BA LLB (HONS.

) | SEMESTER 1
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RESEARCH PAPER

A SHORT STORY ON A
CASE AGAINST POLYGAMY THROUGH CONVERSION

SUBMITTED BY

KRISH SHAH
A038
SUBMITTED TO
PROF. MR. RAKESH NAMBIAR
SCHOOL OF LAW, NMIMS (DEEMED-TO-BE-UNIVERSITY)

DATE OF SUBMISSION

21ST DECEMBER 2021

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 ACKNOWLEDGEMENT
I would like to express my special thanks to our Dean (Dr.) Alok Mishra Sir, SVKM’S

NMIMS Mumbai Campus, and also to Prof. Mr. Rakesh Nambiar Sir who gave me an

opportunity to prepare this research paper and supervise me throughout the course of making

it.

A research paper is like a bridge between theoretical knowledge and practical work. I am

really thankful for getting this opportunity of making this Research paper and gaining a lot of

experience related to how to make a short story and understand tough concept like bigamy

and polygamy through conversion.

This wouldn’t have been very easy for me to make it without the Motivation from my Parents

and my Sister and I am grateful to them. Last but not least, I would like to acknowledge my

Friends as without their enormous help and support it would have been a much tougher task

to do. I express my gratitude to all.

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 TABLE OF CONTENT

SR NO: PARTICULARS PAGE NO:

1 INTRODUCTION 4

2 ANALYTICAL CHAPTER 5-11

3 CONCLUSION 12

4 BIBLIOGRAPHY 13

5 BOOK REVIEW 14-16

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 INTRODUCTION
According to Hindu Marriage Act, 1955, “Bigamy is the offense of marrying another while

the first marriage persists and such bigamous relations are illegal and the second marriage is

void ab initio”. In this “As per section 17 of the aforementioned act, any marriage solemnized

by the husband during the subsistence of that marriage, despite his conversion to another

religion, would be an offense triable under section 17 of this act, read with section 494 IPC.”

For a long time, married men whose personal law prohibited bigamy or polygamy have found

another way i.e. through converting to Islam just for sake of doing another marriage whereas

in reality having no devotion towards that religion.

The Case which we’ll discuss in this research paper represents a decisive moment in Indian

Legal history. The case Lily Thomas vs. Union of India & Ors in 2000 is a landmark

judgment as the Supreme Court ruled in this case that the second marriages without prior

divorce from the first marriage are null and void, and “men were converting to Islam to

solemnize the second marriage but all of this was considered void unless and until first

marriage was dissolved according to the Hindu Marriage Act otherwise the husband would be

liable for bigamy under section 494 and 495 of Indian Penal Code.”

India is a secular nation and has Article 25 that guarantees the freedom of Conscience, the

freedom to profess, practice, and propagate religion to all citizens. But is this right of

conversion absolute? What if the motive behind the religious conversion is not devotion but

something else? Would these conversions be legitimate even if done with some selfish

motives? All these questions have been raised in this landmark judgment.

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 ANALYTICAL CHAPTERS

FACTS:

❖ Case- Lily Thomas, Etc. Etc. vs Union of India & Ors.

❖ Appellant- Lily Thomas etc. etc.; Respondent- Union of India & Ors.

Bench- Saiyed Saghir Ahmad, R.P. Sethi, JJ.

❖ Smt. Sushmita Ghosh, who is the wife of Shri G.C. Ghosh (Mohd. Karim Ghazi) filed

a Writ Petition in this Court stating that she was married to Shri G.C. Ghosh in

accordance with the Hindu rites on 10th May, 1984 and since then both of them were

happily living at Delhi.

❖ Around the 1st of April, 1992, Shri G.C. Ghosh told the petitioner that she should in

her own interest agree to the divorce by consent mutually as he had any way taken to

Islam so that he may remarry and in fact he had already fixed to marry one Miss

Vanita Gupta resident of D-152 Preet Vihar, Delhi, a divorcee with two children in

the second week of July 1992 or else she will have to put up with the second wife.

❖ Shri G.C. Ghosh showed a Certificate issued by office of the Maulana Qari Mohd.

Idris, Shahi Qazi dated 17th June, 1992 certifying that he had embraced Islam.

❖ The petitioner contacted her father and aunt and told them about her husband’s

conversion and intention to remarry. They all tried to convince Shri G.C. Ghosh and

talk him out of the marriage but of no avail and he insisted that Sushmita must agree

to her divorce otherwise she will have to put up with second wife.

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 ❖ It was stated in the petition that Shri G. C. Ghosh has converted to Islam solely for the

purpose of re-marrying and has no real faith in Islam. He does not practice the Muslim

rites as prescribed nor has he changed his name or religion and other official documents.

❖ She prayed for the following reliefs:

➢ By an appropriate writ, order or direction, declare polygamy marriages by

Hindus and non-Hindus after conversion to Islam religion are illegal and void.

➢ Issue appropriate directions to Respondent Nos. 1 and 2 to carry out suitable

amendments in the Hindu Marriage Act so as to curtail and forbid the practice of

polygamy.

