Jafar Abbas Rasoolmohammad Merchant vs State Of Gujarat &

R/CR.MA/14361/2010 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC. APPLICATION NO. 14361 of 2010

With

SPECIAL CRIMINAL APPLICATION NO. 106 of 2010

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA ==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES

2 To be referred to the Reporter or not ?

YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India NO or any order made thereunder ?

Circulate among the Judicial Officers of the State

========================================================== JAFAR ABBAS RASOOLMOHAMMAD MERCHANT....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:

MR GM JOSHI, ADVOCATE for the Applicant(s) No. 1 MR ANKIT SHAH, ADVOCATE for the Respondent No.2 MR MTM HAKIM, AS AMICUS CURIAE MR KL PANDYA, APP for the Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 05/11/2015

Page 1 of 72

HC-NIC Page 1 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

CAV COMMON JUDGMENT

1 Since the issues involved in both the captioned petitions are more

or less the same, those were heard analogously and are being disposed

of by this common judgment and order.

● CRIMINAL MISCELLANEOUS APPLICATION NO.14361 OF 2010:

2 By this application under Section 482 of the Code of Criminal Procedure,

1973, the applicant - original accused seeks to invoke the inherent powers of

this Court, praying for quashing of the proceedings of the Criminal Case

No.7307 of 2004 pending in the Court of the learned Chief Judicial Magistrate,

Bhavnagar, arising from the First Information Report lodged by the respondent

No.2 herein registered with the Bhavnagar Mahila Police Station as C.R. No.I­13

of 2004 for the offence punishable under Sections 498A, 323, 504, 506(2), 494,

406, 420 read with Section 114 of the Indian Penal Code, and also under

Sections 3 and 7 of the Dowry Prohibition Act.

3 The case of the prosecution may be summarized as under:

3.1 The respondent No.2 herein - original first informant, a native of

Bhavnagar, got married to the applicant herein, a resident of Raipur,

Chhattisgarh on 03.12.1997. In the wedlock, a daughter named 'Alaiya'

was born on 25.08.2001. The first informant, after marriage, started

residing in a joint family at her matrimonial home, which included her

brother­in­law, mother­in­law, father­in­law and sister­in­law

Page 2 of 72

HC-NIC Page 2 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

respectively. It is her case that for a period of about one year from the

date of marriage, her matrimonial life was happy. However, thereafter,

the husband and her in­laws started harassing her physically and

mentally. It is alleged that the husband and her in­laws started

demanding for dowry. It is alleged that while she had conceived, she

was mercilessly beaten up by the husband and his family members. As a

result, she suffered a miscarriage. She has also alleged that once there

was an attempt on the part of the husband and his family members to

kill her by pouring kerosene and setting her on fire. According to the

first informant, she kept on suffering at the hands of the husband and

his family members without any complaints about the same to her

parents who were residing at Bhavnagar. It is her case that one day, the

applicant herein called up the brother of the first informant, namely,

Mohammad Raza and asked him to come to Raipur and take his sister

i.e. the first informant along with him back to Bhavnagar. It is the case

of the first informant that she returned to her parental home at

Bhavnagar along with her brother in June 2001. After two months, the

first informant gave birth to a baby girl named 'Alaiya'. It is alleged that

thereafter, neither the husband nor any of the family members of the

husband made any inquiry about her and none came to Bhavnagar to

take her back to her matrimonial home at Raipur, Chhattisgarh. It is her

case that while she was at her parental home at Bhavnagar, she learnt

Page 3 of 72

HC-NIC Page 3 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

that her husband i.e. the applicant herein, without seeking her consent,

got married for the second time with a lady named 'Nargish Banu' at

Mumbai. It is her case that although the first marriage was in

subsistence, the applicant got married for the second time and a child

was also born in the second wedlock. Accordingly, on 23.04.2004, the

First Information Report was lodged by the first informant at the Mahila

Police Station, Bhavnagar. It is the case of the first informant that her

husband i.e. the applicant herein has committed the offence of bigamy

punishable under Section 494 of the Indian Penal Code, Section 498A of

the Indian Penal Code for treating her with cruelty, Section 323 of the

Indian Penal Code for causing hurt, Sections 406 and 420 of the Indian

Penal Code for retaining the 'Stridhan', Sections 504 and 506(2) of the

Indian Penal Code for threatening her with life, and Sections 3 and 7 of

the Dowry Prohibition Act for demanding dowry.

4 Having regard to the complex issue of the Personal Law of Muslim

raised in this application, a Coordinate Bench of this Court requested Mr.

MTM Hakim, the learned counsel to assist the Court as amicus curiae.

5 The connected Special Criminal Miscellaneous Application has

been filed questioning the legality and validity of the impugned order

passed by the Court below as regards the territorial jurisdiction of the

Bhavnagar Court to try the case. To put it in other words, the applicant

Page 4 of 72

HC-NIC Page 4 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

herein preferred an application before the trial Court raising the issue of

jurisdiction to try the case at Bhavnagar, because according to the

applicant, no part of the cause of action even remotely could be said to

have arisen within the State of Gujarat. I shall deal with this petition a

little later.

6 SUBMISSIONS ON BEHALF OF THE APPLICANT:

6.1 Mr. Gautam Joshi, the learned counsel appearing for the applicant

submitted that even if the entire case of the prosecution is accepted as

true, none of the ingredients to constitute the offence of bigamy

punishable under Section 494 of the Indian Penal Code are spelt out. He

submitted that the parties are governed by the Muslim Personal Law.

The Personal Law permits the Muslim husband to get married for four

times. In other words, a Muslim can legally keep four wives. According

to Mr. Joshi, Section 494 of the IPC provides that whoever, having a

husband or wife living, marries in any case in which such marriage is

void by reason of its taking place during the life of such husband or wife,

would be guilty of the offence of bigamy. According to Mr. Joshi, an

offence of bigamy could be said to be committed only if the second

marriage in point of time during the subsistence of the first marriage is

void. According to Mr. Joshi, the Muslim Personal Law provides that the

husband can have four wives. If a Muslim husband gets married for the

Page 5 of 72

HC-NIC Page 5 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

second time, then such marriage would not be a void marriage and,

therefore, no offence under Section 494 of the IPC could be said to have

been committed.

6.2 Mr. Joshi, in support of his submissions, relied upon the following

three decisions of the Supreme Court:

(1) Sarla Mugdal, President, Kalyani v. Union of India, [1995 (3) SCC 635],

(2) Chand Patel vs. Bismullah Begum, [2008(4) SCC 774]

(3) Lily Thomas v. Union of India, [2000(6) SCC 224].

6.3 Mr. Joshi also placed reliance on a decision of the Kerala High

Court in the case of Abdulla v. Noorjahan, [1987 Kerala Law Journal

787].

7 On the other hand, this application has been vehemently opposed

by Mr. Ankit Shah, the learned counsel appearing for the respondent

No.2. He submitted that there are two petitions filed by the applicant

herein. In the application filed under Section 482 of the Code, the only

issue raised is with regard to the offence of bigamy. Whereas, the other

offences are concerned, the case of the applicant is that even if the

necessary ingredients to constitute the offence are spelt out, the Court at

Bhavnagar has no territorial jurisdiction to try the case. According to Mr.

Page 6 of 72

HC-NIC Page 6 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Shah, the Court at Bhavnagar has the territorial jurisdiction to try the

case and even the offence of bigamy punishable under Section 494 of the

IPC could be said to have been made out. Mr. Shah submitted that the

Indian Penal Code does not differentiate between a Muslim accused and

an accused of any other community. The Indian Penal Code is a general

law which provides for the punishment of a particular offence. He

submitted that assuming for the moment that the Personal Law of the

Muslim permits a husband to get married for four times i.e. keep four

wives, the Muslim Law does not say that the husband can marry for

second time, or third time, or fourth time by treating his first wife or

second wife, or third wife cruelly and driving them out of the

matrimonial home. He submitted that the philosophy underlying the

Muslim Personal Law which provides or rather permits a husband to

have maximum four wives is being thoroughly misused and in the name

of the Personal Law governing the field, a guilty husband cannot escape

from the punishment provided under Section 494 of the IPC.

8 Mr. Shah submitted that there is no merit in the contention raised

on behalf of the applicant as regards the territorial jurisdiction to try the

case. He submitted that the law does not expect or ask a helpless wife to

initiate prosecution only at the place where her matrimonial home is

situated. He submitted that in the present case, his client was driven out

of her matrimonial home at a point of time when she was pregnant. She

Page 7 of 72

HC-NIC Page 7 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

was forced to return to her parental home at Bhavnagar. He submitted

that the two States are altogether different. The matrimonial home is at

Chhattisgarh, whereas the parental home is in Gujarat. How can the law

expect a helpless lady to institute and continue with the prosecution in

the State of Chhattisgarh, where she has no shelter of her own or any of

her relative? The law does not expect her to travel all the way from

Gujarat to Chhattisgarh, for the purpose of investigation and trial. Mr.

Shah submitted that the offence punishable under Section 498A of the

IPC is a continuing offence, and if a wife is being harassed and driven

out of her matrimonial home and is forced to return to her parental

home, then the consequences of the acts of cruelty could be said to have

ensued at her parental home. He submitted that the consequence of the

act of cruelty on the part of the husband could be said to have ensued at

Bhavnagar and by virtue of the provisions of Section 179 of the Cr.P.C.,

the Court at Bhavnagar would definitely have the jurisdiction to try the

case.

9 Mr. Shah, the learned counsel appearing for the respondent No.2

relied upon the following decisions:

(1) Rajendra Ramchandra Kavalekar v. State of Maharastra, [2009 (11) SCC 286]

(2) Asit Bhattacharjee v. Hanuman Prasad Ojha, [2007 (5) SCC 786]

Page 8 of 72

HC-NIC Page 8 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

10 At this stage, I may point out that the applicant has filed an

affidavit inter alia stating as under:

"I, Jafar Abbas Rasulmohammed Merchant, Muslim, Adult, residing at Fawwara Chowk, Bayron Bazar, Raipur, Chhattisgarh do hereby solemnly affirm and state on oath that;

1. I have preferred the present petition for the prayers made in the memo of the petition. During the pendency of the proceedings, I have come across an additional fact that has a direct bearing on the issues involved in the present proceedings. Therefore, I am filing the present affidavit to bring this fact on record.

2. I state that the respondent Sajedabanu Merchant has contracted marriage with Mr. Sarif Purshottam Khan of Mumbai on 17 December 2008. Not only that, she was divorced from the said marriage on 21 May 2009. As a result of the said divorce, the said Mr. Sarif Purshottam Khan had paid to the respondent Sajedabanu an amount of Rs.2,00,000/­ towards maintenance and the amount of Rs.38,786/­ towards Mehar and the maintenance for the period of Iddat. Copies of the marriage certificate, divorce deed and a declaration sworn on affidavit by the respondent Sajedabanu and writing given by the respondent's father and brother respectively are produced herewith and marked as Annexure­AA1 collectively.

3. I respectfully state that though it was the duty of the respondent to disclose before this Honourable Court that she had remarried and was divorced after receiving the amount of permanent alimony from her second husband, she has chosen to suppress these material facts from this Honourable Court. As these facts have come to my knowledge, I have brought it to the notice of this Honourable Court. These facts are gathered by my brother Zafar Abbas by visiting Mr. Sarif Khan at Navi Mumbai. Mr. Sarif Khan has personally given these papers to my brother, who had also visited the local Jamaat for confirming the same and these facts being confirmed, I am in a position to state before this Honourble Court that respondent Sajedabanu had contracted second marriage and is also divorced from the same."

