Impact of Religion conversion on Hindu Divorce cases

December 8, 2023

This article has been written by Ms. Mahi Agrawal, a first-year student at Hidayatullah National Law University, Raipur.

Abstract:

This article explores the legal implications of spousal conversion on Hindu marriage and divorce, highlighting that while bigamy is generally prohibited by law, polygamous Muslim marriages are an exception. The act of conversion can trigger automatic dissolution of marriage, provide grounds for divorce initiation by the non-convert spouse, and offer legal avenues for the convert spouse seeking divorce. Additionally, provisions within the Hindu Adoptions and Maintenance Act, 1956, and Law Commission Report 1961, have been discussed, shedding light on the nuanced legal consequences of religious conversion on marital relationships.

In India, spirituality mirrors the diverse landscapes, with followers of various religions coexisting harmoniously, extending to encompass the peaceful cohabitation of people from different castes and sub-sects within the same faith. Despite a well-established legal framework in the country, the personal laws are notably intricate, having distinct rules fand regulations for each religious community. Hindus, Sikhs, Jains, Buddhists, Christians, Muslims, and followers of other religions are subject to separate personal laws, resulting in legal complexities when one spouse undergoes conversion. This issue of religious conversion introduces legal intricacies, raising concerns among minority communities, such as Muslims and Christians, as well as the majority Hindu community. The potential use of religious conversions to gain secular rights against another person or compromise the rights of other is a valid worry, particularly against the backdrop of intercommunal tensions prevailing in India.

Sections 494 and 495 of the Indian Penal Code specifically address the offenses of bigamy and concealing a prior marriage. Bigamy is prohibited due to the existence of a previous subsisting marriage. However, polygamous Muslim marriages are not deemed void. Overtime, a prevalent practice emerged wherein a married man, originally subject to a monogamous rule, such as a Christian or Hindu husband (following the imposition of monogamy in 1955), could convert to Islam without divorcing his existing wife. Subsequently, he could legally marry another woman, thus navigating around the constraints imposed by monogamous norms. Conversely, when a woman spouse underwent conversion to Islam married another man, the legal perspective took a different turn. Such marriages were considered void, as polyandry is inherently void in Islam as well.

According to the Hindu Marriage Act, a crucial requirement for a valid Hindu marriage is that “neither party should have a living spouse at the time of marriage”. Such a marriage is deemed void under Section 17 of the Hindu Marriage Act. The legislature has incorporated in Section 17 the provisions of Section 494 and 495 to effectively deal with the offence of bigamy. The act of one spouse undergoing conversion can result in various legal consequences for the marriage. Firstly, it may lead to the automatic dissolution of the marital bond. Secondly, the non-convert spouse may find grounds for initiating divorce proceedings. Thirdly, the convert spouse might also have legal grounds to seek divorce. Each of these scenarios have been comprehensively discussed in the context of Hindu marriages subsequently.

Dissolution of marital bond.

No statutory provision explicitly addresses this matter within any of the personal laws. However, the 1995 landmark Supreme Court judgement, Sarla Mudgal v. Union of India, pronounced that changing one’s religion to facilitate a second marriage without dissolving the first is invalid. Notably, the conversion of a husband to another religion does not dissolve the first marriage, as clarified by the court. The judgement provided a fresh perspective on the interpretation of “void” under Section 494 of the Indian Penal Code. In this ruling, the court emphasized that concerning marriage, the Hindu convert remained obligated by the provisions of the Hindu Marriage Act, not only pertaining to his pre-existing Hindu marriage but also governing his capacity to enter into any subsequent unions during the continuance of that Hindu marriage. This implies that the convert adheres to the monogamous rule as long as his Hindu marriage remains in force. Consequently, he is precluded from exercising the right to contract a polygamous marriage under his newly adopted personal law while still bound by a pre-conversion monogamous marriage. Therefore, any marriage he enters into as a Muslim would be deemed void for bigamy and subjected to the criminal penalties prescribed by the Indian Penal Code as long as his Hindu marriage has not been legally dissolved. The Supreme Court has held that engaging in any additional marriage while initial marriage is still valid constitutes an offense under Section 494 in conjunction with Section 17 of the Hindu Marriage Act, 1955. Regardless of the individual’s conversion to a different religion, they remain subject to prosecution for the offense of bigamy.

Prior to the enactment of the Hindu Marriage Act, the Madhya Pradesh High Court decreed that “the conversion of a Hindu wife to Islam does not automatically annul her marriage with her Hindu husband.” The Court further stipulated that the wife cannot contract a legally valid marriage while her former husband is still alive. Consequently, the accused was convicted of adultery under Section 497 of the IPC. In 2005, the Supreme court again clarified that the mere conversion of one party to another religion does not automatically terminate the marriage. Rather, it constitutes a ground for divorce, necessitating the other party to demonstrate that the conversion has inflicted mental cruelty upon them.

