Application of Hindu Law

The power of the court to apply Hindu Law before Independence was derived from the Acts and statutes passed by the British Parliament and Provincial Legislatures from time to time.

Now under the constitution of India it is provided in Article 372 that all laws in force in the territory of India immediately before the commencement of Constitution, ie. 26,Jan 1950, shall continue until altered or replaced or amended by a competent Legislature or other competent authority.

After the Constitution was adopted, 4 major acts have been passes with a view to overhauling the law concerning the above subjects. They are

1.      Hindu Marriage Act, 1956

2.      Hindu Succession Act, 1956

3.      Hindu Minority and Guardianship Act, 1956

4.      Hindu Adoption and Maintenance Act, 1956

Who are Hindus ?

The term “Hindu” denotes all those persons who profess Hindu religion either by birth or by conversion to Hindu faith.

Hindus born as well as made

It is often said that a Hindu is born and not made, ie. The status of a person as Hindu is determined by his birth. If a person is born of Hindu parents he is a Hindu unless he changes his existing status by becoming a member of such a religion as would destroy his status as ‘Hindu’ and give him a new one.

Term Hindu according to their Lordship of the Privy Council includes “those born as Hindu and also those who become converts to Hinduism.

Hindus are therefore born as well as made and thus the applicability of Hindu Law is not restricted or confined to those persons only who are Hindus by birth.

A Non Hindu may renounce (giveup) his religion and become Hindu by conversion by any of the three methods

a)      If he performs the ceremony of Conversion, prescribed by the Community or Caste to which he converts.

b)      If he expresses an intention to become a Hindu and actually lives as Hindu, and if the community or Caste accepts him as a member of their community or caste

c)      If he declares that he is a Hindu and lives as a Hindu

Persons to whom Hindu Law applies

Uncodified Hindu law applies to the following categories of persons

1.      Hindu by Birth, and also Hindus by religion (ie. Converts to Hinduism)

2.      Illegitimate children where both parents are Hindus

3.      Illegitimate Children where the Father is a Christian and Mother is Hindu and the children are brought up as Hindus

4.         Jains, Buddhist in India, Sikhs and Nambudri Brahmans.

5.      A Hindu by birth who, having renounced (given up) Hinduism, has reverted to it after performing the religious rites of expiation and repentance.

6.      Sons of Hindu dancing Girls of the naik caste converted to Mohammedanism, where the sons are taken into the family of the Hindu Grandparents and are brought up as a Hindu

7.       Brahmos, Arya Samajists and Santhals of Chota Nagar, and also Santhals of Manbhum except so far as it is not varied by custom

8.      Hindus who made a declaration that they were not Hindus for the purpose of the Special Marriage Act. 1872

9.      A person who is born Hindu and has not renounced the Hindu religion.

Following persons are Hindus for the purpose of these Codified laws,

I.                   Any person who is Hindu by religion in any of its forms or developments including

a.       a Virashaiva

b.      a Lingayat

c.       a follower of the Brahmo, prathana or Arya Samaj

II.                Any person who is either

a.       a Buddhist by religion, or

b.      a jain by religion, or

c.       a sikh by religion

III.             Any other person domiciled (Reside) in the territories to which these Acts extend 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 in respect of any of the matters which are delt in these Acts.

The following persons are Hindus, Buddhist, Jains or Sikhs by religion

a)      Any child legitimate or illegitimate, both of whose parents are Hindus, Buddhist, Jains or Sikhs by religion

b)      Any child, legitimate or illegitimate, one of whose parents either  (father or mother) is a Hindu, Buddhist, Jains or Sikhs by religion and who is brought up  as a member of the tribe,community,group or family t which such parent belongs or belonged.

c)      Any person who is a convert to the Hindu, Buddhist, Jains or Sikhs by religion

Persons, who have been declared to be members of the Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution are not to be treated as Hindus unless the Central Government, by a notification in the Official Gazette, declares them so.

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.

Several classes of mohammedeans who were formerly Hindu like Khojas, cutchi memons of Bombay had by custom, retained the Hindu Law of succession and inheritance

People to whom Hindu Law does not apply

The Uncodified Hindu Law does not apply

i)                    To the legitimate children of a Hindu Father by a Christian/Muslim mother and who are brought up as Christians/Muslims.

ii)                  To the Hindu converts to Christianity

iii)                To a convert from Hindu to the Mohammedan faith. But the conversion must be bonafide.

Extent of application of Hindu Law

As a general  rule Hindu law as administered by the Courts of India is applicable to Hindus in the following matters

1.      Inheritance

2.      Religious Usages and institutions

 Some illustrative instances about application of Hindu Law

1.      A mere association with a non hindu cannot prevent the applicability of Hindu Law (eg, “A” a Hindu recite Quran and takes the meal with a Muslim Friend, A will not cease to be Hindu unless he renounces the Hindu Religion.

2.      A person of other faith if converted to Hinduism becomes Hindu and Hindu law will be applicable

3.      A person who re-converts to Hinduism is also a Hindu. The Re-Conversion can take place even in few Hours.

4.      Harijans are also Hindus, irrespective of their different practice and usage of Life.

When a Hindu migrates from one place to another, he carries his personal law with him.