Caste conversion

1. Not permissible as per Family Law
2. Alternate would be to seek MCD (mutual consent divorce) from your first wife by paying price to her (alimony) for seeking your freedom and then marry under Special Marriage Act without need to change your religion with this Muslim lady.
3. If para 2 your Hindu wife has agreed to, then ask Muslim lady to wait 6 months (minimum cooling period) + 3 months (appeal period) more for you achieving a clear marriage title from previous marriage and then remarrying under special marriage Act yet retaining your religion in second marriage.

@The senior,

In disagreement with Para 3 of your reply in light of Chapter IV section 19 of SPA 1954. I need your interpretation of the said section.

Please supply special emphasis on the word 'Such family' as well as disability under section 20,section 21 and 21- A. I had already have a discussion of similar kind in one of my threads.

Your views highly sought.

Note-This reply should be taken as per the declaration given in my profile page.

Thanks,

Regards,

@ newS_Know!!!

The mentioned para 3 flows out from my para 2. Now (I admit I should have mentioned there 'in') if one reads para 3 now as "If in para 2....XX" one can notice it flowing from para 2.

Coming back to your request for interpretation of S. 19, 20, 21A SMA,1954 I have following to value add (though I have no idea what you discussed in other post – I wish you placed your earlier discussions link for reviewing as you are asking me to discuss in vacuum; nevertheless I honor such queries too here thy name “interaction”) J

To do complete justice to your question before us a little background of facts would not kill the complete education thus sought herein;

In 1868 the colonial state in India received a petition signed by a member of the Brahmo Samaj seeking legislation for marriages amongst their members such that they could freely marry as per their own rites. This petition initiated the introduction of a civil marriage law in India. The colonial State in India responded to this petition in the form of a Bill to regularise civil marriages. The Bill was revised three times and ultimately enacted as The Special Marriage Act (Special Marriage Act) III of 1872.

The Special Marriage Act III of 1872 was an optional law initially made available to only those who did not profess any of the faith traditions of India. Hindus, Muslims, Christians, Sikhs, Buddhists and Parsis had to renounce whatever religion they were following in order to marry under this Act. This was a serious drawback in encouraging marriages under the Act. Therefore, in 1922 The Special Marriage Act was amended to make it available to Hindus, Sikhs, Buddhists and Jains to marry within these four communities without renouncing their religion. However, there was another drawback to this enactment, which was not addressed by the amendment then. A marriage under the SMA resulted in a deemed severance whereby succession would be regulated by the Indian Succession Act of 1865.

In 1954, the Special Marriage Act of 1872 was repealed. The Special Marriage Act of 1954 was enacted. As per the Statement of Objects and Reasons it was enacted in order “to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.” The parties may observe any ceremonies for the solemnization of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers.

Under the Special Marriage Act, 1954, S. 20 provides that persons opting for a civil marriage under the Act, would retain the same rights and disabilities with regard to the right of succession to any property as a person to whom the Caste Disabilities Removal Act, 1850 applies. In other words, marriage under the Act would not affect the right of succession to any property, in the same way that it would not be affected by his or her renunciation of religion, or having been ex-communicated from the communion of any religion or being deprived of caste.

However, the Special Marriage Act, 1954, in the form of S. 19, specifically retains the provision regarding severance of persons professing the Hindu, Buddhist, Sikh or Jain religion, married under the Act from the undivided family.

With respect to inheritance, the Special Marriage Act, under S. 21, provides that succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act, 1925. Further, S. 21 provides that for the purposes of the section, in Chapter III of Part V (Special Rules for Parsi Intestates) would be deemed to be omitted from the Indian Succession Act, 1925.

However, on the recommendation of the Law Commission of India (59/1974), Parliament enacted the Marriage Laws (Amendment) Act, 1976. This Act added S. 21-A to the Special Marriage Act. As per S. 21-A, where a marriage of any person professing the Hindu, Buddhist, Sikh or Jain religion with a person professing the Hindu, Buddhist, Sikh or Jain religion is solemnized under the Special Marriage Act, S. 19 (effect of marriage on member of undivided family) and 21 (Succession to property of parties married under the Act) shall not apply and S. 20 (rights and disabilities not affected by Act), in as much as it creates a disability shall also not apply Therefore, under S. 21 A, S. 19 will  not apply in cases of marriage of a Hindu, Sikh, Buddhist or Jain to another Hindu, Sikh, Buddhist or Jain and the Hindu Succession Act would apply in such marriages as the law of succession. The interpretation of a co-joint reading of Sections 19, 20 and 21 A is that by virtue of two persons of different faiths marrying one another, a change of their religion does not result by law.

Now let us further clarify that two Hindus can jolly well get married under SMA.

HMA law falls under certain classification and perhaps it is the only Law which classifies subject being Hindu is only for the purpose of marriage, divorce, property etc. These three are nothing but PERSONAL matters RELIGION of subject which plays an important role in context to interpreting this thread query "such family" which you validly selectively choose to ask me to interpret without sharing with readers what your earlier discussed! I invite two of my old ld. member friends @ Chandrasekhar / Dr. Ramani on this board to place their say if and ever if they stumble upon this reply.  

