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The Hindu Marriage Act, 1955 In Different Category Of People

India is a land of diversities inhabited by people belonging different cultures, castes and religions. While substantive and procedural civil and criminal laws are uniformly applied to all, personal laws vary from religion to religion. In many cases, amongst the followers of a particular faith, laws are not made uniformly applicable.

Personal laws encompass those laws which are applied to the private aspects of an individual's life belonging to a certain religion. They are essential to govern and regulate the obligations like marriage, succession etcetera, that affect the smallest unit of a society, that is, family. To amend and codify the law relating to marriage among Hindus, the Hindu Marriage Act, 1955.

About The Act:
The Hindu Code Bill was enacted by the Parliament as the Hindu Marriage Act, 1955 for codifying the marriage-associated laws among Hindus and includes Buddhists, Jains and Sikhs. It directs as well as regulates the system for a legal marital relationship which includes, inter alia, conditions for a valid marriage, solemnization, and divorce.

Meaning Of Hindu:

Before studying Hindu law, a very important question that comes to our mind is that who is a Hindu? In Ashima v Narendra[1], the court opined that the Hindu culture is so diverse that it is impossible to define what exactly Hinduism is?

The orthodox concept of the term Hindu has undergone a radical change and it has been given an extended meaning. In the landmark case of Sastri Yagnapurushadji v Muldas Brudardas Vaishya[2], Gajendragadkar J. said:
Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. Hence, the Supreme Court developed by Tilak, that is:
acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse; and realization of the truth that the number of Gods to be worshipped is large can be considered as a Hindu.

Applicability Of The Act

The Act as well as other codifying statutes of Hindu Law do not purport to define who is a Hindu. Rather, the Sections mention the different category of people to whom they are applicable. Hence, the Hindu law will be applicable upon such people as they are Hindus in the eyes of law irrespective whether they follow any principle of Hindu law or not. Section 2(1) of the Act mentions the different category of persons governed by it.

Cults and Movements in Hinduism: Clause (a) stipulates that it applies:
to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

There were certain movements against the orthodox practices in Hinduism. The followers of Brahmo Samaj known as Brahmos, are reformers of Hinduism who profess to restore the Hindu faith to its original purity. Raja Ram Mohan Roy, the founder of this cult, propounded a monotheistic interpretation of the Vedas. Members of the Arya Samaj, founded by Swami Dayanand Saraswati, believe in the unity of God and the Vedas.

They discard idol worship and are against Class distinction. The followers of Radhaswami sect recognize an impersonal deity and name it as Radha Swami Dayal, the Supreme Being. The deity is represented on this earth by a human being called sansadguru. They believe that salvation lies being in the closest possible proximity of the guru.

The Satsangi cult founded by Ramanuja believe that an individual is enjoined to follow the basic Vedic injunction of good, pious, and religious life, and that the path of salvation lies in the devotion to Lord Krishna. The Swayamariyathis or self-respecters is an anti-purohit cult, which does not believe in caste distinctions arid in ritual and ceremonial aspect of Hinduism.

Since the Brahmo Samaj does not require renunciation of one's existing religion to follow the universal core principles of the Brahmo Samaj in one's everyday life, it was held in the Privy Council judgement of Rani Bhagwan Koer v J.C. Bose[3] that:
if a Hindu follows the Brahmo Samaj it does not mean that he ceases to be a Hindu.

Likewise, in B. Shyamsunder v Shankar Deo Vedalankar[4], the Court opined:
Arya Samaj, unlike Christianity or Islam, is not a new religion entirely distinct from Hinduism and that the mere profession of Arya Samajism by a person does not make him cease to be a Hindu and cannot have the effect of excluding him from Hinduism.

Religion: Clause (b) mandates that it applies:
To any person who is a Buddhist, Jaina or Sikh by religion.
  1. Buddhism:
    Buddhism evolved in Ancient India between 6th to 4th centuries BCE. It is based on the teachings and practices attributed to Lord Buddha. Although there are similarities in certain terminologies, it is different from Hinduism as inter alia, it repudiates caste distinctions, preaches practically a total negation of life (Virakti). The Court held in Ram Pergash v Mst. Dahan[5] that the Buddhists are governed by Hindu law as modified by custom prevalent and recognized among them. It was reiterated in Vanni v Vannichi[6] that the codified Hindu law applied to the Buddhists just as it applies any other Hindu.
     
