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(Guest)

How to take divorce from wife after conversion ?

As per HMA, a spouse can ask for divorce on the basis on religion conversion.

But my wife is not asking for divorce after religion conversion.

Now my question is if my wife also convert can I do second marriage as per my new religion.



Learning

 17 Replies

Adv Archana Deshmukh (Practicing Advocate)     08 July 2012

I think you have converted into Islam only for getting rid of your present wife and remarriage.... Anyway, in my opinion if your wife also accepts Islam then, there should'nt be any hurdle for you taking up a second wife becoz your present wife will also be bound by muslim law and won't be able to prevent your remarriage.

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(Guest)

And after she got convert I can give her triple talaq .

Khaleel Ahmed (Legal Advisor)     08 July 2012

As per your stated facts, you have converted to Islam. In view of your conversion there is no wed lock between you and your wife, and she is no more wife. If she coverted to Islam, you both have to get fresh nikah as per shariath law. As soon as you converted to Islam , you have all rights and obligations laid by Islam. You can marry four women at a time, if you want to marry fifth women , you have to pronounce talak to any one of your wife. You can pronounce triple talaq to any wife as per shariath law without any reason.

Khaleel Ahmed (Legal Advisor)     08 July 2012

 

 

As marriages go, this was made in heaven. In 2010, Haryana's deputy chief minister Chandramohan, eldest son of Bhajan Lal, long standing former state chief minister, one fine day decided to marry Anuradha Bali.

So profoundly were the couple in love that Chandramohan decided not just to give up his powerful post for the sake of his beloved, but even changed his religion. In the line of great Indian romantics, when love triumphs over the mundane, Chandramohan became Chand and Anuradha Bali became Fiza. Caste, religion and even a high political status in life be dammed. But just when the dust was settling down on a marriage which made headlines like few marriages have, the two called it quits.


Adv Archana Deshmukh (Practicing Advocate)     09 July 2012

Originally posted by : Khaleel Ahmed

As per your stated facts, you have converted to Islam. In view of your conversion there is no wed lock between you and your wife, and she is no more wife. If she coverted to Islam, you both have to get fresh nikah as per shariath law. As soon as you converted to Islam , you have all rights and obligations laid by Islam. You can marry four women at a time, if you want to marry fifth women , you have to pronounce talak to any one of your wife. You can pronounce triple talaq to any wife as per shariath law without any reason.

 Sir but the Hon. Supreme court have taken a contrary view in Sarla Mudgal's case...https://www.indiankanoon.org/doc/733037/

 

SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS.   Vs.UNION OF INDIA & ORS.

DATE OF JUDGMENT10/05/1995

BENCH:KULDIP SINGH (J)
BENCH:KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION: 1995 AIR 1531 1995 SCC (3) 635 JT 1995 (4) 331 1995 SCALE (3)286

 

In that case the the question before the hon. SC was, whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)? And the Hon. Lordships while directing the Govt to work towards securing a uniform civil code in India  have held that-  the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC.

Adv Archana Deshmukh (Practicing Advocate)     09 July 2012

 
     

@  Khaleel Ahmed sir

 

If only the husband converts into islam and wife does not convert then, the husband cannot remarry without first validly dissolving the marriage (as  per the SC decision) , but what if the wife also converts to islam??? then, can the husband validly remarry without divorcing her? bcoz she will be bound by muslim law permitting 4 wives then or still it would attract S. 494 IPC?

 

Also if both of them have converted into islam and husband wants divorce then, how he/she can obtain divorce?  I think he cannot divorce her by triple talak bcoz the marriage was solomnized under hindu law and not as per muslim law i.e nikah. But how can they file a petition u/HMA when both the parties are muslims??? 

 

Plz clear my doubts.

Khaleel Ahmed (Legal Advisor)     09 July 2012

Dear Archana,

If both converts to Islam, it is mandatory for them to perform fresh Nikah as per Islam. The past wed lock autometically dissolved as soon as they embraced Islam with in the scope of shariath law.There is no need to file a divorce petition Under Hindu marriage act or special marriage act.Soon after a valid fresh nikah the husband can pronounce triple talaq at any time without reason.Sureme court's findings are very much natural. The husband intentionally converted to Islam to deceive her wife . His conversion was not voluntarily , he wanted to take shelter under  the umbrellah  of Islamic Law.

Adv Archana Deshmukh (Practicing Advocate)     10 July 2012

 @ Khaleel Ahmed sir,

 

No sir I still did not get your reply in view of the SC decision as you say that if both gets converted then, marriage is automatically dissolved while SC says, it is not dissolved and S. 494 IPC is attracted. What you say is the traditional muslim law, but how to interpret it in the light of SC judgement?  bcoz it is binding on muslims also. If husband only converts and wife does not, S. 494 is attracted. So what happens when both gets converted, is S.494 still attracted? and how to dissolve the earlier marriage when both gets converted, still remains unanswered. Plz clarify.


(Guest)

Thanks experts for reply.

Just to check the opinion of experts I asked this query.

I don't want to convert if I convert who will do 'Pitri-Paksha'  (Annual Ancestor-Worship). Better is fight the case if no result bring the same wife with some instrutions given by elders.

