# LILY THOMAS, ETC. ETC v. UNION OF INDIA AND ORS

- **Citation:** [2000] 3 S.C.R. 1081
- **Court:** Supreme Court of India
- **Decided:** 2000
- **Bench:** S. Saghir Ahmad, R.P. Sethi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lily-thomas-etc-etc-v-union-of-india-and-ors-17278
- **Pages:** 41

## Headnote

Constitution of India, I950:
Article 20( 1) :
Review of Sar/a Mudgal's case-Alleging violation of constitutional
provisions-Held, not sustainable-The procedure established by law, as mentioned in Article 21 of the Constitution m~ans the law prescribed by the
Legislature-The judgment has neither changed the procedure nor created any
law-It has only interpreted existing law and did not legislate.
Judgment in Sar/a Mudgal's case-Operation of-Whether would be
prospective-Held, no-Since the Court had not laid down any new law but
· only interpreted the existing law which was in force-The interpretation of a
provision of law relates back· to the date of the law itself and cannot be
prospective from the date of the judgment because concededly the Court does
not legislate but only give an interpretation to an existing law.
Article 25-Right to freedom of conscience and free professing, practising and propagation of religion-Judgment in Sar/a Mudgal's case-Held,
does not amount to violation of Art. 25.
Anicle 137, 32 & 136-Review Petition-Scope of-The power of review
can be exercised for correction of a mistake and not to substitute a view-If an
error is brought to the notice of the Courl which has the effect of resulting in
miscarriage of justice, nothing would preclude the Courl from rectifying the
error-Once a rnview petition is dismissed no further petition of review could
be entertained-But Supreme Court in exercise of its powers under Article 136
or Article 32, and upon satisfaction that the earlier judgment have resulted in
deprivation of fundamental rights of a citizen or rights crnated under any other
statute, could take a differnnt view notwithstanding the earlier judgment-Civil
Procedure Code, 1908-0rder47 Rule 1-Suprnme Court Rules, 1966-0rder
40 Rule 1.
1081
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1082
SUPREME COURT REPORTS
[2000] 3 S.C.R.
Article 44-Unifonn Civil Code-Plea that in Sarla Mudgal's case directions given for codification of common civil code was not within the power
·of the Court-Held, no such direction had been issued by this Court and the
judges constituting the different Benches had only expressed their views in the
facts and circumstances of those cases-Hence not enforceable in Courts as
they do not create any justiciable rights in favour of any person.
Indian Penal Code, 1860-Section 494-Prosecution under-In respect
of second marriage under Mohammedan law-Held, can be avoided only if the
first marriage was also under the Mahommedan Law and not if the first
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marriage was under any other personal law where there was a prohibition on
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contracting a second marriage in the life-time of the spouse-The person
seeking conviction of the accused for a commission of the offence is under a
legal obligation to prove all the ingredients of the offence~Indian Evidence
Act, 1872.
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Family Law:
Mohammedan Personal Law-Marriage-Plurality of-Held, is not permitted unconditionally.
Hindu Marriage Act, 1955-Sections 11, 17, 13 & JO-Change of religion does not dissolve the marriage perfonned under the Act between two
Hindus-Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce, as also a ground for judicial
separation-A second marriage during the life-time of the spouse, would be
yoid, besides, an offence unless a decree for divorce on that ground is obtained
from the court.
Wonis and Phrases :
'Any other sufficient reason appearing in Order' -Meaning of-In the
context Civil Procedure Code, 1908-0rder XLVII Rule 1.
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Muslim/Islam-Meaning of
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Petitioners filed writ petitions and review petition seeking to review,
set aside, modify and quash the judgment in Sar/a Mudgal ( Smt.) President,
Kalyani & Ors. v. Union of India & Ors., [1995] 3 .SCC 635, whereby this
Court had held that second marriage of a Hindu husband after conversion
to Islam without dissolving his first marriage would be void in terms of'the
)..
LILY THOMAS v. U.0.1.
1083
provisions of Section 494 IPC, because t

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LILY THOMAS, ETC. ETC.
v.
UNION OF INDIA AND ORS.
MAYS, 2000
[S. SAGHIR AHMAD AND R.P. SETHI, JJ.]
Constitution of India, I950:
Article 20( 1) :
Review of Sar/a Mudgal's case-Alleging violation of constitutional
provisions-Held, not sustainable-The procedure established by law, as mentioned in Article 21 of the Constitution m~ans the law prescribed by the
Legislature-The judgment has neither changed the procedure nor created any
law-It has only interpreted existing law and did not legislate.