  2. Jainism:
    SASTRI J. asserted in Boddaladi v Boddaladi[7] that Jainism has an origin and history much anterior to the Smritis. Jainism rejects the authority of the Vedas and discards all ceremonies and rituals. Jainism does not believe in the existence of God. It holds that by tapasya, by discarding worldly life and its manifestations, Atma can become Paramatma and thus, one can attain salvation (Moksha). Hence, it can be concluded that Jainism as a religion is different from Hinduism, but both the codified and uncodified Hindu law applies to Jains.[8]
     
  3. Sikhism:
    Sikhs are dissenters from Hinduism. According to the 1st Sikh guru, Guru Nanak Dev Ji, God is one. Sikhism discards all forms of Hindu worship and class distinctions. Its tenets are essentially theistic, viz., God is one, the omnipotent, omnipresent, omniscient; everyone should worship only one God, instead of innumerable Gods and Goddesses, and should earn his living with his own labour and skill. However, the Court observed in Inder Singh vs Sadhu Singh[9] that even if it cannot be strictly said that Sikhs are still Hindus in the true religious sense they would nevertheless still be governed by Hindu law in those matters regarding which no other law has been either enacted by statute for the Sikhs, or established by custom amongst them.

It was so because although the Anand Marriage Law was enacted in 1909, there was no provision for registration of marriages and they were registered under the Act. A major development happened on 7 June, 2012 with the then President giving his assent to the Anand Marriage (Amendment) Bill, 2012. This allowed the Sikhs to register their marriage, if it was solemnized by the Sikh marriage ceremony called Anand Karaj, under the Anand Marriage Act instead of the Hindu Marriage Act. Presently, over 13 states have notified the Anand Marriage Act allowing for the registration of such marriages. However, for all other rights and obligations other than the registration of an Anand Karaj marriage, they still turn to the Act.

Any person not a Muslim, Christian, Jew or Parsi by religion

Clause (c) stipulates that the Act applies to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation To Section 2(1) further recognizes Hindu by two categories:
Birth
The following persons to whom the Act is applicable:
  1. any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
  2. any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.
From explanation (b), it can be inferred that the parent might be father or mother, but it is necessary that the child must be brought up as a Hindu. The term ‘belonged' here means that if, subsequent to the child's birth, the parent who was a Hindu, Buddhist, Jaina, or Sikh converts into any other religion, the child will continue to be Hindu provided he is brought up as a Hindu.

With the passage of time, the judicial system has settled various controversies regarding these two provisions. In C.W.T. v R. Shridharan[10], the court held that where a Hindu male had married a Christian female and the child was brought up as a Hindu, the family would be treated as Hindu undivided family governed by Hindu laws. Likewise, in Menaka Gandhi v Indira Gandhi[11], the Court held Sanjay Gandhi to be a Hindu as:
  • One of his parents, namely his mother, was a Hindu.
  • He was brought up as a Hindu as he was a member of joint family, a concept which is only known to Hindu law, and did not have ‘Navjot' to prove that he had been initiated into Parsi Zoroastrian religion.
A landmark case on this provision is Sapna Jacob v The State of Kerala[12], the facts of which are as follows: The petitioner, a minor, was born out of a wedlock where her mother was a member of the Scheduled Caste being a Hindu by religion and Pulaya by caste and her father was a Christian. She sought benefit of reservation for admission in Medical/Agricultural courses on the ground that she and her mother were not baptised and did not convert to Christianity. As she was born of an inter-caste marriage between a Scheduled Caste and a non-Scheduled Caste, she should be considered a member of the Scheduled Caste.

Balakrishnan, J. observed the following points:
  • She failed to establish a bona fide intention to be converted to the Hindu faith accompanied by conduct or unequivocally expressing that intention.
     
  • Since no formal ceremony of purification or expiation is necessary to effectuate conversion, she is a Christian by birth as born to a Jacobite Christian.
     
  • It may be true that the court cannot test or gauge the sincerity of religious belief; or where there is no question of the genuineness of a person's belief in a certain religion, the court cannot measure its depth or determine whether it is an intelligent conviction or ignorant and superficial fancy. But a court can find the true intention of men lying behind their acts and can certainly find from the circumstances of a case whether a pretended conversion was really a means to some further end. In the instant case the petitioner's mother after marrying V.M. Jacob changed her name as Uma Jacob. The petitioner's name is Sapna Jacob, admittedly a Christian name. There is nothing in evidence to show that the petitioner ever led a Hindu mode of life.
     
  • Being the daughter of V. M. Jacob, a Jacobite Christian, she is neither Pulaya by caste nor Hindu by birth and thus, cannot be entitled to seek benefit of reservation in the Scheduled Caste category.

In Vijayakumari v Devabalan[13], the Court quoted N.R. Raghavachary's Hindu Law at page 21:
Illegitimacy is no bar to the applicability of the Hindu Law, but in that case either both the parents must be Hindus, or at least the mother must be a Hindu and the child brought up as a Hindu, though the father is a Christian. If the mother is a non-Hindu, for instance, a Christian, or a Mohammedan, Hindu Law has no application to the illegitimate child, the reason being that the religion of such children is to be fixed by the religion to which the mother belongs. In a nutshell, the judgement followed that an illegitimate child would follow the religion of her mother, when governed by Hindu law.

