SURESH BABU VS LEELA 2006 (3) KLT 891

In this case, there is an appeal by the husband to the High Court of Kerala to avert the order of
the Family Court on the petition of the wife to dissolve the marriage under section 13(1)(ii) of
the Hindu Marriage Act, 1955 as he claims to have converted to Islam with the consent of the
wife. Moreover, he is also married to another woman (Fathima).

The respondent then files a petition to dissolve the marriage under sections 13(1)(ia), (ib) and
(ii). To which the appellant outright denied the allegations of cruelty and desertion but agreed
that he has converted to Islam and is living with his wife, Fathima now. He further argued that
he married Fathima as he converted with the consent of the respondent and the respondent
did not keep with the promise of staying with him after the conversion.

The court allowed the petition only on the grounds of desertion and that the appellant ceased
to be a Hindu by converting to Islam. To which the Hon’ble Bench of Justice Kurian Joseph and
Justice K Sankaran said:-

Conversion to Islam does not dissolve a Hindu marriage per se, but only gives the other spouse
a right to file a petition for divorce under section 13(1)(ii). Conversion did not operate this way
even in the pristine Hindu Law. The spouse that ceases to be a Hindu does not acquire any
rights under the Hindu Marriage Act but rather exposes himself/herself to a claim for divorce by
the other spouse. The right of the Hindu spouse remains indefeasible. Nor does the section say
that the conversion has to be with or without the consent of the other spouse. One cannot
interpret what isn’t intended. And even if the court accepts the appeal of it being by the
consent of the other spouse, the appellant’s marriage with Fathima is still to be considered
bigamous.

The Hon’ble judges further cite the famous Sara Mudgal case1 where the question of a Hindu
man by conversion to Islam contracting a second marriage is to be tried under section 494 2 was
answered. It was held in this case that a marriage celebrated under one personal law can’t be
considered dissolved on conversion of one spouse while the other doesn’t convert. If the
converted party dissolves or violates the other personal la through the provisions of his/her
personal laws, the rights of the non-converting party are destroyed.

The Hon’ble judges further interpret the given case law to mean that the a Hindu marriage can
only be dissolved under the provisions of the Hindu Marriage Act and the second marriage
through conversion to Islam will not in itself dissolve the prior Hindu marriage. In fact, the
1
Sarla Mudgal & Ors. vs Union of India & Ors. (1995) AIR 1531
2
Section 494, Indian Penal Code of 1860 – ‘Marrying again during the lifetime of husband or wife’
second marriage will be held to be in violation of the Hindu Marriage Act and hence be declared
void and also an offence under section 494 of IPC. Any act against the mandatory provision is
anyhow void per se.

It is also mentioned that unlike the other grounds for divorce like cruelty or desetion
mentioned in the HMA, this ground for divorce does not possess any time limit in within which
the petition for divorce is to be filed and nor is the condoning or consenting of the activity of
the spouse a ground for dismissal of this ground for divorce.

The only difference the consent makes is in the provisions of maintenance as prescribed in the
Hindu Adoption and Maintenance Act3. The act states that the wife is entitled to live separately
without losing her right to maintenance by the husband if he ceases to be a Hindu by
conversion to another religion unless the conversion was by her consent. Consent here takes
away the right of maintenance the wife possessed.

The Hon’ble court also commented on the various civil effects of this kind of conversion as per
the Hindu Succession Act and the Mohamedan Law.

Hence, on not finding any provision against the family court’s decision and due consideration of
facts and circumstances abiding by the provisions of section 23 of the HMA, the court the
petition for divorce under section 13(1)(ii) of HMA. The Hon’ble court was also satisfied that the
appellant had deserted the respondent. Therefore, the appeal showed no credit to the Hon’ble
Bench and the same was dismissed without any order as to costs.

3
Section 18(2)(f), Hindu Adoption and Maintenance Act of 1956