May 2021

Week Duration: 18/05/2021 to 18/05/2021

Practice Test 71: Hindu Marriage Act, 1955

Practice Test 3: Family Law: Topic: Hindu Marriage Act,

1955(Preliminary): Level: Easy

- Attempting all questions is compulsory.

- Please see the Mains Answer-writing guidelines shared in email for greater
details on marking and submissions.

Question 1

Who is a ‘Hindu’ as per the Hindu Marriage Act, 1955? Explain with relevant
case laws.

[8]

Answer: As per Section 2 of Hindu Marriage Act, the term ‘Hindu’ includes:

1. Any person who is a Hindu, Jain, Sikh or Buddhist;

2. Any person who is born of Hindu Parents;

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

The three categories are discussed in detail below:

Hindu by religion

A person who practices or professes Hindu religion is considered as ‘Hindu’. In the

case of Shastri v Muldas [1966], the Supreme Court made an attempt to define the
term ‘Hindu’ in terms of religion. It was said that there is acceptance of basic Hindu
philosophy that Vedas are the highest authority in religion. The satsangis,
radhaswami and arya samajis belong to Hindu religion as they originated under
Hindu philosophy.

Conversion and reconversion to Hinduism

As per Section 2, if any person converts to Hinduism, Jainism, Buddhism or Sikhism

is a Hindu. Moreover, if a Hindu converts to any other religion and then reconverts to
Hinduism then he will also be considered a Hindu. In the case of Perumal v
Poonuswami [1971], the Supreme Court observed that a person may be a Hindu by
birth or by conversion. In order to convert to Hinduism there is no formal ceremony
but the bona fide intention and conduct expressing that intention would be sufficient.

Hindu by birth

If both the parents are Hindus then a child is considered to be a Hindu. It is

immaterial if the child is legitimate, illegitimate, does not practice or professes the
religion. In those cases, where one of the parents is a Hindu and he is brought up in
such a family then he will be considered as a Hindu. It is not necessary that the
religion of the child will be the same as his father’s. This could be understood from
explanation [b] of Section 2[1].

Persons who are not Muslims, Christians, Parsis or Jews

If any person does not belong to any of the four mentioned religions, then he will be
governed by Hindu law unless it is proved that Hindu law is not applicable to such a
person.

Role of Domicile

Hindu law is also applicable on those people residing outside India but has a
domicile. Domicile is by birth, choice, operation of law and origin. In the case of
Sondur Gopal v Sondur Rajni [2013], this principle was upheld and extra territorial
application of the Act was allowed.

In the case of Yagnapurusholasji v Vaishya [1966], the Supreme court considered

the question of who are Hindus and said that the word Hindu is derived from the
word Sindhu, otherwise known as Indus river. Initially, the word ‘Hindu’ had a
territorial significance which has changed in recent times. The Hindu Marriage Act
does not give an exact definition of the term ‘Hindu’ and states the list of people on
whom the Act will apply and they are considered as Hindus.

Question 2

Examine the below stated two situations

(a) X a muslim converted himself into Hindu

(b) Hindu converted into Christian and again re-converted into Hindu .

Are the situations (a) and (b) applicable under Hindu Law? Comment.

[4+4]

Answer:

(A) Issue:- The issue at hand is that X, a person who has converted himself to
Hinduism will be considered of that religion.

Rule:- The explanation [c] to Section 2[1] of the Hindu Marriage Act states that the
Act will be applicable to “any person who is a convert or re-convert to the Hindu,
Buddhist, Jain or Sikh religion.”

Analysis:- This means that Hindu Marriage Act is applicable on those people who
were not originally Hindus but have converted themselves from any other religion.
This principle was upheld by the court in the case of Maneka Gandhi v Indira
Gandhi [1984]. In the case of Perumal v Poonuswami [1971], the Supreme Court
observed that a person may be a Hindu by birth or by conversion. In order to convert
to Hinduism there is no formal ceremony but the bona fide intention and conduct
expressing that intention would be sufficient.

Conclusion:- Therefore, in this matter Hindu law will be applicable on X if there is a

bona fide intention to adopt the religion.

