Facts OF Lily Thomas vs Union of India
A writ petition was filed by Smt. Sushmita Ghosh, the wife of Shri GC Ghosh, stating that the marriage between them was solemnized on 10.05.1984 in accordance with the religious rites and ritual of the Hindu Marriage Act, 1955.
On 01.04.1992, Mr. Ghosh asked the petitioner for divorce by mutual consent while stating that he had converted to Islam with an intention of contracting a second marriage with Miss Vanita Gupta, a divorcee with two children in the second week of July 1992.
Through this petition it was prayed by the petitioner that there should be interdiction of the proposed second marriage, which is scheduled to take place on 10.07.1992. It is also urged that the respondent, whose marriage with the petitioner is legal and subsisting, cannot take advantage of the feigned conversion so as to be able to take a second wife.
Issue of Lily Thomas vs Union of India
- Whether a non-Muslim gets converted to the ‘Muslim’ faith with no actual change or belief and merely with a view to avoid an earlier marriage or to enter a second marriage, whether the marriage entered by him after such conversion would bevoid?
- Whether the Respondent would be liable for bigamy under Section 494 of IPC?
Observations of Lily Thomas vs Union of India
Regarding question (1), it was clearly contended in the appellant’s petition that the respondent had not really converted to the ‘Muslim’ faith, but had only feigned conversion to solemnize a second marriage.
Further, it was also stated that though freedom of religion is a matter of faith, the said freedom cannot be used as a garb for evading other laws where the spouse becomes a convert to ‘Islam’ to avoid the first marriage.
Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage, despite his conversion to another religion, would be an offence triable underSection 17 of the Hindu Marriage Act, 1955 read with Section 494 of IPC.
In view of question (2), if a person contracts a second marriage during the subsistence of his earlier marriage, such marriage apart from being void under Section 11 & 17 of the Hindu Marriage Act would also constitute an offence and that person could be liable to be prosecuted under Section 494 of IPC.
Judgement of Lily Thomas vs Union of India
It was held that the conversion or apostasy does not automatically dissolve a marriage already solemnized under the Hindu Marriage Act but only provides a ground for divorce under Section 18. Till a decree of divorce is passed, the marriage subsists. Any other marriage, during the subsistence of the first marriage would constitute an offence under Section 494 read with Section 17 of the Hindu Marriage Act, 1955 and the person, despite his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.