LAW SCHOOL, SYMBIOSIS INTERNATIONAL

UNIVERSITY, PUNE

Lily Thomas v. Union of India,

AIR 2000 SC 1650- A Case Comment

Submitted By:
Maitri Tandon
14010125113
2nd Year (B) B.A.LL.B
ABSTRACT
This Project Concerns in itself the case of Lily Thomas v. Union of India, AIR 2000 SC
1650: 2000 CrLJ 2433: 2000 AIR SCW 1760: 2000 (1) BLJ 53. It is and IRAC analysis
of the aforesaid case. This case is on the principles against the practice of solemnizing
second marriage by conversion to Islma, with first marriage not being dissolved,
followed by Hindu husbands, which were carved in the famous case of Sarla Mudgal
v. Union of India. Here, in the projects facts are briefly stated, issues are raised with
relevance to the laws applied in the case, and analysis of the judgment followed by a
conclusion.

2
INDEX

S.No TOPIC PAGE No.

1 Introduction to the Project 3

2 Introduction to the Case 5-6

3 Laws 6-8

4 Case Comment 9-11

5 Conclusion 12

RESEARCH METHODOLOGY
3
AIMS AND OBJECTIVES
This project is written as a review of the much-celebrated case Lily Thomas v. Union of
India, AIR 2000 SC 1650: 2000 CrLJ 2433: 2000 AIR SCW 1760: 2000 (1) BLJ 53.

SCOPE AND LIMITATIONS

This project is limited to the subject and issues of the case that is to be reviewed.
Various other cases have been referred to for supporting the arguments stronger.
Relevant parts of the judgment have been extracted. All the works and cases referred
to in this paper have been properly cited and are related to the case
Sarla Mudgal v.Union of India, AIR 1995 SC 1531.

RESEARCH QUESTIONS (ISSUES)

This project will answer the following cases:
1. Does India need a Uniform Civil Code for all its citizens?
2. Whether a Hindu husband, married under Hindu law, by embracing
Islam, can solemnize second marriage?
3. Whether the apostate husband would be guilty of the offence under
Section 494 of the Indian Penal Code (IPC)?

METHOD OF WRITING
This project has used F-IRAC (Facts, Issues, Rule, Analysis, Conclusion) approach for
reviewing the case in hand.

NAME OF THE PARTIES

4
 Lily Thomas ….Petitioner

Versus

Union of India & Ors. ….Respondents

With

Writ Petition (CIVIL) NO. 231 OF 2005

Lok Prahari, through its General Secretary

S.N SHUKLA ….Petitioner

Versus

Union of India & Ors. ….Respondents

Bench: A.K Patnaik, Sudhansu Jyoti Mukhopadhaya

FACTS
Mrs. Sushmita Gosh was married to Mr. Gyan Chand Ghosh, who to take benefit of a
second marriage with one Ms. Vinita Gupta (divorcee with 2 children) had converted
to Islam as the Hindu Marriage Act which provides the Punishment for Bigamy to be
the same as under s.474 and 475, IPC.
The three petitions viz,
1. Mrs. Sushmita Ghosh v. Union of India and Ors.
2. Smt. Sarla Mudgal, President , Kalyani and others v. Union of India and Ors.
3. Sunita @Fatima v. Union of India and Ors.
Here they had been tagged together and SC made the law that “marriage resulting from
from religious conversion to Islam for taking second wife is void when duting the
existence of the first marriage under The Hindu Marriage Act because such conversion
of faith is feigned rather than exercise of freedom of conscience.”
The case Lily Thomas v. Unuon of India is where various persons and jamiat Ulema
Hind & Anr., have filed review petition under Art.1436 of the Constitution of India to
review law laid down by Sarla Mudgal Case in 1995 and which was upheld through the
Lily Thomas case before in the criminal proceeding. Over writ petitions for breach of

5
 Fundamental Rights (Art. 20, 21,25,26) due to the law set by Sarla Mudgal case was
also filed. Lily Thomas is the lawyer of the distressed, Mrs. Sushmita Ghosh and other
such women who have been a victim to bigamous marriage through religion
conversion.

ISSUES
1. Does India need a Uniform Civil Code for all its citizens?
2. Whether a Hindu husband, married under Hindu law, by embracing
Islam, can solemnize second marriage?
3. Whether the apostate husband would be guilty of the offence under
Section 494 of the Indian Penal Code (IPC)?

LAWS
India Penal Code, 1860:
Section 494: Marrying again during lifetime of husband or wife.—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.

Classification of Offence
Punishment- Imprisonment for 7 years and fine- Non-cognizable-Bailable-
Triable by Magistrate of the first class-Compounadable by the husband or
wife of the person so marrying with the permission of the court.1

1 Indian Penal Code, 1860, Section 494.

6
Hindu Marriage Act, 1955:
Section 11: Void Marriages. Any marriage solemnized after the commencement of
this Act shall be null and void and my, on a petition presented by either party thereto
[against the other party], be so declared by a decree of nullity if it contravenes any one
of the conditions specified in clauses (i), (iv) and (v) of section 5. 2

Section 13: Divorce.

