QUESTION 1
Wife has moved the court questioning the constitutional validity of section 9 of the Hindu marriage act 1955 on the ground of rights of privacy. Can she succeed?
As the question is concerned, it relates to Section 9 of the Hindu Marriage Act, 1955.
Section 9 defines rights, which means "when either spouse withdraws from the society of the other spouse without any reasonable ground, then the spouse can file a suit in a civil court." The question also contains the right to privacy, which is defined under Article 21 of the Indian Constitution.
Section 9: Restitution of Conjugal Rights
Ingredients:
There should be a valid marriage.
Either spouse withdraws from the society of the other.
In this case, the spouse can file a suit, and the burden of proof is on the person who leaves the society of the other.
Article 21 of the Indian Constitution defines the right to life, which also includes the right to privacy, as defined in the K.S. Puttaswamy case.
The right to privacy means every person has the right to life with human dignity. Every person has the right to choose or to make their own decisions, and to decide whether they want to disclose information or not. It also contains different aspects. But as per the question, the right to privacy means that every person has the right to choose whether they want to live with someone or not. Every person has the right to choose their own life partner, with whom they want to live for life. It is also a basic human right.
RELATION BETWEEN SECTION 9 OF THE HINDU MARRIAGE ACT, 1955 AND ARTICLE 21 OF THE INDIAN CONSTITUTION: WHETHER SECTION 9 IS VIOLATIVE OR NOT VIOLATIVE OF THE RIGHT TO PRIVACY UNDER THE INDIAN CONSTITUTION
Section 9 is violative of the right to privacy to some extent, because we cannot compel anyone to live with someone with whom the person does not feel comfortable or does not want to live.
However, according to some present cases, Section 9 of the Hindu Marriage Act is not violative, because according to Hindu religion, marriage is a sacrament in which the couple ties the knot in front of the Fire God and promises to support each other in every situation. This is a religious aspect where Section 9 is not violative.
If we consider the legal aspect under the Hindu Marriage Act, 1955, and from precedents, we can observe that the court has both a legal and moral obligation to save a marriage from separation, and every marriage should get a second chance so that the divorce rate remains low.
But as the question is concerned:
WHETHER THE WIFE MOVED THE COURT QUESTIONING THE VALIDITY OF SECTION 9
Yes, the wife can move to the court and has the right to question the validity of Section 9 on the ground of the right to privacy, only if the withdrawal from the society of the husband is reasonable. However, by using Section 9, the husband may file a petition for restitution of conjugal rights, and the court may pass an order compelling the wife to live with the husband.
QUESTION 2
Sunil and Sunita were married in 2016 when the latter was 14 years old. Later in 2022, Sunil converted to Islam and became Sohail, and married his childhood schoolmate Soha and lived happily. Sunita prosecuted him for bigamy, and Sunil took the defence that his second marriage under Muslim law is not bigamous and that he has committed no offence. Decide, supporting your answer with landmark case law.
As per the facts of the question, it is suggested that Sunil and Sunita were married in 2016, and after 14 years of marriage, in 2022, Sunil converted to Islam. To this extent, the act is legal and not prohibited by any law. However, after he converted to Islam, he married a Muslim girl named Soha.
INTRODUCTION
Every religion has its different rituals and traditions, which are followed by that particular religion. According to Hindu law, bigamy is not permissible, but at the same time, in Muslim law, bigamy is permissible with the condition that the husband must be capable of maintaining his wives. The rituals of all religions are acceptable under the Constitution. According to Articles 25 to 28 of the Indian Constitution and the Preamble of the Constitution, the word "SECULAR" speaks for itself.
LEGALITY OF MARRIAGE ACCORDING TO HINDU LAW AND MUSLIM LAW
According to Section 5(1) of the Hindu Marriage Act, 1955, the marriage will be declared void if either spouse marries another person while the first spouse is still living. However, according to the Muslim religion, bigamy is permissible. This concept is not specifically defined in any section of Muslim law, but according to sources Of Muslim law, we come to know that up to four marriages are permissible.
If both spouses are Hindu or Muslim, then it is not a question of law because they can marry according to their personal law. If one spouse is Muslim and the other Hindu, then also they can marry each other under the Special Marriage Act. But here in this question, the facts state that the Hindu male was already married, then he converted to Islam and married another woman.
If we analyze the question, then the person (Sunil) will be liable for bigamy because he was Hindu and committed bigamy. However, during the act of bigamy, he had already converted to Islam, and according to Muslim personal law, bigamy is permissible.
In this context, there was a landmark case in 1995:
Sarla Mudgal v. Union of India
The Supreme Court held that the first marriage under the Hindu Marriage Act, 1955 would need to be dissolved for the second marriage of the Hindu husband, solemnized after his conversion to Islam, to be considered legal.
CONCLUSION
In conclusion, we can say from the above provisions and case law that Sunita can prosecute Sunil for bigamy.