Conversion as a grounds for Divorce

Introduction
Marriages in the Indian society are not considered as contracts and are considered as the bond
between two individuals to share their religious, moral and social duties and obligations.
Divorce is the legal dissolution of marriage so that either of the spouses is free to remarry
someone else after a certain period of time. Divorce is considered as the last resort after
giving an opportunity to the spouses to reconcile and resolve their conflicts.

A spouse's conversion to another religion is a legal basis for the other partner to lodge a
petition for divorce. Conversion here means that, after going through some formal process,
the person voluntarily gave up his or her religion and adopted another religion. A husband or
wife can, with the aid of a divorce lawyer in India, file a contested petition for divorce if the
other has converted to another religion. In India different personal laws state different divorce
provisions on the grounds of religion change.

In Indian society a marital bond is religious, i.e. it is relationship between a man, a woman
and god. As far as possible, divorce is the last choice resorted. It is not favoured or
encouraged, the couple seeking divorce is given ample amount of opportunity to reconcile,
resolve their conflicts and cohabit again.

Conversion –Nature of and Essentials to be proved:

Conversion like a marriage is a solemn act. Conversion from one religion to another has far
reaching consequences –social and legal. It affects succession, marital status and also the
right to seek elective office. Divorce can be granted on the ground that the spouse has
changed the religion (vide Section 13(1)(ii) of the Hindu Marriage Act). `Upon conversion a
person may be governed by a different personal law. The right to contest in elections from a
constituency reserved from SCs / STs might be lost if the person who has changed the
religion happened to be a member of Scheduled Caste or Tribe.

Thus, the event of conversion is of critical importance from the point of view of rights and
disabilities of a convert. Conversion cannot be treated as an event which can be achieved
through a mere declaration – oral or writing. At the same time, no particular formalities or
ceremonies are required according to the law declared by Supreme Court. In fact, no such
ceremonies are specifically prescribed in any religious texts or precepts, though certain
ceremonies like ‘Suddhi’ (in the case of Arya Samajists) and baptism (in the case of
Christians) are gone through in practice in some cases. Credible evidence of the intention to
convert followed by definite overt acts to give effect to that intention is necessary.

The subsequent conduct of the convertee is also important in reaching the conclusion that a
conversion in its true sense had taken place and there was genuine conversion. The
evidentiary facts which establish conversion have been time and again stated by the Supreme
Court, while observing that no specific ritual or ceremony is required. Satisfactory evidence
of conversion which has always been insisted upon by the Courts is necessary especially
when we hear plethora of complaints of manipulated conversions for extraneous reasons or as
a result of undue pressures.

Hindu Marriage Act

Section 13(1)(ii) of the Hindu Marriage Act, 1955 states that:

“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.”

The spouse who ceases to be a Hindu by conversion cannot file a petition for divorce under
this section. A contested divorce petition can be filed by the other spouse who has been left
by the spouse who has converted. The Hindu laws lay down two conditions in which a
divorce petition can be filed in the ground of conversion of a spouse:

 The spouse has ceased to follow the faith of Hinduism and he is no longer a Hindu.
 The spouse has converted to another religion.

Conversion to another religion, however, does not automatically lead to divorce, but it only
gives a right to the other spouse to file a petition for divorce under the divorce laws in India.

When one spouse voluntarily relinquishes one’s religion and adopts another distinctive
religion after formal ceremonies, it is conversion on his part. Thus, one should adopt some
other religion which cannot be regarded as Hindu religion. If a Hindu person who is a Jain
adopts Buddhism, he is still a Hindu. He cannot be said to have changed his religion.
 Change from one faith of Hinduism to another does not amount to conversion. Conversion
does not of itself result in divorce; a petition under this Section is to be made to the court for
divorce.

If one spouse ceases to be a Hindu, the marriage continues to be governed by Hindu law and
it can be dissolved only under the provisions of the Hindu Marriage Act, 1955. However, if
both the spouses change their religion and cease to be Hindus, none of them can invoke the
aid of this Section. The remedy of dissolution of marriage on the ground of conversion is not
available to the converting spouse. It is the other spouse who remains a Hindu that can avail
of this ground if he or she so desires.

It is important to note that conversion does not automatically affect a marriage tie, and 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.

In Re: Ram Kumari,1, where a Hindu wife became convert to the Muslim faith and then
married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not
dissolved by her conversion. She was charged and convicted of bigamy under S.494 of Indian
Penal Code, 1860.There is no authority in Hindu Law for the proposition that an apostate is
absolved from his marital obligation so conversion to Mahommedanism does not dissolve a
Hindu Marriage. A sacred and solemn relation like marriage cannot be regarded as terminated
simply by the change of faith by either spouse.

In Gul Mohammed V. Emperor AIR 1947 Nagpur 121, a Hindu wife was fraudulently
taken away of the accused a Mohammedan who married her according to Muslim law after
converting her to Islam. It was held that the conversion of the Hindu wife to Mohammedan
faith did not ipso facto, dissolve the marriage and she could not during the life time of her
former husband enter into a valid contract of marriage. Accordingly, the accused was
convicted for adultery under Section 497 of Indian Penal Code, 1860.

In Bini v/s Sundaran K.V, here the family court granted divorce to the husband on the wife's
admission that she had converted to another religion, however the decree of divorce was set
aside in the appeal. It was held that even though under the provision of the Hindu Marriage
Act, 1955 endeavour 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
1
1891 Calcutta 246
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.

