Under Mohammedan Law, a man can contract multiple valid marriages while the first is intact, and to attract Section 494 IPC, the second marriage must be deemed void.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri Alok Kumar Pandey, learned counsel for the applicants and Sri Pankaj Saxena, learned A.G.A. for the State.

2. The present application has been filed to quash the charge-sheet no. 318/2020 dated 08.11.2020 and cognizance and summoning orders passed in Criminal Case No. 17364 of 2021 (State of U.P. Vs. Furkan & others) against the applicants arising out of Case Crime No. 5 of 2020 u/s 376, 495, 120-B, 504, 506 I.P.C., Police Station- Mainathar, District- Moradabad, pending before the court of learned Additional Chief Judicial Magistrate-06, Moradabad.

3. Learned counsel for the applicants has submitted that this fact is admitted by the opposite party no. 2 in her statement recorded u/s 164 Cr.P.C. that applicant no. 1 was already married and this fact was not disclosed to her. Though opposite party no. 2 has admitted that she married the applicant no. 1 after being in a relationship with him, and she has been residing in Delhi. Therefore, being a married wife, no offence u/s 494 I.P.C. is made out because under Mohammedan Law, a muslim man can get married upto 4 times, and it is further submitted that the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the “ SHARIAT ACT ”) permits the muslim man to get married more than once then, even after getting a second marriage with the opposite party no. 2, no offence u/s 494 I.P.C. will be made out against him.

4. Learned counsel for the applicants has further submitted that Section 2 of the SHARIAT ACT permits all the issues regarding marriage and divorce shall be decided as per the SHARIAT ACT , which permits the man to get married even during the lifetime of the spouse. It is further submitted that the SHARIAT ACT was enacted in 1937, which is a Special Act, while I.P.C. is the General Act, which was enacted in 1860. Therefore, in view of the maxim, Generalia specialibus non derogant, the special act will prevail over the general act.

5. In support of his contention, learned counsel for the applicants has relied upon the judgement of the Apex Court in the case of Smt. Sarla Mudgal Vs. Union of India and others , 1995 3 SCC 635 , wherein the Apex Court has observed that freedom of religion is the basic foundation of secularism, and that was guaranteed by Articles 25 to 28 of the Constitution of India and right to profess, practice and propagation, including external overt acts of the individual, is a matter of faith and the same is guaranteed by the Constitution of India. Therefore, the issue of marriage, which belongs to the religious liberty is protected by the Constitution of India. It was further observed in that judgement that only in those cases offence u/s 494 I.P.C. would be attracted where a second marriage is void, like contracting a second marriage after conversion into Islam, he has to get his first marriage dissolved. It is further submitted by the learned counsel for the applicants that in the case of Smt. Sarla Mudgal (supra), the Apex Court has also observed that the government should look into the issue to frame the Uniform Civil Code to check the abuse of religion by any person, but till date, the Uniform Civil Code has not been enacted. The SHARIAT ACT will prevail over the I.P.C. being Special Act. It is also submitted that the Apex Court, in the case of Lily Thomas Vs. Union of India & Ors., 2000 6 SCC 224 , has observed that the second marriage under the Mohammedan Law is not an offence if the first marriage was performed as per Mohammedan Law and in the present case, it is not in dispute that the first marriage was contracted by the applicant no. 1, with applicant no.2, Khusnuma, as per the Mohammedan Law. Therefore, the marriage of the applicant with the opposite party no. 2 is a valid marriage.

6. Learned counsel for the applicants has further relied upon the judgement of the Division Bench of Bombay High Court in the case of Kalim Shaikh Munaf and others Vs. The State of Maharashtra