Conversion AND Renunciation OF World AS Grounds FOR Divorce (Lakshmi Raj C Roll No PDF

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FAMILY LAW- ICONVERSION AND RENUCNIATION OF WORLD AS GROUNDSFOR DIVORCEPrepared & Submitted By, Lakshmi Raj C Sem 4 Roll No.:TABLE OF CONTENTS INTRODUCTION CONVERSION AS A GROUND FOR DIVORCE............................................................................ Hindu Law Parsi Law Muslim La...

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FAMILY LAW- I

CONVERSION AND RENUCNIATION OF WORLD AS GROUNDS FOR DIVORCE

Prepared & Submitted By, Lakshmi Raj C Sem 4 Roll No.:1518

TABLE OF CONTENTS INTRODUCTION................................................................................................................................. 3 CONVERSION AS A GROUND FOR DIVORCE............................................................................ 3 Hindu Law .......................................................................................................................................... 3 Parsi Law ............................................................................................................................................ 4 Muslim Law ........................................................................................................................................ 4 Christian Law ...................................................................................................................................... 5 The Convert’s Marriage Dissolution Act, 1866 .................................................................................. 5 Special Marriage Act, 1954 and Foreign Marriage Act, 1969. ........................................................... 5 WHERE CONVERSION IS INVALID ............................................................................................. 5 RECOMMENDATIONS OF THE LAW COMMISSION ON THE INTRESECTION OF CONVERSION AND BIGAMY ........................................................................................................ 6 RENUNCITATION OF WORLD AS A GROUND FOR DIVORCE ............................................. 7 CONCLUSION ..................................................................................................................................... 8

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INTRODUCTION A divorce involves a legal dissolution of marriage. In the Indian context, marriage is considered as a mutual contract, imposing mutual social, legal and moral obligations on both the husband and wife. Its dissolution thereby implies the termination of several socio-legal bonds. It is thereby important that the grounds of divorce be properly assessed to conclude on the necessity of such severance of marital ties. The recognized grounds of marriage in India varies across personal laws governing people. The most common legal grounds for dissolution of marriage are Adultery, Insanity, Desertion, Conversion, Renunciation, Cruelty, Venereal Disease, and Presumption of death. Out of these, it is notable that the grounds of conversion and renunciation of world are completely within the sphere of religious practice. Renunciation of world is a ground of divorce unique to only Hindu law, for it is the only religion which recognizes such a practice. The present discussion is a brief attempt to analyze Conversion and Renunciation of World as grounds of divorce under Indian law, while alluding to the emergent developments in the sphere. CONVERSION AS A GROUND FOR DIVORCE India, being a secular nation recognizes the freedom of religion of every citizen. Accordingly, Freedom of Religion is guaranteed as a Fundamental Right under the Constitution. Every individual regardless of their recognized religion at the time of birth, is allowed to profess, practice and propagate religion of their choice.1 While this may seem very simple at the outset, it is important to realize that embracing another religion during the course of one’s lifetime can have wide ranging ramifications in the socio-political life of an individual. This is so, for India is a heterogenous mixture of communities practicing a multitude of faiths and customary practices, governed by various personal laws prevalent in the nation. Many a times, conversion of a person to another religion has effects not strictly confined to the individual citizen. One of the most significant social institutions affected by conversion in most cases is marriage. When the conversion of a person is from a religion, permitting monogamy to that permitting bigamy or polygamy the situation becomes more complex.2 If it were so allowed, conversion could be abused by people as a tool to enter into multiple marital relationships, which ultimately impacts the sanctity associated with the institution of marriage. Hence, in the sphere of marital relationships, conversion has a very important role to play. For the purpose of the present discussion, conversion will be assessed as a ground for divorce. Hindu Law Under Section 13 (1)(ii) of the Hindu Marriage Act, 1955, a decree of divorce can be granted by a competent court upon a petition filed by either the husband or wife on the ground that the other party has ceased to be a Hindu through conversion. The suit for divorce can only be filed by the spouse who continues to be a Hindu. The principle is based on the notion that no person can take advantage of his own wrong.3 The non-convert spouse can contract a second marriage 1

INDIA CONST. art. 25. Sneha Yadav, Effect of Conversion of religion in Hindu Law with special reference to Bigamy, INT. J. LAW 53-58 (2016). 3 Affects of Conversion on Marriage and Divorce, http://www.legalserviceindia.com/helpline/conversion.htm.

