Conversion to Islam and Marital Rights


Muslim law applies to-
        1)   Mohammedans by birth, as well as to,.                                                               

2) Mohammedans by conversion.

A non-muslim , who has attained majority and is of sound mind may embrace Islam in any of two modes:-

a) He may simply declare that he believes in the oneness of God and the Prophetic character of Mohammad,or

b) He may go to a mosque, to a person who is well versed in Islamic theology (Alim), where he utters Kalma (Lailaha-ill-Allah Muham-mad-ur Rasoolullah) before Imam, whereupon he is given a muslim name by the Imam. It is however, necessary that the conversion must be bona fide; the Court will not permit any one to commit a fraud upon the law by pretending to be a covert Islam in order to elude te personal law by which he is bound .

In Rikhya Bibi v. Anil Kumar , a hindu women accepted Islam in order to get rid of her Hindu husband, who was impotent. It was held that her conversion to Islam was colourable and was effected with the intent to commit a fraud upon the law, and was therefore invalid and ineffective.

Conversion to Islam and Marital Rights

According to Muslim Law, a distinction, is made between conversion to Islam of one of the spouses when such conversion takes place-
1) In a country subject to Muslim Law, and

2) In a country where the Law of Islam is not the law of the land

In the first case, when one of the parties embraces Islam, he should offer Islam to the other spouse , and of the latter refuses, the marriage can be dissolved. In the second case, the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. The courts in India do not administer the laws of any particular community but they administer such laws as are valid in India. Muslim Laws is administered only in those cases where it happens to be the law of India and where the parties are muslims. In India , the spouse who has become a convert to Islam can sue for divorce or a declaration of dissolution of the marriage on the ground that the other spouse has refused to adopt the Muslim religion. It has been held in Pakistan that a marriage of a Hindu married woman on her conversion in British India to Islam should be regarded as dissolved on the completion of three of her monthly couses without any decree or order of the court.

In Sarla Mudgal v. Union of India, the Supreme Court has held that the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under law would be invalid. The second marriage would be void in terms of the provision of Section 494, IPC and the apostate husband would be guilty of the offence under Section 494 of IPC.

In Lily Thomas v. Union of India, the Supreme Court has observed that if hindu wife files a complaint for the offence of bigamy under Section 494, IPC on the ground that, during subsistence of marriage her husband had married a second wife under the other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. Since under Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage in spite of his conversion to another religion, would be an offence under Section 17 of the Hindu Marriage Act read with Section 494 of IPC. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two hindus. Apostasy does not bring to an end the civil obligation or matrimonial bond but it is a ground for divorce under Section 13 as well as ground for judicial separation under Section 10 of Hindu Marriage Act.

Conversion to Islam and Rights of Inheritance

In the absence of a custom to the contrary, in case of a Hindu converts to Islam, succession and inheritance are governed by Mohammedan Law and not by Hindu law.

Where a Hindu, who had a Hindu wife and children, embraced Islam and married a Muslim woman and had children by her,his property would pass on his death to his Muslim wife and children and not to his Hindu wife or children because under Muslim Law, a Hindu cannot succeed to the estate of a Muslim.

Effects of conversion to Islam

The legal consequences that follow by conversion, may be summarised as under:

1) The religion of Islam is substituted for the previous religion of the convert to Islam, with so much of the personal law as necessarily follows from that religion;

2) The rights and status of the convert become subject to the Mohammedan law;

3) His apostasy (abandonment of religion) has an immediate and prospective effect, from the moment of the conversion and is not retrospective;

4) Conversion of the both spouse, without any intention to commit fraud upon the law, will have the effect to altering the rights incidental to marriage, but this question was left undecided by the Privy Council in Skinner v. Orde.

5) Succession to the estate of a convert is governed by Muslim Law.

Effect of renunciation of Islam

Under the pure Muslim Law Mohammedan after renouncing Islam loses all rights to succeed as Muslim. But now under the provision of the Caste Disabilities Removal Act XXI of 1850, the apostate will lose such rights. The question here arises as to what amounts to apostasy, i.e., abandonment of one’s religion. The answer is that mere deviation from non-fundamental provisons of Mohammedan religion does not amount to apostasy. So long as a person is prepared to accept the fundamental tenets of Islam, he is not an apostate.

Apostsy of guardian – According to Mohammedan Law an apostate has no right to contract a minor in marriage: Hedaya, 392. It is enacted however, by Act XXI of 1850, that no law or usage shall inflict on any person who renounces his religion any “forfeiture of rights of property”, and it was accordingly held in Muchoo v. Arzoon that a Hindu father is not deprived of his right to the custody of his children and to direct their education by reason of his conversion to Christianity. It is submitted that the decision in Muchoo’s case is correct . But the court may in its discretion deal with each case on its own merits.

Effect of renunciation of Islam on Marriage

Marriage of a Muslim husband with a Muslim wife is dissolved ipso facto on the renunciation of the husband of the Islamic religion, their marriage remains intact and is not dissolved.

The renunciation of Islam by a married Muslim woman on her conversion to a faith other than Islam does not by itself dissolve her marriage. But were a woman converted to Islam from some other faith re-embraces her former faith, her marriage with the Muslim husband stands dissolved .