The upon the Hindu Law of survivorship

The Privy Council held: —

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(1) The effect of conversion of a Hindu to Christianity is to sever his connection with the Hindu family.

(2) Such a person may renounce the Hindu Law but is not bound to do so. He may elect “to abide by the old law, notwithstanding that he has renounced the old religion”

(3) The course of conduct of the convert after his conversion would show by what law he had elected to be governed.

Under the third principle it was found that M. Abraham had married a Christian woman who was born to an English father and a Portuguese mother, that he adopted English dress and manner. It was clear, therefore, that he had elected against the Hindu Law and so the defendant’s contention based upon the Hindu Law of survivorship was rejected.

In 1865 the Indian Succession Act was passed and it regulated succession to the property of Christian. The question arose whether even after the passing of this Act; it was open to a Christian convert from Hinduism to elect to be governed by the Hindu Law of Succession.

It was held by the Privy Council in Kamuwati v. Digbijai Singh, 43 All. 525 (PC), that after the coming into force of the Act of 1865 the rule in Abraham’s case ceased to be applicable so far as law of the inheritance is concerned.

The plaintiff in that case who was the sister of the deceased owner, who was a Christian convert from Hinduism, was held to be entitled to succeed to 1/12th of his property under the Act of 1865 and the defendant’s (brother’s) claim based upon Hindu Law to succeed to the entire property was rejected.

But in spite of the Act of 1865, a Hindu convert to Christianity could elect to be governed by the rule of survivorship in a joint family: Francis Ghosal v. Grabri Ghosal, 31 Bom. 251 (PC). So the rule of electing to be governed by Hindu Law was applicable to a limited extent to Christian converts even after 1865.

In the case of conversion to Mahomedanism also the old rule was that by custom the convert had an option to be governed by the old Hindu Law. Thus Khojas and Cutchi Memons of Bombay State were governed in matters of succession by Hindu Law though they had been converted to Islam. The Shariat Act, 1937, has put an end to this. Under that Act converts to Islam are governed by Mahomedan Law only and not by the law to which they were subject prior to the conversion.

(B) Effect of Conversion on Rights of Inheritance in Family of Birth:

Under the Hindu Law a convert from Hinduism could not inherit to the Hindu relations. Similarly under the Mahomedan Law a convert from Islam to some other religion is excluded from inheritance. This rule has been abrogated by the Caste Disabilities Removal Act, XXI of 1850. This Act is also called the Freedom of Religion Act. It has abolished the customary law which entails forfeiture of rights inheritance consequent upon conversion or deprivation of caste.

(C) Effect of Conversion on Marital Rights:

Conversion of one of the parties to a marriage has certain effect under the law applicable prior to conversion. If a Mahomedan husband renounces Islam and embraces another religion, the marriage is immediately treated as dissolved: If a Mahomedan wife embraces another religion, the same consequence followed under the Mahomedan Law but the law has been modified by the Dissolution of Muslim Marriage Act, 1939. Under that Act the wife can on her conversion seek a divorce on any of the grounds mentioned in that Act.

Under the Hindu Marriage Act, 1955, conversion of either party is per se a ground for seeking divorce to the other party. Thus if the wife renounces Hinduism the husband can seek a divorce and vice versa [Sec. 13 clauses (1) sub-clause (ii)].

In Vilayat v. Sunila, AIR 1983 Delhi 351, the question has arisen whether a Hindu husband, who has embraced Islam subsequent to the marriage, can file a petition for divorce under the Hindu Marriage Act. It was held by Leila Seth. J., that he could do so for under s. 13 “at the time of presentation of the petition, the parties need not be Hindus”. In this view the personal law according to which the marriage took place will govern the rights of the parties as to the dissolution of the marriage.

Suppose both the parties to the marriage embrace Islam. The view of Leila Seth. J., would still subject the parties to the remedies available under the Hindu Law in regard to the dissolution of the marriage. But such a view is opposed to the rule laid down in Khambatta v. Khambatta, 1934 (36) Bom. LR 1021, where in such a situation divorce by Talak under the Mahomedan Law was upheld.

Thus the view of Leila Seth, cannot be pressed to its logical conclusion. It should be restricted to the facts of that case. If one of the parties to a Hindu marriage becomes a convert to another religion, he is not according to this view, disabled from filing a petition under s. 13 of the Hindu Marriage Act, 1955.

(D) Effect of Conversion on Right to Main­tenance:

Under the Hindu Law conversion from Hinduism operates as a forfeiture of the right of the convert to claim maintenance (see s. 24 the Hindu Adoptions and Maintenance Act, 1956). When the husband renounces Hinduism, his Hindu wife becomes entitled to claim a right to separate residence and maintenance from him Hindu Adoption and Maintenance Act [s. 18 (2) (f)].

Conversion from Islam affects a forfeiture of the pre-existing maintenance rights. When the husband renounces Islam, the marriage is at an end and so maintenance can be claimed by the wife during the period of iddat.

(E) Effect of Conversion on Right to Guar­dianship:

The paramount consideration in regard to guardianship is the welfare of the minor. So when the parent having guardianship changes his or her religion, it is a factor to be taken into account in considering the fitness of the parent to continue as guardian. This was decided by the Privy Council in Helen Kinner v. Sophia, 14 ÌIA 309.