➢ Issue appropriate direction to declare that where a non Muslim male gets

converted to the “Muslim” faith without any real change of belief and merely with

a view to avoid an earlier marriage or enter into a second marriage, any marriage

entered into by him after conversion would be void.

➢ Issue appropriate direction to Shri G.C. Ghosh restraining him from entering into

any marriage with Miss. Vanita Gupta or any other woman during the

subsistence of his marriage with the petitioner; and pass such other and further

order or orders as this Hon’ble Court may deem fit and proper in the facts and

circumstances of the case.

CONCERNS:

❖ Can a Hindu husband solemnise second marriage by converting to Islam?

❖ Can the husband be liable for bigamy under section 494 of IPC?
❖ Whether there should be Uniform Civil Code for all citizens of India?

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Story:

(This story is written from the perspective of one of the Judges i.e. Justice S.S. Ahmad who

gave the order and he shows how complex this case was; which deals with so many issues

existing in our society.)

I still remember 30 December 1982 when I was appointed as a permanent Judge; I have

ordered many cases and given judgment according to laws established. But one of the cases

was Lily Thomas vs. UOI (writ and review petition) which was very different from all the

other verdicts which I gave. It was because it highlights how few people living in our society

try to misuse the laws existing in our society just for their selfish motives. Also, it is one of

those cases which examines why the Uniform Civil Code is so important. I’ll elaborate the

what happened in this case so that you will understand it in a much better way.

On 10th May 1984, Sushmita Ghosh married G.C. Ghosh in accordance with the Hindu rites

and since then both of them were happy together and living in Delhi. But one day around 1st

of April, 1992 respondent no:3 G.C. Ghosh told the petitioner Sushmita Ghosh that she

should in her own interest agree to her divorce by mutual consent as he had any way taken to

Islam so that he may remarry and in fact, he had already fixed to marry one Miss Vanita

Gupta resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the second week

of July 1992. This is quite shocking, isn’t it? On one day you are happy and in good relation

with someone and on the other you just change the life of that person without even leaving

any clue on why that happened. Now, Sushmita Gosh was in a horrendous situation and she

has no other option left than to contact her father and aunt. Her Father and aunt tried to

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convince G.C. Ghosh a lot and talk him out of the marriage but of no avail and he insisted

that Sushmita must agree to her divorce otherwise she will have to put up with second wife.

Isn’t it so easy for him do that and without even considering the troublesome situation of his

wife? But, when someone tries to do wrong with any person, there is always the doors of

Judiciary open to listen the pain and suffering of that person and to deliver Justice to each and

every one in our society.

Now, this writ petition and review petition i.e. collaboration of 3 petitions: Mrs. Sushmita

Ghosh v. UOI, SMT. Sarla Mudgal v. UOI AND Sunita Alias Fatima vs. UOI & ORS. Their

counsel was Lily Thomas; also in this Jamiat Ulema Hind & ORS. Have filed a review

petition under Article 136 of the constitution to review law laid by Sarla Mudgal Case in

1955. In this, I and my esteemed brother Sethi Ji who prepare this erudite judgment will

finally dispose of these petitions. But, what he prepared is very interesting and what were the

arguments given by the respondent were equally worth taking note of. Let us see what

happened and what were the motives behind it.

In the Sarla Mudgal case, the Supreme court basically gave this judgment that if a Hindu

whose first marriage exists but do second marriage (known as Bigamy) through converting

himself into Islam; that marriage would be called Void. But the Muslim personal board (who

is one of those who filed the review petition) objected to it and said it violates the

fundamental rights under articles 20, 21, 25, and 26. Now in this, I and my brother Sethi Ji

were trying to address the main issue from these cases which was: whether Conversion to any

other religion just for the purpose of committing Bigamy and Polygamy violates article 21 as

long as Muslim Personal Law or any other marriage law allows polygamy?

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Here, the first argument given by Lily Thomas was that marriage is a sacred and holy union

that cannot be dissolved by giving the excuse of religious conversion, and just for the sake of

Bigamy is a very insincere attempt to dissolve the first marriage. In this freedom of

conscience and life and liberty of wife is only getting violated not of husband. Another

Argument which she presented in front of us was that in Muslim Law Bigamy and Polygamy

should be declared unconstitutional as it discriminates against many Muslim Women too.

And finally comes the most Important argument which gives and that is for adopting a

Uniform Civil Code so as to absolve the vast majority of socio-legal issues that were being

uncovered due to religious personal laws.

Now the counsel of the petitioner argued that the aggrieved parties while exercising their

right to freedom of conscience and to profess any religion; so that is why anyone can convert

to Islam and second marriage after converting cannot come under the offense of Bigamy as

second marriage in Islam is Valid. The second argument was that Sarla Mudgal case

judgment violates the right to Life and liberty under article 21 and this judgement cannot be

applied to those who did second marriage after conversion to Islam before this judgement.

