RELIGIOUS CONVERSION & SUCCESSION

INTRODUCTION

Inter-community / inter-faith marriages are increasing in India. It is becoming common to see a Hindu woman marrying a person professing Islam or Christianity. Subsequently, she converts to Islam or to Christianity.

In all such cases, a question often arises: whether the Hindu woman who has converted to another religion would be entitled to succeed to the property of her parents? Would she be a member of her father’s HUF? Further, what would be the position of her children – would they be entitled to succeed to the property of their maternal grandfather? Let us examine these tricky issues in some detail.

SUCCESSION TO PARENTS’ PROPERTY

Let us first consider what would be the position of a Hindu woman who has converted to Islam / Christianity in relation to her parents’ property. If the parent has made a Will, then she can definitely be a beneficiary. This is because a Will can be made in favour of any person, even a stranger. Hence, the mere fact that the daughter is no longer a Hindu would not bar her from being a beneficiary under the Will.

However, what is the situation if the father dies intestate, i.e., without making a Will? In such a case, the Hindu Succession Act, 1956 would apply. The Class I heirs of the father would be entitled to succeed to the property of the Hindu male dying intestate. The daughter of a Hindu male is a Class I heir under the Hindu Succession Act. Now the question that would arise is whether the subsequent religious conversion of such a Class I heir would disentitle her from succeeding to her father’s estate.

The Gujarat High Court had occasion to grapple with this interesting problem in the case of Nayanaben Firozkhan Pathan vs. Patel Shantaben Bhikhabhai, Spl. Civil Appln. 15825/2017, order dated 26^th September, 2017. In this case, the child of a Hindu wanted to get her name entered in the Record of Rights of an ancestral land held in the name of her deceased father. The Collector allowed the mutation in favour of all children except one daughter who had converted to Islam. It was held that her conversion disentitled her from succeeding to her father’s estate. The matter reached the Gujarat High Court. The Court observed that section 2 of the Hindu Succession Act provides that the Act applies only to Hindus and to persons who were not Muslims, Christians, Parsis, Jews or of any other religion. However, this section only provides a class of persons whose properties will devolve according to the Act. It is only the property of those persons mentioned in section 2 that will be governed according to the provisions of the Act. Section 2 has nothing to do with the heirs. This section does not lay down as to who are the disqualified heirs.

The Court further analysed the provisions of section 4 which envisages that any other law in force immediately before the commencement of the Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in the Act. While a number of Central Acts were repealed as a consequence of this section, one Act which has not been repealed is the Caste Disabilities Removal Act, 1850. This is a pre-Independence Act which consists of one section which states that:

‘So much of any law or usage which is in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.’

The Gujarat High Court held that a change of religion and loss of caste was at one time considered as grounds for forfeiture of property and exclusion of inheritance. However, this has ceased to be the case after the passing of the Caste Disabilities Removal Act, 1850. The Caste Disabilities Removal Act provides that if any law or (customary) usage in force in India would cause a person to forfeit his / her rights on property or may in any way impair or affect a person’s right to inherit any property, by reason of such person having renounced his / her religion or having been ex-communicated from his / her religion, or having been deprived of his / her caste, then such law or (customary) usage would not be enforceable in any court of law. Thus, the Caste Disabilities Removal Act intends to protect the person who renounces his / her religion.

Further, the Division Bench of the Madras High Court in the case of E. Ramesh vs. P. Rajini (2002) 1 MLJ 216 has also taken the same view. It held that the Hindu Succession Act makes it clear that if the parents are Hindus, then the child is also governed by the Hindu Law or is a Hindu. It held that the Legislature might have thought fit to treat the children of the Hindus as Hindus without foregoing the right of inheritance by virtue of conversion.

Accordingly, the Gujarat High Court concluded that all that needs to be seen is whether the daughter was a Class I heir? If yes, then her religion had no locus standi to her succession to her father’s property.

POSITION OF CONVERT’S CHILDREN

The position of a person who has converted to Islam is quite clear. Section 26 of the Hindu Succession Act clearly provides that the descendants of the convert who are born after such conversion are disqualified from inheriting the property of any of their Hindu relatives. Thus, the children of a Hindu daughter who converts to Islam would be disqualified from inheriting the property of their maternal grandfather.

This section was explained by the Calcutta High Court in Asoke Naidu vs. Raymond S. Mulu, AIR 1976 Cal 272. It explained that this section therefore does not disqualify a convert. The present Act discards almost all the grounds which imposed exclusion from inheritance and lays down that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity. It also rules out disqualification on any ground whatsoever except those expressly recognised by any provisions of the Act. The exceptions are very few and confined to the case of remarriage of certain widows. Another disqualification stated in the Act relates to a murderer who is excluded on the principles of justice and public policy. Change of religion and loss of caste have long ceased to be grounds of forfeiture of property. The only disqualification to inheritance is found in section 26 which disqualifies the heirs of a converted Hindu from succeeding to the property of their Hindu relatives. However, the disqualification does not affect the convert himself or herself.

POSITION OF CONVERT IN FATHER’S HUF

On the marriage of a Hindu who has converted to Islam or Christianity, his continuity in an HUF needs to be considered if his marriage is solemnised under the Special Marriage Act, 1954. In such a case the normal succession laws get disturbed. This would be so irrespective of whether or not the Hindu converts. All that is required is that the marriage must be registered under this Act. Section 19 of this Act prescribes that any member of a Hindu Undivided Family who gets married to a non-Hindu under this Act automatically severs his ties with the HUF. Thus, if a Hindu, Buddhist, Sikh or Jain gets married to a non-Hindu under the Special Marriage Act, he ceases to be a member of his HUF. He need not go in for a partition since the marriage itself severs his relationship with his family. He cannot even subsequently raise a plea for partitioning the joint family property since by getting married under the Act he automatically gets separated from the HUF. Taking the example of the daughter who converted to Islam, even though she can now be a member of her father’s HUF by virtue of the Hindu Succession Amendment Act, she would cease to be a member due to her marriage being registered under the Special Marriage Act.

SUCCESSION TO THE CONVERT’S PROPERTY

The last question to be examined is which succession law would apply to such a convert’s own property? If she dies intestate, would her heirs succeed under the Hindu Succession Law (since she was once a Hindu) or the Muslim Shariya Law (since she died a Muslim)? Section 21 of the Special Marriage Act is by far the most important provision. It changes the normal succession pattern laid down by law in case of any person whose marriage is registered under the Act. It states that the succession to property of any person whose marriage is solemnised under the Act and to the property of any child of such marriage shall be regulated by the Indian Succession Act, 1925.

Section 21 makes the Indian Succession Act, 1925 applicable not only for the couple married under the Act but also for the children born out of such wedlock. Thus, for such a convert whose marriage is registered under the Special Marriage Act, the succession law would neither be the Hindu Succession Law nor the Muslim Law but the Indian Succession Act. The same would be the position for her children. Of course, if she were to make a valid Will, then the Will would prevail over the intestate succession provisions of the Indian Succession Act.

CONCLUSION

Till such time as India has a Uniform Civil Code, succession laws are bound to throw up such challenges. It would be desirable that the succession laws are updated to bring them up to speed with such modern developments and issues so that legal heirs do not waste precious time and money in litigation.  

Those who always adhere to truth do not make false promises.

Keeping one’s promises is, surely,  the mark of one’s  greatness. — (Valmiki Raamaayan 6.101.52)