Who is a Hindu? under HMA, 1955

Historically, the word “Hindu” referred to people who lived beyond the Indus valley. But today the word has no territorial significance. It instead denotes a religion or a way of life.  The view generally accepted by scholars appears to be that the word Hindu is derived from the river Sindhu otherwise known as Indus which flows, from the Punjab. The word ‘Sa’ was pronounced by the Persians as ‘Ha’ and the Aryans who had settled in the area near the river Sindhu were called Hindus. The Greeks later on dropped the hard aspirate ‘H’ and pronounced it as Indoi (Later came to be known as India). The term Hindu has not been defined in the Act.

In the case of Yagnapurusholasji v. Vaishya, the Supreme Court elaborately considered the question as to who are Hindus and what are the broad features of Hindus religion. The Supreme Court has observed that the word Hindu is derived from the word Sindhu, otherwise known as Indus river. The Persians pronounced this word Hindu and named their Aryan brethren ‘Hindus’.

Dr. Radhakrishnan has also observed that the Hindu civilisation is so called since its original founders or earliest followers occupied the territory drained by the Sindhu (Indus) river system corresponding to the North West provinces in Punjab. This is recorded in Rig Veda, the oldest of the Vedas. The people on the Indian side of the Sindhu were called Hindus by the Persians and later Western invaders. That is the genesis of the word Hindu. Thus, the term Hindu had originally a territorial and not a creedal significance. It implied residence in a well-defined geographical area.

Till this day, there is no precise definition of the term Hindu available either in any statute or in any judicial pronouncement. It has defied all efforts at definition. However, since Hindu law applies to all those persons who are Hindus, it is necessary to know who are Hindus, whatever definitional difficulties there might be. However, Act provides that a person would be Hindu for the purposes of HMA if the Act applies to him/her by virtue of Section 2 of the Act.

Under the uncodified Hindu Law

The following are the instances of persons who were held to be Hindus by various Courts before 1956.

(1) Hindus by birth;

(2) Hindus by religion, i.e. converts to Hinduism;

(3) Illegitimate children, where both parents were Hindus;

(4) Illegitimate children of a Christian father and a Hindu mother, provided that such children were brought up as Hindus;

(5) Jains, Buddhists, Sikhs and Nambudri Brahmins;

(6) Hindus by birth, who had renounced Hinduism, but reverted back to the Hindu faith after performing the prescribed religious rites; and

(7) Persons belonging to Brahmo and the Arya Samaj.

The Courts had held that Hindu Law did not apply to the following, viz.:

(1) To the illegitimate children of a Hindu father by a Christian mother, if such children were brought up as Christians;

(2) To Hindu converts to Christianity;

(3) To converts from the Hindu to the Islamic faith; and

(4) To descendants of Hindus who had formed themselves into a distinct community with a religion quite different from that propounded by the Shastras.

Under the codified law

Section 2 of the Hindu Marriage Act, 1955, provides that the Act applies to the persons listed below (and similar provisions are also made in the other enactments of Hindu Law):

(a) Any person who is a Hindu by religion in any of its forms or development, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(b) Any person who is a Buddhist, Jain or Sikh by religion.

(c) Any other person domiciled in India, 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 Hindu Law, or by any custom 3 or usage as part of that law, in respect of any of the matters dealt with in the Act, if this Act had not been passed.

(d) Hindus domiciled in the territories to which the Act extends, but who are outside such territories.

(e) The Explanation to Section 2 clarifies that the following persons have also to be considered to be Hindus, Buddhists, or Jains by religion, as the case may be, viz.:

a. Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;

b. Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh, provided such child is brought up as a member of the tribe, community, group or family to which such parents belong or belonged.

c. Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.

