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RAFFLES SCHOOL OF LAW, RAFFLES UNIVERSITY

IN THE HONBLE SUPREME COURT OF INDIA, DELHI

THE WRIT PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF INDIA

WRIT PETITION NO: ____/ 2015

CASE CONCERNING BIGAMYSARLA MUDGALPETITIONERv.UNION OF INDIARESPONDENTON SUBMISSION TO THE HONORABLE SUPREME COURT OF INDIA

MEMORIAL for the PETITIONERSARLA MUDGAL c/o KALYANI FOUNDATION

TABLE OF CONTENTSTABLE OF CONTENTS.2LIST OF ABBREVIATIONS..3INDEX OF AUTHORITIES.4STATEMENT OF JURISDICTION6STATEMENT OF FACTS.7STATEMENT OF ISSUES..9SUMMARY OF ARGUMENTS.10ARGUMENTS ADVANCED.11SUBMISSION TO THE HONBLE COURT..25

LIST OF ABBREVIATIONS

All India ReportAIR

And&

AnotherAnr.

Article A

CorporationCorp.

Et CeteraEtc

Fundamental RightsFRs

HonorableHonble

Indian penal Code, 1860IPC

LimitedLtd

Madhya PradeshM.P.

Maximum Max.

Minimum Min.

National Human Rights CommissionNHRC

NumberNo.

OthersOrs

PagePg.

Public Interest LitigationPIL

SectionS.

Supreme CourtSC

Supreme Court CasesSCC

Supreme Court Judges LibrarySCJL

ThroughThr.

Union of IndiaUOI

United NationsUN

INDEX OF AUTHORITIESSTATUTESConstitution of India

Indian Penal Code,1860

Civil Procedure Code,1908

Hindu Marriage Act, 1955

JUDICIAL PRONOUNCEMENTS CASECITATION

Abdul Rehman Antulay v. R.S. Naik AIR 1992 SC 1701

Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union Of IndiaART.I.R 1981 SC 298

Andal Vaidyanathan vs. Abdul Allam Vaidya1946 Indlaw MAD 96

Arvindar Singh Bagga v. State Of U.PAIR 1995 SC 117

Ashok Kumar Thakur v. Union of India(2008) 6 SCC 1

Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

Bodhisattwa Gautam v. Subhra ChakrabortyAIR 1996 SC 922

CB Boarding & Lodging v. State of MysoreAIR 1970 SC 2042

Choki v.state AIR 1957 RAJ 10

Consumer Education & Research Centre V. Union Of IndiaAIR 1995 SC 922

Emperor v. Mt. RuriAIR 1919 Lah 389

Francis Coralie v. Union Territory Of DelhiAIR 1981 SC 746

Fertilizer Corporation Kamgar Union V. Union Of IndiaART.I.R 1981 SC 344

Girghar gopal v. state

AIR 1953MB 147

Govt.of A.P. v P.B. Vijaya Kumar AIR 1995 SC 1648

Gul Mohammed v. EmperorAIR 1947 Nag 121

Hussainara Khatoon v. State Of Bihar

AIR 1979 SC 1369,1373

Janata Dal v. H.S. ChowdharvAI.R 1993 SC 892

Kartar Singh v. State Of Punjab(1994) 3 SCC 569

Kesavananda Bharti v. State of KeralaAIR 1973 SC 1461

Kharak Singh v. State Of U.PAIR 1963 SC 1295

Minerva Mills Ltd V. Union Of IndiaAIR 1980 SC 1789, 1806.

Mumbai Kamgar Sabha V. Abdul BhaiART.I.R 1976 SC 1455

Nandi @ Zainab v. The CrownILR(1920) Lahore 440

Olga Tellis v. Bombay Municipal CorporationAIR 1986 SC 180

Peoples Union for Democratic Rights v. Union of IndiaAIR 1982 SC

Prem Shankar v. Delhi Administration AIR 1980 SC 1535

Re Ram Kumari1891 Calcutta 246

Robasa Khanum vs. Khodabad Irani's1946 Indlaw MUM 87

S.P. Gupta v. Union Of India1981 Supp SCC 87

Sayeda Khatoon @ A.M. Obadiah v. M. Obadiah(1944) 49 CWN 745

State Of M.P. V. Kedia Leather & Liquor Ltd.AIR 2003 SC 727

State Of Madras v. Champakam DorairajanAIR 1951 SC 226

Sunil Batra v. Delhi AdministrationART.I.R 1978 SC 1675

Thamsi v. kanai ,AIR 1952 MAD 529

Unnikrishnan v. State of A.P. (1993) 1 S.C.C. 645.

