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Conversion to islam and bigamy: with

reference to the 227th law commission report.

Bhadra Bharadwaj

IVth Semester

Dr.Ram Manohar Lohiya National Law University

Lucknow,India.

Introduction:
“Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief
which binds the spiritual nature of man to a supernatural being; it is an object of conscientious
devotion, faith and pietism. Devotion in its fullest sense is a consecration and devotes an act of
worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in
every system of religion. Religion, faith or devotion is not easily interchangeable. If the person
feigns to have accepted another religion just for some worldly gain or benefit, it would be
religious bigotry. Looked at from this angle, a person who mockingly adopts another religion
where plurality of marriage is permitted so as to renounce the previous marriage and desert the
wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity
to be exploited.”

The religious temperament and outlook of the Indian people may have been exaggerated by some
writers, but it is nonetheless true that religion has been the most powerful single factor in the
development of Indian civilization. Few would challenge Arnold Toynbee's characterization of
that civilization as one displaying a "manifest tendency towards an outlook that is predominantly
religious." In the light of this fact, the emergence of India as a secular state in the mid-twentieth
century must be regarded as a significant political, social, and religious phenomenon1. But
marriages in India have always been an extraordinary feature because of the mosaic culture of
India. Different religions have different variety of marriages and different norms thereby. But
polygamy is one of the painful aspects which this country evidences in some or other form. The
status of polygamy in different religions is different.

1
DONALD EUGENE SMITH,” India as a secular state”, 1963, London, Oxford University Press
Bigamy — or for that matter polygamy — as one of Islam’s widely misread concepts has just
been examined with a fine-toothed comb and put in perspective by India’s law commission, a
government panel for legal reforms.

To put the record straight, the law commission in its 227th report has said the popular view that
Muslims could simply have two wives at a time was flawed. One of the authors of the report was
Tahir Mahmood, a front-ranking legal expert on Muslim law, aside from the commission’s
chairman AR Lakhsmanan.

“It is generally believed that under Muslim law, a husband has an unfettered right to marry again
even when his earlier (read present) marriage is continuing. On a closer examination of the
relevant provisions of the Quran and other sources of Islamic law, this does not seem to be true,”
the commission’s report states.

The Chapter on Offences relating to Marriage under the Indian Penal Code of 1860 contains two
provisions relating to bigamy – the first of these applicable to married persons marrying again
without concealing from the second spouse the fact of the first marriage2, and the second to those
who do so by keeping the second spouse in the dark about the first marriage3.
It will be seen that application of these provisions of the Indian Penal Code would be attracted
only if the second marriage is void, for the reason of being bigamous, under the law otherwise
applicable to the parties to a particular case; but not so otherwise. As such the anti-bigamy
provisions of the Indian Penal Code apply to all those whose marriages are governed by any of

2
Section 494 of the Code reads as:-
“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.”
3
Coming to the cases of bigamy where a person indulges in it by deceiving the second spouse,
Section 495 of the Indian Penal Code says:-
“Whoever commits the offence defined in the last preceding section having concealed from the
person with whom the subsequent marriage is contracted, the fact of the former marriage, shall
be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine”.
the following legislative enactments all of which regard a second bigamous marriage, by a man
or woman, as void :

(i) Special Marriage Act 1954

(ii) Foreign Marriage Act 1969

(iii) Christian Marriage Act 1872

(iv) Parsi Marriage and Divorce Act 1936

(v) Hindu Marriage Act 1955

As regards the Muslims, the IPC provisions relating to bigamy apply to women – since Muslim
law treats a second bigamous marriage by a married woman as void – but not to men as under a
general reading of the traditional Muslim law men are supposed to be free to contract plural
marriages. The veracity of this belief, of course, needs a careful scrutiny. The anti-bigamy
provisions of the Indian Penal Code would not apply also to tribal men and women if their
customary law and practice does not treat their plural marriages as void. It has been judicially
affirmed that

Bigamy under Civil Marriage Laws

Special Marriage Act 1954


Monogamy is the rule under the Special Marriage Act 1954. Among the conditions for
solemnization of a civil marriage spelt out in the Act the foremost is that “neither party has a
spouse living” – Section 4 (a). In respect of bigamy there are two different penal provisions
under the Act. The first provision is if a person already married, under whatever law, fraudulently
contracts a civil marriage the provision of Section 43 of the Act4. The other provision contained

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“Save as otherwise provided in Chapter III, every person who, being at the time married,
procures a marriage of himself or herself to be solemnized under this Act shall be deemed to
have committed an offence under section 494 or section 495 of the Indian Penal Code, as the
case may be, and the marriage so solemnized shall be void.”
in Section 445, is meant for a person married under the Special Marriage Act who contracts a
second marriage under any other law:
Chapter III of the Act, referred to in Section 43 provides the facility of turning a pre-existing
marriage solemnized as per religious or customary rites into a civil marriage by registering it
under this Act. This facility is also available subject to the condition that “neither party has at the
time of registration more than one spouse living” – Section 15 (b). If a person having more than
one spouse living fraudulently registers either of his marriages under this Act he will be guilty of
the offence of knowingly making a false statement punishable under Section 45 of the Act. The
anti-bigamy provisions of the Special Marriage Act apply to every marriage contracted under its
provisions irrespective of the religion of the parties. A court has specifically held that if a Muslim
contracts a civil marriage under the Special Marriage Act instead of his personal law the anti-
bigamy provisions of the Act will apply to him.6

However, if a person who has registered his pre-existing marriage under the Special Marriage
Act in terms of Section 15 contracts a second bigamous marriage, it is not clear from the
language of the Act if the provision of Section 44 reproduced above will apply to the case. The
words “Save as otherwise provided in Chapter III” in Section 43 are not clear in their meaning.
In the fitness of things, since ex post facto registration of a religious or customary marriage turns
it into a civil marriage for all purposes, the anti-bigamy provisions of the Act should also apply
to such a case.

