Sarla Mugdal v. Union of India : Analytical case study

This article discusses Sarla Mugdal v. Union of India case. This article is written by Ritam Khanna, 2nd Year Law student from Symbiosis Law School, NOIDA. 

 Sarla Mugdal v. Union of India
 Sarla Mugdal v. Union of India


The personal laws of each sect whether in the Muslim law, Hindu law or other religious communities have been quite different than the other laws laid down in the country so far and have been in conflict with each other that is unsolved until this date. These set of personal laws are identified in the other country’s constitutions unlike India, which does not incorporate the personal laws in their Constitution and have propagated the secular ideology. The uniform civil code, which is in the country was brought to light in the supreme court vide the case of Sarla Mugdal v. union of India(UOI). The present paper explore the angles of the constitutional law and the personal law’s harmonious construction to be applicable in India and the critical view of the case.


The case Sarla Mugdal v. Union of India[2]  described the genesis of the personal laws in India through the British Regulation of 1781, which was still a ruling authority in decision relating to the conflict arising in the conversion and bigamy. The Case of Sarla Mugdal is a one of a kind woven case of conversion and subsequent marriage that affected the applicability of the laws from both end. The case was filed by the president of the organisation on behalf of the main petitioner and relates with other three petitioner who were also a victim of the unfortunate offence committed by the husband, who was the common accused in all the four case. The organisation- Kalyani who were the support structure of the whole case. Meena Mathur was the first petitioner and was married to her husband in 1978.  In 1988, her  husband (Jitender Mathur), a Hindu, embraced Islam and married another woman who was a Muslim- converted-Hindu named Sunita Narula alias Fatima. Interestingly, a counter allegation was filed by Sunita alias Fatima that her husband was influenced by his first wife to convert to Hinduism, which lead onto abandon her and he also ceased to maintain her. Her another allegation filed under the petition was that the claim of her maintenance was also not being properly addressed in the either of the Hindu as well as the Muslim law leaving her on her own misery. In the third petition against the same man, Geeta Rani, a Hindu woman, alleged that her husband has converted to Islam to marry another woman namely, Deepa apart from putting up the allegation of beating her on several unreasoned occasions. The fourth petition revolved around the fourth wife Sushmita Ghosh who also admitted that her husband convert to Islam but to again marry another woman named Vanita Ghose.

Literature Review

Charting a New Path towards Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code[3]

The author in the present research paper has traced the ideology behind the Uniform Civil Code in India and how it can be implemented along with addressing various problems of minority resentment.  The author describes the various theory applicable to a country like India in which the Indian Constituent Assembly handled the religious rights in a pluralist society. But India being a religious state rooted deep in religion there could not be state neutrality. There is no mention of the personal law in the provision of the Article 29, 25 of the Indian Constitution but the Indian culture acknowledges its Minority ideology who were vulnerable 60% of the partition population that moved to India. Muslims needed guarantee in a post-independence era thus, they gave powers to Ulema who were all male conservative clerics and had passed on dissenting opinions regarding women in question of law. They had total autonomy over people and a Muslim rule that no one can change their law as it is based on ulema and shariat.

In the dissenting agreement of minority and state it is clear that the minority will not accept the rule of any majoritarian and a commitment of privacy for community was necessary and manage their religious affairs under Article 29.  In the discussion of Minority the Christian Laws were also in purview, stating that a man may obtain a divorce under the adultery ground but the women has to prove two offences under the husband in order to get divorce like adultery with cruelty or adultery with desertion and other draconian laws of bias land bequests in India among Christians. Thus, the Gender equality was certain to be questioned by the author as it is the crux of the Article 14 and 15 for all eth laws in force, along with the assessment of the Supreme Court’s mandate affecting the women personal laws. The recent case of Shah Bano was discussed in lieu of the analysis of the overriding effect of IPC, 1860 over personal laws and the backslash of the Ulema of them being not in accordance with the values enshrined in Islam and court conceded that the resultant effect of Article 44 might suppress the minority.  The gender biasness in various personal not only the Muslim Law has create a divide that will be fulfilled by the UCC . Author quotes Granville Austin stating that “modernization, economic progress, and education, especially for women, are likely to decrease the Muslims’ sense of isolation in society and their consequently tenacious grip on their personal law as an essential identifier.[4] The advantage of the UCC is the divesting rule of the patriarchy laws which is welcomed only if there is a parliamentary reformation which itself is ruled by majoritarian.

