Effect of apostasy under Hindu Personal Laws.

Question: Effect of apostasy under Hindu Personal Laws.

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Answer

In any country, religion is a highly sensitive and personal factor in one's life. Indian Constitution provides the freedom of religion and conscience to all the people. In India, every person is free to profess, relinquish or convert his faith and religion. The word Apostasy is used to define these all under one sphere. The diversity of personal laws does not bar the act of apostasy, but there is a certain kind of effect on the rights of the person.

The formal renunciation, abandonment, or disaffiliation of an individual from their religion is called Apostasy. The person undertaking this process is known as the Apostate. In a wider sense, it can be considered as one finding their previous religious beliefs contrary and having acquired a new way of their choice.

Under Muslim law, the laws relating to apostasy are very strict and serious, they even provide for a death sentence in case of it. Under Hindu Laws, there is no such strict measure, but there is a loss of a few rights given under these laws.

Effect on marriage - Hindu Marriage Act, 1955 governs all the personal laws relating to Hindu marriage. As per section 13 of the said Act, if a person converts to another religion the remaining spouse has the right to seek divorce. Only the non-convert can seek divorce over this ground when a few conditions are fulfilled such as;

• A person who is Hindu,
• Converted to another religion and,
• Ceased to be a Hindu.

This ground can also be sued for seeking Judicial Separation under Section 10 of the Hindu Marriage Act, 1955, itself. In the case of Madanam Seetha Ramul v. Madanam Vima, 2003 CMA 2285, the husband was granted the divorce on the ground that the wife converted to Christianity.

In the case of Sarla Mudgal, President, Kalyani v. Union Of India, AIR 1995 SC 1531, where the husband converted to Islam only for the purpose of the second marriage, the Supreme Court held that a person can not convert their religion with the intention of performing bigamy. The second marriage was held invalid as the first marriage was not dissolved on the basis of Section 494 of the Indian Penal Code, 1860.

In the case of Lily Thomas v. Union Of India, AIR 2000 SC 1650, when the decision of Sarla Mudgal was challenged, the Supreme Court upheld its previous decision. It was held that apostasy alone does not dissolve any marriage; thus, the convert has no right to misuse the conversion. A person who mockingly adopts another religion where a plurality of marriages is permitted to renounce a previous marriage and desert a woman cannot be allowed to profit from its exploitation because religion is not a commodity to be exploited.

Further, in the case of Suresh Babu v. Leela, 2006 (3) KLT 891, it was held that the conversion of a husband provides the wife with the right to seek divorce and maintenance.

Effect on succession

In the case of Balchand Jairamdas Lalwani v. Nazneen Khalid Qureshi (Appeal from Order No. 1175 of 2014), it was held that conversion does not exclude the succession and inheritance rights of an individual, a combined reading of Section 2 and Section 26 of Hindu Succession Act has to be taken into consideration and not the isolated reading.

In the case of Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Ors., SPECIAL CIVIL APPLICATION NO. 15825 of 2017, it was held that a person who has converted to any non-Hindu religion will be governed by that religion only in all the other cases, but in the question of inheritance, the religion of the convert at the time of birth has to be taken into consideration.

Effect on maintenance 

As per section 18 of the Hindu Adoption and Maintenance Act, 1956, the right of maintenance is valid only till the conversion of the person. In case, a wife converts her religion to any non-Hindu religion she cannot claim maintenance from her husband. Similarly, a person who has inherited the property from his father has an obligation to maintain everyone dependent on him but this obligation ceases if any of the dependent converts to any non-Hindu religion. But as per Section 18(2) of the same Act, if a man renounces Hinduism, then his wife is entitled to claim separation along with the maintenance.

Effect on the right to guardianship

As per Section 6 of the Hindu Minority and Guardianship Act, 1956, general denunciation or deputation or declaring liking towards any faith by parents would not affect their rights as the guardian of their minor child's property or person. Their rights will cease only when they will convert to any specific non-Hindu religion. But these laws will not apply if one of the parents has been non-Hindu from the time of marriage.

In the case of Helen Kinner v. Sophia, 14 МIA 309, the Privy Council held that it is of paramount consideration with the guardianship to ensure the welfare of a minor, thus if a parent is converting his/her religion, their conversion will be a factor for consideration of their fitness as a guardian.

Effect on the right to adoption 

As per Sections 7 and 8 of the Hindu Adoption and Maintenace Act, 1956, a person having a natural son cannot adopt a son but he is allowed to do so if his natural son has performed apostasy. The same law applies in the case of the adoption of a daughter. Also, the Act states that it is mandatory for a married person to obtain his wife's consent in case of adoption but he can ignore it if his wife has performed apostasy. And the same law applies to a wife who wants to adopt a child and her husband has performed the act of apostasy.

Hence, though India, as a secular nation, provides the right of apostasy to individuals, it does not safeguard all the personal laws. Few rights of the convert are affected in order to safeguard the rights of others.

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