JAMIA MILLIA ISLAMIA

CONFLICT OF LAWS
CONFLICT OF LAWS IN RELATION TO CONVERSION
OF RELIGION

Submitted By- Submitted to-

IRAM PEERZADA Ma’am Hina Kausar
Semester- X
Section- B
Acknowledgement
Before I start off on this endeavor that has been given to me as the assignment
submission and study of the topic- “Conflict of Laws in relation to Conversion
Effect” for the subject of Conflict of Laws in the tenth semester of this joyful
ride that I have undertaken under the flagship of The Faculty of Law, Jamia
Millia Islamia, I would like to thank everybody who has been instrumental in
my successful completion of my project.

First, I would like to acknowledge the immense contribution that my mentor

Ms. Hina Kausar has had on this project. By creating the basic framework of
the subject in my mind through her excellent lectures she also contributed in
the creation of the basic framework and limitations of the topic in my mind.
SYNOPSIS
 Introduction
 Legal effects of conversion on marriage
 Statutory Provisions
 Hindu law
 Parsi law
 Muslim law
 Christian law
 Observations of law commission in its eighteenth
report
 Conclusion
INTRODUCTION

Religion 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 of 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.

In matrimonial matters there is no one law which applies to persons domiciled in India. They are
governed by their personal laws which differ from community to community.1 The practice of
applying law in matrimonial matters, according to the religious faith and belief has led to
prevalence of diverse matrimonial laws. Muslims are governed mainly by uncodified Muslim
law of marriage and divorce derived from Quran and Sunnah at, and partly by codified law —
the Dissolution of Muslim Marriage Act, 1939. The Parsi Marriage and Divorce Act, 1936
governs the matrimonial matters of the Parsis. Jews have their own customary law derived from
the traditional Mosaic law. Christians are governed by the Indian Christian Marriage Act, 1872
and Indian Divorce Act, 1869.

Latest and the most important legislative enactment is the Hindu Marriage Act, 1955 which
governs practically any person domiciled in the territory of India who is not a Muslim, Christian,
Parsi or Jew. But this Act has no application to the members of any scheduled tribes within the
meaning of clause (25) of article 366 of the Constitution,2 who are still governed by the customs
applicable to them before passing of the Hindu Marriage Act. In addition to these personal laws,
there is the Special Marriage Act, 1954 which provides for a civil form of marriage for any one

1
Chagla, J., in Khanum v. Irani, AIR 1947 Bom 272-273
2
S. 2(2) of the Hindu Marriage Act, 1955.
domiciled in India irrespective of religious creed followed by him/her. Lastly, even after more
than 27 years of independence, we still have on the statute book, the Converts Marriage
Dissolution Act, 1866 which practically applies only to a Hindu who becomes a convert to
Christianity and may get his marriage dissolved subject to certain conditions. This Act being
discriminative in character, recommendation for its repeal was made by the Law Commission in
1961 but the government has not taken any concrete steps so far. The Foreign Marriage Act,
1969 provides for marriages of citizens of India out- side India. Section 18 of the Act provides
for application of the Special Marriage Act, 1954 for matrimonial reliefs.

LEGAL EFFECTS OF CONVERSION ON MARRIAGE

Conversion 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.

There is no statutory provision in our law providing for procedure, formalities, or maintenance of
record of conversions from one religion to another religion. The different religious groups have
their own formalities of conversion, when resorted to, they become a part of the evidence to
prove change of religion. But such formalities or conversion ceremonies or any form of
expiatory ceremony is not an essential preliminary to a valid conversion.3 In a couple of Madras

3
Perumal Nadar v. Ponnuswami, AIR 1971 S.C. 2352; Gurusami Nadars. V. Irulappa Konar, AIR 1934 Mod. 630 ;
Ramayya v. Josephine, AIR 1937 Mad. 172; Durga Parsada Rao V. Sudarsanaswami, AIR 1940 Mad. 513,
cases4 the intention to leave Christianity and re-embrace Hindusim was inferred from the
convert’s conduct and his acceptance as Hindu by his community. Very little, if at all any,
enquiry is made to ascertain that a person who comes for conversion genuinely wished to be
admitted to the new faith or the conversion is a sham conversion for some ulterior purpose. It is
submitted that the cases are generally regarding the conversion of a Hindu to Islam. For a
conversion to Islam, the person has to present himself before the Imam of a mosque. The Imam
may ask the person if he is voluntarily embaracing Islam and on receving a reply in the
affirmative would give him the ‘kalma’ (there is no God but Allah and Mohammed is his
Prophet) to recite. After the person has recited the kalma he is given a Muslim sounding name
(generally having the same initials as his previous name) and is asked to sign a register.5 For
conversion to Islam neither circumcision is necessary nor it is the final test.6

Confronted with a matrimonial dispute, the court is required to satisfy itself of the factum and
finality of conversion. But is it also the function of the court to go behind the transaction of
conversion and test or gauge the sincerity of religious belief or to determine whether it is
intelligent conviction or an ignorant and superficial fancy or whether the conversion was bona
fide.

