# Furkan S/o Akhtar Ali & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2025) 5 ILRA 1027
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-08
- **Case number:** Crl. Misc. Application U/S 528 BNSS No. 14448 of 2025
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/furkan-s-o-akhtar-ali-ors-v-state-of-u-p-anr-opp-parties-53285
- **Pages:** 13

## Headnote

Muslim Law- if a Muslim male performs his
first marriage as per Mohammedan law -then
second, third or fourth marriage will not be
void-ingredients of Section 494 I.P.C. will not be
attracted for the second marriage- except in
second marriage itself declared Batil (void
marriage) -as per Shariat by the Family Court
u/s 7 of the Family Court Act or by any
competent
court.-if
the
first
marriage
is
performed under Special Acts-and performs
second marriage as per the Mohammedan law,
after conversion to Islam then his second
marriage will be void and offence u/s 494 I.P.C.
(E-9)

List of Cases cited:

## Text

_Characters 0–39,795 of 42,734. This is a partial read: ask again with offset=39795 for what follows._

5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1027
seems to be legitimate sources. There is no
allegation in the complained filed by ED
that the applicant was involved in any of
the aforesaid activities. It is only when
money is generated as a result of such acts
that PMLA steps in as soon as proceeds of
crime are involved in any process or
activity but in the present case, the
applicant is not alleged to have been
involved in any process or activity after
generation of the proceeds of crime.

22. A person can be prosecuted under
PMLA only if the ED has reason to believe
that the person is in possession of proceeds
of crime, which belief is supported by
tangible and credible evidence indicative of
involvement of the person concerned in any
process or activity connected with the
proceeds of crime. In the present case, there
is no allegation that the applicant has at any
point of time been in possession of any
proceeds of crime.

23. The applicant is already facing
trial for the scheduled offence since the
year 2010 and the learned counsel for the
parties have informed that in that case also
merely charges have been framed till date
and no prosecution witness has been
examined.
The
case
lodged
by
the
Directorate of Enforcement was initiated by
lodging the ECIR in the year 2010, the
complaint was filed in the year 2017,
charges have been framed in the year 2025
and further proceedings are yet to take
place. It appears that neither the case
relating to the scheduled offence instituted
by the CBI nor the case relating to PMLA
instituted by the ED could make any
substantial progress during the past 11⁄2
decade.

24.
In
view
of
the
foregoing
discussion, I am of the considered view that
the facts of the present case where the only
allegation against the applicant is of
providing assistance in generation of the
proceeds of crime and he is not alleged to
have been involved in any process or
activity after generation of the proceeds of
crime or to have at any point of time been
in possession of any proceeds of crime, do
not even prima facie make out the offence
of money laundering defined under Section
3 of the Prevention of Money Laundering
Act. In these circumstances, continuance of
the proceedings under PMLA against the
application would only amount to his
persecution.

25. Accordingly, the application filed
under Section 482 Cr.P.C. is allowed. The
complaint dated 16.09.2017 filed by the
Directorate of Enforcement against the
applicant, the cognizance and summoning
order dated 02.04.2018 and the entire
proceedings of Sessions Case No. 123 of
2023, under Section 3 & 4 of the
Prevention of Money Laundering Act, 2002
in the Court of Special Judge (C.B.I.),
Court No. III, Lucknow, against the
applicant only, are quashed.
----------
(2025) 5 ILRA 1027
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Crl. Misc. Application U/S 528 BNSS No. 14448
of 2025

Furkan S/o Akhtar Ali & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Alok Kumar Pandey, Sri Prashant
Kumar, Sri Susheel Kumar Pandey

Counsel for the Opp. Parties:
G.A.

