AUTHOR:

Ms. SHREYA SHUKLA,
Student,
Faculty of Law, Jamia Milia Islamia, Delhi

CO-AUTHOR:

Abstract

Marriage is fundamentally considered as a union between man and woman and is accepted in the same form legally, all around the world but the nature of the marriage differs region wise. Roman Catholics consider the marriage as a sacrament whereas other western countries consider marriage as a contract. Early Hindus considered marriage as a sacrament too and believed it to be an indissoluble union. In India, the marriage is a personal affair which is majorly determined on the basis of religion and practices and there is no territorial law or uniform civil code that governs the personal matters of all religious communities. The importance and reliance on religion to determine the nature and form of marriage is a practice specific to India which is in absolute contradiction to the foreign patterns where the determinants of marriage related issues are governed by domicile or nationality as in England, or France and Germany respectively.

The religion being the sole determinant in India also plays an important role in determination of grounds of divorce or dissolution of marriage. Conversion from the faith of marriage is a major ground of divorce specifically identified in Hindu law and Muslim law. This is not a global practice but Malaysia also pays reliance on religion and conversion being a ground for divorce. The legal nuances of the same vary which have been carried out in the comparative account of the status of similar laws in two countries.

The practice of conversion as a tool has attracted bigamous relationships which have been criminalized in India[1].Under the Malaysian law, the non-convert party is equally bestowed with the right to file for divorce if the other party converts to Islam[2]. The conversion is recognized as a ground of divorce in both the countries but the paper highlights the detailed comparative analysis of the similar law in different countries.

Introduction

Fundamentally, marriage is a union between a man and a woman and is accepted by the legal system in the countries but the nature of the union is determined on the basis of various laws in the particular country. India is a land where different religions are practiced and hence, in accordance there are various personal laws governing the different religious communities and individual religious affiliations such as Hindu, Muslim, Christian, Parsi and Jews. Therefore, the matters of marriage and divorce that fall within the personal laws are governed by the laws that vary as per the faith of the individual.

In India, unity exists in diversity and the judiciary has been performing a herculean task of analyzing each case on the basis of a law specific to its facts. This situation is in absolute contradiction to the practices in western countries where nationality and domicile are the major determinants of jurisdiction and applicability of a specific law unlike India, where the religion of an individual determines the personal law that will govern.

Conversion from one faith to another has been a practice in India which has been adopted by the people on various accounts but a large section has adopted the practice of conversion to safeguard themselves from the anti-bigamy provisions of their personal laws. Marriage laws in India other than Muslim Law, prohibit bigamy and treat bigamous marriages as void and the same is punishable under the Indian Penal Code[3] (hereinafter referred as “IPC”). Hence, the married men whose religious law does not allow bigamy have resorted to the immoral practice of converting to Islam solely, for the sake of accomplishing the second marriage. Another misconception that has been carried ahead with this practice is, that it kills the need of dissolution of the first marriage post conversion.

The situation in Malaysia is similar, where post marriage conversion of one party to Islam has been in place and arose to be an issue. The conversion merely to find an escape from the first marriage and to contract bigamy has been the major reason of conversion. The Malaysian laws equally condemn such practices by making it a ground of dissolution of marriage by the non convert party.[4]

As these issues started coming to light, it became necessary to determine and safeguard the rights of the women associated in these marriages as the questions arose, does conversion become a ground of nullity of marriage? Post the nullity of marriage the right of the wife to maintenance will be determined in accordance to which laws? What laws will govern the nature of divorce? What will be the solution to issues regarding the custody of children and what will be the nature of the marriage?

Therefore, the judicial decisions and interpretation of the statutes, in India as well as Malaysia, reflect that in both the countries the conversion of religion post marriage does not automatically nullify the first marriage whereby giving the converted person a right to be in a second marriage legally. Mere conversion is not an equivalent to the dissolution of the first marriage but is a ground sufficient for the non-convert party to seek divorce. Further, if a person marries post conversion, without nullifying the initial marriage, then, same will fall within the ambit of bigamy.

