India is a land of diversity. There are a number of land forms, languages, culture and religion. Different communities have different way of living their lives and performing other social obligations such as marriage, property rights, social gatherings, rituals etc. India has certain laws which are applicable for every citizen but taking into consideration vast differences among religions, Indian legislature has made separate personal laws for Hindus, Parsi, Muslim and Christians. But there was an issue regarding other religions which does not have a good number of followers but still exist in our country. It is not possible for enacting a personal law for each and every religion or community based practice in India. For Hindu marriages the statute named Hindu Marriage Act, 1955 was enacted by the parliament.
In Dharamshastras (guide on living ethics) the word Hindu has no mention, as it is more of a foreign origin. The Greek people used to call the region of Indus Valley as ‘Indoi’ which later took the shape of ‘Hindu’. The word Hindu indicated not only a religion but nationality.
Concept of Marriage in Hindus
Marriage is one of the 16 sacraments which a Hindu is obliged to perform during his lifetime. As per Hinduism ‘moksha’ is the ultimate goal. There are three characters of a Hindu marriage i.e. the marriage is a holy or sacrosanct union as it makes a couple physically, psychically and spiritually united, the bond is permanent, and the couple has promised to stay together even after their death. Marriage is a religious and social duty in Hindus towards their family, and society; rather than a physical luxury. According to K.M. Kapadia, “Hindu marriage is a socially approved union of man and a woman aiming at dharma, procreation, sexual pleasure and observance of certain social obligations”. Marriage among Hindus is obligatory by the Vedas as it says a man cannot perform Dharma without his wife as she is considered as the better half of husband i.e. ‘ardhangini’.
In order to practically govern Hindus by their own set of rules related to marriage, Hindu Marriage Act, 1955 was introduced. This statue has redefined and simplified the concept of marriage Hindus with the sense of past connectivity.
Hindu Marriage Act, 1955
The law related to Hindu marriages was enacted on 18th May, 1955 after a long history of social legislation. This act deals with aspects related to Hindu marriages i.e. when a marriage can be valid, void marriage, nullity and divorce and jurisdiction and procedure. Before this act Earlier this codification the term Hindu was not strictly defined in any statue and hence it was very difficult to determine who comes under the definition of Hindu. After codification legislation came with a negative definition i.e. a person who is not Muslim, Christian, Parsi or Jew is a Hindu.
Till now there is no precise definition of Hindu, a person who professes Hindu religion is a Hindu or the person to whom Hindu law applies is a Hindu. Broadly a person can be Hindu by two means i.e. Hindu by birth or Hindu by religion. These categories are defined under Section 2 of Hindu marriage Act, 1955, which deals with application of the act.
Section 2 of Hindu Marriage Act
Section 2 deals with the applicability of Hindu marriage act. The following are the major points mentioned in this Section.
- Hindu law applies to any person, Virashiva, Lingayat, or a follower of Brahmo, Prarthana or Arya Samaj.
- Buddhist, Jain, Sikh are Hindu. Child, either legitimate or illegitimate born from both or one parent from this category would be considered as Hindu. Any person who is a convert or reconvert as Hindu is a Hindu.
- Any person who except a Muslim, Christian, Parsi or Jew or any person who is proved not be governed by Hindu law; is a Hindu.
- The law is not application on the members of any Schedule tribe mentioned under Article 366 clause 25 of Indian constitution. As Section 2 (2) explicitly says “Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”
- Section 2 (3) says “The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section”.
Who are Hindus?
This question was aptly answered in the landmark judgement of Supreme Court of India i.e. Shashtri Yagnapurushadji vs. Muldas Brudardas Vaishya (1966). The facts of this case start as; the appellants were followers of Swaminarayan sect, also known as Satsangis. They filed the suit against Muldas Brudardas Vaishaya (president of Maha Guajart Dalit Sangh), for assisting non-Satsangi Harijans to enter into the temple of Swaminarayan sect. They challenged Section 3 of Bombay Harijan Temple Act, which says that every temple on which the act applies shall be open for harijans for worship like other people. The appellant were off the view that they follow a different sect and hence cannot be called as Hindus.
Gajendragadkar J. observed that, it is difficult but not impossible to define Hindu religion. He cited many authorities and gave important points in order to consider an individual as a Hindu;
- Reverence towards Vedas.
- Person believes that there are many ways to attain ‘moksha’ (salvation).
- Worship of multiple gods and idols is not essential.
- The person believes that there is no starting point of Hindu religion.
- Believes in the concept of cycle of birth and death.
