May 15, 2014
Vaishakha Krushna Paksha Pratipada, Kaliyug Varsha 5116
NEW DELHI: Interpreting a 75-year-old law, Delhi high court has held that a non-Muslim woman who embraces Islam after marriage but reconverts to her original faith can dissolve the union due to apostasy.
Granting divorce under the Dissolution of Muslim Marriages Act 1939 to Sultana (name changed), a division bench of Justice S Ravindra Bhat and Justice Najmi Waziri also clarified there is no requirement in such circumstances for a woman who leaves the pale of Islam to prove her act in a trial. The mere act of apostasy dissolves the marriage if she so desires.
“Were a woman married under Muslim personal law to apostatize, the marriage stands dissolved. In such circumstances, the woman is entitled to seek a decree of declaration that the marriage stands dissolved from the date of her apostatizing,” Justice Waziri explained.
The bench went into the circumstances under which the pre-Independence act was passed in 1939 to emphasize, if people come or are brought into Islam from a different religion, they should be permitted to go back for which there should be no bar.
The HC was hearing an appeal filed by the husband Asif (name changed) challenging the grant of divorce by a Saket family court to Sultana on her petition. Asif contested Sultana’s reconversion back to Hinduism and alleged she did it under pressure from her parents. Asif also cited Section 4 of the Dissolution of Muslim Marriages Act to contend that it prohibits dissolution of marriage only on the ground of apostasy.
On her part, the estranged wife argued that for her reconversion to Hinduism no evidence is required to be led, as her mere statement ‘ipso facto’ amounts to abjuration of Islam and its tenets. She also filed an affidavit admitting to her apostasy along with two fatwas from two mufti. The wife also informed the court she had withdrawn complaint filed under Domestic Violence Act and another petition seeking maintenance. Now that she had apostatized, neither the marriage nor any right to claim maintenance subsisted.
The HC agreed with the trial court verdict and ruled that Section 4 has not altered the rule of Muslim personal law that apostasy dissolves a marriage. “In the opinion of this court, all that Section 4 has done is to introduce an intervening mechanism, but to reach the same conclusion, i.e., that apostasy would not by itself dissolve the marriage and some further substantive act would be required to be done in this regard; the substantive act being the filing of a suit seeking declaration as to dissolution,” it observed. However, it rejected Asif’s argument that Sultana would have to prove her apostasy.