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Report No. 235

Views of the Commission on the crucial question and relevant case law:

8. In the Commission's view, statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable. Normally, a statute does not deal with the details which lie within the realm of appreciation of evidence. Any such enumeration touching on the quality of evidence to be adduced would result in more complications. A declaration of the nature suggested by the High Court cannot be a substitute for the tests laid down in decided cases for entering a finding of conversion. In fact, it does not appear that the High Court intended to say that the declaration followed by confirmation should be treated as a conclusive evidence of conversion/reconversion. The High Court apparently intended that the declaration followed by subsequent confirmation before the registering authority would serve as weighty documentary evidence, thereby minimizing the scope of controversy. There is another angle from which the said observations of the High Court have to be viewed.

The declaration and registration thereof, if made the only mode of proof, many bona fide converts may be handicapped in proving the conversion merely by reason of failure to adhere to the procedure of registration. Moreover, a question may arise as to what purpose will such a procedure serve, where there are objections from some quarters - whether they be bona fide or mala fide? Should it be left to the Registration Officer to deal with those objections and record a finding? Is it proper for the Registration Officer to take a decision on the bona fides of conversion on the basis of facts existing at that initial stage? These questions defy a satisfactory answer if the declaration and confirmation should be treated as the conclusive proof of conversion.

9. The High Court's observation that the proof in respect of conversion should be simplified and credible documentary evidence could be made available to those who are called upon to prove the factum of conversion is not without merit. It stems from an anxiety to avoid prolonged litigation and unnecessary controversies. But, the issue has to be viewed from a larger perspective keeping in view the socio-economic conditions, the practical difficulties in implementation and the spurious claims that are quite often advanced.

The Courts including Supreme Court have consistently held that the law does not require any particular ceremony or ritual for conversion, but what is necessary is a bona fide intention to convert to another religious faith accompanied by conduct unequivocally expressing that intention. The satisfaction of the Court on this aspect should necessarily be present and the filing of declaration of conversion before a prescribed authority is one of the important aspects that aids the Court in reaching such satisfaction, but that should not be the sole criterion.

10. It has been held in a number of decided cases including the pronouncements of the Supreme Court that no particular formalities or religious rituals or ceremonies are necessary to bring about conversion or reconversion. In the case of Punjabrao v. Dr. D.P. Meshram and others (AIR 1965 SC 1179), it was observed that the presence of a Bhikku on the occasion of a function held for conversion of Hindu Harijans into Buddhism and compliance with particular rituals is not necessary; so also, the signature of a converted person in a register for conversion is not obligatory.

In Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor) (AIR 1971 SC 2352), the principle was reiterated that no formal ceremony of purification or expiation is necessary to effectuate conversion. So also in the case of S. Anbalagan v. B. Devararajan and others (AIR 1984 SC 411), the Supreme Court examined the legal position in regard to caste status on conversion or re-conversion to Hinduism and held that no particular ceremony was prescribed for reconversion to Hinduism. The Karnataka High Court observed in Sujatha v. Jose Augustine (II (1994) Divorce & Matrimonial Cases 442) that to be a Christian, one must truly profess the Christian faith and the fact that one has undergone the ceremony of baptism may not by itself be sufficient to hold that he or she has become a Christian. The fundamental thing to be established before one can be held to be Christian is that the person concerned truly believes in and professes the Christian faith.

10.1 The test of conversion has been put thus by the Supreme Court in Perumal Nadar v. Ponnuswami (supra).

"A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the 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". (para 6)

The Supreme Court also observed "in our judgment the finding of the courts below that Annapazham was converted to Hinduism before her marriage to Perumal is amply supported by evidence."

10.2 In Kailash Sonkar vs. Smt. Maya Devi (AIR 1984 SC 600) the Supreme Court while dealing with a case of reconversion adopted a similar approach, as seen from the following observations: "In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste." ( para 30)

It was further clarified: "In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion." ( para 30)

10.3 We may also refer to the decision of Kerala High Court in Sapna Jacob, Minor vs The State of Kerala & Ors (AIR 1993 Kerala 75) - K.G. Balakrishnan, J. (as he then was) after referring to the various authorities, observed:

"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 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 gauge 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 true 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. In the instant case, the petitioner's mother after marrying V.M. Jacob changed her name as Uma Jacob. The petitioner's name is Sapna Jacob, admittedly a Christian name. There is nothing in evidence to show that the petitioner ever led a Hindu mode of life. The only ground on which the petitioner claims the benefit of Scheduled Caste is that her mother is a Scheduled Caste." ( para 6 )

10.4 Similarly, in Rakheya Bibi vs. Anil Kumar ILR (1948) Cal. 119), the Calcutta High Court observed that it is open to the Court to go into the question whether the conversion was a bona fide one or a mere pretence.

10.5 In recent case of M.Chandra vs. M. Thangamuthu and Another (2010) 9 SCC 712 the Supreme Court observed in para 42"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 converted."

10.6 In the case of Punjabrao Vs Dr. D.P. Meshram (Supra), a Constitution Bench of Supreme Court interpreted the expression 'profess' in clause 3 of the Constitution (Scheduled Caste) Order 1950. The said provision contemplates that a person to be treated as one belonging to the Scheduled Caste, should profess either Hindu or Sikh religion. In that case, the election of the first respondent to the Legislative Assembly was challenged on the ground that he embraced Buddhism and had ceased to be a member of Scheduled Caste. The Election Tribunal upheld the contention of the appellant and set aside the election. However, the High Court held that conversion of first respondent to Buddhism had not been established and therefore, upheld his election.