Judgment in Sar/a Mudgal's case-Operation of-Whether would be
prospective-Held, no-Since the Court had not laid down any new law but
· only interpreted the existing law which was in force-The interpretation of a
provision of law relates back· to the date of the law itself and cannot be
prospective from the date of the judgment because concededly the Court does
not legislate but only give an interpretation to an existing law.
Article 25-Right to freedom of conscience and free professing, practising and propagation of religion-Judgment in Sar/a Mudgal's case-Held,
does not amount to violation of Art. 25.
Anicle 137, 32 & 136-Review Petition-Scope of-The power of review
can be exercised for correction of a mistake and not to substitute a view-If an
error is brought to the notice of the Courl which has the effect of resulting in
miscarriage of justice, nothing would preclude the Courl from rectifying the
error-Once a rnview petition is dismissed no further petition of review could
be entertained-But Supreme Court in exercise of its powers under Article 136
or Article 32, and upon satisfaction that the earlier judgment have resulted in
deprivation of fundamental rights of a citizen or rights crnated under any other
statute, could take a differnnt view notwithstanding the earlier judgment-Civil
Procedure Code, 1908-0rder47 Rule 1-Suprnme Court Rules, 1966-0rder
40 Rule 1.
1081
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
Article 44-Unifonn Civil Code-Plea that in Sarla Mudgal's case directions given for codification of common civil code was not within the power
·of the Court-Held, no such direction had been issued by this Court and the
judges constituting the different Benches had only expressed their views in the
facts and circumstances of those cases-Hence not enforceable in Courts as
they do not create any justiciable rights in favour of any person.
Indian Penal Code, 1860-Section 494-Prosecution under-In respect
of second marriage under Mohammedan law-Held, 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
C
contracting a second marriage in the life-time of the spouse-The person
seeking conviction of the accused for a commission of the offence is under a
legal obligation to prove all the ingredients of the offence~Indian Evidence
Act, 1872.
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E
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Family Law:
Mohammedan Personal Law-Marriage-Plurality of-Held, is not permitted unconditionally.
Hindu Marriage Act, 1955-Sections 11, 17, 13 & JO-Change of religion does not dissolve the marriage perfonned under the Act between two
Hindus-Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for divorce, as also a ground for judicial
separation-A second marriage during the life-time of the spouse, would be
yoid, besides, an offence unless a decree for divorce on that ground is obtained
from the court.
Wonis and Phrases :
'Any other sufficient reason appearing in Order' -Meaning of-In the
context Civil Procedure Code, 1908-0rder XLVII Rule 1.
G
Muslim/Islam-Meaning of
H
Petitioners filed writ petitions and review petition seeking to review,
set aside, modify and quash the judgment in Sar/a Mudgal ( Smt.) President,
Kalyani & Ors. v. Union of India & Ors., [1995] 3 .SCC 635, whereby this
Court had held that second marriage of a Hindu husband after conversion
to Islam without dissolving his first marriage would be void in terms of'the
)..
LILY THOMAS v. U.0.1.
1083
provisions of Section 494 IPC, because the judgment in that case was
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contrary to the fundamental rights enshrined in Articles 20, 21, 25 & 26 of
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the Constitution. Notice was issued on the review petition limited to the
question of Article 20(1).
Respondent contended that the prayers in the review petition and
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the writ petitions were contrary to law in as much as the judgment of the
Court given on merits cannot be reviewed for the reasons urged on behalf
or the petitioners; that review being the creation of statute, the powers
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have to be exercised, only within the limits prescribed by law; that the
notice in review petition being limited to Article 20(1), would not warrant
the consideration of other pleas raised; that in view of the judgment in A.R. c
Antulay v. R.S. Nayak & Ors., AIR (1988) SC 1531 this Court has the power
to review under Article 136 or Article 32 under any other provision of the
Constitution; that the law declared in Sarla Mudgal's case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment; and that the judgment of the
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Court entailed a convert to Islam the liability of prosecution for the offence of bigamy under Section 494 of IPC which would otherwise not be an
offence under the law applicable to him. The petitioners also apprehended
that in view of the judgment in Sarla Mudgal's case the violators of judgment would be liable to be convicted without any further proof.
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Disposing of the petitions, the Court
HELD : Per R.P. Sethi, J. (Concurring)
1.1. Review is the creation of a statute. The power of review is not an
inherent power. It must be conferred by law either specifically or by necesF
sary implication. Review is also not an appeal in disguise. It cannot be denied
that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of
justice. Law has to bend before justice. If the Court finds that the error
pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in
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fact did not exit and its perpetration shall result in miscarriage of justice
nothing would preclude the Court from rectifying the error. [1091-D-E]
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Patel Narshi Thakershi & Ors. Pradyunmansinghji Arjunsinghji, AIR
(1970) SC 1273, relied on.