Ground for non-convert to seek divorce.

The Hindu Marriage Act, which brought the concept of divorce within the purview of orthodox Hindus, includes a provision under Section 13(1)(ii) for divorce that allows either spouse to seek dissolution on the grounds that the other spouse “has ceased to be a Hindu through conversion to another religion.” As per the Act, if the other party gives consent, the act of conversion does not lose its classification as a conversion. However, the Delhi High Court observed in 2012 that “although conversion serves as a basis for divorce, a spouse may be precluded from obtaining divorce if they ‘goaded’ the other spouse to undergo such conversion.” The Punjab-Haryana High Court ruled in 1973 that the husband’s cruel conduct, including his remarriage, did not establish grounds for his wife’s desertion. However, the wife was granted a decree for judicial separation due to the husband’s actions that compelled her to leave. The husband’s conduct prohibits him from seeking the dissolution of marriage and he is therefore not entitled to benefit from a divorce decree. In a case where the wife underwent conversion to Christianity, the Andhra Pradesh High Court granted judicial separation, subsequently leading to divorce upon the husband’s application.

Ground for convert to seek divorce.

In 2006, the Kerala High Court noted that the Hindu Marriage Act of 1955 does not confer any rights upon a Hindu spouse who undergoes conversion to another religion. Conversely, such a spouse becomes vulnerable to a divorce lawsuit initiated by the other spouse due to conversion. The sole situation wherein apostasy provides grounds for divorce is when a Hindu spouse embraces Christianity and invokes the Coverts’ Marriage Dissolution Act of 1866.

Additionally, the petitioner must substantiate the act of conversion, the Court needs to be convinced that the other party has genuinely embraced another religion. If the evidence presented is deemed insufficient, the Court has the authority to dismiss the petition. Importantly, in the case of conversion, as opposed to adultery or cruelty in marriage, it is the responsibility of the petitioner to establish the occurrence of conversion rather than placing the burden on the respondent to prove its absence.

India has in place a secular option to the matrimonial regime, that is the Special marriage Act 1954. Only for marriages solemnized or registered under this Act does a change of religion not impact the matrimonial rights of either the converted or the unconverted spouse. Under the proviso to Section 23(2) of the Hindu Marriage Act, “when the basis for divorce is the conversion of the non-petitioner, the court is not obliged to make efforts for reconciliation between the parties.” However, in the case of Bini v. Sundaran K.V., where the family court granted divorce to the husband based on the wife’s admission of conversion to another religion, the decision was overturned on appeal by the wife. The court ruled that while the Hindu Marriage Act, 1955 does not mandate reconciliation efforts, the enactment of the Family Courts Act, 1984 obligates the family court to make reconciliation attempts even in cases not specifically covered by the HMA. Granting a decree solely based on a spouse’s admission of conversion was deemed contrary to the spirit and mandate of the provision under the Family Courts Act, according to the court. According to the Hindu Adoption and Maintenance Act, 1956, a Hindu wife has the right to reside separately from her husband and claim maintenance if he has renounced Hinduism by converting to another religion. However, under sub-section (3) of the Hindu Adoptions and Maintenance Act, 1956, “a Hindu wife is not entitled to a separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.”

In 1961, the Indian Law Commission reviewed the century-old Converts’ Marriage Dissolution Act and suggested the repeal of this 1866 statue. The commission proposed replacing it with a new law applicable to all conversions. The recommended legislation aimed to achieve the following:

Align the legal treatment of Muslim husbands, for whom apostasy from Islam presently automatically leads to marriage dissolution, with that of all other spouses who change their religion. The proposal stated that conversion to another religion should not, under any circumstances, result in the dissolution of an existing marriage.
Eliminate the advantage, existing until 1995, for individuals, whether Hindu or Christian, who converted to Islam by making remarriage after conversion to a different religion would be punishable under Sections 494/495 of the Indian Penal Code.
Simultaneously, the proposed legislation would grant any convert the right to have their pre-existing marriage dissolved in specific circumstances and subject to certain safeguards.

The proposed legislation fails to safeguard the rights of both the children from a pre-conversion marriage when a parent converts to Islam and the non-convert spouse. In this case, the convert’s estate will only be inherited by individuals who follow his newly adopted religion in the event of intestacy. This means that by converting to Islam, a man can disinherit his non-Muslim wife and children, even if the marriage remains intact and the legitimacy of the children from the pre-conversion marriage is legally protected. Despite the Law Commission’s suggestion, legislation along these lines has not been enacted, leaving the matter to be decided by the Supreme Court. The court decisions, however, do not address the succession problem overlooked by the Commission. It is perhaps significant for the Ministry of Law to thoroughly re-examine the issue and propose appropriate legislation.

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