11 It appears from the contents of the affidavit that the respondent

No.2 got married on 17.12.2008 with one Mr. Saif Purshottam Khan, at

Mumbai. It appears that the marriage of the respondents No.2 with Mr.

Page 9 of 72

HC-NIC Page 9 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Khan lasted only for few months. The marriage was dissolved according

to the Muslim Personal Law. This fact has not been disputed by Mr.

Shah, the learned counsel appearing for the respondent No.2.

12 Mr. MTM Hakim, the amicus curiae, submitted that the expression

"marries in any case in which, such marriage is void by reason of its

taking place during the life of such husband or wife" means that the

person who marries a second time during the life of his or her first

spouse, would be punished under Section 494 of the IPC only if such

second marriage is not recognized by the Personal Law by which he or

she is governed. Section does not require that the second marriage with

the person concerned must otherwise be valid according to the law. Mr.

Hakim submitted that the expression, referred to above, was intended to

exclude from the provisions of Section 494 of the IPC, persons on whom

the law, by which they are governed in the matter of marriage, does not

enjoin monogamy. In other words, if under the Personal Law, a man is

permitted to have more than one wife living at the same time he would

not be guilty of an offence under Section 494 of the IPC. Mr. Hakim

submitted that under the Mohammedan Law, a person is permitted to

have four wives at a time.

13 Mr. Hakim submitted that if a Muslim, after marrying one woman,

Page 10 of 72

HC-NIC Page 10 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

marries three more during the lifetime of the first, he would be not

guilty under Section 494 of the IPC, but in the case of persons on whom

monogamy is enjoined by their Personal law, such as Christians, Parsis,

Hindus, Sikhs, they would not be at liberty to go through a second

marriage during the life of the first wife or husband without committing

the offence under Section 494 of the Indian Penal Code.

14 Mr. Hakim submitted that the marriage under the Muslim Law

(Nikah) is a civil contract entered into between two persons of opposite

sexes with a view to mutual enjoyment and legalization of children. He

submitted that the Islamic concept of marriage essentially differs from

the Hindu concept under which the marriage is not a mere civil contract

but is a sacrament (Samskara). He submitted that the Muslim marriages

can be classified into three categories: (1) Sahil, i.e., a valid marriage,

(2) Batil, i.e., a void marriage, and (3) Fasid, i.e. a irregular marriage.

15 Mr. Hakim explained that the second marriage or third marriage

or fourth marriage by a Muslim would not fall within the category of

"Batil" i.e. a void marriage. He further explained that a Muslim can have

maximum four wives, but if he marries for the fifth time, then such

marriage would fall within the ambit of "Fasid" i.e. a irregular marriage.

16 According to Mr. Hakim, in the present case also, the second

Page 11 of 72

HC-NIC Page 11 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

marriage of the applicant herein with one 'Nargish Banu' during the

subsistence of the first marriage with the respondent No.2 would not fall

within the ambit of "Batil" i.e. a void marriage. In such circumstances,

according to Mr. Hakim, the offence of bigamy punishable under Section

494 of the IPC could not be said to have been made out. Mr. Hakim laid

much emphasis on the word "void" as contained in Section 494 of the

IPC, and the word "void" should be read with "Batil", which is one of the

categories of the Muslim marriages.

17 However, Mr. Hakim, the learned amicus, raised a very important

issue for my consideration. The issue has a direct relation with the

philosophy underlying the Muslim Personal Law, which permits the

Muslim to have separate four wives. Mr. Hakim, referring to number of

books on the Mohammedan Law by different learned authors, submitted

that in the 'Quran' itself, it has been provided that a Muslim can have

upto four wives, provided he is assured that he would be able to do

equal justice with all the four wives. The 'Quran' provides that if a

Muslim is not able to treat all the four wives equally with love and

affection, then he should not get married for the second or third or

fourth time. According to Mr. Hakim, such was the message of the Holy

prophet Mohammad, which is reduced into writing in the holy book,

known as 'Quran'. The case in hand, according to Mr. Hakim, is quite

otherwise. Mr. Hakim submitted that the Personal Law does not permit a

Page 12 of 72

HC-NIC Page 12 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Muslim to treat one wife cruelly, drive her out of the matrimonial home

and then get married for the second time. However, according to

Mr.Hakim, there is no law in this country, which takes care of this

situation. There is no uniform Civil Code in this country. He submitted

that the Parsis are governed by the Parsi Marriage and Divorce Act 1936;

the Hindus are governed by the Hindu Marriage Act, 1955; the

Christians are governed by the Christian Marriage Act 1872, and then

there is the Special Marriage Act, 1954, and the Foreign Marriage Act

1969. Mr. Hakim submitted that the anti­bigamy provisions of the Indian

Penal Code apply to all those whose marriages are governed by the

above referred legislative enactments all of which regard a second

bigamous marriage, by a man or woman as void.

18 Mr. Hakim made available the English translation of certain versus

of the holy book 'Quran'.

19 Mr. Hakim read some of the passages from the book 'TAFSIR IBN

KATHIR' (Abridged) Volume - 2, and the 'Quran' translated and edited

by Zafar Ishaq Ansari.

● ANALYSIS:

20 Having heard the learned counsel appearing for the parties, the

learned amicus and the learned APP appearing for the State and having

gone through the materials on record, including the Personal Law of the

Page 13 of 72

HC-NIC Page 13 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Muslims, the only question that falls for my consideration is whether the

offence of bigamy under Section 494 of the IPC is made out.

21 The marriage laws other than those of the Muslims, now in force

in the country, prohibit bigamy and treat a bigamous marriage as void.

For this reason, a marriage to which in all these laws (enumerated

above) apply attracts the anti­bigamy provisions of the Indian Penal

Code which are applicable to a bigamous marriage if it is void under the

governing law for the reason of being bigamous. For a long time past,

the married men whose personal law does not allow bigamy started

resorting to the unhealthy and immoral practice of converting to Islam

for the sake of contracting a second bigamous marriage under a belief

that such conversion enables them to marry again without getting their

first marriage dissolved.

22 The Supreme Court outlawed such practice by its decision in the

case of Sarla Mudgal v. Union of India, [AIR 1995 SC 1531]. The

ruling was re­affirmed five years later in Lily Thomas v. Union of India

[2000 (6) SCC 224]. Although, these cases related to the marriages

governed by the Hindu Marriage Act, 1955, yet their ratio decidendi

would obviously apply to all marriages whose governing laws do not

permit bigamous.

Page 14 of 72

HC-NIC Page 14 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

23 BIGAMY IN GENERAL:

23.1 The Chapter on Offences relating to Marriage under the Indian

Penal Code of 1860 contains two provisions relating to bigamy - the first

of these applicable to married persons marrying again without

concealing from the second spouse the fact of the first marriage, and the

second to those who do so by keeping the second spouse in the dark

about the first marriage. Section 494 of the Code reads as:­

"Whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception. ­­ This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."

Coming to the cases of bigamy where a person indulges in it by

deceiving the second spouse, Section 495 of the Indian Penal Code says:­

"Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".

It will be seen that the application of these provisions of the

Indian Penal Code would be attracted only if the second marriage is

Page 15 of 72

HC-NIC Page 15 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

void, for the reason of being bigamous, under the law otherwise

applicable to the parties to a particular case; but not so otherwise.

As such the anti­bigamy provisions of the Indian Penal Code apply

to all those whose marriages are governed by any of the following

legislative enactments all of which regard a second bigamous marriage,

by a man or woman, as void :

(i) Special Marriage Act 1954

(ii) Foreign Marriage Act 1969

(iii) Christian Marriage Act 1872

(iv) Parsi Marriage and Divorce Act 1936

(v) Hindu Marriage Act 1955

As regards the Muslims, the IPC provisions relating to bigamy

apply to women - since Muslim law treats a second bigamous marriage

by a married woman as void - but not to men as under a general reading

of the traditional Muslim law men are supposed to be free to contract

plural marriages. The veracity of this belief, of course, needs a careful

scrutiny.

The anti­bigamy provisions of the Indian Penal Code would not

apply also to the tribal men and women if their customary law and

practice does not treat their plural marriages as void. It has been

judicially affirmed that Section 494 of the Indian Penal Code will not

apply to the members of the Scheduled Tribes unless the tribal law

applicable to a case treats a bigamous marriage as void. See, for

Page 16 of 72

HC-NIC Page 16 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

instance, Surajmani Stella Kujur (Dr.) v Durga Charan Hansdah AIR

2001 SC 938.

24 NATURE OF OFFENCE:

24.1 The offence under Section 494 of the Indian Penal Code is non­

cognizable, bailable and compoundable by the aggrieved spouse with the

permission of the court. That the offence is compoundable by mutual

consent of the parties was affirmed in Narotam Singh v State of Punjab

AIR 1978 SC 1542.

In the State of Andhra Pradesh, however, by a local amendment of

1992 the offence under Section 494 was made cognizable, non­bailable

and non­compoundable.

The offence under Section 495 of the Penal Code is non­cognizable,

bailable and - unlike that under Section 494 ­­ non compoundable.

Notably, in Andhra Pradesh, this offence too has been made cognizable

and non­bailable.

25 IPC PROVISIONS IN ACTION:

Bigamy by women is very exceptional in the society, but bigamy

by men is indeed rampant. However, since the anti­bigamy provisions of

the Indian Penal Code are (except in Andhra Pradesh) non­cognizable

Page 17 of 72

HC-NIC Page 17 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

most cases of the offence of bigamy remain unpunished. The aggrieved

first wives of all communities silently suffer the miseries caused by the

practice of bigamy.

There is also a trend in the society to use devices, supposed to be

'legal', to escape application of the IPC provisions. Among these are

holding incomplete and defective marriage ceremonies, non­marital

cohabitation and fake change of religion.

26 BIGAMY UNDER CIVIL MARRIAGES LAW:

26.1 Special Marriage Act 1954: Monogamy is the rule under the

Special Marriage Act 1954. Among the conditions for solemnization of a

civil marriage spelt out in the Act the foremost is that "neither party has

a spouse living" - Section 4 (a).

In respect of bigamy there are two different penal provisions

under the Act. If a person already married, under whatever law,

fraudulently contracts a civil marriage the provision of Section 43 of the

Act reproduced below will apply:

"Save as otherwise provided in Chapter III, every person who, being at the time married, procures a marriage of himself or herself to be solemnized under this Act shall be deemed to have committed an offence under section 494 or section 495 of the Indian Penal Code, as the case may be, and the marriage so solemnized shall be void."

The other provision contained in Section 44, reproduced below, is

meant for a person married under the Special Marriage Act who

Page 18 of 72

HC-NIC Page 18 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

contracts a second marriage under any other law:

"Every person whose marriage is solemnized under this Act and who, during the lifetime of his or her wife or husband, contracts any other marriage shall be subject to the penalties provided in Section 494 and Section 495 of the Indian Penal Code, for the offence of marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be void."

Chapter III of the Act, referred to in Section 43 reproduced above,

provides the facility of turning a pre­existing marriage solemnized as per

religious or customary rites into a civil marriage by registering it under

this Act. This facility is also available subject to the condition that

"neither party has at the time of registration more than one spouse

living" - Section 15 (b). If a person having more than one spouse living

fraudulently registers either of his marriages under this Act he will be

guilty of the offence of knowingly making a false statement punishable

under Section 45 of the Act.

