Who is Hindu?

  

Q. 1. Define the term Hindu and to whom does Hindu law apply? Can a Jain who adopts Islam and reconverts himself into a Sikh be governed by the Hindu Law?

Or

For purposes of the application of Hindu Law, what categories of no persons may be called Hindus? Discuss in this connection the modes of conversion to Hinduism?

Or

Who are ' Hindus’  for purposes of the application of Hindu Law?  Discuss.

 

Ans. The term 'Hindus' denotes all those persons who profess Hindu religion either by birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v. Muldas [AIR 1966 SC 1119] the Supreme Court accepted the working formula evolved by Bal Gangadhar Tilak regarding Hindu religion that "acceptance of Vedas with reverence, recognition of the fact that the number of Gods to be worshipped at large, that indeed is the distinguishing feature of Hindu religion.

According to the Hindu Marriage Act, 1955; Hindu Succession Act 1956, Hindu Adoption and Maintenance Act, 1956 and Hindu Minority and Guardianship Act, 1956,  we may classify Hindus under three categories:

 

(a) Hindu by religion,

(b) Hindu by birth,

(c) Any person other than Muslim, Christian, Parsi and Jew.

 

A. Hindu by Religion

Hindu law applies to all persons who are Hindus by religion. "The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social Code is much more stringent, but amongst its different castes and sections it exhibits a wide diversity of practice." Mere lapses from orthodox practice cannot have the effect of excluding from the category of Hindu. Hindu by religion means a Hindu by religion in any of its forms or developments including a Virasharva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, Kabir-panthis are also regarded as Hindus.

Hindu law also applies to any person who is a Buddhist, Jain or Sikh by religion. Buddhism, Jainism or Sikhism are the off-shoots of Hindu religion.

In Taikan Guda v. Shivappa [ILR (1943) Bom 706], it was held that Jains, Buddhists in India, Sikhs and Nombudri Brahmins are Hindus except, so far such law is varied by custom and the Lingayats who are considered as shudras are Hindus.

In Mahant Basant v. Hem Singh [94 IC 695] it was held that the acceptance of the 'Granth Sahib' by the udasis is not inconsistent with their continuing as Hindus.

Convert to Hinduism is a Hindu by religion.-

At one time, it was thought that a Hindu is born and not made. But this proposition has been changed. Hinduism recognises conversion, and the Hindu Law is applicable to the persons who are converted from other religions. In Jawala v. Dharam [(1866) 10 MIA 511], it was held that to come in a category to be called Hindu this can be Hindus by birth, Hindus by religion and also converts to Hinduism. In Mohandas v. Devaswom Board [1975 KLT 55], Jesudas singer was a catholic Christian by birth. He declared that he was a follower of the Hindu faith. The court has held that he becomes a Hindu by conversion with such a bonafide declaration.

A convert to Hinduism is a person who renounces his faith and accepts Hinduism, Sikhism, Buddhism, Jainism. The conversion to Hinduism must be by undergoing the ceremonies of conversion prescribed by the religion (or the sub-religion) or the community, to which conversion is sought, accepts him as a Hindu. In Perumal v. Punnaswami, AIR 1971 SC 2352 the Supreme Court held that a bona fide intention to be converted to the Hindu faith, accompanied by conduct clearly expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.

 

Reconvert to Hinduism is also a Hindu.-A Hindu converted to any other religious persuasion may revert back to Hinduism. Hinduism includes Sikhism, Jainism and Buddhism. It is not necessary that he should reconvert to the same sub-religion from which originally he converted to the non-Hindu religion. If a Buddhist becomes a Muslim, and then re-converts to Buddhism or Sikhism, he will be a Hindu. Reconversion may be by performing prescribed religious rituals of expiation and repentance, or if the re-conversion is not accompanied by any formal religious ritual when the person is admitted by his community into the Hindu fold. These two conditions are in the alternative. A leading case on reconversion is Mrs. Marthamma v. Munuswamy, AIR 1951 Mad. 888.

"The petitioner was a Christian School mistress, aged 29, and Munuswamy, aged 18 was a student in that school. She fell madly in love with him and began to have sexual intercourse with him. On 9 - 4 - 1944 Munuswamy was baptised and converted to Christianity, just after a week he was married. After living together for some time, Munuswami and Mrs. Marthamma got-estranged in 1946. A temporary reconciliation took place. Munuswamy once again went from her. He married a charming Hindu girl Sarojini on 3 - 2 - 1949 according to Hindu rites."

On this Mrs. Marthamma filed a complaint against Munuswamy, Sarojini and others under Sections 494 and 495 of 1.P.C. for bigamy. The lower court acquitted all the accused on the ground that Munuswamy had relapsed to Hinduism and exercised his right as a Hindu to enter another (polygamous) marriage with Sarojini. Against this acquittal, Mrs. Marthamma appealed.

The petitioner argued that there was no provision for reconversion under Hindu religion, and a convert to Christianity could not reconvert Hinduism. The argument was rejected. Regarding the argument of the petitioner that the reconversion was not bona fide, the court, through Justice Panchapakesa Ayyar, remarked

"I cannot see why a man like the first accused who became a Christian to marry the petitioner, a woman 11 years older than himself, should not b allowed to revert to Hinduism to marry another wife, 7 years younger himself Of course, the religious motive' did not operate either for the conversion or for the reconversion, and only the 'woman motive' operated"

 In Sarala Mudgal v. Union of India [1995 3 SCC 635], it was observed that Muslim Law cannot be misused by a Hindu male and Hindu marriage does not automatically dissolve by apostasy. The husband violates the provision of Hindu Marriage Act and he is covered by Section 494 of Indian Penal Code.