1. Any marriage solemnized, whether before or after the commencement of
this Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party-
(i) has, after the solemnisation of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or]
(ia) has, after the solemnisation of the marriage, treated the petitioner
with cruelty; or]
(ib) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a kind
and to such an extent that the petitioner cannot reasonably be

expected to live with the respondent.3

Section 15:
Divorced persons when may marry again. When a marriage has been
dissolved by a decree of divorce an either there is no right of appeal against the decree
or, if there is such right of appeal, the time for appealing has expired without an
appeal having been presented, or an appeal has been presented but has been dismissed
it shall be lawful for either party to the marriage to marry again.4

Constitution of India:
Article 14: Equality before law the state shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.5

2 Hindu Marriage Act, 1955

3 Hindu Marriage Act, 1956, 13
4 Hindu Marriage Act, 1956, Section 15.
5 Constitution of India, Article 14

7
Article 25: Freedom of conscience and free profession, practice and protection and
propagation of religion.6

Article 26: Freedom to manage religious affairs subject to public order, morality
and health.7

Article 27: Freedom as to payment of taxes for promotion of any particular

religion.8

Article 28: Freedom as to attendance at religious instruction or religious worship

in certain education institution. 9

Article 32: Remedies for enforcement of rights conferred by this Part

(1)The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and ( 2 ), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution10

Article 44: Uniform civil code for the citizens The State shall endeavor to
secure for the citizens a uniform civil code throughout the territory of India. 11

CASE COMMENT

6 Constitution of India, Article 25

7 Constitution of India, Article 26
8 Constitution of India, Article 27
9 Constitution of India, Article 28
10 Constitution of India, Article 32
11 Constitution of India, Article 44

8
ANALYSIS
The constitution of India provides for a uniform civil code for its citizens under
Article 44 in the Directive Principles. It is a goal, which is yet to be achieved by the
democracy of India. In the present case, the honorable court took steps to resolve the
“inter personal conflict of laws”, which is a product of the absence of a “Uniform
Civil Code” 12
“The state shall endeavor to secure for the citizens a uniform civil code throughout
the territory of India”. Justice Kuldip Singh, in Sarla Mdghul case was of the view
that there is no reason for delay of UCC so that all the citizens of India can be
governed uniformly. Pandit Jawahar Lal Nehru, while defending the introduction of
Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “ I do
not think that at the present moment the time is ripe in India for me to try to push it
through”. It appears that even 41 years thereafter, rhe Rulers of the days are not in a
mood to retrieve Article 44 from the cold storage where it is lying since 1949. The
Governments- which have come and gone- have so far failed to make any effort
towards “unified personal law for all Indians”. 13 The reasons are too obvious to be
stated. The utmost that has been done is to codify the Hindu Minority and
Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act,1956 which
have replaced the traditional Hindu law based on different schools of thought and
scriptural laws into one unified code. When more that 80% of the citizens have
already been brought under the codified personal law there is no justification
whatsoever to keep in abeyance, any more, the introduction of “uniform civil code”
for all citizens in the territory of India. 14
Until the Government enforces a uniform civil code for the country, a Non Islamic
husband, who wants enter into a second marriage while still in the first marriage can
be allured to convert into Islam as it provides room for bigamy and allows a Muslim
husband to have four wives at a time. Nonetheless Himdu law only permits
monogamy, Hindu husband embraces Islam to evade the provision of Hindu law and
flight from penal consequences.
The doctrine of indissolubility of marriage, under the traditional Hindu law, did not
recognize that conversion would have the effect of dissolving a Hindu marriage.

12Praveen Dalal, Insight of Sarla Mudgal, (6/7/05)

http://india.indymedia.org/en/2005/06/210648.shtml.

13 Sarla Mudgal v. UOI,AIR 1995 SC 1531

14 Id.
9
Marriage will not be dissolved by converting to another religion by one or both
Spouses.15 In the case Re Ram Kumari16, where a Hindu wife converted to Islam to
marry a muslim was charged with bigamy under Section 494 of IPC. It was held that
there was no authority under Hindu law for the proposition that an apostate is
absolved from all civil obligations and that so far as the matrimonial bond was
concerned, suck view was contrary to the spirit of the Hindu law.

