Boddhe Jaiin Nainutia, O.P. Jindal Global University
Introduction
It had become increasingly frequent among non-Muslim males who could not acquire a divorce from their first wife to convert to Islam. The practice was invariably followed by erring husbands who converted merely to consummate a second marriage and then reconverted, to keep their property rights and continue their business under their old name and religion.
Lily Thomas v Union of India1 was a landmark judgement in terms of the legality of converting to Islam and taking on a second wife without divorcing the first. It discussed the validity of both; the first and second marriage. This case was brought as a writ petition under articles 202, 213, 254 and 265 of the constitution. It upheld the judgement laid down in Sarla Mudgal vs Union Of India 2, which stated that converting to Islam and subsequently taking on a second spouse does not instantaneously dissolve the first Hindu marriage and the second marriage would be void under Section 116 of the Hindu Marriage Act,1955 (HMA) and punishable under Section 4947 of the Indian Penal Code (IPC). The court also referred to cases such as, Gul Mohammad v. Emperor8 that held that the conversion of a spouse to Islam does not, ipso facto, dissolve the first marriage. The husband remains liable to fulfill all his marital duties to his first wife as he was prior to the conversion. It was further held that a spouse cannot, during the life- time of their partner, enter into a valid marriage with another person. Moreover, in Gopal Lal v. State of Rajasthan9 the Court observed that “where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494.”
Additionally, the issue of implementing a Uniform Civil Code, as contemplated by Article 4410 of the Constitution, was also raised. It was stated that though the implementation would bring uniformity, it would however put every citizen's right to practice and promote his or her religion, as guaranteed by Article 255 of the Constitution, at jeopardy.
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