Effect Of Conversion On Marriage And Divorce

Religion is a sensitive and personal issue which has been guaranteed to all the individuals under the Constitution of India[5] (hereinafter referred as “COI”). The freedom to practice or profess any religion[6] of choice is a right given to all the citizens of India which highlights the secularist module of Indian society.

Marriage is governed by the personal laws but the issues arising post marriage specifically, relating to divorce, maintenance, child custody etc. are dependent on the country’s laws. Every country has a different view on the same. Whereas, in certain countries the jurisdiction of courts in matters of divorce is dependent upon the domicile or nationality, in some countries the same is governed under the personal laws of the individual.

Marriage in India is governed by the personal laws of the individuals whereby, the religious faith and practice of a person determines the laws that will govern the matters regarding the marriage and nullity of the marriage. India does not have a territorial law that uniformly governs all the religious communities over the matters of personal laws whereas, in personal or family matters in India, the Hindus are governed under the Hindu Law, Muslims under the Mohammedan Law, Christians under the Christian Law, Parsis under the Parsi Law.[7]

The position in Malaysia too stands similar where, there are different religions that are being practiced in the country irrespective of the fact that country majorly subscribes to Islam. The marriages of non-muslims are governed by the Law Reform (Marriage and Divorce) Act[8] (hereinafter referred as “LRA”) whereas the muslims are governed under the Islamic Sharia Law.[9]

Conversion of a spouse gives to the non-convert spouse, a ground for matrimonial relief. Conversion can affect a marriage legally in either an automatic dissolution of the marriage or can qualify as a ground for divorce at the instance of the non-convert or can be a ground for divorce at the instance of the convert.

Conversion in both the countries qualifies as a valid ground of divorce. The conversion does not nullify the marriage in either country but has been laid down as a ground of divorce in both the countries and gives a valid reason for the party to seek divorce. Further, this also initiates the implication of provisions of adultery and bigamy which if punishable under personal law or condemned as a practice may lead to punishment and the second marriage being void.

Position in India

India being a secular country has ample personal laws which are governing different religious communities individually and therefore, the application of the laws vary case to case. The provisions might be of similar nature under certain laws but the application will solely be determined on the basis of the religion or faith of the individual whose case is being determined. More so, in the varying religion based laws, the positions on these issues differ which lead to varying consequences as for instance, Hindu Law does not allow bigamy whereas the same is not banned under the Mohammadean Law. This demarcation and variation cause a major escape from the religious provision and leads to conversion.

Though there is no statutory provision that affect any of the personal laws, under the Islamic law, a husband who renounces Islam is an apostate, and 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. Further, conversion is a ground available for divorce and judicial separation at the instance of the non-convert under all the personal law statutes and the converts Marriage Dissolution Act, 1866, which seeks to legalise, the dissolution of marriage of converts to Christianity under certain circumstances, is the only relevant statute that explains effects of conversion explicitly.

The legal position as has been stated in the judgments clarify that if the marriage is solemnized under a particular law, then that law will only govern the other varying aspects related to the marriage. The conversion of one party will not lead to the change of the application of law.[10] The position under the specific laws is discussed separately, underneath;

Hindu Law

With the enactment of Hindu Marriage Act (hereinafter referred as “HMA”) in 1955, a blanket ban on bigamy was imposed by the parliament on all the people governed under Hindu Law i.e., Hindu, Buddhist, Jain and Sikhs declaring bigamy to be penal and void.[11] The essentials for a marriage to be solemnized under the Hindu law clearly specify that both parties should be Hindu on the day of the marriage and either party should not have a living spouse on the day of the marriage[12]. Further, under Section 17[13], it has been clarified that every bigamous marriage by the people governed under the act will be void and punishable under the provisions of IPC[14]. If any of the parties to marriage has a living spouse, then the marriage will be void.[15] The violation of any of the essential conditions is the ground for declaration of the marriage to be null and void which shall be declared so on the presentation of a petition by either party.[16]

