- P.RAJENDRAN www.prajendran.com
Whether the second marriage of a Hindu husband after conversion to Islam, without having dissolved his first marriage under law would be valid? Whether the husband would be guilty of committing the offence of Bigamy under Section 494 IPC? Whether the second marriage would be void in terms of the provisions of Section 494 IPC? Such questions are being raised very often.
Section 494 IPC reads as follows: “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”.
The Hindu Marriage Act strictly enforces monogamy. A marriage performed under this Act cannot be dissolved except on the grounds available under Section 13 of the Act. In that situation, parties who have solemnized the marriage under this Act remain married even when the husband embraces Islam in pursuit of another wife. Till the time a Hindu marriage is dissolved under the Hindu Marriage Act none of the spouses can contract a second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu Marriage under the Hindu Marriage Act. A second marriage of an apostate, would be illegal marriage qua his wife who married him under the Hindu Marriage Act and continues to be a Hindu. Though the marriage solemnized by a Hindu husband after embracing Islam may not strictly be a void marriage under the Hindu Marriage Act because he is no longer a Hindu, but between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Hindu Marriage Act and as such would be non est.
The expression “void” defined under Section 11 of the Hindu Marriage Act has a limited meaning within the definition under that Section. On the other hand the same expression has a different purpose under Section 494 IPC and has been used in the wider sense. A marriage which is in violation of the provisions of law would be void in terms of the expression used under Section 494 IPC. The real reason for the voidness of the second marriage is the subsistence of the first marriage which is not dissolved even by the conversion of the husband. The second marriage by a convert, therefore, being in violation of the Hindu Marriage Act, would be void in terms of Section 494 IPC. Any act which is in violation of mandatory provisions of law is per se void.
The conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equality and good conscience. A matrimonial dispute between a convert to Islam and his or her non Muslim spouse is not a dispute “where the parties are Muslims” and therefore the rule of decision in such a case was or is not required to be the “Muslim Personal Law”. In such cases the courts shall act and the judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494 IPC.
The above interpretation of Section 494 IPC would 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. The result of the interpretation would be that the Hindu law on the one hand and the Muslim law on the other hand would operate within their respective ambits without trespassing on the personal laws of each other.
Much misapprehension prevails about bigamy in Islam. To check the misuse, many Islamic countries have codified the personal law, wherein the practice of polygamy has been either totally prohibited or severely restricted. But India is a Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. Article 25 of the Constitution of India guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character, cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution of India. The personal law of the Hindus such as relating to marriage, succession and the like have all an origin in the same manner as in the case of the Muslims or Christians. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded /supplemented by introducing a uniform civil code for all the citizens in the territory of India. The successive Governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India, namely, “endeavour to secure for the citizens a uniform civil code throughout the territory of India”