CASE ANALYSIS

LILY THOMAS VS UNION OF INDIA

Submitted to:- Submitted by:-

Shradha Sanjeev Bhuwan and Aryaman

BBA LLB

Roll No. 8 and 6

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 INDEX

Facts

Issues

Reasoning

Judgement

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 FACTS

1. Mrs. Sushmita Ghosh was married to Mr. Gyan Chand Ghosh according to hindu rituals on
10th May, 1984.

2. On 22nd April her husband told her that he does not want to live with her any further and
should agree for divorce by mutual consent.

3. All of this came as a shock to Petitioner and prayed that she was the legally wedded wife
and wanted to live with him therefore the question of divorce should not arise.

4. The husband told her that he has converted to Islam and would marry Vinita Gupta.

5. He procured a certificate dated 17th June, 1992 from Qazi indicating that he has converted
to Islam.

6. Mrs. Sushmita Ghosh has prayed that her husband should be restricted from entering into
another marriage with Vinita Gupta.

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 ISSUES

1. Whether religious conversion for the purpose of committing bigamy and polygamy is
violation of Art.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 the fundamental right to life and liberty due to the judgment passed
by a Court of law or not?

REASONING
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ARTICLE 21- Right to life and personal liberty

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Petitioner:
1. Petitioner’s first issue was that since marriage is a sacred institution then how resorting to
the act of religious conversion to Muslim to commit the act of bigamy as Muslim personal
law allows it is an attempt where the women freedom of facing such bigamous marriage and
such betrayal is violative of Art.21(right to life and liberty).

2. Lily Thomas pleaded before the court to male polygamy in Muslim Law to be
unconstitutional.

3. It was urged before the court to apply Uniform Civil Code so as to deal with vast socio-
legal issues that were due to various religious personal law.

4. Many Muslim women have filed petitions before the SC and HC to declare Polygamy in
Muslim law to be unconstitutional.

5. To reframe Muslim personal law with the change in time and disallow the practice of
Polygamy as it is disrespectful to the integrity and liberty of women who have to face such
situations.

6. To have Uniform Civil Code so that no personal religious law make fundamental right
violation.

7. Such contentions were made by Lily Thomas in pretext of all the aggrieved women.

Respondent:
1. The state agreed with the petitioner in their plea.

2. Several recommendations were made in this context.

JUDGEMENT

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1.Marriage resulting from conversion to Muslim from any other faith during the existence of
previous marriage before conversion is deemed void even when Muslim Personal Law
(Shariat) Act allows polygamy because such conversion is not exercise of freedom but rather
it is a fraudulent act without the change in one’s faith.

2. The reason derived from the facts that lead to this judgment was due to the practice of the
husband who had converted to Islam but had not had any relevant change in any document
which would conclude such conversion to be of concrete nature provided this act also not
provided any significance to the child born from that wedlock.

3. Even bank accounts hold identification of the husband to have been Hindu. All this adds to
the fact that such conversion was solely done in order to enter into second marriage ie.
Bigamy and there was no change in one’s faith.

4. Therefore, marriage resulting from such a conversion is void also due to violation of
Art.21. The violation of Article 21 on behalf of those considered under the law laid down in
Sarla Mudgal is being seen as no violation at all but have contended that Article 21 states no
person shall be derived of his right of life and personal liberty except as per procedure
establish by law.

5. Here the persons are apprehended for offences under s.474 and 475, IPC therefore no right
has been violated because such apprehension has been laid down by law.

6. The Court has said that violation of Article 21 is misconceived. Since Art.21 states that no
person shall be deprived of his right and personal liberty except as per procedure established
by law and herein such an act of marriage while the first marriage still persists is codified in
IPC sec 494 there is no violation of Art. 21.

7. The doctrine of indissolubility of marriage is not recognized in traditional Hindu law even
when conversion led to the change in one’s religion. Marriage would not be dissolved only by
the pretext of one converting to another religion.

8. Unless the law permits for uniform civil code a non-Islamic husband would have the
opportunity to convert to another religion i.e. Islam to legalize one’s marriage but since such
an act has become an act that would be penalize such conversion would not have any validity
if the first marriage is not dissolved.

9. In India there are no marriage related law since marriage take place according to one’s
personal law therefore such thing could not be codified and applying uniform civil code to
such an issue would not do just to one’s own personal belief but what could be penalized are
the wrong acts done in pretext of such personal law which is what the SC has done in this
case by making it illegal to marry another person while already in marriage with the first wife
by converting to Islam.

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10. This law as laid down in Sarla Mudgal v. Union of India and which was upheld in Lily
Thomas v. Union of India has raised pertinent issues for having a Uniform Civil Code (such
has been laid down in Lily Thomas case) and also the 227th Report of The 18th Law
Commission of India in August 2009 have made this issue of preventing Bigamous marriage
though Conversion to Islam it’s subject and the commission headed by Dr. Justice A.R.
Lakshmanan have provided sound measures to keep this rampant practice of fraudulent
conversion for benefits of bigamy/polygamy under strict constrains so as to prevent such
atrocities from ever occurring.

11. Such an implementation from this law commission report is yet to be seen in the existing
time.Thus this law persists in judicial precedents and ration decidendi which is applicable to
every citizen of India irrespective of their religion.