Muslim Law- if a Muslim male performs his
first marriage as per Mohammedan law -then
second, third or fourth marriage will not be
void-ingredients of Section 494 I.P.C. will not be
attracted for the second marriage- except in
second marriage itself declared Batil (void
marriage) -as per Shariat by the Family Court
u/s 7 of the Family Court Act or by any
competent
court.-if
the
first
marriage
is
performed under Special Acts-and performs
second marriage as per the Mohammedan law,
after conversion to Islam then his second
marriage will be void and offence u/s 494 I.P.C.
(E-9)

List of Cases cited:

1. Smt. Sarla Mudgal Vs U.O.I. & ors., 1995 3
SCC 635

2. Lily Thomas Vs U.O.I. & ors., 2000 6 SCC 224

3. Kalim Shaikh Munaf & ors.Vs The St. of Maha.
& anr., Criminal Application No. 2255 of 2019

4. Dr. Surajmani Stella Kujur Vs Durga Charan
Hansdah & anr., (2001) 3 SCC 13

5. A.S. Nazar & ors.Vs Jissa & anr., 2017 SCC
Online Ker 17001

6. Jafar Abbas Rasoolmohammad Merchant Vs
St. of Guj., 2015 SCC Online Gujarat 5552

7. Writ Petition No. 202 of 2018, Ashwini Kumar
Upadhyay Vs U.O.I.

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Alok Kumar Pandey,
learned counsel for the applicants and Sri
Pankaj Saxena, learned A.G.A. for the
State.

2. The present application has been
filed to quash the charge-sheet no.
318/2020 dated 08.11.2020 and cognizance
and summoning orders passed in Criminal
Case No. 17364 of 2021 (State of U.P. Vs.
Furkan & others) against the applicants
arising out of Case Crime No. 5 of 2020 u/s
376, 495, 120-B, 504, 506 I.P.C., Police
Station- Mainathar, District- Moradabad,
pending before the court of learned
Additional Chief Judicial Magistrate-06,
Moradabad.

3. Learned counsel for the applicants
has submitted that this fact is admitted by
the opposite party no. 2 in her statement
recorded u/s 164 Cr.P.C. that applicant no.
1 was already married and this fact was not
disclosed to her. Though opposite party no.
2 has admitted that she married the
applicant no. 1 after being in a relationship
with him, and she has been residing in
Delhi. Therefore, being a married wife, no
offence u/s 494 I.P.C. is made out because
under Mohammedan Law, a muslim man
can get married upto 4 times, and it is
further submitted that the Muslim Personal
Law (Shariat) Application Act, 1937
(hereinafter referred to as the "Shariat
Act") permits the muslim man to get
married more than once then, even after
getting a second marriage with the opposite
party no. 2, no offence u/s 494 I.P.C. will
be made out against him.

4. Learned counsel for the applicants
has further submitted that Section 2 of the
Shariat Act permits all the issues regarding
marriage and divorce shall be decided as
per the Shariat Act, which permits the man
to get married even during the lifetime of
the spouse. It is further submitted that the
Shariat Act was enacted in 1937, which is a
Special Act, while I.P.C. is the General
Act, which was enacted in 1860. Therefore,
5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1029
in
view
of
the
maxim,
Generalia
specialibus non derogant, the special act
will prevail over the general act.

5. In support of his contention, learned
counsel for the applicants has relied upon
the judgement of the Apex Court in the
case of Smt. Sarla Mudgal Vs. Union of
India and others, 1995 3 SCC 635,
wherein the Apex Court has observed that
freedom of religion is the basic foundation
of secularism, and that was guaranteed by
Articles 25 to 28 of the Constitution of
India and right to profess, practice and
propagation, including external overt acts
of the individual, is a matter of faith and
the same is guaranteed by the Constitution
of India. Therefore, the issue of marriage,
which belongs to the religious liberty is
protected by the Constitution of India. It
was further observed in that judgement that
only in those cases offence u/s 494 I.P.C.
would be attracted where a second
marriage is void, like contracting a second
marriage after conversion into Islam, he has
to get his first marriage dissolved. It is
further submitted by the learned counsel for
the applicants that in the case of Smt. Sarla
Mudgal (supra), the Apex Court has also
observed that the government should look
into the issue to frame the Uniform Civil
Code to check the abuse of religion by any
person, but till date, the Uniform Civil
Code has not been enacted. The Shariat Act
will prevail over the I.P.C. being Special
Act. It is also submitted that the Apex
Court, in the case of Lily Thomas Vs.
Union of India & Ors., 2000 6 SCC 224,
has observed that the second marriage
under the Mohammedan Law is not an
offence if the first marriage was performed
as per Mohammedan Law and in the
present case, it is not in dispute that the
first marriage was contracted by the
applicant no. 1, with applicant no.2,
Khusnuma, as per the Mohammedan Law.
Therefore, the marriage of the applicant
with the opposite party no. 2 is a valid
marriage.