Foreign Marriage Act 1969

This Act facilitates solemnization of civil marriages in foreign countries between two Indians or
an Indian and a foreigner. Monogamy is the rule under this Act as well, the first condition for the
solemnization of marriage under its provisions being that “neither party has a spouse living” –
Section 4 (a). If the condition of monogamy and the other conditions mentioned in Section 4 of
the Act are met, a pre-existing marriage between two Indians or an Indian and a foreigner
solemnized in a foreign country under a local law can be registered under the Foreign Marriage
Act, upon which it shall be deemed to have been solemnized under the said Act – Section 17.

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“Every person whose marriage is solemnized under this Act and who, during the lifetime of his
or her wife or husband, contracts any other marriage shall be subject to the penalties provided in
Section
494 and Section 495 of the Indian Penal Code, for the offence of marrying again during the
lifetime of a husband or wife, and the marriage so contracted shall be void.”
6
S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad 1997 CriLJ 1655
(AP).
The anti-bigamy penal provision of Section 19 of the Foreign Marriage Act7, applies to both
marriages originally solemnized under its provisions and those solemnized as per a foreign law
but later registered under the Foreign Marriage Act:

Effect of change of religion


Post-marriage conversion by either party to a civil marriages has no legal consequences – the
convert remains subject to the provisions of the Special Marriage Act 1954 or the Foreign
Marriage Act 1969, as the case may, and neither the converting spouse can contract another
marriage nor the other spouse can seek divorce on the ground of change of religion. If either
party in such a situation marries again after changing religion, but without obtaining divorce or a
decree of nullity, his or her conduct will still attract anti-bigamy provisions of the Indian Penal
Code.

Bigamy under Community-Specific Legislation


Christian Marriage Act 1872

As is well known, the Christian religion prohibits bigamy. In India Christian marriages are
governed by an old Act of the British period – the Christian Marriage Act 1872. It applies to all
sorts of marriages among the Christians of India and requires them to be solemnized under its
provisions not only when both parties are Christian but also when one of them is a Christian and
the other a non-Christian (see Section 4 of the Act). In the first case, the notice to be given for
marriage by either party is to be accompanied by a declaration of the parties’ marital status at the
time of marriage, and the prescribed form for this purpose mentions only two possibilities – the
person giving a notice may be either a bachelor/spinster or widower/widow. A certificate of
compliance with the notice requirement is to be issued upon the applicant filing a declaration
affirming that “he or she believes that there is not any impediment of kindred or affinity or other
lawful hindrance, to the said marriage;” and the marriage shall be solemnized only after such a
certificate has been issued (Sections 12, 18, 25 & Schedule I). For obtaining a certificate in the
case of a marriage solemnized by or in the presence of a Marriage Registrar, instead of filing a
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“(1) Any person whose marriage is solemnized or deemed to have been solemnized under this
Act and who, during the subsistence of his marriage, contracts any other marriage in India shall
be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code, and the
marriage so contracted shall be void.

(2) the provisions of sub-section (1) apply also to any such offence
committed by any citizen of India without and beyond India.”
The anti-bigamy provisions of the Foreign Marriage Act, like those of
the Special Marriage Act 1954, are applicable to all cases governed by
it, irrespective of the religion of the parties.
written declaration the person giving the notice has to take an oath to the same effect that “he or
she believes that there is not any impediment of kindred or affinity or other lawful hindrance, to
the said marriage” (Sections 41-42). The marriage of a native Christian can be certified without
the preliminary notice mentioned above subject to the condition, inter alia, that “neither of the
persons intending to be married shall have a wife or husband still living”(Section 60). The Act
provides that a person making a false oath or declaration or signing a false notice, intentionally
and for the purpose of procuring a marriage, shall be guilty of the offence punishable under
Section 193 of the Indian Penal Code – Section 66.
There is no specific reference in this Act to the anti-bigamy provisions contained in Sections
494-495 of the Indian Penal Code. Since bigamy is strictly prohibited by the Christian religious
law and the Act also impliedly prohibits it, applicability of the said IPC provisions to married
Christians may be seen as a foregone conclusion. Yet, there is a case for making the Act specific
on this point. A post-marriage change of religion by either spouse may have no effect on
prohibition of bigamy under the Christian law since both the Christian Marriage Act 1872 and its
divorce supplement, the Indian Divorce Act 1869, apply also to cases where only one spouse is a
Christian.

