Lily Thomas v. Union of India (2000)

This is the case in which the rule in Sarla Mudgal was attacked head-on and survived. A review petition and further writ petitions asked the Court to set that judgment aside as contrary to Arts. 20, 21, 25 and 26. The Court refused, and in refusing it settled three things a student must be able to state separately: that the rule is an interpretation of existing law and not a new offence, so it applies to marriages solemnised before the judgment; that prosecuting a convert for bigamy violates no fundamental right; and that the rule nevertheless has to be proved like any other offence, so nobody is convicted automatically.

It also carries the paper's clearest statement of what Art. 44 has and has not produced.

The lead writ petition was that of Sushmita Ghosh, married to G.C. Ghosh according to Hindu rites on 10 May 1984. Around 1 April 1992 her husband told her that she should agree to a divorce by mutual consent, as he had anyway taken to Islam so that he might remarry, and that he had already fixed to marry a woman in the second week of July 1992; he produced a certificate dated 17 June 1992 from a Shahi Qazi's office certifying that he had embraced Islam. Her case was that the conversion was feigned: that he had converted solely for the purpose of remarrying and had no real faith in Islam, did not practise the Muslim rites and had not changed his name or religion in his official documents. She asserted the right under Art. 15(1) not to be discriminated against on the ground of religion and sex, and prayed for a declaration that a marriage contracted after such a conversion is void and for an injunction restraining the second marriage.

On 9 July 1992 a Vacation Judge took the petition on board and observed that if the respondent contracted a second marriage during the pendency of the petition and it was ultimately held that he had no legal capacity for it, the purported marriage would be void. The principal question for decision was therefore whether a marriage entered into by a non-Muslim after a conversion made without any real change of belief, and merely to avoid an earlier marriage or to enter into a second one, is void.

1. Sarla Mudgal was affirmed: the second marriage of a Hindu husband after conversion to Islam, without the first marriage having been dissolved under law, is invalid, the second marriage is void, and the apostate husband is guilty of bigamy. The review and the writ petitions were dismissed.

1. The judgment declared no new law. It interpreted the existing law, and the interpretation of a provision of law relates back to the date of the law itself; it cannot be prospective from the date of the judgment, because the court does not legislate but only gives an interpretation to an existing law. The complaint under Art. 20(1) — conviction for an act not an offence when committed — therefore had no substance.

1. No Art. 21 violation arose: none of the petitioners had in fact been deprived of life or personal liberty, and an apprehension of prosecution is premature. The judgment had neither changed the procedure nor created any law for the prosecution of the persons concerned.

1. No Art. 25 violation arose. Monogamy among Hindus was introduced by the Hindu Marriage Act, whose s. 17 makes a marriage void where either party had a husband or wife living at its date and attaches the penal provisions. The freedom under Art. 25 is a freedom that does not encroach upon a similar freedom of other persons.

1. Nobody is convicted automatically. A person seeking conviction is under a legal obligation to prove all the ingredients of the offence, and a conviction cannot rest on an admission made outside court. The second marriage must be proved as a fact, and proved to have been performed or celebrated with the proper essential ceremonies; a marriage is not proved unless the essential ceremonies required for its solemnisation are proved to have been performed.

The method is worth copying because it separates three arguments that students habitually run together.

1. Retrospectivity is answered by the nature of interpretation, not by weighing hardship. If the Court did not create the offence, Art. 20(1) is not engaged at all.
2. A fundamental-rights challenge needs an actual deprivation. Art. 21 is not breached by the prospect of a prosecution conducted according to the procedure prescribed by the legislature.
3. Religious freedom is bounded by the equal freedom of others. The Court added that even under Muslim law plurality of marriages is not unconditional, the capacity to do justice between co-wives being a condition precedent, so the convert's claim misdescribes the law he claims to have adopted.

On Art. 44 the Court recorded what had happened since Sarla Mudgal: one of the judges there had asked the Government to have a fresh look at the Article and to "endeavour to secure for the citizens a uniform civil code throughout the territory of India", and the other had suggested entrusting the matter to the Law Commission in consultation with the Minorities Commission, observing that "Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre." Against that, the Court had earlier declined to direct the enactment of a common civil code, the issue being a matter of policy for the legislature, since the Court cannot legislate.

It opens any question on conversion and bigamy — pair it with Sarla Mudgal, stating Sarla Mudgal for the rule and Lily Thomas for its survival, its retrospective operation and its limits. It also opens the Art. 44 head: the directive remains unimplemented, the Court will not order a code, and the remedy for the abuse it invites has had to be found in the interpretation of the general law.

It disposes of four arguments in one line each: that the rule is a judge-made offence; that it operates only from 1995; that it infringes the freedom of religion; and that a converted husband is convicted on his conversion alone.

It does not decide the status of the second wife or of the children of the second marriage, the Court being concerned with the effect of the second marriage as against the first subsisting marriage. And when citing the offence, say that the case was decided under the Penal Code, which the Bharatiya Nyaya Sanhita 2023 replaced on 1 July 2024.