NATIONAL LAW SCHOOL OF INDIA

UNIVERSITY

FAMILY LAW -I PROJECT

Betsys Case (2010): Reopening the Who is a Hindu

Debate
Submitted by Tenzing Namgyal Bhutia

II Year B.A LL.B (Hons.)

Trimester IV
NLS ID: 2344
Date of Submission: 8th August, 2017

a
 INDEX OF AUTHORITIES
LIST OF STATUTES:

1. GUJARAT FREEDOM OF RELIGION ACT, (2003).

2. HINDU MARRIAGE ACT, (1955).
3. HINDU ADOPTIONS AND MAINTENANCE ACT, (1956).

LIST OF CASES:

1. BETSY AND SADANDAN V. NIL, (2009).

2. PERUMAL V. PONNUSWAMI, (1971).
3. RAM MOHANDAS V. TRAVANCORE DEVASOM BOARD, (1975).
4. SAPNA JACOB V. STATE OF KERALA, (1993).
5. SASTRI YAGNAPURUSHDASJI V. MULDAS BRUDARDAS VASIHYAM, (1966).
6. STAINISLAUS V. STATE OF MADHYA PRADESH, (1977).

MISCELLANEOUS

1. 235TH LAW COMMISSION REPORT ON CONVERSION/RECONVERSION TO ANOTHER RELIGION,

(2010).
2. CONSTITUTION OF INDIA, (1950).

b
 TABLE OF CONTENTS

Index of Authorities ........................................................................................................................ b

Research Methodology ................................................................................................................... 1

Aim ............................................................................................................................................. 1

Objective ..................................................................................................................................... 1

Scopes and Limitations ............................................................................................................... 1

Research Questions ..................................................................................................................... 1

Sources of Data ........................................................................................................................... 1

Citation Format ........................................................................................................................... 1

Introduction ..................................................................................................................................... 2

Chapter I: Who Is A Hindu? ........................................................................................................... 3

Chapter II: Betsys Case ................................................................................................................. 6

Case Facts ................................................................................................................................... 6

Findings of the Court .................................................................................................................. 6

Analysis....................................................................................................................................... 7

Chapter III : 235th Law Commission Report .................................................................................. 8

Conclusion .................................................................................................................................... 10

Bibliography ................................................................................................................................. 11

Books ........................................................................................................................................ 11

Articles ..................................................................................................................................... 11

c
 RESEARCH METHODOLOGY
AIM
The aim of this paper is to understand the term Hindu with specific reference to the usage of the
term in marriages and divorces.

OBJECTIVE
The objective of this paper is to further analyze the 2010 Betsy case which dealt with the
conversion of an individual to Hinduism while also examining the usage of the term Hindu itself.
The paper also seeks to review the recommendations made by the 235th Law Commission and
understand its ramifications in modern society.

SCOPES AND LIMITATIONS

The scope of this paper is to understanding the term Hindu as it is used in reference in the Hindu
Marriage Act. Using various legal mechanisms the paper studies the impact of the largely broad
definition.

RESEARCH QUESTIONS
1. Who is considered to be a Hindu under existing law?
2. How does an individual from another religion convert to Hinduism?
3. What guidelines should be put in place to understand the term better?

SOURCES OF DATA
The researcher has used both descriptive and analytical tools of analysis. The researcher has made
use of both primary (viz. Acts, conventions, cases, etc.) and secondary sources (viz. books, articles,
etc.) for the purpose of research.

CITATION FORMAT
The NLS Guide to uniform legal citation has been followed throughout this project.

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 INTRODUCTION

India is a country with a population of more than 1.3 billion people. About 79.8 percent of these
people identify themselves to be Hindu or belonging to a faith which falls within the broad
umbrella of Hinduism. It would therefore seem almost natural for the term to have clear definitions
as to who constitutes a Hindu and how an individual can become one. Here however exists the
contradiction. Hinduism as a faith rather than being an exclusionist one with clear demarcations
which set out the criteria for identifying as a Hindu, such as belief in a single god (Islam) or
adherence to a common practice, is one which encompasses within it a myriad of gods, beliefs and
practices. From a legal standpoint this creates a multitude of problems as it becomes difficult to
identify which practices or beliefs are those which truly make an individual a Hindu and thus who
should or can be governed by Hindu law.