Parsi Marriage and Divorce Act 1936

Unlike the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 specifically
prohibits bigamy and says that Sections 494-495 of the Indian Penal Code will be attracted by
every case of bigamy in any marriage governed by that Act. Sections 48 and 59 of the Act read as
follows:

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Section 4
“(1) No Parsi (weather such Parsi has changed his or her religion or domicile or not) shall
contract any marriage under this Act or any other law in the life time of his or her wife or
husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband
or after his or her marriage with such wife or husband has lawfully been declared null and void
or dissolved; and, if the marriage was contracted with such wife or husband under the Parsi
Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or
dissolution as aforesaid under either of the said Acts.
(2) Every marriage contracted contrary to the provisions of subsection
(1) shall be void.”
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Section 5
“Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not,
contracts a marriage without having been lawfully divorced from such wife or husband, or
without his or her marriage with such wife or husband having legally been declared null and void
or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian
Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or
wife”.
The reference to bigamy after change of religion and its prohibition constitute a unique feature of
the Parsi Marriage and Divorce Act 1936 which has no parallel under any other family-law
enactment for the time being in force.

Hindu Marriage Act 1955


Since times immemorial it was believed – rightly or wrongly – that Hindu religious law allowed
an unrestricted polygamy and imposed no specific conditions on the polygamist-husband. The
Muslim rulers of India had left the Hindu law on polygamy – whatever it was – untouched and
did not impose on any non-Muslim the rules of Islamic law tolerating limited polygamy in a
well-defined discipline of equal justice to co-wives. The
British rulers, who did reform many other aspects of Hindu law, also did not abolish the rules on
polygamy under the traditional Hindu law and custom .Only the Brahmosamajis had managed to
legally adopt monogamy under a special law enacted for them in the erstwhile Bengal province
in 1872.

After the advent of independence anti-bigamy laws were enacted for the Hindus by provincial
legislatures in Bombay, Madras, Saurashtra and Central Provinces. Finally, in 1955 Parliament
enacted the Hindu Marriage Act putting a blanket ban on bigamy for the Hindus. Buddhists,
Jains and Sikhs, declaring bigamous marriages on their part in future to be void and penal (see
Sections 5, 11 & 17). One of the conditions for a valid marriage under the Hindu Marriage Act is
that “neither party has a spouse living at the time of the marriage” [Section 5 (i)]. Violation of
this condition shall make the marriage null and void and liable to be so declared by a decree of
nullity on a petition filed by either party against the other party ( Section 11). Section 1710 of the
Hindu Marriage Act once again declares every bigamous marriage among persons governed by
the Act to be void and makes it punishable under the anti-bigamy provisions of the Indian Penal
Code 1860. It reads as follows: Though Section 7 (2) says that if a marriage is solemnized
through the saptpadi ceremony the marriage will be complete and binding on taking the sevenths
step, some High Courts took the view that this is not a special rule of evidence requiring in a case
of bigamy proof of the seventh step having been duly taken. 11 In 1988 a learned judge of the
Andhra Pradesh High Court, Radha Krishna Rao, had issued an important note of caution:
"During the subsistence of the first marriage the second marriage will generally be done in
secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed
the marriage will be treated as abettor. The courts are giving acquittals on the ground that the
required ceremonies for the second marriage have not been proved beyond reasonable doubt.
10
“Any marriage between two Hindus solemnized after the commencement of this Act is void if
at the date of such marriage either party had a husband or wife living; and the provisions of
sections 494 and 495 of the Indian Penal Code shall apply accordingly.”
11
Padullapath Mutyala v Subbalakshmi AIR 1962 AP 311, Trailokya Mohan v State AIR 1968
Ass 22.
Suitable legislation has to be made with regard to the mode of proof of the second marriage. If
the marriage was done publicly and openly to the knowledge of one and all, the court can expect
direct evidence.

When second marriage is being performed in secrecy, knowing fully well that it is an offence, if
the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not
to encourage perjury, but to find out the real truth and convict the accused if there is a second
marriage. Unfortunately, none of the social organizations which' claim about the protection of the
rights of women, have taken any steps to see that suitable legislation be made with regard to the
mode of proof for performance of the second marriage."12However, linking the anti-bigamy
provisions of the Act with the requirement of a ceremonial solemnization of marriages under
Section 7 (2) of the Act, the Supreme Court later held that if a customary ceremony is
incompletely or defectively performed (to get married again), the resulting second marriage will
be non-existent in eyes of law and hence will not attract the anti-bigamy provisions of the Act, or
of the IPC.13 Going by this interpretation, if the saptpadi ceremony has been incompletely
employed in view of the rule of Section 7 (2) there is all the more reason to treat the second
allegedly bigamous marriage as non-existent.

If the anti-bigamy provisions of the Hindu Marriage Act are to be strictly enforced, there is a
case for de-linking them from the provision of Section 7 of the Act under which some ceremony
has to be necessarily employed for solemnizing a marriage.

Bigamy in Islam14:
The Verse that allows polygamy "was revealed after the battle of Uhud in which many Muslims
were killed, leaving widows and orphans for whom due care was incumbent upon the Muslim
survivors."

