Therefore, the courts have laid down objective and ascertainable grounds for establishing whether a person is Muslim or not. According to courts, a person may be Muslim either by birth or through conversion.
(1) Muslim by Birth:
A person who’s both the parents was Muslims at the time of his birth is regarded to be a Muslim by birth. According to Hedaya, even if one of the parents of a person was a Muslim, he may be treated as Muslim. But in India, the courts have held that where only one of the parents of a child is Muslim the child is to be regarded as Muslim only when it is proved that he has been brought up as a Muslim.
A child whose mother was a Muslim but father was a Hindu, was brought up as a Hindu. It was held by the court that such a child is Hindu although his mother was a Muslim. A person who is Muslim by birth continues to be a Muslim unless on attaining majority, he renounces Islam i.e. changes his religion of birth.
Changing religion of birth and adopting another religion of one’s own choice is called conversion. But the Muslim by birth must renounce Islam himself by a public declaration. No one has right to condemn a person with Muslim name as non-Muslim until and unless he or she renounces Islam as religion by his or her own pronouncement publicly.
(2) Muslim by Conversion:
Any person of any religion, who is of sound mind and has attained the age of majority, can become the follower of Islam after renouncing his original religion. By adopting Islam a non-Muslim becomes a Muslim and the rules of Muslim personal law begin to apply on him immediately.
A non-Muslim who adopts Islam after giving up his original religion is generally known as a ‘converted Muslim’. Conversion to Islam may take place in two ways: (i) A person may publicly declare that he has renounced his original religion and is now professing Islam and believes that there is one God (Allah) and that Muhammad is His messenger, (ii) The second method of conversion is through ceremonies prescribed in the religion of Islam itself.
The ceremonies are, however, simple. The non-Muslim would go to a mosque where the Imam may ask him to read a Kalema and give him a Muslim name, whereupon that person becomes a Muslim. In both the methods of conversion we find that the essential requirement is that the non- Muslim now professes or believes in the principles of Islam.
But, as there is no objective test for one’s sincerity in a faith, it is difficult to ascertain the genuineness of one’s belief in Islam. It is just possible that a person converts to Islam not because he actually has faith in it but because of any other reason e.g. he wants certain benefits under Muslim law.
For example, any non-Muslim may convert to Islam not because of his actual faith but only to get benefit of marrying with four wives which is not allowed under his personal law and is allowed under Muslim law. Therefore, in case where the conversion is only to legalise an act under Muslim law which is illegal under any other law, the converted person cannot be regarded as Muslim even if he says that he is professing Islam.
In Skinner v. Order, the facts were that a Christian widow used to live and cohabit with a Christian male who had already a wife living. Cohabitation of a person with any woman other than his wife is illegal. To legalise their cohabitation they converted to Islam and became Muslims because under Muslim law a person can have four Wives at a time. It was held by the Privy Council that such a conversion was not bona fide because its purpose was to commit fraud upon Muslim law.
In Sarla Mudgal v. Union of India, a Hindu-husband converted to Islam and thereafter contracted marriage with a Muslim girl without divorcing his first Hindu wife. The Supreme Court held that the conversion was mala fide and declared the second marriage void. The Supreme Court held further that such second marriage amounts to bigamy punishable under section 494 of the Indian Penal Code. Giving reasons, the Apex Court observed:
“Since it is not the object of Islam nor is the intention of the enlightened Muslim Community that Hindu husbands should be encouraged to become Muslims merely for purpose of evading their own personal laws by marrying again, the Courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam, the right to marry again without having his existing marriage dissolved in accordance with law.”
Similarly, in Lily Thomas v. Union of India, confirming its earlier views, the Supreme Court has held that conversion to Islam only for purposes of legalising second marriage is a mala fide conversion and is illegal. Briefly the facts of this case are as under: The marriage of Smt. Sushmita Ghosh and G. C. Ghosh was solemnised under Hindu law in 1984.
In the year 1992, husband G. C. Ghosh informed his wife Sushmita Ghosh that he has converted to Islam and that his name is now Mohd. Karim Ghazi. He also informed Sushmita Ghosh that he has married Smt. Vanita Gupta, a divorced woman having two children.
Giving these information’s, the husband G. C. Ghosh insisted his wife on several occasions to get a divorce by mutual agreement otherwise she (Sushmita Ghosh) would be compelled to live with his second wife (Smt. Vanita Gupta).
Relatives of both sides tried to persuade him not to do so, but in vain. Terribly perturbed over all this, Smt. Sushmita Ghosh approached a Woman Organization Klyani which came to her rescue and filed petition in the Supreme Court in 1989, on behalf of Smt. Sushmita Ghosh, The present petition was a review petition.
On these facts, the Supreme Court held that conversion of the husband G. C. Ghosh to Islam was illegal, and he cannot be regarded as Muslim so as to legalise his second marriage during the subsistence of the first.
The husband was held guilty of the offence of bigamy punishable under Section 494 of the Indian Penal Code read with Section 17 of the Hindu Marriage Act because mere conversion does not automatically dissolve his first marriage.
Prosecution under Section 494 in respect of the second marriage under Mohammedan law could have been avoided only where the first marriage was also under Mohammedan law and not if the first marriage was under any personal law in which there was prohibition on contracting a second marriage in the lifetime of the spouse. Explaining the law on the point Justice S. Saghir Ahmad observed:
“Religion, faith or devotion are not easily interchangeable. If a person feigns (pretends) to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted þ take advantage of his exploitation as religion is not a commodity to be exploited. Under Hindu law, marriage’ is a sacrament. Both have to be preserved.”
It is significant to note that the Apex Court painfully noticed the tendency of conversion to Islam not due to feelings of faith, but only for getting benefit which is not available in ones religion but was available in Islam.
The Supreme Court expressed its concern over such exploitation of personal laws and observed; “in the past several years it has become very common amongst Hindu males who cannot get divorce from their first wife, they convert to Muslim religion solely for purpose of marriage.
This practice is invariably adopted by those erring husbands who embraced Islam for the purpose of second marriage but again become reconvert so as to retain their rights in properties etc. and continue their service and all other business in their old name and religion.”
From what has been said in the preceding lines it is clear that in the case of a Muslim by birth it is legally presumed that he professes Islam whereas, for a converted Muslim it may be necessary to prove that his intention in adopting Islam was bona fide.
Once it is established that a person is a Muslim, it is immaterial whether he is a born Muslim or has become a Muslim through conversion. In so far as the application of Muslim law is concerned, there is no difference between a Muslim by birth and a converted Muslim.
A person who adopts Islam adopts also the application of the Muslim personal law on his family-matters but, before 1937, the converted Muslims were allowed to follow some of the customs of their original religion.
For example, the Khoja and the Cutchi Memon Muslims, who were originally Hindus but converted to Islam some four hundred years ago, continued to follow the Hindu customary law of inheritance. However, in 1937 the Shariat Act was enacted which abolishes all the customs (except those which related to agricultural lands or other matters not included in the Act) among Khoja and the Cutchi Memon Muslims.