6. Learned counsel for the applicants
has further relied upon the judgement of the
Division Bench of Bombay High Court in
the case of Kalim Shaikh Munaf and
others Vs. The State of Maharashtra and
another, Criminal Application No. 2255
of 2019, wherein the Division Bench has
relied upon Apex Court's judgement in the
case of Dr. Surajmani Stella Kujur Vs.
Durga Charan Hansdah and another,
(2001) 3 SCC 13 as well as judgement in
the case of A.S. Nazar and others Vs.
Jissa and another, 2017 SCC Online Ker
17001, wherein it is observed that to attract
offence u/s 494 I.P.C., second marriage
must be void, but in Mohammedan Law,
the second marriage is not void if the first
marriage
is
also
performed
as
per
Mohammedan Law. It is further submitted
that as per the Mohammedan Law, a
Muslim man can perform upto 4 marriages,
and all marriages would be valid.

7. Learned counsel for the applicants
has fairly submitted that polygamy in
Mohammedan Law is not in the category of
'obligatory' and 'recommended' but in the
category of 'allowed' and has submitted
that as per the verse 4:3 of the Quran,
marriage more than one - two, three or four
is subject to equity in man's dealing with
his
wives
as
to
expenditure,
accommodation, food, clothing and kind
treatment. If a man feels that he will fail to
observe such equity, then he is not allowed
to practice this choice. Therefore, the
message of the Quran is obvious. If a man
is unable to fulfil the condition of being
just with all his wives, then he is not
allowed to have more than one wife.
1030 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Per contra, learned A.G.A. has
submitted
that
a
second
marriage
performed by a Muslim man will not
always be valid marriage because in case
the first marriage was not performed as per
the Muslim law but performed as per
Special Act or Hindu Law, then second
marriage would be void and the offence u/s
494 I.P.C. would be attracted. It is also
submitted by learned A.G.A. that if a nonmuslim married man during the lifetime of
his spouse, converted to Muslim religion
and contracted the second marriage, then
the second marriage would be void and
offence u/s 494 I.P.C. would be attracted.
He also relied upon paragraph no. 32 of
Lily Thomas (supra), wherein the Apex
Court has observed that offence u/s 494
I.P.C. would be attracted only if the second
marriage is void. Learned A.G.A. has also
relied
upon
Jafar
Abbas
Rasoolmohammad Merchant Vs. State of
Gujarat, 2015 SCC Online Gujarat 5552,
wherein in paragraph no. 40, exceptions to
polygamy in Mohammedan Law have also
been discussed. Relying on this judgement,
learned A.G.A. further submitted that a
Muslim man has no unfettered power to get
married more than once during the lifetime
of his spouse. It is only in those cases
where second marriage does not fell within
the exception carved out in paragraph no.
40 of Jafar Abbas Rasoolmohammad
Merchant (supra) that marriage would be
valid.

9. Learned A.G.A. has also submitted
that the issue of validity of Shariat Act is
also sub-judice before the Apex Court in
Writ Petition No. 202 of 2018, Ashwini
Kumar Upadhyay Vs. Union of India.

10. As the issue is already pending
before the Apex Court, the same cannot be
adjudicated till the Shariat Act is declared
invalid by the Apex Court, the Act would
still hold good and continue to be treated as
valid.

