CASE BRIEF AND ANALYSIS ON LILY THOMAS VS UNION OF INDIA 2000

LIY THOMAS VS UNION OF INDIA

FACTS:

Sushmita Ghosh married to GC Ghosh filed petition in Supreme Court stating she was married to JC Ghosh under Hindu Marriage Act in accordance with Hindu rite on 10th May 1984. On 1st April 1992, GC Ghosh converted to Islam and told his wife to get divorce so that he could remarry Miss Vinita Gupta a divorcee with 2 children, otherwise she will have to put up with the second wife. Mr Ghosh has solely converted to Islam to remarry Miss Vinita and he had no real faith in Islam.

ISSUES:

1.Whether there should be uniform civil code for all citizens?

2.Whether a Hindu husband can solemnize second marriage by converting to Islam?

3.Whether the husband would be liable for bigamy under section 494 of IPC?

Reliefs prayed by the petitioner:

a) By an appropriate writ, order, or direction, declare polygamy marriages by Hindus and non-Hindus after conversion to Islam religion are illegal and void

b) Issue appropriate directions to carry out suitable amendments in the Hindu Marriage Act to curtail and forbid the practice of polygamy

c) Issue appropriate direction to declare 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 an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void

d) Issue appropriate direction restraining him from entering any marriage with Miss Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner

e) Pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case

Arguments Advanced from the side of Petitioner

· Petitioner’s first issue was that since marriage is a sacred institution then how resorting to the act of religious conversion to Muslim to commit the act of bigamy as Muslim personal law allows it is an attempt where the women freedom of facing such bigamous marriage and such betrayal is violative of Art.21(right to life and liberty).

· Lily Thomas pleaded before the court to male polygamy in Muslim Law to be unconstitutional.

· It was urged before the court to apply Uniform Civil Code to deal with vast socio-legal issues that were due to various religious personal law.

· Many Muslim women have filed petitions before the SC and HC to declare Polygamy in Muslim law to be unconstitutional.

· To reframe Muslim personal law with the change in time and disallow the practice of Polygamy as it is disrespectful to the integrity and liberty of women who face such situations.

· To have Uniform Civil Code so that no personal religious law makes fundamental right violation.

Arguments advanced from the side of Respondent

· The respondents in all the above petitions assert a common contention that having embraced Islam, they can have four wives irrespective of the fact that the first wife continues to be Hindu. Thus, they are not subject to the applicability of Hindu Marriage Act, 1955, the Section 11 of which makes bigamous marriage void and to the section 17 of which made them guilty for bigamy under section 494 of Indian Penal Code (IPC).

· Gyan Chand Ghosh explained that he has the inherent right to profess, practice, and propagate any religion as it is part of the freedom of conscience; it is his valuable fundamental right guaranteed under Article 25 of the Constitution of India.

· Gyan Chand Ghosh explained that he has the inherent right to profess, practice, and propagate any religion as it is part of the freedom of conscience; it is his valuable fundamental right guaranteed under Article 25 of the Constitution of India

· His plea was initiated as a converted Muslim, he has taken the second wife, and according to Mohammedan law, it is permissible. Hence, their marriage must not be declared void.

Judgement

· Justice S. Sagir Ahmad said if a party has a living spouse and he contracted or tries to contract second marriage then such marriage would be null and void under Section 11 of Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the said Act which deals with the offence of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860. If a Hindu wife files complaint against her husband, who during existence of first marriage do second marriage after conversion to another religion then the offence of Bigamy shall be dealt with Hindu Marriage Act, 1959.

· A marriage cannot be deemed to have been dissolved simply because a husband has converted to a different religion.

· Marriage resulting from conversion to Muslim from any other faith during the existence of previous marriage before conversion is deemed void even when Muslim Personal Law (Shariat) Act allows polygamy because such conversion is not exercise of freedom of conscience but rather feigned and fraudulent without the change of faith.

· R.P. Sethi Ji said if a Hindu husband after converting to Islam contracts the second marriage without dissolving the first marriage, then the second marriage would be invalid under Section 494 & 495 of IPC and the husband will be punished according to that.

· In India, there are no marriage-related laws since marriage takes place according to one’s personal law. Therefore, such things could not be codified and applying the uniform civil code to such an issue would not do justice to one’s own personal belief.

· But what could be penalized are the wrong acts done in the pretext of such personal law, which is what the SC has done in this case by making it illegal to marry another person by converting to Islam while already in marriage with the first wife.

Observations:

According to Section 494 of the Indian Penal Code, if a person remarries during the lifetime of husband or wife, then the second marriage would be considered void, and the spouse is punishable for the term which can extend to 7 years and shall also be subject to fine. Bigamy is also punishable under sections 5 and 17 of the Hindu Marriage Act, 1955. However, Muslim law permits polygamy, which creates a significant conflict over whether a person married under Hindu law would be held liable if he gets converted.

The case in hand with the court was of conflict of personal law, so they wanted to resolve the issue through proper legal action and, thus, in the following process, reminded the state of uniform civil code. Another reason which prevents its enforceability was the state cannot act in haste. As it can increase the suspicions among the religious communities; which can lead to clashes of opinions along with this state has to look upon all the relevant factors not only one isolated observation in the judgment

It was stated that mere conversion to another religion does not end the marriage unless a decree of divorce is not recognized from the court. Till the decree is not accepted, the marriage subsists. Any other marriage before the divorce would be liable for the offence of bigamy.

The grievance, which is put forth that the freedom of violation of Article 25 has taken place, but, propagation, profession, and practice of religion are not breached. On the contrary, violation of the law under the cloak of religion was executed by the respondent. As a result, after the commission of second marriage when from the first marriage the husband or wife still alive that person is persecuted under section 494 and 495 of bigamy and the contention of the respondent that his freedom of following any religion without any interference cannot be dismissed on this basis.

Case Analysis

The case of Lily Thomas vs. Union of India is a landmark case because it helped to avoid the use of the fundamental right of practicing any religion for the selfish motive of bigamy. Though the Court remained silent on the issue of uniform civil code for all the citizens, the Supreme Court took a great leap forward by making it illegal to marry another lady after converting to Islam if the first marriage is not nullified.

The judgment is also important because in those days the men who belonged to a religion that prohibited polygamy were practicing such conversions for second marriage. The other issue that came to light is the lack of a comprehensive and long-lasting framework to deal with the issues about the conflict between Personal laws and Penal laws. Thus, it is very important that in a secular country like India, the intervention of the Judiciary to avoid misuse of Fundamental Rights is a necessity.

The judgment will remain significant not only in the context of immoral religious conversions but also in safeguarding women from the unjust behaviour of their husbands. The issue of the Uniform Civil Code remains a controversial issue. The supporters of this uniform code emphasize that it will bring uniformity and help in getting a better solution to issues dealt in personal laws like marriage, divorce, inheritance etc. On the other hand, minority religions like Islam face the threat of imposition of a Hindu majority-dominated code that will overrule their personal laws. These issues certainly need attention because having a codified law for all the religion will prevent conversions done with ill motives. But winning the trust of all the communities will remain a challenge. This challenge needs to be overcome so that ‘we can move in the right direction together.’

It can be concluded that the personal laws have not remained personal anymore and a proper step in bringing an efficient mechanism to deal with such issues is the need of the hour.