The anti­bigamy provisions of the Special Marriage Act apply to

every marriage contracted under its provisions irrespective of the

religion of the parties. A court has specifically held that if a Muslim

contracts a civil marriage under the Special Marriage Act instead of his

personal law the anti­bigamy provisions of the Act will apply to him. See

S. Radhika Sameena v. S.H.O., Habeeb Nagar Police Station, Hyderabad

1997 CriLJ 1655 (AP).

However, if a person who has registered his pre­existing marriage

Page 19 of 72

HC-NIC Page 19 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

under the Special Marriage Act in terms of Section 15 contracts a second

bigamous marriage, it is not clear from the language of the Act if the

provision of Section 44 reproduced above will apply to the case. The

words "Save as otherwise provided in Chapter III" in Section 43 are not

clear in their meaning. In the fitness of things, since ex post facto

registration of a religious or customary marriage turns it into a civil

marriage for all purposes, the anti­bigamy provisions of the Act should

also apply to such a case.

26.2 Foreign Marriage Act 1969: This Act facilitates solemnization of

civil marriages in foreign countries between two Indians or an Indian

and a foreigner. Monogamy is the rule under this Act as well, the first

condition for the solemnization of marriage under its provisions being

that "neither party has a spouse living" - Section 4 (a).

If the condition of monogamy and the other conditions mentioned

in Section 4 of the Act are met, a pre­existing marriage between two

Indians or an Indian and a foreigner solemnized in a foreign country

under a local law can be registered under the Foreign Marriage Act,

upon which it shall be deemed to have been solemnized under the said

Act - Section 17.

The anti­bigamy penal provision of Section 19 of the Foreign

Marriage Act, reproduced below, applies to both marriages originally

Page 20 of 72

HC-NIC Page 20 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

solemnized under its provisions and those solemnized as per a foreign

law but later registered under the Foreign Marriage Act:

"(1) Any person whose marriage is solemnized or deemed to have been solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code, and the marriage so contracted shall be void.

(2) the provisions of sub­section (1) apply also to any such offence committed by any citizen of India without and beyond India."

The anti­bigamy provisions of the Foreign Marriage Act, like those

of the Special Marriage Act 1954, are applicable to all cases governed by

it, irrespective of the religion of the parties.

26.3 Effect of change of religion: Post­marriage conversion by either

party to a civil marriages has no legal consequences - the convert

remains subject to the provisions of the Special Marriage Act 1954 or the

Foreign Marriage Act 1969, as the case may, and neither the converting

spouse can contract another marriage nor the other spouse can seek

divorce on the ground of change of religion.

If either party in such a situation marries again after changing

religion, but without obtaining divorce or a decree of nullity, his or her

conduct will still attract anti­bigamy provisions of the Indian Penal Code.

27 BIGAMY UNDER COMMUNITY - SPECIFIC LEGISLATION:

Page 21 of 72

HC-NIC Page 21 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

27.1 Christian Marriage Act 1872: As is well known, the Christian

religion prohibits bigamy. In India Christian marriages are governed by

an old Act of the British period - the Christian Marriage Act 1872. It

applies to all sorts of marriages among the Christians of India and

requires them to be solemnized under its provisions not only when both

parties are Christian but also when one of them is a Christian and the

other a non­Christian (see Section 4 of the Act).

Marriages can, under this Act, be either solemnized by a 'Minister

of Religion' of a Church, or by or in the presence of a Marriage Registrar.

In the first case, the notice to be given for marriage by either party

is to be accompanied by a declaration of the parties' marital status at the

time of marriage, and the prescribed form for this purpose mentions only

two possibilities - the person giving a notice may be either a

bachelor/spinster or widower/widow. A certificate of compliance with

the notice requirement is to be issued upon the applicant filing a

declaration affirming that "he or she believes that there is not any

impediment of kindred or affinity or other lawful hindrance, to the said

marriage;" and the marriage shall be solemnized only after such a

certificate has been issued (Sections 12, 18, 25 & Schedule I).

For obtaining a certificate in the case of a marriage solemnized by

or in the presence of a Marriage Registrar, instead of filing a written

declaration the person giving the notice has to take an oath to the same

Page 22 of 72

HC-NIC Page 22 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

effect - that "he or she believes that there is not any impediment of

kindred or affinity or other lawful hindrance, to the said marriage"

(Sections 41­42).

The marriage of a native Christian can be certified without the

preliminary notice mentioned above subject to the condition, inter alia,

that "neither of the persons intending to be married shall have a wife or

husband still living"(Section 60).

The Act provides that a person making a false oath or declaration

or signing a false notice, intentionally and for the purpose of procuring a

marriage, shall be guilty of the offence punishable under Section 193 of

the Indian Penal Code - Section 66.

There is no specific reference in this Act to the anti­bigamy

provisions contained in Sections 494­495 of the Indian Penal Code.

Since bigamy is strictly prohibited by the Christian religious law and the

Act also impliedly prohibits it, applicability of the said IPC provisions to

married Christians may be seen as a foregone conclusion. Yet, there is a

case for making the Act specific on this point.

A post­marriage change of religion by either spouse may have no

effect on prohibition of bigamy under the Christian law since both the

Christian Marriage Act 1872 and its divorce supplement, the Indian

Divorce Act 1869, apply also to cases where only one spouse is a

Christian.

Page 23 of 72 HC-NIC Page 23 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

27.2 Parsi Marriage and Divorce Act 1936: Unlike the Christian

Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 specifically

prohibits bigamy and says that Sections 494­495 of the Indian Penal

Code will be attracted by every case of bigamy in any marriage governed

by that Act. Sections 4 and 5 of the Act read as follows:

Section 4 "(1) No Parsi (weather such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the life time of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved; and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts.

(2) Every marriage contracted contrary to the provisions of subsection (1) shall be void."

Section 5 "Every Parsi who during the lifetime of his or her wife or husband, whether a Parsi or not, contracts a marriage without having been lawfully divorced from such wife or husband, or without his or her marriage with such wife or husband having legally been declared null and void or dissolved, shall be subject to the penalties provided in sections 494 and 495 of the Indian Penal Code (45 of 1860) for the offence of marrying again during the lifetime of a husband or wife".

The reference to bigamy after change of religion and its

prohibition constitute a unique feature of the Parsi Marriage and Divorce

Act 1936 which has no parallel under any other family­law enactment

for the time being in force.

Page 24 of 72

HC-NIC Page 24 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

27.3 Hindu Marriage Act 1955: Since times immemorial it was

believed - rightly or wrongly - that Hindu religious law allowed an

unrestricted polygamy and imposed no specific conditions on the

polygamist­husband. The Muslim rulers of India had left the Hindu law

on polygamy - whatever it was - untouched and did not impose on any

non­Muslim the rules of Islamic law tolerating limited polygamy in a

well­defined discipline of equal justice to co­wives. The British rulers,

who did reform many other aspects of Hindu law, also did not abolish

the rules on polygamy under the traditional Hindu law and custom. Only

the Brahmosamajis had managed to legally adopt monogamy under a

special law enacted for them in the erstwhile Bengal province in 1872.

After the advent of independence anti­bigamy laws were enacted

for the Hindus by provincial legislatures in Bombay, Madras, Saurashtra

and Central Provinces. Finally, in 1955 Parliament enacted the Hindu

Marriage Act putting a blanket ban on bigamy for the Hindus. Buddhists,

Jains and Sikhs, declaring bigamous marriages on their part in future to

be void and penal (see Sections 5, 11 & 17).

One of the conditions for a valid marriage under the Hindu

Marriage Act is that "neither party has a spouse living at the time of the

marriage" [Section 5 (i)]. Violation of this condition shall make the

marriage null and void and liable to be so declared by a decree of

Page 25 of 72

HC-NIC Page 25 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

nullity on a petition filed by either party against the other party ( Section

11).

Section 17 of the Hindu Marriage Act once again declares every

bigamous marriage among persons governed by the Act to be void and

makes it punishable under the anti­bigamy provisions of the Indian

Penal Code 1860. It reads as follows:

"Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly."

Though Section 7 (2) says that if a marriage is solemnized

through the saptpadi ceremony the marriage will be complete and

binding on taking the sevenths step, some High Courts took the view

that this is not a special rule of evidence requiring in a case of bigamy

proof of the seventh step having been duly taken. - Padullapath Mutyala

v Subbalakshmi AIR 1962 AP 311, Trailokya Mohan v State AIR 1968

Ass 22.

In 1988 a learned judge of the Andhra Pradesh High Court, Radha

Krishna Rao, J. had issued an important note of caution:

"During the subsistence of the first marriage the second marriage will generally be done in secrecy. It is too idle to expect direct testimony. In some cases the purohit also who performed the marriage will be treated as abettor. The courts are giving acquittals on the ground that the required ceremonies for the second marriage have not been proved beyond reasonable doubt. Suitable legislation has to be made with regard to the mode of proof of the second marriage. If the marriage was done publicly

Page 26 of 72

HC-NIC Page 26 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

and openly to the knowledge of one and all, the court can expect direct evidence. When second marriage is being performed in secrecy, knowing fully well that it is an offence, if the courts insist on strict proof, it amounts to encouraging perjury. The motto of the court is not to encourage perjury, but to find out the real truth and convict the accused if there is a second marriage. Unfortunately, none of the social organizations which' claim about the protection of the rights of women, have taken any steps to see that suitable legislation be made with regard to the mode of proof for performance of the second marriage." - [1988 CriLJ 1848].

However, linking the anti­bigamy provisions of the Act with the

requirement of a ceremonial solemnization of marriages under Section 7

(2) of the Act, the Supreme Court later held that if a customary

ceremony is incompletely or defectively performed (to get married

again), the resulting second marriage will be non­existent in eyes of law

and hence will not attract the anti­bigamy provisions of the Act, or of the

IPC. See Bhaurao v State of Maharashtra AIR 1965 SC 1564.

[See: Report No.227 of the Law Commission of India]

28 Marriage under the Muslim Law (Nikah) is a civil contract entered

into between two persons of the opposite sexes with a view to mutual

enjoyment and legalisation of children. The Islamic concept of marriage

essentially differs from the Hindu concept under which marriage is not a

mere civil contract but is a sacrament (samskara). The design and object

of marriage under Islam is not only procreation of children but also

mutual enjoyment. Sex is the foundation of marriage which is not only

for the solace of life, but is one of the prime necessities of man. Islam is

the only faith which makes marriage obligatory on every member

Page 27 of 72

HC-NIC Page 27 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

belonging to that faith. The Prophet of God said that any person who

does not enter into matrimony does not belong to His creed. Celebracy

and asceticism are not recognised in Islam as they lead to innumerable

evil consequences.

29 The Muslim marriages can be classified into three categories. The

same has been dealt with in Mullah's principle of Mohammedan Law, in

paras 260 to 264.

(1) Sahil, i.e., a valid marriage being in conformity with all the rules,

mandatory and directory, of marriage under the Muslim Law. Such a

marriage creates between the parties mutual rights, duties and

obligations as per Islamic Law.

(2) Batil, i.e. a void marriage, the prohibition against which is

perpetual and absolute, e.g., marriage between two persons standing in

prohibited degree of relationship by consanguinity or affinity or fostage

or marriage with another man's life. Such a marriage is non est in the

eye of law. It does not create any civil rights or obligations between the

parties. The offspring of a void marriage is illegitimate.

(3) Fasid, i.e., irregular marriage which is not per se unlawful, but

unlawful in its attributes, eg., a marriage without witnesses or requisite

number of witnesses, marriage with a woman undergoing iddat,

marriage affected by unlawful conjunctions, marriage of a 5th wife

Page 28 of 72

HC-NIC Page 28 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

during the subsistence of the marriage with 4 others, marriage with a

non­muslim wife etc. An irregular marriage does not create mutual

rights of inheritance between the husband and the wife but the children

are legitimate.

