In an interesting ruling regarding Muslim Personal Law, the Delhi High Court ruled that apostasy of Islam by married Muslim woman does dissolve her marriage and said that Section 4 of Dissolution of Muslim Marriage Act, 1939 (“Act”) does not makes any change to this general law.
The Court observed that prior to the enactment of the Act courts in India have followed the view that apostasy ipso facto dissolved a marriage contracted under Muslim Personal Law and Section 4 of the Act did not change that position.
“Section 4 of the Act, specifies that the renunciation or conversion of a married Muslim woman does not by itself operate to dissolve the marriage. To this Court’s mind, the plain meaning of this provision would be to the effect that even if prior to the passing of the Act, apostasy would have operated to dissolve the marriage ipso facto, subsequent to the coming into force of section 4, the marriage is not ipso facto dissolved. However, to read section 4 as meaning that the renunciation or conversion does not per se operate to dissolve the marriage would be incorrect, inasmuch as it would render the words “by itself” as appearing in the provision otiose”, the Court observed.
“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 under section 2 (ix) of the Act”, the Court further added.
Regarding from what date the marriage stands dissolved, the Court declined to rule on ‘whether Section 4 modifies the pre-existing rule to the limited procedural extent of relegating the party to the filing of a suit for a declaration of dissolution from the date of apostasy or whether it alters the same substantively, mandating that the marriage stands dissolved from the date of the decree of the court.’
As to what constitutes proof of apostasy, the Court said the declaration of apostasy made in the petition and the affidavit filed in Court is sufficient and no trial is needed for the same.
The Court also said that the dissolution of marriage by Muslim woman by mere act of apostasy would not abridge the right of the husband to divorce her by pronouncing talaq thrice.
“A woman married under Muslim personal law is not empowered, nor is she conferred with a right to divorce her husband by apostatizing. All that the law states is that 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. Secondly, while it is doubtless that the husband’s right in such a case to divorce his wife by pronouncing talaq is affected, the same is not due to operation of law or of a judicial pronouncement; the right stands affected by the simple fact that the marriage has already dissolved”, the Court reasoned.