Author: Hardik Bansal, Student at National Law University, Lucknow.
Co-Author: Srajan Tyagi, Student at National Law Institute University, Bhopal.
INTRODUCTION
Apostasy is the formal disaffiliation from, abandonment of, or renunciation of a religion by a person. It can also be defined within the broader context of embracing an opinion that is contrary to one’s previous religious beliefs. One who undertakes apostasy is known as an apostate. In Islam the laws with regards to apostasy are very stringent and serious. It is worth noting that the Shariat law also provides for death sentence in case of Apostasy. As per Hindu Marriage Act, 1955[1] “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.”
APOSTASY IN HINDU PERSONAL LAWS
India is a land that comprises of different individuals who practise diverse religions and thus, depending on the individual’s religious affiliation, there are different personal laws in effect in India. Accordingly, Hindu personal marriage laws are governed by HMA, 1955[2].
“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 (Apostasy) by conversion to another religion.”[3]This is also available as a judicial separation ground.
In Madanam Seetha Ramul Vs. Madanam Vima[4], the wife converted to Christianity and the Husband was granted divorce for the same.
It is worth noting that only the person who is the non-convert in the marriage can seek divorce and upon conversion to another religion the marriage does not automatically get dissolved. Even under the terms of Hindu Marriage Act[5], the person who becomes an apostate cannot seek to terminate the marriage.
In Vilayat Raj v. Sunita[6], 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 another 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. Conversion does not per se operate to deprive the party. of rights which may be otherwise available to him under the Act.”
In Suresh Babu v/s V.P. Leela[7], the husband converted to Islam and the wife wanted a divorce for the same. The husband argued that she had given explicit permission but the court did not buy this argument and granted divorce to the wife.
It is worth noting that the court has no obligation to try to reconcile the parties in the case of conversion as per proviso to section 23(2)[8] of the Act.
APOSTASY IN MUSLIM PERSONAL LAWS.
It is generally agreed that anyone who professes Islam ‘s religion, i.e. who accepts God’s unity and Mohammad ‘s prophetic character, is a Muslim and is subject to Muslim law. It is not necessary for a Muslim to be born a Muslim; it is appropriate if, by profession or conversion, he is a Muslim. Religion depends on conviction, according to Islam ‘s theory; a believer may renounce Islam just as Islam may be embraced by an unbeliever. It is for the courts to determine whether a person is or is not a Muslim and this depends upon the facts of each case.[9]
The expression ‘apostasy’ implies abandonment of faith or belief. A individual is known as a ‘apostate’ who has rejected his religious or political beliefs. The blood connexion of an apostate was not considered in Islam to be covered by law.
The §4 of DMMA,1939[10] talks about the effect of conversion to another faith in case of Islam.Apostasy is the first step in the process of conversion. When a person adopts beliefs and principles of another religion, conversion is said to take place.
Since time immemorial, religious conversions and apostasy have been debatable, but in the present age, when faith has taken a more active stance in people’s lives as well as the political atmosphere plaguing the nations, it has gained serious importance. The conversion of a partner provides a reason for matrimonial relief to the non-converted partner. This primarily happens because a person altogether changing their faith may and often leads to a complete or drastic change in the personality or behaviour of such convert in which case the whole ethos and sanctity of the marriage get broken.
It is worth noting that 3 instances can arise after conversion with regards to its legal effects on Marriage: 1. The marriage automatically gets dissolved. 2. The non-covert seeks dissolution 3. The covert seeks dissolution
In the first instance there is no explicit statutory provision for the same however the marriage is considered to be automatically dissolved as soon as the Husband removes his faith in Islam. In the second instance as per all different personal laws and statutes a divorce can be sought as well as judicial separation. In the third case the only example that we have is the Converts’ Marriage Dissolution Act, 1866[11].
Before DMA[12] was enacted, the marriage was compulsorily dissolved as soon as a partner converts to another faith. There is a distinction and 2 cases are present :
In the first case , if a woman converts from any other religion to Islam and then re-embraces her previous religion, then it would have the effect of her marriage being automatically dissolved.
In the second case of a married Muslim woman, her renunciation of Islam or her conversion to a religion other than Islam is not an act of dissolving her marriage by itself. Thus, if she remarries before her marriage dissolves, 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 § 2 of the Act[13], viz, unknown whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty. By repudiating the marriage, she can also exercise her probability of puberty. The apostasy of the husband is not a ground on which she might attempt dissolution. If a husband renounces Islam, the marriage is dissolved automatically. Thus, even before the death of iddat, if his wife remarries, she would not be guilty of bigamy under criminal law[14].
