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Report No. 18

4. Existing law as to effect of conversion to Islam from monogamous religion.-

The problem arises only when the conversion is from a monogamous religion to a polygamous religion and vice versa, and, as already stated1 it can now happen only when it is to or from Islam. To decide whether, the proposed legislation should or should not extend to these conversions, it is necessary to see what the present law on the subject is. Considering, first, the effect of conversion to Islam from a religion which is monogamous, the effect of such conversion depends, according to Muslim jurists, on whether it takes place in a country subject to Muslim law or in a country where the law of Islam is not the law of the land.

In the former case, according to them, the converted spouse should offer Islam to the other spouse, and if that is refused the Kazi must dissolve the marriage, and in the latter case the marriage will automatically stand dissolved at the end of three "periods" of the wife. The application of this rule to this country has been considered in a number of decisions, by the High Courts of Calcutta, Madras and Bombay,2 and the law as laid down therein may be summed up as follows:-

(1) India is not a country subject to the law of Islam, and therefore there can be no question of a converted spouse offering Islam to the other spouse and the marriage being dissolved by a Kazi on the refusal of such offer.

(2) The rule of Muslim law that on conversion in a non-Islamic country the marriage previously contracted becomes automatically dissolved has no application to this country.

(3) The incidents of a marriage solemnised in India are determined by the personal law governing the parties at the time of the marriage, and they cannot be changed by either party unilaterally by conversion to another religion.

(4) When one of the parties to a marriage becomes a convert to another religion, and, as a result thereof, there arises a conflict between the personal laws applicable to the two parties, their rights are to be determined not according to the personal law applicable to the convert, but according to rules of justice, equity and good conscience.

1. See para. 3, supra.

2. Vide Budansa Rowther v. Fatima Bibi, (1914) 26 MIJ 260; Noorjehan v. Eugene Tiscenko, AIR 1941 Cal 582; Syeda Khatoon v. Mt. Obadiah, 49 CWN 745; Robasa Khanum v. Khodadad Bomanji, AIR 1947 Born 272.

5. On the above principles, it was held that conversion to Islam did not operate to dissolve the marriage which had previously been solemnised, according to Hindu religion (vide Budansa Rowther v. Fatima Bibi, (1914) 26 MU 260); according to Christian religion, per Edgley J. (vide Noorjehan v. Eugene Tiscenko, AIR 1941 Cal 582); according to Jewish religion (vide Syeda Khatoon v. Mt Obadiah, Syeda Khatoon v. Mt Obadiah); and according to Zoroastraian religion (vide Robasa Khanum v. Khodadad Bomanji, AIR 1947 Born 272). This, it may be taken to be well-settled that conversion from a monogamous faith to Islam does not dissolve a marriage previously contracted, and, therefore, in law, the position is the same whether the conversion is to Islam or to a monogamous faith.

6. Does it make any difference in the result, that the Muslim law permits polygamy? Can it be said that even though conversion does not dissolve a marriage previously contracted, neither does it prevent the convert from marrying more wives in accordance with that law? Such a view will conflict with the principles on which conversion to Islam has been held not to operate to dissolve the marriage previously contracted. It was observed by Chagla J. (as he then was) in Robasa Khanum v. Khodadad Bomanji, AIR 1947 Born 272, with reference to a marriage contracted between two Parsis, that it was "a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion", and that "it would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act".

In other words, the marriage already contracted had created mutual rights and obligations between the parties, which did not cease on the conversion of either party, and therefore the right of the convert to marry more wives in accordance with Muslim law must be held to be subject to the right which the wife has acquired, under a monogamous marriage prior to conversion, to exclude all others in consortium so long as the marriage subsists. And if, as held in the decisions already referred to5, the parties are, after conversion, governed, where there is a conflict of personal law, by rules of justice, equity and good conscience, a restriction on the right of the convert to marry more wives until the marriage already contracted is dissolved would be in accordance with the law applicable to the marriage which was solemnised under a monogamous religion, and that would also be in consonance with justice and right, as observed by Lodge J., in Syeda Khatoon v. Mt. Obadiah, (1949) 49 CWN 745 (749)) and by Chagla J. in Robasa Khanum v. Khodadad Bomanji, AIR 1947 Born 272 (275).

1. See para. 5, supra.



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