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Application of Hindu law: who is a Hindu

Family Law I - Hindu Law · Unit I · Topic 3 of 20 · 7 min read

The persons to whom the Hindu Code applies: Hindus by religion, by birth and by conversion, the courts' attempts to define Hinduism, reconversion, and the exclusion of Scheduled Tribes.

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  1. 1. Section 2(1): the three categories
  2. 2. Hindu by religion
  3. 3. Hindu by birth
  4. 4. Converts and reconverts
  5. 5. Exclusion of Scheduled Tribes
  6. 6. Problem
  7. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Start with the section, not with philosophy. The Acts do not define “Hindu”. They say to whom they apply. Section 2 of the Hindu Marriage Act, 1955 is the text to quote, and the same scheme is repeated in section 2 of the Hindu Succession Act, 1956, section 2 of the Hindu Adoptions and Maintenance Act, 1956 and section 3 of the Hindu Minority and Guardianship Act, 1956. “Hindu by birth” has been set as a separate short note in recent papers.

1. Section 2(1): the three categories

The Act applies to:

Clause (c) is a residuary clause. It brings in persons who profess no religion, or a religion not listed, and puts the burden on whoever says Hindu law does not apply. Section 2(3) adds that references to “Hindus” in the Act include all persons covered by section 2, though they may not be Hindus by religion.

2. Hindu by religion

A person is a Hindu by religion if he was born a Hindu and continues to profess it, or has converted to it. The courts have repeatedly said that Hinduism cannot be defined in the way other religions can. In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, 1966 INSC 9, AIR 1966 SC 1119, followers of the Swaminarayan sect (the Satsangis) argued that they were a distinct religion and so outside the Bombay Hindu Places of Public Worship (Entitlement of Harijans) Act, 1956, which would have opened their temples to Harijans. Gajendragadkar C.J. held that they were Hindus. He described Hinduism as having no single founder, prophet, book or dogma, and adopted Tilak's working formula: acceptance of the Vedas with reverence; recognition that the means to salvation are diverse; and realisation that the number of gods to be worshipped is large. Founding a sect within Hinduism does not take its followers out of it.

The question is one of profession and practice, not of belief in any particular dogma. A Hindu does not cease to be one by failing to observe rituals, by eating beef, or by joining a reformist sect. He ceases to be one only by renouncing Hinduism and converting to another religion.

3. Hindu by birth

The Explanation to section 2(1) states who is a Hindu, Buddhist, Jaina or Sikh by religion. Its first two clauses deal with birth:

For clause (a), the religion of the parents is tested at the time of the child's birth. For clause (b), birth alone is not enough; the upbringing decides. A child of a Hindu father and a Christian mother who is brought up as a Christian is not a Hindu under clause (b), even though his father is.

4. Converts and reconverts

Clause (c) of the Explanation covers any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.

No formal ceremony is required. In Perumal Nadar v. Ponnuswami, 1970 INSC 65, AIR 1971 SC 2352, a son sued his father for maintenance. The father denied the marriage, saying the mother was an Indian Christian and the marriage was void. The Court found that she had become a Hindu before the marriage. A person may be a Hindu by professing the faith with a bona fide intention and by conduct consistent with it, accepted by the community; a formal ceremony of purification or expiation is not necessary. The marriage was valid and the son was entitled to maintenance.

A reconvert may also regain his caste. In Kailash Sonkar v. Maya Devi, 1983 INSC 200, AIR 1984 SC 600, the Court held that a person who was born into a Scheduled Caste, converted to Christianity and then reconverted to Hinduism, may revert to the original caste if the members of the caste accept him; the conversion only eclipses the caste, which revives on reconversion and acceptance.

Conversion out of Hinduism has consequences under the Act: it is a ground for divorce under section 13(1)(ii), and a converted spouse cannot escape the bar on bigamy by marrying again under another personal law (Sarla Mudgal v. Union of India, 1995 INSC 363, (1995) 3 SCC 635). Under section 26 of the Hindu Succession Act, the descendants of a convert born after the conversion are disqualified from inheriting from their Hindu relatives, but the convert himself is not.

5. Exclusion of Scheduled Tribes

Section 2(2) provides that nothing in the Act applies to members of any Scheduled Tribe within the meaning of Article 366(25) of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. The reason is that tribal communities have their own customary law of marriage, inheritance and divorce, which Parliament did not want to displace.

The exclusion turns on membership of a notified tribe, not on religion. A tribal who professes Hinduism is still outside the Act, and his marriage and succession are governed by the custom of his tribe. The Supreme Court has, however, held that where members of a tribe have become so Hinduised that they follow Hindu customs and have given up their tribal ones, Hindu law may be applied to them as their custom (Labishwar Manjhi v. Pran Manjhi, 2000, concerning Santhals). A tribal woman's claim to an equal share is at present a matter of tribal custom, and the Supreme Court has urged the Centre to consider extending the Hindu Succession Act to Scheduled Tribes by notification.

Trap. A person whose parents are both Hindus is a Hindu by birth even if he is an atheist; clause (a) does not ask about belief. Only a child of a mixed marriage has to show upbringing. Students who write that every Hindu by birth must also be “brought up” as a Hindu lose the point of the clause.

6. Problem

A, a Hindu, married B, a Christian, under the Special Marriage Act, 1954. Their son C was baptised and brought up in his mother's church. On A's death, C claims to be governed by Hindu law. Is C a Hindu?

Issue. Whether a child of one Hindu parent is a Hindu by birth.

Law. Under clause (b) of the Explanation to section 2(1) HMA (and section 2 HSA), a child one of whose parents is a Hindu is a Hindu only if brought up as a member of the tribe, community, group or family to which the Hindu parent belongs.

Application. C was brought up as a member of his mother's Christian community, not his father's Hindu family. Clause (a) does not apply because only one parent was a Hindu. Clause (c) of section 2(1) does not help, as C is a Christian by religion.

Conclusion. C is not a Hindu. (Succession to A, who married under the Special Marriage Act, is in any case governed by the Indian Succession Act, 1925, by section 21 of that Act, subject to section 21A.)

How this is examined

As a 10-mark question: “Who is a Hindu? Discuss the application of Hindu law.” Quote section 2(1)(a) to (c), the Explanation, section 2(2), and the two cases, Yagnapurushadji for religion and Perumal Nadar for conversion. As a short note: “Hindu by birth”, answered with clauses (a) and (b) of the Explanation and a one-line example of each. The mixed-parent problem above is a common 6-mark question.

Now try the real questions: Family Law I - Hindu Law past question papers.