Analysis and Conclusion :-

11. After hearing learned counsel for
the parties and perusal of record, the sole
question that arises for determination is that
even after contracting a second marriage
during the lifetime of the spouse, a Muslim
male will not be liable for bigamy u/s 494
I.P.C.

12. For the applicability of Section
494 I.P.C. [corresponding to Section 82(1)
B.N.S.], it is necessary that at the time of
second marriage, there must be a living
spouse, and second marriage is void.
Section 494 I.P.C. is being quoted as under
:-

Section 494 in The Indian Penal Code,
1860

494. Marrying again during
lifetime of husband or wife.-

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
5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1031
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.

13. From a perusal of Section 494
I.P.C., it is clear that even if a second
marriage is performed or contracted during
the lifetime of a living spouse but if second
marriage is not void then ingredients of
Section 494 I.P.C. will not be attracted. In
other words, for attracting the ingredients
of Section 494 I.P.C., second marriage
must be void.

14. As per Section 2 of the Shariat
Act, the validity of marriage among two
Muslims (male and female) shall be
decided as per the Shariat. Section 2 of the
Shariat Act is being quoted as under :-

"2. Application of personal law
to Muslims.-Notwithstanding any custom
or usage to the contrary, in all questions
regarding intestate succession, special
property of females including personal
property inherited or obtained under
contract or gift or any other provision of
personal laws, marriage, dissolution of
marriage, including talaq, ila, zihar, lian,
khula and mubaraat, maintenance, dower,
guardianship,
gifts,
trusts
and
trust
properties and wakfs (other than charities
and charitable institutions and charitable
and religious endowments), the rules of
decision in cases where the parties are
Muslims, shall be the Muslim Personal Law
(Shariat)."

15. Marriage under Muslim Personal
law (nikah) is a civil contract entered into
between two persons of the opposite sexes
with a view to the mutual enjoyment and
legalisation of children. The Islamic
concept of marriage differs from the Hindu
concept, under which the marriage is not a
mere
civil
contract
but
a
religious
sacrament (samskara). The design and
object of marriage under Islam is not only
the procreation of children but also mutual
enjoyment. Celibacy and asceticism are not
recognized in Islam as they lead to
innumerably evil consequences. Muslim
marriages can be classified into three
categories, and these marriages were
discussed
in
Mullah's
principle
of
Mohammedan Law, in paras 260 to 264 :-

(i) Sahil, i.e., a valid marriage
being in confirmity 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.

(ii) 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.

(iii) Fasid, i.e., irregular marriage
which is not per se unlawful, but unlawful
in its attributes, e.g., 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 during
the subsistence of the marriage with 4
others, marriage with a non-muslim wife
etc. An irregular marriage does not create
mutual rights of inheritance between the
husband and the wife but the children are
legitimate.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Sri Alok Kumar Pandey, learned
counsel for the applicants has submitted
that in Islam, we have three degrees for
permitted deeds :

(i) Obligatory

(ii) Recommended

(iii) Allowed.

He has further submitted that
polygamy falls in 3rd category. Polygamy
is permitted for many social reasons.
However, it is by permission and not an
obligation or recommendation in the Quran
for a Muslim male to indulge in polygamy.
The Islamic law jurist, 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 Mohammedan Law
p.212)."

17. 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 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."

18. 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 the capacity to do justice between
co-wives in law is a condition precedent.
Even under Muslim Law, a plurality of
marriages is not unconditionally conferred
upon the husband.

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 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 Oft-Forgiving, Most Merciful.
TAFSIR AL-MIZAN

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

(129) 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; so that you leave hear as it
were in suspense: and if you effect a
reconciliation and guard (against evil),
then surely Allah is Forgiving. Merciful.

