Hindu Law - Persons to whom Hindu Law Applies and does not Apply

Hindu Law

Persons to whom Hindu Law Applies and Does Not Apply

Compiled by:
Vijay Sardana

Hindu Law applies to the following categories of persons:

(i)   Hindus by birth, and also to Hindus by religion, i.e., converts to Hinduism;

The Supreme Court in Pennnal v. Ponnuswami observed that a person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declarations that he is a Hindu is sufficient to convert him to Hinduism.

But a bona fide intention to be converted to the Hindu faith accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion.

Important: No formal ceremony of purification is necessary to effectuate conversion.

(ii)    Illegitimate children where both parents are Hindus;

(iii)   Illegitimate children where the father is a Christian and the mother a Hindu, and the children are brought up as Hindus.

Note: But the Hindu Law of coparcenary, which contemplates the father as the head of the family and the sons as coparceners by birth with rights of survivorship, cannot form the very nature of the case apply to such children;

(iv)  Jain, Buddhists in India, Sikhs and Nambudri Brahmans except, so far such law is varied by custom and to Lingayats who are considered as Shudras;

(v)   A Hindu by birth who, having renounced Hinduism, has reverted to it after performing the religious rites of expiation and repentance or even without a formal ritual of reconversion when he was recognised as a Hindu by the community;

(vi) Sons of Hindu dancing girls of the Naik caste converted to Mohammedanism where the sons are taken into the family of the Hindu grand-parents and are brought up as a Hindu;

(vii)  Brahmos Arya Samajists, and to Santhals of Chota Nagpur, and also to Santhals of Manbhum except so far as it is not varied by custom;

(viii) Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act, 1872; and

(ix)  A person who is born in a Hindu religion, does not cease to be a Hindu merely because he departs from the standard of orthodoxy in matters of diet and ceremonial observations.

Since the passing of Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoptions and Maintenance Act of 1956 and Hindu Minority and Guardianship Act of 1956, the following persons shall be deemed to be Hindus;

1. Any person who is Hindu by religion irrespective of or regardless of its forms or developments, including—

(a) A Virashaiva,

(b) A Lingayat,

(c) A follower of the Brahmo, Prathana or Arya Samaj.

2. Any person who is either—

(a) A Buddhist by religion; or

(b) A Jain by religion; or

(c) A Sikh by religion.

3. Any other person domiciled in the territories to which this Act extends who is not—

(a) A Muslim by religion, or

(b) A Christian by religion, or

(c) A Parsi by religion, or

(d) A Jew by religion,

Except when 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 (Hindu Law) in respect of any of the matters which are dealt with in these Acts if these Acts had not been passed.

The following persons are Hindus, Buddhists, Jains or Sikhs by religions:

(a)  Any child, legitimate or illegitimate, both of whose parents belong to any of the above religions;

(b)  Any child, legitimate or illegitimate, both of whose parents (father and mother) are Hindus, Buddhists, Jains or Sikhs by religion;

(c)  Any child, legitimate or illegitimate, one of whose parents either (father or mother) is a Hindu, Budhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent (either the father or the mother) belongs or belonged;

(d)  Any person who is a convert or recovert to the Hindu, Buddhist, Jaina or Sikh religion.

Explanation (b) of section 2 of the Hindu Marriage Act, Hindu Succession Act, Hindu Adoptions and Maintenance Act and the Hindu Minority and Guardianship Act, whose language is in pari materia, expressly provides for the conferment of the status of a “Hindu on a person even though such status is doubtful when the personal law of the parties is invoked.

These Acts provide that the expression ‘Hindu’ in any portion of these Acts, 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 provision contained in these sections. Therefore, if a parent belonging to a twice born class inducts the child into a Hindu family and brings him up as such, then the statute invests him with the status of a Hindu and recognises him as a Hindu.

People Who Have Changed Religion:

It is a general principle of law that a person who has accepted a religion cannot rely on a custom opposed to that religion.

Thus where a Hindu converts to Mohammedanism he will be, as a general rule, governed by the Mohemmedan Law. But a well-established custom in the case of such converts follow their old law in matters of succession and inheritance, has been held to override the general presumption. Thus several classes of Mohammedans, who were formerly Hindus like the Khojas and the Cutchi Memons of Bombay, the Halwai Memons of Khatiawar and the Sunni Borahs of Gujarat have by custom, retained the Hindu Law of Succession and Inheritance.

But in view of the passing of the Muslim Personal Law (Shariat) Application Act, 1937, the custom in the communities ceases to be applicable and these Muslim communities are governed by Muslim Personal Law in the matters of succession and inheritance also.

In cases where Hindus have converted to Christianity, before the passing of the Indian Succession Act, 1925, such converted persons had to elect either to adhere or to renounce the Hindu Law of Succession. But the Act brought under its provisions all native Christians whether they have or have not elected to remain subject to Hindu Law.

Persons to Whom Hindu Law does not Apply

The Hindu Law does not apply—

(i)    To the illegitimate children of a Hindu father by a Christian mother and who are brought up as Christians, or to illegitimate children of a Hindu father by a Mohammedan mother, because these are not Hindus either by birth or by religion;

(ii)   To the Hindu converts to Christianity. Succession to the estate of a Hindu convert to Christianity who dies a Christian intestate is governed by the Indian Succession Act, 1865 (now Indian Succession Act, 1925). A person ceasing to be a Hindu in religion cannot, since the passing of the Act of 1865, elect to continue to be bound by the Hindu Law in the matters of succession;

(iii)   To descendants of Hindus who have formed themselves into a distinct community or sect with a peculiar religion and usages so different from the principles of Shastras that the community cannot but be regarded as being outside Hinduism in the proper meaning of the words;

(iv)    To convert from Hindu to the Mohammedan faith.

Extent of the Application of Hindu Law:

Hindu Law, as administered by the Courts of India is applied to Hindus in all matters. It applies in some matters only. Furthermore it is not the original Hindu Law which applied to Hindus in India but certain amendments and modifications have changed and altered a considerable portion of the Hindu Law and as such the Hindu Law which is now applicable to Hindus is subject to such alterations and modifications.

Application of Hindu Law

A precise definition of Hinduism does not exist. Hence, it is impossible to define a fixed criteria for determining who is a Hindu. So a negative definition of 'who is not a Hindu' is used. Further, in this land, several religions have been born and they follow the same customs and practices. So it cannot be said that Hindu Law can be applied only to people who are Hindus by religion. Due to these reasons, in general, the following people are considered to be Hindu with respect to application of Hindu Law.

Hindu by Religion - A person who is Hindu, Jain, Bauddha, or Sikh by religion. Shastri v Muldas SC AIR 1961, SC has held that various sub-sects of Hindus such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion because they follow the same basic concept of Hindu Philosophy.

Converts and Reconverts are also Hindus. SC, in the case of Peerumal v Poonuswami AIR 1971, has held that a person can be a Hindu if after expressing the intention of becoming a Hindu, follows the customs of the caste, tribe, or community, and the community accepts him. 

In Mohandas vs Dewaswan board AIR 1975, Kerala HC has held that a mere declaration and actions are enough for becoming a Hindu.

1. Hindu by Birth - A person who is born of Hindu parents. If only one parent is a Hindu, the person can be a Hindu if he/she has been raised as a Hindu. In Sapna vs State of kerala, Kerala HC, the son of Hindu father and Christian mother was held to be a Christian.

2. Persons who are not Muslim, Christian, Jew, or Parsee by religion.

3. Persons who are not governed by any other religious law will be governed by Hindu Law.

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