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This article is written by Vishwajeet Singh Shekhawat pursuing Certificate Course in Advanced Civil Litigation from LawSikho.

Introduction

The right to practice any religion is a fundamental right guaranteed under Article 25 of the Constitution of India, which among other things entails the ability of an individual to choose any religion. In other words, an individual has the right to choose and follow any religion of his choice; not necessarily the one assigned at birth, which also includes the right to be agnostic. This freedom encompasses multiple fundamental rights which have amongst it a facet of free speech guaranteed under Article 19, or that as recognized under Article 21 of the Constitution such as the ‘right to choice’, of ‘autonomy’ and ‘privacy’ as interpreted by the Supreme Court in its various judgments. 

The purpose or object behind converting to another religion for an individual may vary for reasons best known to him. In practice, it can be seen that it is generally done for matrimonial purposes where personal laws of an individual prescribe for certain requirements such as that of the partner belonging to the same religion. But the right to choose any religion and the exercise of the individual autonomy has the effect of curtailment of certain vested rights available to an individual by virtue of birth in a family, most prominent being the right to property devolving upon him as a member of the family based on the provisions of personal laws. This in effect has the power of taking away his right to practice any religion or to convert, since the same affects his rights of inheritance.

The article will therefore trace the history of this issue and explain the legal position on the same, relying upon different judicial verdicts as well as legislative amendment aimed at saving the property rights of an individual curtailed on his conversion to another religion.

Pre-constitution position

The personal laws in pre-constitution India were majorly uncodified unlike the present times especially when it came to matters of inheritance. All the personal matters were governed by the personal laws or customs in addition to some legislation applicable in matters of marriage or divorce. All the major religions followed during that time in the sub-continent, especially in Hinduism and Islam. Some even provided for deprivation of the civil rights of an individual particularly in matters of property if such a person converted to another religion. 

As a reaction to the same practice, the British colonial government passed the Caste Disabilities Removal Act, 1850 which in its application extended the principle of Section 9 Regulation VII, 1832 of the Bengal Code throughout India. The preamble of the act read as follows;

Preamble.- Whereas it is enacted by Section 9, Regulation VII, 1832, of the Bengal Code, that “whenever in any civil suit the parties to such suit may be of different persuasions, when one party shall be of the Hindu and the other of the Muhammadan persuasion, or where one or more of the parties to the suit shall not be either of the Muhammadan or Hindu persuasions the laws of those religions shall not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they would have been entitled”; and whereas it will be beneficial to extend the principle of that enactment throughout [India]; It is enacted as follows.

The consequence of the passing of the Caste Disability Removal Act, 1850 was that any personal law or usage taking away the rights or providing for forfeiture of rights on change of religion or caste was rendered ineffective with the coming into force of the law and couldn’t be enforced in any court. This in effect allowed any individual to choose any religion without the same having any consequence on his rights.

Post-constitution position

After the coming into force of the Constitution of India, Article 372 of the Constitution provided for the continuing of all the pre-constitution law subject to the provisions of the Constitution unless expressly repealed or amended, or altered by a competent authority or the legislature itself. This in practice meant that the Caste Disability Removal Act, 1850 was still in force and applicable as a law, providing for non-enforcement of personal law or usage affecting the rights of an individual on change of religion or caste. 

However, the Caste Disability Removal Act, 1850 was recently repealed by the ‘The Repealing and Amending (Second) Act, 2017’ passed by the Parliament. The said act under Section 4 provided that, the repeal of the act will not have the effect of reviving or restoring any jurisdiction, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure, or other matter or thing not now existing or in force. This effectively means that the repeal of the Caste Disability Removal Act, 1850 will not have the effect of superseding or that it will undo the legal reform made by it.  Therefore, the provisions of the same act will remain fully in force in principle and will not deprive any person of his property rights upon conversion.  

Rights of inheritance under the Hindu Succession Act, 1956

The Hindu religious law in relation to property matters or inheritance was codified through the enactment of the Hindu Succession Act, 1956. In its application, the law took under its ambit a person who is a Hindu by religion as well as in any of its forms or development. It also was applicable to any person who is a Sikh, Jain, or Buddhist by religion. 

However, it didn’t expressly or impliedly provide for any form of disqualification or ex-communication in case of a Hindu converts to another religion. Although under Section 26 of the act, the descendants of the convert born after the conversion were disqualified from inheriting the property of any of their Hindu relatives. The same children are qualified to inherit the property if they are Hindus at the time when the succession opens. 

Matters of succession under the Muhammadan Law

The Muslim personal law is applicable to the followers of Islam in matters of succession or inheritance. The Muslim Personal Law (Shariat) Application Act, 1937, a pre-constitution law applicable and enforceable by virtue of Article 372 of the Constitution, provided that in all matters regarding intestate succession, special property of females, etc. the rule of decision in cases where the parties are Muslim shall be the Muslim Personal Law (Shariat). However, as discussed above, the provisions and principles provided by the Caste Disability Removal Act, 1850 and its applicability even after repealing of the same will apply in matters where any personal law or usage affects the rights or provides for forfeiture of rights, irrespective of its repeal by the legislature. 