19. The Quran allows polygamy for a
fair reason, but the men use that provision
today for a selfish purpose. Polygamy finds
mention in Quran only once, and it is about
5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1033
conditional polygamy. There is a historical
reason why the 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 Arabs. The Muslims suffered
heavy casualties in defending the nascent
Islamic community in Medina. It was under
such circumstances that the Quran allowed
conditional polygamy to protect orphans
and their mothers from exploitation.

20. From the above-quoted verses of
the Quran, it is clear that the Quran asks
men first consider taking care of the
orphans and only when they think they 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 with justly on par
with the existing one.

21. From the above discussion, it is
clear that second marriage during the
lifetime of a living spouse is permissible in
Mohammedan Law, but with certain
condition. Therefore, if a Muslim man
contracts a second marriage as per Muslim
Law, during the lifetime of the living
spouse then, his second marriage will be a
valid marriage subject to the condition that
the first marriage was also contracted as per
the Muslim Law. The second marriage still
can be declared as Batil (void marriage)
under the Mohammedan Law but unless
such a declaration is made, a second
marriage of two Muslims (male and
female) would be valid.

22. The issue of second marriage in
the Mohammedan Law and prosecution u/s
494 I.P.C. in respect of second marriage
was considered in the case of Smt. Sarla
Mudgal (supra). The Apex Court in this
case was considering the question of
whether a Hindu husband, married under
Hindu law, by embracing the Islam, can
solemnize
a second marrige without
dissolution of the first marriage and
whether such a husband would be guilty u/s
494 I.P.C. The Hon'ble Apex Court after a
detailed discussion observed that Hindu
marriage solemnized under the Hindu
Marriage Act can be dissolved only on the
ground specified under the Act and till the
time hindu marriage is dissolved as per the
Hindu Marriage Act, none of the spouses
can contract second marriage by converting
to Islam, as the conversion into Islam itself
will not dissolve the marriage performed
under the Hindu Marriage Act and in such
case, person contracting second marriage
will be liable for prosecution u/s 494 I.P.C.
Paragraph nos. 17, 18, 19, 20 and 21 of
Smt. Sarla Mudgal (supra) are being
quoted as under :-

17. It is obvious from the various
provisions of the Act that the modern Hindu
Law
strictly
enforces
monogamy.
A
marriage performed under the Act cannot
be dissolved except on the grounds
available under section 13 of the Act. In
that situation parties who have solemnised
the marriage under the Act remain married
even when the husband embraces Islam in
pursuit of other wife. A second marriage by
an apostate under the shelter of conversion
to Islam would nevertheless be a marriage
in violation of the provisions of the Act by
which he would be continuing to be
governed so far as his first marriage under
the Act is concerned despite his conversion
to Islam. The second marriage of an
apostate would, therefore, be illegal
marriage qua his wife who married him
under the Act and continues to be Hindu.
Between the apostate and his Hindu wife
the second marriage is in violation of the
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of the Act and as such would be
nonest. Section 494 Indian Penal Code is
as under:-

"Marrying again during lifetime
of husband or wife. 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.

The necessary ingredients of the
Section are: (1) having a husband or wife
living; (2) marries in any case; (3) in which
such marriage is void; (4) by reason of its
taking place during the life of such husband
or wife.

18. It is no doubt correct that the
marriage solemnised by a Hindu husband
after embracing Islam may not be strictly a
void marriage under the Act because he is
no longer a Hindu, but the fact remains
that the said marriage would be in
violation of the Act which strictly professes
monogamy.

19. The expression "void" for the
purpose of the Act has been defined under
Section 11 of the Act. It has a limited
meaning within the scope of the definition
under the Section. On the other hand the
same expression has a different purpose
under Section 494, IPC and has to be given
meaningful interpretation.

20. The expression "void" under
section 494, IPC has been used in the wider
sense. A marriage which is in violation of
any provisions of law would be void in
terms of the expression used under Section
494, IPC.