30 I have to my advantage a Division Bench decision of the Kerala

High Court in the case of Amina vs. Hassan Koye [1985 Cr. L.J 1996] ,

wherein the Court, in details, has explained marriage and polygamy

under Islam.

"13. "Marriage (nikah) among Muslims is a 'solemn pact' (mithaq­e­ ghalid) between a man and a woman, soliciting each other's life companionship, which in law takes the form of a contract (aqd)." vide Dr. Tahir Mahmood's Muslim Law of India. We feel that we are not wrong if we say that there is an unfounded popular belief that no religious significance or social solemnity attaches to a Muslim marriage and it is merely a civil contract pure and simple. We say so because as early as in 1866 Mahmood, J. in the leading case, Abdul Kadir v. Salima (1886) ILR 8 All 149 (FB) said: "marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnised generally with recitation of certain verses from the Kuran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion." The judgment was delivered by (Petheram, CJ. But it is noted in the judgment itself that by the time, the judgment was to be delivered, Mr. Justice Mahmood left the court and the written opinion of Justice Mahmood was adopted by the Full Bench, consisting of five Judges Petheram, C.J., Oldfield, Straight, Brodhurst, and Tyrrell, JJ.). In the report it may appear that Mahmood, J. was not one among the five judges. What is quoted by us from that judgment itself is a quotation adopted by the learned Judge, from the Tagore Law Lectures (1873).

14. We may at once quote what Sir Shah Muhammad Sulaiman C.J. observed in Anis Begam v. Muhammad Istafa (1933) ILR 55 All 743: (AIR 1933 All 634). He said: "It may not be out of place to mention here that Maulavi Samiullah collected some authorities showing that a marriage is not regarded as a mere civil contract, but as a religious sacrament." Fyzee in his book 'Outlines of Muhammadan Law' said "considered juristically, marriage in Islam is a contract and not a sacrament". The statement is generally overstressed, to render the real nature of marriage obscured and

Page 29 of 72

HC-NIC Page 29 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

to forget and ignore the other important aspects of marriage.

15. A learned commentator and exponent of Muslim Law Tyabji in his book 'Muslim Law' observes that marriage brings about a relation based on and arising from a permanent contract for intercourse and procreation of children between a man and a woman who are referred to as parties to the marriage and who after being married, become husband and wife. Neil B.E. Baillie in the book 'Digest of Moohummudan Law' tells us that "marriage is a contract which has for its design or object the right of enjoyment, and the procreation of children. But it was also instituted for the solace of life, and is one of the prime or original necessities of man", Hedaya on the Mussulman Laws informs us that nikah in its primitive sense means carnal conjunction. Some have said that it signifies conjunction generally. In the language of the law it implies a particular contract used for the purpose of legalizing generation. Marriage is contracted, that is to say, is effected and legally confirmed, by means of declaration and consent, both expressed in the preterite, because although the use of the preterite be to relate that which is past, yet it has been adopted in the law, in a creative sense, to answer the necessity of the case. Sir Roland Knyvet Wilson in his book , Anglo­Muhammadan Law' says that marriage is a contract for the purpose of legalising sexual intercourse and the procreation of children. It involves the rights and duties between the married persons themselves, and between each of them and the children born from the marriage, Sacred Koran teaches:

"O men fear your Lord, who hath created you out of one man, and out of him hath created his wife, and from them two hath multiplied many men and women" Sacred­ Koran chap, iv. 8.

"The Holy Prophet said: Men marry women for their piety, or their property, or their beauty : but ye should marry for piety." Trimizi, Jami,1.331.

16. We shall try to decoct the content of the above statements of the exponents and commentators and the views of the eminent judges as to the nature of the Muslim marriage. We propose to consider the concept of marriage under three broad headings, namely, legal, social and religious. Juristically, it may be a contract as opposed to a sacrament. But it cannot be considered as a contract pure and simple to be governed exclusively by the provisions of the Contract Act. Rules to be applied for interpreting a Muslim marriage are not exclusively confined and cabined within the four walls of the general statutes ­ Contract Act and allied Acts. It is always to be understood and interpreted in the light of the personal laws of the parties and the ethic content and ethos of the institution of marriage, as popularly understood by the Muslims in the country.

17. As stated by Dr. Tahir Mahmood, it is a solemn pact between a man

Page 30 of 72

HC-NIC Page 30 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

and a woman, though it takes the form of a contract. It has to be remembered that Holy Prophet did describe nikah (marriage) as his sunnat and every Muslim knows the sacred socio­religious significance of sunnat as recognised by the Muslim religion. We feel certain that Sacred Koran does not treat marriage as an ordinary contract, on the basis of what Holy Prophet has said on the subject. Even if we consider that a muslim marriage is a contract, it certainly require free consent of the parties as in the case of an ordinary contract. Since consent of parties is the core element of a contract, juristically as well as in the concept of Muhammadan Law, we have to consider the question of consent in detail in this case. We defer the consideration relating to consent now and we pass on to consider the other two aspects of the marriage. Social aspect:

18. The social contents of marriage as admitted by the writers of Islamic Law can be serialised as : (1) Islamic Law gives to the woman a definitely high social status after marriage; (2) restrictions are placed upon the polygamy of pre­ Islamic time, and a controlled polygamy under exceptional and extraordinary circumstances is allowed, (3) The Holy Prophet, both by example and precept, encouraged the status of marriage.

19. There is a well­known adage attributed to the Holy Prophet: "There is no monkery in Islam". This adage reveals the attitude of Holy Prophet towards celibacy very briefly and adequately.

20. We may now tell one other aspect which, would silhouette profile of a popular misconception attached to Muslim marriage law. The misconception is the belief that the Holy Prophet has given his imprimatur and has recognized polygamy among Muslims. We think that those who battologize and recite verses of the Sacred Koran or cite Holy Prophet for finding licitness and authority for the practice of controlled polygamy restricted to four wives are really offenders of Islamic Law. The great jurist Ameer Ali said:­ "The conviction is gradually forcing itself on all sides, in all Muslim communities, the polygamy is as much opposed to Islamic laws as it is to the general progress of civilised society and true culture. In consequence of this conviction a large and growing section of Islamists regard the practice of polygamy as positively unlawful".

The supporters of polygamy quote the Holy Koran Chapter IV, Verse 3.

" And if you fear that you cannot do justice to orphans, marry such women as seem good to you, two, or three, or four; but if you fear that you will not do justice, then (marry) only one or that which your right hands possess. This is more proper that you may not do justice.'" ' ,

Page 31 of 72

HC-NIC Page 31 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

But Chapter IV, Verse 129 runs thus: ,

"Ye are never able to be fair and just as between women, even if it is your ardent desire"

"It is admitted on all hands that this Chapter was revealed to guide the Muslims under the conditions which followed the battle of Uhud " (The Holy Quran by Maulana Muhammad Ali). A. Yusuf Ali interpreting the original text of Sacred Koran has said that Holy Prophet has only described the practice of polygamy that was prevalent at that time. Of course Holy Prophet allowed an exception under the peculiar post­war (battle of Uhud) circumstances, where there were too many females and orphans and less males. Holy Prophet himself even in that circumstance realised the agonising difficulty ­an impossibility ­of treating two or more wives with even justice, care, love and affection enjoined that a Muslim should have only one wife. We feel that Koranic injunction is monogamy and the deviation should be a rare exception. A. Yusuf Ali again says that practice of polygamy is the practice of the "Times of Ignorance". Mr. Justice Hidayattullah felt an urgent necessity of the modernisation of the family law of the Muslims including the abolition of polygamy, he said so in his Introduction to Mulla's Principle of Mahomedan Law.

21. Imbibed by the spirit of Koranic injunctions several Muslim countries codified their personal law interdicting the practice of polygamy by imposing total prohibition or severe restrictions. In Pakistan, on the recommendations of the Commission on Marriage and Family Laws, Ordinance No. VIII of 1961 was passed on 15th July, 1961. S. 6 of that Ordinance tells us that in Pakistan, it is not possible to practice polygamy without permission from the Arbitration Council. We quote section 6.

"6. Polygamy.­ (1) No man during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2) An application for permission under sub­ section (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained thereto.

(3) On receipt of the application under sub­ sec. (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the decision, and any party may, in the prescribed manner, within the prescribed period, and on payment of the

Page 32 of 72

HC-NIC Page 32 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

prescribed fee, prefer an application for revision, in the case of West Pakistan, to the Collector and, in the case of East Pakistan, to the Sub­Divisional Officer concerned and his decision shall be final and shall not be called in question in any court.

(5) Any man who contracts another marriage without the permission of the Arbitration Council shall ­

(a) pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and

(b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both."

Some of the countries who have reformed their law on this subject are Syria, Tunisia, Morocco, Pakistan and Iran. We close our discussion on this point by repeating the words fallen from the founding fathers of the Constitution in Art. 44 of the Constitution.

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

31 The Supreme Court in the case of Sarla Mudgal (supra), while

examining the question whether a Hindu husband, married under the

Hindu Law, by embracing Islam, can solemnize second marriage and

whether such a marriage, without having the first marriage dissolved

under the law, would be a valid marriage qua the first wife who

continue to be Hindu, made the following observations in paras 32, 33,

34, 35, 36 and 37 as under:

"32. One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law ­ personal law of the Hindus ­ governing inheritance, succession and marriage was given go­ by as back as 1955­56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country.

33. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25

Page 33 of 72

HC-NIC Page 33 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25,26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a "common civil Code" for the whole of India.

34. It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of "Suttee" in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act(III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

35. Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its "personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two­nation or three­nation theory and that in the Indian Republic there was to be one Nation ­ Indian nation ­ and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation ­ not religion ­ being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded / supplemented by introducing a uniform civil code.In this view of the matter no community can oppose the introduction

Page 34 of 72

HC-NIC Page 34 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

of uniform civil code for all the citizens in the territory of India.

36. The Successive Government till­date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

37.We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throughout the territory of India."

32 The Supreme Court in Lily Thomas (supra) while re­affirming its

view taken in the case of Sarla Mudgal (supra), observed in para 36 as

under:

"36. The position under the Mahommedan Law would be different as, in spite of the first marriage, a second marriage can be contracted by the husband, subject to such religious restrictions as have been spelled out by Brother Sethi, J. in his separate judgment, with which I concur on this point also. This is the vital difference between Mahommedan Law and other personal laws. Prosecution under S. 494 in respect of a second marriage under Mahommedan Law can be avoided only if the first marriage was also under the Mahommedan Law and not if the first marriage was under any other personal law where there was a prohibition on contracting a second marriage in the life­time of the spouse."

33 WHAT IS THE MESSAGE OF THE HOLY PROPHET MOHAMMAD, WHICH IS REDUCED INTO WRITING IN THE FORM OF THE HOLY 'QURAN' ?

33.1 Mr. Hakim, the learned amicus very ably and lucidly explained the

tenets of Islam and its teachings. The word "Islam" means "peace and

submission". In its religious connotation it is understood as "submission

to the Will of god." According to Fyzee (Outlines of Mohammadan Law,

IInd Edition) in its secular sense the establishment of peace. The word

Page 35 of 72

HC-NIC Page 35 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

'Muslim' in Arabic is the active principle of Islama, which means

acceptance of faith, the noun of which is Islam. Muslim Law is

admittedly to be based upon a well recognised system of jurisprudence

providing many rational and revolutionary concepts, which could not be

conceived by the other systems of Law in force at the time of its

inception. Sir Ameer Ali in his book Mohammedan Law, Tagore Law

Lectures IV Edition, Volume I has observed that the Islamic system, from

a historical point of view was the most interesting phenomenon of

growth. The small beginnings from which it grew up and the

comparatively short space of time within which it attained its wonderful

development marked its position as one of the most important judicial

system of the civilised world. The concept of Muslim Law is based upon

the edifice of Shariat, Muslim Law as traditionally interpreted and

applied in India permits more than one marriage during the subsistence

of one and another though capacity to do justice between co­wives in

law is a condition precedent. Even under the Muslim Law plurality of

marriages is not unconditionally conferred upon the husband.

