MANU/KE/1087/2009

Equivalent Citation: 2009(4)KLT631

IN THE HIGH COURT OF KERALA

Mat. Appeal. No. 339 of 2009

Decided On: 16.10.2009

Appellants: In Re:  Betsy  and Sadanandan

Hon'ble Judges: 
R. Basant and M.C. Hari Rani, JJ.

Counsels: 
For Appellant/Petitioner/Plaintiff: Dinesh Mathew J. Muricken and P.V. Balakrishnan, Advs.

As Amicus Curiae: C.S. Dias, Adv.

Subject: Family

Catch Words

Mentioned IN

Acts/Rules/Orders: 
Hindu Marriage Act, 1955 - Sections 2, 2(1), 13 and 13B; Hindu Law; Constitution of India - Article
366

Cases Referred: 
Perumal v. Ponnuswami AIR 1971 SC 2352; Yagnapurushdas v. Muldas AIR 1966 SC 1119; Ram
Mohandas v. Travancore Devaswom Board 1975 KLT 55; Shpna Jacob v. State of Kerala 1992 (2) KLT
657 : AIR 1993 Ker. 75

Disposition: 
Appeal allowed

JUDGMENT

R. Basant, J.

1. How are the expressions "convert or reconvert" in Explanation (c) to Section 2(1) of the Hindu
Marriage Act to be understood and interpreted? In the absence of any specific procedure prescribed
under pristine Hindu law, custom and statute, how is the court to hold whether there has been such
con version or reconversion to Hinduism? Is there not immediate need for legislature intervention and
stipulation on this aspect to make law intelligible and user friendly? These questions disturbingly
agitate the mind of this Court in this Matrimonial Appeal
2. The petitioners have come to this Court aggrieved by the dismissal of their joint application for
divorce by mutual consent under Section 13B of the Hindu Marriage Act. The appellants claim to be
spouses. The 2nd appellant is a person who by birth, is a Hindu. The Ist appellant was a Christian by
birth. She continued to be a Christian till she contemplated marriage. Theyoung couple belonging to
different religions had fallen in love. Before marriage, according to the 1st' appellant, she had
converted to Hinduism. Their marriage took place in accordance with the Hindu religious rites and
rituals. Their marriage was registered at the Misravivaha Sangam Office at Cherpu. The marriage was
solemnised on 16.7.1989. Strain developed in the matrimony. Disputes between them reached the
court. O.P. No. 1340/07 was filed by the wife against the husband claiming return of money and
articles.

3. All disputes were settled by them. They prayed in their joint application that their marriage may be
dissolved by mutual consent under Section 13B of the Hindu Marriage Act.

4. There was no one to oppose the application and according to the appellants their affidavits were
filed. It is further submitted that an affidavit of the witness, who had attended the marriage, had also
been filed. The court below does not, in the impugned order, refer to the same. The records sent to us
show that a copy of the affidavit filed by the stranger/witness dated 15.11.2007 is available in the file.
The court below, by the impugned order, took the view that there is no valid solemnisation of
marriage as per the Hindu Marriage Act. The relevant observations and findings of the court are
extracted below.

Point: First petitioner is a Christian by religion and second petitioner is a Hindu. Their marriage was
registered on 16.7.1989 at Cherpu Misravivaham office. Petitioners contend that first petitioner was
professing Hindu religion and marriage was solemnised as per Hindu Marriage Act. Hindu Marriage Act
provides for marriage between 2 Hindus. Marriage was not registered as per Special Marriage Act.
Petitioner has no case that she was converted into Hindu. Further there is no valid solemnisation of
marriage according to Hindu custom and rites. Marriage registered before Misravivaha Sangam Office
is not a marriage as per Hindu custom and rites. At any rate, there is no valid solemnization of
marriage. Therefore the petition filed under Section 13(b) of the Hindu Marriage Act is not
maintainable. In the absence of valid solemnisation of marriage there cannot be a legal divorce.

5. The learned Counsel for the appellants submits that the stand taken up by the court below is
absolutely incorrect and perverse. Parties have asserted that they were Hindus and they got married
in accordance with the Hindu rites and ceremonies. There were no objections filed by anyone. In these
circumstances, if the court entertained any reservation on the question whether the parties are Hindus
and whether there was due solemnisation of marriage in accordance with the provisions of the Hindu
Marriage Act, the court below must have notified the parties about the alleged inadequacy felt by the
court and must have given them an opportunity to adduce appropriate evidence. The learned Counsel
for the appellants submits that they have satisfactory evidence to place before court that the 1st
appellant had embraced Hinduism prior to her marriage with the 2nd appellant and that they had got
married in accordance with the Hindu religious rites and ceremonies. The appellants would have
tendered evidence before the court below to show that the 1st appellant had become a Hindu prior to
the solemnisation of marriage, that the marriage was solemnised in accordance with the Hindu
religious rites and customs and also they were living as Hindus thereafter. The learned Counsel
laments that the court below did not sympathetically and with compassion consider the plight of the
two children born in the wedlock. If the court were to hold on unsatisfactory grounds that the
marriage of their parents is not legal and valid, their legitimacy will unfortunately be in jeopardy . In
these circumstances, the learned Counsel prays that, at any rate, the matter may be remanded to the
court below with directions to permit the appellants to adduce further evidence and to dispose of the
case at the earliest.

