Authored By : Macpherson, Banerjee

Macpherson and Banerjee, JJ.

1. The petitioner in this case has been convicted by theAdditional Sessions Judge of 24-Pergunnahs under Section 494 of the IndianPenal Code of the offence of marrying again during the lifetime of her husband,and has been sentenced to rigorous imprisonment for one month. The sentence notbeing an appealable one, the case comes before us by way of revision.

2. The facts found by the Court below are shortly these. Thepetitioner and one Dukhi were originally both Hindus belonging to the Chattricaste, the former being, however, an illegitimate offspring of Chattri parents.They were duly married according to Hindu rites. Some time after the marriagethe petitioner Ram Kumari became a convert to Mahdmedanism, and after herconversion married a Mahomedan named Guzaffer.

3. Upon these facts the learned Sessions Judge has held thatthe petitioners marriage with Dukhi was a valid Hindu marriage, that it wasnot dissolved by her conversion to Mahomedanism, and that her subsequentmarriage to Guzaffer was consequently void; and he has accordingly convictedher under Section 494 of the Indian Penal Code.

4. It is now contended for the petitioner before us that theconviction is wrong: first, because the marriage between the petitioner andDukhi could not have been a valid marriage under the Hindu law by reason of theillegitimacy of the petitioner, and the consequent difference of caste betweenthe parties; secondly, because the former marriage became dissolved under theHindu law by the conversion of Ram Kumari to Mahomedanism; and thirdly, becausethe second marriage was not void by the Mahomedan law, which is the lawgoverning the parties to it, by reason of its taking place in the lifetime ofthe petitioners former husband.

5. We do not think there is any force in the firstcontention, regard being had to the facts of this case. In our opinionillegitimacy is no absolute disqualification for marriage, and where one orboth parties to a marriage are illegitimate, the correct view seems to us to beto regard the marriage as valid if they are in point of fact recognized bytheir castemen (as the parties in this case are in effect found to have been)as belonging to the same caste. In this view of the case it is unnecessary forus to say more upon this point.

6. In support of the second contention, namely, that themarriage of the petitioner with her first husband became dissolved under theHindu law by her conversion to Mahomedanism, we were referred to the case ofRahmed Beebee v. Rokeya Beebee 1 Nortons Leading cases on Hindu law p. 12.That case, no doubt, supports the petitioners view, but we are unable toaccept it as correct. It was argued that the Hindu law would regard theapostate wife as beyond its pale and as a person that is civilly dead. That maybe so as regards her civil rights, but we find no authority in Hindu law forthe position that a degraded person or an apostate is absolved from all civilobligations incurred before degradation or apostasy. So far as the matrimonialbond is concerned, such a view would, we think, be contrary to the spirit ofthe Hindu law which regards that bond as absolutely indissoluble (see Manu V,156-158; IX, 46). This view is in accordance with the case of The Government ofBombay v. Ganga I.L.R. 4 Bom. 330 and also with those of Administrator-Generalof Madras v. Anandachari I.L.R. 9 Mad. 467 and In re Millard I.L.R. 10 Mad.218.

7. It remains now to consider the third contention for thepetitioner, which raises important questions not altogether free fromdifficulty. The conviction of the petitioner under Section 494 of the IndianPenal Code can stand only if her second marriage is void by reason or itstaking place during the life of her former husband. Now the validity orotherwise of this second marriage, the parties to which are both Mahomedans,must be tested with reference to the Mahomedan law; and as that law does notallow a plurality of husbands, the second marriage would be void or validaccording as the first one was or was not subsisting at the time. It was contendedfor the petitioner that her marriage with her Hindu husband became dissolvedunder the Mahomedan law by her conversion to the Mahomedan religion, and insupport of this contention we have been referred to the Hedaya, Bk. II, Ch. V(Gradys edition of Hamiltons translation, pp. 64-65), and Baillies Digest ofMahomedan Law (2nd edition, pp. 180-181). According to these authorities, whenthe wife becomes a convert to the Mussalman faith, and the husband is anunbeliever, the magistrate is to call upon him to embrace Islam, and if he doesso, the woman continues his wife, but if he refuse, the Magistrate mustseparate them; and if the wife embrace the Mahomedan faith in a foreigncountry, and the husband is an unbeliever, separation takes place on the expirationof three terms of the wifes courses. These rules may be said to favourconversion to Islam; but the former meets the obvious requirements of justiceby allowing an equal freedom of conscience to both parties and giving duenotice to the non-converted husband, and is somewhat similar to the provisionlaid down in Act XXI of 1866 in the case of native converts to Christianity,while the latter rule is justified in the Hedaya upon the express ground ofnecessity, as requiring the other party to embrace the faith is impracticablein a foreign country.

8. The second marriage in this case has taken place withoutany notice to the former husband.

9. If, therefore, it could be held that British India was aforeign country within the meaning and intention of the foregoing rules, itwould have been necessary to take further evidence to ascertain whether thesecond marriage took place before or after the expiration of three terms of thewifes courses, as the evidence on the record is not sufficient to clear upthis point. But we cannot hold that British India is a foreign country withinthe meaning and intention of the above rules, so that a Hindu marriage wouldhere become dissolved by the conversion of the wife to Islam, on the expirationof a certain interval without any notice to the husband.

10. There does not exist in the case of persons residing inBritish India that necessity upon which alone is based the latter of the tworules referred to above, by which the prior marriage of a convert to Islam issaid to become dissolved without any order of a Court or notice to the otherside. In British India, to use the words of Lord Justice JAMES in Skinner v.Order 14 Moores I.A. 309 "all or almost all the great religiouscommunities of the world exist side by side under the impartial rule of theBritish Government. While Brahmin, Buddhist, Christian, Mahomedan, Parsee andSikh are one nation enjoying equal political rights and having perfect equalitybefore the tribunals, they co-exist as separate and very distinct communitieshaving distinct laws affecting every relation of life." The petitioner didnot give any notice to her former husband, nor did she seek the intervention ofthe Courts of Justice as she might have done by instituting a suit after noticeto the husband for a declaratory decree that under the Mahomedan law, which washer personal law since her conversion, her former marriage was dissolved andthat she was competent to marry again. That being so, we do not think that therule of Mahomedan law which declares a convert to Mahomedanism in a foreigncountry absolved from any prior matrimonial tie upon the expiration of acertain time, without notice to his or her spouse, can have any applicationhere. A sacred and solemn relation like marriage cannot, we think, be regardedas terminated simply by the change of faith of either spouse without notice tothe other, or the intervention of a Court of Justice.

11. The questions that arise in this case are, as we havealready observed, not free from doubt and difficulty, but after giving our bestattention to them, the conclusion we arrive at is that the first marriage ofthe petitioner was not dissolved by reason of her change of faith according tothe Hindu law or the Mahomedan law, and that her second marriage was inconsequence void. In this view of the case we must reject the application andaffirm the conviction and sentence complained against.

.

In Re: Ram Kumari(18.02.1891 - CALHC)