2000 Supreme(SC) 997

2000(3) Supreme 601
Supreme Court of India
S. Saghir Ahmad & R.P. Sethi JJ.
Lily Thomas, etc. etc. —Petitioners
versus
Union of India & Ors. —Respondents
WP (C) No. 798 of 1995
With
(WP (C) No. 1079/89, RP (C) No. 1310/95 In WP (C) 509/92, WP (C) No. 347/90, WP (C) No. 424/92, WP (C) No. 503/95, WP (C) No. 509/92, WP (C) No. 588/95, WP (C) No. 835/95)
All decided on 5-5-2000

Very Important Points
1. If a Hindu even after conversion to Islam marries a second time during the life time of his wife, such marriage apart from being void under Sections 11 and 17 of the Hindu Marriage Act, would also constitute an offence and that person would be liable to be prosecuted u/s 494 Indian Penal Code.
2. Even under the Muslim Law plurality of marriages 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.
3. As the Court has no power to give directions for the enforcement of the Directive Principles of the State Policy, no directions appeared to have been issued by this Court for the purpose of having Uniform Civil Code within the meaning of Arti­cle 44 of the Constitution.

Headnote:(i) Hindu Marriage Act, 1955—Section 17—Indian Penal Code, 1860—Section 494—Bigamy—Offence of—Conversion of Hindu hus­band to Islam—Effect of second marriage qua the first marriage which subsists inspite of conversion—Criminal liability u/s 17 of Hindu Marriage Act r/w Section 494 IPC—Whether husband would be liable to be prosecuted for offence u/s 494 IPC?—(Yes)—Change of religion does not dissolve the marriage performed under Hindu Marriage Act between two Hindus—A second marriage during life time of the spouse, would be void under Sections 11, 17 Hindu Marriage Act, besides being an offence—Whether judgment in Sarla Mudgal’s case, 1995(3) SCC 635, is contrary to fundamental rights as enshrined in Articles 20, 21, 25 and 26 of Constitution of India?—(No)—Petition seeking review of judgment in Sarla Mudgal’s case held liable to be dismissed.

       Held : As per Hon’ble Mr. R.P. Sethi, J.—The petitioners have not made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal’s case. The petition is misconceived and bereft of any substance. (Para 54)

       We do not agree with the arguments that the second marriage by a convert male muslim has been made offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone. (Para 55)

       The aggrieved persons are apprehended to be prosecuted for the commission of offence punishable under Section 494 IPC. It is premature, at this stage, to canvass that they would be deprived of their life and liberty without following the procedure established by law. The procedure established by law, as mentioned in Article 21 of the Constitution, means the law prescribed by the Legislature. The judgment in Sarla Mudgal’s case has neither changed the procedure nor created any law for the prosecution of the persons sought to be proceeded with for the alleged commission of the offence under Section 494 of the IPC. (Para 57)

       The grievance that the judgment of the Court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion also far fetched and apparently artifically carved out by such persons who are alleged to have violated the law by attempting to cloak themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of conscience and propagation of religion. The rule of monogamous marriage amongst Hindus was introduced with the proclamation of Hindu Marriage Act. Section 17 of the said Act provided that any marriage between two Hindus solemnised after the commencement of the Act shall be void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly. The second marriage solemnised by a Hindu during the subsistence of first marriage is an offence punishable under the Penal law. Freedom guaranteed under Article 25 of the Constitution 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. 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”. (Para 58)

       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 marriages 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 convertee has been deprived of practising any other religious right for the attainment of spiritual goals. The 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. (Para 58)

       What we are considering is the effect of second marriage qua 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 Hindu Marriage 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. (Para 60)

       As per Hon’ble Mr. S. Saghir Ahmad, J. (Concurring judgment)—Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the court. Till a decree is passed, the marriage subsists. Any other marriage, during the subsistence of first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, in spite of his conversion to some other reli­gion, would be liable to be prosecuted for the offence of bigamy. It also follows that if the first marriage was solemnized under the Hindu Marriage Act, the ‘husband’ or the ‘wife’, by mere conversion to another religion, cannot bring to an end the mari­tal ties already established on account of a valid marriage having been performed between them. So long as that marriage subsists, another marriage cannot be performed, not even under any other personal law, and on such marriage being performed, the person would be liable to be prosecuted for the offence under Section 494 IPC. (Para 32)

