Conversion & Its Effect

Family Laws
Introduction

Family law is the law that deals with the legal issues that arise in families or other personal
relationships such as Marriage, Adoption, Divorce, Child Custody, Maintenance,
Guardianship, Partition, Parental Responsibility etc.
Family law is primarily concerned with the rules of the formation of the family and of the
rights and obligations arising out of relationship in the family. The law of marriage, sonship
and adoption relate to the formation of the family. The law of partition and inheritance
govern rights arising out of relationship in the family.
The Indian Family law is concerned with the personal laws of different religion .The family
matters such as marriage, adoption, guardianship, divorce, maintenance, partition, succession,
inheritance etc are governed by personal laws of each religion.
In India different religions like Hindu, Muslim, Christian and Parsi etc are governed by their
own personal law as Hindu law (Hindu law acts 1955-56), Muslim law (Muslim personal
laws (Shariat) application act 1937), Christian law, Parsi law (Parsi marriage and divorce act
1936), respectively.

Refer
Who is Hindu,Muslim,Christian and Parsi and Jews from Paras Diwan Book.
Ceromony of Conversion Under various Personal Law from Paras Diwan



Effects of Conversion

The effects of conversion from one religion to another under Hindu Law are described below:
(A) Law Applicable:
The effect of conversion from one religion to another on the law applicable to the convert
was considered by the Privy Council in Abraham v. Abraham, 1863 (9) MIA 195. M.
Abrahams ancestors were

Hindus who were converted into Christianity. On the death of M. Abraham his widow
brought the suit for recovery of his property. This suit was resisted by his brother F. Abraham
who contended that his ancestors continued to be governed by the Hindu Law in spite of
conversion. He accordingly claimed that he was entitled to the entire property according to
the Hindu Law of survivorship applicable to a joint Hindu family.

The Privy Council held:
(1) The effect of conversion of a Hindu to Christianity is to sever his connection with the
Hindu family.
(2) Such a person may renounce the Hindu Law but is not bound to do so. He may elect to
abide by the old law, notwithstanding that he has renounced the old religion
(3) The course of conduct of the convert after his conversion would show by what law he had
elected to be governed.

Under the third principle it was found that M. Abraham had married a Christian woman who
was born to an English father and a Portuguese mother, that he adopted English dress and
manner. It was clear, therefore, that he had elected against the Hindu Law and so the
defendants contention based upon the Hindu Law of survivorship was rejected.

In 1865 the Indian Succession Act was passed and it regulated succession to the property of
Christian. The question arose whether even after the passing of this Act; it was open to a
Christian convert from Hinduism to elect to be governed by the Hindu Law of Succession.
It was held by the Privy Council in Kamuwati v. Digbijai Singh, 43 All. 525 (PC), that after
the coming into force of the Act of 1865 the rule in Abrahams case ceased to be applicable
so far as law of the inheritance is concerned.
The plaintiff in that case who was the sister of the deceased owner, who was a Christian
convert from Hinduism, was held to be entitled to succeed to 1/12th of his property under the
Act of 1865 and the defendants (brothers) claim based upon Hindu Law to succeed to the
entire property was rejected.

But in spite of the Act of 1865, a Hindu convert to Christianity could elect to be governed by
the rule of survivorship in a joint family: Francis Ghosal v. Grabri Ghosal, 31 Bom. 251 (PC).
So the rule of electing to be governed by Hindu Law was applicable to a limited extent to
Christian converts even after 1865.

In the case of conversion to Mahomedanism also the old rule was that by custom the convert
had an option to be governed by the old Hindu Law. Thus Khojas and Cutchi Memons of
Bombay State were governed in matters of succession by Hindu Law though they had been
converted to Islam. The Shariat Act, 1937, has put an end to this. Under that Act converts to
Islam are governed by Mahomedan Law only and not by the law to which they were subject
prior to the conversion.
(B) Effect of Conversion on Rights of Inheritance in Family of Birth:
Under the Hindu Law a convert from Hinduism could not inherit to the Hindu relations.
Similarly under the Mahomedan Law a convert from Islam to some other religion is excluded
from inheritance. This rule has been abrogated by the Caste Disabilities Removal Act, XXI of
1850. This Act is also called the Freedom of Religion Act. It has abolished the customary law
which entails forfeiture of rights inheritance consequent upon conversion or deprivation of
caste.
(C) Effect of Conversion on Marital Rights:
Conversion of one of the parties to a marriage has certain effect under the law applicable
prior to conversion. If a Mahomedan husband renounces Islam and embraces another
religion, the marriage is immediately treated as dissolved: If a Mahomedan wife embraces
another religion, the same consequence followed under the Mahomedan Law but the law has
been modified by the Dissolution of Muslim Marriage Act, 1939. Under that Act the wife can
on her conversion seek a divorce on any of the grounds mentioned in that Act.
Under the Hindu Marriage Act, 1955, conversion of either party is per se a ground for
seeking divorce to the other party. Thus if the wife renounces Hinduism the husband can seek
a divorce and vice versa [Sec. 13 clauses (1) sub-clause (ii)].
In Vilayat v. Sunila, AIR 1983 Delhi 351, the question has arisen whether a Hindu husband,
who has embraced Islam subsequent to the marriage, can file a petition for divorce under the
Hindu Marriage Act. It was held by Leila Seth. J., that he could do so for under s. 13 at the
time of presentation of the petition, the parties need not be Hindus. In this view the personal
law according to which the marriage took place will govern the rights of the parties as to the
dissolution of the marriage.
Suppose both the parties to the marriage embrace Islam. The view of Leila Seth. J., would
still subject the parties to the remedies available under the Hindu Law in regard to the
dissolution of the marriage. But such a view is opposed to the rule laid down in Khambatta v.
Khambatta, 1934 (36) Bom. LR 1021, where in such a situation divorce by Talak under the
Mahomedan Law was upheld.
Thus the view of Leila Seth, cannot be pressed to its logical conclusion. It should be
restricted to the facts of that case. If one of the parties to a Hindu marriage becomes a convert
to another religion, he is not according to this view, disabled from filing a petition under s. 13
of the Hindu Marriage Act, 1955.
(D) Effect of Conversion on Right to Maintenance:
Under the Hindu Law conversion from Hinduism operates as a forfeiture of the right of the
convert to claim maintenance (see s. 24 the Hindu Adoptions and Maintenance Act, 1956).
When the husband renounces Hinduism, his Hindu wife becomes entitled to claim a right to
separate residence and maintenance from him Hindu Adoption and Maintenance Act [s. 18
(2) (f)].
Conversion from Islam affects a forfeiture of the pre-existing maintenance rights. When the
husband renounces Islam, the marriage is at an end and so maintenance can be claimed by the
wife during the period of iddat.
(E) Effect of Conversion on Right to Guardianship:
The paramount consideration in regard to guardianship is the welfare of the minor. So when
the parent having guardianship changes his or her religion, it is a factor to be taken into
account in considering the fitness of the parent to continue as guardian. This was decided by
the Privy Council in Helen Kinner v. Sophia, 14 IA 309.