Author : Vipin Upadhyay
Marriage laws other than that of the Muslims now in force in the country prohibit bigamy and treat a bigamous marriage as void. For this reason a marriage to which any of these laws apply attracts the anti-bigamy provisions of the Indian Penal Code which are applicable to a bigamous marriage if it is void under the governing law for the reason of being bigamous [Sections 494-495].
Bigamy is the act or condition of any person marrying (any form of marriage) yet another person while still being lawfully married.[1]To constitute Bigamy under Section 494 IPC, the second marriage had to be a valid marriage duly solemnized and as it was not so solemnized it was not a marriage at all in the eye of law and was therefore invalid. The essential ingredient constituting the offence of Bigamy is the “marrying” again during the lifetime of husband or wife in contrast to the ingredients of Section 498A. The thrust is mainly “marrying” in Section 494 IPC.[2]
For a long time past, married men whose personal law does not allow bigamy have been resorting to the unhealthy and immoral practice of converting to Islam for the sake of contracting a second bigamous marriage under a belief that such conversion enables them to marry again without getting their first marriage dissolved.
The Supreme Court of India outlawed this practice by its decision in the case of Sarla Mudgal v Union of India, AIR 1995 SC 1531. The ruling was re-affirmed five years later in Lily Thomas v Union of India (2000) 6 SCC 224.
Though these cases related to marriages governed by the Hindu Marriage Act 1955, their ratio decidendi would obviously apply to all marriages whose governing laws do not permit bigamy.
The Supreme Court decision on this subject is now the law of the land, and yet it is being widely violated across the country. Two conspicuous cases of unlawful bigamy through the route of conversion to Islam have made headlines in recent days.
In one of these cases a prominent politician, already a husband and a father, mysteriously disappeared and surfaced a month later with a new bride claiming that they had become husband and wife under the law of Islam to which both of them had since converted. The fact that the new bride in this case, who is a lawyer and has been a law officer with the government of her State, keeps on publicly claiming that her marriage to the convert-bigamist is fully legal due to his conversion to Islam clearly shows the ignorance about the law settled in this respect by the Supreme Court prevails also in the community of lawyers.
In the second case another married man, an army physician of India serving in Afghanistan, converted to Islam in order to marry an Afghan Muslim girl serving him as an interpreter. The poor girl was kept in the dark about his marital antecedents and discovered the same only when years later he returned to India leaving her behind in Afghanistan.
These are, of course, not the only prominent instances where married non-Muslim men claiming to have converted to Islam have duped their first wives; many such cases go unnoticed. There is, thus, a need to make the legal position as settled by the Supreme Court clear enough by introducing necessary provisions to that effect in all the existing legislative enactments governing marriages among various communities.
This project examines the existing legal position of bigamy in India and suggests ways to check the social malaise of bigamy through the route of sham conversion.
Depending on the number of plural marriage in a particular case and the gender of the person indulging in them, etymologists use different expressions for various situations of plural marriages – bigamy (double marriages by a man or woman), polygamy (triple or more marriages by a man or woman), polygyny (bigamy by men) and polyandry (bigamy by women). Avoiding these subtle differences and for the sake of brevity and convenience, we are using in this Report the common terms ‘bigamy’ or `polygamy’ which are opposite of monogamy and may be applied to all cases of plural marriages irrespective of gender and number of spouses.
Bigamy in General
The Chapter on Offences relating to Marriage under the Indian Penal Code of 1860 contains two provisions relating to bigamy – the first of these applicable to married persons marrying again without concealing from the second spouse the fact of the first marriage, and the second to those who do so by keeping the second spouse in the dark about the first marriage. Section
494 of the Code reads as:-
“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.
Exception. — This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
Coming to the cases of bigamy where a person indulges in it by deceiving the second spouse, Section 495 of the Indian Penal Code says:-
“Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
It will be seen that application of these provisions of the Indian Penal Code would be attracted only if the second marriage is void, for the reason of being bigamous, under the law otherwise applicable to the parties to a particular case; but not so otherwise.