Now both the petitioners and respondent arguments were strong and we as judges have two

option either to go with the choice of keeping freedom of religion as an absolute right or to go

with the Supreme Court verdict in Sarla Mudgal Case. Let us see what we decided:

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The SC upheld the decision of the Sarla Mudgal case and second marriage after conversion to

Islam is Void and Sarla Mudgal Judgement hasn’t violated the right to freedom of conscience

and right to religion; also marriages through this way are insincere and fraudulent and this

kind of conversion is the misuse of freedom of religion and conscience and also in Sushmita

Ghosh Case husband has not registered his name according to Islam and also of his second

marriage child neither he changed his identity proof in the bank account from Hindu to Islam.

This shows his motive for changing religion. Also, SC in Sarla Mudgal Case has not created

any new law just interpreted already existing laws. So, finally, the court dismissed the review

petition and upheld the Sarla Mudgal Judgement. I agreed with my brother Sethi Ji’s erudite

judgment.

This Judgement will always be remembered by me as the Court was able to give justice to

those women who were been suffering due to the acts of their husbands which were

illegitimate and void. How few people misuse the freedom of religion was also taken note of.

For me, Religion is a matter of faith stemming from the depth of the heart and mind. Religion

is a belief which binds the spiritual nature of man to a super-natural being; it is an object of

conscientious devotion, faith, and pietism. If the person feigns to have adopted another

religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from

this angle, a person who mockingly adopts another religion where the plurality of marriage is

permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted

to take advantage of his exploitation as religion is not a commodity to be exploited. This

judgment is considered to be a landmark judgment and it’s because it has been able to hear

the voice of women and give justice to them. The work of the Judiciary in relation to this case

was over but it had a lot of positive consequences after it.

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AFTERMATH:

Yes, there were aftermath of this landmark judgment those were:

❖ There were a lot of women who were suffering due to these bigamies or polygamy

were able to raise their voice and justice was delivered to them by the judiciary.

❖ The Polygamy in Muslim Personal Law board was also in highlight after this case;

Muslim women also raised their voice against it.

❖ Also, people understood that religious conversion in our society can take place not

just because of the faith and belief in that religion but for selfish motives as well.

❖ This case has also touched upon the concept of the Uniform Civil Code and talked

about positives of it which has made many people forming an opinion on it although

court has said UCC doesn’t comes in their ambit.

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 CONCLUSION

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 while the

first marriage still persists and such bigamous relations are 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 the interest of

condensing a second bigamous 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 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. Until Uniform Civil Code is enacted for all the citizens of the country, there

will be always a loophole in the system because different faiths have different beliefs, and

naturally, due to different beliefs and practices of communities, there will be a

conflict.

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 BIBLIOGRAPHY
❖ Lily Thomas and Ors. vs. Union of India (UOI) and Ors. (05.04.2000 –

SC) : MANU/SC/0327/2000.

❖ https://indiankanoon.org/doc/80351/

❖ http://lawtimesjournal.in/lily-thomas-vs-union-of-india-ors/

❖ https://indiankanoon.org/doc/635068/

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 BOOK REVIEW
I’m going to review one of the most thought-provoking books i.e. HOMO DEUS- A BRIEF

HISTORY OF TOMORROW by Yuval Noah Harari a famous Israeli public intellectual.

This was one of those books that attract us just looking at its title which is itself very

scintillating. Now let us discuss this book in more detail:

What is the Book about?

Homo Deus is a book that cogently links the past and present with the future and describes it

with facts and evidence which makes us believe that what he is trying to convince is true. He

examines how Human beings conquered the world; managed famines, plagues, and wars, and

now more people die due to eating more, committing suicide, and old age. He says just like

this in the future Humans will upgrade themselves more finally becoming Homo Deus i.e.

Human God. The premise outlines that during the 21st century, humanity is likely to make a

significant attempt to gain happiness, immortality, and God-like powers. The author also

describes things like how data-ism will become the new religion. The main aim of the book

was to describe that how evolution is changing humanity; how technology and data where

numbers rule and words walk is surpassing Humanity.

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What did I learn from it?
I learned a lot of things from this book:

❖ First of all, I got to know that how Human nature changes from time to time, and

Human always needs something more from what it has already achieved. And

because of it, Human forgets that Humanity is the utmost important thing in our life.

❖ I also learned how important Happiness is and realized that it is required more than

materialistic satisfaction.

❖ I also realized from this book that studying History is not to perpetuate the past but

rather to be liberated from it.

❖ I also got to know that how due to agricultural revolution and scientific revolution

justified the exploitation of animals; also how the population of animals is decreasing

and humans are responsible for the change in ecology.

There are a lot of other things which this book teaches us.

Will I recommend it for reading and to whom?

Definitely, I will recommend this book as it is mind-boggling and teaches us a lot about

human behaviour and evolution. I will recommend it not just for its teaching but also to

understand that Humanity is slowly and gradually being overshadowed by technology and

algorithms. It makes us Introspect whether this technological evolution happening in our life

really helps us. And whether this eagerness to become Homo Deus is really worth it or not. I

will recommend this book to all those who really loves to read books related to Human

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Nature and interested in learning about Homo sapiens transformation to Homo Deus. I will

highly recommend it to all open-minded people who are not afraid to think a bit differently

about the meaning of life, about our political structures, and the future.

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