- (1.) I respectively agree with the views expressed by my esteemed Brother, Sethi, J., in the erudite judgment prepared by him, by which the writ petitions and the review petition are being disposed of finally. I, however, wish to add a few words of my own.
(2.) Smt. Sushmita Ghosh, who is the wife of Shri G. C. Ghosh (Mohd. Karim Ghazi) filed a Writ Petition (W. P. (C) No. 509 of 1992) in this Court stating that she was married to Shri G. C. Ghosh in accordance with the Hindu rites on 10th May, 1984 and since then both of them were happily living at Delhi. The following paragraphs of the writ petition, which are relevant for this case, are quoted below : "15. That around the 1st of April, 1992, the respondent No. 3 told the petitioner that she should in her own interest agree to her divorce by mutual consent as he had any way taken to Islam so that he may remarry and in fact he had already fixed to marry one Miss Vanita Gupta resident of D-152 Preet Vihar, Delhi, a divorcee with two children in the second week of July 1992. The respondent No. 3 also showed a Certificate issued by office of the Maulana Quari Mohammad Idris, Shahi Qazi dated 17th June, 1992 certifying that the respondent No. 3 had embraced Islam. True copy of the Certificate is annexed to the present petition and marked as Annexure-II. 16. That the petitioner contacted her father and aunt and told them about her husband's conversion and intention to remarry. They all tried to convince the respondent No. 3 and talk him out of the marriage but of no avail and he insisted that Sushmita must agree to her divorce otherwise she will have to put up with second wife. 17. That it may be stated that the respondent No. 3 has converted to Islam solely for the purpose of re-marrying and has no real faith in Islam. He does not practice the Muslim rites as prescribed nor has he changed his name or religion and other official documents. 18. That the petitioner asserts her fundamental rights guaranteed by Articles 15(1) not to be discriminated against on the ground of religion and sex alone. She avers that she has been discriminated against by that part of Muslim Personal Law which is enforced by the State Action by virtue of the Muslim Personal Law (Shariat) Act, 1937. It is submitted that such action is contrary to Article 15 (1) and is unconstitutional. 19. That the truth of the matter is that respondent No. 3 has adopted the Muslim religion and became a convert to that religion for the sole purpose of having a second wife which is forbidden strictly under the Hindu Law. It need hardly be said that the said conversion was not a matter of respondent No. 3 having faith in the Muslim religion. 20. The petitioner is undergoing great mental trauma. She is 34 years of age and is not employed anywhere. 21. That in the past several years, it has become very common amongst the Hindu males who cannot get a divorce from their first wife, they convert to Muslim religion solely for the purpose of marriage. This practice is invariably adopted by those erring husband who embrace Islam for the purpose of second marriage but again become reconvert so as to retain their rights in the properties etc. and continue their service and all other business in their old name and religion. 22. That a Woman's Organisation "Kalyani" terribly perturbed over this growing menace and increase in number of desertions of the lawfully married wives under the Hindu Law and splitting up and ruining of the families even where there are children and when no grounds of obtaining a divorce successfully on any of the grounds enumerated in Section 13 of the Hindu Marriage Act is available to resort to conversion as a method to get rid of such lawful marriages, has filed a petition in this Hon'ble Court being Civil Writ Petition No. 1079 of 1989 in which this Hon'ble Court has been pleased to admit the same. True copy of the order dated 23-4-90 and the order admitting the petition is annexed to the present petition and marked as Annexure-III (Collectively)." She ultimately prayed for the following reliefs : "(a) By an appropriate writ, order or direction, declare polygamy marriages by Hindus and non-Hindus after conversion to Islam religion are illegal and void; (b) Issue appropriate directions to respondent Nos. 1 and 2 to carry out suitable amendments in the Hindu Marriage Act so as to curtail and forbid the practice of polygamy; (c) Issue appropriate direction to declare that where a non-Muslim male gets converted to the "Muslim" faith without any real change of belief and merely with a view to avoid an earlier marriage or enter into a second marriage, any marriage entered into by him after conversion would be void; (d) Issue appropriate direction to respondent No. 3 restraining him from entering into any marriage with Miss Vanita Gupta or any other woman during the subsistence of his marriage with the petitioner; and (e) Pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
(3.) This petition was filed during the summer vacation in 1992. Mr. Justice M. N. Venkatachaliah (as he then was), sitting as Vacation Judge, passed the following order on 9th July, 1992 : "The writ petition is taken on board. Heard Mr. Mahajan, learned senior counsel for the petitioner. Issue notice. Learned counsel says that the respondent who was a Hindu by religion and who has been duly and legally married to the petitioner purports to have changed his religion and embraced Islam and that he was done only with a view to take another wife, which would otherwise be an illegal bigamy. Petitioner prays that there should be interdiction of the proposed second marriage which is scheduled to take place tomorrow, i.e. 10th July, 1992. It is urged that the respondent, whose marriage with the petitioner is legal and subsisting cannot take advantage of the feigned conversion so as to be able to take a second wife. All that needs to be said at this stage is that if during the pendency of this writ petition, the respondent proceeds to contract a second marriage and if it is ultimately held that respondent did not have the legal capacity for the second marriage, the purported marriage would be void.";