Can a Hindu Husband marry for the second time by embracing Islam? #indianlaws #marriagelaws

The second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

In the judgment as passed by the Supreme Court in Smt. Sarla Mudgal, President, Kalyani & Ors. vs. Union of India & Ors. [Dated 10.05.1995, reported as 1995 SCC (3) 635 = 1995 SCALE (3)286,] the Court dealt with the issues namely whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code (IPC)? The holding arrived at in this matter can certainly be considered as timeless ratio and worth including in this category.

It was observed that, “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 thereunder. 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 civilisation can exist.” It was further observed that the doctrine of indissolubility of marriage, under the traditional Hindu law, does not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses does not dissolve the marriage. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

In a situation where marriage takes place under Hindu Law, the parties acquire a status and certain rights by the marriage itself and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would destroy the existing rights of the other spouse who continues to be Hindu.

A marriage performed under the Hindu Marriage Act, 1955 (Act) cannot be dissolved except on the grounds available under Section 13 thereof and accordingly the parties solemnising the marriage under the Act remains married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would 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 be illegal marriage qua his wife who married him under the Act and continues to be Hindu and accordingly the second marriage would be nonest.

The marriage solemnised by a Hindu husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but said marriage would be in violation of the Act. The expression “void” for the purpose of the Act as defined under Section 11 of the Act has a limited meaning under the said Section. However, the same expression has a different purpose under Section 494 of the Indian Penal Code, 1860 (IPC). A marriage in violation of any provisions of law would be void in terms of the expression used under Section 494, IPC. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC.
It was also held that the second marriage of an apostate-husband would be in violation of the rules of natural justice. 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. Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 IPC gets satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife. Hence, the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.