Lily Thomas vs. Union of India and Others

Decided on: 5^th April 2000

Citations:  2000 (2) ALD Cri 686, 2000 (1) ALT Cri 363, 2001 (1) BLJR 499, 2000 CriLJ 2433, II (2000) DMC 1 SC, JT 2000 (5) SC 617, 2000 (4) SCALE 176, (2000) 6 SCC 224, 2000 (2) UJ 1113 SC

Petitioner:  Lily Thomas

Respondents:  Union of India and Others

Judges: Justice S Ahmed

                Justice R Sethi

Facts of Lily Thomas vs. Union of India and Others :

• Lily Thomas’s case was bought to court by Smt. Sushmita Ghosh by filing a writ petition. She stated that she was married to Mr. GC Ghosh on 10^th May 1984 in obedience to the Hindu marriage rituals and customary practices.
• On the 1^st of April, 1992, Mr. GC Ghosh disclosed to Smt Sushmita Ghosh that he had decided to marry a woman, namely Vinita Gupta, who was a divorcee with 2 children. He was set to marry her in July 1992.
• He importuned Mrs. Sushmita to go along with divorce proceedings by mutual consent. Prudently, Mr. Ghosh even converted to Islam so that he could remarry by being on a safer side. To assert the contention further he presented a certificate issued by Maulana Qari Mohammed Idris, Shahi Qazi chartering his conversion to Islam by his own choice.
• On informing her kin about the same, Lily Thomas was advised to divorce Mr. Ghosh by mutual consent as he was obstinate with regards to his decision or she would have to put up with her own husband’s second wife as Islam allowed a man to have 4 wives at a time.
• Aggrieved by the same, Smt. Sushmita Ghosh filed a writ petition in the Supreme Court of India on the grounds that Mr. GC Ghosh changed his religion and converted to Islam with the sole intention to remarry. To support the contention, the petition also reasserted that Mr. Ghosh had no faith in Islam as he did not change his name to an Islamic one neither any other documents. He wasn’t aware and obedient to the Islamic customs.

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Issues in Lily Thomas case before the court:

• Should a Uniform Civil Court provided by Article 44 be applied to all the citizens? If yes, would it be violative of the Fundamental Right of a citizen to profess, practice, and propagate his/her religion provided by Article 25 under part III of the constitution?
• The second question battling the court in the of Lily Thomas was whether a Hindu male can misappropriate the law with the motive to remarry by converting to Islam or not?
• Alternatively, will the Hindu husband be put through section 494 of the Indian Penal Code for the offense of Bigamy?

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Arguments by Lily Thomas:

• Lily Thomas, arguing from Smt Sushmita’s side put forward to the court that since Mr. GC Ghosh converted to Islam solely to escape from being prosecuted under bigamy, this was prima facie a violation of Lily Thomas’s Fundamental Right to life and liberty ensured under article 21 of the Constitution of India.
• She also advocated for certain changes in the Muslim Law with an objective to make Polygamy an unlawful practice. To support the same, she stated the fact that many Muslim women wanted the practice of Polygamy to be declared unconstitutional and hence, discontinued as it evades the very motive of marriage.
• Lily Thomas contended that the Uniform Civil Code provided under Article 44 of the Constitution of India be applied to every citizen in order to prevent such wrongs from happening in the future hence defying any further conundrum to be caused with regards to the heterogeneity in the personal religious laws.
• The court was requested to declare Mr. Ghosh’s second marriage unconstitutional following the Hindu Marriage Act, 1955, section 11 of which makes remarrying with the first spouse being alive or not divorced from an unlawful practice known as Bigamy.

Counter Arguments from the Respondent:

• The respondents counter-argued within a very limited ambit by putting forth the rebuttal that according to the Muslim Law, a Muslim man can have 4 wives at a time notwithstanding what religion any of his wives belong to.
• Keeping in view the same, Mr. GC Ghosh was not liable to be charged with Bigamy under the Hindu Marriage Act, 1955.

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The Judgement:

• Rejecting the claim of Lily Thomas that there was an infringement of her Fundamental Right, the Hon’ble Supreme Court observed that there was no such violation of Article 21 of the Constitution of India which provides for Fundamental Right to Life and Liberty, by the stated act of remarriage as the same is to be perceived from and provided within the section 494 of the Indian Penal Code, 1860 as Bigamy.
• Pending Lily Thomas’s discord about the marriage, Justice Sagir Ahmed comforted her by declaring Mr. GC Ghosh’s second marriage null and void following the provisions of section 17 of the Hindu Marriage Act, 1959. The same section provides for Bigamy. He generalized his contention by stating that any person who wishes to remarry in spite of having a living spouse, such marriage would be considered unlawful. The offense of Bigamy is penalized under Sections 494 and 495 of the Indian Penal Code, 1860. All such reported cases are to be seen through the lenses of the Hindu Marriage Act, 1959.
• Justice RP Sethi seconded Justice Sagir Ahmed’s opinion by citing that in case a Hindu man tries to remarry while his first spouse is still alive, he will be prosecuted under Sections 494 and 495 of the Indian Penal Code, 1860.

Critical Analysis and Conclusion:

Of the three issues the court faced, it was, however, able to resolve only one of them with respect to Mr. Ghosh’s second marriage which amounted to Bigamy and was hence, declared null and void.

Nevertheless, the fundamental questions about the implementation of the Uniform Civil Code provided under Directive Principles of State Policy in Article 44 of the Constitution of India. Parleys about the same have been put forth in the due course of time and will be bought up numerous times until either the court or the parliament takes a stand on the issue, resolving it for once and for all.

 The judgment in fact only declared the second marriage of Mr. GC Ghosh as null and void. It failed to provide an indissoluble solution for the problem of religious conversion from a religion that prohibits the practice of Polygamy (Hinduism in the case) to such a religion that allows its followers to practice Polygamy. (Islam in the case) The court shall introduce an idea or a utopic mechanism to prohibit any such facts to repeat themselves.

 

–Written by Mrutyunjay Saramandal

(Writer, The Legal State)

– Edited by Samarth Pathak

(Editor, The Legal State)