Vincent V. Union Of India (1987) 2 SCC 165

Visakha v. State Of RajasthanAIR 1997 SC 3011

Yusuf Abdul aziz v. state of BombayAIR 1954 SC 321

BOOKSBAKSHI P.M., The Constitution of India, 10th Edition,2012, Universal Law Publishing Co

BASU DD, Commentary on the Constitution of India, Vol.-10,8th Edition, 2012, LexisNexis, ButterworthsWadhwa

JAIN M.P., Indian Constitutional Law, 6th Edition, 2010, LexisNexis, ButterworthsWadhwa

PANDEY J.N., The Constitutional Law of India, 48th Edition, 2013 ,Central Law Agency

SHUKLA V.N., Constitution of India, 11th Edition,2012 Eastern Book Co

NELSONS RA, Indian Penal Code, 10th Edition, 2008 LexisNexis, Buttersworths Wadhwa, Nagpur

JETHMALANI, The Indian Penal Code, 1st Edition, 2014 Thomson Reuters

PILLAIS P S A, Criminal Law, 12th Edition, 2014 LexisNexis

RATANLAL & DHIRAJLAL, The Indian Penal Code, 1st Edition, 2014, LexisNexis

DYNAMIC LINKSwww.scconline .com

www.westlaw.com

www.manupatra.com

www.judis.nic.in

www.jstor.org

STATEMENT OF JURISDICTION

CASE CONCERNING BIGAMY

SARLA MUDGAL ..Petitioner

v.

UNION OF INDIA ..Respondent

The counsel for petitioner has invoked the jurisdiction of the Honble Supreme Court of India under Art. 32[footnoteRef:2] of constitution. The petitioner most humbly submit themselves to the jurisdiction of Honble court & shall bound by all orders, directions that this Honble court may pass in exercise of the power conferred in its entirety & good faith. [2: Art. 32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution]

All of which is most respectfully submitted.

STATEMENT OF FACTS Petitioner one is a registered society by the name Kalyani which helps needy and distressed women. Sarla Mudgal is the head of this organization. Another petitioner is Meena Mathur who was married to Jitender Mathur on February 27, 1978. Three children (two sons and adaughter) were born out of the marriage. In early 1988, the petitioner found out that her husband had solemnized secondmarriage with oneSunita Narula akaFathima which took place after their conversion to Islam and adoption of Muslim religion. This conversion of her husband, as contended by the petitioner, was only for the purpose of marrying Sunita Narula and circumvented the provisions of Section 494 of IPC. Jitender Mathur contended that having embraced Islam, he can have four wives irrespective ofthe fact that his first wife continues to be Hindu. An interesting fact to be noted here is that Sunita alias Fathima is the petitioner in Writ Petition 347of 1990. 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 Prasad, 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 grievances that she continues to be Muslim, not being maintained by her husband and has noprotection under either of the personal laws. Another petitioner in Writ Petition 424 of 1992, Geeta Rani, who was married to Pradeep Kumar on November 3, 1988, alleged that her husband harassed herphysically andmentallyand oncebroke herjaw bone.In 1991, she foundout thathe eloped with another woman and married her after converting to Islam for getting married. Sushmita Ghosh is another unfortunate lady who is a petitioner in Civil Writ Petition509 of 1992. She was married to G.C. Ghosh according to Hindu rituals on May 10 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told thepetitionerthathehadembracedIslamandwouldsoonmarryoneVinitaGupta.Hehad obtained a certificate dated June 17, 1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner has further prayed that her husbandbe restrained from entering into second marriage with Vinita Gupta.

STATEMENT OF ISSUES

1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE OFFENCE UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)?

SUMMARY OF ARGUMENTS1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?The petitioner has filed the present petition under the head of PIL, which is maintainable because there is a gross violation of rights of the women which are bestowed upon them by the various constitutional principles and other allied laws. Petitioner acting bonafide in good faith filed the present petition for the cause of rights of children who cannot lobby themselves for their rights.2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?Hindu husband cant solemnize second marriage after embracing Islam because conversion to other religion doesnt dissolve the earlier marriage which was done under Hindu Marriage Act, 1955. The dissolution of the earlier marriage is must in order to solemnize second marriage under the Hindu law.3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE OFFENCE UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)?The second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of S. 494IPC and the same would be liable to punishment under Sec. 495 of IPC. As all the ingredients of sec. 494 are present, therefore the apostate husband would be guilty of the offence.

