The Telegraph, 16 September 2009
Two much!
If the Law Commission of India has its way, men who change their religion to commit bigamy will not go scot free any more, says Shabina Akhtar
When Rajesh Kumar moved into Ayesha Khanum’s apartment near Park Street after a whirlwind affair, it led to a lot of gossip. But when Kumar, who is married and has two children, changed his religion to Islam to marry Ayesha, his family and friends were shell shocked.
Kumar is not alone. Indian men regularly take recourse to changing their religion so that they can marry again without undergoing a legal divorce. Last year, Haryana politician Chander Mohan did this to marry his mistress Anuradha Bali. After absconding for a few days the two resurfaced as Chand Mohammad and Fiza, respectively. The couple had changed their religion to Islam and had got married at a mosque in Meerut. Evidently, Chander Mohan thought that as Chand Mohammad, he had every right to commit bigamy because the Muslim Personal Law allows it in the case of men.
Of course, since then, Chander Mohan’s, alias Chand Mohammad’s, second marriage has fallen apart. But the point is that men like Kumar and Chander Mohan regularly misuse their constitutional right to change their faith for the sole purpose of indulging in bigamy.
But that may not be so easy to do any more. The Law Commission of India recently recommended that all major matrimonial laws like the Hindu Marriage Act, Christian Marriage Act, Parsi Marriage Act, Special Marriage Act and so on should have specific insertions that will make second marriages by conversion null and void.
In its report, the Commission recommends, “In the Hindu Marriage Act, 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void ... and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.”
In other words, if the Law Commission’s recommendations come into effect, even if a man changes his religion to Islam, it will not make him immune to the punishment for bigamy.
Welcoming the recommendations, Justice Samaresh Banerjea, the first lokayukta of West Bengal, says, “There is already a Supreme Court verdict stating that marriages where conversion is used as a way to marry a second time are illegal. However, given its rampant violation, perhaps it is necessary to bring in a clear legislative reform by inserting certain provisions in all matrimonial law statutes of India.”
According to Section 494 of the Indian Penal Code (IPC), bigamy is a non-cognisable and bailable offence. A person committing bigamy can be punished with a maximum of 10 years’ imprisonment. Under Section 198 of the IPC, only the aggrieved person can complain to the police or the magistrate in case of bigamy. If the aggrieved person is the wife, then her father can also complain under Section 494 or 495 of the IPC.
Of course, the reality is that very few wives do complain against bigamous acts by their husband. The Mumbai film industry, for instance, is rife with actors and producers who have committed bigamy but their respective legal wives choose not to make formal complaints against them.
Says Kirti Singh, director of Women’s Legal Forum, New Delhi, “Most cases of bigamy go unregistered because very often women accept the situation and baulk at the idea of prosecuting their husbands. Besides, single and deserted women have a very poor status in our society. So if they are promised maintenance, usually women back out from registering a complaint or dragging the bigamous husband to court.”
Significantly, the Law Commission has also recommended that bigamy be made into a cognisable (non-bailable) offence. Says law expert Sarfaraz Ahmed Khan, “The best thing about the Law Commission’s recommendation is that bigamy will become a cognisable and non-bailable offence. Now the law enforcement authorities are bound to take action if an aggrieved wife lodges a complaint with the local police station.”
Many legal experts feel, however, that the Law Commission missed an opportunity here to recommend that complaints of bigamy can come in not just from the wife but also from neighbours and other family members. Justice Banerjea, for instance, says that the Commission could have taken a leaf out of the Dowry Act (Section 498A of the IPC) and recommended that locals and neighbours or activists can also raise the alarm if they come to know of bigamy being committed. “I suggest this because a lot of women just don’t have it in them to come out and protest,” he says.
But nearly everyone agrees that the government should immediately act upon the Commission’s suggestion and strip would-be bigamists of the fig leaf of converting to Islam. As early as 1988 Justice Bhaskar Rao of the Andhra Pradesh High Court had severely criticised the practice of bigamy by conversion. He had observed that the old rule that the motive behind religious conversions could never be questioned had to be rejected at least in cases of a conversion that was associated with bigamy.
“The motive behind such conversions is quite clear. It is definitely not for the love of the religion. They are just hiding behind the religion to protect themselves from the consequences of their wrongdoing,” says Calcutta High Court counsel Amjad Ali Sardar.
Muslim religious leaders too decry this kind of conversions. “Islam does not approve of a conversion that is used for the purpose of indulging in polygamy. According to the Prophet, the effect of an action is governed by its underlying intention. So such conversions definitely have a doubtful religious validity,” says Maulana Syed Nizamuddin, Shariat expert and general secretary of the All India Muslim Personal Law Board.
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