Hindu Law and Being a Hindu – Definition

Hindu Law by Traditional The Hindu Law, as commonly understood, is a set of rules contained in several Sanskrit books, which the Sanskritists consider as books of authority on the law governing the Hindus.

Now legislation has considerably curtailed the extent of the application of the uncodified Hindu Law. Traditionally Hindu Law is defined as “the Law of the Smritis as expounded in the Sanskrit Commentaries and Digests which as modified and supplemented by custom, is administered by the Court”.

Hindu Law by Codification

However, the law relating to Hindu Joint Families, their partition and re-union, as well as the law relating to wills, gifts and religious usages and institutions, (in so far as it is not abrogated or modified by any other Act) continues to be derived from the ancient sources of Hindu Law.

Hindu Definition – Who is Hindu

According to 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.

Additionally the Courts had held that Hindu Law did not apply to the following cases:
(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.

According to codified Hindu Law

As per Section 2 of the Hindu Marriage Act, 1955, the Act applies to the persons [Hindu is defined ] listed below
(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 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, for examples
_{Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
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.
Meneka 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.
Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.
[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)]}

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. Thus, it is the law in operation at the time of migration which applies, even though the law is ascertained, by decisions, subsequent to migration. However, it can be rebutted by showing that the family adopted the law or usage of the place to which it migrated by conforming to the manners, customs and usages of the people among whom it came to live. This rule is an exception to the rule of private international law that immovable property is governed by lex situs (i.e. the law of the place where the property is located).
(1) In Abdurahim v. Halimabhai, their Lordships of the Privy Council said:
Where a Hindu family migrates from one part of India to another prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate (from India) to another country (East Africa), and, being themselves Mohammedans (e.g. Memons), settle among Mohammedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made The analogy is that of a change of domicile on settling in a new country
rather than the analogy of a change of custom on migration within India.

Effect of Domicile
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.

Effect of conversion to Islam
It is a well settled law that on conversion to Islam from Hinduism, there may be a custom at variance with rules of Muslim law, governing succession in a particular community of Muslims. And a convert of that community to Islam may be governed by custom which is at variance with Mohammedan law or which is a part of Hindu law. The Shariat Act, 1937 lays down that in respect of intestate succession,

special property of females, marriage, divorce, maintenance, dower, guardianship, gifts, trust and trust properties and waqfs, all Muslims are governed by Muslim personal law. Further, any adult Muslim resident in India, may, by filing a declaration, elect that in respect of adoption, wills and legacies he will be governed by Muslim law. If he does so, then Muslim personal law will apply to him and his descendants.

Effect of Conversion to Christianity
Upon conversion of a Hindu to Christianity, the Hindu law ceased to have any continuing obligatory force upon the convert.
The convert may renounce the old law as he renounced his old religion or, if he thinks fit, may abide by the old law, even though he had renounced his old religion.
If a Hindu convert to Christianity dies intestate, succession to his property will be ordinarily governed by the Indian Succession Act.
A Hindu or Muslim convert to Christianity cannot retain his personal law in the matter of polygamy, and if after conversion he takes another wife, the second marriage will be void. However, his conversion will not invalidate his former marriage. If, before conversion, he had two wives, both of them would continue to be his lawful wives.
Under the Converts Marriage Dissolution Act, 1866 if a person converts to Christianity, and his or her spouse for a period of six continuous months deserts or repudiates the marriage, he can bring a petition for restitution of conjugal rights. If the decree for restitution of conjugal rights is not complied with for a period of one year, the converted spouse may sue for divorce. But if after conversion, the non-convert spouse does not refuse to cohabit with the convert, there is nothing in the Act which can entitle the convert to seek divorce.