ARGUMENTS ADVANCED1. WHETHER THE WRIT PETITION IS MAINTAINABLE OR NOT?It is humbly submitted before this honble court that the writ petition is maintainable under Art. 32[footnoteRef:3] of the Indian constitution. In the above given facts there has been gross violation of fundamental rights enshrined in our constitution. All the above petitions are clubbed and filed by way of public interest litigation by petitioners. As the petition filed by the petitioner against the rights of women which has been infringed when their spouses easily get converted to other religion merely to fancy another marriage. [3: Ibid note 1]

1.1 Maintainability of public interest litigationThe Constitution of India emphasizes on the equal justice to all persons. The Public Interest Litigation in India is comparatively a recent innovation of the judiciary, initiated primarily to provide access to justice and equal justice to the disadvantaged Sections of the society who are not possessed of adequate means or sufficient awareness to enforce their fundamental rights guaranteed under the constitution. India has a congruence development of concept of PIL as till 1960 and seventies, the concept of litigation in India was still in rudimentary form and was seen as a private pursuit for the vindication of private vested interest. Litigation in early 1960 consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances or problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. PIL emerged as an exceptional weapon under the jurisprudence of Indian constitution paving the way for liberalized locus standi, enable a social activist, individual or group of persons to bring to the Supreme Court any issue of public interest wherein violation of any fundamental right is alleged, for its protection by resort to constitutional remedy under article 32[footnoteRef:4] of the constitution. This is the underlying principle in Article 39A[footnoteRef:5]of the constitution. The procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil Procedure Code, 1908 for representative action. [4: Ibid note 1] [5: 39 A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.]

Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in the interest of that nebulous entity: the public in general.The concept of public interest litigation had its origin in the American legal system during the period of 1960s. The Council for Public Interest Law set up by the Ford Foundation in the United States of America stated that Public Interest Law is the name, which was able to provide legal representation to previously unrepresented groups.The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in 1976 inMumbai Kamgar Sabha v. Abdul Bhai[footnoteRef:6] further, the celebrated case ofFertilizer Corporation Kamgar Union v. Union of India[footnoteRef:7], the terminology Public Interest Litigation was used by Justice Iyer. In this particular judgment he used the expressionEpistolary Jurisdiction. The Honble Supreme Court held that the procedure had to be relaxed to meet the ends of justice. During the last three decades the our judiciary has been playing a very creative role in the administration of justice, which is the departure from the committed judiciary of the past to the activist judiciary of today under the principle of public interest litigation that was innovated by the Apex Court through judicial activism. With the advent of public interest litigation this traditional strict rule of standing has been broadened and liberalized. As a result of this any person actingbona fidehaving no personal gain or political motive can move the Court alone for the enforcement of constitutional or legal rights of socially or economically disadvantaged Sections of the immunity[footnoteRef:8]. The cause of justice cannot be allowed to overlook on the technical ground ofLocus Standior absence of personal loss or injury.[footnoteRef:9] The most important pronouncement of the Supreme Court in the field of public interest litigation involving the question ofLocus StandiisS. P. Gupta v. Union of India[footnoteRef:10], popularly known as Judges Transfer Case. [6: AIR 1976 SC 1455] [7: AIR 1981 SC 344] [8: Janata Dal v. H.S. Chowdharv, AIR 1993 SC 892] [9: Sunil Batra v. Delhi Administration, AIR 1978 SC 1675] [10: AIR 1982 SC 149]

