Applicability of the Hindu Marriage Act

 APPLICABILITY OF THE HIDNU MARRIAGE ACT

By: Robin Pandey                                                                                             Date: 12/03/2022

Who are subject to HMA?

 Section 2 specifies the persons to whom the HMA applies. It explains, who are Hindus for the purposes of this Act. 

Section 2: Application of the 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 other 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 would not have been governed by the Hindu law or

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

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

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, (b) 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 reconvert 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 the Section.” 

Act applies to three types of Persons 

(i) Who are Hindus by religion in any of its forms or developments. 

(ii) Who are Buddhists, Jains or Sikhs by religion, and 

(iii) Who domiciled in the territory to which this Act extends and not a Muslim, Christian, Parsi or Jew by religion. 

Act does not apply to following types of Persons

(i) Who have renounced the Hindu religion and have become converts to some other religion. 

(ii) Persons, who descended from Hindu ancestors and on account of marriage or on account of some new occupation converted into new community having their own religion and usages.

(iii) Children, whose one of the parents though a Hindu, are not brought up as Hindus.

Who are Hindus? 

Till this day there is no precise definition of the term 'Hindu' available either in any statute or in any judicial decision. However, since Hindu law applies to all those persons who are Hindus, it is necessary to know who are Hindus. The answer lies in the question: to whom does Hindu law apply? The persons to whom Hindu law applies may be put in the following three categories:

(i) Any person who is a Hindu, Jain, Sikh or Buddhist by religion i.e. Hindu by religion.

(ii) Any person who is born of Hindu parents (both or even one of the parties) i.e. Hindus by birth 

(iii) Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law.

Presumption of Section 2(1)(c): This provision raises a presumption that a person who is not known to be a Muslim, Christian, Parsi or Jew shall be considered to be a Hindu for the purposes of this Act. But It is a rebuttable presumption as contemplated in Section 2(1)(c) itself. A person who does not know the religion to which he belongs but it brought up in India as a Hindu will be governed by this Act. 

Hindus by Birth 

Under Modern Hindu law, a person will be a Hindu by birth if:

(i) both of his parents are Hindu, or 

(ii) one of the parents is a Hindu and he is brought up as a Hindu. Such child is Hindu irrespective of fact he/she is legitimate or illegitimate. In case after the birth of the child both or one of the parents convert to another religion, the child will continue to be a Hindu unless, in the exercise of their parental right, they also convert the child into the religion in which either or both of the parents have converted.

Hindus by Religion 

This category includes two types of persons: 

(a) Those who are originally Hindus, Jains, Sikhs or Buddhists by religion. As rightly observed by the Hon'ble Supreme Court in Chandarsekhar v. Kulandaivela (AIR, 1963, SC 185): Any person who is a Hindu, Jain, Buddhist or Sikh by religion is a Hindu if: (i) he practises, professes or follows any of these religions, and (ii) he remains a Hindu even if he does not practise, profess or follow the tenets of any one of these religions. Thus, a person does not cease to be a Hindu if he becomes an atheist, or dissents or deviates from the central doctrines of Hinduism, or lapses from orthodox practices, or adopts western way of life, or eats beefs. 

(b) Those who are converts or reconverts to Hindu, Jain, Sikh or Buddhist religion.

A person who ceases to be a Hindu by converting to a non-Hindu religion will again become Hindu if he reconverts to any of the four religions of Hindus. [Explanation (c) to Section 2(1)].

 A non-Hindu will become a Hindu by conversion: 

(i) if he undergoes a formal ceremony of conversion or reconversion prescribed by the caste or community to which he converts or reconverts; or  

(i) if he expresses a bona fide intention to become Hindu accompanied by conduct unequivocally expressing that intention coupled with the acceptance of him as a member of the community into the fold of which he was ushered into Perumal v. Poonuswami  (1971).

Further, when a person declares that he is a follower of Hindu faith and if such a declaration is bona fide and not made with any ulterior motive or intention to his having accepted the Hindu approach to God. He becomes a Hindu by conversion (Mohandas v. Dewaswon Board, 1975).

Scheduled Tribes |Section 2(2)]

 Section 2(2) excludes the application of this Act to the Scheduled Tribes. It provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by Notification in the Official Gazette, otherwise directs. Most of the Scheduled Tribes are still governed by customs. In Lakshmi Tudu v. Basi Majhian (2004) it was held that though the Act is not applicable to Schedule Tribes, the parties originally belonging to Santhal Schedule Tribe became 'Hinduised' as shown by evidence or record and followed Hindu traditions cannot be excluded from the application of the HMA.