Personal laws are a collection of laws governing and controlling relationships resulting from certain factors linking two or more people. In addition, personal law regulates and governs subjects or areas of a private domain such as marriage, divorce, maintenance, inheritance, minority, and guardianship, etc. Unless there are few, scriptural laws that are divided and endorsed by religions are supported by most of the non-public laws in India. Through this article we look at how these rights get altered if an individual in India chooses to take up a new religion.
Religion is a question of faith or belief. The Indian Constitution acknowledges the importance of religion in the lives of the people of India, and hence provides for the right to freedom of religion in accordance with Articles 25 to 28. A secular model is envisaged by the Constitution of India and provides that every person has the right and freedom to choose and practice his or her religion. The Apex Court has held in a number of cases that secularism is the fundamental framework of the Constitution. Islam, Hinduism, Jainism, Buddhism, Sikhism and Christianity are predominantly practiced by people in India. There are religion-specific laws in India and Goa is the only state recognized as the Goa Civil Code to have a Uniform Civil Code. The Constitution encourages religious peace, which means that the people of India show respect and affection for the country's various religions.
Impact on Property when an individual converts to another religion
Hindu Succession Act The Hindu Succession Act regulates the Hindu Undivided Family (HUF) and, according to the statute, Hindus who may have converted to some other religion can still claim their ancestral land.
However, unless they are Hindus at the moment when succession opens, the descendants of a convert do not have the right over such ancestral property. A decision like this was upheld in Shabana Khan v. D.B. Ors and Sulochana. 2008, in which the High Court of Andhra Pradesh
held that disinheritance as a result of conversion to another religion is only applicable to children born after such conversion to the Hindu and would not extend to the convert.
In its recent judgment in Balchand Jairamdas Lalwant v. Nazneen Khalid Qureshi (Appeal from Order No. 1175 of 2014) of 6 March 2018, while addressing the question of whether a Hindu who has converted to Islam is excluded from receiving property from the parent who dies intestate, the Bombay High Court held that the religion of the individual at the time of birth has been determined while determining the inheritance.Facts:
The Respondent/Plaintiff sister filed a Notice of Motion (No. 956 of 2010) in Suit (No. 3480 of 2010) in the trial court for an order of injunction preventing the defendants, including the Appellant/Defendant brother, from creating third-party rights in respect of suit premises, i.e. residential flat in Matunga (West), Mumbai, as the property of her deceased father that was self-acquired. The Respondent/Plaintiff has five sisters and the brother of the Appellant/Defendant and asserted her share of the property in the action. In 1979, the Respondent/ Complainant married a Muslim and converted her faith to Islam. The Appellant/Defendant challenged the Notice of Motion on the basis that the Respondent/Plaintiff had lost her right to change her religion on the property of the suit. The trial court allowed a prima facie case to be considered by the Notice of Motion and the defendants were restrained from creating third party rights. An appeal against the order of the trial court enabling the Notice of Motion was subsequently lodged.Judgement:
The provisions of Sections 2 and 26 of the Succession Act were addressed by the High Court and it stated that the two provisions had to be read together and not in isolation. On reading the two clauses, the Court was of the opinion that the operation of the Succession Act would not preclude the convert himself or herself. In its wisdom, the legislature did not have a conversion under the disqualification caption.
Although relying on the decision of 26 September 2017 in Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan v. Patel Shantaben Bhikhabhai & Ors.
, Special Civil Application No. 15825, the High Court held that Personal Law is applicable to a person who, for the purposes of marriage, guardianship, etc., is converted to Islam, Christianity or any other religion. However, to remove the anomaly, the religion of the individual at the time of birth must be taken into account when determining the inheritance.
The judgments in Shabana Khan v. D.B. were also relied on by the Court. Ors & Sulochana. 2007 755 DGLS(A.P.); E. Yeah. Ramesh & Anr. Oh, v. P. Yeah. Rajini & Ors. (2002)1 MLJ 216; In support of its opinion, Asoke Naidu v. Raymond S. Mul, AIR 1976 Cal 272. In our secular state, where every person is free to acknowledge and practice any religion as his or her conscious choice, the Court has further referred to the guaranteed right to religion as a fundamental right.
In its opinion, the Court accepted the fundamental right of a person to freedom of religion and established that the religion of a person at the time of birth must be taken into account in matters of inheritance. A convert is therefore not excluded from the application of the Succession Act to inherit the property of his or her father.
Muslim Personal Law (Shariat) Application Act, 1937
- The biological son also has the right over the property of his father according to the law and the Caste Disability Act will come into effect here.
- He would also be entitled to claim ownership over the property of his parent, even though the child was illegitimate or born out of wedlock.
- The 1937 Implementation Act of Muslim Personal Law (Shariat) refers to all those families where both spouses are Muslims. If the marriage takes place under the Special Marriages Act, the
- Indian Succession Act regulates the succession.
Indian Succession Act, 1925: The rules set out in the Indian Succession Act regulate Indian Christians and the only aspect that is relevant in this regard is that the deceased should have been a practicing Christian. It is well known in Christianity that the faith of the heirs is immaterial and the only material reality is that the deceased should have belonged on the date of death to the Christian religion. For an adopted child, the rights given to a biological child are not accepted.Thus, an individual who converts from Hinduism to another religion could not inherit from the Hindu relationship under Hindu law. His right to inheritance ends with conversion. Similarly, under Muslim rule, the inheritance of property is forbidden for a convert from Islam to any other faith. The mentioned rule was abrogated by the Abolition of Caste Disabilities Act, 1850. It is also possible to call this clause the Freedom of Religion Act. All disabilities relating to the conversion of faith have been excluded by the above provision. It is subject to other laws defined by the authorities concerned.
Effect of Conversion on Marital Rights:
- There are certain laws that apply when a party to a marriage converts to another faith. For instance, if a Muslim husband converts to any other faith, it is said that the present marriage is dissolved. After conversion to another faith, the abolition of the Muslim Marriage Act, 1939 altered the circumstance of a wife.
- The wife can now seek divorce under any of the conditions specified in the statue on her conversion. The change of faith in 1955 under the Hindu Marriage Act is a basis of divorce on both sides. In other words, the wife will pursue a divorce if a husband renounces Hinduism and vice versa under Sec. 13 sub-clauses (1) sub-clause (1) sub-clause (1) sub-clause (1) (ii).
- In the case of Vilayat v. Sunila ,1983 the question was whether a Hindu husband could pursue divorce under Hindu law after conversion to Islam, The Judges were of the view that the rights of the parties to divorce or dissolution were regulated by the personal law of the parties under which marriage took place.
- In the situation where both sides are converting to Islam, whether they can demand divorce under Hindu law is the issue that arose then. In Khambaatta v. Khambatta, it was held that divorce under Muslim by talaq(divorce) would be more suitable in such a case as both the husband and wife have converted to Islam.
Effect of conversion on right to claim Maintenance:
- Hindus: The conversion from Hinduism in 1956, under Section 24 of the Hindu Adoptions and Maintenance Act, limits the right of conversion to claim maintenance. But if a husband renounces Hinduism, according to Section 18 (2) (f) of the Hindu Adoption and Maintenance Act, 1956, his Hindu wife becomes entitled to separate residence and maintenance from him.
- Muslims: As per Muslim law, if a person converts to another religion, the forfeiture of pre-existing maintenance rights is affected. The marriage ends when a husband renounces Islam, and during that time the wife will demand maintenance from the husband.
#tags: Conversion, Property, Maintenance, Ancestral Property
March 08, 2021