21. A Hindu marriage solemnised
under the Act can only be dissolved on any
of the grounds specified under the Act. Till
the time a Hindu marriage is dissolved
under the Act none of the spouses can
contract second marriage. Conversion to
Islam and marrying again would not, by
itself, dissolve the Hindu marriage under
the Act. The second marriage by a convert
would therefore be in violation of the Act
and as such void in terms of Section 494,
IPC. Any act which is in violation of
mandatory provisions of law is per-se void.

23. The issue of second marriage
under Mohammedan Law after conversion
from Hindu to Muslim and prosecution u/s
494 I.P.C. in respect of second marriage
was again considered by the Apex Court in
the case of Lily Thomas (supra). In this
case, the Apex Court again reiterated the
legal position that mere conversion to Islam
will not bring an end to the marital ties of
first marriage and despite conversion to
some other religion, a married Hindu would
be liable for prosecution for the offence of
bigamy u/s 17 of Hindu Marriage Act r/w
Section 494 I.P.C. It was also observed by
the Apex Court that prosecution u/s 494
I.P.C. on second marriage can be avoided
only when the first marriage is under the
Mohammedan Law not if the first marriage
was under any other personal law.
Paragraph nos. 32 and 33 of Lily Thomas
(supra) are being quoted as under :-

32. From the above, it would be
seen that mere conversion does not bring to
an end the marital ties unless a decree for
divorce on that ground is obtained from the
court. Till a decree is passed, the marriage
subsists. Any other marriage, during the
subsistence
of
first
marriage
would
constitute an offence under Section 494
read with Section 17 of the Hindu Marriage
Act, 1955 and the person, in spite of his
conversion to some other religion, would
be liable to be prosecuted for the . offence
of bigamy. It also follows that if the first
marriage was solemnized under the Hindu
5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1035
Marriage Act, the 'husband' or the 'wife',
by mere conversion to another religion,
cannot bring to an end the marital ties
already established on account of a valid
marriage having been performed between
them. So long as that marriage subsists,
another marriage cannot be performed, not
even under any other personal law, and on
such marriage being performed, the person
would be liable to be prosecuted for the
offence under Section 494 IPC.

33. 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 Section 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.

24. In the case of Dr. Surajmani
Stella Kujur (supra), the Hon'ble Apex
Court again considered the issue and
observed that the fact of second marriage
being void is a sine qua non for the
applicability of Section 494 I.P.C. as unless
the second marriage is declared to be void
as per the existing customs having force of
law or binding effect, offence u/s 494 I.P.C.
will not be attracted. In this case, the
Hon'ble Apex Court was considering the
second marriage of Santhal Tribe, which
permits bigamy. Paragraph no. 14 of Dr.
Surajmani Stella Kujur (supra) is being
quoted as under :-

14. Nowhere in the complaint the
appellant has referred to any alleged
custom having the force of law which
prohibits the solemnisation of second
marriage by the respondent and the
consequences
thereof.
It
may
be
emphasised that mere pleading of a custom
stressing for monogamy by itself was not
sufficient unless it was further pleaded that
second marriage was void by reason of its
taking place during the life of such husband
or wife. In order to prove the second
marriage being void, the appellant was
under an obligation to show the existence
of a custom which made such marriage
null, ineffectual, having no force of law or
binding effect, incapable of being enforced
in law or non- est. The fact of second
marriage being void is a sine qua non for
the applicability of Section 494 IPC. It is
settled position of law that for fastening the
criminal liability, the prosecution or the
complainant is obliged to prove the
existence of all the ingredients constituting
the crime which is normally and usually
defined by a statute. The appellant herself
appears to be not clear in her stand
inasmuch as in her statement in the court
recorded on 24th October, 1992 she has
stated that "I am a Hindu by religion". The
complaint was dismissed by the trial court
holding, "there is no mention of any such
custom in the complaint nor there is
evidence of such custom. In the absence of
pleadings and evidence reference to Book
alone is not sufficient". the High Court vide
the judgment impugned in this appeal held
that in the absence of notification in terms
of sub-section (2) of Section 2 of the Act no
case for prosecution for the offence of
bigamy
was
made
out
against
the
respondent because the alleged second
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage cannot be termed to be void
either under the Act or any alleged custom
having the force of law.

