1.

EFFECT OF CONVERSION ON MARRIAGE & DIVORCE

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 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.

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.

1.1 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 after 1976 amendment. In Madanan
seetha Ramalu v. Madanan vimla, a husband was granted divorce on his wife converting to
Christianity after marriage.

1.2 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.

Sec 52(2) of Parsi Marriage and Divorce Act 1865 provides that 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.

1.3 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.
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. 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/s 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. s
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.

1.4 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.

After 2001 amendment 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.

1.5 Miscellaneous

In this context, 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.

2. LEGITIMACY AND LEGITIMATION

Legitimacy means the status which a child acquires at the time of birth; it denotes a legal
relationship with his father. Legitimation means that an illegitimate child becomes legitimate
by reason of an event subsequent to his birth. In English law the only event which has this
consequence is the subsequent marriage of his parents; in other systems other events may have
it, such as recognition by the father that the child is his, or the enactment of a statute. Adoption
means the creation of the relationship of parent and child between persons who are usually not
(though they may be) related to each other by nature.

2.1 Legitimacy

All persons who are born in what English law regards as lawful wedlock, or conceived therein,
are prima facie legitimate in England.1 Difficulty arises, however, if a child is not born in what
English law regards as lawful wedlock, but is legitimate by some other system of law. In many
cases concerning nullity of marriage for want of legal capacity to marry the legitimacy of
children of the union and their right of succession to property was the real point at issue.2 In
most of these, either both or one of the parties to the marriage were or was domiciled here and
had no capacity to marry by English law, but married abroad. The marriage was invalid by
English law and the ‘children’ could not succeed.

In favour of the exclusivity of the test of birth in lawful wedlock are the cases referred to on
nullity of marriage, and in particular the decision of the House of Lords in Shaw v. Gould,3 a
succession case, in which the preliminary question of the legitimacy of those claiming to be
entitled to succeed was the paramount concern of the House.

The House of Lords decided that they were illegitimate and could not take under the settlement:
that is, the question of the validity of the Scots divorce determined that of the validity of the
marriage, which in turn determined the status of the children, which determined their right to
succeed.

However, in 1948, Romer J in Re Bischoffsheim4 purported to distinguish Shaw v. Gould5 and

determined the status of a child by the law of his domicile of origin, a matter which was never
regarded as relevant, apparently, in the earlier case

2.2 Position in India

1
Re Bozzelli’s Settlement [1902] 1 Ch. 751.
2
For example, Brook v. Brook (1861) 9 HL Cas. 193; Re de Wilton [1900] 2 Ch. 481; Shaw v. Gould (1868) LR 3
HL 55; Re Bischoffsheim [1948] Ch. 79; Re Paine [1940] Ch. 46.
3
(1868) LR 3 HL 55.
4
[1948] Ch. 79.
5
This decision was expressly followed in Re Paine [1940] Ch. 46.
In India, “legitimacy‟ is a status of a child being born during the continuance of a valid
marriage between the mother and any man, or within 280 days after its dissolution if the mother
remains unmarried. Unless it is shown that the parties to the marriage had no access to each
other at any time when he could have been conceived, his birth is treated as a conclusive
proof of he being legitimate.

Under Section 112 of the Indian Evidence Act, 1872 (herein after referred to as ‘the Act’), if
the applicant is domiciled in India on the date of application, the Indian court has jurisdiction
to grant a declaration that he is the legitimate child of his parents.

Though there is no decision of the Supreme Court on the point, it has been held that illegitimate
children cannot succeed to their father’s estate on intestac6 but can succeed mothers‟ estate. If
the child was born of a marriage which is null and void under Section 11 or 12 of the Hindu
Marriage Act, 1955, the child is deemed to be legitimate and consequently can succeed to the
estate of the father on intestacy7.

In Mahomedan law, applicable to Sunnis governed by the HanafiSchool, illegitimate children

cannot inherit from the father, but can from the mother. But in the case of Shias, the illegitimate
children can never inherit.8

Illegitimate children cannot succeed to property on intestacy under the Indian Succession Act,
1925, Christians, Parsis and other religious groups are governed under this statute.