The translation of the verse is as follows: "If you fear that you shall not be able to deal justly
with the orphans, marry women of your choice, two, or three, or four; but if you fear that you
shall not be able to deal justly (with them), then (marry) only one…" (Qur’an 4:3)

From this verse a number of facts are evident:

1 That polygamy is neither mandatory, nor encouraged, but merely permitted.


12
[1988 CriLJ 1848].
13
Bhaurao v State of Maharashtra AIR 1965 SC 1564.

Dr. Jamal Badawi


14

Reproduced from "Polygamy In Islamic Law" © copyright 1998. Dr. Jamal Badawi
2 That the permission to practice polygamy is not associated with mere satisfaction of. Rather, it
is associated with compassion towards widows and orphans, a matter that is confirmed by the
atmosphere in which the verse was revealed.

3 That even in such a situation, the permission is far more restricted than the normal practice
which existed among the Arabs and other peoples at that time when many married as many as ten
or more wives.

4 That dealing justly with one’s wives is an obligation. This applies to housing, food, clothing,
kind treatment…etc., for which the husband is fully responsible. If one is not sure of being able
to deal justly with them, the Qur’an says: "then (marry) only one." (Qur’an 4:3)15

This verse, when combined with another verse in the same chapter, shows some discouragement
of such plural marriages. The other verse plainly states: "You are never able to be fair and just
between women even if it is your ardent desire…" (Qur’an 4:129)

The requirement of justice rules out the fantasy that man can "own as many as he pleases." It also
rules out the concept of a "secondary wife", for all wives have exactly the same status and are
entitled to identical rights and claims over their husband. It also implies, according to the Islamic
Law, that should the husband fail to provide enough support for any of his wives, she can go to
court and ask for a divorce.

5 The verse says "marry," not kidnap, buy or seduce. What is "marriage" as understood in Islam?
Marriage in Islam is a civil contract which is not valid unless both contracting parties consent to
it. Thus, no wife can be forced or "given" to a husband who is already married.

It is thus a free choice of both parties. As to the first wife:

A She may be barren or ill and see in polygamy a better solution than divorce.

B She may divorce him (unilaterally) if he is married to a second wife provided that the nuptial
contract gives her the right of unilateral divorce (ismah)

C She can go to court and ask for a divorce if there is evidence ofmistreatment or injustice
inflicted upon her.

But if polygamy is discouraged and loaded with such constraints, could it have been better if the
Qur’an simply forbade it? To answer this question, we may have to raise another one: Can
Polygamy be a Better Solution in Some Cases?

15
http://www.islamfortoday.com/polygamy5.htm
Scholars in the past and at present, Muslims and Non-Muslims have consistently pointed out
such cases. The following are a few examples, which are tied in with the general approach of
Islam to individual and social problems.

A Individual Cases

1. A man who discovers that his wife is barren, and who at the same time instinctively aspires to
have children and heir. In a situation as this, then man would either have to:

- Suffer the deprivation of fatherhood for life.

- Divorce his barren wife and get married to another women who is not barren.

In many cases, neither solution can be considered as the best alternative. Polygamy would have
the advantage of preserving the marital relationship without depriving the man of fathering
children of his own.

2. A man whose wife becomes chronically ill would have one of possible alternatives:

- He may suppress his instinctive sexual needs for the rest of his life.

- He may divorce his sick wife at a time when she needs his compassion most, and get married to
another woman, thus legally satisfying his instinctive needs.

- Or he could compromise by keeping his sick wife, and secretly take for himself one or more
illicit sex partners.

The first solution is against human nature. Islam recognises sex and sexual needs and provides
legitimate means for their satisfaction. The second solution is clearly less compassionate;
especially where there is love between two parties. Furthermore, divorce is described by the
Prophet Muhammad (saw) as the "permitted thing that is hated most by God". The last solution is
plainly against the Islamic teaching which forbids illicit sexual relationships in any form.

To sum up, Islam being against immorality, hypocritical pretence of morality, and against divorce
unless no better solution is available, provides for a better alternative which is consistent with
human nature and with the preservation of pure and legitimate sex relationships. In a situation
like this, it is doubtful that any solution would be better than polygamy, which is, after all, and
optional solution.

It is now evident that the association of "polygamy" with Islam is not unfair or biased but based
on serious misunderstanding. Polygamy was practiced, often without limitations, in almost all
cultures. It was sanctioned by various religions, and practiced both before Islam and for many
centuries thereafter. It is presently practiced, though secretly, by the Mormons, and it is allowed
by Christian missionaries in Africa and other areas where polygamy is a social necessity.

It is both honest and accurate to say that it is Islam that regulated this practice, limited it, made it
more humane, and instituted equal rights and status for all wives. What the Quranic decrees
amount to, taken together, is a discouragement of polygamy unless necessity for it exists.

It is also evident that the general rule in Islam is monogamy and not polygamy. However,
permission to practice limited polygamy is only consistent with Islam’s realistic view of the
nature of man and women and of the various social needs, problems, and cultural variations.

The question is, however, far more than the inherent flexibility of Islam; it also is frank and
straightforward approach of Islam in dealing with practical problems. Rather than requiring
hypocritical and superficial compliance, Islam delves deeper into the problems of individuals and
societies, and provides for legitimate and clean solutions that are far more beneficial than would
be the case if they were ignored. There is no doubt that the second wife legally married and
treated kindly is better off than a mistress without any legal rights or security. There is no doubt
also that the legitimate child of a polygamous father, born in the "full light of the day, " and who
enjoys all the rights and privileges of a son or daughter, is far better off than the wanted or
unwanted illegitimate child (especially if it is a girl).