Post marriage change of religion by either party has been laid down as the ground of divorce exercisable by the non-convert spouse under HMA.[17] This section is applicable to all the marriages solemnized before or after the commencement of the Act[18] but will be dissolved by a decree of divorce, on the presentation of a petition, on ground of other party ceasing to be a Hindu by conversion to another religion.[19] Therefore, through the provision it is clearly comprehendible that mere conversion is not sufficient for the valid commission of second marriage but the same needs to be declared null and void on this ground.[20] The same ground also qualifies as the valid ground of judicial separation, even after the 1976 amendment, whereby, either party can be granted divorce on the conversion of other party to any other law.[21]

Therefore, under HMA, as per section 5, 11 and 17, if a convert spouse marries for the second time during the lifetime of other spouse, then, the second marriage will be void and the conversion will have no effect on the first marriage as the same will subsist and not get automatically dissolved. Further, it will give a solid ground of divorce to be exercised by the non-convert party.[22]The laws merely work on the singular agenda of neutralizing the exploitation of rights available to citizens which can be exercised at times to the detriment of the rights of other person.

Further, under Hindu Maintenance Act[23], Hindu wife is awarded the option to live separately from her husband if the husband ceases to be a Hindu by conversion to another religion.

Muslim Law

Before the Dissolution of Muslim Marriages Act[24] (herein after referred as “DMMA”) was enacted, the conversion of either spouse had the effect of automatic dissolution of the marriage under the Muslim personal Law whereas the present law marks the demarcation on the basis of the faith of muslim wife before and after marriage. If the muslim wife was a non-Muslim prior to marriage, then, the conversion of wife post marriage will result in the instant dissolution of marriage. In the case of Munavvar-ul-Islam v Rishu Arora[25] the same was reiterated by the court that a woman who embraced Islam for marriage if converted to her former faith/ religion, then the same will result in automatic dissolution of the marriage. According to 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.

While in the latter case, where a muslim woman who was married and converts post marriage to other faith, the act of her conversion will not automatically lead to the dissolution of marriage and if she remarries she can be prosecuted for bigamy. Although, irrespective of this, on the basis of the grounds specified under Section 2[26] of the Act, the woman can seek dissolution of marriage post reconciliation too. 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. Further, the option of puberty by repudiation of the marriage remains exercisable whereas the husband’s apostasy is not a ground on which she may seek dissolution.

Further, if a Muslim man renounces Islam post marriage, the marriage will stand dissolved automatically and the wife will not be guilty of bigamy if she marries before the completion of iddat period.[27] Moreover, the court mentioned here that uncertain status of parties and remarriage of woman during iddat period maybe illegal under the Muslim law but does not attract any penal provision under IPC.

Christian Law

The Christian law did not singularly recognize the conversion of faith as a sufficient ground for dissolution of marriage or as a ground for dissolution of marriage. Although, when the fact of conversion of faith of spouse, post marriage, is coupled with the marriage to another woman, the divorce can be sought. Therefore, under the Christian law, a wife can not merely seek dissolution of marriage because her husband has renounced Christianity and has embraced some other religion, but she will have to equally prove that her husband has remarried post conversion to some other faith. But, post amendments in the Indian Divorce Act, 1869, when Indian Divorce (Amendment) Act, 2001 enacted the gender biased harsh provisions got a relief. Post amendment, the conversion of spouse from one faith to another has been accepted as a ground of divorce available and exercisable by both spouses.

Parsi Law

The Parsi Marriage and Divorce Act, 1865 does not differ much in general from the other laws as under this law, the conversion post marriage is also provided as a ground of divorce. But the 2 years limitation of filing for divorce is prescribed under the Parsi law.

Section 52(2) of Parsi Marriage and Divorce Act[28] provides that apostasy does not ipso facto effect a marriage tie, and if the non convert spouse has no objection, the marriage continues. The option to seek dissolution of marriage is only exercisable by the non-convert spouse as the converted spouse, however cannot seek a matrimonial relief on the ground of his/her own apostasy. The attaining of a decree of dissolution of marriage is a must under this law.