In Nandi alias Zainab v. The Crown17Nandi, the wife of the complainant, changed
her religion and became a Mussalman and thereafter married a Mussalman named
Rukan Din. She was charged with an offence under Section 494 of the Indian Penal
Code. It was held that the mere fact of her conversion to Islam did not dissolve the
marriage which could only be dissolved by a decree of court.
In India, there have never been marital laws. which have uniform application. A
marriage happens under one individual law and can't be broken down because of
another individual law simply due to the change of the gatherings
In Sayeda Khatoon’s18 case Muslim laws were not favored over Jews laws. They were
both declared equal. A marriage solemnized according to one personal law can be
dissolved according to another personal law simply because one of the two parties has
changed his or her religion.
In Andal Vaidyanathan vs Abdul Allam Vaidya19 a Division Bench of the High Court
dealing with a marriage under the Special Marriage Act 1872 held that
“The Special Marriage Act clearly only contemplates monogamy and a person
married under the Act cannot escape from its provisions by merely changing his
religion. Such a personcommits bigamy if he marries again during the lifetime of his
spouse, and it matters not what religion he professes at the time of the second
marriage. Section 17 provides the only means for the dissolution of a marriage or a
declaration of its nullity. Consequently, where two persons married under the Act
subsequently become converted to Islam, the marriage can only be dissolved under
the provisions of the Divorce Act and the same would apply even if only one of
them becomes converted to Islam. Such a marriage is not a marriage in the
Mahomedan sense, which can be dissolved in a Mahomedan manner. It is a statutory
marriage and can only be dissolved in accordance with the Statute.20”

The dreary proclamations and choices have made it clear now that a marriage that has
occurred in less than one individual law can't be disintegrated regardless of the
possibility that one mate has changed over to another religion and alternate declines to
do as such. At the point when a marriage happens under Hindu individual law, a few
rights and obligations are made by method for it and the gatherings obtain certain status

15 Supra note 13.

16 (1891) ILR 18 Cal 264.
17 ILR 1920 Lahore 440.
18 49 CWN 745.
19 (1946) 1 MLJ 402
20 Supra note 19

10
under the laws representing the Hindu Marriage. In the event that one life partner tries
to end the marriage by changing over to another religion without dissolving the
marriage then it will sum to devastation of the rights and status of the other life partner
who is still a Hindu. It is, in this manner, kept up that hold that under the Hindu Personal
Law as it existed before its codification in 1955, a Hindu marriage kept on subsisting
even after one of the life partners changed over to Islam. There was no programmed
disintegration of the marriage. The position has not changed in the wake of coming into
power of the Hindu Marriage Act, 1955 (the Act) rather it has turned out to be more
terrible for the backslider. The Act applies to Hindus by religion in any of its structures
or advancements. It additionally connected to Buddhists, Jains and Sikhs. It has no
application to Muslims, Christians and Parsees. One of the primary standards of Hindu
law is monogamy which it entirely holds fast to. A marriage can't be broken down aside
from under the procurements set down in Section 13 of Hindu Marriage Act. In that
circumstance, parties who have hitched under the Act stay wedded notwithstanding
when the spouse believers to Islam with the end goal of other marriage. A second
marriage by a defector under the asylum of transformation to Islam would by the by be
a marriage disregarding the procurements of the Act by which he would be keeping on
being administered so far as his first marriage under the Act is concerned in spite of his
change to Islam. The second marriage of a renegade would, hence, be illicit marriage
as his wife who wedded him under the Act and keeps on being a Hindu. Between the
backslider and his Hindu wife the second marriage is disregarding the provisions of the
Act and as such would be under Section 494 of IPC.
Also, the second marriage of an apostate husband would be in violation of the rules of
natural justice. It is opposed to the principles of justice equity and good conscience.
Even if the spouse converts to islam, he has no right to solemnize the second marriage
unless his first marriage dissolves and, thus, be in violation of the rules of natural justice
and as such would be void.21

CONCLUSION

The personal laws should be permitted to be controlled and free to be interpreted in

new ways for common additions and carnal delights. Accordingly, if a man wishes to
enter into a second marriage, subsequent to changing over to another personal law and

21 http://lawcommissionofindia.nic.in/reports/report227.pdf
11
without dissolving his/her first marriage, such second marriage must be held to be
substantial just if his/her unique personal law permits such second marriage. Case in
point, if a Hindu goes into a second marriage in the wake of changing over to Islam,
however without dissolving his first marriage, the he ought to be held obligated for
plural marriage in light of the fact that his unique individual law does not permit
polygamy. Essentially, if a wedded Muslim believers to Hindu religion, without
dissolving his first marriage, and goes into a second marriage he ought not be held at
risk for plural marriage on the grounds that his unique individual law permits
polygamy, however ability to do equity between co-wives is the condition point of
reference.

The Supreme Court has emphasized that the second marriage of a Hindu man after
change to Islam without having his first marriage disintegrated under the law would
be invalid.

"The second marriage would be void as far as the procurements of Section 494 of the
Indian Penal Code (IPC) and the backslider spouse would be blameworthy of the
offense of polygamy under area 494 IPC", the court included. This choice of the court
in Sarla Mudgal case was maintained in Lily Thomas v. Union of India, the present
case.

12