25. The issue of the validity of a
second marriage and attraction of Section
494 I.P.C. in respect of second marriage
under the Mohammedan Law also came
into consideration before the Gujarat High
Court in the case of Jafar Abbas
Rasoolmohammad
Merchant
(supra)
wherein,
Justice
J.B.
Pardiwala
has
considered several verses of the Quran and
interpretation of Mohammedan law and
observed that a second marriage among
two Muslims (male and female) is in the
permissive category subject to certain
conditions. In that case, it is also observed
by the Gujarat High Court that Quran
forbids polygamy if the purpose of
marrying more than once is self interest or
sexual desire and further observed that it is
for the maulvis to ensure that Muslims may
not abuse the Quran to justify polygamy for
their self interest. The Court also observed
that there is no law which declares second
marriage under Mohammedan law as void,
therefore, the same will not be punishable
u/s 494 I.P.C. Paragraph nos. 61, 62 and 71
of
Jafar
Abbas
Rasoolmohammad
Merchant (supra) are being quoted as
under :-

61. 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.

62. Morevoer, Quran forbids
polygamy if the purpose to marry more
than once is self-interest 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 self-interest.

71. In view of the above, so far as
the offence punishable under Section 494 of
the I.P.C. is concerned, I am left with no
other option but to accept the submission of
Mr. Joshi that his client cannot be
prosecuted for the offence punishable
under Section 494 of the I.P.C. To this
extent, the petition will have to be allowed,
and is, accordingly, allowed.

26. Though Muslim law does not
prohibit the second marriage by male
during lifetime of his first marriage, but it
strictly prohibits the woman to contract a
second marriage during the lifetime of her
husband as this marriage is Batil (void
marriage) under Mohammedan law and
such a woman would be liable to
prosecution u/s 494 I.P.C. In India, we have
five marriage laws, all of which prohibit
second marriage during the subsistence of
the first marriage. These laws are as
follows :-

(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

Therefore, if the first marriage is
performed
under
any of
the
above
mentioned acts, then the second marriage
5 All. Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
1037
would be void even after conversion to any
other religion.

27. The above issue also came into
consideration before the Bombay High
Court in the case of Kalim Shaikh Munaf
(supra) wherein the Bombay High Court
considered the issue of second marriage by
a Muslim male and applicability of Section
494 I.P.C. regarding the second marriage.
The Bombay High Court, after considering
the judgement of Apex Court in the case of
Dr. Surajmani Stella Kujur (supra) as
well as A.S. Nazar (supra) has observed
that a Muslim male can contract upto four
marriages, therefore, a second marriage by
a Muslim male is not void, therefore,
prosecution u/s 494 I.P.C. cannot be
initiated against such Muslim male.

28. From the above analysis, it is clear
that second marriage contracted by a
Muslim male is valid as per the Shariat, but
in certain cases, a second marriage would
be void if same is declared by the Shariat as
Batil (void marriage), especially where
marriage was performed or contracted
within
the
prohibited
degree
of
relationship, but the question arises who
will declare the second marriage of Muslim
male as Batil (void marriage) as per
Mohammedan law. Section 2 of Shariat Act
provides that all questions regarding
marriage shall be decided as per the Shariat
and as per Section 3 of the Shariat Act, the
same can be decided by prescribed
authority but State has not notified the
prescribed authority u/s 4 of the Shariat
Act. In the absence of any specific
prescribed
authority,
normally
such
questions were decided by the maulvis, but
on commencement of the Family Court
Act, 1984, any question relating to validity
of marriage or concerning the marriage can
be decided by the Family Court in the
exercise
of
its
jurisdiction
under
Explanation (a) and (b) of Section 7 of the
Family Court Act, irrespective of religion
of parties to the marriage. The Family
Court Act, 1984 is a special act which was
enacted to provide for the establishment of
family courts with a view to promote
conciliation
in,
and
secure
speedy
settlement of, dispute relating to marriage
and family affairs. Section 20 of the Family
Court Act has an overriding effect over all
other law for the time being in force.
Section 20 of the Family Court Act is being
quoted as under :-

20. Act to have overriding
effect.-The provisions of this Act shall
have
effect
notwithstanding
anything
inconsistent therewith contained in any
other law for the time being in force or in
any instrument having effect by virtue of
any law other than this Act.