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
S. Nagaraj & Ors., Etc. v. Stale of Karnataka & Am: Etc., [1993) Supp.
4 sec 595, referred to.
1.2. The petitioners have not made out any case within the meaning
of Article 137 read with Order XL of the Supreme Court Rules and Order
XLVII Rule 1 of the CPC for reviewing the judgQient in Sar/a Mudgal's
case. The petition is misconceived and bereft of any substance. No mistake
or error apparent on the face of the record has been found requiring a
review. Error contemplated under the rule must be such which is apparent
on the face of the record and not an error which has to be fished out and
searched. It must he an error of inadvertence. No such error has been
pointed out. The only arguments advanced were that the judgment interpreting Section 494 amounted to violating of some of the fundamental.
rights. No other suffifient cause has been shown for reviewing the judgment. The words "any other sufficient reason appearing fo Order XLVII
Rule 1 CPC'' must mean "a reason sufficient on grounds at least analogous
to those specified in the rules". Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the
provisions of law. [1097-F; 1096-F-H]
Chajju Ram v. Naki Ram, AIR (1922) PC 112; Moran Mar Bassellos
Catholics & Am: v. Most Rev. Mar Poulose Athanasius & Ors., AIR (1954) SC
526; T.C. Basappa v. Nagappa & Am:, AIR (1954) SC 440 and Hari Vishnu.
Kamath v. Ahmad Ishaque & Ors., AIR (1955) SC 233, relied on.
1.3. Once a review petition is dismissed no further petition of review
can be entertained. The rule of the law of following the practice of the
binding nature of the larger Benches and not taking strength has to be
followed and practised. However, this Court in, exercise of its powers under
Article 136 or Article 32 of the Constitution and upon satisfaction that the
earlier judgment has resulted in deprivation of fundamental rights of a
citizen or rights created under any other statute, can take a different view
notwithstanding the earlier judgment. [1095-G-H]
Mis. Northern India Caterers (India) Ltd. v. Lt. Governor of Delh4 AIR
(1980) SC 674 and A.R. Antulay v. R.S. Nayak & Ors., AIR (1988) SC 1531,
relied on.
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Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, [1985) 2
LILY THOMAS v. U.O.I.
1085
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SCR 8; State of Orissa v. Titaghur Paper Mills, AIR (1985) SC 1293; Union
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of India v. Godfrey Philips India Ltd., (1985) Supp. 3 SCR 123; R.S. Nayak v.
A.R. Antulay, AIR (1984) SC 684; Prem Chand Garg ~. Excise Commissioner,
U.P. Allahabad, AIR (1963) SC 996; Nareslz Sirdhar Mirajkar v. State of
Maharashtra, (1966) 3 SCR 744 and Smt. Ujjam Bai v. State of U.P., (1963] 1
SCR 778, referred to.
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1.4. Since in the review 'petition the notice issued was limited to the
question of Article 20(1) of the Constitution, and as no notice has been
issued for review of the main judgment which interpreted Section 494 IPC,
it cannot be said that any person was likely to be convicted for an offence
except for violation of law in force at the time of commission of the act c
charged as offence. (1096-C]
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2. The contention that ~the law declared in Sarla Mudgal' s case cannot
be applied to persons who have solemnised marriages in violation of the
mandate of law prior to the date of judgment cannot be accepted. This
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Court had not laid down any new law but only interpreted the existing law
which was in force. It is settled principle that the interpretation of a
provision of law relates hack to the date of the law itself and cannot be
prospective from the date of the judgment because concededly the Court
does not legislate hut only! give an interpretation to an existing law. The
arguments that the second marriage by a convert male muslim has been
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made an offence only by j~dicial pronouncement cannot be agreed to. The
judgment has only interpr~ted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced
the judgment. The review petition alleging violation of Article 20(1) of the
Constitution is without any substance and is liable to be dismissed on this
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ground alone. (1097-H; 1098-A-B]
3. The alleged violation of Article 21 is misconceived. What is guaranteed under Article 21 is that no person shall be deprived of his life and
personal liberty except according to the procedure established by law. It is
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conceded before the Court that actually and factually none of the petition-
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ers has been deprived of any right of his life and personal liberty so far •
The aggrieved persons are apprehended to be prosecuted for the commis-
~ion of the offence punishable under section 494 IPC. It is premature, at
this stage to canvass that they would be deprived of their life and liberty
without following the procedure established by law. The procedure estabH
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
lished by law, as mentioned in Article 21 of the Constitution means the law
prescribed by the Legislature. The judgment in Sarla Mudgal's case has
neither changed the procedure nor created any law for the prosecution of
the persons sought to be proceeded with for ~he alleged commission of the
offence under Section 494 IPC. [1098-D-F]
4. The grievance that the said judgment amounts to violation of the
freedom of conscience and free profession, practice and propagation of
religion is also far fetched and apparently artifically carved out by such
persons who are alleged to have violated the law by attempting to cloak
themselves under the protective fundamental right guaranteed under Article 25 of the Constitution. No person, by the judgement impugned, has been
denied the freedom of conscience and propagation of religion. The rule of
monogamous marriage amongst Hindus was introduced with the proclamation of Hindu Marriage Act. Section 17 of the said Act provided that any
marriage between two Hindus solemnised after the commencement of the
Act shall be void if at the date of such marriage either party had a husband
or wife living and Sections 494 IPC, shall apply accordingly. The second
marriage solemnised by a Hindu during the subsistence of first marriage is
an offence punishable under the Penal law. Freedom guaranteed under
Article 25 of the Constitution 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 also to exhibit his belief and ideas in a manner
which does not infringe the religious right and personal freedom of others.