The learned judge observed that when a saint or religious reformer attempts to reform Hindu religion a new sect is formed but that does not mean that it is different from Hindu religion i.e. the fundamental notions of Hinduism is still connected with that sect. Hence the temples they honour are Hindu temples.
Undoubtedly, the person who passes this test of Hinduism is a Hindu but the reverse cannot be proved. Here lies the essence of this matter that a person who has faith in Hindu religion, one who profess and practice is a Hindu but, one who does not profess Hindu religion or the one who has no belief in Hinduism will be not a less Hindu unless it is proven that he has converted into some other faith. Even if a person declares himself as an atheist he would still be considered as a Hindu unless proven contrary.
There are other religions that do not revere Vedas, do not believe in plurality of Gods, no importance to Brahmins, do not follow the concept of Saptapadi but as still considered as Hindus i.e. Jains. In Boddaladi vs Boddaladi case, kumaraswami Sastri, J. observed that “Jainism has its origin and history much anterior to Smrities. Jainism rejects the authority of Vedas and discards all ceremonies and rituals. Jainism does not believe in the existence of the God.” They are considered Hindus because their root of origin lies within Hinduism only. In Rani Bhagwan Kaur case it was held that mere deviation from the orthodoxies does not mean that the individual cease to belong to a Hindu.
Hindu law applies to any person who is either Hindu by birth or Hindu by religion.
Hindu by Birth
A person is a Hindu by birth in two conditions i.e. when both his parents are Buddhist, Sikh, Jain or Hindus or when of his parents is Hindu and the child is brought up as a Hindu. It is immaterial whether the child is a legitimate one or an illegitimate child. It is also immaterial that the when the child is grown up he has no faith in Hinduism or he becomes an atheist, he would still be governed by Hindu laws.
Hindu by religion
There are further two categories of any person who are Hindu by religion, one is that they are originally Hindu, Sikh, Buddhist and Jain and the other is they converted or reconverted into Hindu, Sikh, Buddhist and Jain. In Rani Bhagwan Koer vs. JC Bose (1903) it was held that even before the codified law, Jain, Buddhist and Sikh are considered to be the part of Hindu religion. Since there are no separate laws of Sikh, Buddhist and Jains they are governed by Hindu law.
On the other hand when a person converts or reconverts into any religion he/ she renounces the earlier religion and adopts a new one. For conversion into any religion there are specific ceremonies which have to be performed but this is not the case with Hindu religion. The Supreme Court of India in another landmark judgement in Perumal vs Ponuswami case (1971) held that “No formal ceremonies to effectuate conversion are required”. A person may become a Hindu if after expressing a bona fide intention, he lives a Hindu and the community accepts him as the member. It is immaterial which class of Hindu the convert belongs. When a person converts into Hindu religion he does not get any caste as the concept of caste is related to birth. Also when a person ceases to become a Hindu he cannot continue his caste. This was held in Suri Dora v. VV Giri case.
In Arumugam v. S. Rajgopal case, the person was initially a member of Adi Dravida (Schedule Caste), who later converted into Christianity and after some time reconverted into Hinduism. The other party claimed that his election from seat of an SC is invalid as he had converted into Christianity. Court held that after reconversion to Hinduism the respondent could again convert to his original caste if he was accepted by his other members of that caste. Court basically checks the intention of the person converting or reconverting and converting for getting the benefits is not allowed at all.
Person who are not Muslim, Jew, Christian or Parsi
It is an established fact that every Hindu is governed by Hindu laws unless the person proves any local custom or ritual contrary to the provisions of Hindu law. It applies to Aryan Hindus as well as to non-Aryan Hindus. For non-Aryan Hindus, it was not necessary to establish as to whether they have accepted the law as laid down in the Smritis and the Commentaries. Thus, the Adi-Dravidians and Chamars were held to be Hindus.
- Gonds of Madhya Pradesh- Gonds are the group of aboriginal people who are now officially tagged as Schedule tribe. There were series of discussion on the issue that whether they come under Hindu law or not. In Kailash Singh v. Mewalal Singh Gond, case Madhya Pradesh HC held that, “The provisions of Hindu Succession Act, 1956 do not protanto apply to the members of the scheduled tribe as per Section 2(2) of this Act. The customary law of scheduled tribe has been preserved by this provision.” Hence Hindu law does not apply on Gond tribe.