34 SURAH NISAA:

TAFSIR IBN KATHIR:

3. And if you fear that you shall not be able to deal justly with the orphan girls, then marry (other) women of your choice, two or three, or four; but if you fear that you shall not be able to deal justly (with

Page 36 of 72

HC-NIC Page 36 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

them), then only one or (the captives and the servants) that your right hands possess. That is nearer to prevent you from Taulu.

129. You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline too much to one of them so as to leave the other hanging. And if you do justice, and do all that is right and have Taqwa, then Allah is Ever Oft­Forgiving, Most Merciful.

Allah's statement, You will never be able to do perfect justice between wives even if it is your ardent desire, means, O people! You will never be able to be perfectly just between wives in every respect. Even when one divides the nights justly between wives, there will still be various degrees concerning love, desire and sexual intimacy, as Ibn "Abbas, 'Ubaydah As­ Salmani, Mujahid, Al­Hasan Al­Basri and Ad­Dahhak bin Muzahim stated. Imam Ahmad and the collectors of the Sunan recorded that "A'ishah said, "The Messenger of Allah used to treat his wives equally and proclaim, 0 Allah! This is my division in what I own, so do not blame me for what You own and I do not own referring to his heart. This was the wording that Abu Dawud collected, and its chain of narrators is Sahih.

Allah's statement, so do not incline too much to one of them means, when you like one of your wives more than others, do not exaggerate in treating her that way, so as to leave the other hanging, referring to the other wives. Ibn `Abbas, Mujahid, Sa`id bin Jubayr, Al­Hasan, Ad­ Dahhak, Ar­Rabi` bin Anas, As­Suddi and Muqatil bin Hayyan said that Mu'allaqah hanging means, "She is neither divorced nor married." Abu

Page 37 of 72

HC-NIC Page 37 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Dawud At­Tayalisi recorded that Abu Hurayrah said that the Messenger of Allah said, Whoever has two wives and inclines to one of them too much, will come on the Day of Resurrection with one of his sides dragging.

Allah's statement, And if you do justice, and do all that is right and have Taqwa, then Allah is Ever Oft­Forgiving, Most Merciful. The Ayah states:

If you do justice and divide equally in what you have power over, while fearing Allah in all conditions, then Allah will forgive you the favoritism that you showed to some of your wives."

TAFSIR AL­MIZAN

{3} And if vou fear that vou can not act equitable towards orphans, then marry such (other) women as seem good to vou. two and three and four; but if vou fear that vou will not do justice (between them), then (marry) only one or what your right hands possess; this is nearer that vou may not deviate from the right course.

QUR'AN: two and three and four: the paradigms, maf'al and fu'al, when applied to numbers, signify repetition of the root word; thus the clause, mathna wa thulatha wa ruba'a, means, two two and three three and four four (or twos, threes and fours). The verse is addressed to all individuals, and the numbers have been separated by "and " which implies choice; these factors together show that every believer has a right to marry two wives, or three, or four. When looked at together, they would be grouped as twos, threes and fours.

The above explanation, coupled with the next clause, but if you fear that you will not do justice (between them) then (marry) only one or what your

Page 38 of 72

HC-NIC Page 38 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

right hands posses, together with the following verse, And all married women...(4:247), disproves the idea that the verse allows to marry two, three or four wives in one contract of marriage; or that it permits to marry two together, then two together and so on, and likewise three or four together, then other three or four together; or that it approves polyandry ­ marriage of several men with one woman. These are ideas, which the verse does not tolerate at all.

Apart from that, it is a self­evident truth that Islam does not allow a man to gather more than four wives at a time, or a woman to have more than one husband at a time.

Likewise, there is no room for the hypothesis that the word, "and", between the numbers, is for conjunction, and that the verse accordingly allows marrying nine (i.e., 2 + 3 + 4) wives at a time. Majma'u'l­bayan says as follows: Using the total in this manner is not a possibility at all. If someone says, "The people entered the town in twos, threes and fours", does not mean the total of these numbers ­ in other words, it does not imply that they entered in­groups of nine. Moreover, there is a proper word, "nine", to denote that number; so leaving the correct word and changing it to 'two and three and four', shows an incapability of proper expression ­ Too exalted and sanctified is His speech from such defects.

QUR'AN: but if you fear that you will not do justice (between them) then (marry) only one: That is, marry only one, not more. Allah has made this order conditional on fear, not on knowledge, because knowledge in such matters is usually difficult to achieve, especially when thought is clouded by temptation; the underlying benefit would be lost if the rule were made dependent on knowledge.

Page 39 of 72 HC-NIC Page 39 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

{129} And vou have it not in vour power to do justice between wives, even though vou may wish (it), but be not disinclined (from one) ­ with total disinclination; so that vou leave her as it were in suspense:

and if vou effect a reconciliation and guard (against evil), then surely Allah is Forgiving. Merciful.

QUR'AN: And you have it not in your power to do justice between wives, even though you may wish (it), but be not disinclined (from one)with total disinclination...: It gives further explanation of the order given in the beginning of the chapter where it was said: But if you fear that you will not do justice (between them), then (marry) only one. The same ideal of justice is seen in the preceding verse where it says: And if you do good (to others) and guard (against evil) then surely Allah is aware of what you do. Obviously, this preceding verse contains a shade of threatening. Thus, man is bewildered as to how to affect real justice between his wives. Justice is the exact middle between the two extremes and to pinpoint it exactly is extremely difficult; especially so, because the relationship between the spouses is that of love and one does not have much control on the inclinations of the heart. Therefore, Allah explains here that justice between the wives in its true sense ­ to stand exactly in the middle of the extremes ­ is beyond human power even if one may wish it. What a man is obliged to do is that he should not be totally inclined to one of them, leaving the other one as it were in suspense; that is, she does not feel as if she has a husband because she gets no attention from him, nor is she free of marriage so that she may marry someone else and go her own way. It is wajib (necessary) on the husband to do justice between his wives, that is, he should treat all of them in equal manner and should fulfill theirrights without excessiveness. And it is sunnah for him to do good to all of them without showing any dislike to any of

Page 40 of 72

HC-NIC Page 40 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

them and without subjecting any of them to ill­treatment; this was the behaviour of the Messenger of Allah (s.a.w.) with his wives.

The proviso, "but be not disinclined (from one) with total disinclination, so that you leave her as it were in suspense", proves that the preceding sentence: "And you have it not in your power to do justice between wives, even though you may wish (it)," doesn't mean that man cannot do justice between his wives at all, as some people have thought. And joining this misconception with the divine words: but if you fear that you will not do justice (between) them, then (marry) only one, they have claimed that Islam does not allow polygamy!

The proviso clearly shows that what has been negated is the real justice in which there is no excess at all and man stands in the exact middle; and what is allowed and made lawful is the practical justice in which minor inclinations are tolerated. Apart from that, the sunnah of the Holy Prophet and the polygamy practised before the eyes of the Prophet (s.a.w.), as well as the custom prevalent among the Muslims without any break since that time is enough to remove such erroneous impressions. Apart from that, to think that the divine words: then marry such (other) women as seen good to you, two and three and four, are merely imaginary suppositions which have no practical application, will bring down the Divine words to the level of a riddle.

It should be noted that the words: And if you affect a reconciliation and guard (against evil), then surely Allah is Forgiving, Merciful, encourage the men with emphasis that whenever any signs of discord and dispute appear, they should try to bring reconciliation; then it goes on to say that it is a part of piety and with piety comes divine forgiveness and

Page 41 of 72

HC-NIC Page 41 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

mercy. In the preceding verse, it was stated that reconciliation is better and they were exhorted to do good and guard against evil; then comes this verse which puts emphasis over emphasis.

35 QURAN TAFSIR­TAHFIMUL QURAN BY MAULANA MAUDUDI:

"[3] And if you be apprehensive that you will not be able to do justice to the orphans, you may marry two or three or four women whom you choose.4 But if you apprehend that you might not be able to do justice to them, then many only one wife,­ or marry those women who have fallen in your possession.­This will be the better course to avoid injustice.

The commentators ascribe three meanings to this:

(a) Hadrat 'A ' ishah says that this was revealed to remedy an evil that was prevalent in the days of "Ignorance." The guardians of the orphan girls used to marry them for their wealth and beauty, with the intention of keeping them under their power because they had no one to defend their cause; then they treated them unjustly without any fear. Therefore when they became Muslims, they had misgivings about marrying orphan girls. Accordingly, the Qur'an advised them to marry women of their choice other than orphan girls in their charge, if they feared that they would not be able to do justice to them. Verse 127 of this Surah also supports this comment.

(b) In commenting on this, Hadrat lbn­i­`Abbas and his disciple "Ikrimah assert that this Commandment was given to eradicate an injustice that was prevalent at that time. In pre­lslamic days, there was no limit to the number of wives and some people would marry even a dozen of them but when they could not meet the increasing expenses, they were forced

Page 42 of 72

HC-NIC Page 42 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

to grab the property of their orphan nephews and other helpless relatives. Therefore, Allah restricted the maximum number of wives to four, and enjoined that this too, was subject to the condition that one should do justice to all of them.

(c) Sa/Eid bin Jubair, Qatadah and some other commentators declare that this Command was given to safeguard the interests of wives. They say that even before the advent of Islam, injustice to the orphans was looked upon with disfavor, but in regard to wives, it was different; they would marry as many as they liked and would treat them cruelly and unjustly without any fear of the society or pangs of conscience.

Therefore Allah warned them that they should refrain from doing injustice to their wives as they did in the case of the orphans. Therefore they should not marry more than four wives and that too, only if they would do justice to them.

The words of the verse bear all the three meanings and probably all three are meant. Another meaning also can be: "If you cannot treat the orphans justly as they normally should be, you may marry the women who have orphan children."

5 The consensus of opinion of all the scholars of the Muslim law is that this verse limits the number of wives and prohibits the keeping of more than four at one and the same time. Traditions also support this. It is related that at the time when Ghailan, the chief of Ta`if, became a Muslim, he had nine wives. The Holy Prophet asked him to keep only four of them and divorce all the others. There is another instance of Naufal bin Mu`aviyah, who was ordered by the Holy Prophet to divorce one of his five wives.

Page 43 of 72

HC-NIC Page 43 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

It should also be noted that this verse restricts polygamy with the provision of justice to all the wives; therefore whoever abuses this permission without fulfilling the condition of justice and marries more wives than one tries to deceive Allah. The courts of an Islamic State are, therefore, empowered to enforce justice in order to rectify the wrong done to a wife or wives. At the same time it is absolutely wrong to conclude from the proviso of justice, attached to this Commandment that this verse was really meant to abolish polygamy. This is not the view of the Qur'an, but of those Muslims who have been overawed by the Christians of the West. They say that the Qur'an is also against polygamy but it did trot abolish it directly because it did not consider it expedient at the time for the custom had become very common. Instead of this, it allows polygamy provided that justice is done to all the wives. As this condition is most difficult to fulfill, the recommendation is towards monogamy. Obviously, this way of thinking is the result of mental slavery, because polygamy in itself is not an evil for in some cases it becomes a real cultural and moral necessity. There are Born people, who, even if they wished, cannot remain content with one wife. Polygamy comes to their rescue and saves them and the society in general from the harms of unlicensed sexual indulgences. That is why the Qur'an allows polygamy to such people with the explicit condition of doing justice to all the wives.