In Munavvar-ul-Islam v. Rishu Arora[15] “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 marriage ipso facto dissolves the marriage, would apply”.
In Abdul Ghani v/s Azizul Huq[16] , 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. s 494 of IPC[17] 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.”
APOSTASY IN OTHER PERSONAL LAWS
PARSI PERSONAL LAW
A divorce can be obtained under the Parsi Law on the sole condition that the petition for divorce is filed within 2 years of getting to know the fact that the partner has gave up on being a Parsi. It is worth noting that in case of Parsi personal law it is important not only to renounce ones faith but also to accept another to seek a divorce[18].
“Thus accordingly, 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 that sense, the provisions of § 52(2) of the Act[19] become pertinent: A Parsi who, under the Parsi Marriage and Divorce Act 1865[20] or under this Act, has contracted a marriage even though such Parsi may change his or her religion or home that individual shall be legally married to his/her spouse till the marriage is declared null or void by a competent authority.
CHRISTIAN PERSONAL LAW
As per Christian personal laws a husband who has converted to another religion his wife and based on this mere fact she cannot seek a dissolution. However after the enforcement of the Indian Divorce (Amendment) Act, 2001[21], the Indian Divorce Act, 1869[22], the act has undergone progressive advancements. As well as the harsh provisions for marriage relief, it has abolished gender-based discrimination within the Act. For the husband and wife, the grounds for the breakdown of marriage were almost brought to par. In addition, the foundations have been liberalised. Hence, the defendant’s conversion to another faith. Among other things, marriage has also been incorporated as a basis for breakup. The spouses both have access to this land.
In this regards it is important to note that the Converts Marriage Dissolution Act. 1866[23]. Under § 4[24] and 5[25] 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.”
SPECIAL MARRIAGE ACT, 1954
SMA,1954[26], in all purposes is a secular law thus it does not concern with apostasy and conversion. Thus, even if someone relinquishes his faith after his marriage under SMA, it would not affect the marriage
CONCLUSION AND SUGGESTIONS
Thus, it is worth noting that the court does in some cases allow the dissolution of marriage on just the basis of leaving one’s faith and sometimes it does not, it is still a grey area of law, but on the basis of all the research and the intellect of the researcher he says that a dissolution of marriage should be granted to the non-apostate/convert spouse of such marriage so that he/she is not denied the choice of separation after the change in the other spouses faith, as even in the modern-day India the faith or religion does defines one and is a very important part of one’s personality.
The researcher also commends the provisions of SMA,1954[27], as it is truly secular and it does not affect the marriage even after the change or relinquishment of one’s faith as in today’s times religion should not be a barrier between two people deciding to spend their lives together in a martial bond. For this purpose, the researcher pushes forward Uniform Civil Code[28] as it in character is truly secular and would in all aspects disrupt all this divide on the basis of religion.
Thus, the state would have to intervene one last time into the personal laws so as to never do it again.
REFERENCES
[1] Hindu Marriage Act, 1955 s 13(1)(ii).
[3] Hindu Marriage Act, 1955 s 13(1)(ii).
[4] Madanam Seetha Ramul v Madanam Vima (2003) CA 2285.
[5] Hindu Marriage Act, 1955 s 23(1)(a).
[6] Vilayat Raj v Sunita AIR 1983 Delhi 351.
[7] Suresh Babu v VP Leela 2006 (3) KLT 891.
[8] Hindu Marriage Act, 1955 s 23(2).
[9] Malaya Law Review, Vol 7, No 1 (July 1965).
[10] Dissolution of Muslim Marriages Act, 1939 s 4.
[11] Converts Marriage Dissolution Act, 1866.
[12] Dissolution of Muslim Marriages Act, 1939.
[13] Dissolution of Muslim Marriages Act, 1939 s 2.
[14] Indian Penal Code, 1860 s 494.
[15] Munavvar-ul-Islam v Rishu Arora (2013) CA 14330.
[16] Abdul Ghani v Azizul Huq (1912) ILR 39 Cal 409.
[17] Indian Penal Code, 1860 s 494.
[18] The Parsi Marriage and Divorce (Amendment) Act, 1988.
[19] Parsi Marriage and Divorce Act, 1865 s 52(2).
[20] Parsi Marriage and Divorce Act, 1865.
[21] Indian Divorce (Amendment) Act, 2001.
[22] Indian Divorce Act, 1869.
[23] Converts Marriage Dissolution Act, 1866.
[24] Converts Marriage Dissolution Act, 1866 s 4.
[25] Converts Marriage Dissolution Act, 1866 s 5.
[26] Special Marriage Act, 1954.