Affects of Conversion on Marriage and Divorce
Impact of Conversion as per Hindu, Muslim, Christian, Parsi LawsReligion is a very sensitive and personal aspect of individual's life and the constitution of India guarantees the freedom of conscience and religion to people of all denominations. Thus, a person is free to profess any faith or relinquish his faith of birth and convert to another religion. However, in view of the diversity personal laws in our country, upon apostasy the personal law of the convert words. conversion of a spouse gives to the non-convert spouse, a ground for matrimonial relief.
The logic underlying the grant of relief in case of conversion is. however, not merely a legal one, viz., that after conversion, the convert will be governed by different personal law, but also because conversion could mean a radical change in the personality of the convert. The event is often very much akin to a breakdown of the marriage and goes to the root of conjugal life of the spouses.
Legal Effects on Marriageconversion could have the following legal effects on the marriage:
(i) An automatic dissolution of the marriage.
(ii) A ground for divorce at the instance of the non-convert.
(iii) A ground for divorce at the instance of the convert.
As to, (i), though there is no statutory provision to that effect in any of the personal laws, under the Islamic law, a husband who renounces Islam is an apostate, and as such,, his marriage with his Muslim wife is dissolved ipso facto According to Mulla, apostasy of the husband from Islam operates as a complete and immediate dissolution of the marriage.
As to (ii), conversion is a ground available for divorce and judicial separation at the instance of the non-convert under all the personal law statutes.
As to (iii), the converts Marriage Dissolution Act, 1866, which seeks to legalise, under certain circumstances, the dissolution of marriage of converts to Christianity, is the only relevant statute.
Statutory ProvisionsThe position under the various statutes is discussed below.
Hindu LawUnder s. 13(1)(ii) of the Hindu Marriage Act, 1955:
Any marriage solemnized, whether before or after the commencement of this Act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has ceased to be a Hindu by conversion to another religion.
This is available as a ground for judicial separation also. prior to 1976 the grounds for divorce and judicial separation were different and change of religion was not a ground for judicial separation. After the 1976 Amendment. the grounds available for for divorce and judicial separation are the same and hence conversion is now a ground for judicial separation as well.
In Madanan seetha Ramalu v. Madanan vimla, a husband was granted divorce on his wife converting to Christianity after marriage.
It is important to note that conversion does not automatically affect a marriage tie, and secondly, it is the non-convert spouse only who can seek matrimonial relief on this ground. A spouse who gives up Hinduism and adopts another faith cannot go to the court and seek any relief on this ground. This is banned even under the provisions of s. 23(1)(a), viz., that the petitioner cannot be allowed to take advantage of his or her own wrong or disability.
The issue whether a marriage performed under the Hindu Law can be dissolved under the Hindu Marriage Act, 1955 by a spouse who ceases to be a
Hindu by conversion to another religion, was considered by the Delhi High Court in
Vilayat Raj v. Sunita. The parties were Hindu at the time of marriage in
1978. They separated in 1980 and in 1981 the husband filed a petition for
divorce under s. 13(1)(ia) on the ground of cruelty. In the petition he set his
religion as Mohammedan at the time of filing the same. The wife
challenged his right to file a petition under the Hindu Marriage Act. 1955. on
the ground that he was no longer a Hindu. while the lower court accepted the
wife's plea, the High court reversed the order. It held that the relevant date on
which both parties are required to be Hindus in order to file petition under the
Hindu marriage Act, 1955, is the date of marriage and not the date of filing the
petition. The court observed:
conversion does not per se operate to deprive the party. of rights which may be otherwise available to him under the Act... [A] party is not entitled to take advantage of his own wrong or disability and gain from a situation which he has brought about resulting in detriment to other spouse... But if the aggrieved party does not seek dissolution on this ground does it debar the other party from approaching the court on other grounds, which are available to him under the Act? It would appear not.
The court made reference to the provisions of the Dissolution of Muslim marriage Act, 1939. Under s.4 of the Act, renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself, operate to dissolve her marriage. However, by a proviso to the section, it is clarified that after such renunciation or conversion, the woman shall still be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in s. 2. According to the court, even though the Hindu marriage Act, 1955 does not make any specific provision to t6is effect, the converted spouse would nonetheless be entitled to file a suit under it because he he is not seeking any relief on the ground of conversion nor is his case based on it in any manner. Thus, it implies that even upon conversion a converted spouse can go to court and seek relief under the provisions of the Hindu Marriage Act, 1955, provided he does not base the relief on the ground of his conversion.
As to whether a spouse who has consented to the other's conversion is estopped from seeking relief on this ground. the court answered in the negative In Suresh Babu v/s V.P. Leela a husband converted to Islam and the wife file a petition for divorce on this ground. The husband's defense was that since she had given him such permission she was not entitled to seek divorce on this ground. The court however, rejected her argument and held that even if she had given her consent, the act of renunciation of Hinduism and conversion to Islam is a matrimonial wrong and a ground for divorce under s. 13(1Xii) of the Hindu Marriage Act, 1955.