Different opinions have been expressed by the courts. No court can test or gauge the sincerity of
religious belief.7 It is immaterial whether the motive was genuine conversion or a mere device.8
Din Mohammed, J., expressed his opinion in these words :

“Renunciation of a religious faith, therefore, requires no other proof than a person’s

declaration, the only condition being that the declaration is not casual of which the declarer may
repent afterwards, but it should be attended with volition and should be such to which the
declarer adheres and in which he persists. The motive of the declarer is similarly immaterial. A
person may renounce his faith for love or for avrice. He may do so to get rid of his present
commitments or truely to seek salvation elsewhere. That would not effect the factum of

4
Mrs. Marthamma v. Mumuswamy, AIR 1951 Mad. 888 ; Durgaprasada Rao v. Sudarsanaswanti, AIR 1940 Mad.
513.
5
Rakeya Bibi v. Anil Kumar Mukerji, (1948) 52 C.W.N. 142- 149.
6
R. K. Wilson, Anglo Mohammedan Law, 86-87 (Cal. 1930).
7
Lord Macnaughten in Abdul Razak v. Aga Mohd., 1894 L.R. 21 I-A. 56.
8
M. Sardaran v. Allahbaksa, AIR. 1934 Lah. 976.
renunciation....A genuine conversion is one which has actually taken place and if once it is
proved as an accomplished fact, further enquiry is barred.”

The question of bona fides was wholly irrelevant and, further, no court could determine
bonafides or otherwise of person’s change of faith.9 In a Sind case 10
, where the girl below the
age of 18 embraced Islam and contracted nikah, Davis, J.C., observed:

“I will not say that in this matter the minor must be shown to be able to exercise an intelligent
preference because religion is mere a matter of faith than of reason. But it must be shown that he
or she understood the nature of his or her profession of faith. The court is not concerned to
inquire into the motive or sincerity of religious belief or observances.”

On the other hand, as early as 1871, when a Christian widow and a Christian husband having a
wife living, after conversion to Islam, married in a Mohammedan form, their Lordships of the
Privy Council expressed doubts as to the legality of such marriage.11 Later in 1894, the Privy
Council leaned in favour of the validity of the marriage where the couple married according to
Christian rites, and subsequently having converted to Islam married second time according to the
Mohammedan form.12 In the later case the Privy Council accepted the factum of conversion and
validity of the marriage without going into the question of any motive behind the conversion.

A person may embrace a particular religion in order to benefit from a worldly point of view or in
the hope of entering the: kingdom of heaven but so long as his conversion is genuine his ulterior
or sordid motive would not effect the question of conversion.13 Talking of change of religion as a
question of fact, Macket, J., observed, “It seems to me somewhat analogous to the legal position
with regard to change of domicile which must always be a question of fact in every particular
case.”14

9
Ayesha Bibi v. Subodo Chandra, 49 C.W.N. 439
10
In re Muhammed Alam, AIR. 1939 Sind 311
11
Helen Skinner v. Orde, 14 M.I.A. 309,324.
12
Skinner v. Skinner, 1897 L.R. 25 LA. 34
13
Sardar Mohammed v. Maryam Bibi, AIR 1936 Lah. 666.
14
Durga Pd. Rao v. Sudarsanswami, AIR 1940 Mad. 513, 515.
STATUTORY PROVISIONS

The position under the various statutes is discussed below.

HINDU LAW

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 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 it does not debar the
other party from approaching the court on other grounds, which are available to him under the
Act.”

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
Section 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. 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. 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.

PARSI LAW

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 the divorce petition 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.
MUSLIM LAW

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 for 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. 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. Section 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.”

CHRISTIAN LAW

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, 1869 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 reliefs. 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.

The Law Commission in its Eighteenth Report has this to say :

It was observed by Chagla, J in Robasa Khanum V. Khodadad Bomanji,15with reference to a

marriage contracted between two Parsis, that it was “ a solemn pact that the marriage would be
monogamous and could only be dissolved according to the tenets of Zoroastrian religion”, and
that “it would be patently contrary to the justice and right that one party to a solemn pact should
15
AIR 1947 Bom. 272
be allowed to repudiate it by a unilateral act” . In other words, the marriage already contracted
had created mutual rights and obligations between the parties, which did not cease on the
conversion of either party, and therefore the right of the convert to marry more wives in
accordance with Muslim law must be held to be subject to the right which the wife has acquired,
under a monogamous marriage prior to conversion, to exclude all others in consortium so long as
the marriage subsists."16

It is submitted that the Law Commission seems to have made a very sweeping statement on an
important debatable point of law without considering the different aspects of the matter
thoroughly and may be it has not given any credence to the existing decisions of the law courts in
India validating second marriage of a male spouse contracted after his conversion to a
polygamous religion.

