This article is written by Akshata Pai.
Table of Contents
What is Apostasy?
Apostasy is derived from the Greek word apostasies, which means defection. To aid, Apostasy is the abandonment of belief or faithlessness. Apostasy is a term used by society for disaffiliation from religion by a person. In a technical sense, it is the implication of non-believers to turn down the negative significance. Sociologists term apostate as a conflict of an idea for an individual to struggle against their old belief or faith. In simple terms, apostasy applies to rebel against God or religion. In general, apostasies are an escape, redeem, liberate them from an idea, or practice which self-limits oneself.
Outcome of apostasy
Many religious groups oppose the idea of atheism or non-believers which could result in boycotts in community, criminal offence or execution. Death punishment is found in the Sharia law in certain Islamic countries. In 2014, as per annual Freedom on Thought report by the International Humanist and Ethical Union found that 13 countries impose capital punishment impose on people for their lack of faith in the religion. The relevant countries are Afghanistan, Iran, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, United Arab Emirates and Yemen.
Blasphemy means an act to insult or contempt offence or to speak ill about any religion or God. Article 20 of the International Covenant on Civil and Political Rights obliges countries to adopt legislative measures against any advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, the point to note is that it does restrict the prohibition of blasphemy per se. In addition, the recanting of a person’s religion is a human right legally protected by the International Covenant on Civil and Political Rights as per Article 18.2. The Constitution of India in its Preamble clearly states that Liberty of thought for religious belief and worship.
Section 295A of the Indian Penal Code has been used as a blasphemy law to prevent insult of Christianity, Islam and Hinduism. The British-era section 295A of the penal code that was created by Christians who ruled India is extant and has not been repealed; it contains an anti-blasphemy law. Section 295A was introduced in 1927 to prevent hate speech that insults or attempts to insult the religion or the religious beliefs of any class of citizen with deliberate and malicious intention to outrage their religious feelings but the main purpose of this law has been to maintain “public order in a multi religious and religiously sensitive society.” As per the section, one shall be punished with imprisonment of either description for a term, which may extend to three years, or with fine, or with both.
Apostasy is an important factor for personal laws in India. Personal law related to marriage, divorce and inheritance. In India, it is a vital role as the Muslim law is uncodified law among other religion such as Christianity, Parsi and Hindu which have a codified act in place. Marriage is a social institution to keep a family continuous and a global custom. This custom is easily influenced by the religion or faith followed by an individual. Hence, apostasy can affect the process of marriage, divorce and inheritance for any person. Other than Muslim law, all other religions in India have no major effect of apostasy in their personal laws.
What is Marriage?
Marriage is a universal custom for many cultures and recognized as a union between people. Individuals have many personal reasons to initiate marriage for several reasons, including legal, social, family legacy, emotional, financial, and spiritual and even for religious purposes.
Marriage applied as personal law as it is influenced by religious practice and beliefs, which can have a significant impact on marriage laws and inheritance laws.
In many religion, marriage is a traditional custom one follows, whereas in Muslim law, the marriage that is Nikah is a civil a contract which legalises the sexual intercourse and for the procreation of children.
Marriage in Muslim Law
Marriage called Nikah is a civil contract governed under the India Contract Act, 1872.
To constitute a valid marriage, no formal wedding ceremony is required. The essential precondition for a valid contract as follows:
- Proposal and Acceptance;
- Capacity to contract marriage; and
- Absence of any barrier.
Proposal and Acceptance: The proposal is called Ijab and an acceptance is called Qubul. The proposal and acceptance must be expressed at one meeting, in the presence of two male or one male and two female witnesses. This results in a valid marriage contract.
If the proposal is in one meeting and acceptance of the proposal confirmed in another meeting, it will not result in a valid contract for marriage.
The form of acceptance for proposal is I have married to you or I have consented.
Capacity to contract marriage: Every individual has a capacity of being married if one has attained puberty and of sound mind. It is in the same group of Section 11 and 12 of The Indian Contract Act, 1872.
Absence of any barrier: To have valid marriage contract one should not face any barrier such as:
Marrying a fifth wife – A marriage to the fifth wife is invalid by a person who already holds four wives. The barrier can be removed by divorcing one of four wives.
