Kerala High Court
Betsy vs Nil on 16 October, 2009
Equivalent citations: AIR 2010 (NOC) 333 (KER.), 2010 AIHC (NOC) 477 (KER.)
Bench: R.Basant, M.C.Hari Rani
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 the Mat.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