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 marriage, though capacity to do
justice between the co-wives is condition precedent. Even under the Muslim
Law plurality of the marriages is not unconditionally conferred upon the
husband. It would therefore, be doing injustice to Islamic Law to urge that
the convert is entitled to practice bigamy notwithstanding the continuance
of his marriage under the law to which he belonged before conversion. The
violators oflaw who have contracted the second marriage cannot be permitted to urge that such marriage should not be made subject matter of prosecution unde:- the general penal law prevalent in the country. The progressive outlook and wider approach of Islamic Law cannot be permitted to be
squeezed and narrowed by unscrupulous litigants, apparently indulging in .
sensual lust sought to be quenched by illegal means who apparently are
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LILY THOMAS v. U.O.I.
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found to be guilty of the commission of the offence under the law to which
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they belonged before their alleged conversion. It is nobody's case that any
such convertee has been deprived of practising any other religious right for
the attainment of spiritual goals. Islam which is pious, progressive and
respected religion with rational outlook cannot be given a narrow concept
as has been tried to be done by the alleged violators of law.
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[1098-G-H; 1099-A-B; F-H; 1100-A-B]
Outlines of Mohammaden Law, II Edition, Mohammedan Law, Tagore
Law Lectures N Edition, Volume I by Sir Ameer Al~ referred to.
5. The apprehension that in view of the judgment in Sarla Mudgal's c
case the violators of the judgment would be liable to be convicted without
any further proof, is without any substance inasmuch as the person seek-
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ing conviction of the accused for a commission of offence under Section
494 IPC is under a legal obligation to prove all the ingredients of the
offence charged and conviction cannot be based upon mere admission
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made outside the Court. To attract the provisions of Section 494 of the IPC
the second marriage has to be proved besides such marriage is further
required to be proved to have been performed or celebrated with proper
ceremonies. [1100-D]
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Kanwal Ram & Ors. v. The Himachal Pradesh Adminisitration; Bhaurao
Shankar Lokhande v. Sate of Maharashtra, AIR (1965) SC 1564, relied on.
6. The contention tlμtt this Court has no power to give directions for
the enforcement of the Directive Principles of the State Policy as detailed
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in Chapter IV of the Constitution which includes Article 44, is correct.
This Court has time and again reiterated the position that Directives, as
detailed in Part IV of the Constitution are not enforceable in Courts as
they do not create any justiciable rights in favour of any person. In this
case also no directions appeared to have been issued by this Court for the
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purpose of having uniform Civil Code within the meaning of Article 44 of
the Constitution. The apprehension is unfounded but in order to allay all
apprehensions it is reiterated that this Court had not issued any directions
for the codification of the common Civil Code aQd the judges constituting
the different Benches had only expressed their views in the facts and
circumstances of those cases. [1104-C; E; G]
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1088
SUPREME COURT REPORTS
[2000) 3 S.C.R.
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Mohd. Ahmed Khan v. Shah Bano Begum & Ors., [1985) 2 SCC 556;
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Maharshi Avadhesh v. Union of India, [1994) Su~p. 1 SCC 713; Ahmedabad
Women Action Group (AWAG) & Ors. v. Union of India, [1997) 3 SCC 573
and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Am:, [1996) 2 SCC 498,
referred to.
