Author: TYC

ISSUE:

Where a non-Muslim gets converted to the Muslim faith without any real change in belief and merely with a view to avoid an earlier marriage or to enter into a second marriage, in such a case, whether the marriage entered into by him after conversion would be void and whether the apostate husband would be guilty of the offence of Section 494 of the Indian Penal Code?

Whether apprehension of a person for charges of bigamy after religious conversion is a breach of the fundamental right to life and liberty due to the Sarla Mudgal judgement or not?

Whether the Sarla Mudghal judgement which criminalizes the second marriage after conversion to Islam during the subsistence of previous marriage violates Article 25 of the Indian Constitution which talks about the right to freedom of religion?

RULE:

Mere conversion does not bring to an end the marital ties unless a decree for divorce on that ground is obtained from the Court. Till a decree 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, in spite of his conversion to some other religion, would be liable to be prosecuted for the offence of bigamy.

Even under the Muslim Law, a plurality of marriages is not unconditionally conferred upon the husband. It would, therefore, be doing injustice to Islamic Law to urge that the convert is entitled to practice bigamy notwithstanding the continuance of his marriage under the law to which he belonged before conversion.

The violators of law who have contracted the second marriage cannot be permitted to urge that such marriage should not be made the subject matter of prosecution under the general Penal Law. The Islam which is pious, progressive, and respected religion with a rational outlook cannot be given a narrow concept as has been tried to be done by the alleged violators of the law.

ISSUE:

Whether a Hindu Marriage governed by the provisions of the Hindu Marriage Act, 1955 where the parties to the marriage or either of them are below their respective ages as set out in Clause (iii) of Section 5 of the Hindu Marriage Act, is void ab initio and is no marriage in the eyes of law.

RULE:

Section 5 of the Hindu Marriage Act, Conditions for a Hindu Marriage.

ISSUE:

What is the legal status of marriage in contravention of legally prescribed age?

Whether on account of minority of spouse, the marriage entered into is illegal and void ab initio

Whether young girls, who get married and have reached the age of discretion but not attained the age of majority can be sent in a protective custody to a remand home against their will?

RULE:

A marriage solemnized in contradiction of the age said in Section 5 (iii) of The Hindu Marriage Act, 1955, with respect to the age restriction, made it only culpable under Section 18 and the marriage solemnized would stay valid, enforceable, and recognizable in Courts of law.

There was no procurement of law, which allowed minors to be kept in protective homes against their want. Regardless of the possibility that the minor was about 15 years of age, her wishes ought to be determined before putting her in the authority of any individual or institution.

The powers under Articles 226 and 227 are wide and comprehensive subject to self- imposed restrictions.

ISSUE:

Whether the husband and wife share a Sapinda relationship that would nullify their marriage under section 11 of the Hindu marriage act?

Divorce on the grounds of cruelty, desertion, and schizophrenia under Section 13(1)(a) and 13(1)(iii) of the Hindu Marriage Act?

Whether the husband can sue for an injunction restraining the wife from coming into the matrimonial home which was his joint family property?

RULE:

The sapinda relationship defined under Section 3(f) and the prohibited relationship under Section 3(a) of Hindu Marriage Act:

Section 3. (f) (i) "sapinda relationship" with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth(inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation;

(ii) two persons are said to be "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

The provisions of Section 5(v) read with Section 3(f) of the Hindu Marriage Act shows that their marriage would be void unless there is a custom in their community to the contrary.