Judgment:
K.T. Sankaran, J.
1. The question which arises for consideration in this Appeal is whether in a petition for dissolution of marriage filed by the wife under Section 13(1)(ii) of the Hindu Marriage Act, a Hindu husband who embraced Islam by conversion could put forward a valid defence that the conversion to Islam was with the consent of the wife and thereby avert an order for dissolution of marriage.
2. The respondent herein filed a Petition under Section 13(1)(ia), (ib) and (ii) of the Hindu Marriage Act praying for the dissolution of her marriage with the appellant. The marriage was solemnized on 1st November 1992. There are two children born in the wedlock. The respondent alleged that the respondent has meted out cruelty towards her and he deserted her. It is also alleged that the appellant herein embraced Islam and married one Fathima and they are living together. The appellant denied the allegation of cruelty and desertion. However, it is admitted by the appellant that he converted to Islam and married Fathima. The defence of the appellant is that his conversion to Islam was with the consent of the respondent-wife and he married Fathima since the respondent left his company contrary to her promise to continue to live with him even after conversion.
3. The court below allowed the Original Petition on the ground of desertion and on the ground that the appellant herein has ceased to be a Hindu by conversion to Islam. When this Appeal came up for admission, it was finally heard with the consent of the counsel.
4. Section 13(1)(ii) of the Hindu Marriage Act reads as follows:
13. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party.
(ii) has ceased to be a Hindu by conversion to another religion.
Conversion to Islam by a Hindu spouse does not per se lead to dissolution of the marriage. It only gives a right to the other spouse to file a petition under Section 13(1)(ii) of the Hindu Marriage Act for divorce. Under the pristine Hindu Law as well, conversion did not operate per se as a dissolution of marriage. A Hindu spouse who ceased to be a Hindu by conversion to another religion does not acquire any right under the Hindu Marriage Act. On the other hand, he or she exposes himself or herself to a claim for divorce by the other spouse on the ground of such conversion. The spouse who remains a Hindu gets a right under Section 13(1)(ii) of the Hindu Marriage Act to seek dissolution of the marriage with the spouse who since the marriage ceased to be a Hindu by conversion to another religion. The right of non converting spouse is indefeasible. The statute does not provide for any qualification on such right of the non converting spouse. Nor does the Hindu Marriage Act state that the conversion shall be a conversion without the consent of the other spouse in order to entitle such spouse to apply for divorce. A conversion does not cease to be a conversion within the meaning of Section 13(1)(ii) if it is with the consent of the other spouse. We cannot read into the statute something which is not intended in the context; nor can we qualify a disqualification in the matter of conversion as one with the consent of the other spouse so as to take it out of the purview of Section 13(1)(ii).
5. Even accepting the case of the appellant that he embraced Islam as consented to by the respondent, his marriage with Fathima would be a bigamous marriage. In Sarla Mudgal, President, Kalyaniand Ors. v. Union of India and Ors. : 1995CriLJ2926 , the Supreme Court considered the question whether a Hindu husband by embracing Islam can contract a second marriage during the subsistence of the first marriage and whether the husband would be guilty of the offence under Section 494 of the Indian Penal Code. It was held thus:
14. It is, thus, obvious from the catena of case law 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.
21. A Hindu marriage solemnized 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 I.P.C., Any act which is in violation of mandatory provisions of law is per se void.
In the concurring judgment by Justice R.M. Sahai in Sarla Mugdal's case, it was noticed that 'many Hindus have changed their religion and have become convert to Islam only for purpose of escaping the consequences of bigamy.
