[Assam] Hindu law and converts
umesh sharma
jaipurschool at yahoo.com
Sun Jan 6 16:48:13 PST 2008
Hi,
A query - the info below seems to show that Scheduled Tribe (ST) people are not considered Hindus. Any info about why STs have problem when (like in Orissa and Assam) job reservation is an issue - for Hindu Dalits only.
Umesh
PS: I was looking up info about what happens to my inheritance from my gandparents if I convert to Bahai faith. It seems I will still remain a Hindu legally - since it is not even mentioned in Indian constitution - fine with me - since Bahai faith accepts Hinduism principles as true - unlike most other faiths.
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http://www.payer.de/dharmashastra/dharmash091.htm 2. Application of Act
This Act applies-
to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
to any person who is Buddhist, Jaina or Sikh by religion; and
to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation : The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.
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Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 67-74
wiedergegeben (für die Quellenangaben, vor allem cases, konsultiere man dieses Werk).
Application of Hindu law.Acceptance of the Vedas with reverence: recognition of the fact that the means or ways to salvation are diverse and realisation of the truth and that the number of Gods to be worshipped is large, is the distinguishing feature of Hindu religion. The question, who are governed by Hindu law is not easily answered by saying that all Hindus are governed by it. For, there are classes of Hindus who are governed by their customary laws and not by the Hindu law; for instance, those that follow the Marumakathayam law in Malabar and the Aliyasantana law in Kanara and those Hindu communities in the Punjab who are governed by their customary law.
On the other hand, some Muhammedan communities, descended from an original Hindu ancestry, like the Khojahs, the Cutchi Memons, the Borahs, and the Halai Memons, are, subject to the Shariat Application Act, 1937 [Online: http://www.vakilno1.com/bareacts/muslimperact/muslimpersonalact.htm. -- Zugriff am 2004-01-11] , governed by Hindu law in matters of succession and inheritance.
Subject to the above exceptions, Hindu law applies to Hindus by birth as well as to Hindus by religion.
It is now well settled that a Hindu does not cease to be governed by Hindu law by lapses from orthodox Hindu practice or by deviation or dissent from its central doctrines. Several religious sects or bodies had at various periods and under various circumstances split off from the Hindu system but their members nevertheless continue to live under Hindu law.
Of these, the Jains and the Sikhs are conspicuous examples. In Rani Bhagwan Koer v J C Bose [(1903) 30 English Law Reports, Indian Appeals 249] the Sikhs and Jains were held to be governed by Hindu law except to the extent to which it is varied by custom.
The Jains, though generally adhering to the ordinary Hindu law, recognise no divine authority in the Vedas, and do not practise the SRADDHAS or ceremonies for the dead. Nor do they recognise the spiritual superiority of the Brahmins. The Jains in the Madras province who were previously governed by the Aliyasantana law of inheritance have now been brought under the Mitakshara law by the Jaina Succession Act (III of 1929), Jain undivided family is included in the expression Hindu undivided family. But it has been held that Jains who do not believe in Vedas are not Hindus. There are differences between Hindus, Sikhs and Jains in some of the essential details of the faith and the religious practices they observe. There are also organisational differences in the matter of religious trusts between Hindus, Sikhs and Jains.
There is not personal law except Hindu law applicable to Buddhists in India. They cannot be governed by Burmese or Chinese Buddhists law. They must therefore be governed by Hindu law except where there is a change to a Buddhists domicile and an adoption of that law.
Similarly the Lingayats, a body of dissenters from Hinduism, who deny the supremacy of the Brahmins and the validity of caste-distinctions have been held to be a sect of Hindus governed by ordinary Hindu law except in so far as it is varied by any custom amongst them.
A Hindu does not by becoming a Brahmo, or an Arya Samjist or a Dayanandi, cease to be governed by Hindu law; both the Brahmo Samaj and the Arya Samaj are only sects of Hindus for the purpose of the application of Hindu law.
In Ma Yait v Maung Chit Maung [(1921) 48 English Law Reports, Indian Appeals 553] the question was whether the Kalais descended from Hindus who married Burmese women were a Hindu community governed by Hindu law. It was held that they were not, but that they were governed by the Indian Succession Act on the ground that there was no continuity of Hindu character in their case as they were away from Hindu centres in an alien country in a Buddhist environment and their mode of life was different from that of the Hindu communities in India.
