THE INSIGHT OF SARLA MUDGAL
The aim of this article is to provide the jurisprudential, analytical and logical support for the decision of the Supreme Court in Sarla Mudgal’s case.
The aim of this article is to provide the jurisprudential, analytical and logical support for the decision of the Supreme Court in Sarla Mudgal’s case. The decision of the Supreme Court in that case, though appreciated on the front of its ultimate benign effect, yet it was criticised by many on the ground of certain “claimed inconsistencies”. The further aim of this article is to remove certain misconceptions and to make the “implied logic and reasoning” of the Supreme Court the apparent reasoning of the case.
The decision of the Supreme Court Sarla Mudgal’s case has brought uniformity in the law concerning conversion and remarriage among various personal laws. It has brilliantly filled the vacuum that was culpably exploited by persons of weak character and vice intentions in the past. It has also set a precedent for the future “culpable and immoral conversion” by providing a punitive sting. It has, however, been criticised also on the ground that court “considered” the accused person as “both Hindu and Muslim” at the same time and thus “blowed hot and cold” at the same time. This argument is not only faulty but also misconceived. The argument further undermines the bold step taken by the court to resolve the “inter-personal conflict of law, which is a by product of lack of a “Uniform Civil Code” (UCC).
It is submitted that the decision of the Supreme Court must be appreciated and understood in its true perspective, letter and spirit. The decision of the Court has the potential to fill the vacuum created by the lack of a UCC in this regard. In the absence of UCC the following submissions and reasoning can be considered by the Courts while deciding the fate of “culpable and immoral” conversions:
(1) The theory of original personal law: The personal laws should not be allowed to be manipulated and exploited for worldly gains and carnal pleasures. Thus, if a person wishes to enter second marriage, after converting to another personal law and without dissolving his/her first marriage, such second marriage must be held to be valid only if his/ her original personal law allows such second marriage. For instance, if a Hindu enters into a second marriage after converting to Islam, but without dissolving his first marriage, the he should be held liable for bigamy because his original personal law does not allow polygamy. Similarly, if a married Muslim converts to Hindu religion, without dissolving his first marriage, and enters into a second marriage he should not be held liable for bigamy because his original personal law allows polygamy, though capacity to do justice between co-wives is the condition precedent . It must be noted that under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. On the other hand, if the husband converts to another religion it will amount to automatic dissolution of the marriage.
It is submitted that conversion of husband to another religion should not be treated as “automatic dissolution” of marriage as it seems arbitrary, unreasonable and perhaps illegal to do so. For instance, if a Muslim husband wishes to give divorce to his wife he has to follow the “correct law of talaq”. In Shamim Ara v State of U.P the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.
It is clear that the arbitrariness and unreasonableness shrouding the Muslim law of divorce has been removed by the Apex Court of India. It is interesting to note that if a Muslim husband is compulsorily required to observe fairness and reasonableness while divorcing his wife, then he cannot bypass this procedure by simply converting to another religion. This means that conversion of a Muslim husband cannot and should not operate as an automatic dissolution of his former marriage. Now if we apply the reasoning of Sarla Mudgal’s case and Shamim Ara’s case together, then the Muslim husband who enters into a fifth marriage after conversion may be held liable for bigamy under section 494 of IPC because his previous marriages are not automatically dissolved by conversion. Thus, the notion that on conversion of a Muslim husband to another religion, his former marriage(s) is/are automatically dissolved requires reconsideration, legislative notice and judicial interpretation.
(2) The theory of notional status: The argument that the Supreme Court blew hot and cold at the same time also requires a different outlook.
Firstly, it must be noted that the decision of the Court was given in the absence of a proper law in this regard and that also in larger public interest. The menace of culpable conversion was so much prevalent that the court was cornered to provide a solution for the same. The condition was further made complicated by the inability and insensitivity of the legislature and executive to enact a UCC.
