Sarla Mudgal v. Union of India (1995)

This is the case in which the Uniform Civil Code debate arrives in the shape of a concrete legal problem rather than a slogan. A Hindu husband, bound by monogamy under section 5(i) and section 17 of the Hindu Marriage Act, converts to Islam and marries again. If conversion dissolves the first marriage, he commits no offence and the second marriage is good. If it does not, the second marriage is void and he is guilty of bigamy.

The Court's answer decides the point and, in doing so, demonstrates the mischief that a common code would remove.

"whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code ( IPC )?"

Four petitions under Article 32 were heard together, and the pattern is the same in each.

Meena Mathur, married in 1978 with three children, "was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted Muslim religion." Her case was that the "conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing the provisions of Section 494 , IPC." The husband's position was the opposite: "Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the fact that his first wife continues to be Hindu."

The second wife was herself a petitioner, and her position shows the cost of the practice to everyone involved: after the marriage the husband gave an undertaking that "he had reverted back to Hinduism and had agreed to maintain his first wife and three children", so that she "continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws."

Geeta Rani's husband "ran away with one Deepa and after conversion to Islam married her", the conversion being "only for the purpose of facilitating the second marriage". Sushmita Ghosh's husband asked her to agree to a divorce by mutual consent and, on her refusal, told her "that he had embraced Islam and would soon marry one Vinita Gupta", producing a certificate from the Qazi.

"Till the time we achieve the goal - uniform civil code for all the citizens of India - there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences."

Against that the Court set the character of the institution: "Marriage is the very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested."

"The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage."

The older authorities are collected. In Re Ram Kumari, where a Hindu wife converted to Islam and married a Muslim, "it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under Section 494 of the IPC", there being "no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations". In Gul Mohammed v. Emperor "the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and she could not during the life time of her former husband enter into a valid contract of marriage." In Nandi alias Zainab v. The Crown "the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court."

The principle is that a marriage can be dissolved only in the way the law that created it allows. Under the Hindu Marriage Act that means a decree; conversion is a ground of divorce under section 13(1)(ii), not a mode of dissolution, and section 23(1)(a) prevents the convert from relying on his own act in any event.

"we hold 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 in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC."

Article 44 provides that "The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India", and the Court described it as "an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation."

The premise. "Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law." Hence: "Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 , 26 and 27."

The record of inaction. Nehru, defending the Hindu Code Bill in 1954, had said "I do not think that at the present moment the time is ripe in India for me to try to push it through", and forty-one years later the Rulers of the day "are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949."

The fairness point. Hindu law was codified in 1955 and 1956, and "The Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not". Since more than 80% of citizens are already under codified personal law, "there is no justification whatsoever to keep in abeyance, any more, the introduction of" a uniform civil code.

The answer to the objection from religious freedom. "The Legislation - not religion - being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India."

The direction. The Court requested the Government "to have a fresh look at Article 44 of the Constitution of India", and directed the Ministry of Law and Justice to file an affidavit "indicating therein the steps taken and efforts made, by the Government of India, towards securing a" uniform civil code "for the citizens of India."

The second opinion is the fairer statement of the controversy, and a good answer uses it to avoid one-sidedness. "The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the Constituent Assembly." One side says that "the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy"; the other that "Logical probability appears to be that the code would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity".

And the constitutional tension is acknowledged rather than dissolved: secularism found expression in Article 44, "But religious freedom, the basic foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely worded."

Ratio: conversion does not dissolve a Hindu marriage; a second marriage after conversion, the first subsisting, is void; the apostate husband is guilty under section 494. That is what the writ petitions decided.

Obiter: everything on Article 44. The Court requested and directed an affidavit; it did not, and could not, order a code into existence, Article 44 being a Directive Principle. Say so — it is the qualification that separates an accurate answer from a rhetorical one.

A man may change his religion; he may not thereby change the law that governs a marriage he has already made.