Per S. Saghir Ahmad J. (Concurring)
1.1. Change of religion does not dissolve the marriage performed
under the Hindu Marriage Act between two Hindus. Apostasy does not
bring to an end the civil obligations or the matrimonial bond, but apostasy
is a ground for divorce under Section 13 as also a ground for judjcial
separation under Section 10 of the Hindu Marriage Act. Hindu Law does
not recognise bigamy. As the Hindu Marriage Act, 1955 provides for
''Monogamy", a second marriage, during the life-time to the spouse, would
be void under Sections 11and17, besides being an offence. [1117-F]
1.2. 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 Marriage Act, the husband or the wife by
mere conversion to another religion, cannot bring to an ~d 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. [1118-F-H]
Bhaurao Shankar Lokhande v. State of Maharashtra, [1965] 2 SCR
837; Kanwal Ram v. H.P. Administration, [1966) 1 SCR 539; Priya Bala
Ghosh v. Suresh Chandra Ghose, [1971) 3 SCR 961 and Gopal Lal v. State of
Rajasthan, [1979) 2SCR 117, relied on.
Govt. of Bombay v. Ganga, ILR (1880) 4 Bombay 330; BudansaRowther
& Anr. v. Fatima Bibi & Ors., AIR (1914) Madras 192; Emperor v. Mst. Ruri,
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LILY THOMAS v. U.0.1.
1089
AIR (1919) Lahore 389; Jamna Devi v. Mui Raj, (1907) PR No. 49, 198;
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Rakeya Bibi v. Anil Kumar MukherJ4 ILR (1948) 2 Cal. 119; Sayeda Khatoon
@ A.M. Obadiah v. M. Obadiah, (1944-45) 49 CNW 745; Amar Nath v. Mrs.
Amar Nath, (1947) 49 PLR 147 FB and Gui Mohammad v. Emper01; AIR
(1947) Nagpur 12, referred to.
2. Prosecution under Section 494 IPC in respect of a second marB
riage under Mohammedan Law can he avoided only if the first marriage
was also under the Mohammedan 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 life-time of the spouse. [1119-C]
3. This Court in Sarla M udgal' s case had not issued any direction for
the enactment of a common civil code. Any direction for the enforcement
of Article 44 of the Constitution could not have been issued by only one of
the Judges in Sarla Mudgal's case. The question regarding the desirability
of enacting a Uniform Civil Code did not directly arise in Sarla Mudgal's
case. Enactment of a uniform law, though desirable, may be counterproductive. In the counter affidavits filed by Govt. of India in the case of
Sarla Mudgal, it has been stated that the Govt. would take steps to make a
uniform code only if the communities which desire such a code approach
the Govt. and take the initiative themselves in the matter. The affidavits
and the statement made on behalf of the Union of India clearly dispel
notions harboured by the Jamat-e-Ulema Hindu and the Muslim Personal
Law Board. [1119-H; 1120-A; E; 1121-B]
Ahmedabad Women Action Givup & Ors. v. Union of India, [1997) 3
SCC 573 and Pannalal Bansilal Pitti & Ors. v. State of A.P. & Am:, [1996) 2
sec 498, referred to.
Speech of Dr. B.R. Ambedkar in the Constituent Assembly on December
2, 1948, referred to.
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 798 of
1995 Etc. Etc.
(Under Article 32 of the Constitution of India.)
K.N. Rawal, Additional Solicitor General, Anoop G. Choudhary, Y.H.
Muchhala, (Lily Thomas-in-Person) (NP}, M.T. Khan, R.S. Massey Verma,
Shujat Hussain, Shakil Ahmed Syed, Ranjit Kumar, Ms. Kamini Jaiswal, Ms.
S. Janani, A.D.N. Rao, B.K. Prasad, P. Parmeswaran and Ms. Janaki
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SUPREME COURT REPORTS
[2000] 3 S.C.R.
A
Ramachandran for the appearing parties.
The following Judgments/Order of the Court were delivered :
SEIBI, J. IA No. 2 of 1995 in Writ Petition (c) No. 588 of 1995 is
allowed. Interpreting the scope and extent of Section 494 of the Indian Penal
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Code this Court in Sarla Mudgal (Smt.) President, Kalyani & Ors. v. Union
of India & Ors., [1995] 3 SCC 653 held :
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" ..... that the second marriage of a Hindu husband after conversion to
Islam, without having his first marriage dissolved under law, would
be invalid. The second marriage would be void in terms of the
provisions of Section 494 IPC and the apostate-husband would be
guilty of the offence under Section 494 IPC."
The findings were returned answering the questions formulated by the Court
in para 2 of its judgment.
)..
. TI1e judgment in Sarla Mudgal's case is sought to be reviewed, set
aside,' modified and quashed by way of the present Review and Writ Petitions
filed by various persons and Jarniat-Ulema Hind & Anr. It is contended that
the aforesaid judgment is contrary to the fundamental rights as enshrined in
Articles 20, 21, 25 and 28 of the Constitution of India.