The author towards the end of the article explains the options available in the system that will accommodate the advantages of the UCC the first one being the right to choose what law governs them which is more or less invisible in Indian women’s context. The dual jurisdiction is the second suggestion to create more ways of remedy to choose from and give minority group and the state a check and balance system which will correct each other laws. The third  and last option was the amendment of the constitution which will include the change of Article 25 to practice and profess religion by maintaining equality among men and women which is an utopian solution to the problem of UCC which is mostly admirable but not practically feasible. If any of the above is not being implemented then the updating of religious laws, a drafting of civil code and keeping an oversighted and continued reform are the only practices that can be followed in a diverse country like India.

Nation and Family: Personal Law, Cultural Pluralism and gendered Citizenship in India[5]

The Author has provided the historical importance of the equality of law and gender role in India. It talks about the personal law cases and ‘isms’ that are prevalent in India. The author dissects the post colonisation position of the Family Law majoritarily in Hindu, Muslim, and Christians. The topics emphasise the effect of the inter-state relation and the community interests that help the transformation of the personal laws in a particular country and it is the ideology that has been followed in the India’s historical pressure of the majoritarian vs. minority debate that is continually discussed in the country. This article is concentrated to the simple analysis of how the communities affected the cultural practices, which in turn have processed the law making in India. But, it also noted that no
matter how stringent and patriarchal laws of the communities have been the courts have interpreted the judgement from the progressive and gender- bias free aspect making Shah Bano
[6] one of such judgements on legal pluralism. The Author discussed about the different source such as legislative records, commission’s report, legal sources like judgements and interviews of the scholars. These sources lead onto discovery of a new modern family system that would make a legitimately functional Hindu family and conceptualised of Indian family.

 In the fifth Chapter, the author examines the Muslim Law reforms and Christian Law reforms in personal laws, as they are the majoritarian minority. He critics the majoritarian view of the minority and the lack of awareness that is pervasive about the traditions of the minority and elaborates the different cultural mobilisation pattern in the Muslims and the Christians like Christian traditional practice of the talking the children to church every Sunday or having a baptism of the child when he/she initiates into an adult. The Author Concludes on the note that the lack of reforms in Hindu law regarding the categorisation of marriage and the transitional affinities that makes Muslim reluctant to accept the customs common with all other religions.


The objectives of the research paper on the case of Sarla mudgal v. Union of India are kept with a view of analysing the orbiter and the ratio with the current laws and legislation that surpass the domain of the bigamy and conversion in Indian legal system:
  1. To understand  and identify the ratio and the orbiter of Sarla Mugdal v. Union of India and critically comment on the decision of the supreme court.
  2. To formulate the premises of the constitution law which is applicable to the case concerned.
  3. To exponent the impact of bigamy and conversion in the Personal Laws of Hindu, Muslim and other sects.

The Issues & Judgement of the Case: A substantial question

The Sarla Mugdal was filed in the Supreme Court of India due to its significance on giving a clarification to the Bigamy laws in India with respect to the personal laws in India and revived the scope of Article 44 of the Indian Constitution. Though it was presented in the court of law to give justice to aggrieved but it eventual came down to a case of civil offence with various question of laws accepted by court as follows:

  1. Whether a Hindu husband married under the Hindu law could solemnize a second marriage under Islam after embracing Islam.

  2. Whether such second marriage will be valid if the previous marriage is not dissolved yet.

  3. Whether the marriage will still be valid qua the first wife being a Hindu and the husband being an embracer of Islam.

  4. Whether an offender of personal law be guilty under Section 494 of the Indian Penal Code.

Ratio- The Hindu marriage in the above case can only be dissolved on the  ground specified  under the Hindu Marriage Act and before the nullifying or dissolution of the previous marriage the husband is not allowed to marry a second woman. The para 23 of the judgement highlighted that the second marriage of an apostate husband is in violation to the principles of the natural justice. If the husband has converted to Islam it would make the previous marriage null in the Hindu law and would held to be void under the S.494 of Bigamy under the Indian Penal Code as per the case.


