Who is a Muslim: birth, conversion and apostasy

1. Muslim by birth

• A child both of whose parents are Muslims is a Muslim.
• Where only one parent is a Muslim, the child is generally treated as a Muslim if brought up as one; the classical view is that a child follows the religion of the father, and a child of a Muslim father is a Muslim.
• A person born a Muslim remains one until he renounces Islam. Failure to observe its rituals, or holding unorthodox views, does not make him a non-Muslim.

2. Muslim by conversion

A non-Muslim becomes a Muslim either by a formal ceremony of conversion or by professing Islam, that is, declaring that there is no god but God and that Muhammad is His Prophet. No particular ceremony is essential, and the courts as a rule do not inquire into the motive or sincerity of the convert. A convert is governed by Muslim law from the date of conversion; under the Caste Disabilities Removal Act, 1850 he does not lose any right of inheritance he had before.

The exception is where the conversion is not bona fide and is used as a device to defeat the law. In Skinner v. Orde (Privy Council, 1871), the Board doubted that a conversion made to legalise a union with a married woman could have that effect. That line of reasoning is the foundation of Sarla Mudgal below.

3. Apostasy and its effect on marriage

Apostasy (ridda) is renunciation of Islam, by conversion to another religion or by open rejection of Islam.

• Apostasy of the husband. Under classical Hanafi law the husband's apostasy dissolves the marriage at once, without a decree. The 1939 Act does not deal with it, so the classical rule continues. The wife is entitled to her dower.
• Apostasy of the wife: the old rule. Classical Hanafi law also treated the wife's apostasy as dissolving the marriage. Indian courts found that Muslim wives, who had no other way out of a bad marriage, were renouncing Islam to obtain release.
• Section 4, Dissolution of Muslim Marriages Act, 1939. 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. After renunciation she may still obtain a decree on any of the grounds in section 2. The proviso makes an exception: the section does not apply to a woman converted to Islam from some other faith who re-embraces her former faith. Her marriage is dissolved by her return.
• Section 5 preserves the wife's rights to dower on dissolution under the Act.

4. Conversion of a non-Muslim spouse to Islam

Where a Hindu or Christian spouse converts to Islam, the convert's marriage is governed by the personal law under which it was solemnised, and conversion does not dissolve it. The other spouse is given a remedy: under section 13(1)(ii) of the Hindu Marriage Act, 1955 a spouse may seek divorce if the other has ceased to be a Hindu by conversion. The convert cannot rely on his own conversion to obtain divorce.

5. Conversion to contract a second marriage

In Sarla Mudgal v. Union of India, 1995 INSC 363, (1995) 3 SCC 635, Hindu husbands, already married under Hindu law, converted to Islam and married again. The Supreme Court held:

• a Hindu marriage can be dissolved only on a ground available under the Hindu Marriage Act; conversion of the husband does not dissolve it;
• the second marriage, contracted during the subsistence of the first, is void because section 17 of the Hindu Marriage Act applies to the first marriage;
• the husband is guilty of bigamy under section 494 of the Indian Penal Code (now section 82 of the Bharatiya Nyaya Sanhita, 2023), since the second marriage is void “by reason of its taking place during the life” of the first wife.

Kuldip Singh J. added a request to the Government to consider a uniform civil code under Article 44.

In Lily Thomas v. Union of India, 2000 INSC 293, (2000) 6 SCC 224, the Court rejected review and writ petitions against Sarla Mudgal. It held that the decision did not violate Articles 20, 21 or 25, that it laid down no new offence but only interpreted section 494, and that a person who embraces Islam only to take a second wife, without a genuine change of faith, is using religion as a cloak. The judgment also explained that the ruling does not compel anyone to follow a uniform civil code.

6. Problem

Ramesh, a Hindu, married Sunita under Hindu rites. He converts to Islam and marries Rubina by nikah. Sunita wants to know her position.

Issue. Whether Ramesh's conversion dissolves his first marriage, whether his nikah with Rubina is valid, and what remedies Sunita has.

Law. Conversion does not dissolve a Hindu marriage; the second marriage is void and the husband punishable for bigamy: Sarla Mudgal, Lily Thomas. Section 13(1)(ii) of the Hindu Marriage Act gives the non-converting spouse a ground for divorce.

Application. The first marriage subsists. The nikah took place during Sunita's lifetime while she was his lawful wife, so it is void under section 17 of the Hindu Marriage Act, and Ramesh's conversion, if it was only a device to marry again, gives him no protection.

Conclusion. Sunita may prosecute Ramesh under section 82 BNS, seek divorce under section 13(1)(ii) if she wishes, and claim maintenance under section 144 BNSS, where the husband's marriage to another woman is a just ground for her to live separately.

How this is examined

Usually as a short note: “Who is a Muslim?”, “Effect of apostasy on marriage” or “Conversion and its effect.” State the profession test, conversion and the bona fide qualification, then section 4 of the 1939 Act with its proviso. The conversion problem above is the stock problem; answer it with Sarla Mudgal and Lily Thomas and give the BNS section, not only the IPC one.