In Review Petition No. 1310 of the 1995 this Court had issued notice
limited to the question of Atticle 20(1) of the Constitution of India and in
the writ petitions directions were issued for their listing after the disposal of
the Review Petition. However at the request of the learned com1sel for the
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parties this Court vide order dated 31st August, 1999 directed the hearing of
all the writ petitions along with the review petition.
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Leamed Additional Solicitor General appearing for the respondent
submitted that the prayer in the review and writ petitions were contrary to
law inasmuch as the judgment of the Court given on merits cannot be
reviewed for the reasons urged on behalf of the petitioners. It is contended
that review being the creation of statute, the powers have to be exercised only
within the limits prescribed by law. It is further contended that notice in
review being limited to Article 20(1) of the Constitution would warrant the
consideration of the other pleas raised. Learned counsel appearing for the
petitioners have, however, submitted that in view of the judgment in A.R.
.,
Lll..Y THOMAS v. U.0.1. [SETHI, J.]
1091
Antulay v. R.S. Nayak & Ors., AIR (1988) SC 1531 this Court has the power
to review. The Court can exercise the power of review in a petition under
Article 136 or Article 32 or under any other provision of the Constitution of
India if the Court is satisfied that its directions have resulted in the deprivation
of fundamental rights of a citizen or any legal right of the petitioner because
no-one can be forced to suffer because of the mistake of the Court. Rules
of procedures are the hand-maids of justice and not mistress of justice.
We have heard the lengthy arguments addressed at the Bar from both
sides and perused the relevant record in the present petition and the petitions
which were earlier disposed of along with Sar/a Mudgal's case.
The dictionaly meaning of the word "review" is "the act of looking,
offer something again with a view to conection or improvement. It cannot
be denied that the review is the creation of a statute. This Court in Patel
Narshi Thakershi & Ors. v. Pradyunmansinghji Arjunsinghji, AIR (1970) SC
1273 held that the power of review is not an inherent power. It must be
conferred by law either specifically or by necessary implication. The review
is also not an appeal in disguise. It cannot be denied that justice is a vi.J.tue
which transcends all barriers and the rules or procedures or technicalities of
law c~ot stand in the way of administration of justice. Law has to bend
before justice. If the Court finds that the error pointed out in the review
petition was under a mistake and the earlier judgment would not have been
passed but for erroneous assumption which in fact did not exist and its
perpetration shall result in misca1riage of justice nothing would preclude the
Court from rectifying the error. This Court in S. Nagaraj & Ors. Etc. v. State
of Kamataka & Am: Etc., [1993] Supp. 4 SCC 595 held :
"Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even
the statutes lean strongly in favour of finalty of decision legally and
properly made. Exceptions both statutorily and judicially have been
carved out to correct accidental mistakes or miscarriage of justice.
Even when there was no statutory provision and no rules were framed
by the highest court indicating the circumstances in which it could
rectify its order the courts culled out such power to avoid abuse of
process or miscarriage of justice. In Raja Prithwi Chand Lal Clwudhury
v. Sukhraj Rai, AIR ( 1941) FC 1 the Court observed that even though
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no rules had been framed permitting the highest Court to review its
order yet it was available on the limited and narrow ground developed
by the Privy Council and the House of Lords. The Court approved
the principle laid down by t11e Privy Council in Rajinder Narain Rae
v. Bijai Govind Singh, (1836) 1 Moo PC 117 that an order made by
the Court was final and court not be altered.
' .... nevertheless, if by misprision in embodying the judgments, by
errors have been introduced, these Courts possess, by Common Law,
the same power which the Courts of record and statute have of
rectifying the mistakes which have crept in ..... The House of Lords
exercise a sμnilar power of rectifying mistakes made in drawing up
its won judgments, and this Court must possess the same authority.
The Lords have however gone a step further, and have corrected
mistakes introduced through inadvertence in the details of judgments;
or have supplied manifest defects in order to enable the decrees to be
enforced, or have added explanatory matter, or have reconcile...'.
inconsistencies'. Basis for exercise of the power was stated in the
same decision as under :
'it is impossible to doubt that the indulgence extended in su~h cases
is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Comt of last resort, where by some
accident, without any blame, the partly has not been heard and an
order has been inadvertently made as if the party had been heard.'
Rectification of an order thus stems from the fundamental principle
that justice is above all. It is exercised to remove the error and not
for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by the this Court was
specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy
of such provision expressly conferred the substantive power to review
any judgment or order by Article 137 of the Constitution. And clause
(c) of Article 145 permitted this Court to frame rules as to the
conditions subject to which any judgment or order may be reviewed.
