What do you mean by a Hindu and to whom Hindu Law applies? Also state to whom it does not apply ? How far it is true to say, ” Hindu is born not made ?” (c) Is it true to say; “Hindu Law is not Lex Loci but a law of status?”
Ans. (a) Who is Hindu ?-The term ‘Hindu’ is a general term. It denotes all those persons who profess Hindu religion either by birth or by conversion to the Hindu faith. In Yagna-purusda.sji Vs. Muldas, A.LR. 1996, S.CII19, the Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion. According to him,`AcceptanceofVedas with reverence, recognition bf. the fact that the means or ways of salvation are diverse and realization of the truth that : the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion.” The court further posed the question as to who are the Hindus but did not give any categorical reply to it. In short, a person who carries a Hindu way of life and who is known by others to be a Hindu can be said to be a Hindu. Hindu is Born and not Made–By virtue of old Hindu theory, “a Hindu is born not made.” But this statement is not fully correct. Under old Hindu Law no one could be Hindu by conversion. The status of a person as Hindu is determined by his birth. Ira 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. A Hindu, on his conversion to Christianity„ Islam or Zorostrianism ceases to be governed by Hindu Law. The term ‘Hindu’ according to Privy Council includes “those born as Hindus 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. Its application has been extended to those persons also who have accepted the Hindu religion or convert to Hinduism.
A non-Hindu may renounce his religion and become Hindu by conversion by any of the following three methods —
(a) If he performs the ceremony of conversion prescribed by the caste or community to which he converts.
(b) If he expresses an intention to-become a Hindu and actually lives as a Hindu and the community or caste into the fold of which he is ushered in accepts him as a member of that 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 following categories of persons–
(i) Hindus by birth, and also to Hindus by 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. But the Hindu Law of coparcenary, which contemplates the father as the head of the family and the sons as coparceners by birth with the rights of survivorship, cannot from the very nature of the case apply to such children.
(iv) Jains, Buddists in India, Sikhs and Nambudri Brahmans except, so far as 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 ofreconversion when he was recognised as a Hindu by his 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 Samajistts, and Santhals of Chhota Nagpur, and also 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 Hindu and has not renounced the Hindu religion, does not cease to be a Hindu merely because he departs from the standard of orthodoxy in matters of diet and’ceremonial observances. Codified Hindu Law i.e., Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Adoption & Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956, applies to the following categories of person—
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 in the territories to which Four 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 Hindu Law in respect Hindu Law of any of the matters which are dealt in these four Acts if these Acts had not been passed.
The following persons are Hindus. Buddhist, Jains or Sikhs by religion –
(a) Any child, legitimate or illegitimate, both of whose parents (father and mother) are Hindus, Buddists, Jains or Sikhs by religion;
(b) Any child, legitimate or illegitimate, one of whose parents either (father of mother) is a Hindu, Buddhist, 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;
(c) Any person who is a convert to the Hindu, Buddist, Jaina or Sikh religion. Persons, who have been declared to be members of the Scheduled Tribe within the meaning of Cl. 25 of Art. 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. The above mentioned four Acts expressly conferred the status of a “Hindu” on a person even though he does not profess Hinduism. Hindus Who have Changed Their 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 general rule, governed by the Mohammedan Law. But a well-established custom in the case of such converts following their old law in matters of succession and inheritance has been held to override the general presumption. Thus, several classes of Mohammedans, who were merelyHindu like the Khojas and the Cutchi Memons of Bombay, the Halwai Memons of Katiawar and the Sunni Bohras of Gujarat had 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 (except where the questions relate to agricultural lands.) 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 to or renounce the Hindu Law of Succession. But the Act brought under its provision 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 uncodified Hindu Law does not apply–
(i) To the illegitimate children ofa 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 ofa Hindu Convert to Christianity who dies as 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 a convert from Hindu to the Mohammedan faith. But the con version must be bonafide. If a Hindu converts to become a Muslim only to legalise his second marriage (without divorcing the first Hindu wife) the conversion is not bona fide and Hindu law of monogamy shall continue to apply on such converted Muslim.
(c) Is it true to Say that Hindu Law is not Lex Loci but a Law of Status ?— In fact it is true to say that Hindu Law is not Lex Loci but a law of status. The meaning of this statement is that Hindu Law is not the law of a particular locality but is a personal law and when a Hindu migrates from one place to another, he carries his Personal law with him. In order to establish that he has adopted the local law, it must be proved beyond doubt. It is the law of his place of domicile which would follow him to his place of migration. Thus, where a person belonging to Lucknow shifts to Calcutta and is settled permanently there, he would be governed by Mitakshara law particularly its Banaras School rather than by deyabhaga law which is the law governing the Hindus of West Bengal. But where nothing is known about the place of permanent residence of a Hindu it would be deemed that he would be governed by the law of the of his residence. The Privy Council observed, “if nothing is known about a person except that he lived in a certain place, it will be assumed that personal law is the law which prevails in that place. In that sense only : -domicile idle is of importance”