As such the anti-bigamy provisions of the Indian Penal Code apply to all those whose marriages are governed by any of the following legislative enactments all of which regard a second bigamous marriage, by a man or woman, as void :
(i) Special Marriage Act 1954
(ii) Foreign Marriage Act 1969
(iii) Christian Marriage Act 1872
(iv) Parsi Marriage and Divorce Act 1936
(v) Hindu Marriage Act 1955
As regards the Muslims, the IPC provisions relating to bigamy apply to women – since Muslim law treats a second bigamous marriage by a married woman as void – but not to men as under a general reading of the traditional Muslim law men are supposed to be free to contract plural marriages. The veracity of this belief, of course, needs a careful scrutiny.
The anti-bigamy provisions of the Indian Penal Code would not apply also to tribal men and women if their customary law and practice does not treat their plural marriages as void. It has been judicially affirmed that Section 494 of the Indian Penal Code will not apply to members of Scheduled Tribes unless the tribal law applicable to a case treats a bigamous marriage as void. See, for instance, Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah AIR 2001 SC 938.
bigamy under Hindu Marriage Act 1955
Since times immemorial it was believed – rightly or wrongly – that Hindu religious law allowed an unrestricted polygamy and imposed no specific conditions on the polygamist-husband. The Muslim rulers of India had left the Hindu law on polygamy – whatever it was – untouched and did not impose on any non-Muslim the rules of Islamic law tolerating limited polygamy in a well-defined discipline of equal justice to co-wives. The British rulers, who did reform many other aspects of Hindu law, also did not abolish the rules on polygamy under the traditional Hindu law and custom. Only the Brahmosamajis had managed to legally adopt monogamy under a special law enacted for them in the erstwhile Bengal province in 1872.
After the advent of independence anti-bigamy laws were enacted for the Hindus by provincial legislatures in Bombay, Madras, Saurashtra and Central Provinces. Finally, in 1955 Parliament enacted the Hindu Marriage Act putting a blanket ban on bigamy for the Hindus. Buddhists, Jains and Sikhs, declaring bigamous marriages on their part in future to be void and penal (see Sections 5, 11 & 17).
One of the conditions for a valid marriage under the Hindu Marriage Act is that “neither party has a spouse living at the time of the marriage” [Section 5 (i)]. Violation of this condition shall make the marriage null and void and liable to be so declared by a decree of nullity on a petition filed by either party against the other party ( Section 11).
Section 17 of the Hindu Marriage Act once again declares every bigamous marriage among persons governed by the Act to be void and makes it punishable under the anti-bigamy provisions of the Indian Penal Code 1860. It reads as follows:
“Any marriage between two Hindus solemnized after the commencement of this Act is 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 shall apply accordingly.”
Though Section 7 (2) says that if a marriage is solemnized through the saptpadi ceremony the marriage will be complete and binding on taking the sevenths step, some High Courts took the view that this is not a special rule of evidence requiring in a case of bigamy proof of the seventh step having been duly taken. – Padullapath Mutyala v Subbalakshmi AIR 1962 AP 311, Trailokya Mohan v State AIR 1968 Ass 22.
In 1988 a learned judge of the Andhra Pradesh High Court, RadhaKrishna Rao, had issued an important note of caution:
“During the subsistence of the first marriage the second marriage will generally be done in secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed the marriage will be treated as abettor. The courts are giving acquittals on the ground that the required ceremonies for the second marriage have not been proved beyond reasonable doubt. Suitable legislation has to be made with regard to the mode of proof of the second marriage. If the marriage was done publicly and openly to the knowledge of one and all, the court can expect direct evidence.
When second marriage is being performed in secrecy, knowing fully well that it is an offence, if the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not to encourage perjury, but to find out the real truth and convict the accused if there is a second marriage. Unfortunately, none of the social organizations which’ claim about the protection of the rights of women, have taken any steps to see that suitable legislation be made with regard to the mode of proof for performance of the second marriage.” – [1988 CriLJ 1848].