1) Hindu by Religion: Following two types of persons fall in this category:

i) Followers of Hindu Religion: Any person who follows Hindu religion either by practising it or by professing it is a Hindu. An attempt to define Hindu in terms of religion was made by the Supreme Court in Shastri v. Muldas (1966 S.C. 1119.). The Court through Gajendragadkar J. said that “beneath the diversity of philosophic thoughts, concepts and ideas expressed by Hindu philosophers who started different philosophical schools, lie certain broad concepts which can be treated as basic. The first among these basic concepts is the acceptance of the Vedas as the highest authority in religious and philosophical matters. This concept necessarily implies that all the systems claim to have drawn their principles from a common reservoir of thought enshrined in the Vedas. The other basic concept which is common to the system of Hindu philosophy is that all of them accept this view of the great world rhythm, vast periods of creation, maintenance and dissolution follow each other in endless succession. It may also be said that all the systems of Hindu philosophy believe in re-birth and pre-existence”. This judgment of the Supreme Court gives a good working elaboration of Hindu religion in positive terms. But it is equally true that any definition of the ‘Hindu’ in terms of religion will always be inadequate.

ii) Converts and Reconverts to Hinduism: Under the codified Hindu law any person converted to Hinduism, Jainism, Buddhism or Sikhism is a Hindu. The Supreme Court in Perumal v. Poonuswami, (1971 S.C. 2352) observed that a person may be a Hindu by birth or by conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. But at the same time a mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him to a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But, a bona fide intention to be converted to the Hindu faith accompanied by conduct unequivocally expressing that intention may be a sufficient evidence of conversion.

A person who is a reconvert to Hinduism, Jainism, Buddhism or Sikhism is also a Hindu. A person who ceases to be a Hindu by converting to a non-Hindu religion will, again, become Hindu if he reconverts to any of the four religions of Hindu.

2) Hindu by Birth: Following persons are deemed to be Hindus by birth:

i) When both the parents are Hindu: Children born of Hindu parents are Hindus. Such a child may be legitimate or illegitimate. It is also immaterial that such a child does or does not profess, practice or has faith in the religion of its parents.

ii) When one Parent is Hindu: When one of the parents of a child is Hindu and he is brought up as a member of Hindu family, he is a Hindu. It is clear by the explanation (b) of Section 2(1) of Hindu Marriage Act, 1955 that child’s religion is not necessarily that of the father. F or instance a child is born of Hindu mother and Muslim father. The child is brought up as a Hindu. Subsequently, mother converts to Islam. Nonetheless the child is Hindu. In Ram Prasad v. Dahin Bibi, ( A.I.R. 1924 Pat. 420) is a good example on the point.

3) Persons who are not Muslims, Christians, Parsis or Jews: The codified Hindu law lays down that a person who is not a Muslim, Christian, Parsi or Jew is governed by Hindu law, unless it is proved that Hindu law is not applicable to such a person. Those persons who are atheists or who believe in all faiths or in conglomeration of faiths may fall under this class. Under the codified Hindu law such persons will be Hindus for the purpose of the application of Hindu law.

Therefore, the modern Hindu law is a body of rules of personal law applicable to Hindus as well as several non-Hindu communities. In the modern Hindu law all those persons to whom Hindu law applies are called “Hindus”.

Maneka Gandhi v. Indira Gandhi AIR 1984 Delhi 428:- Sanjay Gandhi’s father was a parsi and mother, Indira Gandhi was a Hindu. Court held that Sanjay Gandhi was a Hindu because one of his parents, namely the mother was a Hindu and she had openly brought up Sanjay as a Hindu.

Peerumal v. Poonnuswami 1971 AIR 2352:- Annapazham, an Indian Christian was married to Perumal Nadar, a Hindu in accordance with Hindu Ceremonies and rights. they also entered into an agreement that they shall be, henceforth, governed by Mitakshara law. A son, Ponnuswami, was born of this marriage. After that the relationship between Perumal and Annapazham was strained. Son and mother lived separately from Perumal. Ponnuswamy, when minor, acting through mother filed a suit against father for half of the share in the property. Perumal contended that his marriage with Annapazham was illegal as she was Christian and Ponnuswami brought up by her cannot claim joint family property. The Supreme Court held that her acceptance to the marriage in Hindu form itself was the proof of conversion. She continued to live as a Hindu even after. It has been held that if a person expresses his/her intention to become a Hindu followed by the conduct of community or caste taking into the fold of which he/she is ushered accepts him/her as a member, then he/she is considered to be a Hindu. No formal ceremonies to effectuate conversion are required.