Further, if the petition for dissolution of marriage is supposed to be filed by the non-convert spouse, then, the same should be done within 2 years from the date when he/she came to know about the conversion of the other spouse.

Position In Malaysia

Malaysia is a multi-religious country that recognizes two types of family law based upon the Law Reform Marriage and Divorce Act 1976 and the Islamic Family Law. The former administers the marriage matters of non-Muslims, and the latter deals with Muslim family affairs. When both the husband and wife have solemnized and registered their marriage under the Law Reform Marriage and Divorce Act but one of the parties subsequently converts to Islam, Section 51 of the LRA and Divorce Act contains a provision for the dissolution of the marriage. On the other hand, the Islamic Family Law also has certain provisions to be applied in the case of conversion. As a consequence of the conversion, neither party to the marriage continues to be bound by the same family law provision.

There are two sets of laws which are applicable in personal matters in Malaysia. The demarcation of the law is on the basis of the religion. The country majorly prescribes to Islam but allows the other religions to propagate as well. Therefore, the laws are classified as – 1) Laws governing non-Muslims and, 2) The laws governing Muslims.

The laws that govern the non-muslims are applied in the civil courts whereas, the laws that govern muslims (Islamic Sharia Law) are applied in the religious courts i.e., Syariah Courts. The major laws governing the issues regarding the breakdown marriages and the issues that stems out of marriage for non-muslims are Law reform (Marriage & Divorce) Act[29], Married Women Act (1957), Married Women & Children (Maintenance) Act, 1950, Married Women & Children (Enforcement of Maintenance) Act, 1968 etc.

The practice of non-muslims embracing Islam, in Malaysia, also qualifies as the valid ground for dissolution of marriage under LRA. This clarifies that the legal scenario on the outset does not vary much from the Indian position.

Malaysia has jurisdiction when both the marriage has either been registered under LRA, or was contracted under a law providing that, or in contemplation of which, marriage is monogamous and the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia.

Further, a wife does not have a separate domicile of her own under Malaysian law, but acquires her husband’s domicile on marriage[30]. However, under an exception in the LRA, a wife, even where the husband is not domiciled or resident in Malaysia, can petition for divorce in Malaysia if either she has been deserted by the husband, or the husband has been deported from Malaysia, and the husband was before the desertion or deportation domiciled in Malaysia or she is resident in Malaysia and has been ordinarily resident in Malaysia for a period of two years immediately preceding the commencement of the proceedings.

Further, Malaysian courts have jurisdiction to make a decree of judicial separation where both the marriage has been registered or deemed registered under the LRA or was contracted under a law providing that, or in contemplation of which, marriage is monogamous or where both parties to the marriage reside in Malaysia at the time of the commencement of proceedings.

Muslim Sharia Law

The Muslim Sharia Law is the law that governs and determines all the aspects and concerns of Muslims. Further, a petition to this court can only be submitted by Muslim and other non-Muslims are governed under the civil courts. The non-Muslims can not initiate proceedings in Sharia court and further, the decision of Sharia Court can not be challenged or put forward in the civil court.

The another interesting and irritating aspect of the law is, that if the issue is regarding parties in which one embraces Islam and other don’t, then in such situation, the party who has embraced Islam will have a clean favourable judgment as the other spouse cannot institute the proceedings in either of the court owing to the legal barriers and nuances. 

If either of the spouse, post marriage, converts and embraces Islam, then the non-convert party cannot seek resort regarding the child and maintenance issues from either of the court, if the application has already been moved in Syarah Court. These provisions are a clear reflection and indication of the lack of equality qua religions that subsists in Malaysia.

