Who is a Hindu? Explain the application of Hindu law to different categories of persons.

The Legal Meaning of "Hindu"

The word Hindu does not denote any single creed with a fixed catechism. The Calcutta High Court, in an observation later confirmed by the Privy Council in Bhawan Koer v. Bose (1904 31 Cal 11), described the Hindu religion as "marvellously catholic and elastic," marked by "eclecticism and tolerance and almost unlimited freedom of private worship." This character of Hinduism itself made a strict theological definition impossible. The legislature wisely chose a practical, functional approach.

Section 2 of the Hindu Marriage Act, 1955 — and identically worded provisions in the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956 — defines the persons to whom these Acts apply. The note to the original Hindu Marriage Bill explained that the section "seeks to codify the existing law on the question." What emerged was a definition built on three positive heads and one residuary head, supplemented by an Explanation dealing with birth and upbringing, and qualified by a specific exclusion for Scheduled Tribes.

It is important to appreciate that subsection (3) of section 2 of all these Acts takes care to clarify that "the expression Hindu in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies." In other words, Hindu as a legal category is wider than Hindu as a religious category, and the two must not be confused.

Categories of Persons to Whom Hindu Law Applies

Category I: Hindus by Religion

The first and most natural category under section 2(1)(a) of the Hindu Marriage Act is any person "who is a Hindu by religion in any of its forms or developments," including a Virashaiva, a Lingayat, or a follower of the Brahmo Samaj, Prarthana Samaj or Arya Samaj.

This provision gives legislative approval to a long line of judicial decisions holding that persons who had departed from Brahminical orthodoxy — whether by joining a reform movement or by following a regional devotional tradition like Lingayatism — remained within the personal-law orbit of Hinduism. The Supreme Court in Yagnapurushdasji v. Muldas (AIR 1966 SC 1119) attempted a broad description of Hinduism as a faith that accepted the Vedas with reverence and recognised the realisation of a divine truth through many paths. The Court was, however, careful to note that no single creedal test could be insisted upon. What is required is that the "nucleus of Hinduness" be established — a person professing or practising the Hindu faith in any of its recognised forms.

A Hindu does not cease to be a Hindu if he becomes an atheist, deviates from orthodox religious practices, adopts a western way of life, or even decries Hinduism publicly. The law ties him to his community of birth unless he formally converts to another religion.

Category II: Buddhists, Jains and Sikhs by Religion

Section 2(1)(b) brings within the fold all persons who are Buddhist, Jaina or Sikh by religion. This statutory recognition puts to rest any doubt that these communities — although historically distinct religions in their own right — are governed by the codified Hindu personal law. The Act consciously gave "legislative sanction to the existing previous law" that even though Jains might not be Hindus by religion, they were to be governed by the same law as Hindus.

In Commissioner of Wealth Tax v. Champa Kumari (AIR 1972 SC 2119), the Supreme Court confirmed that the incidents of Hindu joint family applied to Jains. The ordinary Hindu law governs succession, adoption, maintenance and guardianship among Jains in the absence of a proved special custom. The Hindu Succession Act, 1956, by its own terms, applies to Sikhs, Jains and Buddhists, all of whom are treated as "Hindus" under the Act.

Category III: Hindus by Birth

Modern Hindu law proceeds on a clear principle: the children of Hindu parents are Hindus irrespective of whether they personally follow, practise or profess the faith. The Explanation to section 2 of each of the codifying Acts provides two distinct rules concerning children.

First, any child — whether legitimate or illegitimate — both of whose parents are Hindus (or Buddhists, Jains or Sikhs) is automatically a Hindu. In this case, the religion of the child is determined at the moment of birth, and no further inquiry into practice or upbringing is needed.

Second, where the parentage is mixed — that is, one parent is Hindu and the other is not — the child's religion is determined not at birth but by upbringing. The law requires: (i) that one parent, at the time of the child's birth, was a Hindu, Buddhist, Jain or Sikh; and (ii) that the child was brought up as a member of the tribe, community, group or family to which that parent belongs. The phrase "brought up" is understood broadly: it refers to being raised in a way in which any Hindu lives, and not merely to ritual observance.

A striking illustration follows from the law: suppose a child is born in 1980 to a Hindu mother and a Muslim father, and is brought up as a Hindu. In 1990, the mother converts to Islam. Even at that later point, when neither parent is Hindu, the child continues to be a Hindu in law — because the law looks to the condition of the parent at the time of birth and the upbringing at that time. The word "belonged" in the Explanation, referring to the past tense, makes this position clear.

In Krishnakumari Thampuran v. Palace Administration Board (AIR 2009 Ker 122), it was held that where the father was a Muslim and there was no assertion that the claimants were brought up as Hindus, the Act would not apply to them. The upbringing is thus a critical factual inquiry in cases of mixed parentage.

The Hindu Adoptions and Maintenance Act, 1956 adds a third sub-category through clause (bb) of the Explanation: any child who has been abandoned by both parents, or whose parentage is not known, and who is brought up as a Hindu, Buddhist, Jaina or Sikh, will be treated as a member of that religion. In Sohan Lal v. Addl. District Sessions Judge (AIR 2015 All 33), the courts affirmed that an abandoned child whose parentage is unknown but who was brought up as a Hindu would be a Hindu under this provision.