In this case theLocus Standiof the petitioners was challenged. Delivering the judgment the Court held that, any member of the public acting bona fide and having sufficient interest in the matter can maintain an application for appropriate directions or orders. The decision of this case had made a far-reaching impact on the question ofLocus Standi. Similarly, the Supreme Court gave historic judgments inAkhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of India[footnoteRef:11], Peoples Union for Democratic Rights v. Union of India[footnoteRef:12]andBandhua Mukti Morcha v. Union of India[footnoteRef:13]conferring standing to the petitioners. The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged Sections of society[footnoteRef:14]. Furthermore, the Supreme Court observed that the term appropriate proceedings in Art.32 of the Constitution[footnoteRef:15]does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do[footnoteRef:16]. This was achieved by both interpreting existing FRs widely and by creating new FRs. Article 21no person shall be deprived of his life or personal liberty except according to the procedure established by lawproved to be the most fertile provision to mean more than mere physical existence[footnoteRef:17]; it includes right to live with human dignity and all that goes along with it.[footnoteRef:18]Ever-widening horizon of Art.21 is illustrated by the fact that the Court has read into it, inter alia, the right to health[footnoteRef:19], livelihood[footnoteRef:20], free and compulsory education up to the age of 14 years[footnoteRef:21], unpolluted environment[footnoteRef:22], shelter[footnoteRef:23], clean drinking water, privacy[footnoteRef:24], legal aid[footnoteRef:25], speedy trial[footnoteRef:26], and various rights of under-trials[footnoteRef:27], convicts and prisoners[footnoteRef:28]. It is important to note that in a majority of cases the judiciary relied upon DPs for such extension. [11: AIR 1981 SC 298] [12: AIR 1982 SC 1473 ] [13: AIR 1984 SC 802 ] [14: Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy (2002) 116 Harvard Law Review 16, 107108.] [15: Ibid note 3 (clause 1)] [16: Shukla V.N.,Constitution of India, 11th Edition, Eastern Book Co pp.278279. ] [17: Kharak Singh v State of U.P., AIR 1963 SC 1295 ; Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180:; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Consumer Education & Research Centre v Union of India, AIR 1995 SC 922; Bodhisattwa Gautam v Subhra Chakraborty, AIR 1996 SC 922; Visakha v State of Rajasthan AIR 1997 SC 3011] [18: Ibid] [19: Vincent v. Union of India, AIR 1887 SC 990] [20: Olga Tellis v. Bombay Muncipal Corp. AIR 1986 SC 180] [21: Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1] [22: State of M.P. V.kedia Leather& Liquor Ltd., AIR 2003 SC 727] [23: Supra 19] [24: Kharak Singh v. State of U.P., AIR 1963 SC 1295; Govind v. State of M.P., AIR 1975 SC 1378] [25: Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369,1373] [26: Kartar Singh v. State of Punjab, (1994) 3 SCC 569 ; Abdul Rehman Antulay v. R.S. Naik, AIR 1992 SC 1701 ] [27: Prem Shankar v. Delhi Administration, AIR 1980 SC 1535] [28: Arvindar Singh Bagga v. State of U.P., AIR 1995 SC 117]

After 2 years 11 months and 18 Days of assiduous deliberation and incessant debate, the framers of the Constitution created the sacrosanct Constitution of India. With an impermeable and perpetual desire to serve the nation with the hope to establish a sovereign socialist secular[footnoteRef:29] democratic republic. Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity)[footnoteRef:30]. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the conscience of the Constitution[footnoteRef:31]. After initial deviation,[footnoteRef:32] the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justifiable: rather FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter[footnoteRef:33].The issue was put beyond any controversy in Minerva Mills Ltd v. Union of India[footnoteRef:34] where the Court held that the, harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution[footnoteRef:35] Since then the judiciary has employed DPs to derive the contents of various FRs.[footnoteRef:36] [29: The terms socialist and secular were inserted by the 42nd amendment in 1976.] [30: These values are expressly declared in the Preamble and form the essence of the Indian Constitution, the Indian Legal System and the Indian Polity. ] [31: Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50] [32: State of Madras v. Champakam Dorairajan, AIR 1951 SC 226. ] [33: CB Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042; Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789; Unni Krishnan v. State of AP, (1993) 1 S.C.C. 645. Rajiv Dhavan, Republic of India: The Constitution as the Situs of Struggle: Indias Constitution Forty Years On in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382383, 405 and 413416.] [34: Supra note 34] [35: Minerva Mills Ltd v Union of India , AIR 1980 SC 1789, 1806.] [36: Jain M.P., The Supreme Court and Fundamental Rights in Verma and Kusum 6th edition, Fifty Years of the Supreme Court of India, pp.6576.]

