Lily Thomas v. Union of India

 

                                Lily Thomas v. Union of  India

Introduction       

Facts

In a writ case submitted to the Supreme Court, Sushmita Ghosh claimed to be the spouse of G.C. Ghosh (Mohd. Karim Ghazi) and that they had been wed on May 10, 1984, in accordance with Hindu customs.

On April 1st, 1992, the petitioner's spouse informed her that he had converted to Islam in order to get remarried and that he had chosen to wed Delhi resident Miss Vanita Gupta. Therefore, for his own benefit, the petitioner should consent to the divorce.

The petitioner said that her right to equality under Article 15(1) of the Constitution had been violated since she had experienced sex and religious discrimination as a result of the husband's actions. It was claimed that the husband's decision to convert to Islam was really motivated by his desire to marry a second woman, which is expressly against Hindu law.

The petitioner, who is 34 years old and unemployed, is suffering from severe emotional trauma as a result of the husband's activities. The petitioner further argued that it had been usual for Hindu men who were unable to obtain a divorce and desired a second wife to convert to Islam in order to fulfil their desire. But following a second marriage, they once more converted to keep their title to the property.   

Issue Raised

1 - To issue writ to declare polygamy marriage by Hindu and non-Hindus after conversion to Islam as illegal and void.

2 - To issue direction to amend the Hindu Marriage Act in order to curtail the practice of polygamy.

3 - To declare the conversion from Hindu to Islam for the purpose of second marriage as void.    

Contention of Petitioners

The petitioner claims that only sex and religious discrimination is prohibited under Article 15(1) of the Constitution. She asserts that the Muslim Personal Law (Shariat) Act of 1937, which imposes that portion of Muslim Personal Law, discriminates against her. It is argued that such behaviour violates Article 15 (1) of the Constitution and is unlawful. She continues by saying that the truth is that the Respondent converted to Islam and embraced its beliefs in order to marry a second woman, who is completely prohibited by Hindu law.

Marriage, according to Lily Thomas, is a revered institution. It is a staged attempt where freedom of conscience is not at risk to use the Act of religious conversion to Islam to commit the Act of bigamy as permitted by Muslim Personal Law. However, the women's freedom to deal with such bigamous marriage conditions and this treachery infringes their right to life and liberty under Article 21.

Rationale    

The Hindu Marriage Act was reviewed in the court, and one of the requirements for a legally binding Hindu union is that neither party have a spouse who is still alive at the time of the union. According to Section 11 of the Hindu Marriage Act, a marriage is void if it occurs despite one of the parties having a spouse who is still alive. A bigamy offence has been created by reference in Section 17 of the Hindu Marriage Act, which states that the provisions of Sections 494 and 495 would apply, which describe for a term that may extend to seven years and shall also be liable to fine. Such a marriage is also described as void under Section 17 of the Hindu Marriage Act.

The provisions of the Hindu Marriage Act must be followed in order to investigate and prosecute the bigamy charge that was pled. Any marriage solemnised by the husband during the course of that marriage, despite his conversion to a different religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494 IPC because under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act.

It should be noted that Sections 43 and 44 of the Special Marriages Act relate to Sections 17 of the Hindu Marriage Act. Additionally, it corresponds to Sections 4 and 5 of the English Matrimonial Causes Act and Sections 61 and 12 of the Indian Divorce Act as well as Sections 4 and 5 of the Parsi Marriage and Divorce Act.

 

The Hindu Marriage Act of 1955 provides for "Monogamy," the court stated in its concluding remarks, citing a number of its decisions, including Bhaurao Shankar Lokhande v. State of Maharashtra[2], Kanwal Ram v. H.P. Administration[3], and Gopal Lal v. State of Rajasthan[4]. In addition to being illegal, a second marriage during the spouse's lifetime would be void under Sections 11 and 17.

Inference

The Supreme Court ruled that any marriage formed as a result of converting to Islam from another religion while the original marriage was still in existence was null and void. Even if the Muslim Personal Law (Shariat) Act permits polygamy, it is invalid since doing so constitutes religious intolerance when someone pretends to follow a different faith in order to get an advantage or benefit from the material world. Therefore, a person who mockingly embraces a different religion in which multiple marriages are permitted cannot be allowed to renounce their prior marriage and forsake their wife, as religion is not a commodity that can be exploited.