Contents was born to her and Jitendra. She

 

Contents
CASE FACTS. 3
ANALYSIS. 4
CONCLUSION.. 6
 

 

 

 

CASE FACTS

There were four petitioners in
the mentioned case. The first petitioner was the President of “KALYANI”- a
registered society, which was an organisation working for the welfare of
destitute families and women in suffering, Sarla Mudgal was the president of
the society. The second petitioner was Meena Mathur who was married to Jitender
Mathur on February 27, 1978. They had three kids out of which two were sons and
one a daughter. In early 1988, the petitioner was surprised to learn the fact
that her husband had formalised a second marriage with Sunita Narula also known
as Fathima. The marriage was formalised after they converted themselves to the
religion of Islam. According to the petitioner, conversion of her husband to
Islam was only for the purpose of marrying Sunita and to evade the provisions
of Section 494, IPC. Jitender Mathur asserted that having converted to Islam,
he could have four wives regardless of the fact that his first wife continued
to be Hindu.

Rather fascinatingly Sunita also
known as Fathima, Jitenders second wife, was the third petitioner. She contended
that she along with Jitender Mathur who was previously married to Meena Mathur converted
to Islam and then got married. A son was born to her and Jitendra. She also
stated that after marrying her, Jitender Prasad, under the in of her first
Hindu-wife, gave an undertaking on April 28, 1988, that he had converted back
to Hinduism and had agreed to maintain his first wife and their children. Her complaint
was that she continued to be Muslim, not being maintained by her husband and had
no protection under either of the personal laws.

Geeta Rani, the fourth petitioner
was married to Pradeep Kumar according to Hindu rituals on November 13, 1988.
It is mentioned in the petition that her husband used to mistreat her and subject
her to physical abuse. In December 1991, the petitioner learnt that Pradeep
Kumar her husband had run away with Deepa and after converting to Islam had
also married her. It was mentioned that the conversion to Islam was only for
the purpose of formalising the second marriage.

Sushmita Ghosh was the fifth and
the last petitioner. She was married to G.C. Ghosh according to Hindu rituals
on May 10, 1984. On April 20, 1992, her husband told her that he no longer
wanted to stay with her and therefore, she should agree to divorce by mutual
consent. The petitioner was stunned and prayed that she was his lawfully wedded
wife and therefore wished to live with him and hence the question of divorce
did not arise. The husband then told her that he had converted to Islam and
would soon marry Vinita Gupta. He had attained a certificate dated June 17,
1992, from the Qazi representing that he had converted to Islam. In the writ
petition, the petitioner has therefore wished that her husband should hence be
restrained from formalising the second marriage with Vinita Gupta.

 

ANALYSIS

 

The very fact that the male
members of todays society see conversion to another religion as an escape from
their social responsibilities and as an entry to a world of pleasure is
abhorring.

As seen from the case facts
mentioned above, the husbands were of Hindu religion and had converted to Islam
for their own benefit. They chose to disregard the fact that their wives and
children needed their support and presence to maintain the family, the very
fact that the husbands thought that they could escape from their
responsibilities through conversion to another religion cannot be morally
justified.

But in todays world where
morality is just a word that goes in the passing and doesn’t attach to itself
some real meaning, the word legality takes over. An individual wouldn’t mind
doing something that is not morally justified as long as it is legal. Therefor
it is very clear that in the case mentioned above, the husband’s actions were
not morally justified or atleast to the majorities view wasn’t morally
justified, but the very fact that the husbands thought that it could be legally
justified to convert into another religion and marry once again without
divorcing their first wife made them do what they did.

Therefor it was required that the
judiciary take some serious steps to make this immoral act an illegal act too,
as only this would give the wives some real power over the husbands whose
actions had put them under the threat of losing a lot, and being subjected to
oppression.

When a husband marries for a
second time, with the first marriage still in existence, the marriage would be
in violation of the rules of natural justice. It goes against the principles of
justice, equity and good conscience. Even if the husband converts into the
religion of Islam, he has no right to formalise the second marriage until and
unless his first marriage is dissolved and, hence, be in defilement of the
rules of natural justice and therefore would be held void under section 494 of
the IPC.1

The Supreme Court said and
rightly so, that the personal laws cannot and should not be manipulated and
read in such a way as to gain worldly and carnal pleasures.

The very fact that a Hindu law
does not allow bigamy, doesn’t mean that one can then to his own convenience
convert into another religion and engage in bigamy.

Our legal system was based on the
essence of equal rights to all, but in the case mentioned above, the very fact
that the husband had an upper hand with mere conversion into another religion
for the purpose of another marriage, clearly shows that the wives or the women
were not being subjected to equal rights. Their rights were being dismissed as
the husband did as he wished with mere conversion and leaving their first wife
high and dry.

The judgement of the supreme
court stating that the original person laws will hold valid even after
conversion with regards to marriage is a great decision, as it ensures that
there is parity between the male and the female gender.

Marriage is a bond that has some social
connotations attached to it, the conversion of the husband and desertion of the
wife by the husband also leaves some impact on the society. The wife or in this
case the women, who was the first wife of the husband, in the eyes of the
society is nothing but a puppet in the hands of the man or the husband, who in
the given case treats her how so ever he wishes and also leaves her by the mere
way of conversion. The leaves a huge impact on the image of the wife in the society.

Protection of the oppressed section
of society is very important, in this case the women were the oppressed section
as their future and their happiness was in the hands of the husband, but the judgement
of the supreme court in the case of Sarla Mudgal vs Union of India gave the women
rights as to insure that they were not mistreated or left hanging without an explanation.

 

 

 

 

 

CONCLUSION

 

Marriage is the very basis of the
civilized society. The bond once formed, the law steps in and binds the parties
to numerous responsibilities and accountabilities therefore. Marriage is an
institution in the upkeep of which the community at large is deeply concerned.
It is the groundwork of the family and in turn of the society without which no
civilization can exist.”

The personal laws should not be
permitted to be manipulated and subjugated for worldly gains and bodily
desires. Thus, if an individual wishes to formalise a second marriage, after
converting to another religion and without dissolving their first marriage,
such second marriage must be held legal only if their marriage after adapting
to Islam, but without dissolving his first marriage, then he should be held
accountable for bigamy because his original personal law does not allow bigamy.
Likewise, if a married Muslim converts to Hindu religion, without dissolving
his first marriage, and formalises a second marriage he should not be held
accountable for bigamy because his original personal law permits bigamy, though
capacity to do justice between the wives is the condition precedent.2

The Supreme Court has stated that
the second marriage of a Hindu man after adaptation 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 defector husband would be guilty of the offence of bigamy under section
494 IPC”, the court added. This decision of the court in Sarla Mudgal case was
upheld in Lily Thomas v. Union of India . 3

 

 

1 AR Lakshmanan, Preventing
Bigamy via Conversion to Islam, (August, 2009, last visited on Aug. 23, 2012)
http://lawcommissionofindia.nic.in/reports/report227.pdf

2 Gauri Kulkarni, Hindu Men
Can’t Hide Behind Islam For Bigamy, (January 23, 2006, last visited on August
23, 2012), http://www.islamawareness.net/Polygamy/poly_nm_news0005.html.

3 2000 (2) ALD Cri 686.