FAMILY LAW PROJECT ABSTRACT NAME: Sai Suvedhya R.

ROLL NO.: 2018LLB076

SEMESTER: 3RD Sem

CASE NAME: Lily Thomas v. Union of India

Case Citation : AIR 2000SC 1650: 2000 CrLJ 2433: 2000 AIR SCW 1760: 2000 (1) BLJ 53

Bench: S. S. Ahmed, R.P. Sethi

BRIEF FACTS: Mrs. Sushmita Gosh was married to Mr. Gyan Chand Ghosh, who to take benefit of a second marriage with one
Ms. Vinita Gupta (divorcee with 2 children) had converted to Islam as the Hindu Marriage Act which provides the Punishment for
Bigamy to be the same as under s.474 and 475, IPC. Three petitions were also subsequently filed. Here they had been tagged
together and SC made the law that “marriage resulting from religious conversion to Islam for taking second wife is void when
during the existence of the first marriage under The Hindu Marriage Act because such conversion of faith is feigned rather than
exercise of freedom. The case Lily Thomas v. Union of India is where various persons and jamiat Ulema Hind & Anr., have filed
review petition under Art.1436 of the Constitution of India to review law laid down by Sarla Mudgal Case in 1995 and which was
upheld through the Lily Thomas case before in the criminal proceeding. Over writ petitions for breach of Fundamental Rights
(Art. 20, 21,25,26) due to the law set by Sarla Mudgal case was also filed. Lily Thomas is the lawyer of the distressed, Mrs.
Sushmita Ghosh and other such women who have been a victim to bigamous marriage through religion conversion.

ISSUES: 1) Whether religious conversion for the purpose of committing bigamy and polygamy is violation of Art.21 as long as
Muslim Personal laws or any other marriage law allows polygamy? 2) Whether apprehension of a person for charges of bigamy
after religious conversion to Islam is breach of the fundamental right to life and liberty due to the judgment passed by a Court of
law or not?

CONTENTION FROM BOTH THE PARTIES: The first issue has been raised by Lily Thomas on behalf of the women wronged,
the argument was that marriage is a sacred institutions and resorting to the act of religious conversion to Muslim so as to commit
the act of bigamy as Muslim Personal Law allows it, is a feigned attempt where freedom of conscience is not at stake but the
women’s freedom of facing such conditions of bigamous marriage and this betrayal is violative of Art.21 right to life and liberty.
Furthur, Lily Thomas urged the court to declare polygamy in the Muslim law to be unconstitutional. This was one of the most
profound arguments placed before the Supreme Court for adopting a Uniform Civil Code so as to absolve vast majority of socio-
legal issues that were being uncovered due to Religious Personal Laws. The few were 1) Many Muslim women had filed writ
petition before the Supreme Court and other high courts to declare polygamy in Muslim law to be unconstitutional. 2) To reframe
Muslim personal law in the likes as present in Tunisia where polygamy is disallowed as the custom and usage of polygamy is
disrespectful to the liberty and integrity of women who have to face and live within bigamous and polygamous marriages. 3) To
have a Uniform Civil Code so that no Personal Religious laws makes fundamental rights violation. The latter issue has been raised
from the petitioners’ side as some of them have been apprehended under s.475, IPC due to the law made by the Supreme Court in
the Sarla Mudgal’s Case; hence review of the same has been raised against the Court’s previous judgment. The counsel for the
petitioners have argued that the aggrieved parties while exercising their freedom of conscience and to profess any religion have
sought conversion to Islam and due to such reasons they are allowed to commit Bigamy. The judgment in Sarla Mudgal Case have
laid down the law that such marriage done after conversion to Islam is void as under the Hindu law before conversion their exists
the previous marriage and hence, due to such voidness of marriage, some have been apprehended under s.475, IPC. This is a
violation of right to life and liberty due to the contention that the Muslim Personal Law (Shariat) Act allows bigamy and hence,
the apprehended have not committed any offence of IPC.

CASES REFERRED BY BOTH SIDES: Sarla Mudgal v. UOI,AIR 1995 SC 1531; Andal Vaidyanathan vs Abdul Allam Vaidy;
Bhaurao Shankar Lokhande v. State of Maharashtra; Kanwal Ram v. H.P. Administration; Priya Bala Ghosh v. Suresh Chandra
Ghosh; Gopal Lal v. State of Rajas; Govt. of Bombay v. Ganga ILR (1880) 4 Bombay 330; Pannalal Bansilal Pitti and Ors. v.
State of A.P. and Anr; Ahmedabad Women Action Group and Ors. v. Union of India; Kalyani and Ors. v. Union of India and Ors

JUDGEMENT: The Supreme Court bench of Sagir Ahmed, J. and Sethi, J. has upheld the decision of the Sarla Mudgal case and
further has enforced the same. Marriage resulting from conversion to Muslim from any other faith during the existence of previous
marriage before conversion is deemed void even when Muslim Personal Law (Shariat) Act allows polygamy because such
conversion is not exercise of freedom of conscience but rather feigned and fraudulent without the change of faith. The reason
derived from the facts that lead to this judgment was due to the practice of the husband who had converted to Islam but had not
registered his new name or faith as recognition for the child born out of the second wedlock. Even bank accounts hold
identification of the husband to have been Hindu. All these were seen as evidence to justify that the conversion was feigned and
solely for bigamous marriage rather than any changes in neither faith nor practice of faith. Hence, marriage resulting from such
conversion is void also due to violation of Art.21. The violation of Article 21 on behalf of those apprehended under the law laid
down in Sarla Mudgal is being seen as no violation at all but the Court speaking from Sethi J. have contended that Article 21
states no person shall be derived of his right of life and personal liberty except as per procedure establish by law. Here the persons
are apprehended for offences under s.474 and 475, IPC therefore no right has been violated because such apprehension has been
laid down by law. The Court has said that alleged violation of Article 21 is misconceived.