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Supreme Court on feigned conversion to Islam and second marriage-I
By Mushtaq Ahmad
A Supreme Court Bench consisting of Justice S. Saghir Ahmad and Justice R.P. Sethi passed a historic judgment on 5 May, 2000 which has almost given a death-blow to the phobia of the uniform civil code and has also sternly dealt with such persons who outwardly convert to Islam only for the purpose of contracting a second marriage thereby depriving the first wife of her legitimate, legal rights.
[See 2000 Vol. 4 Scale page 176]
The present judgment was passed in a petition seeking a review of the earlier judgment [See 1995 Vol.3 Supreme Court cases page 635) passed by a Bench consisting of Justice Kuldeep Sing and Justice RM Sahai (both now retired). Though the issue of Uniform Civil Code was not at all involved in the case before the court, even then Justice Kuldeep Singh in his separate judgment referring to the earlier Constitution Bench’s recommendation for a uniform Civil Code in the infamous Shah Bano judgment, directed the Central Govt. and the Prime Minister to legislate and implement the UCC and directed that a responsible officer of the Central Govt. shall file an affidavit after one year stating therein about the steps taken by the Govt. in this regard. It was further held that if a Hindu despite his Hindu wife, converts to Islam, and contracts a second marriage, his first marriage shall subsist and the second marriage shall be illegal and he shall be liable to be prosecuted and punished under section 17 of the Hindu Marriage Act and under Section 494 of the Indian Panel Code which prohibit second marriage during the subsistence of the first marriage.
The above judgment was challenged by the All India Muslim Personal Law Board and the Jamiat Ulema Hind etc on the ground that it violates the Fundamentals Rights guaranteed under Article 20, 21, 25 and 26 of the Constitution of India. According to Article 20 (1), a person can be convicted of an offence only when there was a law to that effect at the time of the commission of the offence. Article 21 guarantees right to a dignified life and personal liberty and Article 25 and 26 protect religious freedom.
Factual Aspect: It is pertinent to mention here that a judgment or order is passed by the court in the facts and circumstances of the particular case before the court. Imaginary and hypothetical questions are never the ground for any order or judgment. The judge is empowered to decide the issues involved in the case which forms the basis of the ratio decided of the case. In this particular judgment, Honb’le Justice S. Saghir Ahmad has made the understanding of the judgment of giving thread base an account of the factual aspect of the case.
Smt. Sushmita Ghosh filed a Writ Petition No. 509 of 1992 in the Supreme Court and stated that she was married to Mr. G.C. Ghosh (now Mohd. Karim Ghazi) according to Hindu rites on 10 May, 1984. He asked her to agree for a divorce by mutual consent as he had converted to Islam and was to marry Ms Vanita Gupta (a mother of two children) in the second week of July. Smt. Sushmita challenged the second marriage of her husband as being violative of Article 15 (1) of the Constitution, she also submitted that Shri Ghosh had converted to Islam not being influenced by its teachings and ideals but only for the purpose of the second marriage. After conversion, he has done no overt act of being a Muslim. He has not mutated or got entered his new name in the official records. His conversion is simply feigned and sham. She had got filed the case through Smt. Sarla Mudgal, the president of an NGO Kalyani in 1992 which was decided in 1995. During the pendency of this case Mr. Mohd. Karim Ghazi had married Ms Vinita Gupta (now Hena Begum) on 3 September, 1992 and a son was born out of this second wedlock. Ms Sushmita filed the birth certificate of this baby in the Court in which the name of the father and mother was written as G.C. Ghosh and Vinita Ghosh respectively. She also filed copy of the voters’ list for the year 1994 in which the name of the husband and wife were mentioned as G. C. Ghosh and Vinita Ghosh. Mr. Mohd. Karim Ghazi had applied for Bangladesh visa. Ms Sushmita filed copy of that document also in the court in 1994 in which his name was written as Gyan Chand Ghosh and religion was mentioned as Hindu. The name of the husband and wife were mentioned as Mohd. Karim Ghazi and Hena Begum in the Nikahnama which was issued by Mufti Mohd. Tayyab Qasmi. Signature on it was legible as G.C. Ghosh. Ms Kapil Gupta, the mother of the bride had signed as a witness.