6. A question arises as to how the appellants can prove that the 1st appellant is a Hindu. On that
aspect, arguments are advanced before court. Reliance is placed on the identical definitions of a Hindu
appearing in the various statutes in the Hindu Code. We extract below Section 2 of the Hindu Marriage
Act which stipulates the applicability of the Hindu Marriage Act.
2. Application of Act.-- (1) This Act applies:

(a) 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;

(b) to any person who is a Buddhist, Jaina or Sikh by religion; and

(c) 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 here in if this Act had not been passed.

Explanation: The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case
may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs
by religion;

(b) 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; and

(c) any person who is a convert or re-convert to the Hindu. Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to
the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the
Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who,
though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the
provisions contained in this section.

(emphasis supplied)

7. According to the appellants, the 1st appellant, though a Christian by birth, is a Hindu under
Explanation (c) to Section 2(1).

8. That leads us to the question as to how a person can be converted or re-converted to the Hindu
religion. Conversion to Hinduism was a concept not known earlier as Hindu religion is peculiar and
does not accept any specified method of conversion. How can a person be said to have converted or
re-converted to Hinduism? This is the vexing question that the appellants face. This Court requested
Adv. C.S. Dias to assist this Court as Amicus Curiae. We acknowledge the work done by him to assist
the court. The learned Counsel appearing for the petitioner Shri. P.V. Balakrishnan has also rendered
sublime assistance to this Court. The learned Counsel places reliance first of all on the decision of the
Supreme Court in Perumal v. Ponnuswami MANU/SC/0361/1970 : AIR 1971 SC 2352. In para. 6 of
the said judgment, there is reference to the concept of conversion so far as a Hindu is concerned. We
extract below the relevant passage in para. 6.

A person may be a Hindu by birth or by conversion. 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.
9. The learned Counsel for the appellants and the amicus curiae, then bring to our notice para. 9 of
the said decision in which it is stated that the fact that the parties have gone through a form of
marriage recognised by Hindu religious rites and ceremonies is an indication of the fact of conversion .
The following passage in para. 9 is relied on.

Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold
that she was not converted to Hinduism before the marriage ceremony was performed. The fact that
Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the
presence of a large number of persons clearly indicates that he accepted that Annapazham was
converted to Hinduism before the marriage ceremony was performed.

10. The question as to who is a Hindu and how a person can be converted to Hinduism has attracted
the attention of courts earlier. The definition of Hindu religion and the precise test to identify Hindu
appear to be difficult and elusive. The learned Counsel relied on the following observations and para.
14 of the decision in MANU/SC/0040/1966 : AIR 1966 SC 1119 (Yagnapurushdas v. Muldas).

Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu
religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory.
Said Tilak: "Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to
salvation are diverse; and realisation of the truth that the number of gods to be worshipped is large,
that indeed is the distinguishing feature of Hindu religion (II-A)". This definition brings out succinctly
the broad distinctive features of Hindu religion.

Inherent in such a philosophical definition is the unenviable predicament and dilemma of a court called
upon to identify a convert to Hinduism.

11. A learned Single Judge of this Court was later called upon to precisely identify the test to decide
whether a person has converted to Hinduism. Hon'ble Justice Mr. T. Chandrasekhara Menon in Ram
Mohandas v. Travancore Devaswom Board 1975 KLT 55, after referring in detail to the decision in
Perumal (supra) finally observed as follows:

Therefore when a person declares that he is a follower of Hindu faith also, as long as that declaration
is not challenged as made mala fide or with ulterior intentions, it has to be taken as his having
accepted the Hindu approach to God. He has become a Hindu by conviction.

This definition of a Hindu by conviction does not also help the court to formulate an easy, simple and
specific litmus test to identify a Hindu by conversion or reconversion.

12. The learned Counsel have drawn our attention also to the decision in Shpna Jacob v. State of
Kerala MANU/KE/0017/1993 : 1992 (2) KLT 657 : AIR 1993 Ker. 75. That is also a case where a
child born to parents, one of whom belonged to the Hindu religion, had asserted a claim that she is a
Hindu. The observations made by Hon'ble Justice Mr. K.G. Balakrishnan in that decision appear to us
to be of relevance in the context.

