Marriage resulting from religious conversion to Islam for taking a second wife is void when his first marriage is still in existence under the Hindu Marriage Act.

Vaishnavi Nirmal  | Manikchand Pahade Law College, Aurangabad | 24th February 2020

Lily Thomas vs. Union of India & Others., AIR 2000 SC 1650

Fact of case:

Lily Thomas is the lawyer of a distressed wife, Mrs. Sushmita Ghosh and other such women who have been a victim to bigamous marriage through religious conversions.

The husband of the petitioner was Hindu before and during their marriage, but he became a Muslim and took another wife. The petitioner argued that he did it in order to avoid the Marriage Act which will convict him of Bigamy or Polygamy although the Muslim law allow such.

Issues:

1. Whether a Hindu husband can solemnise second marriage by converting to Islam?

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

Judgement:

Mrs. Sushmita Ghosh v. Union of India and Others, Smt. Sarla Mudgal, Kalyani and others v. Union of India and Others, Sunita & Fatima v. Union of India and Others these petitions were collectively taken by SC to decide the status of bigamous marriage by converting to Islam.

Bigamy is the offence of marrying another while the first marriage still persists and such bigamous relations are illegal and the second marriage is void ab initio.

The SC bench of Justice Sagir Ahmed and Justice Sethi considered second marriage without prior divorce from the first marriage to be void wherein men were converting their religion to Islam to solemnize the second marriage but all of this was considered void unless and until first marriage was dissolved according to the Hindu Marriage Act otherwise the husband would be liable for bigamy under section 494 and 495 of Indian Penal Code.

Marriage resulting from conversion is deemed void even when Muslim Personal Law allows polygamy because such conversion is not exercise of freedom of conscience but rather feigned and fraudulent without change of faith.

This was because converting to Islam would not dissolve the first marriage and the Husband is liable to all the obligations as he would be prior converting to Islam.