As regards those who consider polygamy to be an evil, they are free to oppose the Qur'an and condemn polygamy, but they have no right to ascribe their own perverted views to the Qur'an, for it makes this lawful in very clear language without employing any words that might be stretched in any way to imply that the Qur'an means to abolish it.

Page 44 of 72

HC-NIC Page 44 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

[128­129] When a woman fears ill­treatment or aversion from her husband, there is no harm if the two make peace between themselves(by means of a compromise); after all peace is the best thing. Human souls are prone to narrow­mindedness, but if you show generosity and fear Allah in your dealings, you may rest assured that Allah will be fully aware of all that you do it is not within your power to be perfectly equitable in your treatment with all your wives, even if you wish to be so; therefore, (in order to satisfy the dictates of Divine Law) do not lean wholly towards one wife so as to leave the other in a state of suspense. If you behave righteously and fear Allah, you will find Allah Forgiving and Compassionate.

Allah has made it clear that the husband cannot literally keep equality between two or more wives because they themselves cannot be equal in all respects. It is too much to demand from a husband that he should mete out equal treatment to a beautiful wife and to an ugly wife, to a young wife and to an old wife, to a healthy wife and to an invalid wife and to a good natured wife and to an ill­natured wife. These and like things naturally make a husband more inclined towards one wife than towards the other. In such cases, the Islamic Law does not demand equal treatment between them in affection and love. What it does demand is that a wife should not be so neglected as to be practically reduced to the position of the woman who has no husband at all. If the husband does not divorce her for any reason or at her own request, she should at least be treated as a wife. It is true that under such circumstances the husband is naturally more inclined towards a favorite wife, but he should not, so to say, keep the other in such a state of suspense as if she were not his wife.

Page 45 of 72

HC-NIC Page 45 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

From this verse some people wrongly conclude that though the Qur'an allows more than one wife, it practically cancels this permission by asserting, ".....it is not possible for you to be perfectly equitable in your treatment with all your wives...." They forget that this is only a part of the whole instruction and the Qur'an does not stop at this but adds, "....do not lean towards one wife...." As this Commandment takes into consideration the existence of more than one wife allowed by the Qur'an, it leaves no loophole of escape for the followers of Christian Europe from the fact that Islam does allow polygamy under certain conditions.

36 Thus, from the above, it is abundantly clear that notwithstanding

there is no codification by the legislation of marriages amongst the

Muslim, polygamy is not encouraged and is an exception and not a Rule.

37 It is in reference to the above referred passages that the jurist on

Islamic Law; Asaf A.A. Fyzee commented: "Polygamy is only permissive

in Islam. It is not the fundamental right of a Muslim to have four wives;

therefore, it cannot be said that any provision of law in favour of

monogamy involves a violation of Article 25 of the Constitution." (Asaf

A.A. Fyzee: Outlines of Mohammadan Law p. 212). In reference to

marriage, under subject, 'Cruelty', Fyzee observes: "Muslim law permits

polygamy but does not encourage it, and the Koranic injunction (Koran

iv, 3) shows that in practice perfect equality of treatment on the part of

Page 46 of 72

HC-NIC Page 46 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

the husband is, for all practical purposes, impossible of achievement.

Hence, 'Muslim law as enforced in India has considered polygamy as an

institution to be tolerated but not encouraged. (Ibid.) The underlined

portion Fyzee noticed from the comment of a decision of the Allahabad

High Court in re: Itwari v. Ashari, 1960 AIR (All)684.

38 The Koran speaks of conscience as an obligation on the husband

before taking two, or three or four wives. It speaks of equality of love

amongst wives, and equality which is within the sole perception of the

woman, not the male. It is a hard discipline of the Islamic religion

which requires perfection as any wife in a polygamous marriage can as

of right speak out in a case of inequal treatment, and make matters

difficult for a husband, Thus, a polygamous marriage, under Islam, is

expecting with a mathematical justice of equality amongst the wives­

the woman is the keeper of conscience. The husband only discharges it

with an effort which borders on justice. The scales are with all the

wives. If one complains of inequality no one can question her. Such is

the discipline of the Koran.

39 The Koran warns the Muslim husband that he must fear the lord,

in that, if he cannot bring himself by conscience to share his love and

affection equally amongst all the wives, the edict of the Book has

without reservations declared that keep to one wife. (See: Chandra Pal

Page 47 of 72

HC-NIC Page 47 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Vs. Keshav Deo, 1989 (1) AWC 527).

40 The concept of marriage and polygamy under' Islam and as is

referred to in the Koran is clear, but misrepresented and ill judged by

lay­men outside this religion. On this very aspect, Syed Ameer Ali, on

the personal law of the Mohammadans, remarked:

"He (Mohammad) restrained polygamy by limiting the maximum number of contemporaneous marriages and by making absolute equity towards all, obligatory on the man. It is worthy of note that the clause in the Koran which contains the permission to contract four contemporaneous marriages, is immediately followed by a sentence which cuts down the significance of the preceding passage to its normal and legitimate dimensions. The former passage says: "You may marry two, three or four wives, but not more." The subsequent lines declare, "but if you cannot deal equitably and justly with all, you shall marry only one." The extreme importance of this proviso, bearing especially in mind the meaning which is attached to the word "equity" (aadl) in the Koranic teachings has not been lost sight of by the great thinkers of the Muslem world. Even so early as the third century of the era of the Hegira, during the regign of al­ Mamum, the first Mutazalite doctors taught that the developed Koranic laws incalculated monogamy. And though the cruel persecutions of the mad bigot, Mutawakkil, presented the general diffusion of their teachings, the conviction is gradually forcing itself on all sides, in all advanced Moslem communities, that polygamy is as much opposed to the Islamic laws as it is to the general progress of civilised society and true culture. In consequence of this conviction a large and growing section of Islamists regard the practice of polygamy as positively unlawful; and this is particularly the case among the Mutazalas. Even among those Moslems who do not belong to this sect, especially in India, the idea is becoming a strong moral, if not a religious factor, and many extraneous circumstances in combination with this growing feeling are tending to root out the existence of polygamy from among the Mussulmans. A custom has grown up which is largely followed by all classes of the community, of drawing up a marriage deed containing a formal renunciation on the part of the future husband of any right or semblance of right which he might possess or claim to possess to contract a second marriage during the existence of the first. This custom serves as a most efficacious check upon the growth and the perpetuation of the institution of polygamy. In India more than ninety­five percent of Mohammadans are at the present moment, either by conviction or necessity, monogamist. Among many of the educated classes

Page 48 of 72

HC-NIC Page 48 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

versed in the history of their ancestors and able to compare it with the records of other nations, the practice of polygamy is regarded with disapprobation amounting almost to disgust. In persia, according to Colonel Mecgregor's statements, only two per cent of the population enjoy the questionable luxury of plurality of wives. It is earnestly to be hoped that before long all sections of Moslems will come to recognise that polygamy, like slavery, is abhorrent to the laws of Islam."­Personal Law of the Mohammedans. Mohammedan law, compiled from Authorities in the original Arbic, Vol. II Ameer Ali, (Syed), M.A., C.I.E. Third Edition, Thacker Spink and Co. Calcutta, 1908, pages 23, 24 and 25. (Koran, chap, iv, v, 3).

41 In view of the above and in the absence of any uniform Civil Code,

I find merit in the submissions of the learned amicus that the expression

"marries in any case in which, such marriage is void by reason of its

taking place during the life of such husband or wife" merely means that

the person who marries a second time during the life of his or her first

spouse would be punished under Section 494 of the IPC, only if such

second marriage is not recognized by the Personal Law, by which he or

she is governed. The section does not require that the second marriage

with the person concerned must, otherwise, be valid according to law

(See: AIR 1961 Punjab 167)

42 In interpreting Section 494 of the IPC, one should look into the

purpose of enactment and also to the mischief to be prevented. The

object of enacting Section 494 of the Indian Penal Code, to my mind,

clearly was to punish persons, who in defiance of the law applicable to

them in matters of marriage and divorce, etc., take a second wife during

the existence of the first, but for the Personal Law of the Muslim, as

Page 49 of 72

HC-NIC Page 49 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

discussed above, the applicant would be guilty of the offence of bigamy,

if ultimately proved, on the basis of the evidence recorded in the course

of the trial. He is able to get away with which by misinterpreting and

misusing to his advantage, the message of the holy prophet Mohmmad,

which is reflected in the holy 'Quran'. The 'Quran' does not say that a

Muslim can treat his wife cruelly, drive her out and without dissolution

the first marriage in accordance with law, he can marry for the second

time and upto four times. The message of the holy prophet is loud and

clear. Everyone knows about it, but still do not want to follow it.

43 When the Quran allowed polygamy, it was for a fair reason. When

men use that provision today, they do it for a selfish reason. Polygyny

finds mention in the Quran only once, and it is about conditional

polygyny. There is a historical reason why Quran allows polygamy.

There was a time in history when a large number of women were

widowed and children were orphaned in primitive tribal tussles in Arab.

The Muslims suffered heavy casualties in defending the nascent Islamic

community in Medina. It was under such circumstances that the Quran

allowed conditional polygyny to protect orphans and their mothers from

an exploitative society.

43.1 Even in this historical context, the Quran asks men to first

consider taking care of the orphans, and only when they think they

Page 50 of 72

HC-NIC Page 50 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

may not be able to do justice to the orphans' interests while staying in

isolation, should they consider marrying their widowed mothers, on

the condition that the new family would be dealt justly on a par with the

existing one. The verse goes like this:

And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four (amongst the orphans, obviously); but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course.

43.2 The Article 44 in Part IV (Directive Principles of State Policy) of

the Indian Constitution directs the "State to endeavour to secure for the

citizens a uniform civil code throughout the territory". Islamic sanction

of a man having up to four wives was justified in the historical times

mentioned above. Today there are no tribes killing each other and

making women widows and children orphans. On the basis of modern,

progressive thinking, India must shun the practice and establish a

uniform civil code.

43.3 Polygamy and the unilateral talaq without the wife's consent

offends Article 14 ("Equality before law for all") and Article 15 (the

State's non­discrimination on grounds of caste, religion, sex, etc.). If the

State tolerates this law, it becomes an accomplice in the discrimination

of the female, which is illegal under its own laws.

Page 51 of 72 HC-NIC Page 51 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

44 As social conditions in this nation and throughout the world

continues to change, the reality of life is, that even without a code on

personal law of Muslims in so far as the marriage is concerned,

polygamy is going into oblivion. Education, changing patterns of the

family structure, the structure of a family in the context of reality of the

world, and economic necessities are on their own precipitating a

situation where monogamy is becoming the reality though the religion

permits a Muslim, with such sanction of conscience to venture into

polygamy. But, the code upon which polygamy rests in Islam is strict

and difficult to keep.

45 Moreover, Quran forbids polygamy if the purpose to marry more

than once is self­interest or sexual desire. It is for the maulvis and

Muslim men to ensure that they do not abuse the Quran to justify the

heinously patriarchal act of polygamy in self­interest.

