Cameron Miranda
The definition of a Hindu according to Indian law is complex and multifaceted. The term Hindu law emerged during colonial rule in the Indian subcontinent, when British officials decided that Hindus would be ruled under Hindu law and Muslims under Muslim law. The primary statutory provision defining who is a Hindu is found in Section 2 of the Hindu Marriage Act, 1955, which sets out a broad and inclusive definition. According to this Act, a Hindu is anyone who is Hindu in any of its forms or developments, including Virashiva, Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj. The Act also includes Buddhists, Jains, and Sikhs within its definition of a Hindu. Additionally, a person born in a Hindu family with at least one Hindu parent is considered Hindu by birth if they are brought up as a Hindu.
| Characteristics | Values |
|---|---|
| Definition of Hindu | Hinduism is a vast and diverse set of traditions, customs, and personal laws that govern millions of people in India and across the world. |
| Who is a Hindu? | A person can be considered Hindu in the following ways: |
| - Any person who is a Hindu by birth or who has changed his/her religion to any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. | |
| - Any person who is a Buddhist, Jain, or Sikh is also considered to be a Hindu. | |
| - Any child (legitimate or illegitimate) whose parents are both Hindus or Buddhists or Jains or Sikhs. | |
| - Any child whose one parent belongs to these religions and who is brought up as a member of that parent’s community. | |
| - Any person domiciled in India who is not a follower of Islam, Christianity, Judaism, or Parsi religion, unless it is proved that Hindu law does not govern them. | |
| - Any person who converts or re-converts to Hinduism or to Buddhism, Jainism, or Sikhism. | |
| - Any person who follows the religion by practising it or by claiming it can be called a Hindu. | |
| Hindu Marriage Act | The Hindu Marriage Act, 1955 applies to all Indian states and Union territories except Jammu and Kashmir. |
| The act prohibits bigamy and requires both parties to subscribe to the contract by will if they want to call it a marriage. | |
| The groom shall attain the age of 21 and the bride the age of 18. | |
| The act also requires marriages to be registered. | |
| Hindu Law | The term "Hindu Law" is a colonial construction that emerged during colonial rule in the Indian subcontinent. |
| Hindus are divided into 2 schools based on adherence to property law: the Dayabhaga school (observed by Hindus in Bengal & Assam) and the Mitakshara school (observed by all other Hindu communities of the Indian subcontinent). |
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What You'll Learn
The term 'Hindu' is derived from the Greek word 'Indoi'
The term "Hindu" is derived from the Greek word "Indoi", referring to the inhabitants of the Indus Valley. The usage of this term by early Greek travellers to the region served as the basis for the word "Hindu", which was later adopted by the residents of India during the 16th century to distinguish themselves from the Turks. Over time, the term "Hindu" evolved to carry primarily religious connotations, rather than solely ethnic, geographic, or cultural ones.
Hinduism, as a religion, encompasses a vast array of traditions, customs, and cultural elements that govern the lives of millions of people in India and across the globe. It is recognised as the oldest religion, with roots tracing back to prehistoric religions such as the Bronze Age Indus Valley Civilisation. The history of Hinduism is often divided into periods, including the pre-Vedic and Vedic periods, which span from approximately 1750 BCE to 500 BCE-300 CE.
The term "Hinduism" itself became widely recognised as a religious designator in the 19th century, particularly with the publication of books such as "Hinduism" (1877) by Sir Monier Monier-Williams, a renowned Oxford scholar. This period also witnessed the popularisation of alternative terms such as "sanatana dharma", emphasising the timeless and transcendent nature of Hindu traditions.
In the context of Indian law, the term "Hindu" is legally defined in the Hindu Marriage Act of 1955, specifically in Section 2. This definition includes persons who are Hindu by religion in any of its forms or developments, including sects such as Virashiva, Lingayat, or followers of Brahmo, Prarthana, or Arya Samaj. Additionally, the law explicitly includes Buddhists, Jains, and Sikhs within the scope of the term "Hindu". This recognition stems from the shared historical and cultural ties between these religions and Hinduism, despite their distinct religious identities.