The queriest is Hindu married to a Hindu who is his wife no. 1. he contemplates as I read marrying second time while first marriage is subsisting that also with a person who is subject of another religion and hence he momentarily contemplating to change his Religion from Hindu to Muslim and marry and again change back to Hindu. For interpretation this thought process I say it is not allowed for a person professing Hindu Religion and second bar is his subsisting Hindu marriage. Hence I advised what I have to advice in para 2 which culminate in my para 3. 

Suppose this queriest would have said that he was atheist person then my straight answer would have been the same as SMA allows a subject thereby ending his Religion that he has been carrying due to reasons of his birth. SMA is a special law (progressive legislation) which is free of all religion. The SMA 1954 is specific to India and is in consonance with the Indian State’s commitment to secularism and equal respect for all religions. It is a progressive legislation enabling couples to solemnise their marriage while retaining their respective religious identities. It is interesting to note that The Special Marriage Act of 1872 still continues to be in force in Pakistan and Bangladesh at the time of inking this reply.

But the catch which rightly doubted by you lies here if one marries under SMA; that the couples all PERSONAL matters are also governed by SMA and not by their Personal Laws. Illustration; S. 19 of the Special Marriage Act 1954 provides that where a person professing the Hindu, Buddhist, Sikh or Jaina religion under the Special Marriage Act, 1954, it shall be deemed to effect his severance from such family. It is pertinent to note that the Section is limited in its scope. First, S. 19 specifically applies to those persons professing Hindu, Buddhist, Sikh or Jaina religions. There is no like provision applicable to persons professing other religions. A person professing Christianity, Islam or Zoroastrian who chooses to get married under the Special Marriage Act, 1954 is not deemed to effect severance from his or her family. Further, where applicable, S. 19 only deems severance from a person’s family and not from the religion itself. The Special Marriage Act, 1954 does not envisage a situation where a person is severed from their religion as a result of marriage under the Act. Say a Muslim couple marrying under this law would no longer be governed by the Muslim personal Laws for divorce or for that matter property matters. Further another peculiarity which oozes out of SMA marriage in case couples touch their children is that they are born with no religion by birth which many have asked in various queries here (as to what could be religion of my child). In my opinion they would have the religion in which they would be brought up and normally as per experience under religion column of the children their parents mentions ‘atheist’ in forms that ask which religion they follow.

The bottom line which I can reasonably say here is that S. 19, 20, 21A of Special Marriage Act, 1954 are like "estoppels clause" to prevent a subject OR couple to claim benefits under any other personal law while having married under SMA.

You may have your opinion and if put forward I may consider and do point out to readers your earlier discussion as you claim have to be done as matter of “interaction” to fill in the void.

@The senior,

First, I would like to express my heartiest thanks to you for being so cordial.

Now,Here is the link of thread which I eariler mentioned

https://www.lawyersclubindia.com/forum/Hindu-muslim-marriage-74581.asp

Further, according to my interpretation,the legislative intent behind the word 'such family' in 'Severance from such family expression' could actually mean that persons who marry under this act will not be considered as a hindu(including sikhism,janism,buddhism).

Since Art(25) of COI does not define the term 'Religion', therefore,for the purpose of this act,it would not be a proper term to say'Severance from such religion' instead of 'Severance from such family'. Religion as defined by Justice Mukharjee

"A religion may not only lay down a code of ethical rules for it's follower to accept,it might prescribe rituals and observances,ceremonies and modes of worship which are regared as integral parts of religion and those forms and observances might extend even to matters of food and dress."

[Ref-H.R.E.,Madras vs. Sirur Mutt.A.I.R,1954 S.C 282]

A Severance from such family means the affected persons cannot take part in ceremonies,observances which are integral part of religion. Being Severed from such 'Hindu Family' not only indicated a single family but rather it denotes to the entire society of the persons who believe as well as practice the faith established by Hinduism.

The above paragraph should be read with the contents of the link provided herein.

In pursuit of Listening you again.

Thanking you.

Note-This reply is only for discussion with some senior members on this Legal platform.

Thanks,

Regards,

@ newS_Know!!!

ha ha you raised good question I liked your intelligent question.

This question was laid to rest almost a year ago by Gujarat HC and now has reached SC by way of SLP by same party (Parasi wife married to Hindu husband) with a interesting impleading parties (Muslim husband married to a Hindu wife) and their IMPLEADMENT IA, Registrar Court has okayed with Office Report for posting to Bench as regular hearing matter.

Wait now, on 26th. April (NDOH at SC) and thereof some news on this controversy I may share with you, if Hon'ble SC hears parties and sets it to rest same day or thereof.

Note: Whatever Gujarat HC in its 2:1 decision said and now SC is going to lay out the Law on it in my opinion this thread is not right place to discuss same. I prefer moving our so far discussed matter and next discussions to your above placed link discussion thread as material outcome will touch that thread query more than this queries.

[however remind me to share close to date]

@The senior,

I am always open to listen your precious views.I must remind you.But wait.....your word 'Ha Ha....' looks intriguing to me.Will you please let me know.........meaning..............in good faith.......

Thank you

Love to hear again.

Regards,