A, an Indian Muslim married a Christian German lady B in Germany according to German law and brought B to India with him. A then married a Muslim lady in India in the Muslim form... Discuss the validity or otherwise of the second marriage of each A and B.

Question: A, an Indian Muslim married a Christian German lady B in Germany according to German law and brought B to India with him. A then married a Muslim lady in India in the Muslim form of marriage and gave a deed of divorcement (talaknama) to B. After sometime B become a convert to Islam and married, in Muslim form another Muslim in India. Discuss the validity or otherwise of the second marriage of each A and B. [RJS 1971]

Find the question and answer of Muslim Law only on Legal Bites. [A, an Indian Muslim married a Christian German lady B in Germany according to German law and brought B to India with him. A then married a Muslim lady in India in the Muslim form... Discuss the validity or otherwise of the second marriage of each A and B.]

Answer

According to Muslim law, a distinction is made between conversions to Islam of one of the spouses when such conversion takes place:

1. In a country subject to Muslim law, and

2. In a country where the law of Islam is not the law of the land.

In the second case, the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. This, however, is not the law in India. In India, the spouse who has embraced Islam cannot file a suit for divorce or for a declaration that the marriage is dissolved against the spouse who refuses to embrace Islam.

It is well settled that even in International Law, a wife in her marriage, acquires the nationality of her husband unless the Municipal Law prevents such an acquisition. In case, the petitioner, who was originally a Hindu, embraced Islam and married a Muslim. By reason of such marriage which is recognized by Muslim Law, she became a Muslim.

In Khambatta v. Khambatta,(1935) 59 Bom. 278, a Mohammedan married a Christian woman in Christian form. The wife became a convert to the Mohammedan religion, and the husband divorced her by talak. The Bombay High Court held that when the wife renounced Christianity the lex domicilii applied the law of their religion and that the divorce was valid.

In Rex v. Hammersmith, Superintendent Registrar of Marriages, [1917] 1 K.B. 634, a civil marriage solemnized at a Registrar's office in London between a Mohammedan domiciled in India and an English woman domiciled in England was held that cannot be dissolved by the husband handing to the wife a talaknama [writing of divorcement], although that would be an appropriate mode of effecting the dissolution of a Mahomedan marriage under Mohammedan law.

The reason is that such a marriage is a Christian marriage that signifies the voluntary union for the life of one man and one woman to the exclusion of all others; it is not a marriage in the Mohammedan sense which can be dissolved in a Mohammedan manner. A Mohammedan marriage, being a polygamous marriage, is not, for certain purposes of English law, regarded as a marriage. But this reason ceases to apply when the wife becomes a convert to Islam.

The Bombay High Court in Khambatta's case has held that civil marriage in Scotland between a Christian woman subsequently converted to Mohammedanism and a Mohammedan domiciled in India can be dissolved by talak. This is on the ground that the rights and liabilities arising out of the marriage contract are governed by the lex domicilii.

So, the second marriage of A and B is valid as both have validly renounced their marriage by a deed of talaknama.

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