Furthermore, Indian law also considers a person to be Hindu by birth if they are born into a Hindu family, irrespective of the legitimacy of the child. In cases where one parent is Hindu and the other is not, the child will be legally recognised as Hindu if they are brought up as a member of the Hindu parent's community. This interpretation has been upheld by various court rulings, reinforcing the significance of upbringing and social recognition within the Hindu community.
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Hindus are divided into two schools based on property law
Hindu law is one of the oldest legal systems in the world, with a history spanning 6,000 years. It is a complex system that has evolved over time and is based on a variety of texts, traditions, and principles. The law covers a wide range of issues, including property inheritance and succession.
The two primary schools of Hindu law are Mitakshara and Dayabhaga, which govern property inheritance and succession among Hindus. These schools originate from ancient texts and scriptures but differ in their interpretation and application of the law. The Mitakshara school is prevalent in most regions of India, including the north, south, and west, while the Dayabhaga school is mainly found in the eastern states of Bengal and Assam.
The Mitakshara school adheres to the concept of a coparcenary, which refers to male descendants of a family who have a joint interest in family property. In this system, a son automatically acquires rights to ancestral property at birth, and the property is owned by the coparcenary as a whole. The Benares School of Hindu Law, or Kashi School, is a primary sub-school of Mitakshara, followed in northern and central India.
On the other hand, the Dayabhaga school is more individualistic about property ownership. It does not confer birth rights over property and offers greater freedom to the head of the family. In this system, property is owned by an individual, and the father retains ownership until his death, after which the property is passed on to the heirs. Dayabhaga is considered more progressive in terms of women's rights, as widows and daughters had the right to inherit property even before the 2005 amendments.
While the codified area of Hindu Law provides a uniform set of laws for all Hindus, the uncodified areas, such as property inheritance, continue to be governed by these two distinct schools of thought, reflecting the diverse customs and traditions of India.
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The term 'Hindu law' emerged during colonial rule
The term "Hindu law" emerged in 1772 when British colonial officials decided that European common law would not be implemented in India. Instead, they opted to rule Hindus under "Hindu law" and Muslims under "Muslim law" (Sharia). This decision marked the beginning of a colonial construction of Hindu law, which lasted for nearly two centuries until India gained independence in 1947.
During the first phase of Anglo-Hindu law, from 1772 to 1864, British scholar-administrators translated Dharmasastras, ancient Indian legal texts, and used court-appointed Hindu Pandits to define laws and rules. This phase also witnessed the emergence of case law in India. However, the British misinterpreted the Dharmasastras as codes of law, failing to recognize that these Sanskrit texts were not used as positive law until imposed by the colonial rulers themselves.
The second phase, from 1864 to 1947, saw the dismissal of court Pandits and the rise of legislative processes and a codified law system. The British believed that all Indian traditions were based on texts and disregarded the customary significance of these traditions. They cherry-picked conflicting codes from ancient texts to serve their colonial aims and systematically sorted different commentaries and interpretations by school and region. This led to the ""objectification" of India, where the translation and imposition of a foreign legal code furthered the colonization process.
The colonial rule's approach to Hindu law was inherently biased and served to expropriate Indian history and culture. It reinforced racial hierarchies and injustices, protecting Europeans from prosecution for crimes against Indians. The universalist ideology of imperial law clashed with the need to accommodate local customs, resulting in a legal system marked by contradictions.
The term "Hindu" under Indian law is complex and multifaceted. While it includes those who are Hindu by religion, it also encompasses Buddhists, Jains, and Sikhs. Additionally, children with one or both Hindu parents are considered Hindu if brought up as members of the Hindu community. This broad statutory framework aims to cover a large segment of the Indian population under Hindu personal law.
