Conversion as a ground of divorce

Conversion as a ground of divorce

INTRODUCTION

We live in diverse country in which people have different belief, culture, society. India is a land inhabited by people believing in different religious faiths and accordingly this lead to the emergence of different personal laws governing different communities like Hindus, Muslims, Christians, Parsis and Buddhists. In preview law, each citizen of India is entitled to have its owns personal law inter alia in the matters of divorce and marriage.

Marriage in Indian society is not a contract but a bond between two individuals which is built with love and faith. Divorce is a legal dissolution of marriage so that either of the spouses are free to remarry with someone else after a certain period of time.

The following are the grounds of divorce in India mentioned under the section 13 of Hindu Marriage Act:

1. Adultery – voluntary sexual intercourse between a married man and someone other than his wife or with the wife other man.
2. Cruelty – injury both mental and physical. After Marriage laws act, 1976 cruelty has become a ground of divorce as well as separation.
3. Conversion or apostasy – one of the spouse converts religion without the consent of other spouse.
4. Desertion – permanent abandonment of one spouse by the other spouse without any justification and consent.
5. Insanity – means when a person is of incurable unsound mind.
6. Virulent and incurable form of leprosy – Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this is a communicable disease. Thus it is considered as the valid ground for divorce under hindu laws
7. Renounce – means when one of the spouses decide to renunciation the world and walk on the path of the God, then the other spouse can approach the court and demand the divorce and it is mostly practiced by Hindus. In this concept the party who renunciates the world is considered as civilly dead, has not been heard of as being alive for seven or more years.
8. Non-resumption of cohabitation – either spouse can file a petition of divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation for one year or more after a decree of judicial separations. Resumption of cohabitation means living together in a conjugal relationship.

CONVERSION

Conversion of one of the spouses to any other religion is a ground to file a divorce petition. In this context, conversion means that the person has voluntarily relinquished his or her religion and adopted another religion after going through some formal ceremony. If a Hindu embraces a totally different religion, such as Christianity or Islam or parsi, he or she may be said to be a convert.

When the parties convert from one religion to another, it gives them a valid ground to seek divorce from such a spouse. A contested divorce petition can be filed by the other spouse who has been left by the spouse who has converted.

Hindu Laws On Divorce On Ground of Conversion

Section 13 of the Hindu Marriage Act lays down various grounds to file divorce petition including adultery, cruelty, desertion, bigamy, incurable unsoundness of mind, conversion or apostasy, virulent and incurable form of leprosy, venereal disease in communicable form, renouncing the world, has not been heard of as being alive and non-resumption of cohabitation for 1 year or more after a decree of judicial separations.

The spouse who ceases to be a Hindu by conversion cannot file a petition for divorce under this section. A contested divorce petition can be filed by the other spouse who has been left by the spouse who has converted. The Hindu laws lay down 2 conditions in which a divorce petition can be filed in the ground of conversion of a spouse. The conditions are as follows:

1. That the respondent has ceased to follow the faith of Hinduism and he is no longer a Hindu.
2. That the respondent has converted to another religion that is a non-hindu faith.

In Sarla Mudgal v. Union of India, [1]  the court observed that second marriage of a Hindu husband after his conversion to Islam being violative of equity, justice and good conscience would be void marriage and attracts section 494 of IPC;

Conversion to another religion, however, does not automatically lead to divorce, but it only gives a right to the other spouse to file a petition for divorce under the divorce laws in India. So under the Hindu personal law as it expiated prior to its codification in 1955, a hindu marriage continued to subsist even after one of the spouses converts him/her to Islam. There was no automatic dissolution of the marriage, instead

In Sayeda Khatoon alias A.M. Obadiah v. M.Obadiah, [2] it was held that a marriage solemnized in India according to personal law cannot be dissolved according to another personal law simply because one of the parties has changed his or her religion.

Parsi Laws On Divorce On Ground of Conversion

Under the Parsi Laws, divorce can be obtained if the spouse has ceased to be a Parsi by conversion to another religion, provided that the divorce petition must be filed within 2 years after the other spouse came to know of the fact. Apostasy does not ipso facto (by that very fact) effect a marriage tie, and if the non-converted spouse has no objection, the marriage continues. The converted spouse, however cannot seek a matrimonial relief on the ground of his/her own apostasy.

Muslim Laws On Divorce On Ground of Conversion

Before the Dissolution of Muslim Marriages Act, 1939 was enacted, conversion of either spouse had the effect of automatic dissolution of the marriage. However, under the present law, a Muslim wife who was before her marriage, a non-Muslim gets converted, it would result in an instant dissolution of the marriage. For a wife who was a Muslim before marriage, renunciation of Islam or conversion to another faith would not amount to dissolve her marriage. This makes her remarrying without dissolution of marriage, a crime in the eyes of law.

In Khambatta v. Khambatta [3], a Muslim married a Christian woman in the Christian form. The wife converts to Islam and the husband divorced her by talak. In such circumstances, the Court held that the divorce was valid.

Christian Law on divorce on the ground of Conversion

Under the Christian Law, so far as the wife is concerned, she can 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 or divorce, unless she also alleged and proved his second marriage in court.

CONCLUSION

As there are numerous grounds for seeking divorce stated in section 13 of Hindu Marriage Act in 1955, it is clear that hindu marriage continued to subsist even after one of the spouse converts to Islam. There is no automatic dissolution of the marriage. This applies to all hindus by religion in any of its forms and development. When conversion is done for the sole purpose for remarrying and then again reconverting to prior religion, then it becomes a necessary ground for divorce in hindu law.[4]

References:

[1]1995(2) Civil Court Cases 100 (S.C.)

[2]49 Cal WN 745

[3] (1934) 36 Good. LR

[4]Mohammad v Mst Mariam AIR 1936 Lah 666

Author: Akriti Mishra,
Veer Narmad South Gujarat University, Surat, 2nd Year Law student