In exercise of this power Order XL had been framed empowering this
Court to review an order in civil proceedings on grounds analogous
to Order XLVII Rule 1 of the Civil Pro~edure Code. The expression,
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'for any other sufficient reason' in the clause has been given an
expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient
ground to exercise the power. Apart from Order XL Rule 1 of the
Supreme Court Rules this Court has the inherent power to make such
orders as may be necessary in the interest of justice or to prevent the
abuse of process of Court. The Court is thus not precluded from
recalling or reviewing its own order if it is satisfied that it is necessary
to do so far sake of justice."
The mere fact that two views on the same subject are possible is no ground
to review the earlier judgment passed by a Bench of the same strength.
This Court in Mis. Northern India Caterers (India) lJd. v. lJ. Governor
of Delhi, AIR (1980) SC 674 considered the powers of this Court under
Article 137 of the Constitution read with Order 47 Rule 1 CPC and Order
40 Rule 1 of the Supreme Court Rules and held :
"It is well settled that a party is not entitled to seek a review of the
judgment delivered by this Court merely for the purpose of a
rehearing and a fresh decision of the case. The normal principle is that
a judgment pronounced by the Court is final, and departure from that
principle is justified only when circumstances of a substantial and
compelling character make it necessary to do so. Sajjan Singh v State
of Rajasthan, (1965] 1 SCR 933 at p.948. For instance, if the attention
of the Court is not drawn to a material statutory provision during the
original hearing. G.L Gupta v. D.N. Mehta, [1971] 3 SCR 748 at p.
760. The Court may also reopen its judgment if a manifest wrong has
been done and it is necessary to pass an order to do full and effective
justice. ON Mohindmo v. Dist. Judge, Delhi, (1971] 2 SCR 11 at p.27.
Power to review its judgments has been conferred on the Supreme
Court by Art. 137 of the Constitution, and that power is subject to
the provisions of any law made by Parliament or the rules made under
Art. 145. In a civil proceeding, an application for review is entertained
only on a ground mentioned in 0. XLVII Rule 1 of the Code of Civil
Procedure and in a criminal proceeding on th~ ground of an error
apparent on the face of the record. (Order XL, R.l, Supreme Court
Rules, 1966). But whatever the nature of the proceeding, it is beyond
dispute that a review proceeding cannot be equated with the original
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hearing of the case, and the finality of the judgment delivered by the
Court will not be reconsidered except 'where a glaring omission or
patent mistak~ or like grave error has crept in earlier by judicial
fallibility'. Chandra Kanta v. Sheikh Habib, [1975] 3 SCR 935."
Article 137 empowers this Court to review its judgments subject to the
provisions of any law made by Parliament or any rules made under Article
145 of the Constitution. The Supreme Court Rules made in exercise of the
powers under Article 145 of the Constitution prescribe that in civil cases,
review lies 011 any of the ground specJfied in Order 47 Rule 1 of the Code
of Civil Procedure which provides :
"Application for review of judgment - (i) Any person considering
himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from
which, no appeal has been preferred.
)...
(b) by a decree or order from which no appeal is allowed, or
( c) by a decision on a reference from a Comt of Small Causes.
and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake or
error apparent on the face of the record, or for any other sufficient
reason, desires to obtain a review of the decree passed or order made
against him, may apply for a review or judgment to the Court which
passed the decree or made the order."
Under Order 40 Rule 1 of the Supreme Court Rules no review lies except
on the ground of error apparent on the face of the record in criminal cases.
Order 40 Rule 5 of the Supreme Court Rules provides that after an application
for review has been disposed of no further application shall be entertained
in the same matter.
In A.R. Antulay's case (supra) this Court held that the principle of
English Law that the size of the Bench did not matter has not been accepted
in this- country. In this country there is a hierarchy within the Court itself
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where larger Benches overrules smaller Bench. This practice followed by the
LILY THOMAS v. U.0.1. [SETHI, J.]
1095
Court was declared to have been crystalised as a rule of law. Reference in
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that behalf was made to the judgments in Javed Ahmed Abdul Hamid Pawala
v. State of Maharashtra, [1985] 2 SCR 8, State of Orissa v. Ti.taglzur Paper
Mills, AIR (1985) SC 1293, Union of India v. Godfrey Philips India Ltd.,
[1985] Supp. 3 SCR 123. In that case the Bench comprising seven judges
was called upon to decide as to whether the direction given by the Bench
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of this Court comprising five judges in the case of R.S. Nayak v. A.R Antu lay,
AIR 1984) SC 684 were legally proper or not and whether the action and
the trial proceedings pursuant to.those directions were legal and valid. In that
behalf reference was made to the hierarchy of Benches and practice prevalent
in the country. It was observed that Court was not debaned from reopening
the question of giving proper directions and conecting the enor in appeal if
the direction issued in the earlier case on 16th February, 1984 were found
to be violative of limits of jurisdiction and that those directions had resulted
in deprivation of fundamental rights of a citizen granted by Articles 14 and
21 of the Constitution of India The Court refened to its earlier judgment in
Prem Chand Ga1g v. Excise Commissioner U.P. Allahabad, AIR (1963) SC
996. Naresh Shridhar Mirajkar v. State of Maharashtra, [1966] 3...SCR 744
= AIR (1967) SC 1. Smt. Ujjam Bai v. State of U.P., [1963] 1 SCR 778 =
AIR (1962) SC 1621 and concluded that the citizens should not suffer on
account of directions of the Court based upon error leading to conferment
of jurisdiction. The directions issued by the Court were found on facts to be
violative of the limits of jurisdiction resulting in the deprivation of the
fundamental tights guaranteed to the appellant therein. It was further found
that the impugned di1u.:tions had been issued without observing the principle
of audi alteram partem.