Constitutional significance

Justice R.M. Sahai ,in  above, cited that India is a religiously rooted country that have the belief and its culture settled among its citizen and if the religious laws, although deeply rooted, have been violative of the human dignity and rights then they might rob the country’s citizens from the civil and material freedom.  It is violative of the principles of natural justice and the constitutional right of practicing and professing any religion he/she relinquish his/her faith and embrace another religion[7]. The constitution has also had the provision of the creating laws in the interest of the ‘social welfare and reform’ and thus, bigamy law was introduced in the penal code governing the personal laws of the community in parts. Since, the right to start a family is a fundamental right by the way of Article 21 of Right to life and personal liberty[8] it is integral to consider the case of marriage being void on basis of conversion, both of the articles are a valid right individually.

The legislative competency of the parliament will adjudged If they are require to bring a law that is uniformly applicable in a diverse country of belief and practices since Article 25 of the Indian Constitution will not let the private laws of the community be dictated by a legislature totally until the community agree upon them to be formulated. The Law commission has also in its recommendation formulated the guidelines for the community in respect to the conversion of persons into different religion and made it loosely regulated[9].

Scope of the Uniform Civil Code in the personal law in the cases like the Sarla Mugdal

The personal law is more inclined towards the Civil aspects of law and are genesis of the various customs and rituals and hence, they should be treated in the same way in order to ensure the freedom of the believers of that particular believers. However, if in the case of any matter being arisen then the Indian civil code will be enacted which will enumerate equal rights and obligations without any discrimination or special rights based on caste, gender, sex or religion.  In this process, the rights of the individuals are secured and the UCC goal can be fulfilled, as it will create, the much needed gender parity among men and women. The Judgement’s para 24, jotted by Justice Kuldip Singh, described the scope of the Uniform Civil Code as “an imperative tool for promotion of national unity and developing cultural amity”. He said that the British Regulation of 1781 Act can be superseded or supplemented by the introduction of UCC and hence, requested the Government represented through Prime Minister to look into the scope of Article 44. The Solution suggested in the Article of the Towards Equality has also been suggested by  Law Commision of India and Justice KuldipHe also suggested that a commission on conversion should be appointed to check on abuse of religion by other people and make a provision of marrying other people outside religion applicable  to all religions , in lieu of which state of Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh Uttarakhand and Jharkhand have implemented Anti-Conversion Laws. The Sharia Bano[10] case had provide a platform to Supreme Court who have missed to address the core issue of personal laws supremacy over the fundamental right of life, dignity and non- discrimination , instead,  it declared Article 44 as a ‘dead letter’ and stated that the codification of personal laws itself will make it a valid law under Article 13.

Hindu Law validity

The Hindu law has strictly abided by the monogamy and the Hindu Marriage Act 1955 does accept the argument of bigamy as the marriage is a sacrosanct bond between two people. The conversion not affecting the marriage of two individual until and unless it is due to the course of the application of Section 13(ii) of the Act which enumerate the grounds of Divorce which subsequently, decree of which nullifies the previous marriage. It also lays down the law regarding the apostate as the Hindu law is applicable to all instead of the Muslim, Christian and Parsee citizens and if he or she has married his/her spouse under this Act, then they have to abide by the principles of this Act under this Act including monogamy. The Judgement of Sarla Mugdal had criticised the political stance of Jawaharlal Nehru on Hindu Code Bill which was applicable to all the Hindus living in India as it was one of the most deemed option to fit the already diverse and culturally sensitive country like India.  Although the essential enforcement of this Act is monogamy and it holds the previous marriage valid but it also does not completely void a marriage agreement when one is no longer a Hindu. It only declares a marriage void under Section 11 and 15 when the they are violative to the clause (i), (iv) and (v) of Section 5[11] of the Act. Although it is a settled law, it needs reconsideration and amendment as there is no third party in this combination of sections, making bigamy a void act by the introduction of the third party, it is nonetheless a bleak provision. The Court has the right to grant injunction against the Husband or any other person committing  bigamy under, Code of Civil Procedure Order xxxix read with 39 of Specific Relief Act, 1963[12] ( now amendment 2018) for the penalty prescribed under S.17 along with IPC S.494 & 495.