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only upon a final decision of the suit filed under this section.4 After an amendment in 1976, Conversion was recognized as a ground for seeking judicial separation also. The Act however remains ambiguous on the applicability of anti-bigamy provision on the converting spouse, in situations where the convert contracts a second marriage under the personal law, he/she has endorsed.5 This loophole has given rise to several unreasonable practices, aimed at circumventing the anti-bigamy provisions under the Hindu Marriage Act. It is notable that judicial decisions have played a constructive role in fairly resolving this dilemma. In Suresh Babu v. Leela6, the question which arose was whether conversion of the husband done with the consent of the wife can entitle the wife to sue for divorce. Holding in the contrary, the court upheld the right of the non-convert spouse to obtain divorce on the ground of conversion. Parsi Law Under the Parsi law, conversion to another religion by one of the spouses is recognized as a valid ground for seeking divorce. A suit in this regard has to be filed within two years after the conversion of the spouse. Only the non-convert spouse can petition the court for obtaining divorce. Originally, the provision only required that a spouse had “ceased to be a Parsi”. The change to the present form was made through an amendment in 1988. Under Parsi law, Apostasy does not have any legal effect on marriage and the relationship continues, until the non-convert spouse raises any objection. The convert spouse is not entitled to claim divorce on ground of his/her apostasy. Muslim Law Under Muslim law, apostasy of a married women will lead to an automatic dissolution of her marriage. However, this principle is not applicable in India. Section 4 of the Dissolution of Muslim Marriages Act, 1939 specifically declares that conversion of a Muslim wife will not automatically operate to dissolve her marriage. Thus, a Muslim woman who contracts a second marriage after converting to a different religion can be convicted under anti-bigamy provisions (Section 494 IPC). It is notable that the section provides for a unique exception. According to this exception, the section will not be applicable to a married converted Muslim woman who reconverts to her own religion. Such reconversion will lead to an automatic dissolution of her marriage with the Muslim husband. This provision was applied in the recent case of Munnavar ul Islam v. Rishu Arora7, where the wife was a Hindu who converted to Islam at the time of her marriage. She reconverted and later claimed that her earlier marriage was automatically dissolved upon her

4 Preventing Bigamy via Conversion to Islam- A Proposal for giving statutory Effect to Supreme Court Rulings, LAW COMMISSION OF INDIA 227 th REPORT (Aug. 2009). 5 Id. 6 Suresh Babu v. Leela, 2006 (3) KLT 891. 7 Munnavar ul Islam v. Rishu Arora, Delhi HC CM. APPL. 14330/2013 (May 9, 2014).

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reconversion. Confirming the ruling of the Trial Court, the court held that her marriage stood dissolved from the date on which she reconverted to Hinduism. The Law Commission in its 227th Report (2009) has considered this provision under Muslim personal law as “discriminatory”. Christian Law The Christian Law has witnessed progressive transformations in this area. Earlier, the position was that only a married woman can sue for divorce on the ground of conversion of her husband. However, to claim the remedy she must also show that her husband had contracted a second marriage after conversion. This was a compulsory requirement. The Indian Divorce (Amendment) Act, 2001 introduced drastic changes to the legislative framework. Presently, the ground of conversion to sue for divorce can be raised by both the husband and the wife. Moreover, the requirement of proof of second marriage was removed. Hence, the current position is analogous to the provision under the Hindu Marriage Act. The Convert’s Marriage Dissolution Act, 1866 Section 4 and 5 of the Convert’s Marriage Dissolution Act incorporates the remedies available to a convert spouse following conversion. According to Section 4, if as a consequence of the husband’s conversion to Christianity, the wife desserts or repudiates him for a continuous period of six months or more, he can sue for conjugal society. Section 5 extends the same remedy for a convert wife. Further, according to Section 19 when a marriage has been legally dissolved under the Act, the parties can marry again as if their prior marriage had been dissolved by death of the other party. Special Marriage Act, 1954 and Foreign Marriage Act, 1969. Special Marriage Act lays down the legal framework for contraction of marriage between two persons outside their personal laws. Foreign Marriage Act governs the contraction of marriage between two Indians in a foreign territory or between an Indian and a foreign national. Under both these neutral legislations, conversion of a spouse does not have any legal consequences. Neither does it entitle the non-convert spouse to sue for divorce nor does it lead to an automatic dissolution of the first marriage. When the convert spouse remarries without dissolving the first marriage, he/she can be indicted under anti-bigamy provisions. WHERE CONVERSION IS INVALID The Supreme Court decision in Smt Sarla Mudgal, President Kalyani & Ors. v. UOI8 addressed the issue of injustice faced by married woman due to conversion of their spouse into Islam to commit polygamy, which is permitted under Muslim personal law. The Apex Court held that such marriages would be void due to operation of Hindu law prohibiting bigamy (Section 17, Hindu Marriage Act, 1955) and that the person can be held liable under Section 494 of the IPC.

