The Telegraph, February 9 , 2011
PUTTING IT ON PAPER
The Law Commission’s recommendations on religious conversion are being hotly debated in legal circles. Some experts tell V. Kumara Swamy that a change in religion should be documented
G.A. Arife converted to Hinduism and became Arti just before her marriage to Gopal Dutt Sharma in 1989. But after a few years when the marriage went sour and she wanted a divorce under the Hindu Marriage Act (HMA), 1955, all hell broke loose. Her husband maintained that her conversion was a sham and that she had continued to follow Islam even after marriage. He also contended that there was no documentary evidence to prove that she had really converted to Hinduism.
After losing the case in lower courts, the woman approached the Delhi High Court. In August 2010, the court, while admitting that it was in a “Catch-22 situation”, ruled against the appellant saying that she had failed to prove her conversion from Islam to Hinduism and refused any relief under HMA.
“The court was pretty clear that just an oral submission that she had converted to another religion wasn’t enough. There was no other substantial evidence to prove that her conversion to Hinduism had taken place,” recalls Gita Dhingra, a Delhi High Court lawyer who was in the team that argued against Arife.
The Law Commission of India has now stepped in, with a series of recommendations that are meant to address the issue of re-conversion. The main issue relates to Section 2 of the HMA. Clause (c) of the “Explanation” part of Section 2 states that the law is applicable to “any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.”
In a case similar to the one that the Delhi High Court ruled on, the Kerala High Court, in 2009 (Betsy and Sadanandan vs Nil), observed that the “absence of any stipulations of law or specific recognised practices to facilitate such conversion is causing great difficulties to the parties.”
The Kerala High Court further stated that the law which recognises conversions must also be in a position to prescribe how the parties, “without the necessity to get involved in unnecessary and time consuming litigation, can declare to the world such conversion.”
The basic argument of the Kerala High Court was that proof of one’s conversion should be simplified and credible documentary evidence should be made available so that these can be presented when disputes over conversion arise. The court had also asked the Law Commission of India to examine this aspect and suggest changes to the law.
The 19th Law Commission under Justice P.V. Reddi, in its latest report on “Conversion/re-conversion to another religion — mode of proof” submitted recently to the government, has tackled issues raised by both the Delhi and Kerala High Courts.
The commission has said that within a month after the date of conversion, the converted person can send a declaration to the officer in charge of registration of marriages in the concerned area. The officer, in turn, shall exhibit a copy of the declaration on the notice board of the office till the date of confirmation. And within 21 days from the date of sending or filing the declaration, the person concerned can appear before the registering officer, establish his or her identity and confirm the contents of the declaration following which he or she can get the certificate of conversion from the registrar.
While many people have welcomed the suggestion of the Law Commission, even going to the extent of asking the government to make it mandatory for every converted person to obtain such a certificate, there are others who say mere submission to a new religion shouldn’t be considered conversion.
“The High Court was absolutely spot-on on the need for a clear-cut law on conversions and it is good that the Law Commission has agreed with the Kerala High Court,” says Dinesh Mathew J. Muricken, a Kerala High Court advocate who fought on behalf of the appellants in the 2009 case. “Although the Arya Samaj temples in some parts of Kerala and India issue certificates to those who convert or re-convert to Hinduism, they are not legally valid. In this situation we need something that can be recognised by the courts,” says Muricken.
Bangalore-based matrimonial lawyer R. Vishwanath Rao says he is in favour of making the provision mandatory. “Let the whole world know you have converted so that there’s no controversy about it in the future,” he says. According to Rao, several divorce cases of inter-religious marriages are pending in the courts on the issue of conversion.
But the commission has stopped short of recommending compulsory registration of conversions. “Maybe, as and when compulsory registration of marriage and divorce becomes a reality and adequate machinery is put in place to implement the directives for registration of marriages, the question of recording/registration of conversion could also be considered,” the commission observes.
Although the freedom of conscience and the right to profess, practise and propagate religion is enshrined in Article 25 of the Constitution, conversion to Hinduism becomes contentious not only in matters relating to marriage but for other issues as well. According to Rao, several property cases are also pending because of such disputes. “If there is documentary proof of a conversion, it becomes easy,” says Rao.
Some also argue that just a certificate of conversion is not likely to solve the problems of those caught in legal wrangles. “As it was proved in Arife’s case, mere conversion is not important as change of religion involves conduct of rituals, practices and many other things. So courts will also take into account the conduct of a person after conversion or re-conversion to Hinduism,” says Dhingra.
Agrees Archbishop Leo Cornelio of Bhopal. “Whether the conversion is to Christianity or Hinduism, it’s a deep process undertaken by an individual and it involves faith, conscience and relationship with the Almighty. One cannot simply authenticate it on a piece of paper,” says the archbishop.
But since the Supreme Court has repeatedly ruled that no particular formalities or religious rituals or ceremonies are necessary to bring about conversion or re-conversion, the Law Commission states that deep faith in the new religion and performance of rituals are not a necessity while converting to another religion.
Ruling in another case, S. Anbalagan vs B. Devararajan and others in 1984, the Supreme Court said that no particular ceremony was prescribed for re-conversion to Hinduism.
“The Supreme Court rulings over the years have been fairly clear as far as the conversion ceremony is concerned, but at the same time we should also recognise that courts often insist on some kind of evidence when disputes arise,” says Muricken.
Some states including Gujarat and Madhya Pradesh have enacted Freedom of Religion laws prohibiting forcible conversion in the form of use of force, allurement or by other fraudulent means. In these states the law makes it mandatory for a person who converts to another religion to intimate the district magistrate either in advance or within a stipulated period.
The commission says that there is no need for a separate enactment or amendment to the respective personal laws to give effect to its “simple recommendation”. The proposal does not “go contrary to the existing provisions of law nor does it in any way impinge on the religious freedom or faith of any person.”
The Law Commission also says that the central government could ask states where there are no laws on conversion to implement its recommendations.
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