October 2, 2022

Doctrine of Indissolubility of Marriage

Does conversion to another religion automatically dissolve the marriage?

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

Case laws

Under Hindu Law, there was no authority for the proposition that an apostate is absolved from all civil obligations and that so far as the matrimonial bond was concerned, such view was contrary to the spirit of the Hindu law.

  • In Re Ram Kumari 1891 Calcutta 246 where a Hindu wife became convert to the Muslim faith and then married a Mohammedan, it was held that her earlier marriage with a Hindu husband was not dissolved by her conversion. She was charged and convicted of bigamy under Section 494[1] of the IPC.

The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697.

  • In Nandi @ Zainab vs. The Crown (ILR 1920 Lahore 440), Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the Indian Penal Code. It was held that the mere fact of her conversion to Islam did not dissolve the marriage which could only be dissolved by a decree of court.
  • Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.
  • In Sayeda Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:

“The parties were originally Jews bound by the Jewish personal law… The Plaintiff has since been converted to Islam and may in some respects be governed by the Mohammedan Law… I can see no reason why the Mohomedan Law should be preferred to the Jewish Law in a matrimonial dispute between a Mohomedan and a Jew particularly when the relationship, viz.: marriage, was created under the Jewish Law.

As I stated in a previous case there is no matrimonial law of general application in India. There is a Hindu Law for Hindus, a Mohomedan Law for Mohomedan, a Christian Law for Christians, and a Jewish Law for Jews. There is no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.

It may be that a marriage solemnised according to Jewish rites may be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mohomedan Law may be dissolved according to the Mohomedan Law when one of the parties ceases to be a Mohomedan. But I can find no authority for the view that a marriage solemnized according to one personal law can be dissolved according to another personal law simply because one of the two parties has changed his or her religion.”

Sayeda Khatoon’s case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864.

In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her marriage stood dissolved because of her conversion to Islam. The learned Judge dismissed the suit.

Sarla Mudgul Case

In the landmark case of Sarla mudgul case[2] which is considered as the high watermark authority on the issue, the court held that,

“…a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so.

Where a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the parties is allowed to dissolve the marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu.

We, therefore, hold that under the Hindu Personal Law as it existed prior to its codification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.”

In the instant case, the husband of hindu wife converted to Islam and solemnised another marriage with a converted hindu female as Islam allows four marriages. The wife filed the petition in the supreme court arguing that the marriage solemnised under muslim law was just to facilitate another marriage. “

The court further held that,

“It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the grounds available under section 13 of the Act.

In that situation parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under the shelter of conversion to Islam would nevertheless be a marriage in violation of the provisions of the Act by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion to Islam.

The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife, the second marriage is in violation of the provisions of the Act and as such would be nonest.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

Since it is not the object of Islam nor is the intention of the enlighten Muslim community that the Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.”

Reference

Smt. Sarla Mudgul vs. Union of India & Ors, 1995 AIR 1531, 1995 SCC (3) 635


[1] 494. Marrying again during lifetime of husband or wife. —Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

[2] 1995 AIR 1531