It is fair also to say that polygamy may be harmful in many respects. Islam, however, does not
regard polygamy as a substitute for monogamy. Realising its disadvantages Islam allows it under
strict conditions and when no better alternative is available. This is actually consistent with a
general rule in Islamic Law, "The Lesser of Two Evils." This means that if a harm is certain, and
if there is no way to avert such harm unless some other harm is done, then it is better to cause the
lesser harm in order to avoid the greater. It is like a captain who gets rid of the ship’s freight in
order to save the lives of the sailors.

This vitality, flexibility, and far-sightedness of the teachings of Islam cannot possibly be
attributed to any man or group of men, including Prophet Muhammad (saw) himself. Its secret
simply lies in its Divine Source, God Most High, who knows in entirety what human needs and
problems are.

This guidance can hardly be secured by avoiding issues and problems which are real, even as
they are relevant to human life on earth with its diversity. Hypocrisy, apology, or burying one’s
head in the sand are hardly realistic means of achieving righteous human life. They are not
effective in achieving moral upliftment either

News views:
Two conspicuous cases of unlawful bigamy through the route of conversion to Islam have made
headlines in recent days.

 In one of these, an already married prominent politician mysteriously disappeared and


surfaced a month later with a new bride claiming that they had become husband and wife
under the law of Islam to which both of them had since converted. Chandra Mohan, the
then Deputy Chief Minister of Haryana,converted to Islam to marry another woman
while his first wife was still alive. Chandra Mohan's lady love was none other than a
former legal luminary of Chandigarh, now named Fiza. The case of conversion to beat
the bigamy law created a furore in both social and legal circles. Chandra Mohan, who had
renamed himself Chand Mohammed soon had a change of heart and re-embraced the
Hindu Dharma and reverted to his Hindu. He also moved back to live with his first wife.

Such attempts at exploiting loopholes to be free of accusations of bigamy are not new.
Though few cases receive as much publicity as the Chand-Fiza episode, the practice of
superficially converting to another religion in order to acquire new spouse has shaken up
society as well as lawmakers several times
 In the second case, another married man — an army physician serving in Afghanistan —
converted to Islam in order to marry an Afghan Muslim girl serving him as an interpreter
who discovered his marital antecedents only when he returned to India leaving her behind
in Afghanistan
 It is not the first time a high-profile Hindu couple has converted to Islam to 'marry' even
though the first wife is alive. More than two decades ago, film stars Dharmendra and
Hema Malini married secretly. Women activists protested against the "illegal" marriage.
Dharmendra, they pointed out, was already married and had teenaged children. But in
order to give legitimacy to his union with Hema Malini, the couple had converted to
Islam.
Advocate and activist Neelofar Akhtar says that such conversions and marriages are made
worse because they both are a "sham". She points out that "there are no strict laws to register
a conversion (so) people are misusing the religion to have more than one wife. In all Muslim
countries, there are very stringent rules if a man wants to take a second wife". But in India "it
is done this easily. There is need for a regulatory body to monitor such misuse."

Akhtar makes a good point. In 1995, the Supreme Court ruled in the Sarla Mudgal case that
under the Hindu Marriage Act 1955, a Hindu husband cannot marry a second time simply by
embracing Islam without lawfully dissolving the first marriage. He would be guilty of
bigamy, the Court ruled.
V Mohini Giri, chairperson of the social service organization Guild of Service and former
head of the National Commission for Women, says, "Dharmendra's wife Prakash Kaur could
have fought her case in court. But, like most Indian women who have been conditioned to
ultimately accept their husbands' mistakes, she didn't complain and the controversy died
down". Giri has been trying to close a loophole that allows a Hindu man to have more than
one wife by simply converting.

"There is a law now that all marriages should be registered, regardless of religion. However,
that is not being properly implemented. While we know of only high-profile cases like that of
a married Raj Babbar tying the knot with Smita Patil, there are scores of ordinary women
who have been abandoned by their husbands who have misused Islam," she says.

Akhtar says the only change is that "women are becoming more financially independent and
aware of their rights".

Position in other Islamic countries:


The commission's 277th report, recently made public, observes that the "traditional
understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in
letter and spirit". Well said. But look where it goes from there. It proposes a new clause in Hindu
family law to abort sham conversions purely for bigamy's sake but mindful of something called
"religious sensibilities" stays totally mum about what must necessarily be done with the country's
Muslim Personal Law.

For example, the minimum age for marriage for a girl is 16 years in Pakistan, Egypt, Indonesia
and Malaysia; 17 years in Lebanon, Syria and Tunisia; and 18 in Algeria, Morocco and Jordan.
But the All India Muslim Personal Law Board in its wisdom demanded some years ago that
Muslim girls in India be exempted from the provisions of the law restraining child marriage.