Vide proviso to section 23(2) of the Act. when the ground for divorce is conversion of the non-petitioner, then there is no duty caste upon the court to make an effort to bring about reconciliation between the parties. However, in Bini v/s Sundaran K.V, here the family court 0granted divorce to the husband on the wife's admission that she had converted to another religion, the same was set aside on appeal by the wife. It was held that even though under the provision of the Hindu Marriage Act, 1955 endeavour for reconciliation was not mandatory but after the enactment of the Family Courts Act, 1984, even in grounds excepted by the Hin
Under the Hindu and maintenance Act, 1956, a Hindu wife whose husband has ceased to be a Hindu by conversion lo another religion, has a right to stay separately from him and seek maintenance.
Under the Parsi Law, a divorce can be obtained on the ground, inter alia, that
the defendant has ceased to be a Parsi by conversion to another religion, provided
that rhe divorce peririon is filed within two years after the plaintiff came to know of the fact.
It is significant to note that prior to the 1988 Amendment, the provision was simplier that the defendant has ceased to be a Parsi'. The words 'by conversion to another religion' were added in 1988. Thus, it is not enough that the defendant should have given up his faith; it is also required that he should have acquired another faith.
Apostasy does not ipso facto effect a marriage tie, and if the non convert spouse has no objection, the marriage continues. The converted spouse, however cannot seek a matrimonial relief on the ground of his/her own apostasy.
In this context, the provision laid down in s. 52(2) of the Act is pertinent. It states: A Parsi who has contracted a marriage under the Parsi Marriage and Divorce Act 1865 (15 of 1865), or under this Act, even though such Parsi may change his or her religion or domicile, so long as his or1ler wife or husband is alive and so long. as such Parsi has not been lawfully divorced from such wife or husband or such marriage has not lawfully been declared nu1l and void or dissolved under the decree of a competent court under either of the said Acts. shall remain bound by the provisions of this Act.
Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939
(DMMA), conversion of either spouse had the effect of automatic dissolution
of the marriage under the Muslim personal Law. The present law however. is
different and it makes a difference between a Muslim wife who was before
her marriage a non-Muslim and a wife who was a Muslim before marriage. In
the former case, the conversion of the wife would result in instant dissolution
of the marriage. In other words, if a woman converts to Islam from some
other faith and then re-embraces her former faith, then it will have the effect
of immediate dissolution of her marriage. To take an example. a Muslim
male marries a woman who was a Hindu prior to marriage but she Converts to
Islam and gets married. After sometime, she renounces Islam and converts to
Christianity. This will not ipso facto dissolve the marriage, because she has
not re-embraced her former faith, viz., Hinduism. Had she re-embraced
Hinduism, it would have had the effect of immediate dissolution of the
marriage bond. Thus, in Munavvar-ul-Islam v. Rishu Arora, a Hindu wife
converted to Islam at the time of marriage. On her re-conversion back to her
original faith viz Hinduism. her marriage stood dissolved. Her case falls under
the second proviso to s. 4 of the Act, and the pre-existing Muslim Personal
Law under which apostasy of either party to a marriage ipso facto dissolves
the marriage, would apply.
In the case of a Muslim married woman, her renunciation of Islam or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. Thus, if she remarries before the dissolution of her marriage, she can be prosecuted. bigamy. However, even after such reconciliation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in s. 2 of the Act, viz, unknown whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty. She can also exercise her option of puberty by repudiation of the marriage. The husband's apostasy is not a ground on which she may seek dissolution.
If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under s.494 of the Indian Penal Code, 1860. in Abdul Ghani v/s Azizul Huq. a Muslim man and woman got married. After sometime, the husband embraced Christianity but reverted to Islam during the wife's iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under s.494. It was held that no offence had been made.
The court remarked:
Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under. s 494 of IPC against her. Her second marriage is not void by reason of its taking. place during life of prior husband but by reason of special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do.
Under the Christian Law, the marriage. So far as the wife was concerned, she could file a
petition for dissolution on the ground that her husband has exchanged his
profession of Christianity for the profession of some other religion-and gone
through a form of marriage with another woman. Thus, the mere fact of the
husband's conversion was not enough to entitle a wife to seek dissolution. unless
she also alleged and proved his second marriage.
The Indian Divorce Act, i869 which was so antiquated and not in tune with changing times has now undergone revolutionary changes with the enactment of the Indian Divorce (Amendment) Act, 2001. It has removed the gender based discrimination within the Act as also the harsh provisions for matrimonial relief's. The grounds for dissolution of marriage for the husband and wife have been brought almost at par. Besides, the grounds have been liberalized. Thus conversion of the defendant to another religion. inter alia, has also been incorporated as a ground for dissolution of marriage. This ground is available to both the spouses.
In this context, a reference may be made to the Converts Marriage Dissolution Act. 1866. Under s. 4 and 5 of the Act, if a husband or a wife changes his/her religion to Christianity, and if in consequence of such change, the non-convert spouse for a space of six continuous months, deserts or repudiates him/her. then the deserted spouse may sue the other for conjugal society and if that is not complied with. may, ultimately seek a dissolution.
The Special Marriage Act, 1954, being a secular legislation, it has no reference to conversion. Apostasy or conversion therefore does not constitute a ground for any matrimonial relief under this Act.
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