The Supreme Court allowed the appeal and restored the order of the Election Tribunal holding that the first respondent had ceased to be Hindu at the time of his nomination and consequently ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. The Supreme Court explained as to what is meant by professing a religion. The Supreme Court observed after referring to the dictionary meanings of the word 'profess', "it seems to us that the meaning '"to declare one's belief in: as, to profess Christ, is one which we have to bear in mind while construing the aforesaid Order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one's belief must necessarily mean a declaration in such a way that would be known to those whom it may interest. Therefore, 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 it would be idle to enquire further as to whether the conversion to another religion was efficacious".( para 13)

In that case, the argument that no Bhikku had officiated at the function and that respondent No. 1's name was not found in the register of conversion to Buddhism and therefore, there was no satisfactory proof of conversion was rejected. The decision shows that a declaration in public renouncing his old religion and accepting another religion is an important step in establishing the factum of conversion to another religion. Another equally important step as laid down in Perumal's case is the bona fide intention to convert demonstrated by his/her subsequent conduct. In Punjabrao's case, the Supreme Court was concerned with the import of the expression 'profess' in the Presidential Order.

11. Though no particular formalities or ceremonies are required to be followed for the purpose of conversion, credible evidence of intention to convert followed by subsequent conduct of the convertee is necessary in reaching the conclusion that there was genuine conversion. The convert must embrace Hinduism (or another religion) and follow the cultural and spiritual traditions and take to the mode of life of that religion.

12. It may be noted that in some states, viz., Gujarat, Madhya Pradesh, Himachal Pradesh, Arunachal Pradesh etc., the Freedom of Religion Acts were enacted. The provision thereof prohibits forcible conversion. i.e., by use of force, allurement or by fraudulent means and requires the person who participates or takes part in the ceremony for conversion from one religious faith to another should send the intimation to the District Magistrate either in advance or within a stipulated period after the event of conversion. Failure to do so is an offence. Some enactments cast a duty on the person who is converted to send a notice to the District Magistrate within a stipulated period in a prescribed form and if he fails without sufficient cause to comply with this requirement, he is also punishable.

Thus, the intimation and the filing of declaration is a statutory obligation enforceable by law in some of the States. However, where there is no such legislation, the Commission feels that the filing of declaration and registration should not be made obligatory or indispensable mode of proof of conversion. Nor it is necessary or desirable for the Parliament to step in and incorporate such a provision in the Hindu Marriage Act and other laws. We are not concerned here with the issue of forcible or induced conversions and remedial action to be taken in connection therewith. We are only examining the limited question of the evidentiary proof required to establish the factum of conversion when a dispute arises.

13. Viewed in this light, the Commission is of the view that the suggestion of the High Court deserves to be accepted to a limited extent so as to afford an opportunity to those converts who would like to have documentary evidence of declaration to substantiate the plea of conversion as and when required. At the same time, the filing of declaration and recording thereof should not be made obligatory and an indispensable mode of proof of conversion, but it should only be made optional so that the converted person will be enabled to have documentary proof to establish the factum of conversion/reconversion in the absence of other reliable documentary evidence.

However, as stated earlier, such documentary proof testifying to the declaration and confirmation made by the converted persons ought not to be considered as conclusive proof. The Court cannot be barred from considering the other relevant questions such as the voluntary nature of conversion and the subsequent conduct of the alleged convert, whenever a dispute arises. Hence it is reiterated that the recorded declaration not followed by objections cannot be regarded as the sole criterion to establish conversion in a court of law, though it may be given due weight by the Court in reaching the finding.

14. The Commission would like to advert to one more aspect. In regard the compulsory registration of marriages, the Supreme Court in the case of Seema(Smt.) Vs Ashwani Kumar (2006) 2 SCC 578, gave certain directives/ suggestions to the State Governments. However, it does not appear that the States have taken any concrete measures in this regard. In the 211th Report, the Law Commission has gone to the extent of recommending that the nonregistration of marriage and divorce should be made an offence and secondly that no judicial relief shall be granted if the concerned marriage or divorce is not duly registered under the proposed Act. Presently, the Law Commission does not wish to offer its comments on those suggestions having far-reaching effects because the issue which the Commission is presently called upon to deal with is about conversions.

If the registration of marriage is made obligatory as per the directives of Supreme Court, or the recommendations of the Law Commission, it does not necessarily follow that conversion to another religion should also be compulsorily registered. Conversion which is bereft of any particular formalities or religious rites, cannot be placed on the same pedestal as marriage which can be recognized in law only if customary rites and ceremonies are gone through. Further, the backdrop in which the compulsory registration of marriages was considered necessary in societal interest is not applicable in all fours to religious conversions. Maybe, as and when compulsory registration of marriage and divorce becomes a reality and adequate machinery is put in place to implement the directives for registration of marriages, the question of recording/registration of conversion could also be considered. At this juncture, the Commission does not propose to recommend, based on the 211th Report, to evolve a scheme for compulsory registration of conversions as well where there is no such law in a State.



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