the article 25 of the Indian Constitution that one can explicitly convert to another religion, thus exercising their constitutional right to freedom of religion.

• The respondents argued that the Section 11 of the Hindu Marriage Act,1955 is applicable only to hindus. Since the respondent had converted to islam all the laws and acts that were binding only on Hindus no longer applied to him.

• Respondents contended that the polygamy is prohibited in Hindu laws, but Muslim laws allows a muslim man to have up to four wives. The Quran, which is the primary source of Muslim laws, explicitly says that a muslim man can marry and can have maximum four wives and should treat them with equal love and affection. Therefore, the respondents argued that the application of section 494 and section 495 of the Indian Penal Code that the marriage be declared void under the laws. However, under the Muslim laws it is allowed.

Judicial Reasoning:-

Justice S. Sagir Ahmad in Lily Thomas Case stated that if a person with a living spouse attempts to enter into a second marriage, the second marriage will be invalid and void under Section 11 of the Hindu Marriage Act,1955. The court emphasized that a subsequent marriage by a Hindu during the existence of the first marriage is not legally valid. The Honorable Court also clarified that the freedom guaranteed under Article 25 of the Indian Constitution should not violate freedom of others. It was also pointed out that the term ‘Islamic’ primarily means submission to god and not just marriage. The Muslim law does permit second marriages in India, it is subject to the condition that one can do justice to both spouses. Changing the religion for the purpose of second marriage is not in line with the principles of religion. If a Hindu spouse files a complaint against their partner for the offense of bigamy and then converts to another religion, the offense will be dealt under the Hindu Marriage Act,1955.

The Supreme court clarified that there is no voilation of Article 21. The Act of contracting a second marriage while the first marriage still exists is addressed in IPC section 494 and it does not violate Article 21.

The Judgement passed by the supreme court to the issues raised are as follows:-

• There is no violation of Article 21 of the constitution on India in this case.

• Mr.Gosh’s religious conversion is not in accordance with Muslim law.

• The second marriage is void under section 11 of the Hindu Marriage Act.

• Sections 494 and 495 of the Indian Penal Code,1860 mentioned in Section 17 of the Hindu Marriage Act,1955 are applicable.

• The court also addressed the broader issue of a Uniform Civil Code (UCC), noting that while a UCC is desirable, immediate implementation could harm national unity. It recommended that laws should evolve gradually to address specific issues, respecting India’s diverse social fabric and promoting unity among different faiths.

Legal Principles:-

1. Article 20 of the Indian Constitution,1950 Protection in respect of conviction for offences

• No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
• No person shall be prosecuted and punished for the same offence more than once. (3)No person accused of any offence shall be compelled to be a witness against himself.
• Article 21 of the Indian Constitution,1950 Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

• Article 25 of the Indian Constitution,1950

Freedom of conscience and free profession, practice and propagation of religion

(1)Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2)Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a)

regulating or restricting any economic, financial, political or other secular activity which maybe associated with religious practice;

(b)

providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

• Section 494 of the Indian Penal Code,1860

Marrying again during life-time 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 with imprisonment of either description for a term which may extend to seven years, and shall also be

liable to fine.

• Section 495 of the Indian Penal Code,1860

   Punishment for bigamy.-

• Whoever commits bigamy shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

• Whoever commits bigamy, having concealed, from the person with whom the later marriage is contracted the fact of the earlier marriage, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

• Hindu Marriage Act,1955-Section 11(void marriages)

Void marriages.-

Any marriage solemnised 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.

Impact and critique:-

The Judgement passed by the apex court in this case Lily Thomas v. Union of India will have a very good impact on the society.This prevents the men from misuse of religious conversions. This

decision prevents men from taking advantage of religious conversions to marry multiple times without renouncing their previous marriages. The decision clarifies that converting to islam does not automatically end the duties and responsibilities of a husband from his first marriage. Lily Thomas case is observable because the apex court ruled that a second marriage without renouncing first marriage is considered as void. It saves many women from exploitation.

Conclusion:-

The decision in this case was in the favor of the wife and The judgment is very important for all the women across the nation, as men were taking an advantage of religious conversion to marry again and lead a life with over one wife.

References:-

• Manupatra

• Indian kanoon

• LawBhoomi

• iPleaders Blog