6. Some other provisions of the Hindu Marriage Act would also be helpful in interpreting the scope and ambit of Section 13(1)(ii). In the case of petitions for divorce on the ground of adultery or cruelty, Section 23(1)(b) of the Hindu Marriage Act provides that the court shall decree the relief if it is satisfied that where the grounds of the petition is the ground specified in Clause (i) of Sub-section (1) of Section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty. That means the petitioner would not be entitled to relief if he or she has condoned the acts of the other party. Section 23 (2) of the Hindu Marriage Act provides that before proceeding to grantany relief under the Act, it shall be the duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case to make every endeavor to bring out a reconciliation between the parties. The proviso therein provides that nothing in the said Sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clauses (ii), (iii), (iv), (v), (vi) or (vii) of Sub-section (1) of Section 13. Section 12 of the Hindu Marriage Act provides for annulling voidable marriages enumerated therein. Clause (c) of Sub-section (1) deals with cases where consent was obtained by force or fraud. Sub-section (2) of Section 12 provides that no petition under Clause (c) shall be entertained if the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered. Clause (d) of Sub-section (1) of Section 12 deals with petition for annulling marriage on the ground that the respondent was at the time of the marriage pregnant by some person other than the petitioner. Sub-section (2) of Section 12 states that no petition for annulling marriage under Clause (d) of Sub-section (1) shall be entertained unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged and the marital intercourse with the consent of the petitioner has not taken place since discovery by the petitioner of the existence of the said ground. The above provisions in the Hindu Marriage Act would indicate that a petition for divorce on the ground that the respondent therein has ceased to be a Hindu by conversion to another religion cannot be defeated even if the petitioner spouse had consented to the conversion or that he or she lived with the converted spouse after such conversion or that he or she was aware of such conversion. While Section 12 of the Hindu Marriage Act stipulates time limit of one year for filing petition for annulment of marriage under Clauses (c) and (d) of Sub-section (1), Section 13 does not prescribe any such time limit within which petition for divorce should be filed in the case of conversion. This also is an indication that conversion is an act which clothes with the other spouse an indefeasible right to get divorce.
7. Section 18(2)(f) of the Hindu Adoptions and Maintenance Act, 1956 provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if the husband has ceased to be a Hindu by conversion to another religion. In Section 18(2)(f) also, there is no qualification on this right of the wife that if the conversion is with her consent, she is not entitled to live separately and claim maintenance from her husband.
8. The principles of Hindu Law do not prohibit a Hindu marrying a non Hindu. Hindu Law also does not prohibit Continuance of marital relationship even if one of the spouses ceases to be a Hindu by conversion to another, religion, so long as the non converting spouse does not initiate proceeding under the Hindu Marriage Act for divorce.
9. Conversion of a Hindu spouse to another religion has certain civil consequences. Sections 26 and 27 of the Hindu Succession Act deal with the same. Section 26 provides that where, before or after the commencement of the Hindu Succession Act, 1956, a Hindu has ceased or ceases to be a Hindu by conversion to another religion, children born to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens. Section 28 states that if any person is disqualified from inheriting any property under the Hindu Succession Act, it shall devolve as if such person had died before the intestate. In the absence of a custom to the contrary, succession to the estate of a convert to Mahomedanism is governed by the Mahomedan Law. According to Mahomedan Law, a Hindu cannot succeed to the estate of a Mahomedan. Therefore if a Hindu, who has a Hindu wife and children, embraces Mahomedanism, and marries a Mahomedan woman and has children by her, his property will pass on his death to his Mahomedan wife and children, and not to his Hindu wife or children. (See paragraph 21 of the Principles of Mahomedan Law: Mulla) These reasons would have weighed with the law makers, while dealing with divorce on the ground of conversion, in not making any provision similar to the one contained in Section 23 of the Hindu Marriage Act disentitling the spouse to maintain petition for divorce if there is consent or condonation.
10. For the aforesaid reasons, we are of the view that the Family Court was justified in allowing the petition for divorce under Section 13(1)(ii) of the Hindu Marriage Act. The contention that the appellant has deserted the respondent is also proved in the case. No interference is called for in respect of that finding as well.
The Matrimonial Appeal is without any merit and it is accordingly dismissed, but without any order as to costs.