46 I may usefully quote the observations of late Justice Chagla in the

case of State of Bombay v. Naraya [AIR 1952 Bombay page 84] as

under:

"5. Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State

Page 52 of 72

HC-NIC Page 52 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

as a whole. A very interesting and instructive case is to be found in the American Reports, viz. Davis v. Beason, (1889) 133 US 637. In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalises polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting the establishment of religion or forbidding the free exercise thereof. This argument was rejected, and Mr. Justice Field delivering the opinion of the Court pointed out that (p. 640) :

"The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter." He further pointed out that the First Amendment could not be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. He further pointed out that (p. 640) :

"Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal."

Further on he states (p. 640) :

"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." It is only with very considerable hesitation that I would like to speak about Hindu religion but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion.It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore, the Hindu religion provides for the continuation of the line of a Hindu male within the frame­work of monogamy.

"9. There can be no doubt that the Muslims have been excluded from the operation of the Act in question. Even S. 494, Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because polygamy is recognised as a valid institution when a Muslim male marries more than one wife. The question that we have to consider is whether there is any reasonable basis for creating the Muslims as a separate class to which the laws prohibiting polygamy should not apply. Now, it is an historic fact that both the Muslims and the Hindus in this country have their own personal laws which are based upon their respective religious texts and which embody their own distinctive evolution

Page 53 of 72

HC-NIC Page 53 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

and which are coloured by their own distinctive backgrounds. Article 44 itself recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all its citizens irrespective of race or religion. Therefore, what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is to introduce social reform in respect of a particular community having its own personal law. The institution of marriage is differently looked upon by the Hindus and the Muslims. Whereas to the former it is a sacrament, to the latter it is a matter of contract. That is also the reason why the question of the dissolution of marriage is differently tackled by the two religions. While the Muslim law admits of easy divorce, Hindu marriage is considered indissoluble and it is only recently that the State passed legislation permitting divorce among Hindus. The State was also entitled to consider the educational development of the two communities. One community might be prepared to accept and work social reform; another may not yet be prepared for it; and Art. 14 does not lay down that any legislation that the State may embark upon must necessarily be of an all­ embracing character. The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community wise. From these considerations it follows that if there is a discrimination against the Hindus in the applicability of the Hindus Bigamous Marriages Act, that discrimination is not based only upon ground of religion. Equally so, if the law with regard to bigamous marriages is not uniform, the difference and distinction is not arbitrary or capricious, but is based upon reasonable grounds."

47 The above noted decision very well explains why the legislature

thought fit for treating the Muslim as a separate class to which the laws

prohibiting polygamy should not apply, but has not taken care till this

date to prevent the misuse of the theory.

48 The Indian Constitution does not use the word "Secularism" in any

of its provisions; but is material provisions are inspired by the concept of

Secularism. When it promised all the citizens of India that the aim of the

Constitution is to establish socio­economic justice, it placed before the

country as a whole the ideal of a Welfare State; and the concept of

Page 54 of 72

HC-NIC Page 54 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

welfare is purely secular and not based on any considerations of religion.

The essential basis of the Indian Constitution is that all citizens are

equal, and this logic equality which is guaranteed by Article 14 obviously

proclaims that the religion of a citizen is entirely irrelevant in the matter

of his fundamental rights. The State does not owe loyalty to any

particular religion as such; it is not irreligious or anti­religious; it gives

equal freedom for all religions and holds that the religion of the citizen

has nothing to do in the matter of socio­economic problems. That is the

essential characteristic of Secularism which is writ large in all the

provisions of the Indian Constitution.

49 Though the Constitution guarantees freedom to all religions, it

recognises that in certain aspects, and under certain conditions, religious

practices may impinge upon socio­economic problems and the

Constitution has made it clear that whatever socio­economic problems or

relations are involved, the State will have a right to interfere in the

interests of public good. Let me illustrate my point by taking two

provisions of the Constitutions. Under Article 15, the Constitution has

prohibited discrimination on grounds of religion, race, caste, sex or place

of birth; but the Constitution was conscious that the problem of sociality

and economically backward communities needed special attention.

Article 17 categorically abolished untouchability and provided that the

enforcement of any disability arising out of untouchability shall be an

Page 55 of 72

HC-NIC Page 55 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

offence. Now, untouchability, from a conservative, traditional point of

view, was a part of the religious practice prevailing amongst the Hindus;

but the Constitution realised that the observance of untouchability

impinged upon secular, social rights of all citizens and contravened the

basic concept of social equality; and so, Article 17 made a specific

provision in that behalf.

50 Similarly, when attempts were made by the Indian Legislatures to

provide special safeguards classes, it was discovered that these

provisions conflicted with the prohibition prescribed by Article 15(1).

The Constitution was then amended and clause (4) was added to Article

15 expressly authorising the States to make suitable provisions for the

advancement of the said castes and tribes. Now, this provision again

emphasis the fact that though the Constitution gives full liberty to the

practice of all religions prevailing in India, it will not allow the so­called

observance of religion to affect the social and secular rights of its

citizens.

51 There is yet another instance which is relevant on this point.

Articles 25 and 26 of the Constitution provide for the right to freedom of

religion. Article 25 gives freedom of conscience and free profession,

practice and propagation of religion, whereas Article 26 guarantees

freedom to manage religious affairs. Now, it is well­settled that the

Page 56 of 72

HC-NIC Page 56 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

freedom to manage religious affairs does not include absolute freedom

to manage properties belonging to religious institutions. Questions in

regard to management of properties which have no direct relation with

religion or its practice, fall within the regulatory power of the State. It

will thus be seen that though the Indian Constitution is secular and does

not interfere with religious freedom, it does not allow religion to

impinge adversely on the secular rights of citizens or the power of the

State to regulate socio­economic relations.

52 One characteristic feature of Indian Secularism is its

determination to adopt a rational and scientific approach in the

discussion and solution of socio­economic problems. Blind adherence to,

or reliance on, any sacred text is completely foreign to Indian

Secularism, whether the text is that of Hindus, Muslims, Parsis, Sikhs,

Buddhist, Christians makes no difference. The tendency of the human

mind to lean on textual authority in support of or against a proposition

is so powerful that it needs consistent and deliberate effort on the part of

intellectuals to promote independent and basic thinking in dealing with

problems unhampered by the weight of authority or the printed word.

Lawyers know that in Courts of Law, precedents in the form of decided

cases sometimes have such an overwhelming influence on judicial

approach that Judges show a disinclination to analyse and consider the

basic points involved in any controversy. The value of precedents cannot

Page 57 of 72

HC-NIC Page 57 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

be denied; but the precedents sometimes tend to hold the judicial mind

in bondage and that shows an approach which is not strictly rational and

as such, is inconsistent with the philosophy of Secularism.

53 When the Hindu Code Bill was being debated in Parliament, the

conservative Hindus raised a plausible plea that if a Civil Code was

intended to be evolved, it should be made applicable to all the

communities in India. The main object in raising this plea was not so

much to make the Code applicable to the Muslim community as to

retard, and if possible, to defeat the Hindu Code itself. The advocates of

the Hindu Code wanted to take the first step in the right direction. They

realised that to bring the Muslim community within the purview of the

Civil Code was impractical at that time having regard to the fact that the

public opinion in the Muslim community had not been adequately

educated in that behalf. The approach adopted by the reformers in

confining the Code to the Hindu community as a first step brings out

another feature of Secularism, and that is that Secularism in establishing

its philosophy in the social life of the country, adopts a pragmatic

approach.

54 In view of the above, so far as the offfence punishable under

Section 494 of the IPC is concerned, I am left with no other option but to

accept the submission of Mr. Joshi that his client cannot be prosecuted

Page 58 of 72

HC-NIC Page 58 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

for the offence punishable under Section 494 of the IPC. To this extent,

the petition will have to be allowed, and is, accordingly, allowed.

● SPECIAL CRIMINAL APPLICATION NO.106 OF 2010:

55 The above takes me to consider the second petition i.e. with

respect to the issue of the territorial jurisdiction of the Bhavnagar Court

to try the case so far as the other offences are concerned. I have already

noted the arguments of both the sides. The only question that falls for

my consideration is whether the criminal proceedings initiated by the

respondent No.2 at Bhavnagar are maintainable or she should have to go

to Raipur, Chhattisgarh and file a complaint or an F.I.R. at the

concerned Police Station. Of course, there is an option available in law

to transfer the entire proceedings to the appropriate Court at Raipur,

Chhattisgarh. There is no doubt about the place where the alleged acts

of cruelty could be said to have been committed. The wife, while at

Raipur, Chhattisgarh, was being treated cruelly as alleged, and one day,

she was driven her out of her matrimonial home. She came back to

Bhavnagar along with her brother in 2001. Within two months

thereafter, she delivered a baby and waited anxiously for her husband to

come and take her back to Raipur, Chhattisgarh. However, that day

never came. In 2004, i.e. almost after a period of three years, she

thought fit to file the F.I.R. and that is how the criminal case got

Page 59 of 72

HC-NIC Page 59 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

culminated. By the time, the F.I.R. was registered, the husband had

already got married for the second time with a lady viz. Nargish Banu at

Mumbai, and a child was born in the second wedlock of the husband. At

the same time, I also take notice of the fact that the respondent No.2 got

married with another person, but the marriage did not last long and the

same was dissolved according to the Personal Law within a couple of

months. In the course of the hearing of this matter, it was argued that

the first marriage was dissolved by the traditional method of saying

"Talaq, Talaq, Talaq" in the presence of the witnesses. However, all this

would be in the realm of the question of facts. I will address myself only

on the point of territorial jurisdiction.

56 An act of cruelty contemplated under Section 498A of the IPC can

be either physical or mental. A woman may be subjected to acts of

cruelty by mentally torturing her in various forms. In this case, the

complaint lodged by Sajeda, prima facie, shows that she was subjected

not only to physical cruelty, but also to such an extent by mental cruelty

on account of a demand for dowry that she was forced to leave her

matrimonial home and to live with her father at Bhavnagar. In fact, the

brother of Sajeda was called from Bhavnagar, and, was forced to take

Sajeda back to Bhavnagar. This happened when Sajeda was seven

months pregnant. After she was driven out of her matrimonial home

Page 60 of 72

HC-NIC Page 60 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

from Chhattisgarh, she delivered a baby, sometime in June 2001. No

efforts were made by the petitioner to take Sajeda back to her

matrimonial home. If a newly married woman is subjected to such

cruelty, as is narrated in the complaint and is driven out of her

matrimonial home with seven months of pregnancy, then there is no

element of doubt that after having been forced to live at her parental

home, the mental cruelty inflicted upon Sajeda by the petitioner could

be said to have continued on account of no efforts having been made by

the petitioner to take her back to her matrimonial home.

57 Section 178 of the Code of Criminal Procedure reads as under :

"178. Place of inquiry or trial.­ (a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."

58 Section 179 of the Code of Criminal Procedure reads as under :

"179. Offence triable where act is done or consequence ensues.­ When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued".

59 A plain reading of Sections 178, sub­clause (c) and 179, Cr.P.C.

Page 61 of 72

HC-NIC Page 61 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

makes it clear that where an offence is a continuing offence or where a

consequence ensuing of an act is also on offence, the Courts where such

consequence has ensued would also have jurisdiction to try the offence.