Polygamy is banned in Tunisia, Turkey and Lebanon (for some sects) while it is severely
restricted in others. Pakistan permits second marriage under certain conditions but only after
following specified procedures that include convincing the Union Council that the husband has
the prior consent of his current wife. In Malaysia, a man may marry again only with consent
from a Shariah Court. In Indonesia, women who are public servants are prohibited from
becoming a second wife. In addition to following regular permission procedures, a male
government servant must obtain the permission of his superiors before marrying a second wife.
Formal court procedures are obligatory for second marriages in Bangladesh, Singapore and
Philippines. In the early 90s, a division bench of the Dacca High Court comprising two Muslim
judges ruled that read in the modern context, the Quranic injunction on marriage can only have
one meaning: monogamy. In a changed political climate however, the judgment was set aside by
the Supreme Court of Bangladesh. The privileged Indian Muslim male, however, is under no
constraint whatsoever. To top it all, a fatwa issued in Hyderabad two years ago held that it is
perfectly Islamic for a Muslim male to marry four women in one go!

Algeria, Indonesia and Tunisia do not recognise talaq (a husband's unilateral right to end a
marriage). Divorce is possible only through the courts. In Morocco, talaq is subject to strict
judicial control. In Jordan, Lebanon, Malaysia and Syria you have to apply for permission to
divorce.

Besides, in most of these countries, a reconciliation attempt is mandatory prior to divorce. In


Iran, two witnesses are essential for a talaq. Only in India does the Muslim male enjoy the
unquestioned right of instant (triple) talaq. Whether sober or dead drunk, in a fit of anger or on a
mere whim, he can do so when he likes, how he likes: orally face-to-face, letter, telegram,
telephone, fax, e-mail or sms.

In Tunisia, Morocco and Turkey, both parents have equal rights in child custody and
guardianship on divorce. In India, however, the father enjoys the "natural right" over children. In
terms of gender justice Morocco, a hereditary monarchy, is perhaps the best place for a Muslim
woman today.

With the new family code, introduced by King Mohammed VI in October 2003 and unanimously
adopted by parliament in February 2004, Moroccan men and women are now equal partners in
marriage. The husband is no longer 'head of the family'; both husband and wife now have joint
responsibility for the family.
In short, paradoxical as it sounds, in secular India Muslim women have far less rights than their
counterparts in numerous Muslim countries. Being a learned man and a believing Muslim, Dr
Mahmood cannot but be painfully aware of this rampant male-centrism in Islam's name. What
can he do? In the midst of so many Muslims either blissfully ignorant of the faith they adore or
sworn to the Hypocrisy Oath, he thinks it prudent to measure his words.

India's Mr Muslim proudly proclaims there is no place for the clergy in Islam. Yet, he is happy to
"outsource" all knowledge of Islam to the very clergy whose existence he questions. As a result
he knows little about Islam except that it is the only valid passport to paradise. This gender
unjust Islam, Mr Muslim, is something to be ashamed, not proud, of.
Attitude of Indian courts towards bigamy:
The decision of the Supreme Court Sarla Mudgal v. Union of India16 case has brought uniformity
in the law concerning conversion and remarriage among various personal laws. It has brilliantly
filled the vacuum that was culpably exploited by persons of weak character and vice intentions in
the past. It has also set a precedent for the future “culpable and immoral conversion” by
16
AIR 1995 SC 1531
providing a punitive sting. It has, however, been criticised also on the ground that court
“considered” the accused person as “both Hindu and Muslim” at the same time and thus “blowed
hot and cold” at the same time.17

In this case many petitions were filed by women who were victims of such marriages. Petitioner
1 is the President of "Kalyani"- a registered society - which is an organisation working for the
welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to
Jitender Mathur on February 27, 1978 and had three children. In early 1988, the petitioner 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. According to the petitioner, conversion of her husband to Islam was only for the
purpose of marrying Sunita and circumventing the provisions of Section 494, IPC.

Jitender Mathur asserts that having embraced Islam, he can have four wives irrespective of the
fact that his first wife continues to be Hindu. Rather interestingly Sunita alias Fathima is the
petitioner in another Writ Petition. She contends that she along with Jitender Mathur who was
earlier married to Meena Mathur embraced Islam and thereafter got married. A son was born to
her. She further states that after marrying her, Jitender Mathur, under the influence of her first
Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and
had agreed to maintain his first wife and three children. Her grievance is that she continues to be
Muslim, not being maintained by her husband and has no protection under either of the personal
laws.

Geeta Rani, petitioner in Writ Petition was married to Pradeep Kumar according to Hindu rites
on November 13, 1988. In December 1991, the petitioner learnt that Pradeep Kumar ran away
with one Deepa and after conversion to Islam married her. It is stated that the conversion to Islam
was only for the purpose of facilitating the second marriage.

There were many such other petitions and the ruling was handed down by a division bench
comprising Mr. Justice S Saghir Ahmed and Mr. Justice R P Sethi in separate but concurring
judgment and held that the second marriage of a Hindu man after conversion to Islam without
having his first marriage dissolved under the law would be invalid.
Quoting a few paragraphs from the landmark and historic judjment:

The Court has judicially noticed it being acclaimed in the United States of America that the
practice of polygamy is injurious to 'public morals', even though some religions may make it
obligatory or desirable for its followers. The Court held that polygamy can be superseded by the
State just as it can prohibit human sacrifice or the practice of Sati in the interest of public order.

