SCHOOL OF LAW, CHRIST UNIVERSITY, BANGALORE-29

Sarla Mudgal v. Union of

India, AIR 1995 SC 1531- A
Review

SUBMITTED BY:
KAVERI GUPTA
1016036

B.A., Ll.B. (A)

ABSTRACT

This paper concerns itself with the case law Sarla Mudgal v. Union of India, AIR
1995 SC 1531. It is a review of the above mentioned case. The case holds extreme
importance as it laid down principles against the practice of solemnizing second
marriage by conversion to Islam, with first marriage not being dissolved, followed by
Hindu husbands. This paper briefly states the facts of the case, issues raised in the
case and discusses relevant laws applied in the case, decisions and analysis of the
judgment followed by a conclusion. Several case laws which are related to the present
case have been referred to and only relevant parts of the judgments have been taken
into consideration.

RESEARCH METHODLOGY

AIMS AND OBJECTIVES

This paper is written as a review of the much celebrated and important case Sarla
Mudgal v. Union Of India, AIR 1995 SC 1531.

SCOPE AND LIMITATIONS

This paper is limited to the subject and issues of the case that is to be reviewed.
Various other cases have been referred to for supporting the arguments stronger.
Relevant parts of the judgment have been extracted. All the works and cases referred
to in this paper have been properly cited and are related to the case Sarla Mudgal v.
Union of India, AIR 1995 SC 1531.

RESEARCH QUESTIONS
This paper will answer the issues raised in the case. They are:
1. Does India need a Uniform Civil Code for all its citizens?
2. Whether a Hindu husband, married under Hindu law, by embracing Islam, can
solemnize second marriage?
3. Whether such a marriage without having the first marriage dissolved under
law, would be a valid marriage where the first wife who continues to be
Hindu?
4. Whether the apostate husband would be guilty of the offence under Section
494 of the Indian Penal Code (IPC)?

METHOD OF WRITING
This paper has used FILAC (Facts, Issues, Laws, Analysis, Conclusion) approach for
reviewing the case at hand.

SOURCES OF DATA
The researcher has mainly referred to the main case, Acts, and articles by publicists on
the specified topic.

METHOD OF CITATION
A uniform mode of citation has been used throughout this project, based on the style
specified in THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, 19TH EDITION.

FACTS

There are two main petitioners to the case. 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 a daughter) were born out
of the marriage. In early 1988, the petitioner found out that her husband had
solemnized second marriage with one Sunita Narula aka Fathima 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 of
the 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 347
of 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 grievance
is that she continues to be Muslim, not being maintained by her husband and has no
protection 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 her
physically and mentally and once broke her jaw bone. In 1991, she found out that he
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 Petition
509 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 the
petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He
had 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 husband
be restrained from entering into second marriage with Vinita Gupta.

ISSUES
1. Does India need a Uniform Civil Code for all its citizens?
2. Whether a Hindu husband, married under Hindu law, by embracing Islam, can
solemnize second marriage?
3. Whether such a marriage without having the first marriage dissolved under
law, would be a valid marriage where the first wife who continues to be
Hindu?
4. Whether the apostate husband would be guilty of the offence under Section
494 of the Indian Penal Code (IPC)?

LAWS
Indian Penal Code, 1860:
Section 494: Marrying again during the 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.
Exception.This section does not extend to any person whose marriage with such
husband or wife has been declared void by a Court of competent jurisdiction, nor to

any person who contracts a marriage during the life of a former husband or wife, if
such husband or wife, at the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven years, and shall not have
been heard of by such person as being alive within that time provided the person
contracting such subsequent marriage shall, before such marriage takes place, inform
the person with whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.
Classification of Offence
Punishment- Imprisonment for 7 years and fine- Non-cognizable- Bailable- Triable by
Magistrate of the first class- Compoundable by the husband or wife of the person so
marrying with the permission of the court.1

Constitution of India:

Article 14: Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.2
Article 25: Freedom of conscience and free profession, practice and propagation of
religion.3
Article 26: Freedom to manage religious affairs subject to public order, morality and
health.4

1 Indian Penal Code, 1860, Section 494.

2 Constitution of India, Article 14.
3 Constitution of India, Article 25.
4 Constitution of India, Article 26.

Article 27: Freedom as to payment of taxes for promotion of any particular religion.5
Article 28: Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.6
Article 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.7
Article 44: Uniform civil code for the citizens. The State shall endeavor to secure for
the citizens a uniform civil code throughout the territory of India.8
Hindu Marriage Act, 1955:
Section 11: 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

