Is a convert to Islam governed by his personal law before conversion or by Muslim law in matters of matrimonial relief and succession?

Question: Is a convert to Islam governed by his personal law before conversion or by Muslim law in matters of matrimonial relief and succession? [BJS 1991]

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Answer

Mohammedan Law applies not only to persons who are Mohammedans by birth but by religion also, a convert changes not only his religion but his personal law also. These rigid logical rules may apply to individual conversions, but in the case of a community conversion, the converts may retain a portion of their personal law according to their social habits and surroundings. They retain their personal law unless they consciously adopt another.

Any person who professes the Mohammedan religion acknowledges that (1) there is one God, and (2) Mohammed is his Prophet, is a Mohammedan. Such a person may be a Mohammedan by birth or he may be a Mohammedan by conversion. It is not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in that religion; no court can test or gauge the sincerity of religious belief.

It is sufficient if he professes the Mohammedan religion in the sense that he accepts the unity of God and the prophetic character of Mohammed.

However, the conversion of a Hindu wife to Mohammedanism does not ipso facto dissolve her marriage with her husband. She cannot, therefore, during his lifetime, enter into a valid contract of marriage with any other person.

In the absence of a custom to the contrary, succession to the estate of a convert to Mohammedanism is governed by Mohammedan law. According to Mohammedan law, a Hindu cannot succeed in the estate of a Mohammedan. Therefore, if a Hindu, who has a Hindu wife and children, embraces Mahommedanism, marries a Mohammedan wife, and has children by her, his property will pass on his death to his Mohammedan wife and children, and not to his Hindu wife or children.

Conversion to Islam and Marital Rights

According to Muslim Law, a distinction is made between the conversion 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 first case, when one of the parties embraces Islam, he should offer Islam to the other spouse, and if the latter refuses, the marriage can be dissolved. 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. The courts in India do not administer the laws of any particular community but they administer such laws as are valid in India. Muslim Law is administered only in those cases where it happens to be the law of India and where the parties are Muslims.

In India, the spouse who has become a convert to Islam can sue for divorce or a declaration of dissolution of the marriage on the ground that the other spouse has refused to adopt the Muslim religion. It has been held in Pakistan that a marriage of a Hindu married woman on her conversion in British India to Islam should be regarded as dissolved on the completion of three of her monthly courses without any decree or order of the court.

In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, the Supreme Court held that the second marriage of a Hindu husband after conversion to Islam without having his first marriage dissolved under the law would be invalid. The second marriage would be void in terms of the provision of Section 494, IPC and the apostate husband would be guilty of the offence under Section 494 of IPC.

In Lily Thomas v. Union of India, (2000) 6 SCC 224, the Supreme Court has observed that if a Hindu wife files a complaint for the offence of bigamy under Section 494, IPC on the ground that, during the subsistence of marriage her husband had married a second wife under the other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. Since under Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage in spite of his conversion to another religion, would be an offence under Section 17 of the Hindu Marriage Act read with Section 494 of IPC.

A change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligation or matrimonial bond but it is a ground for divorce under Section 13 as well as a ground for judicial separation under Section 10 of the Hindu Marriage Act.

Conversion to Islam and Rights of Inheritance

In the absence of a custom to the contrary, in the case of a Hindu converts to Islam, succession and inheritance are governed by Mohammedan Law and not by Hindu law.

Where a Hindu, who had a Hindu wife and children, embraced Islam and married a Muslim woman, and had children by her, his property would pass on his death to his Muslim wife and children and not to his Hindu wife or children because, under Muslim Law, a Hindu cannot succeed to the estate of a Muslim.

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