Can A Hindu Marry Non-Hindu Under HMA?
Religion is a sensitive issue in India and at times inter-communal and inter-religion marriages become a touchy issue. Let us see how the Indian legal system establishes the marriage between a Hindu and Non-Hindu.
Well, it is stated that the marriage under Hindu Marriage Act can applied on when the marriage was performed only between two Hindus. Hindu Marriage Act (HMA) doesn’t cater to a marriage between a Hindu and Non-Hindu.
How Can This Issue Be Resolved?
Now, the question is what steps should be taken for performance of a marriage between two persons, when one of them is Hindu and the other is from another religion. Well such marriages fall under the category known as special marriage. Herein, we need to refer the provisions of Special Marriage Act (43 of 1954).
Well, the section 4 of Special Marriage Act gives us the conditions regarding the solemnization of special marriages. It states that, under this act, marriage between any two persons may be solemnized, if the following conditions are fulfilled, namely:-
The Conditions For Hindu Marrying A Non-Hindu
(a) Neither the man nor the woman who are going to tie the knot have their spouse (from earlier marriage) living without the earlier marriage having been set aside. In other words, if you are going to marry someone while your spouse from the earlier marriage is alive and your earlier marriage has not been set aside, in such a situation, your later marriage would not be valid in the eyes of law.
(b) both the parties -
(i) are capable of giving proper consent to it in the possibility of unsoundness of mind; or
(ii) though give a valid consent for such a capability, but either of them (or both) is suffering from mental illness of such a type and to an extent that he/she is unfit for marriage and giving birth to children & nurturing them; or
(iii) either of them have suffered from recurrent incidences of insanity;
(c) the male is at least twenty-one years in age and the female is at least 18 years; So, the bridegroom must have completed the age of 21 years at the time of marriage; while the bride must have completed the age of 18 years at the time of her marriage,.
(d) the two parties do not fall under the degrees of a prohibited relationship.
The Precedent Set Up By The Delhi Court In December 2010:
The Ruling Of Delhi HC
The Delhi High Court had ruled that the marriage between a Hindu and a non-Hindu carried out as per the Hindu rituals & tradition is not valid. None of the parties can seek any benefits under the Hindu Marriage Act.
The High Court had also decreed that "just theoretical & principled allegiance" to Hinduism can not turn one a Hindu unless he or she has actually embraced the Hindu religion.
Conversion Warrants Documentary Evidence
Justice Kailash Gambhir had stated in the judgment "A mere happening that the two parties have carried out the marriage as per the Hindu rituals & tradition can not establish the valid application of the Hindu Marriage Act. This is so because as per the law’s mandate, for a marriage to be considered under the Hindu Marriage Act it should take place between two Hindus."
What All The Delhi HC Said?
Dismissing a petition filed by a female, who wanted a divorce under the HMA, stating that she married a Christian at an Arya Samaj temple as per Hindu rites in the year 2007, the court said both parties should be Hindu at the time of marriage to claim the benefits of Hindu Marriage Act.
"It is mandatory to establish that both the parties are Hindus at the time when marriage takes place," the court had said.
The court dismissed the woman's statement that her husband had accepted Hinduism because she could not produce any evidence to validate her claim.
‘Conversion Is A Major Decision In The Individual’s Life’
"..An allegiance just in principle to the Hindu religion by someone who is born in a different religion does not make him a Hindu. At the same time, a bare announcement that he is a Hindu does not suffice the claim of his conversion,” said the Delhi HC.
"Accepting a different religion is a very important decision in the life of an individual and in order to prove such conversion it is very necessary that the person should provide factual and documentary evidence which is concrete and convincing. In the absence of such evidence, the court won’t be able to consider such a conversion.
Delhi High Court gave this ruling on a petition signed by Sangeeta. She had defied the family court’s decision in March 2010, which had dismissed her divorce plea on the premise that her husband Preston Gomes, a Christian by birth had converted to Hinduism.