5 Constitution of India, Article 27.

6 Constitution of India, Article 28.
7 Constitution of India, Article 32.
8 Constitution of India, Article 44.

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 5.9
Section 13: Divorce.
(1) Any marriage solemnized, whether before or after the commencement of this Act,
may, on a petition presented by either the husband or the wife, be dissolved by a
decree of divorce on the ground that the other party(i) [has, after the solemnization of the marriage, had voluntary, sexual intercourse
with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or]
(ii) has ceased to be a Hindu by conversion to another religion; or
(vi) has renounced the world by entering any religious order; or
(1A) [Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground(i) that there has been no resumption of cohabitation as between the parties to the
marriage for a period of 5[ one year] or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the
marriage for a period of 5[ one year] or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.]
(2) A wife may also present a petition for the dissolution of her marriage by a decree
of divorce on the ground,(i) in the case of any marriage solemnized before the commencement of this Act, that
the husband had married again before such commencement or that any other wife of
the husband married before such commencement was alive at the time of the
solemnization of the marriage of the petitioner: Provided that in either case the other
wife is alive at the time of the presentation of the petition.10
9 Hindu Marriage Act, 1955, Section 11.
10 Hindu Marriage Act, 1956, Section 13.

Section 15: Divorced persons when may marry again. When a marriage has been
dissolved by a decree of divorce an either there is no right of appeal against the decree
or, if there is such 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.11

The Hindu Succession Act, 1956.

Hindu Minority and Guardianship Act, 1956.
Hindu Adoptions and Maintenance Act, 1956.

ANALYSIS
The Constitution of India provides for a uniform civil code for its citizens under
Article 44 in Directive Principles. It is a goal to be achieved. In the present case, the
court took steps to resolve the inter-personal conflict of law, which is a byproduct of
lack of a Uniform Civil Code (UCC). 12
"The State shall endeavor to secure for the citizens a uniform civil code throughout
the territory of India". Justice Kuldip Singh, in the present case, is of the view that
there is no reason for delay of Uniform Civil Code so that all the citizens of India can
be governed uniformly. 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 Article 44 from the cold storage where it is lying since 1949.
11 Hindu Marriage Act, 1956, Section 15.
12Praveen Dalal, Insight of Sarla Mudgal, (6/7/05)
http://india.indymedia.org/en/2005/06/210648.shtml.

The Governments - which have come and gone - have so far failed to make any effort
towards "unified personal law for all Indians".13 The reasons are too obvious to be
stated. The utmost that has been done is to codify the Hindu law in the form of the
Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and
Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which
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.14
Until the Government prescribes and sets a uniform civil code for the whole country,
a Hindu husband, who wants to enter into a second marriage while the first marriage
still continues, can be allured to convert into Islam as it provides room for bigamy and
a Muslim can keep four wives at a time. But since Hindu law only permits
monogamy, 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
recognize that conversion would have the effect of dissolving a Hindu marriage.
Marriage will not be dissolved by converting to another religion by one or both
spouses.15 In the case Re Ram Kumari16, where a Hindu wife converted to Islam to
marry a Muslim was charged with bigamy under Section 494 of IPC. 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.
In Nandi alias Zainab v. The Crown17 Nandi, the wife of the complainant, changed her
religion and became a Mussalman and thereafter married a Mussalman named Rukan
13 Sarla Mudgal v. UOI, AIR 1995 SC 1531.
14 Id.
15 Supra note 13.
16 (1891) ILR 18 Cal 264.

Din. She was charged with an offence under Section 494 of the Indian 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.
In India, there have never been matrimonial laws which have uniform application. A
marriage takes place under one personal law and cannot be dissolved due to another
personal law just because of the conversion of the parties.
In Sayeda Khatoons case18 Muslim laws were not favored over Jews laws. They were
both declared equal. 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 Vaidya19, a Division Bench of the High Court
dealing with a marriage under the Special Marriage Act 1872 held that the Special
Marriage Act clearly only contemplates monogamy and a person married under the
Act cannot 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. Section 17 provides
the only means for the dissolution of a marriage or a declaration of its nullity.
Consequently, where two persons married under the Act subsequently become
converted to Islam, the marriage can only be dissolved under the provisions of the
Divorce Act and the same would apply even if only one of them becomes converted to
Islam. Such a marriage is not a marriage in the Mahomedan sense which can be
dissolved in a Mahomedan manner. It is a statutory marriage and can only be
dissolved in accordance with the Statute.20
The repetitive statements and decisions 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 takes
place under Hindu personal law, some rights and duties are created by way of it and
17 ILR 1920 Lahore 440.
18 49 CWN 745.
19 (1946) 1 MLJ 402.
20 Supra note 19.

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 the purpose 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 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 as his wife who married him under the Act and continues to be a
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.21
The primary components of the section are:
1. Having a husband or a wife living;
2. Marries in any case;
3. In which such marriage is void;
21 Indian Penal Code, 1860, Section 494.