Lord Haldane pointed out that if a man is born a Hindu, deviation from orthodoxy not amounting to a clear renunciation of his religion does not deprive him of his status as a Hindu but that, though contact with other religions may well evolve sects which discard many characteristics of orthodox Hinduism and adopt ideas and rites popularly supposed to belong to other systems, continuity with a religion which is so elastic in its scope as in Hinduism may not be destroyed. The Judicial Committee referred in Bhagwan Kaur's case to the separation from the Hindu communion, and in Ma Yait's case to a clear renunciation of the Hindu religion.
As the authorities show, neither can be established except by a Hindu becoming a Muhammedan or a Christian or by the combined operation of migration, inter-marriage and new occupations.
When one is born a Hindu, the fact that he goes to a Buddhist temple, or a church, or durgah, cannot be said to show that he is no more a Hindu unless it is clearly proved that he has changed his religion from Hinduism to some other religion. In considering the question of conversion the court must consider the question in the context of Indian society and the place of religious observance in so far as they show what religion the alleged person professes.
A solemn declaration under the Special Marriage Act by a person that he does not profess the Hindu religion has been held to be insufficient to deprive him of his status as a Hindu.
But in Punjab Rao v Mesha Ram [1965 All India Reporter, Supreme Cozrt 1179], the Supreme Court held that a declaration made in public that he is converted to Buddhism is sufficient to make him a Buddhist. The Supreme Court observed that in the face of such an open declaration that he has ceased to belong to the old religion and has accepted another religion it should be idle to enquire further as to whether conversion to another religion was efficacious.
A man cannot alter the law of succession applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.
The question is whether a Hindu by proclaiming himself not to belong to the Hindu religion or to belong to no religion can effectively renounce his religion. Hinduism not only comprises religious beliefs and modes of life but also social, moral and philosophical outlooks as well. Therefore a mere investigation into a man's modes of life and religious belief without taking his racial and historical background into account will not be conclusive. As Lord Haldane pointed out, a method which takes account of historical as well as other considerations must be applied and the opinion of the community in which he lives may well be a factor.
The reasonable conclusion appears to be that the term 'Hindu' in the Civil Courts Acts of the various provinces must be applied to persons who are Hindus either by birth or by religion provided that those who are born Hindus have not become converts to Christianity or Muhammadanism. In other words, if a Hindu, on his conversion to Christianity or Muhammadanism, ceases to be governed by his prior personal law, it is because of a conflict of laws. In the absence of any such conflict, the personal law must continue to apply to him even though he is not a Hindu in the stritct theological sense.
Conversion does not necessarily result in extinguishment of caste and notwithstanding conversion the convert may enjoy the privileges social and political by virtue of his being a member of the community with its acceptance. Even if conversion resulted in expulsion at the hands of the caste people a convert may still be ushered in that caste by the caste people on his conversion to Hinduism. Where a Hindu male by caste, converted as Christian for educational purpose and was being regarded by the male community all along as such, it was held that he never ceased to be a male at any stage and as he is a member of the scheduled caste within the scope of Constitution (SC) Order 1950 his election is valid.
Conversely, conversion to Hindu religion of persons of non-Hindu origin attracts with it the application of Hindu law. Where a European lady or an Indian Christian, after formal conversion to Hinduism married a Hindu by race and religion, the Madras High Court has held that she was a Hindu within the meaning of the Succession Act or Hindu law, and that membership of a caste was not a necessary prerequisite for being a Hindu.
Hindus who, having renounced Hinduism, revert to it by reconversion, with or without the performance of rites of expiation and reconversion, would be governed by Hindu law.
A person may be a Hindu by birth or by conversion. A mere theological allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu nor 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. The convert must embrace Hinduism and follow the cultural and spiritual traditions of that religion and take to Hindu mode of life. In Guruswamy v Irulappa [1934 All India Reporter. Madras High Court 630] an earlier decision in Administrator-General v Anandachari [19 All India Reporter. Madras High Court 466] where it was held that conversion must be attended by expiatory ceremonies
was distinguished on the ground that the conversion was to Brahmin community and the need for expiatory ceremonies was based on the practice of such communities.
