Law Relating to Conversion In Islam: Towards Harmony of Conflicting Matrimonial Laws in India

About the Book

The conversion to Islam is widely misunderstood and misinterpreted. The book analyses the concept of conversion under Islam in the light of Quranic Provisions and examines the different problems generated by such conversions in India. On account of the existence of various personal laws in Indian Legal System, the Conversion to. Islam gives birth to manifold problems and the badly affected area is marriage. The book analyses the various rules governing conversion to. Islam and their relationship with Hindu, Christian, Parsi and Jewish personal laws. To achieve a complete harmony between conflicting matrimonial laws, some measures have been suggested which may prove useful in resolving these controversies. The book will be of immense value net only to the students of law but to the lawyers and researchers alike.

About the Author

Born in Srinagar in 1968. The author had her graduation in Law from the University of Kashmir, She has been the recipient of geld medal her standing first in the LL.B examination. The author has completed her Master degree in Family Laws from the University of Kashmir and has been associated as Teaching Assistant in the Faculty of Law, Kashmir University. Presently the author is pursuing research her Ph. D in Law.

Preface

The fundamental object common to all religions is to lavish upon the mankind the bounteous benedictions which is executed by fastening a spiritual pact between the Creator and an individual. Every human being is bestowed with enlightened soul and natural power of choice. This special dignity persuades religious affiliation and also strengthens spiritual concerns. Religion is not confined to what is possibly visible. It has a hidden meaning too and unless one knows that, one’s understanding of religion remains incomplete. Every eager soul tries to search it and this marks a new beginning in one’s life. In this process of search various religions are analysed and if one finds no satisfaction in one’s present religion or in any other religion one may say good bye to all. But if any religion satisfies one’s spiritual craving one may without any hesitation embrace it. This reflects a true belief in a religious philosophy. The scope of conversion originates from this very nature of religion.

Religious Conversions also take place by way of propagation. The missionary religions viz., Christianity, Islam and Buddhism lay emphasis on spreading the philosophy of religion by propagation. Conversions to Islam are widely misunderstood and misinterpreted. Islam as a religion commenced by inviting people to accept it on the basis of its message of truth. Every Muslim has an obligation to disseminate the message of Islam and invite non-believers towards it. At the same time Islam is against coercion and respects an individual judgement. It stands for a real change in character which comes by exercising a freewill according to the dictates of one’s own conscience.

Religious conversions in India have been taking place from the earlier times and continue till date. Because of the adoption of a secular philosophy the state neither favours nor opposes any particular religion. The constitution even guarantees personal liberty, freedom of religion, and speech and expression. In exercising these freedoms as fundamental rights a person is free to renounce hi~ religion and adopt any other religion of his choice. This change in religion results in certain legal complications. It affects the various rights and obligations of the convert. The marital-status of the convert along with the rights attached thereto is highly affected by the act of conversion.

There is no matrimonial law of general application and each community is governed by its respective personal law.

The marital rights and obligations under these personal laws greatly vary. Whenever a non-Muslim spouse embraces Islam, the two personal laws viz., the Muslim personal law and non-Muslim personal law comes in direct conflict. The fundamental question which has often arisen before the courts has been whether the marital status will be determined by pre-conversion or post-conversion personal law? The converted spouse on conversion asserts that as a Muslim the Muslim personal law should be applied to him or her.

According to Muslim law, if one of the spouses embraces Islam the existing marriage can not subsist beyond a period of three months or three menstrual courses of wife in case the other spouse refuses to embrace islam. On the other hand, the non-Muslim law says that conversion would entitle a non- converted spouse to file a petition for divorce. On account of the disparity in these laws, the courts find it difficult to maintain a balance between the conflicting rules in two personal laws and, therefore, have not been able to provide satisfactory solutions. The issue of conversions and the controversies generated, thereunder, have assumed added significance because of the gurantee of religious freedom as one of the basic rights under the constitution. The present study is an attempt to analyse the concept of conversions under Islam in the light of its spirit and to examine the different problems generated by such conversions in India. The study is an endeavour to analyse the process of conversion in Islam. The rights of a Muslim to propagate Islam and the limitations on propagation under the constitution and the Quaranic guidance relating to the propagation have been analysed objectively. The conversion laws passed by various states and the decisions of courts in this regard have been discussed at length.

The study also aims at covering the various rules governing conversion to Islam and their relationship with the rules under Hindu, Christian, Parsi and Jewish personal laws. An attempt has been made to analyse the existing provisions in these personal laws and to point out the inadequacies which often generate conflicts in different personal laws. To achieve a complete harmony between conflicting laws, some measures have been suggested which may prove useful in resolving those controversies.

I am highly thankful to Prof. A.S. Bhat, Dean Academics Kashmir University, formerly Head and Dean Faculty of Law, Kashmir University for his valuable suggestions and support.

It gives me great pleasure to express my heartfelt thanks to my parents for their encouragement. I am extremely beholden to my husband Dr. Noor M. Bilal for his guidance and support which enabled me to undertake and complete this book. My special thanks go to Mr. Aahid Husayn, Mrs. Razia Aabid and Mr. Tariq Ahmad for their unwavering support and help. I must thank my publishers M/s Kitab Bhavan especially Mr. Nusrat Ali Nasri who very willingly came forward to publish the book and presented the book in the present form in the shortest possible time.

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