THIS ARTICLE HAS BEEN WRITTEN BY MS. YASHASHVI MISHRA OF 3RD YEAR FROM UNIVERSITY OF ALLAHABAD
Under the Hindu Marriage Act, 1955, divorce can be granted on various grounds, including conversion. If one spouse converts to another religion, it can lead to irreconcilable differences and breakdown of the marriage.
Conversion is one of the grounds for divorce as per the Hindu Marriage Act 1955. Section 13(1)(ii) of the Act states that 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.
To file for divorce on the grounds of conversion, the following conditions must be met:
- The spouse must have converted to another religion.
- The spouse must have renounced Hinduism.
- The conversion must have taken place after the marriage.
If these conditions are met, the spouse who has not converted can file for divorce on the grounds of conversion.
The Hindu Marriage Act provides for two types of divorce: contested and mutual. In a contested divorce, the spouse who files for divorce must prove the grounds for divorce to the court. In a mutual divorce, both spouses agree to the divorce and the grounds for divorce.
In a divorce on the grounds of conversion, the spouse who files for divorce must prove that the other spouse has converted to another religion and has renounced Hinduism. The court will then consider whether the conversion has led to irreconcilable differences and the breakdown of the marriage.
If the court finds that the conversion has led to irreconcilable differences and the breakdown of the marriage, it may grant a divorce. The court may also consider other factors, such as custody of children, alimony, and division of property.
It is important to note that conversion alone may not be sufficient grounds for divorce. The court will consider all the facts and circumstances of the case before granting a divorce.
In the case of Prakash v. Parmeshwari (2010) 12 SCC 469, the Supreme Court held that conversion to another religion is a ground for divorce under the Hindu Marriage Act 1955.
In the case of Ramesh Chander v. Savitri (2005) 1 SCC 518, the Supreme Court held that the conversion of one party to another religion does not dissolve the marriage by itself. It is only a ground for divorce, and the other party has to prove that the conversion has caused mental cruelty to them.
It’s important to note that the act of conversion must be proved by the petitioner and the court must be satisfied that the other party has indeed converted to another religion. In case of evidence provided is not sufficient, the court may dismiss the petition.
Also, the court may take a lenient view if the act of conversion is condoned by the other party or if it was committed due to the conduct of the other party. In such cases, the court may dismiss the petition for divorce.
It’s worth noting that the concept of conversion is different than that of the Adultery or Cruelty in marriage, and it is the burden of the petitioner to prove the act of conversion rather than the burden of the respondent to prove the absence of it.
Under 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 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 vs. Sundaran K.V, here the family court granted 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 endeavor for reconciliation was not mandatory but after the enactment of the Family Courts Act, 1984, even in grounds excepted by the Hindu Marriage act, the family court is bound to make efforts for reconciliation. Passing of decree on mere admission of conversion by a spouse was against the spirit and mandate of the provisions under the Family Courts Act, the court held.
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.
References –
- Prakash v. Parmeshwari (2010) 12 SCC 469
- Ramesh Chander v. Savitri (2005) 1 SCC 518
- Madanan Seetha Ramalu v. Madanan Vimla 2285 of 2014
- Vilayat Raj v. Sunita AIR 1983 Delhi 351
- Suresh Babu vs V.P. Leela 2006 (3) KLT 891
- Bini vs. Sundaran K.V AIR 2008 Ker 84