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S A R L A M U D G A L A N D O R S . V. U N I O N O F I N D I A :
AIR 1995 SC 1531

BY: Kaustubh Singh Thakur and Kunal Mittal

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Marriage is one of the foundation stones of a civilised society. It is the foundation of the family and in
turn of the society without which no civilisation can exist.The pious relation once entered into, lets the
law step in and bind the partners to various obligations and liabilities thereunder. Marriage is an
institution in the maintenance of which there is public interest at large.[1] The culmination of the
Hindu Code Bill in the 1950s led to the codi�cation and uni�cation of the variant personal laws of
Hindus in India. The Hindu Marriage Act, 1955 was one the four acts that were passed as a part of the
Hindu Code Bill. A marriage entered in accordance with the Hindu Marriage Act, 1955, confers a status
and certain rights upon the parties. Such marriage cannot be dissolved except on the grounds available
under section 13 of the Act. A spouse does not have the right to dissolve the marriage in such a manner
that infringes the existing rights of the other spouse. There can be no automatic dissolution of the
marriage.

The Supreme Court of India while dealing with a bunch of writ petitions under Article 32 of the
Constitution, in [2], directed the state to enact a uniform civil
code counting on the directive principles contained in Part IV, Article 44 of the Constitution. The court
observed that “there was no necessary connection between a religion and personal law in a civilized
society.” Such an enactment was considered necessary as it would help stabilize the institution of
marriage and family; and promote social homogeneity and thereby national integration.[3] The
judgment is hailed as precedent for uniform civil code and is considered a decisive step towards
national consolidation.The verdict discusses issue of bigamy, the con�ict between the personal laws
and the misuse of the freedom of religion.

Four writ petitions were �led under Article 32 of the Constitution of India.Writ Petition 1079/89 had
two petitioners. Sarla Mudgal, Petitioner 1, was the President of a registered society -“Kalyani”. The
society was a welfare organisation working for women in distress.Petitioner 2, Meena Mathur had been
married to Jitender Mathur since February 27, 1978. Three children (two sons and a daughter) were
born out of the wedlock.In early 1988, Jitendra Mathur and Sunita Narula alias Fathima converted to
Islam and entered into a marriage. The petitioneralleged that her husband’s conversion to Islam was
only for the purpose of marrying Sunita and evading the provisions of Section 494, IPC. In the second
Writ Petition, no. 347 of 1990, the petitioner Sunita Narula alias Fathima contended that Jitendra
Mathur along with her had entered the wed lock after converting to Islam and adopting Muslim
religion. A son was born out of the wed lock. The petitioner further alleged that under the in�uence of
his �rst wife Meena Mathur, Jitendra Mathur gave an undertaking on April 28, 1988. The undertaking
stated that he had reverted back to Hinduism and had agreed to maintain his �rst wife and three
children. The petitioner’s grievance was that she had no protection under either of the personal laws
as she continued to be Muslim, not being maintained by her husband. In the third petition, Writ
Petition no. 424 of 1992, it was stated that petitioner Geeta Rani,was married to Pradeep Kumar

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according to Hindu rites since November 13, 1988. The petition alleged that her husband maltreated
her. On one occasion, the petitioner was beaten to an extent that her jawbone was broken. In
December 1991, Pradeep Kumar converted to Islam and married Deepa. It was alleged that the
conversion to Islam was only for the purpose of facilitating the second marriage.The fourth petition,
Civil Writ Petition 509 of 1992 was �led by Sushmita Ghosh. The petitioner stated that she was married
to G.C. Ghosh according to Hindu rites since May 10, 1984. On April 20, 1992, the husband tried to
convince the petitioner to agree to divorce by mutual consent as he no longer wanted to live with
her.On June 17, 1992, the husband converted to Islam and was set to marry one Vinita Gupta. The
petitioner had prayed that her husband be restrained from entering into second marriage with Vinita
Gupta.

Several critical questions were raised during this case relating to the enactment of a uniform civil
code, the issue of bigamy, the con�ict between the personal laws and the misuse of the freedom of
religion. Thus, three broad issues were raised:

(1) Whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second
marriage?

(2) Whether such a marriage without having the �rst marriage dissolved under law, would be a valid
marriage qua the �rst wife who continue to be Hindu?

(3) Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal
Code (IPC)?