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It follows, therefore, that the powers of review can be exercised for
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correction of a mistake and not to substitute a view. Such powers can be
exercised within the limits of the statute dealing with the exercise of power.
The review cannot be treated an appeal in disguise. The mere possibility of
two views on the subject is not a ground for review. Once a review petition
is dismissed no further petition of review can be entertained. The mle of law
of following the practice of the binding nature of the larger Benches and not
taking different views by the Benches of coordinated jurisdiction of equal
strength has to be followed and practised. However, this Court in exercise
of its powers under Article 136 or Article 32 of the Constitution and upon
satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take
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a different view notwithstanding the earlier judgment.
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In the light of the legal position as enumerated hereinabove, 111t us
examine the grievances of the petitioners in the instant case. In review pe~tion
notice issued was limited to the question of Article 20(1) of the Constitution.
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It was contended that the judgment of the Court entailed a convert to Islam .
the liability of prosecution for the offence of bigamy under Section 494 of
the India Penal Code which would, otherwise not be an offence under the
law applicable to him. Section 494 forms part of a substantive law and is
applicable to all unless specifically excluded. As no notice has been issued
for review of the main judgment which interpreted Section 494 IPC in the
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manner as narrated hereinabove, it cannot be said that any person was likely
to be convicted for an offence except for violation of law in force at the time
of commission of the act charged as offence.
Otherwise also no ground as envisaged under Order XL of the Supreme
Court Rules read with Order XLVII of the Code of Civil Procedure has been
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pleaded in the review petition or canvassed before us during the arguments
for the purposes of reviewing the judgment in Sarla Mudgal's case it is not
the case of the petitioners that they have discovered any new and important
matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing
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of the judgment. All pleas raised before us were in fact addressed for and
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on behalf of the petitioners before the Bench which, after considering those
pleas, the judgment in Sarla Mudgal's case. We have also not found any
mistake or error apparent on the face of the record requiring a review. Error
contemplated under the rule must be such which is apparent on the face of
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th,e record and not an error which hy to be fished out and searched. It must
be an error of inadvertence. No such error has been pointed out by the learned
counsel appearing for the parties seeking review of the judgment. The only
arguments advanced were that the judgment interpreting Section 494 amounted
violation of some of the fundamental rights. No other sufficient cause has
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been shown for reviewing the judgment. The words "any other sufficient
reason appearing in Order XLVII Rule 1 CPC" must mean "a reason sufficient
on grounds at least analogous to those specified in the rule" as was held in
Chajju Ram v. Neld Ram, AIR (1922) PC 112 and approved by this, Court
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in Moran Mar Basselios Cath.olics & Am: v. Most Rev. Mar Pouwse Athanasius
& Ors., AIR (1854) SC 526. Error apparent on the face of the proceedings
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is an error which is based on clear ignorance or disregard of the provisions
LILY THOMAS v. U.0.1. [SETHI, J.]
1097
of law. In T.C. Basappa v. Nagappa & Am:, AIR (1954) SC 440 this Court
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held that such error is an error which is a patent error and not a mere wrong
decision. In Hari Vishnu Karnath v. Ahmad lsha,que & Ors., AIR (1955) SC
233 it was held :
" ..... .it is essential that it should be something more than a mere error;
it must be one which must be manifest on the face of the record. The
real difficulty with reference to this matter, however, is not so much
in the statement of the principle as in its application to the facts of
a particular case. When does an error cease to be mere error, and
become an error apparent on the fact of the record? Learned counsel
on either side were unable to suggest any clear-cut rule by which the
boundary between the two classes of errors could be demarcated. Mr.
Pathak for the first respondent contended on the strength of certain
obserVations of ,Chagla, CJ in - Batuk K fyas v. Surat Borough
Municipality, AIR (1953) Born.