- In Rafail Uraon And Anr. vs Baiha Uraon, the plaintiff was of the opinion that they are not governed by Hindu law but by their own tribal laws. They were asking for the land which was originally owned by their wives and said that they are not the real heirs of the property. Patna high court held that “The finding comes to. this that the daughters of Mangra put on vermilion on their heads at the time of their marriages; that the male members of the family used to beep teek (cluster of hair on the centre of the head); that when Mangra was dead, Ms body was buried first and, thereafter his putla was burnt; that the heads of all relations present at the cremation were shaved; that the funeral ceremony including feasting, was done; and that Lakshmi Puja is done on Kartik Amawas; that they also worship Debi, take part in Rath-jatra, perform Mahabir Puja, put teeka on their foreheads, and celebrate “Holi festival. The Court below, upon these materials, found that the family had been Hinduised so as to attract the application of Hindu Law in matters of inheritance; and in that view of the matters, the plaintiffs were bound to fail and the suit was liable Co dismissal, and was dismissed.”
- Following the above rule it was held that Bhuryyahs, Jats, abrogines of Assam, Radbansis, Kurmis, Mahtos, Santhals of Chhota Nagpur, and Thattaus, followers of Makhathayan Thiyas and Ezhuvas of Malabar were held to be Hindus governed by Hindu law.
- Khojas and Cutchi Memons – although they are mostly governed by the Mohammaden laws but are also covered under Hindu law or the matter of inheritance and succession; as they were originally Hindus and were later converted into Muslims and because of this they still practice Hinduism in some way or the another. But in case of marriage they are absolutely governed by Mohmmaden law. The similar principle applies to the Bohars, Mopals and the Halai Memons.
Marriages among Hindus are a social and religious obligation which they have to comply with. In order to make a uniformly applicable law on all the Hindus related to marriage, legislature passed Hindu Marriage Act, 1955 which governs the aspects of marriage among Hindus. The term Hindus has not been properly defined by anyone as the word has no original meaning. It has no mention in the Vedas or Dharamshastras, as it has a foreign origin. Hindu was not a religion earlier it carried a territorial significance and the way a person should live his life. Hindu marriage act covers various religion and communities on which the act applies and it also tells upon which it does not apply.
As mentioned under Section 2 of the act; the act is applicable on a Lingayat, virashiva, Brahmo, Arya Samaj, Jain, Buddhist, Sikh and any person who has not proved that any other customary law applies on them; it strictly does not apply on any Muslim, Christian, Parsi, and Jew and the members of Schedule tribe which are mentioned under clause 25 of Article 366 of Indian constitution.
A person can be a Hindu either by birth or by religion. There is no formal ceremony for a person to convert or reconvert into Hinduism. When the essentials of Hinduism are proved in a person he would be considered as a Hindu and hence can marry as per the provisions of Hindu Marriage Act. Court has numerous of times held that a person, who has married as per the ceremonies of Hindu religion and followed Hindu faith, will be considered as a Hindu.
- Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
- Diwan, P., 1972. Modern Hindu Law. 24th ed. Allahbad Law Agency, pp.1-10, 63-67.
- Mulla, D. and Desai, S., n.d. Mulla Hindu law. 23rd ed. Lexis Nexis, pp.69-80.
- Sharma, B., 1965. HINDU LAW. Journal of the Indian Law Institute, [online]7(4), pp.519-543. Available at: <https://www.jstor.org/stable/43949860>
- Shukla, A., 2021. Who Is A Hindu- Hindu Marriage Act 1955 – CLATalogue. [online]CLATalogue. Available at: <https://lawctopus.com/clatalogue/who-is-a-hindu-hindu-marriage-act-1955/>
- Shubham, U., 2019. Who is a Hindu? To Whom Hindu Law Is Applies | Law Corner. [online]Law Corner. Available at: <https://lawcorner.in/who-is-a-hindu-state-the-categories-of-persons-to-whom-hindu-law-applies/#:~:text=If%20both%20parents%20are%20Hindu,brought%20up%20as%20a%20Hindu.>
 Shashtri Yagnapurushadji vs. Muldas Brudardas Vaishya 1966 SCR (3) 242
 Boddaladi vs Boddaladi 1927 50 Mad. 228
 Rani Bhagwan Koer vs. JC Bose (1902) 31 Cal 11, 15]
 Perumal vs Ponuswami AIR 1971 SC 2352
 Suri Dora v. VV Giri case 1960 SCR (1) 426
 Arumugam v. S. Rajgopal 1976 SCR (3) 82
 Diwan, P., 1972. Modern Hindu Law. 24th ed. Allahbad Law Agency, p.8.
 Rafail Uraon And Anr. vs Baiha Uraon AIR 1957 Pat 70
 Supra 7
You must log in to post a comment.