Shriya Family 6x4h5f

SYMBIOSIS INTERNATIONAL UNIVERSITY SCHOOL OF LAW, HYDERABAD

PROJECT ON FAMILY LAW

Conversion, Marriage and Bigamy SUBMITTED BY: SHRIYA CHANDANKAR (15010321157) SECTION- B COURSE- BA. LLB SEMESTER- III IN AUGUST, 2016 UNDER THE GUIDANCE OF

MRS. AMBRINA KHAN

CERTIFICATE

The Project entitled ‘Marriage- bigamy and conversion’ submitted to the Symbiosis Law School, Hyderabad for Family law as part of assessment is based on my original work carried out under the guidance Mra. Ambrina Khan. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

Signature of the candidate Date:

ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Ambrina Khan for her enlightening lectures on family law. I would also like to express my sincere gratitude to our teaching staff for guiding me the path towards gaining knowledge. I would also like to thank Symbiosis Law School, Hyderabad, and library for the wealth of information therein. I would like to thank Library Staff as well for their co-operation. I would also like to thank my batch mates who inspired, helped and guided me in making this project.

Name: - Shriya Chandankar Roll no.:- 15010321157 Semester: - III

ABSTRACT

This paper focuses on the violation of section 5(i) of Hindu marriage act,1955 which states about the offence which is called as bigamy (having been married twice with the first spouse living at the time of second marriage) and the another subject with which this project deals with is the conversion which by it means, changing of one’s religion from Hindu to any other with related itself to the article 25 to article 28 of Indian Constitutuion. For conversion 1, one of the landmark case is referred i.e.Vilayat Raj v. Sunita (AIR 1983 Del 351) 2 , the facts of the case are as follows: both of the parties were Hindus at the time of marriage, but they later got separated and husband filed for a divorce petition on the ground of cruelty, wife in the same petition he stated his religion as mahomedan to which the wife challenged his right to file a petition under Hindu marriage act stating that he is no longer hindu to this high court reversed the order. For bigamy under hindu marriage act,1955 we would be analyzing it to the depth because today it has been becoming one of the most burning issue within the society. As except for Islam, all personal law statutes within India imposes monogamy as a rule, and any such marriage in contravention of this provision is illegal3. The decision given by the court for the second wives who has to further suffer.4

1 Suresh babu v. V.P. Leela, bini v. Sundaram K.V. 2 Andal Vaidyanathan v. Abdul Allam Vaidya, AIR 1946 Madras 446.

3 Rameshwari devi v state of bihar; Smti PARVATHAMMA v. C Subramanyam

4 Mail today November 19,2009

SCOPE & OBJECTIVE

The objective of this project is to analyze cases of bigamy and conversion under hindu marriage act, 1955 and the applicability of the particular section in relation to the current case facts and explanation of it. The cases of conversion as stated above to be dealt is vilayat raj v. Sunita. and various other cases and their analysis which is for the better understanding of the subject.

RESEARCH METHODOLOGY

The methodology adopted is largely analytical and descriptive. Reliance has been placed largely on secondary sources like books, articles, judgments. The lectures and classroom discussion have been rich with valuable pointers and gave direction to the research.

FACTS OF THE CASE: 1. vilayat raj v. Sunita AIR 1983 Delhi 351, 23 (1983) DLT 434, ILR 1984 Delhi 201

At the time of marriage both the parties were hindu by religion, the husband , who is the petitioner in this case, converted to muslim religion but the suit was filled after the conversion by him under Hindu Marriage Act and under cruelty by wife as a ground of divorce under section 13 of the said act. 2. Naurang Singh v. Sapla Devi - AIR 1968 All. 1958. Smt. Sapla Devi made an application under Section 488, CrPC, for grant of maintenance on the ground that she was married to Naurang Singh, petitioner about two years ago and thereafter one year of the marriage the relation between them became strained and Naurang singh also married a second wife, namely Kalpa Devi, that about eight months ago he, dispossessed of her ornaments and cloths and turned her out of the house, and there after she started living with her

father. It was said that during this period, Naurang Singh completely neglected to maintenance at Rs. 30 per mensem from her husband.5

RESEARCH QUESTIONS

1. Is bigamy another kind of fraud that is being committed within the society? 2. Is it valid after conversion of religion to file for divorce under the act which was followed at the time of marriage?

