Two Hindus marry and have a son. The husband converts to Islam and marries a Muslim girl. Validity and legitimacy issues.

The First Marriage Remains Intact

The starting point is a firm constitutional and statutory principle: conversion to another religion does not operate as a dissolution of a Hindu marriage. Change of religion or loss of caste does not dissolve a marriage under Hindu law. The Hindu Marriage Act, 1955 under section 13(1)(ii) treats the respondent's conversion to another religion as a ground for divorce or judicial separation — but only at the instance of the non-convert spouse, which is the wife in this case. The husband who converts cannot seek any relief on the ground of his own conversion, for no man is permitted to take advantage of his own wrong.

The logic is compelling. A marriage celebrated under one personal law cannot be dissolved by the application of another personal law to which only one of the spouses converts. Where a marriage takes place under Hindu law, the parties acquire a status and rights by virtue of that law itself. If one of them is allowed to destroy those rights simply by embracing a different faith, the legal position of the innocent spouse — who continues to be a Hindu — would be rendered wholly precarious.

The Second Marriage Is Void

The question that naturally follows is: what is the legal status of the marriage the husband performs with the Muslim woman after his conversion? The answer was settled with clarity by the Supreme Court in the landmark cases of Sarla Mudgal v. Union of India (AIR 1995 SC 1531) and Lily Thomas v. Union of India (AIR 2000 SC 1650).

Section 17 of the Hindu Marriage Act states that any marriage between two Hindus solemnised after the commencement of the Act is void if either party has a spouse living. A man who converts to Islam no longer remains a Hindu, so section 17 with its express reference to "two Hindus" would technically appear inapplicable. This is precisely the mischief that unscrupulous husbands had sought to exploit. The Supreme Court firmly shut this door. It held that the first marriage under the Hindu Marriage Act continues to subsist notwithstanding conversion, and consequently, the second marriage contracted by the apostate husband — while sheltering under Islamic personal law which permits polygamy — is void and an illegal marriage in relation to the first wife who remains a Hindu.

The distinction the court drew is fundamental: a Muslim man who has always been a Muslim and validly marries a second wife under Muslim personal law is exercising a legitimate right. But a man who was married under a monogamous law and then converts to Islam only to contract a second marriage cannot escape prosecution under section 494 of the Indian Penal Code, 1860. He would be guilty of bigamy.

Criminal Liability of the Husband

The husband who attempts this stratagem is liable to be prosecuted for bigamy under section 494 IPC read with section 17 of the Hindu Marriage Act. In Lily Thomas, the court held that if a husband marries a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by the Hindu wife would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act, under which the first marriage was solemnised. The second marriage, notwithstanding his conversion, would constitute an offence triable under section 17 of the Hindu Marriage Act read with section 494 IPC.

It is worth noting that section 494 IPC punishes bigamy with imprisonment up to seven years. If the fact of the first marriage was concealed from the second spouse, section 495 IPC applies, extending the punishment to ten years.

Rights of the First Hindu Wife

The Hindu wife whose husband has abandoned her and taken a second wife is not left without remedy. Her remedies unfold along two parallel tracks:

• She may seek a divorce under section 13(1)(ii) of the Hindu Marriage Act on the ground that her husband has converted to another religion. This is a clean, available remedy.

• She is entitled to separate residence and maintenance under section 18(2)(f) of the Hindu Adoptions and Maintenance Act, 1956, since her husband has ceased to be a Hindu by conversion.

• She may additionally institute a criminal complaint for bigamy.

The second Muslim wife, however, acquires no legal status. The second marriage being void, she cannot claim the rights of a wife under the Hindu Marriage Act, nor can she succeed to the husband's property as a widow.

Status of the Son from the First Marriage

The son born of the first Hindu marriage stands on entirely firm legal ground. That marriage was and remains valid. The son is a legitimate child, entitled to all the rights of a coparcener in a Mitakshara joint family, including rights of inheritance under the Hindu Succession Act, 1956. His father's conversion does not affect his status or his birth right in any manner.

Legitimacy of Any Child Born of the Second Union

This is where section 16 of the Hindu Marriage Act becomes critically important. Even though the second marriage is void, section 16 as amended in 1976 confers legitimate status on children born of a void marriage. Such children are deemed to be the legitimate children of their parents for the purpose of succession and inheritance. However, the protection is limited: these children can claim rights only in the property of their parents — meaning the father's separate property — and not in the coparcenary property of the joint Hindu family, nor in the property of any other relation. The Supreme Court in Jinia Keotin v. Kumar Sitaram Manjhi (2003 1 SCC 730) laid down this restricted scope of section 16, holding that while such children enjoy legitimacy, they cannot claim a share as coparceners.

In essence, this situation reveals a deep fault line in Indian family law — the coexistence of monogamous personal laws alongside a system that permits polygamy under Muslim law. The Supreme Court has plugged one gap with firm judicial pronouncements in Sarla Mudgal and Lily Thomas, but the absence of a uniform civil code leaves this terrain fragmented and prone to exploitation, as the courts themselves have lamented.