Lily Thomas v.

Union of India

Facts:

Mrs. Sushmita Ghosh was married to Mr. Gyan Chand Ghosh, who to reap benefit
of a second marriage with one Ms. Vinita Gupta (divorcee with 2 children) had
converted to Islam as the Hindu Marriage Act prohibited bigamy under s.5 read
with s.11 of the Hindu Marriage Act and further substantiated under s.17 of the
Hindu Marriage Act which provides the Punishment for Bigamy to be the same as
under s.494 and 495, IPC.

The 3 petitions

1.mrs Sushmita Ghosh v. UOI

2.SMT.sarla mudgal v. UOI

3.sunit alias Fatima v. UOI and ors

The case lily Thomas v. UOI & ors where other persons and jamiat ulema hind &
ors. Have filed review petition under article 136 of constitution to review law laid
down by sarla mudgal case in 1955

Other petitions for the breach of fundamental rights Article (20, 21, 25, 26) the law
set by sarla mudgal case was filed .lily Thomas was the lawyer of the distressed
wife Mrs. Sushmita Ghosh and other women who have been a victim to bigamous
marriage through religious conversion this case was reside by the two judges bench
of sager ahmed , j and R.P sethi , J.

Issues:
1. Whether religious conversion for the purpose of committing bigamy and
polygamy is violation of article 21 as long as Muslim personal laws or any
other marriage law allows polygamy?
 2. Whether apprehension of a person for charges of bigamy after religious
conversion to Islam is breach of fundamental right to life and liberty due to
the judgment passed by court of law or not?

Contentions of parties:
The first issue has been raised by Lily Thomas on behalf of the women
wronged, the argument was that marriage is a sacred institutions and
resorting to the act of religious conversion to Muslim so as to commit the act
of bigamy as Muslim Personal Law allows it, is a feigned attempt where
freedom of conscience is not at stake but the women’s freedom of facing
such conditions of bigamous marriage and this betrayal is violative of Art.21
right to life and liberty. Further, Lily Thomas urged the court to declare
polygamy in the Muslim law to be unconstitutional.
This was one of the most profound arguments placed before the Supreme
Court for adopting a Uniform Civil Code so as to absolve vast majority of
socio-legal issues that were being uncovered due to Religious Personal
Laws. The few were
1) Many Muslim women had filed writ petition before the Supreme Court
and other high courts to declare polygamy in Muslim law to be
unconstitutional.
2) To reframe Muslim personal law in the likes as present in Tunisia where
polygamy is disallowed as the custom and usage of polygamy is
disrespectful to the liberty and integrity of women who have to face and live
within bigamous and polygamous marriages.
3) To have a Uniform Civil Code so that no Personal Religious laws makes
fundamental rights violation
The counsel for petioner have argued that the aggrieved parties while
exercising their freedom of conscience and to profess any religion have
sought conversion to Islam and due to such reasons they are allowed to
commit bigamy the judgment in sarla mudgal case have laid down the law
that such marriage done after conversion to Islam is void as under the Hindu
before conversion their exists the previous marriage and hence due to such
voidness of marriage, some have apprehended 495 IPC .this is violation of
 right to life and liberty due to the contention that the Muslim personal law
(Shariat) Act Allows bigamy and hence the apprehend have not committed
any offence of IPC.
2) another contention that law declared in sarla mudgal case cannot be
applied to persons who have solemnized marriages in violation of the
mandate of law prior to the date judgment.

DECISION:
The SC has upheld the decision of the sarla mudgal case and further has
enforced the same marriage resulting from conversion to Muslim from any
other faith during the existence of previous marriage before Muslim personal
law (Shariat) Act allows polygamy because such conversion is not exercise
of freedom of conscience but rather feigned and fraudulent without the
changes of faith the reason derived from the facts that lead to this judgement
was due to the practice of the husband who had converted to Islam but had
not registered his new name or faith as recognition for the child born out of
the second wedlock even bank accounts hold identification of the husband to
have been Hindu all these are seen as evidence to justify that the
conversation was feigned and solely for bigamous marriage rather that any
changed in neither faith nor practice of faith hence marriage resulting from
such conversion is void also the to violation of article 21.

2. Religion is a matter of faiths stemming form the depth of heart and kind
.religion, faith or devotion are not easily interchangeable if the person reigns
to have adopted another religion just for same wordly gain or benefit ,it
would be religious bigotry a person who do religious bigotry he cannot be
permitted to take advantage of his exploitation as religion is not a
commodity to be exploited/
3. Under the constitution every person has a fundamental right not merely to
entertain the religious belief of his choice but also to exhibit his beliefs and
ideas in a manner which does not infringe the religious right and personal
freedom of others.
4. Violation of article 21 on behalf of those apprehended under the law laid
down is sarla mudgal is being seen as no violation at all but the court
 contended that article 21 states no person shall be derived of his right of life
and personal liberty except as per procedure established by law. here the
persons are apprehended for offences sc494 and sc495 IPC therefore no right
has been violated because such apprehension has been a created laid down
by law the court said that alleged violation of article 21 is misconceived.
5. For the contention that law declared in sarla mudgal case cannot be applied
to persons who have solemnized marriages in violation of the mandate of
law is not acceptable the supreme court has not laid sown any new but only
interpreted the existing law. The interpretation of provision of law relates
back to the date of a law itself and cannot be prospective from the date of the
judgement because concededly the court does not legislate but only gives
interpretation to an existing law
6. The order dismissed the review petition and other petition due to no
substance but also assured jamiat ulema and Muslim person law board that
the judiciary or the union have not thought of making a uniform civil code.
Both judges have given concurring opinion henceforth the law reads as;
“ANY MARRIAGE INSTITUTED AFTER CONVERSION TO
MUSLIM WHILE A MARRIAGE ALREADY REMAINS FOR
BEFORE CONVERSION WILL BE VOID”