However, linking the anti-bigamy provisions of the Act with the requirement of a ceremonial solemnization of marriages under Section 7 (2) of the Act, the Supreme Court later held that if a customary ceremony is incompletely or defectively performed (to get married again), the resulting second marriage will be non-existent in eyes of law and hence will not attract the anti-bigamy provisions of the Act, or of the IPC. See Bhaurao v State of Maharashtra AIR 1965 SC 1564.
Going by this interpretation, if the saptpadi ceremony has been incompletely employed in view of the rule of Section 7 (2) there is all the more reason to treat the second allegedly bigamous marriage as non-existent.
If the anti-bigamy provisions of the Hindu Marriage Act are to be strictly enforced, there is a case for de-linking them from the provision of Section 7 of the Act under which some ceremony has to be necessarily employed for solemnizing a marriage.
Effect of Change of Religion
Post-marriage change of religion by either party is under the Hindu Marriage Act a ground for divorce in the hands of the other non-converting spouse [Section 13 (1) (ii)]. Without obtaining this relief the non-converting spouse cannot marry again.
As regards the converting spouse, the Act says nothing as to whether its anti-bigamy provision, or any other provision for that matter, would cease to apply to him or her. In the absence of a clear statutory provision on this point, it has always been a contentious issue if a married man governed by this Act can upon his conversion to Islam contract a second bigamous marriage which, it is generally believed, is permissible under Muslim law.
Unexceptional abolition of bigamy for the Hindus, Buddhists, Jains and Sikhs has created a serious problem for those married men among these communities who for some reason or the other, justifiable or unjustified, want to marry again. The new law wants them to first have the existing marriage legally dissolved. This is not easy. The Hindu Marriage Act makes room for dissolution of marriages, but the cumbersome judicial process in the ordinary civil courts given the jurisdiction under the Act has turned divorce-proceedings into vexatious and long-drawn out struggles. There are genuine cases of broken marriages, as also those in which people dishonestly want to kick out their first wives and take new partners – the former cases, of course, outnumber the latter. Those married men who want to marry again have no religious inhibition, since they believe that their religion allows them to have their wish; and they do not mind violating the newly imposed legal ban on bigamy without any religious sanction for it. To avoid the penalties threatened by the new law to be inflicted on bigamists they, however, need a ‘device’. And, different ‘devices’ are suggested by those who are always ready to help lawbreakers – a fake conversion to Islam being foremost among these devices.
The law of monogamy under the Hindu Marriage Act is, indeed, full of serious shortcomings and loopholes. Combined with the Act’s provisions relating to marriage-rites, it provides in-built devices for an easy avoidance of all the consequences of its violation.
Bigamy under Muslim Personal Law
Traditional Law
It is generally believed that under Muslim law a husband has an unfettered right to marry again even where his earlier marriage is subsisting. On a closer examination of the relevant provisions of the Qur’an and the other sources of Islamic law, this does not seem to be the truth. The rule of Muslim law conditionally permitting bigamy in fact visualized two or more women happily living with a common husband – taking a second wife after forsaking or deserting the first was not Islam’s concept of bigamy.
Bigamy with no restrictions or discipline whatsoever was rampant in the society where Islam made its first appearance and also in many other societies across the globe. The Holy Qur’an put restrictions on it, allowing it within limits, and even within those limits subjecting it to a strict discipline. The Qur’an permitted polygamy subject to a strict condition that the man must be capable of ensuring equal treatment of two wives in every respect. Asserting that this may not be possible even with the best of intentions, the Holy Book at the same time advised men to keep to monogamy as “this would keep you away from injustice” (Qur’an, IV: 3 & 129). To this Qur’anic reform the Prophet added a highly deterrent warning: “A bigamist unable to treat his wives equally will be torn apart on the Day of Judgment.” This was the reform that the Islamic religious law could, and did, introduce in the 7th century AD.
