Hindu Marriage Act – Extend and Application

Hindu Marriage Act – Extend and Application

**Author:- Mitali Kasat, a Student at Indian Law Society

The Hindu Marriage Act was drafted by the Rau Committee and introduced in the legislative assembly in 1947. On 9th April 1948, it was referred to a select committee of the Constitutional Assembly of India. Finally, the Hindu Marriage Act became law on 18th May 1955. It applies to all Hindus, Buddhists, Jains and Sikhs. 

Section 1 of talks about short title and extent:  (1) This Act may be called the Hindu Marriage Act, of 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir*, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

(*Vide notification No. S.O. 3912(E), dated 30th October 2019, this Act is made applicable to the Union territory of Jammu and Kashmir and the Union territory of Ladakh.)

This section deals with the territorial activities of the act. Clause (i) of this section says that this act may be called as the Hindu Marriage Act. The word may is mentioned because the gazette can notify to call it otherwise. 

Clause (ii) of this section talks about the extent of the act. This act will extend to the whole of India and also to the Hindus domiciled in the territories to which this act extends who are outside the said territories. 

The recent decision of the Delhi High Court has seized the controversy and made the situation comprehensively clear.

In Karan Goel v. Ms. Kanika Goel I (2021) DMC 193 Del.; LQ/DelHC/2020/2682 it was held as under:

"The Hindu Marriage Act, as it originally stood besides its coverage to the whole of India, also applied to all Hindus domiciled in India. The Act was subsequently amended and it was given an extended application. Accordingly, domicile in India was substituted by a new clause domiciled in the territories to which this Act extends. This amendment was made with a specific purpose to extend the provisions of the Act to all Hindus with such domicile, even though for the time being, they are outside the said territories. Because of this amendment, it was not open to a person governed by Hindu Law to contest the matter on the sole ground that he is residing outside India and as such the Act has no application to him".

Section 2 talks about Application of Act.

(1) This Act applies

(a) 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,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends 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:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) 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; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) 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.

(3) 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.

Clause (2) talks about the exceptions to this section.