The dual system of laws has given rise to much controversy. Article 121(1A) of the Federal Constitution as amended in 1988, was intended to provide that civil courts exercising jurisdiction in personal law matters over non-Muslims and the Syariah courts exercising jurisdiction over Muslims should both be distinct and separate jurisdictions, and neither encroach on the other where the matter is within the exclusive jurisdiction of the other but an increasing number of cases arose where one party to a non-Muslim marriage converts to Islam, and in some cases also converts the children without the knowledge of the other parent, and then seeks relief including custody of his or her child, in the Syariah court where the non-Muslim spouse has no right of audience. The Syariah courts had proceeded to make orders sought by the converted spouse, without regard to the rights of the non-Muslim spouse. The Federal Court to which the non-Muslim spouse appealed, refused to interfere in the decision of the Syariah court stating they were bound by Article 121(1A) of the Federal Constitution[31].

Further, if any of the spouses, post marriage renounces Islam, the marriage will dissolve under the Muslim Sharia Law in Malaysia. Further, if a marriage is constituted between a Muslim and Non-Muslim under the Muslim Sharia Law, then, on the conversion of the non-muslim party to Islam or any other religion will also affect in the dissolution of marriage.

Law Reform (Marriage and Divorce) Act, 1976

If the either of the spouses convert to Islam, post marriage, then in such a situation, the non-convert party can seek divorce on the ground of conversion of faith, in the Civil Court of Malaysia.[32] This clearly signifies that conversion post marriage is a qualified ground of divorce in countries like Malaysia.

Further, through various judgments, it has been clarified that the mere conversion of either party does not automatically dissolve the marriage under the Malaysian laws but is merely a ground for divorce under the laws.[33]

Section 51(1) of the LRA 1976 clearly states that, where one party to a marriage has converted to Islam, the other party who has not converted may petition for divorce.[34] However, the petition can only be presented before the 3-month expiration period from the date of conversion.[35]

Further, in accordance to the above stated provision, if the non-Muslim party refuses to petition for divorce under Section 51(1) of the Act, the couple will still remain husband and wife bound by their former law. Conversion to Islam neither determines nor automatically dissolves the marriage. This is different under Sharīʿah law where conversion of a non-Muslim party to Islam will automatically terminate the marriage.

Under Section 3(3), LRA it is stated that the Act shall not apply to a Muslim or to any person who is married under Muslim law. In Letchumy v. Madison[36], it was held that Section 3(3) precludes operation of the provision of Section 77, LRA to the Muslims. However, in Tey Siew Choo v. Teo Eng Hua[37] the Court pointed out that Section 3(3), LRA was applicable to the convert spouse as the parties were married under the LRA. The decision in the Tey Siew Choo case[38] was followed in the case of Johan Fairbairn Abdullah[39] where the Court held that the convert spouse is still subjected to the LRA.

Although, the recent amendments to LRA resolved the difficult situation of children, who under the old law were not entitled to maintenance beyond the age of 18. There is clarity on the issue of the civil court having sole and exclusive jurisdiction to deal with all matters in relation to the dissolution of the parties’ civil marriage and ancillary matters when one party in a civil marriage subsequently converts to Islam (sections 3, 51 and 51A, LRA).

Conclusion

Hence, the effect of conversion on marriage in both the countries is similar which only differs on the ground that every spate religious community is treated separately in India whereas, in Malaysia except Muslims, all other religions are governed under the same law. The Conversion is a ground of divorce in all the laws except the Muslim law wherein, Bigamy is not explicitly ban but gives a sneak away option for the non-converts to remarry as the marriage dissolves the moment either party renounces Islam.

Well, in consideration to the times ahead, it is high time we introduce and accept a Uniform Civil Code in all the countries that are governing the personal laws on the demarcation line of religion. The adoption of a Uniform Code for marriage will automatically dilute the issues that stand due to the conflicting provisions in various laws. When everyone will be governed by the same law, there will be no escape from one to resort to the benefits under the other and hence, such religious conversion based issues will reduce.

Further, in these matters post and pre application of Uniform Civil Code, countries should resort to ADR mechanisms to resolve the disputes between the parties in personal law dispute. India adopted this practice some years back and is working great with it and Malaysia should also resort to ADR to deal with these issues.