Due to this loose definition communities all across India who worship different gods and observe
practices which are in complete contradiction to one other identify themselves to be Hindus. In
terms of marriages and divorces it again manifests into a strange problem as there are no set
practices which can be said to be applied to all Hindus. A similar problem again arises when an
individual from another religion seeks to convert to Hinduism, for the religion despite existing for
centuries has no common method or means through which one becomes a Hindu other than birth.
All these irregularities within the religion and the absence of a common standard to be applied
means that courts face a lot of difficulty when trying to adjudicate upon disputes within a Hindu
marriage or the distribution of property after death.

This paper tries to make an attempt at understanding what this term means through an analysis of
various cases which have tried to bring about a clearer definition. A specific study will be made of
the Betsy case (2010) and the report published by the 235th Law Commission on it. This will be
done to identify the practical problems created by the loose definition of the word while also
providing insights on how to mend them.

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 CHAPTER I: WHO IS A HINDU?

Section 2 of the Hindu Marriage Act1 defines a Hindu to be any individual who is born of two
Hindu parents, who is brought up as a member of a Hindu community (in case only one of the
parents is a Hindu), or any person who has chosen to convert or reconvert to the Hindu faith.
Section 2 of the Hindu Adoptions and Maintenance Act2 further expands on this definition by
stating that any individual whose parentage is not known or is abandoned by their parents shall
also be classified as a Hindu. Adding to this Section 7 of the Hindu Marriage Act3 which details
the ceremonies necessary for a valid Hindu marriage does not mention specific customs necessary
for solemnization, further it only makes a reference to the saptadi4 while listing it out as one of the
many ceremonies which can be performed for the solemnization of a valid Hindu marriage.

The term Hindu therefore has been given the broadest of definitions encompassing within it a
variety of cultures and practices. The Hindu Marriage Act even goes as far as stating that any
individual who is not a Jain, Christian, Jew or Parsi shall be governed by the Act.5 The first decade
of post-colonial society in India during which the Hindu Marriage Act was passed sought to retain
element of colonial personal laws and thus rather than moving towards a uniform civil code
allowed for religious groups to maintain their personal laws.6 This was mainly done in the interest
of furthering the Indian conception of secularism where all religions are allowed to propagate and
spread their beliefs.7 The problem with the Hindu Marriage Act however arises from the fact that
unlike other religions which have largely central tenets or principles which govern them despite
various differences that might exist among various cultural groups of the religion, Hinduism as a
religion itself does not possesses these clear demarcations or tenets. If we look at the various
groups which identify themselves to be Hindu across India, there is little similarity in the practices
and gods worshipped.

1
Sec. 2, Hindu Marriage Act, 1955.
2
Sec. 2, Hindu Adoptions and Maintenance Act, 1956.
3
Sec. 7, Hindu Marriage Act, 1955.
4
Sec. 7(2), Hindu Marriage Act, 1955.
5
Sec. 2(1) (b), Hindu Marriage Act, 1955.
6
N. Subramanian, Making Family and Nation: Hindu Marriage Law in Early Post-Colonial India, Vol. 69,
ASSOCIATION OF ASIAN STUDIES, 772 (2010).
7
Id.

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Thus when courts have to adjudicate on various matters which have are brought up in reference to
the marriage and divorce of Hindus there is no clear cut method to do so. In the Yagnapurushdasji
v. Vaishya8, the Supreme Court deliberated upon questions such as who Hindus are and what the
broad features that categorize the religion are. It was observed by the court that historically the
term was used by Persians to refer to all peoples who lived on the other side of the river Indus.
The court further stated that there is no single definition that can be ascribed to the term as there
do not exist practices, beliefs or customs which stretch across all groups that identify themselves
to be Hindu.

This inability to classify who is a Hindu further gets accentuated when there is a question of
conversion from one religion to Hinduism. Unlike Muslim law or Christian law which have clearly
demarcated customs that must be followed for one to be part of the religion, Hindu law remains
largely silent on the matter and sets forth no grounds as to how a person can become a Hindu other
than birth. In Perumal v. Ponnuswami9 the court tried to further this explanation by stating that an
individual may become a Hindu by having a bona fide intention to convert to the Hindu religion
and by expressing such intention it laid down that no formal ceremony of conversion is required
for one to become a Hindu. While this may seem reasonable, it creates more problems than it
solves by further broadening the usage of the term. Bona fide intention to convert to the Hindu
faith is a relatively vague standard to set. How does one prove the bona fide intention existed or
the fact that this intention was expressed in the right manner. Hindu Law remains silent on these
matters as well.