In Mohandas v Devaswom Board, Jesudas, famous play back singer, was a Catholic Christian by birth. He used to render devotional music in a Hindu temple and used to worship the presiding deity. He also filed a declaration stating that he was the follower of Hindu faith. It has been held that such a bonafide declaration amounts to his acceptance of Hindu faith and becom3s a Hindu by conversion.

The position of reconverts to Hinduism has been considered by the Supreme Court. In Rajagopal v. Arumugam, the case where Rajagopal was Hindu Adi-Dravida, one of the Sceduled Castes. In 1949, he converted to Christianity. Thereafter he began professing the Hindu faith as was shown by his marriage with an Adi-Dravida Hindu woman, bringing up his marriage with an Adi-Dravida Hindu woman, bringing up his children in Hinduism and showing them as Hindus in the School records. The question was whether he could stand for election as an Adi-Dravida Hindu for a seat reserved for the Scheduled Castes. The Supreme Court held that though there was no formal reconversion, he could be treated as a person professing the Hindu Faith. But he could be treated as having reverted to his previous sub caste only if the said sub caste readmitted him into its fold unequivocally. There was no evidence of such treatment by the Adi Dravida community. So the Supreme Court held that the appellant, Rajagopal could not be held to be qualified to stand for election as an Adi Dravida. Thus, on re-entering the Hindus faith a person no doubt becomes a Hindu, but he cannot automatically be treated as having been restored to his previous sub caste. That depends upon treatment of the community in question and in a matter like this autonomy of the community is recognised.

An intention to become a Hindu, accompanied by conduct unequivocally expressing that intention, would be sufficient evidence of conversion. (Raman Nadar v. Snehapoo, AIR 1970 S.C. 1759)

The Act does not apply to members of any Scheduled Tribes within the meaning of Article 366 (25) of the Constitution unless the Central Government by notification in the official gazette otherwise directs.

Surajmani Stella Kujur v. Durga Charan Hansdah AIR 2001 SC 938 :- If parties are members of a scheduled tribe and fall under section 2 (2) of HMA, then they will not be governed by the Hindu Marriage Act. If the parties want to rely on a particular custom, they must prove that the practice has attained the status of custom.

Effect of Migration:- Ordinarily, law of the locality in which the Hindu family is living is its personal law. If such a family migrates to another part of the country, it carries with it its law including any custom having the force of law.

Effect of Domicile:- Under section 1(2), the Act extends and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

Section 2(1)(a), (b) and (c) states: the Act applies “to any Hindu by religion in any of its forms or developments,” and “to any person who is a Buddhist, Jaina or Sikh by religion … and to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion …..”.

Under Hindu Law, domicile is not of much importance. All those who are in India and are Hindus, are governed by Hindu law irrespective of their domicile. Domicile becomes important only in those cases where a person claiming to be a Hindu is outside India. In that case Hindu Law will apply to him only if he is domiciled in India. Suppose, a Hindu domiciled in India but living in England, performs a marriage there. Is it necessary that he must comply with the formalities laid down by the Hindu Marriage Act, 1955, for the solemnization of marriage or will it be enough if he complies with the formalities as prescribed by the local law (lex loci celebrationis), i.e. English law? It is a rule of private international law that capacity to marry is governed by law of domicile and the formalities are governed by the lex loci celebrationis, i.e. the law of the place where marriage is solemnized. If nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In that sense only domicile is of importance.