The Madras High Court in Emperor v. Lazar where a native Christian, having a Christian wife
living, married a Hindu woman according to Hindu rites without renouncing his religion, held
the accused guilty of bigamy. The court further held obiter that it would make no difference if he
had renounced the Christian religion before contracting the second marriage.

But in 1866, Holloway J. of the same court had held that a Christian convert relapsing to
Hinduism and marrying again according to Hindu rites cannot be convicted of bigamy. He
observed that, it seems impossible to assume that a man is not equally free to go from Hinduism
to Christianity and if he pleases back from Christianity to Hinduism.17

Again in 1910, the same court, in a case where a Christian having a Christian wife converted to
Hinduism and contracted a marriage with a Hindu woman according to Hindu rites, held, that the
offence of bigarny was not committed. A married Christian domiciled in India after his
conversion to Islam is governed by Mohammedan law, and is entitled, during the subsistence of
his marriage with his former Christian wife, to contract a valid marriage with another woman
according to Mohammedan rites.18

16
The Law Commission Eighteenth Report 1961 (The Converts Marriage Dissolution Act, 1866)
17
(1907) 30 I.L.R. Mad. 550.
18
Emperor v. Antony (1910) l.L.R. 33 Mad. 371.
In 1950’s also Mysore and Madras High Courts had held, that in the case of a Hindu converted to
Christianity and reverting to Hinduism in order to marry another woman, no offence of bigamy
within section 494 of the Indian Penal Code was committed. In a Ceylon case,19 where a
Christian having a Christian wife, converted to Islam and married a woman who had also
embraced Muslim faith, the Privy Council held that a person domiciled in Ceylon, a country of
many races and creeds, had an inherent right to change his religion and personal law and so to
contract a valid polygamous marriage if recognised by the laws of Ceylon, notwithstanding an
earlier subsisting marriage. This decision of the Privy Council deserves greatest respect, as
before 1959, their decisions had binding authority. In India, where the country is committed to
secularism, it is submitted, allowing freedom of choice and worship of different religions, legal
position on change of religion could not be any different.

In deciding on a Hindu woman’s second marriage with a Muslim on her conversion to Islam, the
Madras High Court held that principles of Hindu law should be applied to test the subsistence of
her first marriage and in testing the validity of her second marriage the principles of
Mohammedan law should be applied.20 Applying the same principle to a male spouse embracing
Islam and contracting a second marriage, the subsistence of his first marriage is to be determined
by the rules of his former religion and validity of his second marriage according to
Mohammedan law.

Where a married person changes his religion, the law under which the marriage was performed if
it considers the change of religion a wrong, would ordinarily provide for a remedy against the
wrongdoer. That remedy becomes available to the unconverted spouse. In India all the personal
laws are treated on equal footing. The legislature may, however, specifically make provision for
some limitation or restriction to be placed on the rights of a person under the new personal law
which ordinarily follow on conversion. For example, in the Parsi Marriage and Divorce Act, the
legislature has specifically laid down that a Parsi husband or wife cannot remarry in the life-time
of his or her wife or husband untill his or her marriage is dissolved by a competent court,
although he or she may have become a convert to any other faith.21

19
David v. Sudha, AIR. 1950 Mys. 26
20
Budansa Rowther v. Fatima Bibi, AIR 1914 Mad. 192.
21
Section 4 Qf the Parsi Marriage and Divorce Act
It is submitted that in 1936, the legislature in specifically providing for this prohibition of second
marriage on conversion of a Parsi spouse, was mindful of the right of a person to contract a
second valid marriage on conversion to a polygamous religion.

The Indian Divorce Act, 1969 provides for a wife to ask for divorce if the husband has changed
his religion and has contracted a marriage with another woman. Another ground mentioned for
divorce is ‘bigamy with adultery’.22 The distinction appears to be that in the former case the
second marriage, after the change of religion if permitted by the new religion, is valid, and
therefore, it cannot be considered bigamy with adultery. This also reflects the mind of the
legislature, treating remarriage, after conversion to a polygamous religion, as valid.

Then there are instances of men belonging to polygamous religions, contracting monogamous
registered marriages in England and on return to India contracting second marriage under their
own personal law while there first marriage subsisted. For example in Sainapathi v.
Sainapathi,23 second Hindu marriage after the subsisting first Christian marriage was held to be
not amounting to bigamy.