The Hindu Marriage Act further also includes various other religions within its mandate namely
Jainism, Sikhism and Buddhism.10 This then raises the question that if the legislative intent behind
the Act was to respect the personal laws of other religions than why does the Hindu Marriage Act
apply to religions which were historically founded in opposition to the Hindu faith.11 The principle
therefore of allowing religions to maintain their autonomy over their own religions gets quashed
as the legislations such as the Hindu Marriage Act seek to encompass all within it without care for
difference that may exist in ideologies and practice.

8
Sastri Yagnapurushdasji v. Muldas Brudardas Vasihya, SC 1966 AIR 1119 (Supreme Court of India).
9
Perumal v. Ponnuswami, SC 1971 AIR 2352 (Supreme Court of India).
10
Sec. 2(1) (b), Hindu Marriage Act 1955.
11
Supra at 6.

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What all of this does, is that it creates the broadest possible and most elastic definition for the term
Hindu and thus subscribes large swathes of the population who often do not have anything in
common to the same laws. This broad definition then taken by the courts and various legislations
passed allow for the question of who is a Hindu to remain open by conceiving a definition that
encompasses one and all.

An argument can be made that this broad definition under the Hindu Marriage Act and other
subsequent acts provides for all differences to be accommodated. For example, Section 7 of the
Hindu Marriage Act does not specify any particular means for the solemnization of marriage and
thus allows for all communities to get married according to their own customs.12 But this is flawed
on two counts, firstly because it still does not cater to the principal for religions to maintain their
autonomy as religions such as Jainism or Buddhism are subsumed under the Act, and secondly
this creates a massive legal problem when disputes regarding marriage and divorce are brought
before the court as there are no set procedures or rules to follow.

12
Sec. 7, Hindu Marriage Act, 1955.

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 CHAPTER II: BETSYS CASE

CASE FACTS
In Betsy and anr. v. Nil,13 a couple approached the court to file for divorce by mutual consent. The
husband was a Hindu while the wife was a Christian until marriage, thereafter converting to the
Hindu faith and marrying under the Hindu Marriage Act. The court refused the divorce despite no
opposition on the grounds that the marriage was never solemnized to begin with. The court ruled
that the wife had not undertaken the requisite steps needed to convert from Christianity to
Hinduism. This led to an appeal to the High Court of Kerala where the court dismissed the findings
of the lower court and sent the records back to the Family Court to dispose of the matter.

FINDINGS OF THE COURT

The central question of the case was whether there was a legitimate conversion of the wife from
Christianity to Hinduism and in light of the same arguments were furthered from both sides. This
question then led to the central question of this thesis as to who is a Hindu. In a previous judgement
of the Supreme Court,14 the court placing reliance on Tilaks observations surmised that the
distinguishing feature of the Hindu religion was the acceptance of the Vedas with reverence;
recognition of the fact that the means or ways to salvation are diverse; and realization of the truth
that the number of gods to be worshipped is large. Though this philosophical definition of a Hindu
was taken into consideration by the court it placed a greater reliance in the test laid down in Ram
Mohandas v. Travancore Devasom Board15 which stated that a person who declares that he is a
follower of the Hindu faith, as long as the declaration is not challenged as being mala fide or with
ulterior intentions is taken to have accepted the Hindu approach to God. Sapna Jacob v. State of
Kerala16 referred which reiterating the Perumal17 judgement talked of the bona fide intention of
the individual to convert to Hinduism.

13
Betsy and Sadandan v. Nil, KLT 631(4) 2009 (High Court of Kerala).
14
Sastri Yagnapurushdasji v. Muldas Brudardas Vasihya, SC 1966 AIR 1119 (Supreme Court of India).
15
Ram Mohandas v. Travancore Devasom Board, KLT 55 1975 (High Court of Kerala).
16
Sapna Jacob v. State of Kerala, Ker 75 AIR 1993. (High Court of Kerala)
17
Perumal v. Ponnuswami, SC 1971 AIR 2352 (Supreme Court of India).

