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Supreme Court on feigned conversion to Islam and second marriage-II
By Mushtaq Ahmad
4. It was contended in Sarla Mudgal’s case that making a convert Hindu liable for prosecution under the Penal Code would be against Islam, the religion adopted by such person upon conversion. ‘Such a plea raised demonstrates the ignorance of the petitioners about the tenets of Islam and its teachings. The word ‘Islam’ means peace and submission.’ In its religious connotation, it is understood as submission to the will of God.’ According to Fyzee (Outlines of Mohammadan Law, 2nd ed.) in its secular sense, the establishment of peace. The word, ‘Muslim’ in Arabic is the active principle of Islam, which means acceptance of faith the noun of which is Islam. Muslim law is admittedly to be based upon a well recognized system of Jurisprudence providing many rational revolutionary concepts, which could not be conceived by other systems of law in force at the time of its inception. Sir Ameer Ali in his book Mohammadan Law, Tagore Law lectures, 4th edition, volume I, has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth the small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of all civilized world.’
5. It was further contented that as per Article 20 (1) of the Constitution, a person can be prosecuted and punished only when there was a law to that effect at the time of the commission of the alleged offence. This way, the persons who had contracted second marriage before the Sarla Mudgal judgment, convert be prosecuted under Section 494 IPC. Rejecting this plea, the Honb’le Judges have held that in the Sarla Mudgal judgment, no new law has been laid down, rather existing law has been interpreted. It is not such that persons contracting second marriage shall be prosecuted under Section 494 IPC by virtue of the Sarla Mudgal judgment. Since this section was already in existence, therefore, the aggrieved persons cannot be permitted the advantage of Article 20 (1).
6. It was submitted by Mr. Yusuf Muchala, senior advocate, appearing for the All-India Muslim Personal Law Board and also by the advocate of the Jamiat Ulema Hind that the Sarla Mudgal Judgment would render the status of the second wife as that of a concubine and children born of that wedlock as illegitimate to this the Honb’le judges have held this issue is not involved in the present case. What we are considering is the effect of second marriage via the first marriage which subsists in spite of conversion of the husband to Islam, for the limited purpose of ascertaining his criminal liability under Section 17 of the H.M. Act read with Section 494 IPC. As and when this question is raised, it would be open to the parties to agitate the legitimacy of such wife and children and their rights in appropriate proceedings or forum.’
7. One of the Judges in the Sarla Mudgal judgment had asked the Central Govt. to legislate and implement the uniform civil code in the country. He also referred to that portion of the Shah Bano Judgment in which the court had recommended a uniform civil code. In this instant judgment, it with respect to uniform civil code, it has been held: -
i. One of the judges in the Sarla Mudgal Case had no legal and constitutional right to issue any direction about legislation and implementation of a uniform civil code
ii. This court has no right to direct the Govt. to implement any Directive Principle including Article 44 contained in Chapter 4 of the Constitution. It has been so held by this court earlier also (PM Setty V/S State of Karnataka AIR 1989 AC 100, Keshvanand Bharti V/S State of Kerala 1973 Vol. 4 SCC 225)
iii. In Ahmedabad Women Action Group V/S Union of India 1947 Vol. 3 SCC 573, it has been held that there was no issue of uniform civil code involved in the Sarla Mudgal case and hence the direction of the single judge was unnecessary and uncalled for.
iv. It has been held in Pannalal Bansilal V/S State of Andhra Pradesh (1996 Vol. 2 Section 498) that the implementation of uniform civil code may be counterproductive to the unity and integrity of the country.
v. In this instant case, an affidavit had been filed by the Central Govt. to the effect that no uniform civil code will be implemented unless the affected communities so desire and initiative in this respect comes from their side with this affidavit, a copy of Dr. B.R. Ambedkar’s speech delivered on Dec 2, 1948 was also annexed in which he stated:
‘I should also like to point out that all that the State is claiming in this matter is a power to legislate. There is no obligation upon the state to do away with personal laws. It is only giving a power, therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power is a manner that may be found to be objectionable by the Muslims or by the Christians or by any others community in India. We must all remember- including members of the Muslim community who have spoken on this subject through one can appreciate their feelings very well- that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities’
vi. The Addl. Solicitor General appeared on behalf of the Central Govt. and enforced the court that acting on the direction in the Sarla Mudgal judgment, the Govt. has no intention to legislate and implement uniform civil code.
vii. No direction had been issued in the Sarla Mudgal Judgment for implementation of uniform civil code. Justice Kuldeep Singh had requested the Govt. to have a fresh look at Article 44 of the Constitution in the light of the words used in the Article. Such requests have been made earlier also in the Shah Bano case and in other cases. ‘The apprehensive expressed on behalf of the Jamiat Ulema Hind and the Muslim Personal Law Board that the Govt. will act on the Sarla Mudgal Judgment is unfounded but in order to allay all apprehensions, we deem it proper, to reiterate that this court not issued any directions for the codification of the common civil code and the judges constituting the deferred benches had only expressed their views in the facts and circumstances of those cases.’
Now, it is clear from the above that in the instant case, Mr GC Ghosh had accepted Islam for ulterior and oblique motives. His motive was to contract a second marriage under the garb of conversion. He remained a Hindu for all practical purposes. It is a misuse of Islam. He had clearly violated Section 17 of the Hindu Marriage Act. The issue before the court was a feigned and sham conversion and not a factual and true conversion by heart. This judgment has dealt a death blow to the uniform civil code and has also justified having more than one wife under the Muslim Law like the condition of equal justice and treatment to co-wives.
MUSHTAQ AHMAD is advocate, Supreme Court, New Delhi