60 In the case of State of Bihar v. Deokaran Nenshi and Anr.,

reported in (1972) 2 SCC 890 : (AIR 1973 SC 908), it was observed by

the Apex Court that a continuing offence is one which is susceptible of

continuance and is distinguished from the one which is committed once

and for all. It is one of those offences which arise out of a failure to obey

or comply with a rule or its requirement and which involves a penalty,

the liability for which continues until the rule or its requirement is

obeyed or complied with. On every occasion that such disobedience or

non­compliance occurs and reoccurs, there is the offence committed. The

distinction between the two kinds of offences is between an act or

omission which constitutes an offence once and for all and an act or

omission which continues, and therefore, constitutes a fresh offence

every time or occasion on which it continues. In the case of a continuing

offence, there is thus the ingredient of continuance of the offence which

is absent in the case of an offence which takes place when an act or

omission is committed once and for all.

61 The expression "cause of action" is normally used in civil cases. In

Page 62 of 72

HC-NIC Page 62 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Section 177 of the Code, reference is to the local jurisdiction where the

offence is committed. However, the variations in expression do not really

make any difference relating to jurisdiction of a Court to try a case.

62 "Cause of action" consists of a bundle of facts, which would go to

enforce the legal enquiry for redress in a Court of law. In other words,

the expression means every fact, which it would be necessary for the

complainant to prove, if traversed, in order to support his right or

grievance to the judgment of the Court. Every fact, which is necessary to

be proved, comprises in cause of action.

63 Reliance has been placed by Mr. Joshi upon the observations

made by the Supreme Court in the case of Y. Abraham Ajith and others

V. Inspector of Police, Chennai and another [(2004) 8 SCC 100]:

"7. Section 177 of the Code deals with ordinary place of inquiry and trial, and reads as follows:

177. Ordinary place of inquiry and trial.­ Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.

8. Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well­established common­law rule referred to in Halsburys Laws of England (Vol. 9, para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which reads as follows:

178. Place of inquiry or trial.(a) When it is uncertain in which

Page 63 of 72

HC-NIC Page 63 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas.

9. All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed, as observed by Blackstone. A significant word used in Section 177 of the Code is ordinarily. Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. As observed by the Court in Purushottamdas Dalmia v. State of W.B., L.N. Mukherjee v. State of Madras, Banwarilal Jhunjhunwala v. Union of India and Mohan Baitha v. State of Bihar exception implied by the word ordinarily need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same court. No such exception is applicable to the case at hand.

10. As observed by this Court in State of Bihar v. Deokaran Nenshi a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or non­ compliance occurs or recurs, there is the offence committed.

11. A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee v. Prashant Kumar Mukherjee. There the allegations related to commission of alleged offences punishable under Sections 498­A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier, the husband of the complainant went to the place where the complainant was residing and had assaulted her. This Court held in that factual background that clause

(c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15­4­1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178(c) of the Code relating to continuance of the offences cannot be applied.

Page 64 of 72

HC-NIC Page 64 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

13. While in civil cases, normally the expression cause of action is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression cause of action is, therefore, not a stranger to criminal cases.

14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.

15. The expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in cause of action.

16. The expression cause of action has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

17. The expression cause of action is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Blacks Law Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase cause of action in common legal parlance is existence of those facts, which give a party a right to judicial

Page 65 of 72

HC-NIC Page 65 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

interference on his behalf.

18. In Halsburys Laws of England (4th Edn.) it has been stated as follows:

Cause of action has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject­matter of grievance founding the action, not merely the technical cause of action.

19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to Respondent 2 who, if she so chooses, may file the same in the appropriate court to be dealt with in accordance with law. The appeal is accordingly allowed."

64 In Sujata Mukherjee v. Prashant Kumar Mukherjee, reported in

(1997) 5 SCC 30 : (AIR 1997 SC 2465), the salient facts were that the

wife was the appellant before the Apex Court and the respondents were

husband, parents­in­law and two sisters­in­law of the appellant. The

gravamen of the allegations of the appellant Sujata Mukherjee was that

on account of dowry demands, she had been maltreated and humiliated

not only in the house of her in­laws at Raighar but as a consequences of

such events, the husband of the appellant had also come to the house of

her parents at Raipur and assaulted her. Complaint was filed by the

appellant in the Court of the learned Chief Judicial Magistrate, Raipur,

Page 66 of 72

HC-NIC Page 66 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

who issued summons.

65 Two criminal revision petitions came to be filed against the

refusal of the learned Chief Judicial Magistrate to recall the summons or

to transfer the case to the Court at Raighar. The jurisdictional High

Court took the view that the complaint made by the appellant was not

maintainable at Raipur in respect of other accused persons except the

husband and that such complaint is maintainable only against the

husband at Raipur.

66 The Apex Court held that offence being a continuing one having

been committed in more local areas including at Raipur, the learned

Magistrate at Raipur has jurisdiction to proceed with the criminal case in

his Court. The Apex Court observed that in such continuing offence

against the appellant, on some occasions all the respondents had taken

part and on other occasion, one of the respondents had taken part and

therefore, Section 178 (c) is attracted.

67 In Bhura Ram (AIR 2008 SC 2666) (supra), the case of the

complainant was that she had left the place where she was residing with

her husband and in­laws and came to Sri. Ganga Nagar, State of

Rajasthan. All the alleged acts, as per the complaint, had taken place in

Page 67 of 72

HC-NIC Page 67 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

the State of Punjab and therefore, the Apex Court observed that the

Court at Rajasthan did not have any jurisdiction to deal with the matter

and consequently, quashed the proceeding pending before the Court of

Additional Chief Judicial Magistrate, Sri. Ganga Nagar. Direction was

given for returning of the complaint to the complainant and it was

observed that she may file the same in the appropriate Court to be dealt

with in accordance with law.

68 In Sunita Kumari Kashyap (AIR 2011 SC 1674) (supra), the brief

facts were to the effect that the appellant Sunita Kumari Kashyap was

married to one Sanjay Kumar Saini as per hindu rites and ceremonies at

Gaya. At the time of her marriage, her father had gifted many articles

and cash of Rs. 2,50.000/­. However, she was harassed and tortured

immediately after marriage by her in­laws for bringing less dowry.

Additional demand of Rs. 4,000,00/­ was also made and when she was

in the family way, she was forcibly taken from her matrimonial home at

Ranchi and brought to her parental home at Gaya where she gave birth

to a girl child, which worsened her plight. The husband came up with a

new demand that unless her father gave his house at Gaya to him, she

will not be taken back to her matrimonial house at Ranchi. With these

broad allegations, she had lodged an FIR under Sections 498­A/406 IPC

read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition

Page 68 of 72

HC-NIC Page 68 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

Act, 1961, for short, DP Act, in a Police Station at Gaya.

69 Cognizance was taken by the learned Chief Judicial Magistrate,

Gaya under Sections 498­A/406 IPC read with Section 34 IPC and

Sections 3 and 4 of the DP Act. The learned Magistrate also rejected an

objection taken that the Court at Gaya had no jurisdiction. Against the

said order, a revision application was filed before the High Court and the

High Court took the view that the proceedings at Gaya are not

maintainable for lack of jurisdiction.

70 The Supreme Court reversed the order of the High Court holding

that it was the assertion by the appellant about ill­treatment and cruelty

at the hands of the husband and his relatives at Ranchi and of the fact

that because of their action, she was taken to her parental home at Gaya

by her husband with a threat of dire consequences for not fulfilling their

demand of dowry, the offence being continuing one having been

committed in more local areas and one of the local areas being Gaya, the

learned Magistrate at Gaya will have jurisdiction to try the case

instituted therein. It was held that the episode at Gaya was only a

consequence of continuing offence of harassment and ill­treatment

meted out to the complainant and Section 178(c) of the Code clearly

gets attracted.

Page 69 of 72 HC-NIC Page 69 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

71 The decision of the Supreme Court in the case of Y. Abraham

Ajith (supra) would not save the situation for the petitioner. The facts

are clearly distinguishable since in Y. Abraham Ajith (supra) the actual

nature of the acts of cruelty or harassment has not been mentioned. It

does not show in any manner that the acts of cruelty had, in any

manner, continued at Chennai. It does not show whether the cruelty was

physical or mental. It does not dwell with regards to the provisions in

Section 179 of the Cr.P.C. It was held that since no part of the cause of

action arose in the maternal home at Chennai but wholly arose at

Nagercoil, the matrimonial home, the concerned Magistrate at Chennai

had no jurisdiction to deal with the matter.

72 The case of Sujatha Mukherjee (Smt.) v. Prashant Kumar

Mukherjee, 1997 (5) SCC 30 : 1997 Cri LJ 2985 applies to the present

case. In that case, the husband also went to the maternal home of the

wife and had assaulted her. In that factual background, Clause (c) of

Section 178 of Cr.P.C. was attracted. It was held that the offence was a

continuing offence and was also committed at the matrimonial home

also giving jurisdiction to the Court situated there. In the present case,

the petitioner did not even bother to inquire about the daughter born in

July 2001. He must not have even seen his daughter till this date. He

Page 70 of 72

HC-NIC Page 70 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

ignored Sajeda and never brought her back to Chhattisgarh.

73 If the conduct, omission or commission is of such a nature which

results either in mental or physical harassment, it will amount to an act

of cruelty to the woman and it would be immaterial whether the woman,

at the relevant time was living at her matrimonial house or at her

parents house. The offence under Section 498A of the IPC is a

continuing offence, and if the act of cruelty continues, even while the

woman is living at her parents' house, the offence is triable by both the

Courts in whose territorial jurisdiction the acts of cruelty have been

committed. Sajeda was subjected to cruelty at her matrimonial house at

Chhattisgarh and was driven out, and thereby, forced to live with her

parents and brother at Bhavnagar. Sajeda had been left with no other

option, but to go back to her parents' house for shelter, and in any case,

if she was asked to prosecute her case under Section 498A of the IPC at

her matrimonial home, it would amount to deprivation of her right to

prosecute the case, since, as a deserted lady, she would not be able to

prosecute her case properly there.

74 It can, therefore, be said that the offence under Section 498A of

the IPC, initially, committed by the petitioner at Chhattisgarh, was not

only a continuing offence, but also that such consequence had ensued at

Bhavnagar, as would amount to an offence under Section 498A of the

IPC. In this view of the matter, under Clause (C) of Section 178 as also

Page 71 of 72

HC-NIC Page 71 of 72 Created On Fri Nov 06 02:59:51 IST 2015 R/CR.MA/14361/2010 CAV JUDGMENT

under Section 179 of the Cr.P.C., the Court at Bhavnagar has the

jurisdiction to try the offence under Section 498A and the other offences

of the IPC.

75 For the foregoing reasons, the Special Criminal Application

No.106 of 2010 fails and is hereby rejected. The trial shall proceed

further, in accordance with law, expeditiously at Bhavnagar.

(J.B.PARDIWALA, J.)

FURTHER ORDER After the judgment is pronounced, Mr. Joshi, the learned counsel

appearing for the petitioner prays that the interim order passed earlier by this

Court so far as the Special Criminal Application No.106 of 2010 is concerned,

may be continued for a period of eight weeks from today. The request is

accepted. The interim order passed earlier by this Court shall continue for a

period of eight weeks from today. It shall be open for the petitioner to file a

discharge application, if he deems fit, before the trial Court. If any discharge

application is filed, the same be considered on its own merit, in accordance with

law, without being influenced, in any manner, by any of the observations made

by this Court in this order. I clarify that so far as the Special Criminal

Application No.106 of 2010 is concerned, I have examined this matter only from

the point of view of the territorial jurisdiction of the Bhavnagar Court to try the

case.

(J.B.PARDIWALA, J.) chandresh

Page 72 of 72

HC-NIC Page 72 of 72 Created On Fri Nov 06 02:59:51 IST 2015