Application of Hindu Law

Hinduism, it has rightly been said, is a mass of fluctuating faiths and opinions,
embracing within itself a vast spectrum, ranging from the wandering fancies of savage
superstition to the highest insight of daring thought. This brings us to a moot question,
viz., who is a “Hindu”?

The term “Hindu” is not very precise in its significance. Actually, the term is nowhere to
be found in the ancient Sanskrit texts. Some scholars are of the opinion that the word
has been derived from Sindhu, which was the ancient equivalent for the Indus River.
This theory says that the Aryans called the country around this river Sindhustan. The
Persians, who pronounce “s” as “h” called it Hindustan, and-its inhabitants, Hindus.
Thus, etymologically, the term seems to have a territorial significance, which later gave
way to a religious connotation.

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According to Dr. Gour, the term “Hindus” includes not only those who are Hindus by
religion, but also those who are commonly known as such. The test applied by him in
determining whether a particular community is Hindu or not, is to see how they regard
themselves, and how they are regarded by the rest of the Hindu community. According
to him, by departing from the ancient standard of orthodoxy in the matter of diet or
ceremonial observance, they do not cease to be Hindus, as long as they have not
renounced the Hindu faith.

Under the Uncodified Hindu Law:

The Hindus are divided into four castes, viz., the Brahmins, the Kshatriyas, the
Vaisayas and the Sudras. Prior to the partial codification of Hindu Law in 1955 and
1956, this classification was of considerable importance to the Courts in deciding in any
given case, whether a person was a Hindu or not. Thus, the following are instances of
persons who were held to be Hindus by various Courts before the said partial
codification of Hindu Law, namely:-

(1) Hindus by birth;

(2) Hindus by religion, i.e., converts to Hinduism;

(3) Illegitimate children, where both parents were Hindus;

(4) Illegitimate children of a Christian father and a Hindu mother, provided that such
children were brought up as Hindus;

(5) Jains, Buddhists, Sikhs and Nambudri Brahmins;

(6) Hindus by birth, who had renounced Hinduism, but reverted back to the Hindu faith
after performing the prescribed religious rites; and

(7) Persons belonging to Brahmo and the Arya Samaj.

Likewise, under the said uncodified law, the Courts had held that Hindu Law did not
apply to the following, viz.:

(1) To the illegitimate children of a Hindu father by a Christian mother, if such children
were brought up as Christians;

(2) To Hindu converts to Christianity;

(3) To converts from the Hindu to the Mahomedan faith; and

(4) To descendants of Hindus who had formed themselves into a distinct community
with a religion quite different from that propounded by the Shastras.

Under the Codified Law:

The four major enactments passed in 1955 and 1956 to codify certain portions of Hindu
Law, contain detailed provisions as to who are Hindus for the purposes of those Acts.
Thus, S. 2 of the Hindu Marriage Act, 1955, provides that the Act applies to the
persons listed below (and similar provisions are also made in the other enactments of
Hindu law):

(a) Any person who is a Hindu by religion in any of its forms or development, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(b) Any person who is a Buddhist, Jain or Sikh by religion.

(The effect of this provision is to give legislative sanction to the existing provisions of the
law, which lay down that even though Jains may not be Hindus by religion, they are to
be governed by the same law as the Hindus.)

(c) Any other person domiciled in India, 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, or by any custom or usage as part of that law, in respect of any of the
matters dealt with in the Act, if the said Act had not been passed.

It has rightly been observed that for the purposes of statutory Hindu Law, it is easier to
say who is not a Hindu, than to lay down as to who exactly is a Hindu. This clause is
negative in form, and lays down that it is to be presumed, until the contrary is proved,
that any person domiciled in India who is not a Muslim, Christian, Parsi or Jew by
religion, will be regarded as a Hindu and will, therefore, be governed by the Act.

(d) Hindus domiciled in the territories to which the Act extends, but who are outside
such territories.

(e) The Explanation to S. 2 clarifies that the following persons have also to be
considered to be Hindus, Buddhists, or Jains by religion, as the case may be, viz.:

(i) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jains or Sikhs by religion;
(ii) Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain
or Sikh, provided such child is brought up as a member of the tribe, community, group
or family to which such parents belong or belonged.

(It will be seen that the Act makes no distinction between legitimate and illegitimate
children. The usual rule of law that a legitimate child follows his father’s religion and an
illegitimate child that of his mother, is not accepted by the Act. Rather, the more
practical test of being brought up as a Hindu is adopted by the Act.)

(iii) Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh
religion.

It may be noted that no formal ceremony of purification or expiation is necessary for a

person who wishes to become a Hindu. An intention to become a Hindu, accompanied
by conduct unequivocally expressing that intention, would be sufficient evidence of
conversion. (Raman Nadar v. Snehapoo, A.I.R. 1970 S.C. 1759)

The Supreme Court has held, in S. Rajagopalan v. C. M. Armugam (A.I.R. 1969, S.C.
101), that a Hindu belonging to an Adidravida caste (a Scheduled Caste) converted to
Christianity, ceases to belong to the Adidravida caste. The burden lies on him to prove
that, on re-conversion, he again became a member of the Adidravida caste. When a
person is converted to Christianity, he ceases to belong to the Adidravida caste, as
Christianity does not recognise caste divisions.

In another case, the Supreme Court has observed that unilateral acts of a person
cannot, by themselves, prove that the claim for the higher status which those particular
acts purport to make is established. Hence, a person belonging to a Scheduled Caste
cannot, by the mere act of becoming an Army Officer, be raised to the status of a
Kshatriya. (V. V. Giri v. Suri Dora, 1960 I S.C.R. 426)

In a case decided by the Calcutta High Court, a child whose father was a Hindu, and
whose mother was Christian, and who had a Hindu name and surname, was held to be
a “Hindu”. (Raj Kumar Gupta v. Barbara Gupta, A.I.R. 1989 Cal. 165)