If bigamy means forsaking of the first wife without divorcing her and bringing in a new wife, the Qur’an certainly does not permit it. In Muslim law bigamy envisages two women happily married to the same man actually living with him and getting from him equally all that a wife can expect from her husband. Where this is not possible, the Qur’an enjoins the husband to remain a monogamist. Bigamy of the type now prevalent in India in which the first wife is wholly forsaken and thereby tortured and a second wife is allowed to usurp her place in the husband’s home is not approved anywhere in Islamic legal texts.
The Muslim law — as now traditionally understood, interpreted and applied in India — is however believed to permit four marriages during the subsistence of one another. Though the capacity to do justice between cowives is in law a condition precedent for bigamy, whether a man has such capacity or not is, for inexplicable reasons, not justiciable before he actually contracts a bigamous marriage. The Dissolution of Muslim Marriages Act 1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife; but there is no law under which a man’s right and capacity to contract a second marriage can be examined by anybody before he enters upon such a course of action.
Rules of Muslim law empower women to restrict the freedom of their would-be husbands to indulge in bigamy by entering a condition to that effect in their marriage contract. And since Muslim law allows out-of-court divorce at the instance of both men and women, it further provides that a woman who after availing the legally provided facility to get rid of her husband marries again, will not face the charge of bigamy. These pro-women provisions of Muslim law have been judicially recognized in India in several cases.
Social & Judicial Trends
Bigamy has been fully abolished or severely controlled by law in most Muslim countries of the world. Turkey and Tunisia have completely outlawed it while in Egypt, Syria, Jordan, Iraq, Yemen, Morocco, Pakistan and Bangladesh, it has been subjected to administrative or judicial control. (Details of these reforms can be seen in Tahir Mahmood’s book Statutes of
Personal Law in Islamic Countries, 2nd edition, 1995).
In India bigamy is not very common among the Muslims and cases of men having more than one wife at a time are few and far between. The Muslim society of India in general in fact looks at polygamy with great disfavour and a bigamist is generally looked down upon in and outside his family. Despite this, unfortunately, the religious leaders are not prepared for any legislative reform in this respect and the religious sensitivities have never allowed the State to introduce any reform in this regard.
The courts in India also greatly look down upon bigamy and provide all sorts of relief to the first wives of bigamist husbands. Several High Courts have held that bigamy amounts to cruelty which can be pleaded as an answer to the man’s suit for restitution of conjugal rights against the first wife – see Itwari v Asghari AIR 1960 All 684, Raz Mohammad v Saeeda Amina Begum AIR 1976 Kant 200, Shahina parveen v Mohd Shakeel AIR 1987 Del 210.
The Supreme Court of India has held that the provision of Section 125 of the Code of Criminal Procedure 1973 allowing separate maintenance to a wife on the ground of her husband’s cruelty applies to Muslim women whose husbands contract a second bigamous marriage. See Khatoon v Yaamin AIR 1982 SC 853.
In another case the Supreme Court has severely criticized the practice of bigamy and observed that there is no difference between a second wife\ and a concubine. See Begum Subhanu v Abdul Ghafoor AIR 1987 SC 1103.
Administrative Service Rules
The Central Civil Services (Conduct) Rules 1964 provide that a person who has contracted a bigamous marriage or has married a person having a spouse living shall not be eligible for appointment to such services – Rule 21. The All India Services (Conduct) Rules 1968 place the same restrictions on those who are already member of any such service – Rule 19. Both the Rules, however, empower the government to exempt a person from the application of these restrictions if the personal law applicable permits the desired marriage and “there are other grounds for so doing.”
These provisions of Service Rules apply to the Muslims and their constitutional validity has been upheld by the Central Administrative Tribunal and the courts. See, e.g., Khaizar Basha v Indian Airlines Corporation, New Delhi AIR 1984 Mad 379 [relating to a similar provisionfound in the Regulations framed under the Air Corporation Act 1953].