Our constitution by the way of A.15 (3)[footnoteRef:37] does not prevent state to make special provisions for women. It recognizes the fact that the women in India have been socially and economically handicapped for centuries and ,as a result thereof, they cannot fully participate in the socio economic footing of the nation on a footing of equality[footnoteRef:38]. The object of A.15 (3) is to strengthen and improve the status of women. Under S.497, I.P.C., the offence of adultery can be committed only by a male and not by a female who cannot even be punished as an abettor. As this provision makes a special provision for women, it is saved by A.15 (3)[footnoteRef:39].S.354 of I.P.C. which only protects the modesty of women[footnoteRef:40]further, S.488 of crpc which obliges the husband to maintain his wife, but not vice versa;[footnoteRef:41]S.497(I) of the same code which provides for special treatment of women accused of a non-bailable offence, in matter of bail.[footnoteRef:42]in the above facts PIL has been filed to protect the right of married women and thus petition is filed bona fide and is maintainable. [37: Art. 15(3) Nothing in this article shall prevent the State from making any special provision for women and children.] [38: Govt.of A.P. v P.B. Vijaya Kumar ,AIR 1995 SC 1648] [39: Yusuf abdul aziz v.state of Maharashtra,AIR 1954 SC 321] [40: Girghar gopal v. state,AIR 1953MB 147] [41: Thamsi v. kanai ,AIR 1952 MAD 529] [42: Choki v.state ,AIR 1957 RAJ 10]

2. WHETHER A HINDU HUSBAND, MARRIED UNDER HINDU LAW, BY EMBRACING ISLAM, CAN SOLEMNIZE SECOND MARRIAGE?In response to the second issue petitioners would like to humbly submit before this honble court that a Hindu husband, married under Hindu law, by embracing Islam, cannot solemnize second marriage."The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate under art. 44[footnoteRef:43] of theConstitution of Indiawhich seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Art. 44 from the cold storage where it is lying since 1949. [43: Art. 44. Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.]

The Governments which have come and gone have so far failed to make any effort towards "unified personal law for all Indians". The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of theHindu Marriage Act, 1955. TheHindu Succession Act, 1956, theHindu Minority and Guardianship Act, 1956and theHindu Adoptions and Maintenance Act, 1956which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India. 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 there under. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.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.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.

In case of Re Ram Kumari[footnoteRef:44], where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy u/s. 494 of theIPC. It was held that there was no authority under Hindu law for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law. [44: 1891 Calcutta 246]

In Gul Mohammed v. Emperor[footnoteRef:45], a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her to Islam. It was held that 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. Accordingly the accused was convicted for adultery u/s. 497 of theIPC. [45: AIR 1947 Nag 121]

In Nandi @ Zainab vs. The Crown[footnoteRef:46] , Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence u/s. 494 of theIndian Penal Code. It was held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court. Emperor vs. Mt. Ruri[footnoteRef:47], was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous. [46: ILR(1920) Lahore 440] [47: AIR 1919 Lah 389]

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.Further, In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah[footnoteRef:48] , Lodge, J. speaking for the court held as under: [48: (1944) 49 CWN 745]

There is a Hindu Law for Hindus, a Mahommedan Law for Mahommedans, a Christian Law for Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case. It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Jesish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan Law may be dissolved according to the Mahommedan Law when one of the parties ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion." In Andal Vaidyanathan vs. Abdul Allam Vaidya[footnoteRef:49], a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held: [49: 1946 Indlaw MAD 96]

"TheSpecial Marriage Actclearly only contemplates monogamy and a person married underthe Actcannot escape from its provisions by merely changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. S. 17 provides the only means for the dissolution of a marriage or a declaration of its nullity.Consequently, where two persons married underthe Actsubsequently become converted to Islam, the marriage can only be dissolved under the provisions of theDivorce Actand the same would apply even if only one of them becomes converted to Islam. Such a marriage is not a marriage in the Mahomoden sense which can be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: Disting."It is, thus, obvious from the catena of case-law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so. Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. It, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage. Further observed that the second marriage of an apostate-husband married under the Hindu Marriage Act would be in violation of the rules of equity, justice and good conscience, as also those of natural justice[footnoteRef:50]. [50: Preventing Bigamy via Conversion to Islam A Proposal for giving Statutory Effect to Supreme Court Rulings- Law Commission of India, Report No. 227, Government of India. Last accessed on 2. may .2015]

Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void. 2.1 Such a marriage without having the first marriage dissolved under the law, would not be valid marriage qua the first wife who continued to be a Hindu:- Interpretating the provisions of the Hindu Marriage Act 1955 while answering this question. It is observed that a Hindu marriage cannot, under any circumstances, be dissolved unless by a decree of divorce under the grounds enumerated in the act. It also pointed out that the Act has an overriding effect on any customs or usage prevalent before the commencement of the act.It observed:Overriding effect of Act save as otherwise expressly provided in this Act,-(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that the other party has ceased to be a Hindu by conversion to another religion. Sections 11 and 15 of the Act is as under:-Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5[footnoteRef:51]. [51: Section 15, Hindu Marriage Act 1955]

Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.After looking at the legal provisions and giving a fair interpretion, it is concluded that:It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy.A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act. In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be non est

3. WHETHER THE APOSTATE HUSBAND WOULD BE GUILTY OF THE OFFENCE UNDER SECTION 494 OF THE INDIAN PENAL CODE (IPC)? In response to the issue the counsel for petitioners would like to humbly submit before this honble court that above arguendo and authorites have made it clear now that a marriage that has taken place in under one personal law cannot be dissolved even if one spouse has converted to another religion and the other refuses to do so. When a marriage takesplaceunder Hindupersonallaw,somerightsanddutiesarecreatedby way ofitand the parties acquire certain status under the laws governing the Hindu Marriage. If one spouse tries to end the marriage by converting to another religion without dissolving the marriage then it will amount to destruction of the rights and status of the other spouse who is still a Hindu. It is, therefore, maintained that hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage. The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or developments. It also applied to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. One of the main principles of Hindu law is monogamy which it strictly adheres to. A marriage cannot be dissolved except under the provisions laid down in Section 13 of Hindu Marriage Act. In that situation, parties who have married under the Act remain married even when the husband converts to Islam for thepurpose of other marriage. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he wouldbecontinuing tobegoverned sofarashisfirstmarriageundertheActisconcerned despite his conversion to Islam. The second marriage of an apostate would, therefore,be illegal marriageashiswifewho marriedhimunder theActand continuestobea Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be under Section 494 of Indian penal code:"Marrying again during lifetime of husband or wife. 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."The necessary ingredients of the Section are: (1) having a husband or wife living; (2) marries in any case; (3) in which such marriage is void; (4) by reason of its taking place during the life of such husband or wife.It is no doubt correct that the marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage underthe Actbecause he is no longer a Hindu, but the fact remains that the said marriage would be in violation ofthe Actwhich strictly professes monogamy.The expression "void" for the purpose ofthe Acthas been defined u/s. 11 ofthe Act. It has a limited meaning within the scope of the definition under the Section. On the other hand the same expression has a different purpose under Section 494,IPCand has to be given meaningful interpretation.The expression "void" under section 494,IPChas been used in the wider sense. A marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494,IPC.A Hindu marriage solemnised underthe Actcan only be dissolved on any of the grounds specified underthe Act. Till the time a Hindu marriage is dissolved underthe Actnone of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage underthe Act. The second marriage by a convert would therefore be in violation ofthe Actand as such void in terms of Section 494,IPC. Any act which is in violation of mandatory provisions of law is per-se void.The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.The law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's[footnoteRef:52] wherein the learned Judge has held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494,IPC. [52: 1946 Indlaw MUM 87]

Further , the second marriage of an apostate-husband would be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right underthe Actto marry again without getting his marriage underthe Actdissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.Above arguendo interpretation given to S. 494IPCwould advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two communities. Result of the interpretation, of S. 494IPC, would be that the Hindu Law on the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law. All the four ingredients of S. 494IPCare satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.Therefore, the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of S. 494IPC.

SUBMISSION TO THE HONBLE COURTWherefore in the light of arguments advanced and authorities cited, the Petitioner humbly submits that the Honble Court may be pleased to adjudge and declare that:TO HOLD1. That the petition is maintainable.2. That by an appropriate writ, declare polygamous marriages by Hindus and non-Hndus after conversion to Islam religion as illegal and void.3. That the appropriated directions should be issued to carry out suitable amendments in the Hindu Marriage Act so as to curtail and forbid the practice of polygamy.4. That the appropriate direction to declare that where 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 enter into a second marriage, any marriage entered into by him after conversion would be void.MISCELLANEOUS1. Any other order as it deems fit in the interest of justice, equity and good conscience.For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray. Sd/- (Counsel for the petitioner)~MEMORIAL for the PETITIONER~