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Smt Sarla Mudgal, President Kalyani & Ors. v. UOI, AIR 1995 SC 1531 .

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The court declared conversions done with a purpose to commit polygamy as invalid. Thus, it was clarified that conversions carried out with a wrongful purpose will be ineffective and void.9 The ruling in the case was later reaffirmed in Lily Thomas v. UOI10(2000). In the case, the petitioner prayed before the court for declaring the second marriage contracted by her husband by converting to Islam after having failed to obtain divorce through mutual consent from her to be void. The Petitioner raised the issue of the need for effective curtailment of such practices through implementation of the Uniform Civil Code envisaged in the Constitution and appropriate changes in the Muslim Personal law to prevent such practices. The court reiterated the ruling in the Sarla Mudgal case and held that implementation of UCC in a demographically vibrant country like India will not be a solution to remedy the mischief advanced by misapplication of the provisions. The court rather called for progressive transformations through change in the process of law. To this extent, the court placed faith on the powers of the legislature. RECOMMENDATIONS OF THE LAW COMMISSION ON THE INTRESECTION OF CONVERSION AND BIGAMY The Law Commission in its 227th Report recognized the impending need to impart legislative backing to the law laid down by the Supreme Court in Sarla Mudgal v. UOI and Lily Thomas v. UOI. Accordingly, it put forth suggestions for drastic amendments to the personal laws. Firstly, the Commission recommended insertion of Section 17A after Section 17 of the HMA according to which, a married person cannot remarry after conversion unless the first marriage is dissolved. If a marriage is contracted in contravention of the rule, such marriage will be considered void and the act can attract punishment under the anti-bigamy provisions. Thus, the Commission put forth a much -needed change to plug the loophole in the extant law. The Commission further recommended insertion of analogous provisions in the Christian Marriage Act, the Parsi Marriage and Divorce Act, 1936 and the Dissolution of Muslim Marriages Act, 1939. Another major amendment recommended by the Commission was the deletion of the proviso to Section 4 of the Dissolution of Muslim Marriages Act, 1939 which declared that reconversion of a married woman from Islam will operate to automatically dissolve her marriage, contracted while she was a Muslim. The Law Commission Report on the subject included a comprehensive analysis of the relevant provisions in the personal laws and their misapplication in the contemporary world based on a matured conception of Personal laws in its true spirit. Hence, the recommendations hold great significance in defining the role of conversions in Marriage under Personal laws. However, legislative interventions have failed to put these meaningful recommendations into force.

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Divya Sharma, Religious Conversion and Freedom of Religion, (Jan. 13, 2018), https://blog.ipleaders.in/religious-conversion-law/. 10 Lily Thomas v. UOI, (2000) 6 SCC 224.