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The Constitution of India recognises religious diversity
The Constitution of India recognises the pluralistic nature of Indian society, including its religious diversity. The country is home to a diverse population of Hindus, Muslims, Sikhs, Christians, Buddhists, Jains, Zoroastrians, Indigenous and Irreligious peoples. The Constitution guarantees freedom of religion as a fundamental right, with Article 25 stating that all persons are entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. This article also clarifies that for the purpose of freedom of religion, the term "Hindus" includes persons professing the Sikh, Jaina, or Buddhist religions. This recognition affirms that these religions are considered integral parts of the larger Hindu tradition, despite their distinct identities.
The Hindu Marriage Act of 1955 provides a broad definition of who is considered a Hindu. According to this Act, a person can be deemed Hindu in the following ways:
- Any person who is a Hindu by religion in any of its forms, including Virashiva, Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj.
- Any person who is a Buddhist, Jain, or Sikh is also considered Hindu.
- A child with two Hindu, Buddhist, Jain, or Sikh parents is considered Hindu by birth.
- A child with one Hindu, Buddhist, Jain, or Sikh parent is considered Hindu if brought up as a member of that parent's community.
- Any person who converts or re-converts to Hinduism or Buddhism, Jainism, or Sikhism.
It is important to note that this definition aims to include a large segment of the Indian population under Hindu personal law. Additionally, the Constitution protects the cultural practices of schedule tribes, allowing them to practice their own laws regarding marriage, succession, and adoption.
While India is a secular state, guaranteeing freedom of religion, there have been instances of religious intolerance and violence. Various states have also passed Freedom of Religion Bills to prevent conversions to Christianity, citing the Supreme Court's interpretation of Article 25, which states that "what is freedom for one is freedom for the other in equal measure." Nevertheless, India's rich religious diversity remains a fundamental aspect of its society.
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A child with one Hindu parent is Hindu if brought up as one
The Constitution of India recognises the country's religious diversity and guarantees freedom of conscience and the free profession, practice, and propagation of religion. The term "Hindu" is derived from the Greek word "Indoi", but its definition is complex and multifaceted. Hinduism is not just a religion but a diverse set of traditions, customs, and personal laws that govern millions of people in India and across the world.
The Hindu Marriage Act, 1955, defines a Hindu as any person who is a Hindu by religion in any of its forms, including Virashiva, Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj. The Act also includes Buddhists, Jains, and Sikhs within its definition of Hinduism.
According to Hindu Law, a child with one Hindu parent is considered Hindu if they are brought up as a Hindu. This means that the child is raised in the Hindu religion and accepted as a Hindu by the community. Courts have interpreted the upbringing and social recognition of the child as Hindu to be decisive. For example, in the case of Sapna v. State of Kerala, the Kerala High Court ruled that a child born to a Hindu father and Christian mother was considered Hindu when brought up as a Hindu.
In cases where parents of different religions disagree on the religion of their child, the decision often defaults to the custodial parent's wishes. Additionally, a child born in a Hindu family is considered Hindu by birth, irrespective of legitimacy. However, it is essential to note that a judge cannot prescribe a religion for a child; this decision rests with the child's parents.
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Frequently asked questions
A Hindu by Indian law is any person who is a Hindu by religion or born in a Hindu family with a Hindu father or mother in any of its forms, including Virashaiva, Lingayat, or a follower of Brahmo, Prarthana, or Arya Samaj.
Yes, according to Section 2(1)(b) of the Hindu Marriage Act, 1955, and Article 25 of the Constitution of India, persons who are Buddhists, Jains, or Sikhs by religion are considered Hindus.
Yes, the Act specifies that a person domiciled in India who is not a follower of Hinduism, Buddhism, Jainism, or Sikhism, and is a Muslim, Christian, Parsi, or Jew, is not considered a Hindu unless proven otherwise.
A child with two Hindu parents is considered Hindu by birth. A child with one Hindu parent is considered Hindu if brought up as a Hindu and recognised as such by the community.
A person who converts or re-converts to Hinduism, Buddhism, Jainism, or Sikhism can be considered a Hindu by Indian law.
