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Article Published in the Express Magazine Dated
January 14, 2001
General Attorney : Rajiv K. Luthra
My uncle, who is a Hindu, is married to a
Christian lady. They have a son and I am anxious
to understand as to what will be the status of
their son, who has been born to them, vis-ŕ-vis
his religion?
Sanjeev Shukla, Hyderabad
If the child born to your uncle and aunt has been
brought up as a Hindu or professed the Hindu
religion, he is going to be legally considered
being a Hindu by religion. Section 2 of the Hindu
Succession Act, 1956 in its explanation clause
clarifies that any child, legitimate or
illegitimate, one of whose parents is a Hindu by
religion and who is brought up as a Hindu is a
Hindu. A child in India, under ordinary
circumstances, must be presumed to have his
father’s religion, and his corresponding civil and
social status. It is not known from your query
whether your uncle has renounced or retained his
Hindu religion. Neither is it known whether their
child has been brought up as a Hindu or a
Christian. Under the codifying Acts namely the
Hindu Marriage Act, 1955, the Hindu Succession
Act, 1956, the Hindu Minority and Guardianship
Act, 1956 and the Hindu Adoptions and Maintenance
Act, 1956, the orthodox concept of the term
‘Hindu’ has undergone a radical change and it has
been given an extended meaning. These Acts apply
not only to Hindus by birth or religion i.e.
converts to Hinduism but also to a large number of
other persons. Hence, legitimate children of a
Hindu father by a Christian mother who are brought
up as Hindus would be governed by Hindu law.
Having been begotten out of the valid and lawful
wedlock, their son will be a legitimate child and
lineal descendant of the Hindu male.
My friend is working in a respectable office.
His neighbor is a sixteen-year-old girl. One day
at her request he took her out sight seeing around
the city. However, they got delayed and returned
home only the next afternoon. Upon returning home
the police nabbed him? What we fail to understand
is why did the police nab him especially when the
girl went out on her own choice and upon her own
insistence?
Gurinder Pal Singh, Ambala
The offence, which your friend may be accused of,
is termed as "kidnapping from lawful guardianship"
as defined under Section 361 of the Indian Penal
Code. According to this section, whoever takes or
entices any female minor (under eighteen years of
age) out of the keeping of the lawful guardian of
such minor, without the consent of her guardian,
is said to kidnap such minor or person from the
lawful guardianship. It really does not matter if
your friend took the minor on her initiative. It
is not her consent but that of her lawful
guardian, that is to be taken into consideration,
she being a minor still. Lawful guardian in this
section includes any person lawfully entrusted
with the care or custody of such minor or person.
The three ingredients of the offence defined under
the section may be attracted in this case. As you
have pointed out, the young neighbor of your
friend is under sixteen years of age, which means,
she is still a minor. Secondly, your friend is
guilty of taking or enticing her away, out of the
keeping of her lawful guardianship and finally,
such taking or enticing was done without the
consent of her lawful guardian. Thus, under the
circumstances your friend maybe charged of the
above-described offence. In fact, the punishment
prescribed under section 363 of the same Act, for
an offence of this nature is imprisonment of
either description for a term, which may extend to
seven years, and the person also shall be liable
for fine.
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