4. By reason of its taking place during the life of such husband or wife.22
The expression "void" under Section 494, IPC has 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 solemnized under the Act
can only be dissolved on any of the grounds specified under the Act. Till the time a
Hindu marriage is dissolved under the Act none of the spouses can contract second
marriage. 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.23
Also, the second marriage of an apostate-husband would be in violation of the rules of
natural justice. It is opposed to the principles of justice, equity and good conscience.
Even if the spouse converts to Islam, he has no right to solemnize the second marriage
unless his first marriage dissolves and, thus, be in violation of the rules of natural
justice and as such would be void.24
All the four aspects of Section 494 IPC are satisfied in the case of a Hindu husband
who marries for the second time after conversion to Islam with his first wife living.
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 Section 494 IPC.
Justice R.M. Sahai J was of the view that, The pattern of debate, even today, is the
same as was voiced forcefully by the members of the minority community in the
Constituent Assembly. If, 'the non implementation of the provisions contained in
Article 44 amounts to grave failure of Indian democracy' represents one side of the
picture, then the other side claims that, 'logical probability appears to be that the code

22 Supra note 13.

23 Id.
24AR Lakshmanan, Preventing Bigamy via Conversion to Islam, (August, 2009, last visited
on Aug. 23, 2012) http://lawcommissionofindia.nic.in/reports/report227.pdf.

would cause dissatisfaction and disintegration than serve as a common umbrella to

promote homogeneity and national solidarity'.25
He gave a concurring judgment, along the line of Justice Kuldeep Singh. The
problem with which these appeals are concerned is that many Hindus have changed
their religion and have become convert to Islam only for purposes of escaping the
consequences of bigamy. For instance, Jitender Mathur was married to Meena Mathur.
He and another Hindu girl embraced Islam. Obviously because Muslim Law permits
more than one wife and to the extent of four. But no religion permits deliberate
distortions. Much misapprehension prevails about bigamy in Islam. To practice of
polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia,
Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the
Muslim countries to be remembered in this context). But ours is a Secular Democratic
Republic. Freedom of religion is the core of our culture. Even the slightest deviation
shakes the social fibre. 'But religious practices, violative of human rights and dignity
and sacerdotal suffocation of essentially civil and material freedoms, are not
autonomy but oppression'. Therefore, a unified code is imperative both for protection
of the oppressed and promotion of national unity and solidarity. But the first step
should be to rationalise the personal law of the minorities to develop religious and
cultural amity. The Government would be well advised to entrust the responsibility to
the Law Commission which may in consultation with Minorities Commission
examine the matter and bring about the comprehensive legislation in keeping with
modern day concept of human rights for women.26

CONCLUSION
25 Supra note 13.
26 Id.

Marriage is the very foundation of the civilized 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 civilization can exist.
The personal laws should not be allowed to be manipulated and exploited for worldly
gains and carnal pleasures. Thus, if a person wishes to enter second marriage, after
converting to another personal law and without dissolving his/her first marriage, such
second marriage must be held to be valid only if his/ her original personal law allows
such second marriage. For instance, if a Hindu enters into a second marriage after
converting to Islam, but without dissolving his first marriage, the he should be held
liable for bigamy because his original personal law does not allow polygamy.
Similarly, if a married Muslim converts to Hindu religion, without dissolving his first
marriage, and enters into a second marriage he should not be held liable for bigamy
because his original personal law allows polygamy, though capacity to do justice
between co-wives is the condition precedent.27
The Supreme Court has reiterated that the second marriage of a Hindu man after
conversion 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 apostate 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 India28.

27 Gauri Kulkarni, Hindu Men Cant Hide Behind Islam For Bigamy, (January 23, 2006, last
visited on August 23, 2012),
http://www.islamawareness.net/Polygamy/poly_nm_news0005.html.
28 2000 (2) ALD Cri 686.

REFERANCE
STATUTES

Constitution of India.
Hindu Marriage Act, 1955.
Indian Penal Code, 1860.

REPORTS

The Law Commission Of India, Report No. 227.

ONLINE SOURCES

AR Lakshmanan, Preventing Bigamy via Conversion to Islam, (August, 2009,

last visited on Aug. 23, 2012) http:// lawcommissionofindia.nic.in/reports/
report227.pdf.

Gauri Kulkarni, Hindu Men Cant Hide Behind Islam For Bigamy, (January
23, 2006, last visited on August 23, 2012), http:// www.islamawareness.net/
Polygamy/poly_nm_news0005.html.

Praveen Dalal, Insight of Sarla Mudgal, (August 06, 2005), http:// india.
indymedia. Org /en /2005/06/210648.shtml.

CASES

Andal Vaidyanathan vs. Abdul Allam Vaidya, ILR 1920 Lahore 440.
Nandi alias Zainab v. The Crown, (1946) 1 MLJ 402.
Re Ram Kumari, (1891) ILR 18 Cal 264.
Sayeda Khatoon v. M. Obadiah, 49 CWN 745.