Effect of Change of Religion
Under the traditional Muslim law if a married Muslim woman converts to another religion her marriage would be automatically dissolved. This rule is, however, not applicable in India. The Dissolution of Muslim Marriages Act 1939 provides that apostasy of a Muslim wife shall not dissolve her marriage (Section 4). So, although the 1939 Act does not specifically say so, if a married Muslim woman renounces Islam and, believing that her first marriage has been ipso facto dissolved marries again, her second marriage will attract application of Section 494-495 of the Indian Penal Code.
There is an exception to this rule under the Dissolution of Muslim Marriages Act 1939 – if a married convert Muslim woman by renouncing Islam reverts to her original religion the provision of Section 4 will not apply. In other words, in this case her re-conversion will automatically dissolve her marriage with her Muslim husband. In such a case, therefore, anti-bigamy provisions of the Indian Penal Code will not apply. The exceptional provision clearly seems to be discriminatory.
Bigamy by non-Muslims on Embracing Islam
Bigamy by conversion – viz. a second marriage by a married non-Muslim man after conversion to Islam – is a common practice in India. The man having resort to it is given to believe by the lawyers ignorant of the true Islamic law that on becoming a Muslim he will be legally entitled to freely marry again irrespective of his previous marital status. This mistaken belief militates against the letter and spirit of the Islamic law on bigamy. If the conversion in any such case is sham – as in most such cases it indeed is – the second marriage will be a fraud on Islamic law and can have no recognition in it. If the conversion is genuine the second marriage can be allowed subject to the bar of equal treatment of the co-wives, which obviously would be impossible in such a case. In either case therefore the second marriage will be repugnant to the Islamic religion and law.
As regards converts to Islam opting for bigamy, their conversion must be judged by the Prophet’s general verdict saying that “Effect of an action is governed by the underlying intention” and so conversion by a married non- Muslim man motivated by a desire to have another wife is of doubtful religious validity. But even where conversion seems to be genuine, it cannot be a license for indulging in bigamy by deserting the first wife in violation of Islam’s insistence on treating co-wives with unexceptional equality and equal justice.
The fact, of course, is that conversion in such cases is invariably a humbug and is generally followed by formal or informal re-conversion of the newly-wed to their original faith – in fact they never convert to Islam from the heart. This shuttle-cock playing with various religions is not checked by our existing law, though it is neither allowed by the religion which is dishonestly adopted nor sanctioned by the one that is forsaken for selfish ends. What married Hindu men do and are helped with by ill educated religious functionaries and misinformed lawyers is a fraud on Hinduism, a disgrace to Islam, a cruel joke on the freedom-of-conscience clause in the Constitution of the country and a criminal scheming against the law of the land.
Judicial Rulings on Bigamy by Conversion
There has always been a simmering discontent in the judiciary regarding the tendency of converting to Islam for the sake of contracting a second bigamous marriage and the courts have tried to control it. In Vilayat Raj v Sunila AIR 1983 Delhi 351 Justice Leela Seth of the
Delhi High Court had decided that the Act would continue to apply to a person who was a Hindu at the time of marriage despite his subsequent conversion to Islam and that he could still seek divorce under the Act (except on the ground of his own conversion).
In In re P Nagesashayya (1988) Mat LR 123 Justice Bhaskar Rao of Andhra Pradesh High Court severely criticized the unhealthy practice of bigamy by conversion and observed that the old rule that the motive behind conversion could never be questioned had to be rejected at least in the cases of conversion coupled with bigamy. Similar observations were made in the case of B Chandra Manikyamma v B. Sudarsana Rao alias Saleem Mohammed, 1988 CriLJ 1849.
