Report No. 235
Conversion/Reconversion to another Religion - Mode of Proof
Introduction: Observations of Kerala High Court
1. A Division Bench of Kerala High Court, in a matrimonial case in Betsy and Sadanadan Vs Nil (Mat Appeal No. 339 of 2009) while dealing with a joint application moved by the parties for dissolution of marriage under Section 13B of the Hindu Marriage Act, 1955 examined the issue whether in the absence of any specific procedure prescribed under pristine Hindu law, custom and statute governing conversion, what the approach of the court should be and whether there is a need for legislative intervention so as to make the law simple and user - friendly. The High Court invited the attention of the Law Commission to the observations made in paragraph 15 in order to address the need for legislation. It was observed thus by Justice R. Basant in para 15 of the Judgment:
"We must, in this context, note that the stipulation in clause (c) of the Explanation to Section 2(1) of the Hindu Marriage Act which shows that a conversion or re-conversion to Hinduism can take place and the absence of any stipulations of law or specific recognized 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 recognizes 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 religious. 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 lapse 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 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 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 the Constitution may not justify the negation of the right to pursue the chosen faith, by conversion where necessary."
The High Court observed that easy identification of the religion of a person in the event of a controversy does not appear to be possible even with the help of the decided cases The Bench then observed in paragraph 13 as under:
"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 first 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 solemnized in accordance with Hindu religious rites and ceremonies. She can certainly show before the court that she had, after such conversion, been worshipping Hindu Gods. She 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 appellant 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."
With the aforesaid observations, the High Court remanded the Case to the lower court and allowed the parties to adduce further evidence and also to amend their pleadings, if necessary.
2. The Law Commission of India with a view to address the limited question whether a particular mode of proof of conversion as suggested by the High Court should be statutorily prescribed , having made a preliminary study and recorded its prima facie view, invited the views of public on the said issue. Certain suggestions have been received which would be adverted to at the appropriate stage.