The apex court strongly advocated the necessity of implementation of uniform civil code throughout
the country so that personal laws could not trespass each other. Hon’ble Kuldip Singh J. further stated
that in the absence of uniform civil code, there is an open inducement to Hindu husband to embrace
Islam for the sole purpose of marrying again and consequently escaping the provisions of family and
criminal law.[4]

It was reasoned in the instant case that holding second marriage of converted Hindu valid would
tantamount to trespass of one personal law in other’s territory. A marriage solemnised according to
one personal law cannot be dissolved by following the provisions of other. When the marriage under
Hindu law takes place, the parties acquire rights and obligations against each other and validity of

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second marriage of Hindu husband would destroy the existing rights of another spouse. It is due to
this reason that under customary Hindu law, a Hindu marriage continued to subsist even after one of
the spouses converted to Islam.

The court referred to section 13 which talks about the grounds of divorce. One of the grounds is that
“the other party has ceased to be a Hindu by conversion to another religion”.[5] It was observed that
conversion into other religion is just a ground for other spouse to obtain a decree of divorce from the
court. It does not imply that the marriage comes to an end with the conversion into another religion.
The marriage is good and valid till the decree of divorce is granted by the court of competent
jurisdiction. Therefore, second marriage of an apostate shall be illegal qua his wife who married him
under the Hindu Marriage Act, 1955 and continues to be Hindu.

The court observed that a marriage entered in accordance with Hindu Law continues to be valid even
if one of the spouses converts to other religion. A marriage could be dissolved only by the decree of
court and there is no automatic dissolution of Marriage.[6] The court held that mere fact of conversion
to Islam does not dissolve the marriage.[7]A marriage entered in accordance with the Hindu Marriage
Act, 1955, confers a status and certain rights upon the parties. A spouse does not have the right to
dissolve the marriage in such a manner that infringes the existing rights of the other spouse. This
would also violate the laws of natural justice, equity, and good conscience. The court considered the
con�ict of personal laws arising out of the interest of both the communities. It felt that “it is not the
intention of the enlightened Muslim community to encourage Hindu husbands to convert to Islam only
for the purpose of legitimising their second marriage” and therefore,concluded that the Hindu
husband married under Hindu Law cannot solemnize second marriage by embracing Islam.

To answer the question of validity of second marriage, the court stated that dissolution of a marriage
can only take place by decree of divorce obtained on any of the grounds enumerated in Section 13 of
the Hindu Marriage Act. A marriage which contravenes any of the conditions speci�ed in the Act is
void, thus a marriage performed when the spouse is living is void.[8]The court while considering legal
propositions from the Hindu Marriage Act observed that the Act strictly enforces monogamy. The
marriage performed under Hindu Law can only be dissolved on the grounds available in Section 13.
Therefore, the husband and the �rst wife remain married. Hence, the second marriage violates the
provisions of the Act and is illegal.

The court further observed that the scope and meaning of the expression is wider in Section 494
of IPC as compared to its de�nition under Section 11 of the Hindu Marriage Act, 1955. The conversion
of one of the spouses to another religion would not, by itself, dissolve the Hindu Marriage and until the
dissolution of �rst marriage, no spouse can enter into second marriage. The spirit and nature of the

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Act makes the second marriage illegal as such a marriage would be violative of the principle of justice,
equity, and good conscience. Considering the above discussion, the court concluded that the second
marriage of Hindu husband, without dissolution of the �rst marriage, would be invalid. The second
marriage would violate Section 494 of IPC and therefore the husband would be guilty of bigamy.

The verdict in this case emphasises on the importance of Article 44 of Indian Constitution which is
read as:
The apex court gave guidelines to the Government of India to ensure that Article 44
is no more a dead letter and directed the state to take effective actions to secure its implementation
throughout India. However, the judges were well-aware of the fact that considering the social fabric of
the country, such a common legislation would not be easy to implement. It was suggested that the Law
Commission may work in coordination with the Minorities Commission on the said proposal. Although
the Supreme Court suggested a way to reach consensus amongst different communities but still the
guidelines were not very clear as to how the Uniform Civil Code shall look like. Till date the Uniform
Civil Code has not been implemented in our country for obvious reasons. Even if the implementation
of Article 44 is to be considered, the following questions remain unanswered:

a.What shallthe provisions of Uniform Civil Code look like?

b.Would it be possible to give enough representation to the minority opinion in the new legislation?

c.How would the provisions of such a codebe balanced as against the freedom of religion?

Marriage, divorce and succession are equally a matter of faith and belief as worship itself. It is a
fundamental right in India to freely profess, practice and propagate any religion.[9] The question is
how the balance between freedom of religion and Article 44 of the DPSPs would be maintained.

