Sarla Mudgal, President, Kalyani v. Union of India (1995)

Unit 1 asks what the Constitution does for women, and one of its heads is Art. 44, the directive that the State shall endeavour to secure a uniform civil code. The standing criticism of the absence of such a code is not abstract: it is that a husband can move between personal laws to defeat his wife's rights. Sarla Mudgal is the decision in which that abuse was put to the Court and stopped.

The device is simple and was common enough to produce a line of petitions. A Hindu husband, unable to obtain a divorce on any ground available under s. 13 of the Hindu Marriage Act, converts to Islam, marries again in reliance on the plurality of marriages that Muslim law as applied in India permits, and often reconverts afterwards so as to retain his property, his service and his name. The first wife is left married, deserted and without relief.

The case is used on this paper for the proposition it lays down. What is established about its course is that the prayers were confined, on instructions, to a single relief: a declaration 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 to enter into a second marriage, any marriage entered into by him after conversion would be void. Write the case for its rule and for that limited relief; do not supply a narrative for it.

Interpreting the scope and extent of the bigamy provision, the Court held that the "second marriage of a Hindu husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid". The second marriage would be void, and the apostate husband would be guilty of the offence of bigamy.

Two consequences follow, and both are examinable. The conversion does not dissolve the first marriage; only a decree under the law by which it was contracted can do that. And because the first marriage subsists, the second is struck at both civilly, by s. 17 of the Hindu Marriage Act, and criminally, by the general penal law.

1. Start from s. 17. Any marriage between two Hindus solemnised after the commencement of the Act is void if at the date of the marriage either party had a husband or wife living, and the bigamy provisions of the penal law apply accordingly. Monogamy among Hindus was introduced by the Act; s. 17 is the section that enacts it and attaches the criminal sanction.

1. Ask what conversion actually changes. It changes the convert's personal law for the future. It does not retrospectively unmake a marriage validly solemnised under a different law, and the first wife, who has not converted, cannot have her status altered by her husband's act.

1. Refuse to let a religious freedom be used as a shield for evading another law. The freedom guaranteed by Art. 25 is a freedom that does not encroach upon a similar freedom of other persons. Every person has a right to entertain and to exhibit the religious belief of his choice, but in a manner that does not infringe the religious right and personal freedom of others.

1. Note the fairness point the Court added. Even under Muslim law the plurality of marriages is not unconditionally conferred on the husband: the capacity to do justice between co-wives is a condition precedent. It would be doing injustice to Islamic law to urge that a convert is entitled to practise bigamy notwithstanding the continuance of the marriage under the law to which he belonged before conversion.

It opens the Uniform Civil Code question. It is the case that shows what the absence of a code costs a wife, and it is the reason the Art. 44 head is examined with a live example rather than as a paragraph of Part IV. Use it also in the discrimination head on personal law, as the proof that the asymmetry between the personal laws on plural marriage is not merely theoretical.

It disposes of the argument that a conversion gives the convert the whole of his new personal law immediately, including as against a spouse who remains governed by the old one; and the argument that prosecution for bigamy interferes with the freedom of religion.

It does not decide the status of the second wife or of children born of the second marriage — the Court was concerned with the effect of the second marriage as against the first subsisting marriage. Nor did it secure a uniform civil code: the Government's position on affidavit was that it would take steps towards a uniform code only if the communities desiring such a code approached the Government and took the initiative themselves. On citation, remember that the offence was then in the Penal Code; the substantive criminal law is now the Bharatiya Nyaya Sanhita 2023, in force from 1 July 2024, and the case was decided on the superseded code.