Hindu Law – Its Applicability, Non-applicability & Extent

Who is Hindu?

 The word “Hindu” came into existence with the advent of Greeks who called the inhabitants of Indus valley as Indoi and later on this designation was extended to include all persons who lived beyond the Indus Valley.

Now the term ‘Hindu’ has neither any Territorial Significance nor it is a Designation of nationality. Before 1955, a person who was Hindu by religion was certainly a Hindu, and since Hindu law applied to them they were called as Hindu.

Till this day there is no precise definition of the term “Hindu” either in any statute or in any judicial pronouncement.

Yagnapurusholasji VS. Vaishya AIR, 1966 S.C

The Supreme Court elaborately considered the question as to who are Hindus and what are the broad features of Hindu religion and has observed that the word “Hindu” is derived from the word Sindhu otherwise known as Indus river.

To whom the Hindu Law Applies?

Hindu law applies to all the persons who are Hindus. Persons to whom Hindu law applies may be put in the following three categories:

  • Any person who is by Religion a Hindu, Jain, Sikh or Buddhist.
  • Any person who is born of Hindu Parents.
  • Any person Who is not a Muslim, Christian, Parsi or Jew by religion.

Hindu by Religion

Hindu law applies to any person who is a Hindu by Religion in any of its forms or developments, including a Virashiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Under this category there is two types of persons follow:

  • Those who are originally Hindus, Sikhs or Buddhist by Religion, and
  • Those who are converted or reconverted to Hindu, Sikhs, Jains or Buddhists by the religion.

Originally Hindus

Person who follows Hindu Religion in any of its forms or development either Practicing it or by professing it is a Hindu .

Shastri VS. Muldas 1966 SC

In this case Justice Gajendra Gadkar attempted to define Hindu in terms of religion. The main question before the Supreme court was whether Satsangies are Hindu or not?

The learned Judge quoted with profile the following passage from Tilak’s Geeta Rahasya:

“ Acceptance of vedas will Reference to recognition of the facts that the means and ways of Salvation are realization of the truth that number of gods to be worshiped is large, that indeed in the distinguishing feature of Hindu religion”.

Therefore, Satsangies are held to be Hindus.

Undoubtedly a person who poses the text of Hinduism as laid down by the Supreme Court is a Hindu, but it May not be said that a person who does not pose those text is not a Hindu. A person who has faith in Hindu religion and who practices or profess it, is a Hindu.

Converted and Re-Converted Hindu

  • A convert is a person who renounces his faith and adopts the usual way of conversion is by undergoing the ceremonies of the  conversion Prescribed by the religion to which conversion is Sought.
  • The old Dharam Shastra did not prescribe any ceremony for conversion to Hinduism because they never allowed conversion. Among Hindus it is only the Arya Samajist who prescribed a ceremony of conversion, known as Shudhi.
  • A non-Hindu becomes a Hindu if he undergoes the ceremonies of conversion. Under the present Hindu law, any person converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu.
  • A person who is a reconverted to Hinduism is also a Hindu. A person who ceases to be a Hindu by converting to a non-Hindu religion will again become Hindu if he converts to any of the four religions of Hindus.
  • It is not necessary that he reconverts to the same religion from which he was converted to the non-Hindu religion, thus a Jain who was converted to Islam will be a Hindu if he converts to Sikhism.

Hindu by Birth

Under the modern Hindu law, irrespective of the fact whether a person is or is not a Hindu by religion, he will be a Hindu-

  • If he is born of Hindu Parents i.e. when both the parents are Hindu
  • If he is born to a Hindu Parent i.e. one of his parents is Hindu and he is brought up as a Hindu.

When both the Parents are Hindus

  • Under this category it is necessary that both the parents should be Hindus, Sikhs, Jains and Buddhist.
  • This is obviously that the one parent is Hindu and the other is Jain, Sikh or Buddhist, then also the child will be a Hindu.
  • Such a child may be legitimate, illegitimate he will be a Hindu.
  • It is immaterial that such a child does not profess, practice or have faith in the religion of its parents or even he is having faith or practice or profess to another religions.

When One Parent is Hindu

Under this category a person will be a Hindu if the following conditions are satisfied-

  • At the time of birth one of his parents was Hindu.
  • He is brought up as a member of a tribe, community, group or family to which the Hindu parent belonged at the time of birth of the child.

Myna Boyee VS. Ottaram 1861

The Court held that, where an European Christian’s illegitimate children from a Hindu woman were brought up as a Hindu, such children will be a Hindu.

Persons who are not Muslims, Christian, Parsies or Jews by Religion

Persons who are living in India and who are not Muslims, Christians, Parsies or Jews, are Hindus under the Hindu laws.

Non Applicability of Hindu law

The codify Hindu law lays down that its provisions do not apply to the member of the Scheduled tribes coming within the meaning of clause (25) of Article 366 of the Constitution of India, unless the central government by notification in the Official Gazette directs that any of the enactment shall apply to them also.

Dr. Surajmani Stellee Kujur VS. Durg charan Hansdah,  2001 S.C

The Hon’ble Supreme Court held that the marriage between the members of Scheduled Tribes is not governed by the Hindu Marriage Act 1955, in the light of Section 2(2). Rather their marriages would be governed only by their Santhal customs and usage.

Territories to which the Hindu law Extends

  • It extends to the whole of India. On 31 October, 2019 it extend to the state of Jammu & Kashmir also.
  • It also applies to Hindus who are domiciled in the territories to which the Act extends and who are outside such territories (i.e. outside India).

Also Read: 

Introduction to IPC

Introduction to CPC

Histocical background of constitution

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