17
PRAVEEN DALAL,”THE INSIGHT OF SARLA MUDGAL” in IMC Media Centre on 07/06/2005
The Personal Law operates under the authority of the legislation and not under the religion and,
therefore, the Personal Law can always be superseded or supplemented by legislation.

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

“The second marriage would be void in terms of the provisions of Section 494 of the Indian
Penal
Code (IPC) and the apostate husband would be guilty of the offence of bigamy under section 494
IPC”, the court added.

The ruling was handed down by a division bench comprising Mr. Justice S Saghir Ahmed and
Mr.
Justice R P Sethi in separate but concurring judgement while dismissing a review petition and
writ petition filed by various persons and Jamait-i-Ulema-Hind.

It was contended in these petitions that the judgement in Sarala Mudgal case was contrary to
the fundamental rights as enshrined in Articles 20, 21, 25 and 26 of the Constitution.

The court noted that the petitioners had not made out any case within the meaning of Article 137
of
the constitution read with order XL of the Supreme Court rules and order XLVII Rule 1 of the
criminal procedure court for reviewing the judgement in Sarala Mudgal case. The petition is
misconceived and bereft of any substance.

The judges said that they were not impressed by the arguments that the law declared in Sarala
Mudgal case could not be applied to persons who had solemnized marriages in violation of the
mandate of law prior to the date of judgement.

“This court had not laid down any new law but only interpreted the existing law which was in
force. It is settled principle that the interpretation of provision of law relates back to the date of
the law itself and cannot be prospective from the date of the judgement because concededly the
court does not legislate but only gives an interpretation to an existing law”, the judges observed.

“The judgement had only interpreted the existing law after taking into consideration various
aspects
argued at length before the bench which pronounced the judgement. The review petition alleging
violation of article 20 (1) is without any substance and is liable to be dismissed on this ground
alone”, the judges held.
Even under the Muslim Law, the judges pointed out, plurality of marriages is not unconditionally
conferred upon the husbands it would therefore be doing injustice to Islamic law to urge that the
convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the
law to which he belonged before conversion.

The court said the violators of law, who have contracted the second marriage, cannot be
permitted to urge that such marriage should not be made subject matter of prosecution under the
general penal law prevalent in the country.

“The court said Islam, which is a pious progressive and respected religion with rational outlook,
cannot be given a narrow concept and as has been tried to be done by the alleged violators of the
law”, the court noted.

Again in 2000 in another case Lily Thomas vs. Union of India18

It was held that If a Hindu even after conversion to Islam marries a second time during the life
time of his wife, such marriage apart from being void under sections 11 and 17 of the Hindu
Marriage Act, would also constitute an offence and that person would be liable to be prosecuted
under sec. 494 Indian Penal Code. Even under the Muslim Law, plurality of marriages is not
unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic
Law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his
marriage under the law to which he belonged before conversion.

Another question which has been raised by the respondents in these cases is that there has been a
violation of Art 25 guaranteed to the Indian citizens.

To this regard the Court observes in Lily Thomas case that

“The grievance that the judgment of the Court amounts to violation of the freedom of
conscience and free profession, practice and propagation of religion is also far-fetched and
apparently artificially carved out by such persons who are alleged to have violated the law by
attempting to cloak themselves under the protective fundamental right guaranteed under Article
25 of the Constitution. No person, by the judgment impugned, has been denied the freedom of
conscience and propagation of religion…. Freedom guaranteed under Article 25 of the
Constitution is such freedom which does not encroach upon a similar freedom of other persons.
Under the constitutional scheme every person has a fundamental right not merely to entertain the
religious belief of his choice but also to exhibit this belief and idea in a manner which does not
infringe the religious right and personal freedom of others.”

18
A.I.R. 2000 S.C. 1650
In Smt. R.A. Pathan v. Director of Technical Education and Ors.19, having analysed in depth
the tenets of Muslim personal law and its base in religion, a Division Bench of Gujarat High
Court held that a religious practice ordinarily connotes a mandate which a faithful must carry
out. What is permissive under the scripture cannot be equated with a mandate which may amount
to a religious practice. Therefore, there is nothing in the extract of the Quaranic text (cited before
the Court) that contracting plural marriages is a matter of religious practice amongst Muslims. A
bigamous amongst Muslims is neither a religious practice nor a religious belief and certainly not
a religious injunction or mandate. The question of attracting Articles 15(1), 25(2) or 26(b) to
protect a bigamous marriage and in the name of religion does not arise

Law commission report on bigamy:


Bigamy — or for that matter polygamy — as one of Islam’s widely misread concepts has just
been examined with a fine-toothed comb and put in perspective by India’s law commission, a
government panel for legal reforms.

To put the record straight, the law commission in its 227th report has said the popular view that
Muslims could simply have two wives at a time was flawed. One of the authors of the report was
Tahir Mahmood, a front-ranking legal expert on Muslim law, aside from the commission’s
chairman AR Lakhsmanan.

“It is generally believed that under Muslim law, a husband has an unfettered right to marry again
even when his earlier (read present) marriage is continuing. On a closer examination of the
relevant provisions of the Quran and other sources of Islamic law, this does not seem to be true,”
the commission’s report states.

These comments however were incidental to the main theme: “Preventing Bigamy via
Conversion to Islam”. The legal experts were seized with cases of Hindu men using Islam as a
licence to marry a second time without dissolving their existing marriage.