2.3 Legitimation

At common law Legitimation was not permitted by English law until the Legitimacy Act 1926.
But the English courts had, before then, been asked to recognise foreign legitimations. Over
the years, they had evolved the rule that if the father was domiciled both at the time of the
child’s birth and at the time of his subsequent marriage in a foreign country (such as Scotland)

6
DaddoAtmaramPatil v. RaghunathAtmaramPatilAIR 1969 Bom 176; Ramkali v. MahilaShyamwatiAIR 2000
MP 288.
7
GurnamKaur v. Puran Singh (1996) 2 SCC 567.
8
Mulla‟s principles of Mahomedan Law, 19th edn., p. 81 and 99.
whose law permitted legitimation by subsequent marriage, the child would be recognised in
England as having been legitimated by that marriage. Thus, in Re Goodman’s Trusts:9

A domiciled Englishwoman died intestate, and the question arose as to which of her brother’s
children were next of kin to her. (i) While domiciled in England he sired three children by CS
to whom he was not married. (ii) He acquired a Dutch domicile and had a child H by CS. He
then married her. (iii) They had a fifth child, A. Legitimation by subsequent marriage was part
of Dutch law.

It was held that since the father was domiciled in the Netherlands at H’s birth and at the time
of the marriage, H as well as A was legitimate and so next-of-kin. But the children born when
he was domiciled in England were not.

This rule has been superseded by the statutory rule since 1 January 1927, but only in respect of
legitimation by subsequent marriage. However, it has survived and may be relied upon in three
cases, one of which is obviously of diminishing importance. These are: (1) where the individual
is not still alive at the time of determination;10 (2) where it falls to be determined whether a
person was legitimated before 1927, since the legislation is not retrospective; and (3) where
the legitimation took effect by way of parental recognition rather than by the subsequent
marriage of his parents, as was held, Scott LJ vigorously dissenting, in Re Luck’s Settlement
Trusts.11

If the child was legitimated by a foreign statute permitting legitimation by subsequent

marriage, but his parents were married before the statute came into operation, it is probable, if
an Irish decision on the English Legitimacy Act 1926 were to be followed,12 that it would
suffice if the father were domiciled in the foreign country when the child was born and at the
date of the subsequent marriage. It should not be necessary that he was domiciled there when
the statute came into operation (he might be dead by then).13

2.4 Position in India

9
(1881) 17 Ch. D 266; followed in Re Andros (1883) 24 Ch. D 637; Re Grey’s Trusts [1892] 3 Ch. 88; Re Grove
(1887) 40 Ch. D 216. It was suggested earlier in Re Wright’s Trusts (1856) 2 K & J 595. Renvoi has been applied:
Re Askew [1930] 2 Ch. 259
10
See Legitimacy Act 1976, s. 3.
11
[1940] Ch. 864.
12
In Re Hagerbaum [1933] IR 198 it was impossible to prove that he was domiciled in England on 1 January
1927. Australian and New Zealand cases seem to suggest that the father must be domiciled in the foreign
country on that date also.
13
Re Hagerbaum [1933] IR 198.
Indian law, whether Hindu law or Muhammadan law, only recognizes the concept of legitimacy
of a child and not of legitimation. When there is any doubt as to the legitimacy of a child, under
Muhammadan law the acknowledgment by the presumptive father is the proof that the child so
acknowledged is the legitimate child of the presumptive father, provided that legitimacy is
possible.14

In Bibi Nanyer-Omissa15], even in the absence of evidence of the marriage between the parties,
the Privy Council on acknowledgement declared the child to be legitimate. But the Muslim
scholars criticized this judgment and have favoured Muhammad Allahdad Khan16, where the
court held that a child whose illegitimacy is proved beyond doubt, by reason of the marriage
of its parents being either disproved or found to be unlawful cannot be legitimatized by
acknowledgment.

In the State of Goa, and the Union Territories of Daman and Diu, the Portuguese Civil Code,
1867, continues to apply, and under Article 119 to 122 of that Code, legitimation is recognized.

2.5 Succession by and to legitimate and legitimated persons

Where the succession is governed by English law, in respect of deeds or wills executed or
intestacies occurring on or after 1 January 1976 a legitimated and any other person is entitled
to take any interest in property as if the legitimated person had been born legitimate.17 This
applies to persons legitimated under both sections 2 and 3 of the Legitimacy Act 1976 18 or
recognised as legitimated at common law.19

If the succession is governed by foreign, for example Brazilian, law, it would seem that that
law would determine the succession rights by and to a legitimate person and possible whether
a person had or had not been legitimated for that purpose. There is no English authority in
point.

14
Sadik Husain Khan v. Hashim Ali Khan (1916) ILR 38 All 627, PC.
15
BibiNanyer-Omissa v. BibiZainirun11 WR 476
16
Muhammad Allahdad Khan v. Muhammad Ismail Khan (1888) ILR 10 All 289
17
Legitimacy Act 1976, s. 5
18
Or under ss. 1 and 8 of the Legitimacy Act 1926, which correspond thereto.
19
Legitimacy Act 1976, s. 10(1).