IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 339 of 2009()
1. BETSY, AGED 38 YEARS, W/O. THATTAN
... Petitioner
2. SADANDAN, AGED 45 YEARS, S/O. THATTAN
Vs
1. NIL
... Respondent
For Petitioner :SRI.DINESH MATHEW J.MURICKEN
For Respondent :SRI.C.S.DIAS(AMICUS CURIAE)
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/10/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
* * * * * * * * * * * * *
Mat.Appeal No.339 of 2009
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Dated this the 16th day of October 2009
J U D G M E N T
Basant,J
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
conversion 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 1st appellant was a Christian by
birth. She continued to be a Christian till she contemplated
marriage. The young couple belonging to different religions had
Mat.Appeal No.339/09 2
fallen in love. Before marriage, according to the 1st appellant,
she had converted to Hindu. 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.
Mat.Appeal No.339/09 3
“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 solemnisation
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 was 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
Mat.Appeal No.339/09 4
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
Mat.Appeal No.339/09 5
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 herein 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
Mat.Appeal No.339/09 6
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
[1971 Supreme Court 2352]. In paragraph 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 paragraph 6.
“A person may be a Hindu by birth or by
conversion. A mere theoretical allegiance to theMat.Appeal No.339/09 7
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 paragraph 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 paragraph 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
Mat.Appeal No.339/09 8
learned counsel relied on the following observations and
paragraph 14 of the decision in AIR 1966 Supreme Court
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.”
Mat.Appeal No.339/09 9
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 Sapna Jacob v. State of Kerala [AIR 1993
KERALA 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 a 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
0000000000000000000000000000000true 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.”
Mat.Appeal No.339/09 10
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
Mat.Appeal No.339/09 11
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
Mat.Appeal No.339/09 12
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 recognises
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
Mat.Appeal No.339/09 13
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. But certainly the freedom of faith guaranteed by
the Constitution may not justify 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.
b) The impugned order is set aside.
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
02/11/2009 .
16. The registry shall forthwith send back the records to
the Family Court. A copy of this judgment shall be handed over
Mat.Appeal No.339/09 14
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 02/11/2009 after giving the parties opportunity to
amend the pleadings, if necessary and adduce further evidence.
Compliance shall be reported to this court.
16. Registry shall forward copies of this 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 paragraph 15 above on the need for legislation.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
jsr
Mat.Appeal No.339/09 15
Mat.Appeal No.339/09 16
R.BASANT & M.C.HARI RANI, JJ.
.No. of 200
ORDER/JUDGMENT
29/07/2009