In deciding on the husband’s capacity to take a second wife, the personal law of the husband at
the time of the marriage his to be taken into account. A right to take a second wife is an incident
of the status of marriage which the husband may or may not possess. If on conversion he
acquires that status he can exercise that right which naturally flows from it.

It is a well known and accepted principle of private international law that a husband by voluntary
and unilateral act of change of domicile may bring about the change in the application of the
system of law in matrimonial matters.24 If this change can be brought about by a change of
domicile, it is difficult to see why a change of religion, the domicile remaining unchanged, may
not result in a change of status, if the law to be applied is then different by reason of the
difference of religion.

It seems to be settled law in India that on conversion to Islam, the converted spouse’s first
marriage subsists with all the rights and reliefs provided by the law of the first marriage and that

22
See S. 10 of the Indian Divorce Act
23
AIR 1932 Lah. 116.
24
R H. Graveson, The Conflict of Laws 191 (6th ed.)
marriage can be dissolved only under the law applicable to the parties at the time of marriage.
And except for this limitation, it is submitted, the law as it stands now, on conversion to Islam
the convert’s rights and obligations shall be governed by his or her new religious law. A Hindu
wife (for that matter a wife belonging to any religion) on her conversion to Islam cannot contract
an- other marriage so long as her first marriage subsists, as the Mohammedan law also does not
allow polyandry. But a Hindu husband (or a husband belonging to any other religion except
Parsi) on his conversion to Islam cart contract three more marriages under the Muslim law
though his first marriage is still existing. Derrett seems to hold a similar view when he says,

“ ...even the prospect of embracing a polygamous religion in order to acquire a new, additional
wife has been unpalatable to the courts, though they could not, without a statute, set aside what
the personal law allows or allowed.” The application of section 17 of the 1955 Act which
provides for punishment of bigamy is limited to two Hindus solemnizing marriage if at the date
of such marriage either party had a husband or wife living. Consequently, this section shall not
apply to a spouse converted to Muslim religion.

The Law Commission has observed :

The special Marriage Act allows persons belonging to different religions to marry. It is
considered that since initial difference of religion does not come in the way of a marriage under
that Act, the subsequent change of religion should not also effect any such marriage.

Unlike its predecessor the Special Marriage Act, 1872 the 1954 Act does not require
renunciation of religion by the parties marrying under the latter Act. The parties to the marriage
under the 1954 Act may belong to the same religion or to different religions. Even if the parties
to the marriage belong to the same religion, in matrimonial matters they would be governed by
this Act and not by their personal law and even the succession to their property would be
regulated by the Indian Succession Act.25 It is difficult to say that in all the cases the parties who
marry under the 1954 Act would be devoid of all religious feelings. The persons belonging to the
same religion may decide to contract a marriage under the 1954 Act because of its provision
allowing consensual divorces or for certain other attractive provisions of the Act. In a country,
having a majority of vegetarian people, change of religion by one of the spouses coupled with

25
S. 21 of the Special Marriage Act, 1954
insistence on cooking and eating beef may bring about disruption in their family life. It may lead
to non-converted spouse leaving the matrimonial home. Can it be said that the non-converted
spouse has left the matrimonial home without any reasonable cause ? Would it be treated as
desertion on the part of the non-converting spouse? The dissolution of marriage would also not
be available to such a spouse as change of religion is no ground for this remedy.

On embracing Islam can the male spouse contract another marriage under Muslim law ? In the
absence of any specific rule of prohibition, the general provision for punishment of bigamy in the
1954 Act may not prove to be legally sufficient in barring the converted spouse to contract a
second marriage under the Muslim law. Section 44 of the 1954 Act provides :

“Every person whose marriage is solemnized under this Act and who, during the lifetime of his
or her wife or husband, contracts any other marriage shall be subject to the penalties provided in
section 494 and section 495 of the Indian Penal Code (Act 45 of 1860), for the offence of
marrying again during the lifetime of a husband or wife, and the marriage so contracted shall be
void.”

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.
CONCLUSION

It is submitted that the law as it stands now, by one way conversions from the monogamous
religions to the polygamous religion, the provisions of the personal laws are being misused and
this misuse is bound to increase further if immediate steps are not taken to control the device of
change of religion for the purposes of avoiding or escaping the inconvenient rules of other
personal laws and also of the 1954 Act. Until uniform rules of monogamy are enacted for the
country, provisions may be made by statutory enactment removing the change of religion as a
ground of matrimonial reliefs and putting restriction on the spouse who changes religion to
contract another marriage so long as his first marriage subsists. To meet the situation that may
arise because of such a provision, non- cohabitation of the spouses for a certain period of time be
introduced as a ground for obtaining divorce.