Understanding Hindu Law And Its Applicability

The term Hindu law emerged during the colonial rule of India, when British officials decided that the European common law system would not be implemented in India. Instead, they ruled that Hindus would be governed by Hindu law and Muslims by Muslim law (Sharia). The Hindu Marriage Act of 1955 defines a Hindu as a follower of Hinduism, including Virashaiva, Lingayat, Brahmo, Prarthana, or Arya Samaj. It also includes Buddhists, Jains, and Sikhs. Additionally, it applies to anyone domiciled in India who is not a Muslim, Christian, Parsi, or Jew. Hindu law is a set of personal laws governing the social conditions of Hindus, such as marriage, divorce, adoption, inheritance, and family matters. It is not limited to Hindus and also applies to Jains, Buddhists, Sikhs, and several other communities and religious denominations.

Hindu by religion

The Hindu Marriage Act of 1955 defines a Hindu by religion as:

> Follower of Hinduism: The Hindu law applies to the person who is a follower of the Hindu religion. This includes the followers of Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj. Apart from these, it also applies to the persons who are the followers of Buddhism, Jainism or Sikhism. In addition to that, it includes all the persons who are not followers of Islam, Christianity, Zoroastrianism or Judaism.

The Act also applies to:

> Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion and he is brought up as a Hindu.

> Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged.

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

The Hindu law also applies to those domiciled in India who are not Muslim, Christian, Parsi or Jew by religion.

Converters to Hinduism

Hinduism is a diverse religion with no fixed set of beliefs, and one can convert to Hinduism without the need for a formal ceremony. The only requirement is that the convert accepts the Hindu way of life and leads a Dharmic life.

Historically, there have been many converts to Hinduism, including:

• Greek immigrants to India in antiquity
• The Hindu Shahi dynasty, a group of Hindu Turkic kings in parts of Afghanistan
• Haridas Thakur, who converted from Islam to Gaudiya Vaishnavism in the early 16th century
• Sadananda das, a German who was initiated by Srila Bhaktisiddhanta Sarasvati Goswami Prabhupada
• The millions of Indonesians who have converted to Hinduism over the centuries
• Swami Vivekananda, who stated that non-Hindus could convert to Hinduism

In the colonial era, the term "Hindu" took on a legal definition, referring to the native religions of India (excluding Islam, Christianity, Judaism, and Zoroastrianism). This definition continued into the mid-20th century, with British colonial laws considering Buddhists, Jains, and Sikhs to be within the scope of the term "Hindu".

Today, the term "Hindu" is used to refer to individuals who identify with one or more aspects of Hinduism, whether they are practising or non-practising. One need not be religious to be considered Hindu, and a Hindu can follow any of the Hindu schools of philosophy or choose their own deities.

In terms of legal recognition of conversion to Hinduism, this varies by country. In the UK, for example, Hindus make up just under 2% of the population in England and Wales. In the US, Hindus account for less than 1% of the population. On the other hand, in India, which has the largest Hindu population in the world, there is no formal conversion process, and religious conversion is not mentioned in the country's laws.

If both parents are Hindu

In the case of Myna Boyee vs Ootaram (1861), the Madras High Court observed that illegitimate children should be recognised as Hindus, and their rights must be governed by Hindu law. This case illustrates the nature of Hindu law in circumstances where the children are born outside of wedlock, i.e., Hindu law gives the status of being a Hindu if such an individual has been brought up in an environment where Hindu rituals and traditions prevail.

In the case of Menaka Gandhi vs Indira Gandhi And Anr (1985), the Delhi High Court held that a child brought up as a Hindu must be a Hindu.

In the case of Perumal vs. Ponnuswami (1970), the Supreme Court held that a marriage conducted between a Hindu and a Christian, according to Hindu rites, where the woman converted to Hinduism before, is valid. The court further observed that a person may become a Hindu if they express their intention, expressly or by their actions. In such a situation, the intention of the conversion must be taken into consideration and the absence of ceremonial conversion or purification may not vitiate the conversion and that person may be called a Hindu.

In the case of S. Anbalagan vs. B. Devarajan & Ors (1983), the Supreme Court held that on the account of reconversion to Hinduism from another religion, no particular ceremony is mandated to be performed, unless the caste to which the conversion happens, mandates to do so.

In the case of T. G. Mohandas vs. Cochin Devaswom Board (1975), the Kerala High Court held that if a person declares himself to be a Hindu, without a mala fide intention or any underlying motive, they are a Hindu.

If either of the parents is Hindu

The Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and Hindu Adoptions and Maintenance Act, 1956, outline the people to whom Hindu law applies.

In the case of Menaka Gandhi vs Indira Gandhi And Anr, the Delhi High Court held that a child brought up as a Hindu must be a Hindu.

The Hindu law is applicable to Jains, Buddhists, and Sikhs

The term "Hindu law" emerged during the colonial rule of the Indian subcontinent. In 1772, British colonial officials decided that, unlike the Muslim population of India, who would be ruled under Sharia law, Hindus would be ruled under their own "Hindu law". This included followers of Jainism, Buddhism, and Sikhism, who were all considered to be Hindus and, therefore, subject to Hindu law.

The substance of Hindu law implemented by the British was derived from a Dharmaśāstra named Manusmriti, one of the many treatises on Dharma. However, these texts were not used as statements of positive law until the British colonial officials chose to do so. In doing so, the British mistook the Dharmaśāstra as codes of law when, in fact, they contained jurisprudence commentary and theoretical reflections on practical law.

The construction and implementation of Hindu law and Islamic law were an attempt at "legal pluralism" during the British colonial era, where people in the same region were subjected to different civil and criminal laws based on the religion of the plaintiff and defendant. This divided Indian society, and the country has since vacillated between "legal pluralism" and "legal universalism". The latter notion dictates that individuals are the basic unit of society and that all citizens must have uniform legal rights and obligations.

The term "Hindu law" is a colonial construction and, since the early 1950s, India has debated whether legal pluralism should be replaced with legal universalism and a uniform civil code that does not differentiate between people based on their religion. This debate remains unresolved.

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