MANU/KE/0300/2006

Equivalent Citation: ILR2006(4)Kerala66, 2006(3)KLJ156, 2006(3)KLT891, 2006(4)RC R(C ivil)921

IN THE HIGH COURT OF KERALA

Mat Appeal No. 118 of 2006
Decided On: 11.08.2006
Appellants: Suresh Babu
Vs.
Respondent: V.P. Leela
Hon'ble Judges/Coram:
Kurian Joseph & K.T. Sankaran, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: K.P. Mujeeb
For Respondents/Defendant: Thomas Antony, M.P. Prakash & S. Suraj
Case Note:
Hindu Marriage Act, 1955 - Sec. 12(2) & Sec. 13(i)(ii) - Conversion - A
petition for divorce on 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 - Cannot be put forward
as a valid defence.Held: 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). Sub
section (2) 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

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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 convened 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.
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. The respondent herein filed a
Petition under Section 13(1)(ia) and (ii) of the Hindu Marriage Act praying for the
dissolution of her marriage with the appellant. The marriage was solemnized 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.
2 . 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.
3. 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

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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).
4. 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 Mudhgal, President, Kalyani and others v. Union of India and others:
MANU/SC/0290/1995 : A.I.R. 1995 S.C. 1531, 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:
1 4 . 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 he 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."
5 . 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 239(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 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 grant any relief under the Act,

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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
endeavour 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)
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 tiling 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.
6. 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.
7. 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 proceedings under the Hindu Marriage Act for
divorce.
8. 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
Mohammedanism 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

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a Hindu wife and children, embraces Mohammedanism, 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. 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.
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