A Hindu by converting to Islam ceases his status as a Hindu and the Hindu law does not apply. If he reconverts to Hinduism, he regains his status of a Hindu and the Hindu law applies to him. In Rajagopal v. Arumugam [1969 SCJ 738; AIR 1969 SC 101] the position of reconverts to Hinduism has been considered and held that he could be treated as a Hindu but he can be reverted to his previous sub-caste only if the said sub-caste readmitted him into its fold unequivocally. Hence, on re-entering the Hindu faith a person no doubt becomes a Hindu, but he cannot automatically be treated as having been restored to his previous sub-caste.

In Nitaben & Others v. Dhirendra Chandra Kant Shukla [IAR 1985 No C76 (buy)], It has been held by the Supreme Court that no particular ceremony is required for reconversion to Hinduism of a person who had earlier embraced another religion.

 

B. Hindu by birth

 

Where both parents are Hindus.-Children born to Hindu parents are Hindus. If one parent is Sikh, and the other parent is Jain, the child ben will be a Hindu by birth, because both parents are Hindus. Hindu nov includes Sikh, Jain, Budhist and Arya Samajist also. Thus any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists Jains or Sikhs by religion is a Hindu by birth.

A person who is born Hindu and has not renounced the Hindu religion hi does not cease to be a Hindu merely because he departs from the standard of orthodoxy in matters of diet and ceremonial observances. [Dr. Suraj Mash Stella Kujur v. D. C. Hansdah, 2001 42 ALR 847 (SC)]

Hindu law applies to Hindus by birth. A mere association with a non-Hindu cannot prohibit the applicability of Hindu Law. In Rani Bhagwan Koer v. J.C. Bose [ILR (1903) 31 Cal 11] it was held that a Hindu who recites the Koran and takes the food with a Muslim friend will not cease to be Hindu unless he renounces the Hindu religion. In the same case, it was held that a person who is Hindu by birth does not cease to be Hindu merely because he denies following the standard of orthodox in matters of diet and ceremonial observances.

As a general rule, a Hindu acquires Hinduism by birth. If both the parents are Hindus, their child, whether legitimate or illegitimate, is automatically treated as a Hindu and the Hindu law applies to it

Where one parent is a Hindu.-

A child, legitimate or illegitimate, is a Hindu whose one of the parents is a Hindu, Buddhist, Jain or Sikh b religion, and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged. If only one of the parents is a Hindu it would be governed by Hindu Law, provided the child has been brought up as a Hindu.

In Ram Pargash v. Mst. Dahan Bibi, a Hindu dancing girl of Nai caste became Muslim. But her sons lived with their grandparents and were brought up as Hindus. The Patna High Court held that they were Hindus.

In Commissioner of Wealth-tax v. Sridharan, (1976) 4 SCC 489 the father was a Hindu and the mother was an Austrian Christian and their s was brought up as a Hindu, the Supreme Court held that the son was Da Hindu and he with his father constituted a Hindu undivided family for the purpose of assessment under the Income-tax Act and the Wealth-tax Act.

In Maneka Gandhi v. Indira Gandhi [AIR 1985 Del 114], it was held that Sanjay Gandhi, son of a parsi father and a Hindu mother was a Hindu at the time of his death as he was brought up as a member of his mother's (Indira Gandhi's) community.

Hindu Law applies to illegitimate children born to a Christian father and a Hindu mother and brought up as Hindus. But the Hindus 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 applicable to such children [Mayna Boyee v. Octaram, (1861) 8 MIA 4001.

 

C. Any person other than Muslim, Christian, Parsi and Jew

 Sometimes it becomes difficult to say whether a person is Hindu or not but it is always easier to say who is not Hindus under all the Hindu Code enactments. Parliament made a negative approach and provided that Hindu is a person 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 the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Thus a person who does not believe in any other religion is a Hindu. Atheists or persons believing in all religions may come under this category. They may not be Hindus in a popular sense as it is understood in Hindu society, but nevertheless, they are Hindus for purposes of the application of Hindu law.

In Yajnapurusdasji v. Muldas, AIR 1966 SC 1119 Gajendragadkar J. observed-"It is difficult if not impossible to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet, does not worship anyone God, does not subscribe to any dogma: does not believe in any one philosophic concept; it does not follow anyone sect of religious rites or performance, in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more."

 

Hindu law applies to Hindus, Buddhists, Sikhs and Jains by religion. The term "Hindu" includes Buddhists, Jains and Sikhs. Sikhism is an off-shoot of the Hindu religion. Hence when a Muslim renounces his faith and is converted to Sikhism, the Hindu law will be applicable. When a Jain adopts Islam and re-converts himself to a Sikh religion he shall be governed by the provisions of Hindu law, because it is only a matter of re-conversion.

 

 References:-

 

Family law---Paras Diwan

Family law—S.R. Myneni

https://www.iilsindia.com/study-material/880413_1617519779.docx

https://legislative.gov.in/sites/default/files/A2007-06.pdf

https://www.slideshare.net/RashmiDubey21/hindu-marriage-act1955

https://www.indianemployees.com/acts-rules/details/hindu-marriage-act-1955

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955.html.

http://www.legalservicesindia.com/article/558/Salient-features-of-the-Hindu-Marriage[1]Act,-1955. html

https://www.iilsindia.com/study-material/880413_1617519779.docx