RAJ KUMAR GUPTA Vs. BARBARA GUPTA

JUDGEMENT

(1.) A husband filed an application under S.25, Guardians and Wards Act, 1890, against his wife for an order for the return of their minor daughter, then aged about 21/2 years, to his custody on the allegation that the child "was taken away from his lawful custody" by the wife and the application having been dismissed, the husband has preferred this appeal.

(2.) However anachronistic it may appear to be, even to-day in India, proclaimed to be "Secular" in its National Charter and mandated thereby almost four decades ago to secure to all its citizens a Uniform Civil Code, "religion" is still being allowed to have a dominant and decisive role even in secular matters relating to law and its administration and the rights and status of a person in matters relating to marriage, succession, guardianship and the like still depend on the religion he would belong to. The husband here is a Hindu, the wife a Christian and they were married under the Special Marriage Act, 1954. What religious community the child would then belong to? The question appears to have been authoritatively settled by both our pre-independence and post-independence Apex Courts, the Judicial Committee of the Privy Council and the Supreme Court of India. In Helen Skinner v. Sophia Evelina Orde, (1871) 14 Moo Ind App 309 at p. 323, decided in 1871, it was ruled that "from the very necessity of the case, a child in India, under ordinary circumstances, must be presumed to have his father's religion and his corresponding civil and social status". A five-Judge Bench of the Supreme Court in Commr. of Wealth Tax v. R. Sridharan, (1976) 4 SCC 489, decided in 1976, has virtually reproduced the above quoted words almost verbatim, but has referred to Mayne's Hindu Law (11th Edition, page 290) as authority for this view. But in Mayne's Hindu Law, the above observation in Helen Skinner (supra) was quoted with quotation marks, citing Helen Skinner (supra) as the authority therefor and, therefore, if we may say with respect, the real authority for this view is not the Mayne's Treatise, but Helen Skinner (supra). Reference, if need be, may also be made to an old Division Bench decision of the Madras High Court in Queen-Empress v. Veeradu, (1894) ILR 18 Mad 230 at p 232 where also it was held that "children............ are in law presumed to follow their father's religion".

(3.) We would also come to the same conclusion on a consideration of the relevant provisions in S.3, Hindu Minority and Guardianship Act, 1956, which again are in pari materia with the corresponding provisions in S.2, Hindu Marriage Act, 1955, and the Hindu Succession Act and the Hindu Adoption and Maintenance Act of 1956. Under S.3(3), Hindu Minority and Guardianship Act, the expression "Hindu" in the Act shall include all persons to whom the Act would apply under S.3(1) and under S.3(1)(c), the Act would apply "to any ......... 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 Hindu law if this Act had not been passed". Now the child being a minor must have its further's Indian domicile. It is nobody's case that the child is a Muslim Parsi or Jew by religion. Neither the father nor even the Christian mother claims the child to be a Christian by religion. And the Privy Council decision in Helen Skinner (supra) and the Supreme Court decision in R Sridharan (supra) are clear authorities that under the Hindu Law as it stood before this Act, the child would have, under ordinary circumstances, belonged to its father's Hindu religion and would have been governed by Hindu Law. The child, therefore, is a Hindu within the meaning of the Hindu Minority and Guardianship Act in view of its S.3(1) and (3), notwithstanding its Christian mother.