Category IV: Converts and Re-converts

Section 2(1)(c) of the Explanation provides that any person who is a convert or re-convert to Hinduism, Buddhism, Jainism or Sikhism is a Hindu for the purposes of the codifying Acts.

Since the Dharmashastra did not prescribe any formal ceremony of conversion to Hinduism — Hinduism having never been a proselytising religion — the courts developed practical tests for ascertaining whether a valid conversion has taken place. Three modes have been recognised:

• Undergoing a formal ceremony of conversion prescribed by the religion, caste, community or sect which the person wishes to enter (for instance, the shuddhi ceremony of the Arya Samaj);

• Expressing a bona fide intention to become a Hindu, accompanied by conduct unequivocally expressing that intention, coupled with acceptance into the community by the community itself; and

• A sincere declaration of having accepted Hinduism as one's faith, followed by actually living as a Hindu for some time.

In Peerumal v. Poonuswami (AIR 1971 SC 2352), the Supreme Court accepted that a genuine, expressed intention to join Hinduism, coupled with conduct consistently reflecting that intention and communal acceptance, is sufficient. Good faith is the touchstone; a colourable or dishonest conversion will not be recognised.

A person who re-converts to Hinduism — having been born a Hindu, converted to another religion, and then returned — is also treated as a Hindu. This is the case of re-conversion, and the same tests apply.

Importantly, a European does not become a Hindu merely by professing theoretical allegiance to Hindu philosophy. If, however, he abdicates his former religion by a clear act of renunciation and can be shown to have in fact adopted the Hindu religion in practice and acceptance, he may be treated as a Hindu within the meaning of the Act.

Category V: The Residuary Category — Persons Not Muslim, Christian, Parsi or Jew

Section 2(1)(c) of the Hindu Marriage Act also extends the Act to "any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion," unless it is proved that such a person would not have been governed by Hindu law or its customs in respect of the matter in question. This is often called the residuary clause or the negative definition.

The rationale was pragmatic: in India, every person must, from the standpoint of personal law, belong to one or another community. Where a person is not identifiably Muslim, Christian, Parsi or Jew, the law presumes him to be Hindu. As the commentary to the Act observes, "the practical separation of Hindus from non-Hindus is not a matter of much difficulty." The burden lies on the person who claims to be outside the Hindu personal law system to prove that, in respect of the matter in dispute, Hindu law or its customs were never applicable to him. In the absence of such proof, Hindu law applies.

In Rajkumar v. Barbara (AIR 1989 Cal 165), a child born of a Hindu father and a Christian mother, where it was not shown that the child was brought up as a Hindu, was nonetheless held to be Hindu — because the father was Hindu and the child had not been shown to have been brought up outside the Hindu fold. This case also illustrates that even an atheist, or one who "believes in the commonwealth of all religions," must belong to one community, and unless conversion is proved, he continues to belong to his community of origin.

The Special Exclusion: Scheduled Tribes

Section 2(2) of all the codifying Acts carves out an exclusion that deserves careful attention. Nothing in these Acts shall apply to members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution, unless the Central Government by notification otherwise directs.

The Supreme Court in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah (2001 2 JT 631) held that the Hindu Marriage Act was inapplicable to members of the Santhal tribe. Since most Scheduled Tribes continue to be governed by their own customary laws in family matters, the default exclusion preserves their customary autonomy. It follows that in the absence of a Central Government notification, a member of a notified Scheduled Tribe, even if that tribe has over generations absorbed many Hindu customs, is not governed by the codifying Acts unless the marriage itself was solemnised under one of those Acts or the tribe has been specifically brought within its scope.

A Note on Domicile and Territorial Application

The Hindu Marriage Act, 1955 applies to all Hindus who are within the territories of India. Beyond the territorial boundary, the Act also applies to Hindus domiciled in India who are outside India. Domicile, as the Supreme Court explained in Central Bank of India Ltd. v. Ram Narain (AIR 1955 SC 36), involves two elements: a residence of a particular kind and an intention of a particular kind — the factum and the animus. A person retains his domicile of origin until he has settled with the requisite intention in another country. Citizenship is not a necessary qualification for the application of the Act; a Nepali of the Gorkha tribe residing in India and married to a Hindu girl according to Hindu rites in India would be governed by the Act.

In sum, the legal definition of "Hindu" is an inclusive, functional and deliberately broad category. It encompasses persons who are Hindu by religion in any form, Buddhists, Jains and Sikhs, children born to Hindu parents or brought up in the Hindu fold, converts and re-converts, and a residual class of persons not belonging to any other identified personal law community — all subject to the significant exception carved out for Scheduled Tribes. The definition does not measure theological orthodoxy; it asks only whether, given the person's origin, upbringing, conversion or community position, the application of Hindu personal law is appropriate and established. This practical wisdom, expressed through section 2 of the codifying Acts and developed over generations of judicial interpretation, is the cornerstone on which the entire edifice of modern Hindu personal law rests.