Secondly, the enunciation of the court can be held to be justified on the basis of “theory of notional status”. The “notional status” of Muslim was conferred for the limited purpose of deciding the validity of the second marriage because unless the second marriage is declared to be valid vis-à-vis the first marriage, the operation of section 494 does not come into picture. For that purpose it was essential to establish that the formalities and requirements, for a valid marriage, provided by the Muslim law were complied with. Once the marriage is held to be valid under the Muslim law, the “original status” of the converted husband is required to be considered for determining various civil and criminal consequences of the conversion. This is exactly what the Supreme Court did. We have provisions like “notional partition” of coparcenary property, having legal significance, though taxation law of India recognises only partition by metes and bounds . If both personal law and taxation laws can co-exist, despite there being a notional fiction, it is difficult to appreciate why the court cannot create a “notional status” to do complete justice. It is true that the legislature alone is entitled to legislate but the theory of separation of power is not rigidly followed in India and the Constitution of India has expressly provided certain instances where the judiciary can legislate in limited manner . This occasionally happens when there is a vacuum in the law and the Supreme Court exercises its “Constitutional powers” to do complete justice. The Supreme Court has gifted us with the “doctrine of basic structure” and “absolute liability doctrine” in the past by this process and the conferment of notional status is not a new process. It must be noted that the legislature can by law making create not only one but a chain of legal fictions by the same Act or by succeeding Acts . The concept of “continuing mandamus” is one such step taken by the Supreme Court to do complete justice. In the absence of a much needed law or legal fiction, judiciary is within its rights to adopt one. Thus, there seems to be nothing wrong, legally, equitably or morally, in the approach adopted by the Supreme Court in Sarla Mudgal’s case.
(3) The concept of voidness: The concept of voidness differs from case to case and from statute to statute. For instance, the concept of voidness under section 11 of HMA has a limited scope and application whereas it has wider scope under section 494 of IPC. If a marriage is void within the meaning of section 11 of the HMA it can have civil consequences only, whereas if it is void under section 494 it will have penal consequences. Further, the burden of proving the marriage to be void in case of section 11 is based on probabilities and not on beyond reasonable doubt, which is essential to establish guilt under section 494 of IPC. If we apply a uniform standard vis-à-vis voidness, then it may bring absurd results. For instance, if a Muslim husband enters into a fifth marriage then as per Muslim personal law it is merely irregular and not void. If this is the position then he will not be held liable for bigamy at all because he can dissolve any of his previous four marriages by invoking the law pertaining to talaq as provided by the “traditional Muslim law”. This is, however, not possible today because he cannot give divorce to any of his wives on an arbitrary basis and without attempting a reconciliation effort. Further, the concept of voidness under section 494 stands on a totally different footing and he will be liable for bigamy under that section.
It would be appropriate to mention at this stage that if a personal law is in conflict with a statutory law, then the former must give way to the latter. That is why section 4 of HMA, 1955, section 4 of HAS, 1956 and section 5 of Hindu Minority and Guardianship Act, 1956 would override the traditional Hindu law in case of conflict between these statutes and the traditional Hindu law. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from the rigor of the ancient Muslim law . Similarly, as per the Explanation to the second proviso to section 125 of Cr.P.C if a Muslim husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is too well known that a Mohammedan may have as many as four wives at the same time but not more. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section125 overrides the personal law, if there is any conflict between the two . Thus, the requirements of the contemporary society mandate that courts must adopt the “purposive and updating” interpretation of the existing provisions of various statutes. In its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need and treat it as current law .
(4) The doctrine of fair dealing: A person approaching the court must come not only with clean hands but also with clean heart, clean mind and clean objectives . Thus, the claim of a person approaching the court must be legally, equitably and morally sustainable. It must not be against the principle of natural justice, equity and good conscience. This philosophy is adequately reflected in the provisions of section 23 of HMA, 1955, which mandates that a person cannot take advantage of his own wrong.
Thus, a Hindu husband has a Constitutional right to convert to another religion, but he should not remarry again without dissolving his first marriage as per the “original law of marriage”. If he adopts culpable conversion, then he would be liable for bigamy under section 494 of IPC.
(5) The analogous support: If the law pertaining to an area is incomplete or insufficient, then recourse can be taken of statutes carrying similar provisions. It may be pointed out that section 17 of the HMA corresponds to section 43 and 44 of the SMA. It also corresponds to sections 4 and 5 of Parsi Marriages and Divorce Act, section 61 of the Indian Divorce Act and section 12 of the Matrimonial Causes Act, which is an English Act . These statutes can be very helpful in giving section 17 a meaningful interpretation. It must be noted that to give a “purposive and updating interpretation”, recourse of these provisions can be taken. Further, principles of common sense and justice, equity and good conscience can be appropriately utilised in this regard.
(6) Public interest and complete justice: The mandate of public policy, public interest and complete justice require certain modifications and improvements in the existing social structure and legal system. The net effect of the decision of Sarla Mudgal’s case was a positive step in the right direction.
Thus, looking from any angle, the decision of Sarla Mudgal’s case cannot be termed as erroneous or irrational. It requires a positive acknowledgement from the citizens of India and efforts should be directed towards bringing harmony, uniformity and fairness among various personal laws.