       The position under the Mahommedan Law would be different as, in spite of the first marriage, a second marriage can be con­tracted by the husband, subject to such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judg­ment, with which I concur on this point also. This is the vital difference between Mahommedan Law and other personal laws. Prose­cution under Section 494 in respect of a second marriage under Mahommedan Law can be avoided only if the first marriage was also under the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on contra­cting a second marriage in the life-time of the spouse. (Para 33)

       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. The institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament. Both have to be preserved. (Para 35)

       (ii) Constitution of India—Article 44—Uniform Civil Code for citi­zens—No directions issued by this Court for purpose of having uniform Civil Code—Kuldeep Singh, J. in his judgment only re­quested the Government to have a fresh look at Article 44 of the Constitution—Additional Solicitor General also submitted that Government of India did not intend to take any action in this regard.

       Held : As per Hon’ble Mr. R.P. Sethi, J.—This Court has no power to give directions for the enforcement of the Directive Principles of the State Policy as detailed in Chapter IV of the Constitution which includes Article 44. This Court has time and again reiterated the position that Directives, as detailed in Part IV of the Constitution are not enforceable in Courts as they do not create any justiciable rights in favour of any person. (Para 62)

       In this case also no directions appeared to have been issued by this Court for the purpose of having uniform Civil Code within the meaning of Article 44 of the Constitution. Kuldeep Singh, J. in his judgment only requested the Government to have a fresh look at Article 44 of the Constitution in the light of words used in that Article. In that context the direction was issued to the Government for filing an affidavit to indicate the steps taken and efforts made in that behalf. Sahai, J. in his concurrent but separate judgment only suggested the ways and means, if deemed proper, for implementation of the aforesaid Directives. The judges comprising the Bench were not the only judges to express their anguish. Such an observation had earlier also been made in Shah Bano’s case (supra) and Ms. Jorden Diengdeh v. S.S. Chopra [1985(3) SCC 62]. The apprehension expressed on behalf of Jamiat-Ulema Hind and Muslim Personal Law Board is unfounded but in order to allay all apprehensions we deem it proper to reiterate that this Court had not issued any directions for the codification of the common Civil Code and the judges constituting the different Benches had only expressed their views in the facts and circumstances of those cases. (Para 62)

       As per Hon’ble Mr. S. Saghir Ahmad, J.—I also agree with Brother Sethi, J. that any direction for the enforcement of Article 44 of the Constitution could not have been issued by only one of the Judges in Sarla Mudgal’s case. In fact, Sarla Mudgal’s case was considered by this Court in Ahmeda­bad Women Action Group & Ors. v. Union of India, (1997) 3 SCC 573 and it was held that the question regarding the desirability of enacting a Uniform Civil Code did not directly arise in Sarla Mudgal’s case. I have already reproduced the order of this Court passed in Sarla Mudgal’s case on 23.4.1990 in which it was clearly set out that the learned counsel appearing in that case had, after taking instructions, stated that the prayers were limited to a single relief, namely, a declaration that where a non-Muslim male gets converted to the Muslim faith without any real change of belief and merely with a view to avoid any earlier marriage or to enter into a second marriage, any marriage entered into by him after conversion would be void. (Para 37)

       In the counter affidavit filed on 30th August, 1996 and in the supplementary affidavit filed on 5th December, 1996 on behalf of Govt of India in the case of Sarla Mudgal, it has been stated that the Govt. would take steps to make a uniform code only if the communicate which desire such a code approach the Govt. and take the initiative themselves in the matter. With these affidavits, the Govt. of India had also annexed a copy of the speech made by Dr. B.R. Ambedkar in the Constituent Assembly on 2nd December, 1948 at the time of making of the Constitution. While discussing the position of common civil code, Dr. Ambedkar, inter alia, had stated in his speech (as revealed in the Union of India’s affidavit) that “...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 in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.” (Para 39)

       Moreover, as pointed out by Brother Sethi, J., learned ASG appearing for the respondent has stated before the Court that the Govt. of India did not intend to take any action in this regard on the basis of that judgment alone. (Para 40)

       (iii) Constitution of India—Article 137—Supreme Court Rules—Order XL—Civil Procedure Code, 1908—Order XLVII Rule 1—Review—Powers of—Mere fact that two views on the same sub­ject are possible is no ground to review the earlier judgment passed by a Bench of the same strength—No review lies except on ground of error apparent on face of record.

       Held : The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. (Para 52)