In order to prove that the petitioner was a member of the Hindu community she must have
established that there was a bona fide intention to be converted to the Hindu faith accompanied by
conduct or unequivocally expressing that intention. It is true that no formal ceremony of purification
or expiation is necessary to effectuate conversion. The petitioner is admittedly the daughter of a
Jacobite Christian. So by birth she is a Christian. A convert must embrace Hinduism and follow the
cultural system and tradition of that religion and should take the Hindu mode of life. It may be true
that the court cannot test or guage 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.
We need only mention that easy identification of the religion of a person in the event of a controversy
does not appear to be possible even with the aid of this decision.

13. But the courts cannot throw their hands up. Resolve they must, in the event of controversy or
conscientious and objective doubt (even when parties raise no controversy) of the question whether
there was conversion or reconversion to Hinduism in a given case as asserted by the litigant. We are
certain that it must be possible for the court below with the help of the above guidelines, on the basis
of evidence presently available and further evidence that may be adduced, to decide whether the 1st
appellant has become a Hindu by conversion under Explanation (c) to Section 2(1) of the Hindu
Marriage Act. We may broadly indicate that an assertion of the 1st appellant that she had, prior to her
marriage, embraced Hinduism will have to be given due weight. She can explain the assertion and
satisfy the court that the tests indicated above have been satisfied by her in accepting conversion to
Hinduism. She can prove the conduct of having her marriage with the 2nd appellant solemnised in
accordance with Hindu religious rites and ceremonies. She can certainly show before court that she
had, after such conversion, been worshipping Hindu Gods. She can also adduce evidence to show that
after such conversion, she has held out to the world that she is a Hindu. All these circumstances, if
established, we find no reason why the uncontroverted assertion of the appellants that the 1st
appellant had become a Hindu by conversion before marriage cannot be accepted and the marriage
performed in accordance with Hindu rites cannot be accepted as valid under the Hindu Marriage Act by
the court below.

14. With liberty to the appellants to adduce further evidence and amend their pleadings, if necessary,
the matter can be sent back to the court below. We specify that permission can be given to amend the
pleadings because the learned Counsel for the appellants have drawn our attention to the averments
made in O.P. No. 1314/07. At a time, when the present proceedings were not in the contemplation of
the parties at all, averments have been made in O.P. No. 1314 of 2007 that there has been a bona
fide conversion prior to the marriage and solemnisation of marriage in accordance with Hindu rites.
The court below shall hence permit appropriate amendments also.

15. We must, in this context, note that the stipulation in Clause (c) of Explanation to Section 2(1) of
the Hindu Marriage Act which shows that a conversion or re-conversion to Hinduism can take place
and the absence of any stipulations of law or specific recognised practices to facilitate such conversion
is causing great difficulties to the parties. It should not be impossible for the Legislature to prescribe
the methods by which a person, without any difficulty, can effectuate such conversion. He should not
be left before courts to adduce exhaustive evidence to prove such conversion. The law which
recognizes such conversion must also be in a position to prescribe how the parties, without the
necessity to get involved in unnecessary and time consuming litigations, can declare to the world such
conversion. Appropriate stipulations of law appear to be necessary on this aspect in respect of
conversions to and from all religions. Simple statutory stipulation applicable for all religions of filing of
an affidavit of solemn declaration before a registering (statutory) authority (who must give the
declarant sufficient time to dispassionately contemplate and confirm the declaration) and acceptance
and recording of such reconfirmed declaration by the authority in a register maintained under the
statute for that purpose after elapse of a stipulated period and after calling for and hearing of
objections if any of any interested party, will make the procedure simple, user friendly and less
cumbersome. Such stipulations will save many a citizen like the petitioners herein of the tedious
obligation to get involved in time consuming and unnecessary legal proceedings and litigation.
Religious conversions may appear to many in the Indian mindset to be unnecessary, puerile and
negation of the very concept of respect for both religions as also the followers of such religion.
Butcertainlythefreedomoffaith guaranteed by the Constitution maynotjustify the negation of the right
to pursue the chosen faith, by conversion where necessary. Such a law when it is enacted ultimately
shall, we do hope, also respect the rights of the citizen in this secular country to declare that he
belongs to no religion at all or that he does belong to humanity with no walls of religion to seggregate
him from any other.

16. In the result,

a) This appeal is allowed.

c) The Family Court, Thrissur is directed to dispose of O.P.No. 1374/08 afresh in accordance with law
and specifically in the light of the observations made above.

d) The parties shall appear before the Family Court on 2.11.2009.

17. The Registry shall forthwith send back the records to the Family Court. A copy of this judgment
shall be handed over to the learned counsel for the appellant for production before the Family Court.
The Family Court shall dispose of the matter as expeditiously as possible, at any rate, within a period
of one month from 2.11.2009 after giving the parties opportunity to amend the pleadings, if necessary
and adduce further evidence. Compliance shall be reported to this court.

18. Registry shall forward copies of mis judgment to the Chairman, Law Commission of India and also
to the Secretary, Ministry of Law and Justice, Union of India to invite their attention to para. 15 above,
on the need for legislation.

© Manupatra Information Solutions Pvt. Ltd.