The son of a Hindu father and a Christian mother married under the Special Marriage Act, 1954 is a Hindu. A child in India must be presumed to have his father's religion, and the corresponding civil and social status.
In Michels v Venkateshwaran [1952 All India Reporter. Madras High Court 474] it was held that the institution of caste is peculiarly Indian. A member of one of the castes or sub-castes when he is converted to Islam or Christianity ceases to be a member of any caste. Instances can be found in which in spite of conversion the caste restriction might continue. But these are all cases of exception and the general rule is conversion operates as an expulsion from the caste. In other words a convert ceases to have any caste.
In Suri Dora v Giri (VV) [1958 ll India Reporter. Andhra Pradesh High Court 724] was affirmed on appeal in Giri (VV) v Suri Dora [1959 All India Reporter. Supreme Court 318] it was reiterated that caste is the result of birth and not of choice or volition. Though a person who belonged to scheduled tribe was acting as a Kshatriya he could not attain the status of a Kshatriya, when there was no evidence of the reactions of the old tribe or of the new fold.
As Christianity does not recognise caste a convert to Christianity ceases to belong to Adidravida caste. A government order stating that children born out of inter-caste marriages will be allowed to all educational concessions given to schedule castes provided the father or the mother belongs to schedule caste, is not sufficient to enable the children born in wedlock of such marriages to become schedule caste, so as to avail one-self of the reservations for admission in colleges or employments. They must be members of the schedule caste as defined in Article 241 of the Constitution and included in the list of scheduled castes appended to the notification issued by the President of India and should profess Hinduism, Sikhism, Jainism or Budhist religion.
In Shyam Sundar v Shanker Dev [ [1960 All India Reporter. Mysore High Court 27] it was however held that a person did not cease to be a member of the caste to which he belonged by becoming an Arya Samajist, obviously because Arya Samaj is part of Hindu religion and he could not be considered to be a convert to a different religion. For the same reason the Supreme Court [Jasani v Moreswar 1954 All India Reporter. Supreme Court 236] held that when a Mahar (scheduled caste) joined the Mahanubhava Pant, the conversion to that sect did not alter the caste status of the person. Though the founder of the sect did not believe in caste there had been no rigid adherence to this principle among his followers in later years. The convert married two Mahar girls and always looked upon himself as a Mahar and identified himself with that caste.
The Supreme Court said that three factors are to be considered
reaction of the old body;
the intentions of the individual himself and
the rules of the new order.
If the old order is tolerant of the new fold and sees no reason to outcaste or excommunicate the convert and the individual himself desires to retain the old ties, the conversion is only nominal for all practical purposes.
In Khazan Singh v Union of India [1980 All India Reporter. Delhi High Court 60], it was held that the theory of acceptance by the community is not applicable to the case of conversion by adoption. Where a Jat was adopted by a member of the Scheduled Caste, it was held that the adoptee has to be treated from the date of adoption as if he was born in the adoptive family for all practical purposes. The adoptee acquires on adoption as in the case of birth the caste of the adoptive parents without anything more to be done by him or others. Just as it is not open to a caste to refuse to recognise a new born in the family of one of its members as belonging to the caste, it is not open to the caste to sit in Judgment over the statutory status enjoyed by the adoptee.
A further question arises as to whether a convert from Hinduism will on reconversion to Hinduism regain his original caste. In Arumugam v Rajagopal [1976 All India Reporter. Supreme Court 939] it was held that on reconversion to Hinduism a person becomes a member of the caste to which he originally belonged. In a recent decision of the Supreme Court in Kailash v Maya Devi [1984 All India Reporter. Supreme Court 600] the Supreme Court had to decide the question whether the old caste of a person or his progeny who belonged to the scheduled caste or tribe but embraced Christianity or Islam or any other religion would revive on his or his progeny's reconversion to Hinduism. The Supreme Court held that the main test would be whether the reconvert had a genuine intention to abjure his new religion and to go back to his old fold and adopt the practices and customs of the said fold without
any protest from the members of his erstwhile caste. It is not necessary that there should be direct proof of the expression of the views of the community, and it would be sufficient if no exception or protest is lodged by the community members. If a child is born he is incapable of choosing his religion until the age of discretion. After he has grown up and is able to decide his future, he ought not to be bound by what his parents have done. If by his clear and conclusive conduct he reconverts to his old faith his caste automatically revives.