Further, in specific to Malaysia, and countries where different courts are governing the religious communities, the matters where both the religious parties are involved should not be decided by one specific religious bench but there should be a formation of a neutral bench, so the interests of both the parties can be safeguarded. Special tribunals should be set up for such cases and maximum interest of both the parties should be safeguarded instead of one feeling harassed in the technicalities of the legal framework and system. Accordingly, other relevant provisions need to be reviewed and amended. Without clear provisions regarding converts to Islam, the wife’s rights in family law, whether she is non-Muslim or Muslim, will not be safeguarded. Furthermore, to ensure that due right is given to the wife, it is the Malaysian judiciary’s task to evaluate the facts and decide according upon the correct principles of both laws, i.e., the LRA and Sharīah law. It is felt that the best solution for cases involving conversion to Islam is to settle any disputes/conflicts between the parties involved, amicably.

 

[1] S. 494, Indian Penal Code, 1860.

[2] S. 51(1), Law Reform (Marriage and Divorce) Act, 1976.

[3] S.494 and S.495, Indian Penal Code, 1860.

[4] S. 51(1), Law Reform (Marriage and Divorce) Act, 1976.

[5] Constitution of India, 1950.

[6] Article25 to Article28, Constitution of India, 1950.

[7] R.S. Chavan, “India Private International Law” (1982), p.70.

[8] Law Reform (Marriage and Divorce) Act, 1976

[9] Foo Yet Ngo and Kiran Dhaliwal, “Family Law in Malaysia: overview” (2019).

[10] Sayeda Khatoon alias A.M. Obadiah v. M.Obadiah, (1944-45)49 Cal WN 745.

[11] Sections 5, 11 and 17, Hindu Marriage Act, 1955.

[12] Section 5(1), Hindu Marriage Act, 1955.

[13] Section 17, Hindu Marriage Act, 1955.

[14] Supra note 4.

[15] Braurao Shankar Lokhande v State of Maharashtra, (1965) 2 SCR 837.  

[16] Section 11, Hindu Marriage Act, 1955.

[17] Section 13(1)(ii), Hindu Marriage Act, 1955.

[18] Hindu Marriage Act, 1955.

[19] Supra note 18.

[20] Government of Bombay v Ganga, ILR (1880) 4 Bom 330.

[21] Madananseetha Ramalu v Madananvimla, C.M.A. No. 2285 of 2003.

[22] Sarla Mudgal v Union of India (1995) 3 SCC 635; Lily Thomas v Union of India (2000)6 SCC 227.

[23] Hindu Maintenance Act, 1956.

[24] Dissolution of Muslim Marriage Act, 1939.

[25]

[26] Section 2, DMMA, grounds for dissolution of marriage are – unknown whereabouts of husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty.

[27] Abdul Ghani v Aziz ul Huq,

[28] Parsi Marriage and Divorce Act, 1865

[29] LRA, 1976.

[30] Khoo Kay Peng v Pauline Chai Siew Phin, (2014)10 CLJ 403.

[31] Subashini Rajasingam v Saravanan Thangathoray and Other Appeals, (2008) 2 CLJ 1.

[32] Section 51(1), LRA.

[33] Ng Sieu Pian v Abdul Wahid bin Abul hasa, Kadi Dahera & anr., (1992) 2 MLJ 425.

[34] The above section was referred by Lee Hun Hoe C.J. in the case of Sivanesan v. Shymala [1986] 1 MLJ 400.

[35] In the case of Subashini A/P Rajasingam v. Saravanan A/L Thangathoray [2007] 2 MLJ 798 the Federal Court judge explained that the proviso imposes a caveat on the wife not to file the petition for divorce until a lapse of 3 months from the date of the husband’s conversion to Islam.

[36] [1984] 1 MLJ 143.

[37] [1997] 3 AMR 2779

[38] Ibid.

[39] [1992] MLN 42.

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