Smt. Sushmita Ghosh, wife of Shri G.C. Ghosh had filed a Writ Petition in this Court stating that she was married to Shri G.C. Ghosh in accordance with the Hindu rites and customs of marriage on 10th May 1984. On 1st of April, 1992, Mr.Ghosh told his wife that she should in her own will agree to her divorce by mutual consent as he had taken to Islam so that he could remarry and in fact, he had already fixed to marry a woman named Vanita Gupta a resident of Delhi, a divorcee with 2 children in July 1992. Shri G.C. Ghosh also submitted a Certificate issued by the office of the Maulana Qari Mohammad Idris, Shahi Qazi certifying that he had embraced Islam of his own will. The petitioner informed her father and aunt and told them about her husband’s conversion and the reason behind his conversion being intention to remarry. They all tried to convince Mr. Ghosh and talk him out of the marriage but no use and he insisted Sushmita must agree to her divorce otherwise she will have to put up with a second wife. It was stated in the petition that Mr. Ghosh has converted to Islam solely for re-marriage and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he changed his name and other official documents.
ISSUES BEFORE THE COURT:
ARGUMENTS BY THE PARTIES:
Justice S. Sagir Ahmad said if a party has a living spouse and he tries to have a second marriage then such marriage would be null and void under Section 11 of the Hindu Marriage Act, 1959. Such marriage will also be null and void under Section 17 of the Hindu Marriage Act,1959 which deals with the offense of Bigamy. The person committing Bigamy under Section 17 shall be punished in accordance with the provisions of 494 and 495 of IPC, 1860. If a Hindu wife lodges a complaint against her husband who during the existence of first marriage marries another woman after his conversion to another religion then the offense of Bigamy shall be dealt with Hindu Marriage Act, 1959.
The Supreme Court said that violation of Article 21 is misconceived, article 21 of the Constitution states that “no person shall be deprived of his right and personal liberty except as per the procedure established by law” and herein such an act of marriage while the first marriage still persists is codified in IPC sec 494 and article 21 of the constitution has not been violated.
R.P.Sethi Ji said if a Hindu man after converting to Islam contracts the second marriage without dissolving the first marriage then the second marriage would be invalid under Section 494 & 495 of IPC and the husband will be punished according to that.
Such a judgment was important since men were taking recourse to such conversion for marrying and having more than one wife. Bigamy is the offense of marrying another woman while the first marriage persists and such a relation stands illegal and the second marriage is void ab initio. For a long period, married men whose personal law did not allow bigamy have been recurring to the unhealthy and immoral practice of converting to Islam for a second marriage under the assumption that such conversion would help them to marry again without getting their first marriage dissolved The interpretation given to Section 494 IPC was an effort to advance the interest of gender 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.