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RENUNCITATION OF WORLD AS A GROUND FOR DIVORCE As already stated, renunciation of world is a recognized ground of divorce only under Hindu Law. It is a practice, where one abandons his material life to pursue his religious calling. The person disavows all his worldly affairs and leads a life of penance and abstinence. It is to ensure the wellbeing of the spouses of such people that renunciation of world is recognized as a ground for divorce in India under Hindu Law. The life of a Hindu is believed to be governed by the varnashrama system. Each human being passes through three different varnas before entering the stage of renunciation, which is the final stage. The final stage of life is referred to as Sanyasa ashrama, where the human being leads a life of complete renunciation. The person entering this stage not only renounces his material status, but also his personal relations from birth to grihastha ashrama. Grihastha ashrama denotes the stage where the human being leads a worldly life performing familial duties and responsibilities.11 Usually, a Hindu enters Sanyasa ashrama during old age. However, there is no restriction in adopting this way of life at a younger age. A person who enters this state of existence is considered civilly dead.12 The adoption of this way of life must be absolute and irrevocable.13 Section 13 (vi) of the Hindu Marriage Act, 1955 recognizes renunciation of world as a valid ground of divorce. Two conditions must be fulfilled to seek divorce under this ground. Firstly, the respondent must have renounced the world. Secondly, the spouse must have entered some religious order. A formal entry to this stage of life must be evident. Renunciation of world by a spouse can be considered as a form of desertion, which justifies the other spouse’s right to claim divorce. A mere entry into holy order will not amount to renunciation of world. Thus, a Hindu who become a pujari or a Sikh who becomes a granthi does not renounce the world.14 Similarly becoming a chela of a guru or calling oneself a “sanyasi” and wearing sanyasi clothes does not by itself amount to renunciation of world.15 In Sital Das v. Sant Ram 16, the Supreme Court held that performance of some rites and ceremonies is essential to enter into a religious order.17 The essential ceremonies are the performance of “prajapathiyesti homan”, and the “viraja homan” or “ghatta shraddha”. Hence, an express entry into a religious order is essential.

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The ideal lifestyle of four ashrams, NEERKSHEERVIVEKETU, http://www.neerksheerviveketu.com/pdf/english/11.pdf. 12 Pratik Harsh, A Divorce under the Hindu Marriage Act, 1955 , (Aug. 1, 2020), https://www.lawyered.in/legaldisrupt/articles/divorce-under-hindu-marriage-act-1955-pratikharsh/#:~:text=%E2%80%9CRenunciation%20of%20the%20world%E2%80%9D%20is,has%20entered%20a% 20holy%20order. 13 Mayank Shekhar, Concept and Grounds of Divorce (Feb. 24, 2017), https://www.legalbites.in/law-noteshindu-law-concept-and-grounds-of-divorce/. 14 Hindu Law of Divorce, https://old.amu.ac.in/emp/studym/100019278.pdf. 15 Renouncing world and impact on Divorce, LAWYERSCLUB INDIA, https://www.lawyersclubindia.com/forum/renouncing-world-and-impact-on-divorce-71699.asp. 16 Sital Das v. Sant Ram , 1954 SC 606. 17 Sheeparna Goswami, Grounds of Divorce under Section 13 of the Hindu Marriage Act, 1955, LAW COLUMN (Nov. 25, 2020), https://www.lawcolumn.in/grounds-of-divorce-under-section-13-of-hindu-marriage-act-1955/.

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CONCLUSION Based on the kind of divorce, the different grounds of divorce have been classified on the basis of fault theory and no-fault theory. Fault theory allows a spouse to sue for divorce on the basis of a fault from the other party. The guilt of the defaulting party furnishes the ground for the other spouse to approach a court of law. Thus, this theory recognizes grounds of divorce based on the voluntary actions of the parties. From the aforementioned discussions, it follows that conversion and renunciation of world are grounds of divorce falling under the fault theory. In both cases, the voluntary deeds of one of the parties to the marriage which substantially affects his/her marital bond entitles the innocent party to sue for divorce. The recognition of these grounds is a legal protection extended to innocent spouses who may have to undergo innumerable sufferings due to the misdeed of the other party, which has the potential of substantially altering the nature of their relationship. Further, the recognition of these grounds also ensures a quick and effective marital relief for the innocent spouse. Evolution of these grounds from their earlier forms is the result of a fair share of legislative interventions and judicial activism. However, there still remains some latent defects in the statutory provisions which needs to be rectified through prudent interventions from the legislature.

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