A Hindu marriage may be dissolved by a decree of divorce on the ground that the respondent
has ceased to be a Hindu by conversion to another religion. According to ancient Hindu Law
a marriage was not ipso facto dissolved by conversion of one of the parties to the marriage.
Thus the statement of objects and reasons of the Bill laid down that a change in religion was
not inconsistent with the continuance of conjugal love and it should therefore not be
permissible for a party to the marriage to get a divorce by changing his or her religion. The
right to get a divorce under this law is therefore given to the party who continued to be
Hindu. A somewhat similar right is given to a person changing his religion for Christianity
under the Native Convert's Marriage Dissolution Act 1866.Though s. 13(1)(ii) confers
expressly right on a spouse to present a petition for divorce against the other spouse who has
changed his or her religion after the solemnization of marriage, but the apostate can also file a
petition for dissolution of marriage after he or she has ceased to be a Hindu under the Hindu
Marriage Act provided he or she is able to establish the ground for it. Mere professing or
theoretical allegiance to a religion other than a Hindu religion does not mean conversion for
the purpose of this provision. There must be voluntary relinquishment of Hindu religion by
the respondent and formal ceremonial conversion to another religion so as to attract this
provision for the purpose of divorce.

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. Sunita2 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)(a) 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 held that:

2
AIR 1983 Delhi 351
“Conversion does not per se operate to deprive the party. of rights which may be otherwise
available to him under the Act. The 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 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.”

It is also important to note that the mere act of conversion isn’t enough for a divorce. The
actual conversion only allows the non-convert spouse the right to approach the court for a
divorce, by using conversion as a ground for divorce. In Nandi alias Zainab v The Crown3,
the accused Nandi, the Hindu wife changed her religion to Islam and thereafter married a
Mohammedan. It was held that mere conversion of her to Islam did not dissolve the marriage
with the petitioner automatically and consequently, she was charged with bigamy under
Section 494 I.P.C

There is also the question of whether the non-convert spouse can seek relief if the consented
to other spouse’s conversion Suresh Babu v/s V.P. Leela4 the husband converted to Islam
and the Hindu wife sought divorce on the grounds of the conversion. The husband defended
himself by saying that the wife had consented to his conversion and therefore cannot seek
divorce on this ground. However the court rejected the husband’s argument and held that
even if the wife 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.

In Sarla Mudgal, President, Kalyani and Ors. v. Union of India and Ors the Supreme
Court considered the question whether a Hindu husband by embracing Islam can contract a
second marriage during the subsistence of the first marriage and whether the husband would
be guilty of the offence under Section 494 of the Indian Penal Code. It was held thus:

It is, thus, obvious from the catena of case law that a marriage celebrated under a particular
personal law cannot be dissolved by the application of another personal law to which one of
the spouses converts and the other refuses to do so. Where a marriage takes place under
Hindu Law the parties acquire a status and certain rights by the marriage itself under the law
governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by
adopting and enforcing a new personal law, it would tantamount to destroying the existing
3
(1919) ILR 1 Lah 440
4
2006 (3) KLT 891
rights of the other spouse who continues to be Hindu. We, therefore, hold that under the
Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued
to subsist even after one of the spouses converted to Islam. There was no automatic
dissolution of the marriage.

Muslim Personal 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 a non-Muslim before her marriage 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, as
established in Section 4 of the DMMA:

“Effect of conversion to another faith.—The renunciation of Islam by a married Muslim

woman or her conversion to faith other than Islam shall not by itself operate to dissolve
her marriage: —The renunciation of Islam by a married Muslim woman or her
conversion to faith other than Islam shall not by itself operate to dissolve her marriage\:"
Provided that after such renunciation, or conversion, the woman shall be entitled to obtain
a decree for the dissolution of her marriage on any of the grounds mentioned in section 2:
Provided further that the provisions of this section shall not apply to a woman converted to
Islam from some other faith who re-embraces her former faith.”

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.
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.

Christian Personal Law

In Christian Personal Law the grounds for divorce on the basis of conversion if she can also
prove that there, was second marriage afterwards, which would grant her the dissolution of
the marriage. Mere conversion by itself is not enough to warrant a dissolution of marriage
under Christian Personal Law. This particular provision is applicable only to the wife and not
the husband.

Parsi Personal Law

Under the Parsi Marriage and Divorce Act, 1936 conversion is a ground for divorce.Under
the Parsi Laws, divorce can be obtained if the spouse has ceased to be a Parsi by conversion
to another religion. However, the divorce petition must be filed within 2 years after the other
spouse came to know of the fact.
Renouncing the World as grounds for Divorce
“Renunciation of the world” is a ground for divorce only under Hindu law, as the
renunciation of the world is a typical Hindu notion. Modern codified Hindu law lays down
that a spouse may seek divorce if the other party has renounced the world and has entered a
holy order. A person who does this is considered as civilly dead. Such renunciation by
entering into a religious order must be unequivocal.

Renouncement of the world by entering any religious order must be absolute. It amounts to
civil death and has the effect of excluding a person from inheritance and right to partition.
But persons merely wearing saffron-coloured clothes know as sadhus or bairagis and who
enjoy a married life cannot be said to have renounced the world and entered a religious order.
Similarly, the mere holding by a man of certain religious opinions or professions does not
amount to civil death.

To take an example, if husband and wife have been married for 15 years, but the Husband
decides to renounce the world by joining a holy order recognized by Hindus, and his
renunciation is genuine and absolute. The husband has abdicated the social life and no
matrimonial responsibilities or obligation is being fulfilled anymore. The wife under these
circumstances can obtain divorce on the ground of her husband renouncing the world.