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ANALYSIS
The Betsy case signifies the frivolous litigation that is often initiated in courts due to the lack of
clear principles which distinguish a Hindu from a person of other faiths. All the judgements cited
above largely in their own way list out vague criterion for the conversion of an individual from
one faith to Hinduism and largely avoid the central question of who is a Hindu. The judgements
propound philosophical ideologues such as that of Tilak18 to try and categorize what a Hindu
essentially is but fails to create legitimate or clear grounds through which they can be demarcated.

Another significant development which emerged from the Betsy case was the discussion on
conversions. The court had to decide whether the conversion of Betsy from Christianity to
Hinduism was legal and if so what the procedure for doing so was. This was later discussed in
much detail by the Law Commission which produced a report on it,19 but the fact still remains that
just like there is no clear cut answer to what categorizes a Hindu there is no clear answer to this
either. The lower court ruled the marriage to be void on instance of there not being a valid
conversion without stipulating what such a conversion is. Conversion in principle is a contentious
matter as it deeply affects the social status, family life, the ability to stand for in elections and even
the laws that govern an individual. Hindu statutory law remains largely silent on the topic and even
the judgements given by various courts establish no clear processes, rather talking about a bona-
fide belief in the faith that the individual wants to subscribe to through which this can be achieved.

The Betsy case also showcases the inadequacy of the relevant provisions such as the Hindu
Marriage Act. The divorce though by mutual consent was denied by the lower courts on a
technicality which stems from the lack of clear definitions in the Hindu Marriage Act. This same
case was then analyzed by the 235th Law Commission and its report shall be analyzed in the next
section.

18
Sastri Yagnapurushdasji v. Muldas Brudardas Vasihya, SC 1966 AIR 1119 (Supreme Court of India).
19
235th Law Commission Report, Conversion/Reconversion To Another Religion (2010).

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 CHAPTER III : 235TH LAW COMMISSION REPORT

The Betsy case was referred to the 235th Law Commission to discuss the question of legal
conversion from one religion to another. The Law Commission in its report asserted that the right
to profess, practice and propagate religion is enshrined in Article 25 of the Constitution.20 The Law
Commission noted that the Constitution gave the right to an individual to communicate ones
religious beliefs to others by the expounding on the tenets of the religion, however no one would
have the right to try and convert an individual to another religion thorough pressure or
inducement.21

The Law Commission recognized conversion as a legitimate choice available to an individual, and
also took into cognizance the request by the High Court of Kerala to create a legislation which
prescribes a method for a legal conversion. However, it suggested that there is no need for such a
legislation as this will create hazards for individuals who have a bona fide belief in the religion yet
do not want to get registered or for those who simply forget to do so. The Commission instead
suggested that the declaration for change in ones religion should be made optional and courts of
law should recognize both the declaration and conduct which shows a bona fide belief in the
religion to be a proof for conversion.22

The Law Commission Report thus in support of previous Supreme Court judgements23 continued
to support the largely vague standard for conversion which amounts to having a bona fide belief
in the religion. Some interesting point are however made through the report. The Law Commission
recognizes the often fruitless and rather frivolous legislation than many have to undertake due to
the non-specificity of terms in the Hindu Marriage Act. It also recognizes how this system would
become simpler if a formal declaration was made mandatory for those converting from one religion
to another. But it argues against taking steps to enact these measures on the following grounds,
firstly that this would harm converts who have a bona fide belief in the religion yet fail to get

20
Article 25, CONSTITUTION OF INDIA (1950).
21
Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908 (Supreme Court of India).
22
Perumal v. Ponnuswami, SC 1971 AIR 2352 (Supreme Court of India).
23
Sastri Yagnapurushdasji v. Muldas Brudardas Vasihya, SC 1966 AIR 1119 (Supreme Court of India).

8
registered and also it causes other peripheral harms such as giving the registration officer an
enormous amount of power.24

It is important to note that various states such as Arunachal Pradesh and Gujarat have passed
legislations such as the Freedom of Religion Act25 which prohibits the forceful conversion of an
individual from one religion to another. This legislation also requires the individual choosing to
convert to send prior intimation to the District Magistrate. Such legislations thus prevent the
forceful conversion of individuals while also providing the, with ample proof of conversion should
a dispute regarding their religion arise.

The Law Commission took this into cognizance yet remarked that such legislations are not
required and that status quo where an individual has to prove his/her bona fide faith in the religion
through conduct is more suitable. The researcher argues that passing central legislations which
provide clarity on vague terms such as who is a Hindu, or details the procedure for conversion of
an individual benefit both the people and the state in two ways.