Vinaya Nair v Corporation of Kochi,. was a case, where the issue involved was as to the applicability of the Hindu Marriage Act, 1955 to a marriage where all conditions for a valid marriage as laid down in sections 5 and 7 of the Hindu Marriage Act, 1955 were complied with but the husband had a Canadian domicile. The parties belonged to Nair community and the marriage was solemnised in accordance with the provisions of the Hindu Marriage Act, 1955. The husband was employed in Canada and the wife was a native of Kannur District in Kerala. The husband was born in Canada and acquired Canadian citizenship and domicile by birth. His application for registration of the marriage under the Hindu Marriage Act, 1955 was refused on the ground of his Canadian domicile.

Hence, he approached the High Court. The court held that the petitioners had complied with all the conditions for a valid marriage. Sub-section (2) of section 1 read with clauses (a) and (b) of section 2(1) was held to be applicable in this case. According to the court the test to be applied was whether both parties were Hindus by religion in any of its forms, and whether conditions under sections 5 and 7 were satisfied. Since everything was found to be in order, the Cochin Corporation was, accordingly, directed to issue marriage certificate.

Domicile or citizenship of the opposite party is immaterial when marriage is solemnised under Hindu law in accordance with Hindu rites and customs; thus, the fact that the husband has migrated to New Jersey and obtained US Citizenship is immaterial for purposes of jurisdiction and applicability of the Hindu Marriage Act.

So also, the Act will apply to Hindus outside the territory of India if they are domiciled in the territory of India notwithstanding their long-term job permit in Australia, the apex court ruled in Sondur Gopal v Sondur Rajni.

While in view of Article 370 of the Constitution, the Act does not extend to the state of Jammu and Kashmir, there is no express bar for parties where marriage is solemnised in the State of Jammu and Kashmir under the provisions of the of the Kashmir Hindu Marriage Act, 1980, to file petition under the provisions of the Hindu Marriage Act, the court held on Shashi Leekha v Sheila Shashi Leekha. The parties were married in Jammu, lived there together for 15 years but the wife later moved to Mumbai, it was held that the Bombay court had jurisdiction, she could file his petition for divorce, custody and alimony in Bombay.

The Hindu Marriage Act, 1955 would also apply to a person who, though a Hindu at the time of marriage, ceases to be so thereafter, by conversion to another religion. In a petition for declaring a marriage null and void on the ground that the wife was already married to a Muslim man, the court held that in such a situation, the wife being converted to Islam and no longer a Hindu, the Hindu Marriage Act, 1955 will have no application and the petition under section 11 cannot be entertained.

In Ga Arife @ Arti Sharma v Gopal Dutt Sharma, (2010) II DMC 424 (Del) where the appellant wife failed to prove her conversion from Islam to Hinduism before marriage, it was held that she could not claim divorce under the provisions of the Hindu Marriage Act, 1955.

When a marriage is solemnised abroad in accordance with customs and traditions prevalent in that country, can the parties avail of the provisions under the Hindu Marriage Act, 1955 simply because they are Hindus? The answer is “no”. In Minoti Anand v Subhash Anand, AIR 2009 Bom 65 : (2009) 2 MhLJ 251 two Hindus married in Osaka, Japan, in 1972 in accordance with Japanese rites and customs in a temple. After that they got the marriage registered with the Consulate General of India under the Foreign Marriages Act, 1969. Thirty-one years later the husband filed divorce under the Hindu Marriage Act, 1955 on grounds of cruelty and for division of spousal property in a family court in Bombay. While the trial court entertained the petition and passed order, on appeal against it by the wife the Bombay High Court held that a marriage officer can register a marriage under section 17 of the Foreign Marriages Act, 1969 if marriage is on a foreign soil in accordance with law of that country and upon such registration the marriage would be deemed to be a marriage solemnised under the Foreign Marriages Act, 1969 and the matrimonial reliefs would be available to parties only under the Special Marriage Act, 1954 and not the Hindu Marriage Act, 1955 even if the spouses are Hindus.

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