In Anbalagan v Devarajan [1984 All India Reporter. Supreme Court 411. Voller Wortlaut des Urteils siehe: Anhang B], the Supreme Court held that a person regains his caste unless the community does not accept him. The Supreme Court went to the extent of holding that it would be more accurate to say that he never lost his caste when he embraced another religion. This observation runs counter to the views expressed by the courts including the Supreme Court in the cases referred to earlier. The Supreme Court went on to observe that the practice of caste is so deep rooted that
"its mark does not seem to disappear on conversion to different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and Tamil Nadu there are several thousands of Christian families whose forefathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi-Andhras, Christian Adi Dravidas and so on. The practice of their caste is so rigorous that there are inter-marriages with Hindus of the same caste but not with Christians of another caste. Now if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on
continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the scheduled castes, who embrace other religions in their quest for liberation, but their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion". Apart from conversion, the courts had occasion to consider the effect of marriage on a person's religion and caste. Here again the Supreme Court adopted the test of acceptance by the community. In Horo v
Jahnara [1972 All India Reporter. Supreme Court 1840] a non-Munda woman married a Munda (a tribal). As she was accepted by the elders of the tribe, she was held to be a member of the tribe. However in Urmila Ginda v Union of India [1975 All India Reporter. Delhi High Court 115], it was held that a high caste woman marrying a scheduled caste man cannot apply for posts reserved for scheduled caste though she did not marry merely with this motive, as the court was of the view that to allow her to do so would defeat the very purpose of the Constitution. It is submitted that this decision is not correct. If a person marries a scheduled caste and is accepted by the community as a member of the caste, there is no reason why he or she should not be regarded as a member of the scheduled caste for all purposes.
In Neelima (D) v Dean, P.G. Studies Agricultural University [1993 All India Reporter. Andhra Pradesh High Court 229] the Andhra Pradesh High Court had to consider whether a Brahmin girl who married a boy belonging to the schedule tribe and a Vaysya girl who married a boy belonging to backward classes could be considered as belonging to the schedule tribe and to the backward class respectively. Relying on a number of decisions the court held that the woman became a member of the family of the husband on marriage. The court further went on to hold that the woman acquired the caste of the husband. The court distinguished the cases which held that it was necessary that the community should accept the persons concerned as a member of the caste and it is not open to a person to acquire a caste by unilateral action as they dealt with cases of reconversion of Hinduism, or a change over
simpliciter whereas the cases under consideration were cases of marriage, and the question whether there was acceptance for the acquisition of caste or tribe by the caste or tribe concerned is irrelevant. It is submitted that while the conclusion that a woman becomes the member of the family of the husband is correct in view of the long catena of decisions relied on, it does not follow that she acquires the caste of the husband. It is well settled that a person may change his or her caste by volition provided that caste accepts him or her into its fold. There is no reason why this principle should be restricted to cases of reconversion or to change of caste simpliciter and should not be applied to a case of marriage. No authority was relied on to reach the conclusion that the wife acquired the caste of the husband automatically. From the circumstance that she is treated as the
sapinda of the husband it does not follow that she acquires the caste of the husband as sapinda relationship has nothing to do with caste but based on the circumstance that the husband and wife "together beget one body". Reference was made to Khazan Singh's case, where it was held that an adopted son acquired the caste of his father and no sanction of the community is required to treat him as a member thereof. The case of a marriage is not equivalent to that of adoption, as the adopted son is deemed for all purposes to be the son born of the adoptive parents and so he acquires the caste by reason of his birth. Where a person of one religion marries a person of another religion he or she does not cease to belong to his or her religion. There is no reason why a different principle should be applied to castes or tribes in the case of marriage.
In any case there is no justification for the decision in regard to a brahmin woman marrying a person belonging to schedule tribe. Sri J.V. Suryanarayana amicus curiae pointed out that under Hindu Law there are only castes and tribes and no schedule castes or schedule tribes which are the results of the Constitution, schedule castes order and schedule tribes order under Article 341(1) and submitted that if a person is permitted to enter into the caste or tribe covered by those orders by virtue of marriage, it amounts to an alteration of the presidential orders which is not permissible. This argument was not met in the judgment.
In Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119] it was held that it is open to the court to go into the question whether the conversion was a bonafide one or a mere devise adopted for ulterior purposes. Dessenting from the decision in Ayesha Bibi v Subodh Chandra Chakrabarthy [1945 All India Reporter. Calcutta High Court 405] the court observed
"It may be that a 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 and does 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. We can see no reason to hold that it is in the nature of things impossible for a court of law to determine whether the conversion was bona fide". They referred to the decision of the Privy Council in Skinner v Skinner [1970] where the Judicial Committee observed that the change of religion must be made honestly and without any intent to commit any fraud
upon the law. It was held by the Calcutta High Court that if conversion is resorted to merely with the object of creating a ground for some claim of right, the court must hold that no lawful foundation of the claim has been proved. To go through a mock conversion and set it up as a basis of the right is to commit fraud upon the law. In this connection it may be noticed that in Perumal Nadar v Ponnuswamy Nadar [Calcutta High Court] it was observed that for conversion there must be a bona fide intention complied with conduct. Similarly, in Kailash v Maya Devi [1984 All India Reporter. Supreme Court 600] it was said that there must be a genuine intention to abjure the religion and completely disassociate himself from it. In Khazan Singh v Union of India [1980 All India Reporter. Delhi High Court 60], where a Jat was given in adoption to the member of a scheduled tribe it was
held that he was entitled to apply for the post of a sub-inspector under the quota reserved for scheduled caste. The court held that Khazan Singh acquired the scheduled caste status by adoption and the question of motive for conversion was of no consequence. If the adoption was lawful it was not permissible to refuse to give legal effect because the course was adopted in order to obtain a post in Government service. It is submitted that as pointed out by the Calcutta High Court in Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119] where the adoption gives a special legal status, to go through a mock adoption and set it up as a basis for claiming that status is to commit fraud upon the law. In appropriate cases the court has the right to go into the question whether the adoption and the consequent conversion is bona fide or not.
In Ameena Shapir v State of Tamil Nadu, [1984, Madras High Court] a Hindu woman embraced Islam and married a Muslim belonging to the Labbai community which was included in the list of backward classes, she was accepted by the members of that community, it was held that she was entitled to a post reserved for backward classes even though as a Hindu, she belonged to a forward community; the wife must be held to belong not only to the religion her husband belongs but to the community as well. The court differed from the judgment of the Delhi High Court in Khazan Singh v Union of India. The learned judge observed:
"I should go to the extent of saying that even if a high caste woman marries a person belonging to scheduled caste just for the sake of obtaining a reserved post what is wrong in it"? It is submitted that this observation may not be correct if she went through a mock marriage as held in Rakheya Bibi v Anil Kumar Mukherji [1948 All India Reporter.Calcutta High Court 119]. But if the marriage is genuine the mere fact that she got an advantage by such marriage may be immaterial. It is also submitted that the observation that the wife by marriage belongs to the religion or community of the husband is contrary to several decisions. It is settled that a person does not lose her religion by marriage. The actual decision may however be supported on the ground that the wife was accepted by the community to which her husband belonged as a member of that community."
[Mayne's treatise on Hindu law & usage : also containing commentaries on the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956, the Hindu Minority & Guardianship Act, 1956, the Hindu Women's Rights to Property Act, 1937 / John Dawson Mayne [1828-1917]. -- 15th ed. / revised by Ranganath Misra [1926 - ]. -- New Delhi : Bharat Law House, ©2003. -- 139, 1507 S. -- ISBN 8177370677. -- S. 67-74. -- Dort Quellennachweise]
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5
Umesh Sharma
Washington D.C.
1-202-215-4328 [Cell]
Ed.M. - International Education Policy
Harvard Graduate School of Education,
Harvard University,
Class of 2005
http://www.uknow.gse.harvard.edu/index.html (Edu info)
http://hbswk.hbs.edu/ (Management Info)
www.gse.harvard.edu/iep (where the above 2 are used )
http://harvardscience.harvard.edu/
http://jaipurschool.bihu.in/
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