Absence of witnesses- Under the Sunni law, it is necessary to have two witnesses to constitute a valid marriage contract. Whereas, under the Shia law, it is not mandatory to have witnesses to validate a marriage.
Difference between religion: In Shia law, both the spouses must be Muslims to have a valid marriage. If either of them is non-Muslim, the marriage is void. However, a Muslim male may contract a valid muta marriage (temporary marriage) with a kitabia or with a fire-worshipper. Kitabia means a female who believes in Christianity or Judaism. In Sunni law:
- A Muslim male can validly marry, not only a Muslim woman but also kitabia where the marriage would be voidable or irregular. The bride can remove the irregularity by embracing Islam.
- A Muslim female can only marry a Muslim alone. If she marries any non-Muslim male, the marriage is void.
Marriage in Muslim law can be valid, void and voidable. Difference between void and invalid are as follows:
- Sahih, it is a valid contract if the essential preconditions are completed.
- Batil, it is void as the foundation is bad or of void agreement.
- Fasid, it is voidable as it is irregular or one which has a good foundation but unlawful.
In Sunni law, the marriage is either valid or irregular.
In Shia law, the marriage is either valid or void, no room for irregular marriage concept.
Apostasy in Islam
Apostasy is called ridda in Islamic literature. An apostate is called murtad, which means ‘one who turns back’ from Islam. A person born to a Muslim parent who later rejects Islam is called a murtad fitri, and a person who converted to Islam and later rejects the religion is called a murtad milli.
When and how does one become apostate?
An individual becomes apostate by conversion from Islam to another religion. An apostate can be implied if one does not formally renounce to Islam. However, if any Islam believer was forced or in fear of war had to denounce from Islam is not considered as an apostate.
In many Muslim centres, countries have imposed a criminal offence for apostasy from Islam. However, the concern for the topic is the effect of apostasy on marriage as India has no criminal or civil offence for apostasy in religion.
Laws prohibiting religious conversion run contrary to Article 18 of the United Nations’ Universal Declaration of Human Rights, which states the following:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Afghanistan, Egypt, Iran, Iraq, Pakistan and Syria have voted in favour of the Declaration.
Effect of apostasy on marriage
Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one of the married pair would have been treated as dissolution of marriage with effect immediately, without:
- the decree of a judge; or
- being a repudiation of marriage, whether the conversion was before or after consummation.
After passing the Act in 1939, it resulted in section 4 of the Act.
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Apostasy by husband
Apostasy from Islam from Muslim husband will have immediate effects of dissolution of marriage. Section 4 of the Dissolution of Marriage Act, 1939 does not apply to apostasy by the husband. The result is that apostasy of the husband is still governed by old law under which the renunciation from Islam by a husband will result in complete and immediate dissolution of marriage.
Where a Muslim husband converts to another religion (say Christianity), his marriage is immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim law and is free to marry another person (immediately) without waiting for the Iddat period.
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Apostasy by wife
The conversion of a married Muslim woman to a faith other than Islam does not by itself operate to dissolve her marriage. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act.
Section 4 does not apply to a woman who converts to Islam from other faith and take back her former faith. Thus, if a Hindu woman converts into Islam and marries under Muslim law, the marriage would be ipso facto dissolved, on her renouncing Islam and re-embracing Hinduism. However, if she does not re-embrace Hinduism, but becomes Christianity, the marriage would not dissolve.
In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130 ) a Hindu wife converted to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism, her marriage stood dissolved. Her case falls under the second proviso to Sec 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves the marriage would apply.
If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under Sec 494 of the Indian Penal Code, 1860. In Abdul Ghani v/s Azizul Huq [(1912) ILR 39 Cal 409], a Muslim man and woman got married. After some time, the husband embraced Christianity but reverted to Islam during the wife’s iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under Sec 494. It was held that no offence had been made.
The court remarked:
Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under Sec 494 of IPC against her. Her second marriage is not void because of its taking place during the life of her prior husband but because of the special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do.
Conclusion
To conclude the topic, it can be said that the apostasy has a massive impact on the personal law in Muslim law. In India, the apostasies from Islam are protected under the constitution of India and the dissolution of marriage act, 1939.
It can be clearly said that, in modern times, the female married Muslim are protected under Muslim law and the constitution of India. In addition, many NGO and religious leaders are ensuring that no individual can take undue advantage of Muslim law.
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