5 Trailokya Mohan v State of Assam - AIR 1968, Assam 22

Analysis:

Is bigamy another kind of fraud that is being committed within the society? Bigamy under any law other than muslim law is not allowed. If anyone who commits bigamy, also commits a crime under the said provisions of the different law as under Hindu marriage act, bigamy is crime under section 5 and punishable under section 494 and section 495 of Indian penal code. Indian Penal Code defines fraud is an act or omission which is intended to cause wrongful gain to one person. and wrongful loss to the other, either by way of concealment of facts or otherwise, but in the case of bigamy there is wrongful gain of the person committing bigamy and wrongful loss to another person by concealment of facts that the person is already married. Our law gives bigamy as a ground on which any second marriage committed under hindu law can be declared null and void where as section 17 of the said act provides punishment for bigamy. While in parsi law any party who is parsi who has not changed his religion shall no contract any marriage under the parsi law or any other law in the lifetime of his or her wife or husband. The supreme court has laid down that proof of solemnization of second marriage in accordance with the essential religious rites applicable to parties is absolutely essential and a must for conviction for bigamy and that mere ission on the part of the accused that he had ed second marriage was not enough and that such ission is not evidence for the purpose of proving marriage in an adultery or bigamy case. The social disgrace ed with being a second spouse, the nonappearance of any lawful status to the relationship, and the huge torment of being duped into the marriage are without a doubt to a great degree discouraging for a lady. Despite the fact that there is no acknowledgment given to a second

spouse, because of the legal understanding of existing law as talked about above, she may have a few odds of getting . Without any unmistakable arrangements under the law, her odds of asserting her rights are to a great extent subject to the tact of the judges6. Indeed, even under the criminal law, it is to a great degree to demonstrate polygamy, as the marriage must7 be truly performed to demonstrate the offense of plural marriage. Typically these provisos in the law are misused by men to guard themselves in such cases.

Is it valid after conversion of religion to file for divorce under the act which was followed at the time of marriage? We have seen the situation in the case of vilayat raj v. Sunitawhere the court allowed the appeal. the hindu marriage Act is to be interpreted to imply that both the parties must be Hindus or atleast the petitioning party must be a Hindu, even on the date of presentation of the petition, this would make nonsense of the Act in certain cases. For instance, if subsequent to the solemnization of a marriage in compliance with section 5 of the Act, both the parties decided to embrace Islam, could the Hindu marriage be repudiated according to the Islamic tenets ? It would appear not. Though conversion is a ground of divorce and judicial separation under the hindu marriage act. The issue whether a marriage performed under hindu or any other law can be dissolved under the same law by a spouse who ceases its religion by conversion. To this delhi high court gave this explaination that religion is a matter of one's conscience and freedom of religion has been guaranteed under

6 Gopal Singh vs Surajbhain Singh : kedar nath gupta v. suprava, AIR 1963 ; Laxmi Ammal v. Ramaswamy naicker Kusum Dadarao Khandagale vs Dadarao Bajirao Khandagale Priya Bala Ghosh vs Suresh Chandra Ghosh

7 Banshidhar v Chhabi Chatterjee - AIR 1967 Patna 277

our Constitution8. A party has been married under the said act cannot be debarred from changing his religion. Of course, if he changes his religion, he must be prepared for the consequences thereof i.e. a likelihood of a petition under the law. Even if both the parties to a Hindu marriage get converted to a religion other than their own religion, their earlier marriage can be dissolved only under the provisions of their act which was followed at the time of marriage. To hold otherwise, would lead to a very unsettling situation for society. For, in the instant case, all that would have to do is to state that he is no longer belonging to a religion and therefore, not bound by the marriage contracted earlier. He could then proceed in any manner he liked and repudiate the marriage.

Conclusion: As per our issue and research is considered, in my opinion, bigamy which is our first issue when committed is an indirect fraud when there is concealment of the first marriage, as per parsi law if a parsi has converted to any other religion which allows bigamy for the sake of second marriage, it does not recognize such conversion. Both bigamy and conversion are related to each other while both can considered as a ground for divorce or judicial separation. Though there are certain limitations to the rights of the children born out of the second marriage but it the second marriage expect for in the muslim law, does not give any legal status or any matrimonial rights . Bigamy and conversion prevails in our society long before and the stigma of it still remains. somethimes it also happens that the first spouse does not comes to know about the second marriage, one of the reason of it is because we don’t have compulsory registration of marriage within our society. The bill is still pending in the parliament to make compulsory marriage registration. Hope in further more strong and modified law will prevail in our society.

8 Andal Vaidyanathan v. Abdul Allam Vaidya, AIR 1946 Madras 446.

BIBLIOGRAPHY 1. 2. 3. 4. 5.

Family law I (3rd edition) by professor Kusum (lexis nexis) SCC online Manupatra Judgment of the case Indian Kanoon