Therefore, although the Muslim personal law not codified in matters of inheritance unlike the Hindu personal law, it cannot take away the property rights which are vested in a person by birth. 

Property rights under Christian Law

The law which governs succession or property rights in case of a person practicing Christian religion is the Indian Succession Act, 1925. The only requirement for the application of the act in matters of property or succession is that the person whose property is to be partitioned or inherited is a Christian. The religion of the person getting the property in inheritance is irrelevant while deciding the matter. Therefore, it can be said that there is no bar on the right of any person to inherit the property if he has converted to another religion.

The approach of the judiciary       

The judiciary time and again has interpreted the rights of the convert in matters of property and inheritance keeping in view the express provision provided under the legislative enactments. 

  • The Privy Council in the case of Khuni Lal v. Kunwar Gobind Krishna Narain observed the intention behind enacting the Caste Disability Removal Act, 1850 was to declare that the Hindu & Muhammadan law shall not be permitted to deprive a person of his property right upon conversion. It further observed that the Legislature through the enactment virtually set aside the provisions of the Hindu law which penalizes renunciation of religion or exclusion from caste. The same principle is applicable to instances abrogating the rights of a person in case of conversion despite the repealing of the act. 

However, in spite of the above legal position, some issues in relation to the rights of the convert or their descendants in relation to his property have been challenged before the courts. They have been primarily in relation to a person of Hindu religion having converted to another religion. The issues have been in relation to the reading of the Hindu Succession Act, 1956, and its applicability to a Hindu who converted to another religion. 

  • In Balchand Jairamdas Lalwani v Nazneen Khalid Qureshi, an injunction by the trial court restraining the defendants from creating third party rights of whatever nature in respect of the suit premises, was challenged before the High Court. The lady (respondent) converted to Islam before her father’s death and after the death of her father, was claiming her father’s property. 

The plaintiff relied upon Section 2 and contended that as per Section 2(1)(a)(c) of the Hindu Succession Act, 1956, the Act is not applicable to the persons who are Muslim, Christian, Parsis, and Jews by religion. Therefore, it was contended that the respondent will not be governed by the act and no share will be given to her as per the provisions of the act. He further submitted that a convert otherwise will benefit from two laws that are not allowed. The respondent on the other hand supported the injunction and relied on Section 26 which states that a Convert’s descendants are disqualified and there is no mention about disqualification of the convert himself or herself. He further submitted that the respondent is a sister and is entitled to the property of her father and the conversion does not disqualify the convert to claim a proprietary right of his or her father’s property.

The Bombay High Court in its judgment observed that the right of inheritance vests with an individual upon birth and in some cases acquired by way of a marriage. The court also observed that religion is a matter of individual choice and the act of conversion doesn’t end relationships that are established by birth. Finally, held that a Hindu convert is entitled to his/her father’s property if the father died intestate.   

  • In Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan vs. Patel Shantaben Bhikhabhai & Ors., a Hindu by birth who embraced Islam and the effect of the same on her right to property was in issue. The Gujarat High Court upheld the rights of the woman convert and observed that the conversion doesn’t disqualify the convert from succeeding to the father’s property. The Andhra High Court in Shabana Khan v. D.B. Sulochana & Ors. reiterated the same position with respect to the right of a Hindu convert to inherit her father’s property. 
  • In E. Ramesh And Anr. vs P. Rajini the Madras High Court also upheld the property rights of the Hindu women who converted to Islam. The High Court in its judgment stated that the bar under Section 26 of the Hindu Succession Act, 1956 does not apply to the convert but only to the descendent of the convert. The court also relied on the provision of the Caste Disability Removal Act, 1850, and stated that the same removed the stigma to inherit property in case of a conversion.

From the above discussion, we can conclude that the judiciary has played a significant role in interpreting the provisions related to the inheritance of property when a person changes his religion. A common stance observed in most of these judgments is that conversion to religion does not impact the inheritance or succession of the property.

Conclusion

The Chief Justice of India in the judgment authored by him in Shafin Jahan v. Ashokan K N had remarked that freedom of faith is essential to an individual’s autonomy. He further stated that choosing a faith is a substratum of individuality and without it, the right of choice becomes a shadow.   

The legislative intent and the judicial approach have been similar in matters where a right to succeed to the father’s property by the convert is in any manner threatened. The courts have upheld the rights of the convert relying on specific enactments and judicial precedents, in the course of which they have in some way recognized the constitutional freedom of right to practice any religion. 

An inter-caste or inter-religious marriage is still not that prevalent in Indian society, maybe with an exception in metro cities. A LokNiti CSDS Youth Studies 2007 and 2016 report stated that marriage across caste and religion is still not accepted in an arranged marriage setup. Among the married youth, very few had opted for inter-caste (4%) or marriage outside their religion (3%). However, the same has not deterred the legislature from making and upholding legislative changes aimed at safeguarding the civil and property rights of individuals in such matters. The judiciary has also upheld and safeguarded the interests of the individual. Therefore, it can be said that the societal attitude in personal matters has been of no consequence in the policy followed by the legislature or the judicial determination of civil rights of such individuals by the judiciary.   

References


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