B. Issue- The issue at hand is that if Hindu law is applicable on a person who has
reconverted to Hinduism.

Rule- The explanation [c] to Section 2[1] of the Hindu Marriage Act states that the
Act will be applicable to “any person who is a convert or re-convert to the Hindu,
Buddhist, Jain or Sikh religion.” This means that the Act is applicable on those
people who were originally Hindus and have reconverted back to the religion.

Analysis- In the case of Kailash Sonkar v Maya Devi [1983], the court held that the
test to determine if there is reconversion is that there should be genuine interest to
reconvert and it should not be a pretext to gain worldly benefits.

Conclusion- In this matter, Hindu law will be applicable on the person only if it is
bona fide in nature.

Question 3

Explain the terms with reference to HMA, 1955.

(i) Sapinda Relationships

Sapinda relationship refers to cousin marriages under Hindu law. Section 3[f] of
Hindu Marriage Act, 1955 defines sapinda relationships. It includes those
relationships where a person has a common ancestor up to five generations on the
paternal side and up to three generations on the maternal side [inclusive of the
concerned person]. The relationship is considered to be sapinda when they have a
common lineal ascendant. The explanation provided under Section 3 states that
sapinda relationship includes half blood, full blood, uterine blood, legitimate,
illegitimate, adoption and relationship by blood. Section 5[5] of the Act prohibits
marriage between two sapindas unless the custom governing them allows it.
Section 11 declares a marriage between sapindas as null and void and such
persons shall be punished with a simple imprisonment of one month and a fine of
one thousand rupees as provided in Section 18 of the Act. In the case of Arun
Navalkar v Meena Navalkar [2006], the court held that if a party claims their
marriage can be declared as void on the grounds of sapinda relationship then
burden of proof is on the other spouse to prove that marriage between sapindas is
allowed as per their custom.

(ii) degrees of prohibited relationship

As per the Hindu Marriage Act, a person cannot marry if the relationship falls under
degree of prohibited relationship as sex relationship in such cases is considered as
the highest sin as per the Dharam shastra. Section 3[g] of the Act defines degrees
of prohibited relationships. It includes the following:

(a) If one is a lineal ascendant of the other.

(b) If one was the wife or the husband of a lineal ascendant or descendant of the
other.

(c) If one was the wife of the brother or the father’s or mother’s brother or the
grandfather’s or grandmother’s brother of the other.

(d) If two are brother and sister, uncle and niece, aunt and nephew, or children of
brother and sister or two brothers or two sisters.

The explanation provided under Section 3 states that the degree of prohibited
relationship also includes half blood, full blood, uterine blood, legitimate, illegitimate,
adoption and relationship by blood. Section 5[4] prohibits marriage between people
falling under this category unless the custom governing them allows it. Section 11
declares a marriage between prohibited degree as null and void and such persons
shall be punished with a simple imprisonment of one month and a fine of one
thousand rupees as provided in Section 18 of the Act. In the case of Shakuntala
Devi v Amarnath [1982], it was said that two people can marry under prohibited
degree only if there is proof of established custom. The custom should not be
against public policy and morality as held in the case of Balusami Reddiar v
Balakrishna Reddiar [1957].

(iii) Full Blood and Half Blood

Section 3[c] of Hindu Marriage Act, 1955 defines full blood and half blood. Two
people are said to be full blood if they have descended from the common ancestor
by the same wife. On the other hand, half blood is when they have descended from
the common ancestor but by different wives. The explanation states that ancestor
includes the father and ancestress includes the mother. As per Section 3[f] and [g],
such relationships fall under the category of ‘sapinda relationship’ and ‘degree of
prohibited relationship’ and therefore two persons sharing such relationship cannot
get married. The marriage will be considered as null and void as per Section 11 of
the Act. As per Section 18 of Hindu Succession Act, 1956 full blood is preferred
over half blood in matters of succession.

(iv) Uterine Blood

As per Section 3[d] of Hindu Marriage Act, two persons are said to be of uterine
blood when they are descended from common ancestress but by different husbands.
The explanation states that ancestor includes the father and ancestress includes the
mother. As per Section 3[f] and [g], such relationships fall under the category of
‘sapinda relationship’ and ‘degree of prohibited relationship’ and therefore two
persons sharing such relationship cannot get married. The marriage will be
considered as null and void as per Section 11 of the Act.

[3*4=12]
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