Justice Sahai made an observation that Muslim majority countries like Pakistan, Morocco and Tunisia
codi�ed personal laws and strictly prohibited polygamy. These countries did not face much problem in
such codi�cation because these are Islamic countries. However, if we consider such a step to be taken
in India, it would be seen as the oppression of the minorities and might incite communalism. It may
lead to widespread protests and agitations in the country just like recent anti-CAA protests. It is not
easy to enforce such a uniform civil code in the country due to con�icting practices and personal laws
of different communities. The vote politics and appeasement policies are the other reasons which
resist the governments from taking such bold steps. Even the Supreme Court in this case impliedly
recognised it as a reason by opining in the following words: “But today there is no Raja Ram Mohan Rai
who single-handedly brought about that atmosphere which paved the way for Sati abolition. Nor is a

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statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and
Hindu Marriage Act by revolutionising the customary Hindu law.”

Some might argue that if Goa could adopt uniform code for all, then why not other states of India? The
answer to this question is that even Goa never adopted any uniform civil code after the independence,
it just continued with the old Portuguese Civil Code which was a uniform law in 1962 when Goa was
formed by Goa and Daman and Diu Administration Act, 1962; and since the Christians make up about
25% of the population of Goa and the personal laws of Hindus and Christians are not very different, a
uniform code was easy to be enforced in Goa.

The Supreme Court, in this case, stretched the meaning of the expression as used in section 494
of IPC, 1860. It was not given restrictive meaning as in the section 11 of the Hindu Marriage Act, 1955.
The court implied that that “a marriage which is in violation of any provision of law would be void in
terms of the expression under section 494 of IPC.” The creative interpretation was made to give effect to
the underlying principle of Hindu Marriage Act as it strictly professes monogamy. The court admitted
to the stretching of the meaning of the term , “else, it would be giving a go-by to the substance of
the matter and acting against the spirit of the statute if the second marriage of the convert is held to be
legal.” This shows the application of harmonious construction rule by the apex court as such
interpretation was given effect which resolves the con�ict between different laws. The court while
applying such principle observed as under:

“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 interpretation they have given to section 494 of I.P.C. 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.”

The apex court needs to be given credit for �nding a way out to uphold provisions of different laws
along with securing justice at the same time. It was like a slap on the face of those who take undue
advantage of loopholes in the law for sel�sh motives and unjust gains.The perusal of the ruling
highlights the role of equity, justice and good conscience in reaching the decisions when law is not
clear on the subject. The principles of natural justice were also applied in the given case to secure
social justice. The court also emphasised on the basic human rights of women while issuing guidelines
about making a comprehensive legislation. All this shows the constant endeavour of the judiciary to
secure social justice by �lling up lacunae in the law through dynamic and creative interpretation of the
laws. A direction was also given to enact Conversion of Religion Act which shall deal with the
provisions of marriage, divorce and succession in case of conversion of religion. However, such a
legislation has not been enacted till date.

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The court had to refer to the catena of case laws to secure justice in the instant case because of
vacuum in the law in the instant case. Had uniform civil code been in place, it would have been easy to
give justice to the petitioners and circuitous route in administration of justice could have been
avoided. It could also have avoided the misuse of freedom of religion through sham conversion. The
present case is the example of the constant endeavour of the Indian judiciary to enforce the provisions
of our transformative constitution having liberty, equality and dignity as its ideals. The Supreme
Court’s direction to the government to enforce the DPSP i.e. Article 44 further highlights the
importance of Supreme Court as ‘Guardian of the Constitution’.

• Sarla Mudgal and Ors. v. Union of India, AIR 1995 SC 1531.

• The Hindu Marriage Act, 1955.

Kumar Virendra, Towards a Uniform Civil Code: Judicial Vicissitudes [ from Sarla Mudgal (1995) to Lily
Thomas (2000)], Vol. 42, Journal of the Indian Law Institute(2000).

[1] Virendra Kumar, TOWARDS A UNIFORM CIVIL CODE: JUDICIAL VICISSITUDES [ from Sarla Mudgal
(1995)

to Lily Thomas (2000)], Vol. 42, Journal of the Indian Law Institute 314, 315-316, (2000).

[2]Sarla Mudgal and Ors. v. Union of India, AIR 1995 SC 1531.

[3]Supra note 1 at 315.

[4]The Indian Penal Code, No. 45 of 1860, India Code s. 494.

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[5]The Hindu Marriage Act, 1955, The Parliament of India, 1955 (India) s. 13.

[6] Nandi alias Zainab v. The crown, ILR 1920 Lahore 440.

[7]Ram Kumari in Budansa v. Fatima, 1914 IC 697.

[8]The Hindu Marriage Act, 1955, The Parliament of India, 1955 (India) s. 5.

[9] The Constitution of India, 103rd AmendmentAct, 2019, art. 25.

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