Finally, in the leading case of Smt. Sarla Mudgal v Union of India (1995) 3 SCC 635 the Supreme Court decided that every bigamous marriage of a Hindu convert to Islam would be void and therefore punishable under the Indian Penal Code. The court observed:
“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courtscan be persuaded to adopt a construction of the laws resulting indenying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in Accordance with law”.
As regards the logic by which a married non-Muslim’s second bigamous marriage contracted after conversion to Islam could be treated as void under the Hindu Marriage Act, the court argued as follows:
“It is no doubt correct that the marriage solemnized by a Hindu husband after embracing Islam may not strictly be a void marriage under the Act because he is no longer a Hindu, but the fact remains that the said marriage would be in violation of the Act which strictly professes monogamy. The expression ‘void’ for the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning within the scope of the definition under the section. On the other hand the same expression has a different purpose under Section 494 IPC and has to be given meaningful interpretation. The expression ‘void’ under Section 494 IPC has been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 IPC. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC.
Any act which is in violation of mandatory provisions of law is per se void. The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal.”
The court further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act would be in violation of the rules of equity, justice and good conscience, as also those of natural justice. The court concluded that:
“The interpretation we have given to Section 494 IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. The result of the interpretation, we have given to Section 494 IPC, would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other.”
In a separate judgment given in the Sarla Mudgal case Justice R.M. Sahai indeed spoke the truth when he said that “much misapprehension prevails about bigamy in Islam”. Grossly caricatured now, the Qur’anic concept of bigamy envisaged two women happily married to the same man and getting from him equally all that a lawfully wedded wife could rightfully expect from the husband. Where this was not possible, the Qur’an enjoinedmonogamy. While the Qur’anic norms must be strictly observed also by born Muslims, the popular belief that the Qur’an enables a non-Muslim husband who has kicked out his wife without a legal divorce to marry again by announcing a sham conversion to Islam is absolutely false.
Derecognizing bigamous marriages of non-Muslim husbands contracted in such a fraudulent manner indeed enforces Qur’anic justice. On this point the Sarla Mudgal ruling of the Supreme Court is unassailable. The Sarla Mudgal ruling was looked with disfavour in certain circles on the ground that it infringed a person’s fundamental right to freedom of conscience and profession of religion guaranteed by Article 25 of the Constitution. The matter was brought before the Supreme Court which dismissed the idea. In Lily Thomas v Union of India (2000) 6 SCC 227 the court observed:
“The grievance that the judgment of the Court amounts to violation of the freedom of conscience and free profession, practice and propagation of religion is also far-fetched and apparently artificially 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…. Freedom guaranteed under Article 25 of the Constitution is such freedom which does not encroach upon a similar freedom of 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 this belief and idea in a manner which does not infringe the religious right and personal freedom of others. It was contended in Sarla Mudgal case that making a covert 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.”
As regards the true position of the permission for bigamy under the traditional Muslim law, the court said:
“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 a second marriage cannot be permitted to urge that such marriage should not be made the 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 practicing any other religious right for the attainment of spiritual goals. Islam which is a pious, progressive and respected religion with a rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of law.”
conclusion
The Supreme Court of India settled the law once for all in its Sarla Mudgal ruling of 1995 affirmed in Lily Thomas case of 2000. The verdict that a married non-Muslim even on embracing Islam cannot contract another marriage without first getting his first marriage dissolved is undoubtedly in conformity with the letter and spirit of Islamic law on bigamy. In any case, this is now the inviolable law of India — whatever one may erroneously presume the Islamic law to be.
Unfortunately this law as settled by the Supreme Court is now widely known to the public at large and is being constantly violated in numerous cases. The need of the hour, therefore, is to turn the apex court’s ruling into a clear legislative provision inserted into all matrimonial-law statutes of the country. Though these rulings were handed down in the context of the Hindu Marriage Act 1955 they will apply to all marriages governed by the other family-law statutes that are pari materia.
[1] Merriam Webster: Bigamy
[2] KoppisettiSubbharao @ Subramaniam v. State of A.P,. AIR 2009 SC 2684