Conversion Or Re-Conversion

Explanation (c) mandates that the Act applies to any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. Hence, a person who is not Hindu by birth, can come under the operation of this Act by conversion or re-conversion to any of these religions.

Conversion:

Conversion like marriage is a solemn act. Conversion from one religion to another has far reaching consequences – social and legal. It affects succession, marital status and also the right to seek elective office.

The landmark case of Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor)[14], the facts of which are:
Annapazham, an Indian Christian was married to Perumal Nadar, a Hindu in accordance with Hindu ceremonies and rights.

They also entered into an agreement that they shall be, henceforth, governed by Mitakshara Law. A son, Ponnuswami, was born of this marriage. After that the relationship between Perumal and Annapazham was strained. Son and mother lived separately from Perumal. The minor son, acting through mother, filed a suit against father for half of the share in the property.

The Apex Court established some concrete principles in light of conversion to Hinduism:
· A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism.
· But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion.
· No formal ceremony of purification or expiation is necessary to effectuate conversion.

Therefore, the Courts have accepted that the bona fide intention, express or implied, of a person to live as a Hindu, and acceptance of such person by the members of the community or caste into which he/she is converting, is sufficient to consider him/her as Hindu.

Re-Conversion:

An individual who became a Hindu after converting to a non-Hindu religion and then returning to Hinduism is also a Hindu. Thus, a person who became a Hindu after converting to a non-Hindu religion may return to Hinduism, Buddhism, Jainism, or Sikhism and become a Hindu again. The re-conversion to the same religion from which he converted to the non-Hindu religion is not needed.

In S. Anbalagan vs B. Devarajan[15], a person, whose parents had converted into Christianity and who was also baptized when we was seven months old, reconverted to Hindu to Adi Dravida caste. As a reconvert, he ran for a reserved seat in the general election and won. His election was contested on the grounds that, as a Christian, he did not belong to the Adi Dravida caste and therefore could not contest from the reserved seat.

After referring to various precedents and considering the facts, REDDY, J. observed that even if the above facts are true, it was clearly established that he had long ago converted to Hinduism and joined the Adi Dravida Caste. He never professed Christianity after reaching adulthood, only practising Hinduism, and was regarded as an Adi Dravida by the members of the caste in question.

He further opined in regard to caste status of the person on conversion or re-conversion to Hinduism:
No particular ceremony is prescribed for conversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion… If it disappears, only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion.

Conclusion:
After critically analysing the numerous provisions and judgements, it can be concluded that if an individual observes, professes, and follows any of these religions, he is considered a Hindu, Buddhist, Jaina, or Sikh. Furthermore, even though he does not observe, profess, or obey the tenets of any of these religions, he remains a Hindu. So, unless a person a does not belong to a non-Hindu religion or has converted to one, such person will be governed by this Act.

References:
  • Niranjan B., Legal Rights of a Person Who is a Hindu by Conversion, (Apr. 19, 2021), https://www.shareyouressays.com/knowledge/legal-rights-of-a-person-who-is-a-hindu-by-conversion/117388.
  • Rachit Garg, Hindu law notes, iPLEADERS, (Apr. 19, 2021), https://blog.ipleaders.in/hindu-law-notes/.
  • Laksheyender Kumar, Salient features of the Hindu Marriage Act, 1955, Legal Service India, (Apr. 19, 2021), http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage-Act,1955.html#:~:text=The%20Act%20applies%20to%20three,Parsi%20or%20Jew%20by%20religion.
  • Conversion/reconversion to another religion - mode of proof, (2010), Law Commission of India, pp.9-12, https://lawcommissionofindia.nic.in/reports/report235.pdf.
End-Notes:
  1. AIR 6 Cal W N. 1016
  2. 1966 AIR 1119, 1966 SCR (3) 242.
  3. (1903) 301 A 249.
  4. AIR 1960 Kant 27.
  5. (1924) 3 Pat. 152.
  6. (1924) 51 Mad. (FB).
  7. (1927) 50 Mad. 228.
  8. Chote Lal v Chhoonoo Lal, (1879) 4 Cal 744 (PC)
  9. AIR 1943 Cal 479.
  10. 1976 H LR 600 (SC).
  11. AIR 1985 Delhi 114, 1984 (7) DRJ 238.
  12. AIR 1993 Ker 75.
  13. AIR 2003 Ker 363.
  14. 1971 AIR 2352, 1971 SCR (1) 49.
  15. 1984 AIR 411, 1984 SCR (1) 973.

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