A little known Silchar based group called Adhibakta Parishad is making desperate efforts to create communal tension in Barak valley (
South Assam) following
the reported conversion of sitting Congress MLA Dr Rumee Nath into Islam and
her marriage with a Muslim boy while her previous marriage subsists. The
group has smelt ‘Love Jehad’ behind her actions. They are alleging that
‘Love Jehad’ which, according to them, is a new ploy of the Islamic
fundamentalist-terrorist to compel non-Muslim women to embrace Islam, might be
instrumental behind her conversion and marriage. They are also dragging into it
Minister Siddique Ahmed. (See a news report here: http://www.sentinelassam.com/cachar/story.php?sec=2&subsec=12&id=118671&dtP=2012-05-26&ppr=1#118671)
|Convert MLA Dr Rumee Nath with |
her young daughter (before she
abandoned the young
girl for a new husband)-
Every citizen of
India has the
fundamental constitutional rights to freedom of thought, conscience and belief.
S/he also has a right to practise, profess and propagate any religion of her
choice. It obviously includes the right to convert into any other religion or
non-religion from the religion of birth.
However, the deeds of the MLA can at best be called immature and incorrect. They are spiritually, politically and also legally incorrect. But they are not incorrect in themselves. Conversion and re-marriage by themselves are legal and in some cases may appear to be desirable for the individuals concerned. In this case, the rashness with which she has accomplished them made them incorrect and immature.
Spiritually incorrect, because the intention behind her conversion appears not to achieve any spiritual upliftment, rather she wanted to deceive the law, particularly the prohibition of bigamy in section 17 of the Hindu Marriage Act, 1955 and Section 494 of the Indian Penal Code, 1860 which punishes bigamy.
It is also politically incorrect because it gives chance to the right-wing opposition to poison the political and social environment.
I do not want to go into the details of spiritual and political correctness and incorrectness of her acts here.
Let me just briefly deal with the legal position of her reported deeds.
As it involves reported conversion into Islam, it would be good to examine the Islamic law first.
According to my friend Maolana Joynal Abedin, when a non Muslim married woman becomes Muslima and her husband remains non-Muslim, the latter will be proposed to adopt Islam by Qazi. If he accepts this proposal his wife will remain his wife. On the other hand if he rejects the proposal Qazi will declare separation between them. This separation is a Talaq according to Imam Abu Hanifa and Imam Muhammad. (FATHUL QADIR).
For a valid conversion it is also required that the new convert should hold herself to the world as a Muslim. In this case, according to the media report, conversion and marriage took place at a time in a single sitting. The new convert, thereafter, denied the facts of conversion and marriage in public for some days. She has not held herself as a Muslim to the world soon after her conversion.
More over, the statement of Islamic law made above may be the position of pure Islamic law. However, it is to be kept in mind that it has only moral and persuasive force and no legally binding force. The part of Islamic law applicable in
India as Muslim personal law is a
different thing. That part of Islamic law which deals with certain personal
matters including marriage and divorce as modified by the Parliament of India
from time to time and as understood, interpreted and applied by the Supreme
Court of India is enforced in India
as the Muslim personal law by virtue of the Muslim Personal Law (Shariat) Act, 1937.
The Supreme Court and other courts in
interpret and apply Muslim personal law in the light of the constitutional and
legal framework of the country. Because events in human life and actions of
human beings are always interdependent and inter-connected and can not be
completely separated. The same action that falls within the domain of personal
law may also constitute a crime under the general penal law of the country. The
civil aspect of such and action of person who is subject to the Muslim personal
law will be dealt with under this law and the criminal aspect will be dealt
with under general criminal law. Therefore the personal aw can not be seen and
applied in complete ignorance of the broader constitutional and legal scheme of
Having said that let me go to the point in hand. The point seems to be the status of a person in marriage and in other matters who was non-Muslim and married and got converted into Islam and then re-married another person. A similar case was extensively dealt with by the Supreme Court and a historic judgement was passed on 5 May 2002 in the case of Lily Thomas and Other Vs. Union of India and Others. [Citations are 2000 AIR 1650, 2000(3) SCR1081, 2000 (6) SCC 224, 2000 (4 ) SCALE 176 , 2000 (5 ) JT 617]
The bench was constituted by Justices R P Sethi and S Saghir Ahmed and the judgment was authored by Justice S Sghir Ahmed. It was a judgment on a review petition where the All India Muslim Personal Law Board and the Jamiat Ulema Hind etc also took part.
|Rumee Nath with her new husband.|
Under the Muslim Law one can avoid criminal liability for bigamy only when the previous marriage is also under the Muslim Law. In any case, in the instant case before the court, the conversion is feigned and not because of a change in real faith. About conversion, Justice S. Saghir Ahmad writes: ‘Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and devotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion is not easily interchangeable. If the person feigns to have accepted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited.’
|The Supreme Court of India|
It is further held that it is not proper to say that ban on the second marriage after conversion and prosecution of the convert under Section 494 IPC is against the provisions of religious freedom guaranteed under Article 25 of the Constitution. The Sarla Mudgal judgment has not violated any body’s right to conscience and right to freely propagate his religion. Freedom guaranteed under Article 25 is such freedom which does not encroach upon a similar freedom of the other persons. Under the Constitutional Scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit his belief and ideas in a manner which does not infringe the religious right and personal freedom of others.
The facts of the case were Smt. Sushmita Ghosh filed a Writ Petition No. 509 of 1992 in the Supreme Court and stated that she was married to Mr. G.C. Ghosh (now Mohd. Karim Ghazi) according to Hindu rites on 10 May, 1984. He asked her to agree for a divorce by mutual consent as he had converted to Islam and was to marry Ms Vanita Gupta (a mother of two children) in the second week of July. Smt. Sushmita challenged the second marriage of her husband as being violative of Article 15 (1) of the Constitution, she also submitted that Shri Ghosh had converted to Islam not being influenced by its teachings and ideals but only for the purpose of the second marriage. After conversion, he has done no overt act of being a Muslim. He has not mutated or got entered his new name in the official records. His conversion is simply feigned and sham. She had got filed the case through Smt. Sarla Mudgal, the president of an NGO Kalyani in 1992 which was decided in 1995. During the pendency of this case Mr. Mohd. Karim Ghazi had married Ms Vinita Gupta (now Hena Begum) on 3 September, 1992 and a son was born out of this second wedlock. Ms Sushmita filed the birth certificate of this baby in the Court in which the name of the father and mother was written as G.C. Ghosh and Vinita Ghosh respectively. She also filed copy of the voters’ list for the year 1994 in which the name of the husband and wife were mentioned as G. C. Ghosh and Vinita Ghosh. Mr. Mohd. Karim Ghazi had applied for
Bangladesh visa. Ms Sushmita filed
copy of that document also in the court in 1994 in which his name was written
as Gyan Chand Ghosh and religion was mentioned as Hindu. The name of the
husband and wife were mentioned as Mohd. Karim Ghazi and Hena Begum in the
Nikahnama which was issued by Mufti Mohd. Tayyab Qasmi. Signature on it was
legible as G.C. Ghosh. Ms Kapil Gupta, the mother of the bride had signed as a
Section 17 of the Hindu Marriage Act, 1955 says: 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 (45 of 1860), shall apply accordingly.
Section 494 of the IPC says: 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.
Section 495 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.