Khaleel Ahmed (Legal Advisor)     10 July 2012

Dear Archana,

If both converted to Islam, the Supreme Court Judgement may not applicable to the parties.Supreme Courts finding was when Husband only converted without dissolution of the marriage then it applicable. Petition may be filed Under HMA for divorce.

desertedhusband (na)     10 July 2012

Adv Archana and Mr. Khaleed, 

Husband converts to Islam and then remarry. First wife is still hindu. What are the legal options available to first wife to take against her husband? Specially, if her intention is to make his life miserable only and not giving him divorce.

I am sure there must numerous consequencies of this situation. Otherwise, India would have become muslim country by now. :)

Sorry Mr. Rajendra I jumped into thread started by you.

Thanks,

A deserted husband

Khaleel Ahmed (Legal Advisor)     10 July 2012

All legal options available to the wife as Archana advocate has been posted the Hon'ble  Supreme Court observations.India is neither Hindu courtry nor Muslim country, need not worry about petty things.

desertedhusband (na)     10 July 2012

thanks for the reply, Mr. Khaleel. 

Tajobsindia (Senior Partner )     11 July 2012

@ Ld. Archana,

 


I'm putting myself in the interesting discussion loop, maybe even I didnot understand that well what ld. Ahmed cleverly said to the forum in his minimum wordings!

 

 

See, what I believed is that the decision of the re.: Sarla Mudgal’s case has brought uniformity in the law concerning conversion and remarriage among various personal laws in reference to a Hindu husband conversion. The ref. case has brilliantly filled the vacuum that was culpably exploited by persons of weak character and vice intentions in the past. It has also set a precedent for the future “culpable and immoral conversion” by providing a punitive sting by this judgment particularly for Hindu husbands and or Hindu wife per se. It has however, been criticised also on the ground that court “considered” the accused person as “both Hindu and Muslim” at the same time and thus “blowed hot and cold” at the same time. This argument is not only faulty but also misconceived. The argument further undermines the bold step taken by the Apex court to resolve the “inter-personal conflict of law”, which is a by product of lack of a “Uniform Civil Code” that we in India face when interpreting and finding corallites between various personal Laws that govern us in marriage and or its dissolution purposes.

 

 

It would be appropriate to mention at this stage that if a personal law is in conflict with a statutory law then the former must give way to the latter and I am sure both ld. friends will atleast agree on this point put on discussion board?. That is why S. 4 of HMA, 1955, S. 4 of HAS, 1956 and S. 5 of HMGA, 1956 would override the "traditional Hindu law" in case of conflict between these statutes and the traditional Hindu law and I'm sure both of you would agree on this too.

 

 

Under Muslim law apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But S. 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. I'm not sure what would be reaction of Ld. Ahmed to this findings now!

 

 

This is a very clear and emphatic indication that the Indian legislature has departed from the rigor of the ancient Muslim law which ld. Ahmed cleverly clarify to be as per Shariath law for generic easy understanding. Similarly as per the Explanation to the Second Proviso to S. 125 of Cr.P.C if a Muslim husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground "for his wife's refusal to live with him" - right ld. Ahmed?.


Agreed that it is too well known that a Mohammedan may have as many as 4 wives at the same time but not more and I fully agree here to ld. Ahmed views that if he now wants a 5th. one then he has to divorce atleast 1 from his previous count. Coming back to the explanation confers upon the wife the right to refuse to live with her husband as said above for The Code if he contracts another marriage leave alone 3 or 4 other marriages it shows unmistakably that S. 125 CrPC overrides the personal law if there is any conflict between the two. Now what both of you think is where is the catch in The Code!


Sometime back one of my friend wrote an commentary on why S. 125 CrPC is not for Hindus when almost each / every religious entity in India is now represented more or less by their own personal laws - one needs to refer to that discussion for further explanation on The Code not applicable as per him for Hindus and I do agree to his views then mentioned!.

 

 

A Hindu husband has a “Constitutional right to convert to any another religion” but “he should not remarry again without dissolving his first marriage” as per the “original law of marriage” that is where I give now support to ld. Archana and her arguments skills and if we are talking here of husband point of view then this statement even is valid for a Hindu wife - right or wrong?. If he adopts culpable conversion then he would be liable for bigamy under S. 494 of IPC which is what gets clarified by ref. SC judgment and ld. Archana is very much right there and thus she asks a question on what happens if wife also does so?.

 

 

Now, it may be pointed out that S. 17 of the HMA corresponds to S. 43 and 44 of the SMA. It also corresponds to S. 4 and 5 of Parsi Marriages and Divorce Act, S. 61 of the Indian Divorce Act and S. 12 of the Matrimonial Causes Act, which is an English Act though and has found much reference among septuagenarian lordships at Hon’ble SC (oops). These statutes can be very helpful in giving S. 17 of the HMA a meaningful interpretation. It must be noted that to give a “purposive and updating interpretation” recourse of these provisions can be taken.

 

Thus looking from any mediocre angle the decision of ref. Sarla Mudgal’s case cannot be termed as erroneous or irrational. It requires a positive acknowledgement from all the citizens of India and efforts should be directed towards bringing harmony, uniformity and fairness among various personal laws that we have.

 

 

May be ld. Ahmed may share his insight into Muslim laws in light of above discussion as to what ld. Archana said are probably in non - conformity to his wisdom? 


We are waiting ld. Ahmed to hear your views.
 

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