Thursday 15 May 2014

Dissolution of marriage by reconverting to original faith

Delhi High Court: While deciding a case of dissolution of marriage due to apostasy under Muslim Personal Law, where the woman reconverted to her original faith after converting to Islam after marriage, the Court said that taking view of the authoritative literature by various scholars on the subject and interpreting the 75 year old legislation on Muslim Personal Law, it cannot be said that apostasy per se does not dissolve marriage governed by Muslim Personal Law, nor can’t it be said that the Act makes a change to this general law. Quoting Charles Hamilton from his translation of the “Hedaya” and Sir D. F. Mulla prior to enactment of the Act, the Court observed that apostasy from Mohammedan religion of either party to a marriage operates as a complete and immediate dissolution of the marriage. Discussing the application of Section 4 of the Act, the Court said that to interpret Section 4 so as to mean that the renunciation or conversion does not per se operate to dissolve the marriage would be incorrect, inasmuch as it would render the words “by itself” as appearing in the provision otiose. Section 4 was enacted to prevent women married under Muslim personal law from committing fraud upon the courts by apostatizing solely to escape marital ties.

In the instant case after a college romance between the parties, the respondent embraced Islam renouncing her original faith, changed her name and married the appellant according to Islamic rights. However, due to differences between the parties, the respondent again reconverted to her original faith and filed for a divorce. The Court said that respondent was originally a Hindu, who reconverted to her original faith from Islam, hence she falls within the second proviso to Section 4 of the Act, which is properly described as an exception to that section. Her marriage is regulated by the pre-existing Muslim personal law which dissolves marriage upon apostasy ipso facto and not by the rule enunciated in Section 4 of the Act. The Court was of the view that the words of Section 4, the other sections, the long title as well as the legislative history of the Act and the rectification of the given mischief by the provision, operates only to modify the pre-existing rule to the extent that apostasy does not ipso facto dissolve a marriage contracted under Muslim personal law. That being the construction, the Court while agreeing with the trial court's view granted the divorce and concluded that a woman married under Muslim personal laws, upon apostatizing, will be entitled to sue under Section 2(ix) seeking dissolution of the marriage. It is required that she proves before the appropriate Court that she intended to and has indeed apostatized from Islam and accordingly seeks a declaration that the marriage has come to an end. [Munavvur-Ul-Islam v. Rishu Arora, MAT. APP. (FC) No. 34/2013, decided on 9 May, 2014]
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