Therefore, being a special act, the
Family Court Act will have overriding
effect over all other laws, even if there is an
inconsistency. Therefore, even for Section
494 I.P.C. or for other purposes, questions
relating to the validity of marriage as per
Section 2 of Shariat Act, Family Court can
decide the issue u/s 7 of the Family Court
Act. For reference, Section 7 is quoted as
under :-

7. Jurisdiction.-(1) Subject to
the other provisions of this Act, a Family
Court shall:

(a) have and exercise all the
jurisdiction exercisable by any district
court or any subordinate civil court under
any law for the time being in force in
respect of suits and proceedings of the
nature referred to in the Explanation; and

(b) be deemed, for the purposes
of exercising such jurisdiction under such
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
law, to be a district court or, as the case
may be, such subordinate civil court for the
area to which the jurisdiction of the Family
Court extends.

Explanation.-The
suits
and
proceedings referred to in this sub-section
are suits and proceedings of the following
nature, namely:-

(a) a suit or proceeding between
the parties to a marriage for a decree of
nullity of marriage (declaring the marriage
to be null and void or, as the case may be,
annulling the marriage) or restitution of
conjugal rights or judicial separation or
dissolution of marriage;

(b) a suit or proceeding for a
declaration as to the validity of a marriage
or as to the matrimonial status of any
person;

(c) a suit or proceeding between
the parties to a marriage with respect to
the property of the parties or of either of
them;

(d) a suit or proceeding for an
order or injunction in circumstance arising
out of a marital relationship;

(e) a suit or proceeding for a
declaration as to the legitimacy of any
person;

(f) a suit or proceeding for
maintenance;

(g) a suit or proceeding in
relation to the guardianship of the person
or the custody of, or access to, any minor.

(2) Subject to the other provisions
of this Act, a Family Court shall also have
and exercise-

(a) the jurisdiction exercisable by
a Magistrate of the first class under
Chapter
IX
(relating
to
order
for
maintenance of wife, children and parents)
of the Code of Criminal Procedure, 1973 (2
of 1974); and

(b) such other jurisdiction as may
be conferred on it by any other enactment.

29. It is also clear from the above
analysis that as per the Mohammedan
law, a Muslim male has no unfettered
right to get second marriage unless he
has the capacity to give equal treatment
to all wives. Therefore, in view of the
above analysis, as well as discussion, this
Court holds :-

(i) If a Muslim male peforms
his first marriage as per Mohammedan
law
then
second,
third or
fourth
marriage will not be void, therefore,
ingredients of Section 494 I.P.C. will not
be attracted for the second marriage
except in those cases where the second
marriage was itself declared Batil (void
marriage) as per Shariat by the Family
Court u/s 7 of the Family Court Act or
by any competent court.

(ii) If the first marriage by a
person is performed under Special
Marriage Act, 1954, Foreign Marriage
Act, 1969, Christian Marriage Act, 1872,
Parsi Marriage and Divorce Act, 1936
and Hindu Marriage Act, 1955, and he
performs second marriage as per the
Mohammedan law, after conversion to
Islam then his second marriage will be
void, and offence u/s 494 I.P.C. would be
attracted for such marriage.

(iii) The Family Court has also
jurisdiction u/s 7 of the Family Court
Act to decide validity of a Muslim
marriage performed in accordance with
the Muslim Personal Law.

30.