Firstly, it reduces the time consuming litigation that often has to be undertaken to prove ones
religion. Simply by getting a declaration registered with the District Magistrate or Registration
officer would solve the problem at the core of the Betsy case26. Secondly, by having clearer
definitions or procedures a better and more objective standard regarding such cases can be set.
Currently when the standard exists as simply having a bona-fide faith in the religion and showcase
of the same it is difficult to really understand what this bona-fide faith is. In fact in status quo it
raises more questions than it answers. Questions such as what is bona-fide faith in a religion, what
actions must be done to prove ones faith are all arbitrary and subjective. An objective standard on
the other hand would help courts rule in a fair manner and allow for the application of the same
standard on all cases which emerge out of such dispute and it would also allow for the reduction
of time consuming litigation.

The argument from the Law Commission27 of the choice being with the individual to declare
conversion does not hold weight as it still creates the confusion that arose out of the Betsy Case.28

24
235th Law Commission Report, Conversion/Reconversion To Another Religion (2010).
25
Gujarat Freedom of Religion Act, 2003.
26
Betsy and Sadandan v. Nil, KLT 631(4) 2009 (High Court of Kerala).
27
235th Law Commission Report, Conversion/Reconversion To Another Religion (2010).
28
Betsy and Sadandan v. Nil, KLT 631(4) 2009 (High Court of Kerala).

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Further it leads to the court relying on documents in some cases and relying on bona-fide beliefs
in others, further confusing the already messy jurisprudence on the topic.

CONCLUSION
The term Hindu is today used by groups all across India as a means to identify their religion. The
term gives them meaning as it symbolizes the practices and customs followed by their
communities. Yet, the term is multifarious in meaning. For a Lingayat from South India the term
connotes worship of the Lord Shiva and the consumption of all meats in contrast to Brahmin from
Tamil Nadu it stipulates their position in society and the strict adherence to a vegetarian diet. Even
gods of this religion are represented differently by different cultures with Lord Jagganath of Orissa
apparently being a form of Lord Vishnu just the same as Lord Rama. The dichotomy of beliefs
and traditions in the Hindu faith arise from the way the faith was formed during the Bhakti
movement. Following the increase in Jains and Buddhists due to the strict dicta of the Brahmanical
religion, Hindu faith sought to reform itself by adapting according to geographical locations and
cultural beliefs, subsuming local gods as sons and daughters of the major ones. Hindu faith soon
lost the rigid character that it once had and encompassed peoples of various cultures and beliefs.
It is precisely due to this elastic character of the Hindu faith which makes it so difficult to define
in law.

Despite, various interpretations by the courts the term Hindu is still loosely defined and continues
to encompass other religions such as Buddhism and Jainism. Further the courts along with the law
commission have been reluctant to create statutory provisions which clarify these vague terms or
the procedure required for legitimate conversion of an individual from one religion to another. The
Betsy case was a highlight of this as it showed how such vague and ambiguous laws lead to
frivolous litigation for innocent individuals. The researcher through the course of this paper has
tried to identify these various lapse that exist currently in Indian jurisprudence and has also
suggested reforms along the lines of acts such as the Freedom of Religion Act which protects
individuals from forceful conversion while also giving them significant proof of conversion should
any such dispute arise.

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 BIBLIOGRAPHY

BOOKS
1. K.B. Agarwal, FAMILY LAW IN INDIA, (2010).
2. MAYNES TREATISE ON HINDU LAW AND USAGE, (17TH EDN, 2014).
3. MULLA ON THE PRINCIPLES OF HINDU LAW, (21ST EDN, 2010).

ARTICLES
1. A. Parameswaran, Who is a Brahmin in Singapore, Vol. 41 Modern Asia Studies (2007).
2. C. Gupta, Hindu Women, Muslim Men: Love Jihad and Conversions, Vol. 44 Economic
and Political Weekly (2009).
3. F. Agnes, Hindu men, Monogamy and Uniform Civil Code, Vol. 30 Economic and political
Weekly (1995).
4. G. Pandey, Hindus and Others: The Militant Hindu construction, Vol 26 Economic and
Political Weekly (1991).
5. N. Subramanian, Making Family and Nation: Hindu Marriage Law in Early Post-Colonial
India, Vol. 69 The Journal of Asian Studies (2010).

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