Section 4 does not, however, affect:
(1) A custom permitting a marriage between persons within the prohibited degrees of relationship. (Section 5)
(2) A custom permitting marriage between sapindas. (Section 6)
(3) The right to terminate a Hindu marriage recognised by custom or conferred by any special enactment. (Section 29)
(4) Pending proceedings for the termination of marriage or for judicial separation. (Section 29)
(5) A marriage between Hindus solemnized under the Special Marriage Act. (Section 29)
Whether the Act is retrospective:
It is a well-established rule of interpretation of statutes that an Act which deals with rules of substantive law cannot be construed to have retrospective operation, unless it is expressly so stated. The general rule is that where a statute is passed altering the law, it is to be presumed that it is to apply to cases coming into existence after the passing of such an Act. Section 4 and other sections of the Act also indicate that the Act was not intended to have any retrospective effect.
Territories to which the Act extends (S. 1):
The Act provides that it shall extend to the whole of India, except the State of Jammu and Kashmir. However, in 1955, the Act was applied to that State with certain modifications. Later, in 1980, the Act ceased to apply to Jammu and Kashmir.
It is also provided that the Act also applies to Hindus who are domiciled in the territories to which the Act extends, but who are outside such territories.
Persons to whom the Act applies (S. 2):
Section 2 provides that the Act applies to the following persons :
(a) 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) Any person who is a Buddhist, Jain or Sikh by religion.
The effect of these provisions of the Act is to give legislative sanction to the existing provisions of the law, which lay down that even though Jains may not be Hindu by religion, they are to be governed by the same law as the Hindus.
(c) Any other person domiciled in India, 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 in the Act, if this Act had not been passed.
It has rightly been observed that for the purposes of this Act, it is easier to say who is not a Hindu, than to lay down as to who exactly is a Hindu. This clause is negative in form; it lays down that it is to be presumed, until the contrary is proved, that any person domiciled in India who is not a Muslim, Christian, Parsi or Jew by religion, will be governed by this Act.
(d) Hindus domiciled in the territories to which the Act extends, but who are outside such territories.
(e) The Explanation to Section 2 clarifies that the following persons have also to be considered to be Hindus, Buddhists or Jains by religion, as the case may be, viz-
(i) Any child – legitimate or illegitimate – both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion.
(ii) Any child – legitimate or illegitimate – one of whose parents is a Hindu, Buddhist, Jain or Sikh, provided such child is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.
It will be seen that the Act makes no distinction between legitimate and illegitimate children. The usual rule of law that a legitimate child follows his father’s religion and an illegitimate child that of his mother, is not accepted by this Act. Rather, the more practical test of being brought up as a Hindu is adopted by the Act.
(iii) Any person who is a convert or re-convert to the Hindu, Bhuddhist, Jain or Sikh religion.
The above clause gives legislative sanction to the view that conversion or re-conversion of any person to the Hindu religion attracts the application of the Act. Thus, a European does not become a Hindu, merely because he professes a theoretical allegiance to the Hindu faith or merely because he is an ardent admirer of the Hindu religion and its customs and practices. But, if he abdicates his religion by a clear act of renunciation, and if he can be said to have in fact adopted the Hindu religion (as for example, if he undergoes a formal conversion), he will be regarded as a Hindu under the Act.
It may be noted that no formal ceremony of purification or expiration is necessary for a person becoming a Hindu. An intention to become a Hindu, accompanied by conduct unequivocally expressing that intention, would be sufficient evidence of conversion. (Raman Nadar v. Snehapoo, A.I.R. 1970 S.C. 1759)
It may also be noted that the Act excludes the Scheduled Tribes (within the meaning of Article 366(25) of the Constitution of India) from its operation, even though such tribes may be Hindus. The Act may, however, be applied to such Tribes if the Central Government issues a Notification to that effect in the Official Gazette.
The Hindu Marriage Act does not, however, apply to the following two categories of persons:
(1) Hindus who have renounced the Hindu religion and have become converts to some other religion, e.g., Christianity.
(2) Persons descended from Hindu ancestors, whose marriage or new occupation has had the effect of converting them into a distinct community, with their own individual religion and usages. The Kalis of Burma is one such community, and although they have descended from Hindu ancestors, they are not governed by Hindu Law.