This Article is authored by Advocate Anil Malhotra.
THE DILEMMA OF REGISTERING A HINDU MARRIAGE
Foreign Embassies and Diplomatic Missions in India decline to process permanent settlement visa applications of local bridegrooms who wish to migrate to foreign jurisdictions after having married a foreign non-Hindu national under Hindu Marriage Act, 1955 (HMA) and have got registered such a Hindu marriage under the Special Marriage Act, 1954 (SMA) in India. The reason and logic in such refusal of a foreign High Commission is clear. Only two Hindus by religion can marry under the HMA in accordance with the customary rites and ceremonies of either party thereto. Hence, a Hindu by religion cannot solemnize a ceremonial marriage with another non-Hindu in India who is not professing the Hindu faith or religion. Consequently, in the opinion of a foreign mission, registration of such a Hindu marriage under the SMA as a marriage celebrated in other form is invalid. This stumbling block is irreparable since registration of such a marriage under the SMA is deemed to be a marriage solemnized under the SMA conferring the status of husband and wife between the parties which however is apparently not recognised or accepted by a foreign High Commission for considering a visa application of a Hindu Indian spouse. The marriage already solemnised under HMA has been registered under the SMA as a marriage celebrated in other form and cannot be re-registered again additionally as a marriage solemnized under the SMA as a special marriage since the same marriage cannot be registered twice. The paradox poses a legal dilemma for the parties.
REGISTRATION UNDER THE SMA
The HMA is an Act to amend and codify the law relating to marriage among Hindus by religion and in which only the ceremonial marriage is compulsory as registration under the HMA is optional. The SMA in contrast, is an Act to provide a special form of marriage in certain cases and for the registration of such and certain other marriages celebrated in other forms. Hence, civil registration of marriage is an essential requirement under the SMA. Thus, any two persons, irrespective of nationality or religion can perform and register their marriage as a marriage solemnized under SMA. However, SMA also additionally provides only registration of marriages which have been celebrated in other forms. Therefore, marriages solemnized under the HMA can be registered under the SMA since HMA itself does not provide for any compulsory registration. This, as a community practice is the course normally adopted by Hindus who marry non-Hindus as they register ceremonial Hindu marriages under the SMA after the traditional Hindu marriage is solemnised by performing customary rites and ceremonies of either party thereto.
CONVERSION TO HINDU RELIGION
Traditionally and conventionally unless and until a marriage is solemnized in India in accordance with customary rites and ceremonies of either party thereto, it does not gain family or community acceptance. However, overseas travel or permanent migration to a foreign country entails compulsory registration and ceremony alone does not serve the purpose. Marrying under the SMA by registration alone without ceremony also does not generally find acceptance in traditional Hindu culture. Therefore, for a non-Hindu spouse to convert to Hindu religion before solemnising a Hindu marriage is the only way to validate the Hindu marriage and to confer legal sanctity of its registration under the SMA. However, the dilemma is compounded if the non-Hindu spouse has not converted to Hindu religion before solemnising a ceremonial marriage under the HMA and the folly is realised when the foreign High Commission declines to accept the marriage certificate issued under the SMA which is accompanying the visa application for permanent immigration abroad. Retracing of steps for conversion of religion is difficult and fresh registration of the marriage again for the second time is impossible. Cancellation of the earlier registration is equally unworkable, cumbersome and may entail a lengthy process with negative results.
MODALITIES OF CONVERSION
The Constitution of India grants freedom of conscience and the right to profess, practice and propagate any religion of choice as a cherished ideal of secularism. The change from one religion to another is a consequence of an individual faith or belief and there is no precise definition of “religion”. Conversion like marriage is a solemn act. The right to conversion connotes an individual right of a person to embrace a faith or a religion in preference to the one professed by him earlier and may occur at the time of marriage. Conversion affects rights of succession, marital status and may have other social consequences. Most non-Hindu persons voluntarily embrace Hindu religion before marrying a Hindu. However, law, as declared by the Supreme Court does not prescribe any particular formalities or rituals for conversion though some religious texts require ceremonies to be performed for conversion in some religions. The law on the point as declared by the Apex Court reads as follows:
Ø In Punjabrao Vs. Dr. D.P Meshram, All India Reporter 1965 SC 1179, a Constitution Bench of the Supreme Court, interpreting the expression “profess” held that if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion, he will be taken as professing the other religion. In the face of such an open declaration, the Supreme Court held that it would be ideal to enquire further as to whether the conversion to another religion was efficacious.
Ø In Perumal Nadar Vs. Ponnuswami, All India Reporter 1971 SC 2352, the Supreme Court held that a person may be a Hindu by birth or by conversion and a mere theoretical allegiance or a bare declaration by a person does not convert him into a Hindu. But, a bonafide intention to be converted to the Hindu faith accompanied by his unequivocal intention may be sufficient evidence of conversion. However, no formal ceremony of purification or expiation is necessary to effectuate conversion.
Ø In Kailash Sonkar Vs. Maya Devi, All India Reporter, 1984 Supreme Court 600, while dealing with a case of reconversion, it was held that the main test should be a genuine intention to reconvert by a clear and a genuine intention to go back to the old fold and adopt the customs and practices of his erstwhile cast.
Ø In M. Chandra Vs. M. Thagamuthu, (2010) 9 Supreme Court Cases 712, the Apex Court held that it is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second, acceptance into the community to which the person has converted. It is obvious that the need of conversion cannot be altogether done away with).
A reading of the above clearly demonstrates that since no formal ceremony of conversion is prescribed under codified law, there seems to be a vacuum in statutory law for effectuating voluntary religious conversions. A non-Hindu may have willingly converted to the Hindu faith before solemnising a marriage as per customary Hindu rites and ceremonies, but no codified or statutory law will give him a conversion certificate. Thus, the need for enacting a process of law to afford an opportunity to produce documentary evidence of a declaration to substantiate the plea of conversion, is a necessity, moreso in the realm of NRI marriages. This will end the stalemate of uncertainty of proof of conversion required in Hindu marriages for non-Hindu spouses who have registered it under SMA and who have converted to the Hindu faith before solemnising a marriage under HMA. Like registration of marriages, even the question of recording and registering of voluntary conversions for marital purposes done before marriage could also be considered by the Parliamentarians.
VIEWS OF THE LAW COMMISSION OF INDIA
The Law Commission of India in Report No.235 on Conversion/Reconversion to Another Religion – Mode of Proof has made serious salutary recommendations that proper guidelines on the subject of religious conversions will help avoiding conflicts. It is suggested by them that within a month of the date of conversion, the converted person can send a declaration to the Officer Incharge of the registration of marriages in the concerned area, who after public notice and entertaining objections can issue a declaration recording the conversion of religion. The Law Commission is inclined to think that a separate enactment or amendments to respective personal laws is not required in this regard and the process can be implemented administratively to give effect to its recommendations. The aim, objective and goal of the Law Commission clearly seems to be to obviate the necessity of enactment of any new law on the subject which in its view can be resolved by exercise of executive power by the Central Government by issuance of communications to State Governments and Union Territories, which in turn can be implemented by Registration offices administratively. The fact remains, whether by statute law or executive instructions, the problem needs resolution. NRI marriages of Non-Hindus cannot remain in limbo. The dilemma of proving conversion before marrying voluntarily must be simplified. The process of law must provide an answer for a consistent clear path to be followed which should be transparent, uniform and visible easily to all those who need it.