Introduction
Law is a system of rules that describes the right procedure or behavior of living in a society. Hindu Law is therefore the set of rules and regulations that governs the behavior of Hindus in a society. For instance, the ceremony of saptpadi, the practice of taking seven steps by bride and bridegroom before the sacred fire is a part of Hindu law. This ceremony is practiced widely by Hindus to get married. It is not only recognized by modern legislation and statutes but also observed as a centuries-old custom.
The origin of Hindu law is believed to be divine. The key ideal before a Hindu has always been the achievement of the moksha, the attainment of salvation. Hindu law, over five thousand years has gone through phases. It is regarded that the origin of Hindu law is based on religious texts like the Vedas, the Upnishads, the Geeta, or any other Hindu scripture. A view emerging from these texts leads to the recognition of the law as Dharma. The term dharma can be loosely translated as “duty”. Many Hindu Jurists believe that Law is an enforceable part of Dharma. Thus, the Law is Dharma.
The other view regarding the origin of Hindu law is that it is derived from customs and usages. The belief is that the primary sources of Hindu laws are Shrutis, Smritis, Upnishads, customs, digests, and commentaries. The Hindu Laws practised during the colonization were based on Manusmriti. However, the genesis of Hindu law cannot be determined accurately owing to its centuries-old origin.
Who are Hindus?
Hindu laws apply to those persons who are Hindus. The question of who all falls under the category of Hindus is controversial and conflicting as many religions are included under the category of Hindus. The Hindu Marriage Act, 1955 defines who is Hindu under Section 2. It states that the act applies to any person who is Hindu by religion in any of its forms. It includes:
- Any person who is a Buddhist, Jaina or Sikh by religion.
- A Virashaiva, a Lingayat or a follower of Brahmo, Prathana or Arya Samaj.
- Any other person who is a domicile of the territory to which the act extends excluding those who are Muslims, Christians, Parsi or Jew by religion.
A person can be a Hindu in two ways, by birth or by conversion or re-conversion. Section 2 explains that a person is legally considered to be a Hindu by birth in the following cases:
- When both parents are Hindus, Buddhists or Sikhs by religion.
- When one parent is Hindu, Buddhist or Sikh by religion and the person is brought up as a member of the same.
Thus, a child born to Hindu parents, whether legitimate or illegitimate would be a Hindu by religion. Likewise, a child born to a Muslim father and Hindu mother, whether legitimate or illegitimate, brought up as a Hindu would be considered a Hindu. The child brought up as a Hindu would be considered as Hindu in eyes of the law even after the death of the Hindu parent.
The other category that makes a person Hindu is by the way of conversion or re-conversion. If a Christian converts into Hindu by ways accepted by judicial interpretations, then he would deem to be a Hindu and would be entitled to Hindu personal laws as per the rules and regulations. The mode of conversion is recognized by various Judgements. In the leading case of Peerumal V. Poonuswami(AIR 1971 SC 2352), the Supreme Court held that a person can convert into another religion by undergoing a formal ceremony recognized by the religion in which the person may want to convert. In Mohandas V. Devasam Board(1975 KLT 55), the Apex court remarked that a person who has accepted Hinduism as his faith and has been following the same for some time would be a Hindu.
Further, a person who regards himself as an atheist ( one doesn’t belives in the existence of god) or disagrees with the central doctrine of Hinduism or dissents the orthodox religious practices or might do anything which a Hindu usually would not do will still cease to be a Hindu. This was iterated in the case of Chandra Shekhar V. Kunandaivelu(AIR 1963 SC 185) by the Supreme Court of India.
References
- The Hindu Marriage Act, 1955, No. 25, Acts of Parliament,1955 (India)
- PARAS DIWAN, FAMILY LAW, 3-5 (Allahabad Law Agency, 2021).
