Conversion to Islam in India

Conversion to Islam in India:

One of the fundamental rights guaranteed by our Constitution is “right to freedom of religion”. Article 25 (1) guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. Consequently, any person may accept any religion he likes or he may renounce his religion.

Religion is a very sensitive and personal aspect of individual's life and the constitution of India guarantees the freedom of conscience and religion to people of all denominations. Thus, a person is free to profess any faith or relinquish his faith of birth and convert to another religion.

When a non-Muslim accepts Islam it is termed as “Conversion to Islam”. For the application of Muslim law it is not necessary that a Muslim should be a born Muslim, it is sufficient if he is a Muslim by profession or by conversion. On conversion to Islam the convert subjects himself to the provisions of Muslim law. A man becomes a Muslim by making a confession of the unity of God and of the prophet hood of Muhammad, and so long as he does not renounce his faith in this, he remains a Muslim technically, or in spite of any opinion he may hold on any religious question, or any evil which he may commit or have committed, and a man who does not make this confession is a non-Muslim technically, in spite of any good that he may do.

Effect of Conversion to Islam on Marital rights:

The logic underlying the grant of relief in case of conversion is however, not merely a legal one, viz., that after conversion, the convert will be governed by different personal law, but also because conversion could mean a radical change in the personality of the convert. The event is often very much akin to a breakdown of the marriage and goes to the root of conjugal life of the spouses.

According to pure Muslim law a distinction is made between conversion to Islam of one of the spouses when such conversion takes place –

1) In a country subject to Muslim law: In this case, when one of the parties embraces Islam, he or she should invite his or her spouse to become Muslim. If that person does not do so, the Judge should dissolve the marriage.

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

Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939 (DMMA), conversion of either spouse had the effect of automatic dissolution of the marriage under the Muslim personal Law.

But as per DMMA Act there is difference as follows:

a) A Muslim wife who was before her marriage a non-Muslim i.e. A wife who adopted Islam after marriage: In this case, the conversion of the wife would result in instant dissolution of the marriage. In other words, if a woman converts to Islam from some other faith and then re-embraces her former faith, then it will have the effect of immediate dissolution of her marriage. 

To take an example: a Muslim male marries a woman who was a Hindu prior to marriage but she Converts to Islam and gets married. After sometime, she renounces Islam and converts to Christianity. This will not ipso facto dissolve the marriage, because she has not re-embraced her former faith, viz., Hinduism. Had she re-embraced Hinduism, it would have had the effect of immediate dissolution of the marriage bond.

Munavvar-ul-Islam v. Rishu Arora

In Munavvar-ul-Islam v. Rishu Arora, a Hindu wife converted to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism, her marriage stood dissolved. Her case falls under the second proviso to Section 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves the marriage, would apply.

b) A wife who was a Muslim before marriage i.e. A wife who was already Muslim:

In the case of a Muslim married woman, her renunciation of Islam or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. Thus, if she remarries before the dissolution of her marriage, she can be prosecuted bigamy.

However, even after such reconciliation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 of the Act, viz, unknown whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty. She can also exercise her option of puberty by repudiation of the marriage. The husband's apostasy is not a ground on which she may seek dissolution.

If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Section 494 of the Indian Penal Code, 1860.

In Abdul Ghani v/s Azizul Huq. A Muslim man and woman got married. After sometime, the husband embraced Christianity but reverted to Islam during the wife's iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under Section 494. It was held that no offence had been made.

Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under Section 494 of IPC against her. Her second marriage is not void by reason of its taking place during life of prior husband but by reason of special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do.