Since Islam itself did not permit a licentious use of bigamy provisions, the commission
suggested amendments to the Hindu Marriage Act to put a stop to Hindus misusing Islam’s
highly conditional permission to have a second wife concomitantly with the first one.

There are some recommendations given by the Law Commission in this regard:

1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect
that a married person whose marriage is governed by this Act cannot marry again even after

19
(1981)22GLR289
changing religion unless the first marriage is dissolved or declared null and void in accordance
with law, and if such a marriage is contracted it will be njhnull and void and shall attract
application of Sections 494-495 of the Indian Penal Code 1860.

2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the
Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.

3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this
Section would not apply to a married woman who was originally a non- Muslim if she reverts to
her original faith – be deleted.

4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing
marriage, by whatever law it is governed, becomes inter-religious due to change of religion by
either party it will thenceforth be governed by the provisions of the Special Marriage Act
including its anti-bigamy provisions.

5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be
made cognizable by necessary amendment in the Code of Criminal Procedure 1973.

The final gestalt:


Noted Islamic scholar Moulana Wahiduddin Khan says Islam permits one marriage at a time but
it depends upon the prevailing circumstances in the society like the increase in the number of
women among other things that may allow a person to have a second wife.

"Bigamy in Islam is allowed in only exceptional cases where a wife is suffering from incurable
diseases or in a condition when the said wife is not able to produce a child, in that situation only
a man can look for a second spouse," says Moulana Mohammed Rafiq, head priest Jama Masjid,
Okhla. He also said that the will of the first wife is also binding for a man looking to marry a
second time. He further adds that "Islam allows Muslims to have four wives at a time provided
that absolute justice is done to all of them".

He also disapproved of the current phenomenon of people converting to Islam and marrying a
second time to escape the law. "People embracing Islam and marrying a second time during
subsistence of their previous marriage have nothing to do with principals and real teachings of
Islam. Such people are mocking Islam and adopting such tactics only to escape from the jaws of
the law and indulge in sexual extravaganza". Islam, which is a pious, progressive and a
respectful religion with a rational outlook cannot be given such a narrow concept, asserts Rafiq
The institution of marriage is a recognised time old institution. It was essential and necessary for
the civilised human society. The peace clergy personalities and legislators have been bringing
about the changes necessary in the institution. The marriage has been centre of activity
religiously, legally and for the human biological urges. The marriages were governed by pre-
determined rules worked out by the saints, philosphers, law givers, Courts as well as the
legislatures. The laws and the customs varried from time to time, place to place, community to
community etc20.

The status of a husband and a wife was considered to be religious and one of the most pious
relationships. According to various schools of thought life demanded certain minimum civilized
existence. The marriage was an institution wherein the parties to it consolidated their social and
economic gains and passed those on to their progeny. The marriage builds the dynastic units.
Marriages are arranged with great solemnity and with certain ceremonies recognised by custom
are by law. A healthy, and happy marriage provides a good progeny which would prove an asset
to the nation. According to the ancient philosophy marriage was considered to be a spiritual ideal
for the guidance of the believers. Marriage was one of the means to check immorality and further
save the women from exploitation. It has psychological, biological, civil and human
considerations. It was one of the essential institutions in order to protect the progeny, who would
be the future citizens of the country.21

Hindu idea of marriage has always involved the creation of permanent tie irrespective of the fact
how it came into being. Hindus had been treating the marriage as a sacrosanct act. In order to
bring about the marriage, in view of the sacrosanctity attached to it, various ceremonies were
provided by the Hindu philosphers in order to attain the status of husband and wife and keeping
the same at the highest pedestal. The marriage carried along with it divine blessings and it was
known that peace and prosperity used to dwell in the house where female members received due
respect and honour. It was observed by various jurists and psychologists that woman by nature is
weak and is unable to bear the termoils of the world and marriage is status fulfilling, an
irrevocable intention of living together, sharing the experiences of life, taking the wear and tear
of life jointly. The public used to maintain and respect the status of married life. It bore a legal
condition of status. The termination of marriage was unknown except in a few and a particular
class of people and conditions. Marriage was considered to be essential for spiritual welfare. In
the ancient society monogamy was considered a virtue in spite of the fact that in some class of
people and under certain circumstances polygamy was permissible.

With the passage of time changes in social conditions, the reforms suggested by various saints,
philosophers, law givers. Courts as well as the legislatures and the influence of the Western
Society have eroded the concept of Hindu marriage being a sacrosanct. Resultantly, the marriage
is now considered partly as a sancrosanct and partly as a contract. Monogamy has been
20
Veena Rani v. Jagdish Mitter Malhan II(1990)DMC163.
21
Ibid
considered to be decorous in view of the fact that the females are being considered as equals. In
this regard I would like to suggest that women should be made aware of their rights. Gone are
those days when they were merely being subjected to the four walls of the house- the law has a
remedy only if you seek justice. Silence in such matters is not the solution. Furthermore Indian
courts should also adopt a hard attitude while interpreting the Islamic law which has been
gravely misunderstood. Instead of suggesting amendments in the existing statutes relating to
Personal laws the Islamic law should be interpreted in a reformative way.