Who is a Hindu? Persons to whom Hindu law apply?
According to the Hindu law, the term ‘HINDU’ denotes to all those person who are Hindu by religion, by birth and all those person who are not Muslim, Christians, Parsis or Jews by religion.
Section 2 of Hindu marriage act, 1955 also support the same and it states that –
- (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)To any person who is a Buddhist, Jain 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, Jains or Sikhs by religion, as the case may be:
(a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain 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, Jain or Sikh religion.
- 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.
- 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.
A Hindu Law is a Law of Status for a Hindu person. It means that wherever a Hindu goes, he will be considered as a person under Hindu Law, even when he moves out of his homeland.
Hindu by Religion
A person who is Hindu by religion in any of its form and development is a Hindu. Any person who is a Jain, Sikh or Buddhist by religion is also Hindu and Hindu law applies to them.
- In Shastri Yognopurusha dasji v. Muldas [AIR 1996 SC 1119] – In this case, SC accepted the working formula evolved by Tilak regarding the Hindu religion that ‘acceptance of Vedas’ with reverence, recognition of the fact that the no. of gods to be worshiped at larger, that indeed is the distinguishing feature by the Hindu religion.
- In Shastri v. Muldas [SC AIR 1961] – In this case, SC has held that various sub sects of Hindu such as Swami-Narayan, satsangis, Arya-Smaj are also Hindu by religion because they follow the basic concept of Hindu philosophy.
Converts or Reconverts
By judicial interpretation two modes of conversion has been developed. A person will be Hindu by conversion or reconversion if any of the following mode is adopted –
- Undergo formal ceremony prescribed by religion
- Express Bonafide intention to become a Hindu
- Bon fide declare that he has accepted Hinduism as he has faith and has been following Hinduism for sometime
Hindu by Birth
A person will be Hindu by birth in the following cases –
- A person, whether legitimate or illegitimate, is a Hindu if both of the parents are Hindu.
- A person, whether legitimate or illegitimate, is Hindu – If anyone of parent is Hindu at the time of child birth or If the child is bought up or raised as Hindu
- A case in 1980, a child was born to a Hindu mother and Muslim father. The child was bought up as Hindu. In 1990, the mother get converted to Islam. As a result, the issue raised was whether the child will remain Hindu or not?. According to the explanation (b) of Section 2(1) of Hindu Marriage Act, the child will remain Hindu because his/her mother was Hindu at the time of child birth and was also bought up as Hindu.
- In Sapna v. state of Kerala, the Kerala high court held that the son of Hindu father and Christian mother was not held to be Christian.
- In Menaka Gandhi v. Indira Gandhi and others [AIR 1985 Del 114],Delhi High Court held that a child brought up as Hindu must be considered as Hindu by birth.
Person who are not Muslim, Christians, Parsi or Jews by religion
Any person who is not Muslim, Christians, Parsi or Jews by religion and who is also known to be Hindu, Sikh, Jain or Buddhist by religion, then he is known to be Hindu only if –
- Domiciled in India
- Unless it is proved that Hind law is not applicable to that person, is a Hindu
Schedule Tribes not to be considered under Hindu law unless notified
Each and every law mentioned in the Hindu personal law shall not be applicable to all those people who are the member of Schedule tribe unless the Central government notify for the same through an official gazette as directed under clause 25 of Article 366 of Indian Constitution.
The Hindu law is applicable to all those persons who are –
- Hindu by birth
- Offshoots of Hinduism
- Persons who are not Muslim, Christians, Parsi, or Jews by Religion
- Converts or reconverts to Hindu
- Aboriginal Tribes
The Hindu law is not applicable to all those persons who are –
- Converted to Mohammedan
- Converted to Christians from Hindu
- Illegitimate child of a Hindu Father and Christian mother and is also bought up as Christians
Author: Navya Agarwal,
College - GGSIPU; 2nd year