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Synopsis

The Madras High Court has recently permitted a Hindu wife to conduct the last rites for her husband, who had converted to Islam after being involved in an illicit relationship with a Muslim woman, whom the man had married later. 

The bench of Justice GR Swaminathan said that though "the man was no Kabir, yet his death had given rise to a serious dispute over his dead body" which was lying in the mortuary of a Government Hospital.

The Hindu wife and the Muslim son of the man had approached the court seeking custody of the man's body. The Hindu wife, asserting her rights as the lawful spouse, argued for the right to perform the last rites. Meanwhile, the Muslim son contended that he and his mother had the rightful claim to conduct the man's final rituals due to his conversion to Islam before his demise.

Court noted that though there was no dispute over the fact that the deceased had embraced Islam before his demise, his marriage to the Muslim woman could not be recognized as a legal marriage.

Court pointed out that the deceased, Balasubramanian, married his Hindu wife B.Shanthi in 1988. A girl child was born out of that wedlock. However, later on, he developed illicit intimacy with one Syed Ali Fatima and embraced Islam. He then became Anwar Hussain and married Syed Ali Fatima as per Islamic rites and customs in 1999. A son was born out of that marriage. 

Balasubramanian notified through Tamil Nadu Government Gazette in 2017 that he had converted to Islam with the name of Anwar Hussain on May 10, 2016. Subsequently, he filed a plea before the family court seeking the dissolution of his marriage with Shanthi. In 2021, the family court granted his plea. However, dissatisfied with this decision, Shanthi filed an appeal. Upon review, the Additional District Judge overturned the family court's order.

The high court noted a peculiar aspect of the family court's decision. It pointed out that despite a 1993 order that had previously awarded maintenance to Shanthi, the trial judge had concluded that she had been cruel to her husband, leading to the grant of divorce to Balasubramanian. 

It held that the Additional District Judge had rightly set aside the decision of the trial court and the Shanthi alone could be considered as the legally wedded wife of Balasubramanian @Anwar Hussain.

Referring to the case of Lily Thomas V. Union of India (2000) decided by a division bench where it was held that a man's second marriage after converting to Islam without dissolving the first marriage is an offence punishable under the penal law, the single judge bench held that only Shanthi as well as her daughter, as the legally wedded wife and legitimate daughter of the deceased, were entitled to offer their respects in the customary religious manner.

However, court stressed that since the man had died a Muslim, he had to be buried only as per Islamic rites and customs.

"Syed Ali Fatima and Abdul Malik are of course entitled to participate in the funeral rites after Jamath takes over," court added while directing the police to ensure that both the parties adhere to the direction given by the court. 

Case Title: A.Abdul Malik v. The District Collector, Sivagangai and Others with connected matter