Muslim Law’s Christian and Parsi personal law’s validity

The Personal Laws in India are under the jurisdiction of the Lower Courts but the validity test is approved at the higher authority or courts as per the anvil of chapter 3 of Constitution of India. The Personal law i
n the Muslim group have been mandated by the Darul Qaza (parallel muslim courts) who have been annulling the unfavourable judgements of the Indian Courts in accordance to 
shariah law. This creates a constitutional validity challenge for the judgements concerning the Muslim personal Law as seen in the recent case where the Jamiyat didn’t agree to the marriage judged by a non-muslim judge which also lead to fatwa issued by the ulema against the girl who was not divorced[13]. No unilateral repudiation of marriage and it would be like forcing the partner to divorce his/her spouse S.2 of the Shariat Act defines the competency of the party[14]  who will be subjected to the Act but nowhere does the act try to depict that the applicability is justified when the one of the party is a Muslim.

Taking about Indian Christianity Marriage Act, 1872 it is silent on the aspect of the bigamy although it has 88 sections on marriage. The Christian Laws or as far as customs and cultural belief in India do state the importance of the anti-conversion as they believe that “no state, church or institution should stand in the way of individual’s pursuit of religious truth” but it in whole substantiates the validity of the general Penal code to take the course. Parsi Marriage and Divorce Act 1865 S.52 (2) implies that the conversion of a spouse won’t effect the marriage. The conversion in parsi law have been allowed only on the basis that the person has acquired other faith.

Conclusion and Critical Analysis

The Sarla Mugdal case has not emphasis on the aspect of the remedy that was asked by the petitioner, the organisation and mislead the remedial nature of the case which had to be later explained in the Lily Thomas vs. Union of India[15]. The husband was bound to be liable under the provision of the Indian Penal Code, 1860 S. 494 and S. 495 for bigamy along with being fined for the concealment of the marriage from the spouse. The present case did not highlight the reasoning for the purpose conversion was initiated at the married party as it was held in a Lahore High Court judgement Mohammmad v. Maryan[16] that the conversion is valid only if it is “genuine, of ulterior motive and unaffected by sordid motive”. The court in the present case should have questioned the purpose of conversion which it failed to realise and which might violate the constitutional right under the Article 25 of religious belief by hurting the intend of the community’s sentiment. Even after being a landmark judgement on women’s right, the issue of bigamy and conversion has not been clearly dealt under S.17 of the Hindu marriage act ,1955 which hold any marriage of ‘two Hindu’ to be void if any partner is living. There is a lot to say about the women rights in the judgement but, rather, the judges have restricted themselves to the interpretation of law and not included the rights of married partners. The Court also failed to address the minority tribes under Hindu religion where the bigamy is still practiced. The Court also did not address the right of women in bigamy and kept the case to be partial through the lens of the men’s society also keeping the Muslim women’s right in the case silent. It is not the intention of the either of the laws i.e . Hindu and Muslim Law intend to create mischief rule and evade the offences committed under other law. In pursuit of the bigamy and conversion law,  the UCC cannot be the whole-sole solution to the problems the personal laws suggest as seen from the first literature review. The women’s right are substantial even after the marriage and the duty of the state is to insure they are protected in a legitimate manner without hurting the sentiment of community.

[2] AIR 1995 SC 1531 (India).
[3] Chibber, Shalina A., Charting a New Path toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code,  83 Ind. L.J. 695 (2008).
[4] Granville Austin, RELIGION AND PERSONAL LAW IN SECULAR INDIA: A CALL TO JUDGMENT 15, 21 (Gerald James Larson ed., 2001)
[5] Narendra Subramanian. Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India.Stanford: Stanford University Press, 2014. 400 pp. ISBN 978-0-8047-8878-6.
[6] Mohd. Ahmed Khan v. Shah Bano Begum 1985 (3) SCR 844 (India).
[7]India Const. art.25 § 1.
[8] Lata singh v.state of Uttar Pradesh, AIR 2006 SC 2522 (India).
[9] Justice P.V. Reddi, 235th Report of Law Commission of India 2010: Conversion /Reconversion to another religion-mode of proof, Govt. of India, available at:
[10] Shayara Bano v. Union of India (2017) 9 SCC 1(India).
[11] Sona Raslel v Kiran Mayee Nayak (2010) I DMC 627 Chh (India).
[12] Shankarappa v. Basamura AIR 1964 Mys 247 (India).
[13] Arif Mohammed Khan, When the Constitution and the religious laws collide, The Eco. Times, Sept. 10, 2017,
[14]S.2 ,The Muslim Personal Law (Shariat) application Act, No. 26 of 1937,India Code (1993), available at
[15] (2000) 2 ALD Cri 686  (India).
[16] AIR 1936 Lah 666 p. 668 (India/Pakistan).

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