Based on the above peculiar fact-situations of the case, Honb’le Justice S. Saghir Ahmad and Honb’le Justice R.P. Sethi passed the instant judgment, the salient features of which are briefly enumerated as follows: -
1. The most important question before the court was that if some Hindu husband/wife converts to another religion, contracts a second marriage during the subsistence of the first marriage simply for the purpose of avoiding the legal clutches of Section 17 of the Hindu Marriage Act, then what will be the effect of this criminal liability? According to Section 5, 11 and 17 of the Hindu Marriage Act, if one marries second time during the life time of his/her spouse, the second marriage shall be void, and such husband or wife may be prosecuted for having committed the offence of bigamy under sections 494 and 495 of the Indian Penal Code. According to the judgment, the conversion will have no effect on the first marriage. The first marriage subsists, and does not come to an end automatically. Since the relations of husband and wife continue under the first marriage, their matters/disputes will be decided as per their personal laws, i.e., section 17 of the H. M. Act; the second marriage will be void and on the complaint of first wife or her near relation, the new convert husband may be prosecuted under Section 17 of the H. M. Act and under sections 494 and 495 of the IPC. Conversion does not end the first marriage but becomes a groused for divorce, and unless the first marriage is dissolved by a judicial verdict, no second marriage is permissible under any other Personal Law and if such a second marriage takes place the same shall be void and the person may be held criminally liable for a bigamous marriage.
But the Hon’ble Judges have admitted that the position under the Muslim law is different. Justice RP Sethi has stated in separate but concurring judgment, "The concept of Muslim law is based upon the edifice of Shariat. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co-wives in law is condition precedent. Even under the Muslim law plurality of marriage is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic Law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion. The violators of law who have contracted the second marriage cannot be permitted to urge that such marriage should not be made subject matter of prosecution under the general Penal Law prevalent in the country. The progressive outlook and wider approach of Islamic law cannot be permitted to be squeezed and narrowed by unscrupulous litigants, apparently indulging in sensual lust sought to be quenched by illegal means who apparently are found to be guilty of the commission of the offence under the law to which they belonged before their alleged conversion. It is nobody’s case that any such convert has been deprived of practicing any other religious right for the attainment of spiritual goals. Islam which is pious, progressive and respected religion with rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.’
Under the Muslim Law one can avoid criminal liability for bigamy only when the previous marriage is also under the Muslim Law. In any case, in the instant case before the court, the conversion is feigned and not because of a change in real faith. About conversion, Justice S. Saghir Ahmad writes: ‘Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and devotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion is not easily interchangeable. If the person feigns to have accepted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited.’
2.It was urged on behalf of the review petitioners that to prosecute a new Muslim for second marriage is against the provisions of Articles 21, 25 and 26 of the Constitution. There is no substance in such argument. It has been admitted before us that no personal liberty or religious freedom of the petitioners has been affected. It has been urged that new converts can be punished without procedure established by law only ! on the basis of the admission of the second marriage. It is a mere suspicion without any basis. The Sarla Mudgal judgment has neither laid down any new law for the trial of persons contracting second marriage nor a new procedure to that effect. The person seeking conviction of the accused for a commission of offence under Section 494 IPC is under a legal obligation to prove all the ingredients of the offence charged and conviction cannot be based upon mere admission outside the court. To attract the provisions of Section 494, the second marriage has to be proved besides proving the previous marriage. Such marriage is further required to be proved to have been performed or celebrated with proper ceremonies.
3. It is not proper to say that ban on the second marriage after conversion and prosecution of the convert under Section 494 IPC is against the provisions of religious freedom guaranteed under Article 25 of the Constitution. The Sarla Mudgal judgment has not violated any body’s right to conscience and right to freely propagate his religion. Freedom guaranteed under Article 25 is such freedom which does not encroach upon a similar freedom of the other persons. Under the Constitutional Scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit his belief and ideas in a manner which does not infringe the religious right and personal freedom of others.