Who is Hindu ? What categories of person are there to whom Hindu Law applies?
Define Hindu and state the various Categories of persons to whom the Hindu Law applies
State the Categories of personsto whom Hindu Law applies. Explain whether the members of any schedule tribe coming with in the clause (25) of Article 366 of the constituion are governed bye the condified Hindu Law.
The word ‘Hindu’ is extremely popular and famous term. Generally, every person is known to it. But, the subject of concern is that this term has not been defined till now. A person may be called as Hindu, But very few people knew why they are Hindu?
Rashakrishna in his book ‘Hindu View of Life’ at one place said that there was a time when a person was identified as a Hindu. At that time, the word ‘Hindu’ represented the nationality. It originated among those people who lived in Indus Valley were called as ‘Hindu’. later it was also used for people which lived outside the Valley. But, as the muslim states were founded, the word ‘Hindu’ remain neither the representative of Nationality nor regionality.
A time also came in middle when a person was called ‘Hindu’ who believe in Hindu religion. It is said that, though serval codified Hindu laws was enacted in 1955 and 1956, but the ‘Hindu’ was not defined. Today, it can be said broadly, that a person who is not Muslim, Cristain, Parsi or Jew shall be Hindu.
The Supreme Court in the cases of Dr.Ramesh Yaswant Prabhu V/s Prabhakar Kashinath Kunte (A.I.R 1996,SC.1113) and Manohar Joshi V/s Nitin Bhaushar Patil (A.I.R 1996,SL.796), Explained the term ‘Hinduism’ related to ‘Hindu’ as the life style and mentality of this continent.
Now,the term ‘Hindu’ can be widely defined the person to whom Hindu law applies, shall be Hindu.
Person to whom Hindu law applies-such person can be kept in following Categories-
- Those persons who are Hindu, Jain, Bhuddhist or Sikh by birth,
- Those persons who are Hindu, Jain, Bhuddhist or Sikh by religion
- Those persons who are not Muslim, Christain, Parsi or Jew.
(A) Persons who are Hindu by birth-
A person is called Hindu by birth who is the child of Hindu parents, i.e., whose parents are Hindu. But, such person is also considered Hindu whose either of the parent is Hindu and has been grown up under Hindu traditions. Maya Devi V/s Uttram [(1861) 8 M.I.A. 406]– This view was proved.
Devavasam V/s Jaya Kumari (A.I.R. ‘1991’ Kerala 175)-
Kerala High Court held that male of Nadar Caste of Travancore can marry any non-Hindu female and a child born out of such marriage is considered as Hindu.
Here, it is important that according to ancient Dharamshastras, a child born from Hindu parents only can be called as Hindu, there was no such thing of Hindu by conversion of religion. Therefore, it was said that, a Hindu is born, not made.
Application of Hindu law over Schedule Tribes –
Several times a question arose that codified Hindu law does apply to those persons who belong to scheduled tribes under Article 366 clause (25) of the cases of the constitution ? Section 2(2) of hindu Marriage Act,1955 and the cases of Dashrath V/s Guru (A.I.R. 1972 Orissa 78) and Kadam V/s Jeetan (A.I.R. 1973 Patna 205) gave answer to this question. According to them, a codified Hindu Law shall apply to such persons only when the Central Government is notified in the official Gazette by a notification.
Child from Hindu Father and Christian Mother-
A question also arosed that whether such person shall be considered to be Hindu whose father in Hindu and mother is Christian? Commissioner of Income Tax V/s Sridharan(1976 S.C.R.489)– A positive answer was given and said that if either of the Parents is Hindu and Child born out of them is brought up under Hindu traditions, then that child shall be considered as Hindu. Also,in our society the religion of the father applies over the son.
(B) Persons who are Hindu by Religion-
The Hindu Law also applies to those persons who are not Hindu by birth,but have accepted Hindu religion by conversion
AbrahimV/s Abrahim [(1863)9 M.I.A.195] is an important case in this respect. It was held in this case that the Hindu Law applies not only to those who are Hindu by birth, but applies also to those persons who have become Hindu by conversion.
(C) Who are not Muslims, Christian, Parsi or Jew –
In a wider sense, Hindu Law applies to all those who are not Muslims, Christian, Parsi or Jew.
Rajkumar v/s Warwara (A.I.R 1989, Culcutta 165) – The Culcutta high court held that this category includes all those persons who do not believe in any religion.
in other words it can be said that, all persons different from Muslim, Christion, Parsi and Jew are Hindu and the Hindu Law applies over them, who are atheist, or believe in all religion, or believe in relision which is mixture of all.
Application of Enacted Laws
The enacted laws apply over following:-
- Who are followers of Veer Shav, Lingayat or Brahma Samaj, Prathna Samaj or Arya Samaj and are Hindu by religion.
- Who are jain, buddhist or Sikh by religion
- Who are resident of teritory to which enacted law applies and are not Muslim, Christian, Parsi or Jew, and has not been proved that in the absense of enactment, they would not have been governed by Hindu Law or a custom or practice of its part.
The following persons are Hindu, Buddhist or Sikh by religion –
- Any child, legitimate or illegitimate, whose both parents are Hindu, Buddhist, Jain or Sikh by religion.
- Any child, legitimate or illegitimate, whose either of parent is Hindu, Buddhist, Jain or Sikh by religion and has been brought up a member of that tribe, community or group to which that parents was or is a member.
- Any child who has converted or reconverted to Hindu, Buddhist, Jain or Sikh religion.
In the cases of Perumal v/s Punnuswami (A.I.R 1971, S.C 2352) and Durga Prasad v/S Sudarshan Swami (A.I.R 1940, Madras 513), it has been ratified.