Section 13 of the Hindu Marriage Act provides for granting of divorce on the ground of conversion of religion. If a spouse converts from one religion to another, it gives another spouse matrimonial relief. This conversion should happen through a formal ceremony where that person has to completely relinquish the right of his/her religion.
A Ground for divorce
Divorce may be granted if the spouse has converted from Hindu to some other religion and ceased to be a Hindu. Therefore, if a person has started to follow a different religion, then they are stated to be a convert. However, a simple conversion of religion does not lead to divorce. The petitioner will get the right to ask for a divorce after consulting a divorce lawyer. For example, Conversion to Islam by a Hindu spouse per se does not lead to divorce; it only gives a right to the other spouse to initiate a petition for divorce under S.13 (1) (ii) of the Hindu marriage act.
This ground becomes a contrary where when a conversion of one spouse does not affect the petitioner and that he/she is willing to continue the marriage, then divorce is not compulsory. Conversion to another faith is genuine and not due to any ulterior or unlawful motives, conversion need not be a ground for divorce.[2] It is inferred that mere change in religion does not affect the conjugal relationship between the partners and though conversion is one of the matrimonial offences, it should not appear that mere change of religion can make the parties get a divorce. But when conversion is and it has been noticed often, only to marry and then again reconvert to prior faith, it becomes a necessary ground for divorce. [3]
Before filing a divorce petition under Hindu law using this ground, the conditions have to be looked upon
- Either of the spouses should have ceased to be a Hindu
- Either of the spouses should have converted from Hindu to another religion
When a party is ceased to be a Hindu, there must be a total conversion of religion from Hindu to Non-Hindu religions such as Islam, Christianity, Buddhism, Jainism etc. So if a born Hindu embraces a different religion out of a free will, then he is no more considered to be a Hindu. Therefore under this situation, a contested divorce petition can be filed by the other spouse who has been left by the spouse who has converted into a different religion.
The Indian court in a case has held that Conversion to another religion is a ground for divorce, but a spouse may be denied divorce even if the other spouse has embraced some other religion and if the former goaded the latter to such conversion. [4]
The petitioner spouse can remarry after the contested divorce battle has been won regarding her first marriage. Mere conversion of religion by one spouse does not give the right to another spouse to marry someone without the dissolution of the existing marriage. Also in a case, a Hindu wife has converted to Islam and then married a Mohammedan and 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 the Indian Penal Code, 1860[5]. Therefore, till the time a Hindu marriage is dissolved under the Act none of the spouses can contract a second marriage.
Consequences of Conversion
Complications take place where both the parties seeking divorce were married under two different personal laws. The judicial announcements indicate that it would be neither just nor right to hold that marriage dissolves automatically by the conversion of one spouse to another religion.
Whether a Hindu husband after converting to Islam seeks divorce under Hindu law?
To get a divorce under Hindu law, at the time of presentation of the petition one of the parties to the marriage should not be a Hindu. It is because of the view that personal laws of the parties according to which the marriage took place govern the right of the party as to the dissolution of the marriage. [6]
In cases where both the parties get converted to Islam from Hinduism and seek divorce under Hindu law, then it would be more appropriate to seek divorce under Muslim law as both the parties are no longer Hindus. [7] It was held that a marriage solemnized in India according to personal law cannot be dissolved according to another personal law simply because one of the parties has changed his or her religion.[8] When it comes to inheritance of properties, when a person converts from Hinduism to another religion then the party could not inherit any relations from under Hindu law and it comes to an end.
Conversion and Renunciation of the world are said to be typical Hindu grounds for divorce. But the Hindu marriage continues to subsist even after one of the spouses converts to Islam. There is no automatic dissolution of marriage and this applies to all Hindus.
[1] Sital Das v. Sant Ram1954 SC 606
[2] Reshma Bibi v Khuda Baksh AIR 1938 Lah 483; Abdul Razak v Aga Md (1982) 21 IA 56
[3] Mohammad v Mst Mariam AIR 1936 Lah 666
[4] Teesta Chattoraj vs Union Of India 188(2012) DLT 507
[5] Re: Ram Kumari, 1891 Calcutta 246
[6] Vilayat V Sunila 1983
[7] Khambatta V Khambatta 1934 36 Bom. LR
[8] A.M. Obadiah v. M.Obadiah 49 Cal WN 745
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