Lily Thomson vs Union of India : Case analysis

    Lily Thomson v. Union of India[1] is a landmark case for determining whether the loophole of conversion of religion can relieve a person from certain duties and responsibilities. These responsibilities are put on the couple by legislations and acts related to marriage. They become binding on the couple after the solemnisation of it.

    Equivalent Citation : AIR 2013 SC 2662

    In this case, the  concentration is on bigamy under Section 494 of the Indian Penal Code titled “Marrying again during lifetime of husband or wife”[2] which in laymen’s terms can be understood as a person marrying multiple people at a time. In some faiths, religious or otherwise, bigamy is considered okay as per their scriptures and laws. In India, it is illegal to marry more than one person at a time, till the significant other is dead or divorced. But this law is not applied to muslims, since their law allows the husband to marry up to 4 wives. Many people have taken advantage of this and married multiple wives by converting into islam. This case finally set the precedent to stop people from misusing the laws. 

    Facts

    Sushmita Ghosh is from the side of the petitioner Lily Thomas as her lawyer. On 10th May, 1984, Sushmita Ghosh married G. C. Ghosh and they lived together in Delhi as a married couple for a few years. On 1st April, 1992, G. C. Ghosh conveyed to Sushmita Ghosh i.e., the petitioner, that she should mutually divorce him as he has decided to marry Vinita Gupta, a divorcee with two children. He said that it’s in her own interest to do so, because he has converted into islam which allows him to marry more than once. He decided to marry Miss Vinita around the second week of July 1992. G. C. Ghosh also got a certificate made to prove he has embraced islam which was issued by Mohammad Idris, dated 17th June, 1992. Petitioner Sushmita Ghosh contacted her father and aunt and told them about this. They then tried to convince G. C. Ghosh, not to do this but he refused and told them the same thing that his wife should agree to mutual divorce or she will have to put up with the second wife. It is  also presented by the petitioner that G. C. Ghosh has converted for the sole purpose of marrying again, and doesn’t follow any of the Islamic practices to consider him to be a practicing muslim. 

    Issues

    The following issues were addressed to the court for consideration:

    • Whether Mr. Ghosh’s second marriage be considered legal?
    • Whether any person be allowed to convert into islam and marry again?
    • Whether Mr. Ghosh has committed an offence under section 494 of IPC?

    Judgement

    It was held that marriage resulting from a conversion of religion for the purpose of avoiding responsibilities by means of fraud would be deemed void ab initio. The Supreme Court upheld the decision from Sarla Mudgal case[3] which made bigamy through conversion to muslim faith, invalid, even when the muslim personal law[4] allows it. To further understand what this means, we can see that a person can see conversion to islam as a means to commit the crime of bigamy which is not illegal for muslims. The reasoning behind the decision on this case was that conversion of faith in this way is not a person’s freedom of conscience but rather a fraudulent way to marry more than once. In this case, Mr. Ghosh even stated to the family members on a call, which was presented as evidence, that the sole purpose of his conversion was to marry again and there was nothing to show his actual faith in islam. He didn’t change his name officially on paper anywhere, his bank details had the same name and religion, and the only proof he had was one certificate. He didn’t have anything to show that the child born out of this wedlock will have the same religion either. There was nothing to prove that he performed any practices followed by a muslim, and didn’t have anything to show his faith to be real. All such facts were factored into the decision and came to the conclusion that the intention was for a specific purpose to marry more than once, not to actually embrace the faith. Therefore the judges came to the conclusive decision that this marriage is void ab initio and Mr. Ghosh has committed crimes for which he is liable. 

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    Analysis

    This case became a landmark case for a good reason, because it properly looked into the loophole that had subsided into the legal system for years, for which many men were beneficiary of. The Hindu Marriage Act defined a marriage to be void, if “neither party has a spouse living at the time of marriage”[5] condition is not satisfied, any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clause (i), (iv) and (v) of Section 5”[6]. And since Mr. Ghosh married Mrs. Ghosh according to all the hindu rites while being a hindu himself, he is considered to follow the guidelines as well. Since the muslim law allows a man to marry up to 4 women at a time, many have used this as a way to convert and marry more than once. This case solidified the stance of the court on whether this type of conversion can be allowed or not, and the answer is, not. Since it is considered a crime for every religion, in Indian legal system, no one other than muslims, are allowed to marry more than one woman at a time. This made the husband, Mr. Ghosh, liable under section 494 of IPC as well. This case provided justice to all the women who were stranded by their husbands, through setting a precedent. 

    It was also stressed upon that there needs to be prima facie evidence that the intention of the person converting is to use the name of faith for his advantage rather than actually believing in it. In this case, it’s bigamy that’s used. There was a lot of evidence to prove without a shadow of doubt that the intention of Mr. Ghosh was to convert into Islam for the sole purpose to marry Miss Vinita. This part of the judgement can be further looked upon and codified in the future, so as to not cause any injustice to people that are actually trying to convert without any malice. 

    Now for the punishment that Mr. Ghosh is liable to, the Hindu Marriage Act says that “Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 of the Indian Penal Code shall apply accordingly”[7] and the section 494 of IPC says that the person will be “imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”[8], which makes him liable to be imprisoned by the state for the said crime that is committed by him, or any non-muslim that commits bigamy. 

    Conclusion

    Family laws in India have been a complex and ever changing subject that has been shown even in the practice of it. This case has been of major relevance to the subject, specifically, the sub-subject i.e., bigamy. The relevance comes from the fact that there are separate laws which seem discriminatory towards people of one faith but not the other. For this sub-subject, it can be argued that the laws discriminate against muslim women because they don’t give them the right to dignity that women of other faiths get, on the matter of monogamy being compulsory for everyone else. This case was the first step towards getting towards giving women in India justice by providing them the right to dignity, since polygamy is a very problematic way of living. 

    To further illustrate the argument of polygamy being problematic, we can contextualise the fact that polygamy is only applied for men having multiple wives, and not the other way around. Even though the epic of Mahabharata depicts  Draupadi having multiple husbands, it is negligent in nature of reality, whether it’s India or any other place in the world. 

    In recent times, it has come out as a trend to have multiple partners at a time for both genders. This trend, regardless of where you stand on the matter, has not been discriminatory in nature. It’s also legal because such partners don’t marry one another through solemnisation of marriage. Only argument in favour polygamy is if both genders get to have the freedom to choose multiple partners, if that’s something the couple consent to. Till equality is a reality, liberty to marry multiple persons cannot be provided. 

    References:

    [1] AIR 2000 SC 1650.

    [2] The Indian Penal code, 1860, s. 494.

    [3] AIR 1995 SC 1531.

    [4] The Muslim Personal Law (Shariat) Application Act, 1937.

    [5] The Hindu Marriage Act, 1955, s. 5(1).

    [6] The Hindu Marriage Act, 1955, s.11.

    [7] The Hindu Marriage Act, 1955, s.17.

    [8] The Indian Penal Code, 1860, s. 494.


    BY HARSHIT JOSHI | LLYOD LAW COLLEGE , NOIDA

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