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Family Law 1 - Assignment 1 - Part A - Who is Hindu ?

 WHO IS A HINDU?

In the legal framework of India, the term "Hindu" is broadly defined beyond religious connotations. The definition is primarily based on statutory laws, such as the Hindu Marriage Act, 1955, and Hindu Succession Act, 1956, rather than purely religious beliefs.

Definition of a Hindu Under Indian Law

  1. Hindus by Religion

    • A person who identifies as Hindu in any form (Sanatana Dharma, Shaivism, Vaishnavism, Shaktism, etc.).
    • Followers of reformist movements like Brahmo Samaj, Arya Samaj, and Prarthana Samaj.

  2. Buddhists, Jains, and Sikhs

    • Though considered distinct religions, Indian law recognizes them under Hindu law for personal matters.
    • This inclusion is for legal convenience and uniformity in personal laws.

  3. Persons Who Are Not Muslims, Christians, Parsis, or Jews

    • A person domiciled in India who does not practice these religions is presumed to be governed by Hindu law unless proven otherwise.

  4. Children of Hindu Parents

    • If both parents are Hindu, the child is deemed Hindu.
    • If one parent is Hindu and the child is brought up in the Hindu tradition, the child is Hindu.

  5. Hindu Converts and Re-Converts

    • If a person converts to Hinduism or reconverts after following another religion, they are legally considered Hindu.

Hinduism as a Way of Life

The Supreme Court of India, in cases like Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya (1966), held that Hinduism is not just a religion but a way of life. It is inclusive, allowing different beliefs and practices under one umbrella.

Exceptions Under Hindu Law

  • Scheduled Tribes (as per Article 366(25) of the Constitution) are generally excluded unless the government notifies otherwise.
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HINDU MARRIAGE ACT, 1955

The Hindu Marriage Act, 1955 was enacted by the Parliament of India to regulate and codify the laws relating to marriage among Hindus and other communities included under the definition of "Hindu" in the Act. Before this Act, Hindu marriages were largely governed by customs, traditions, and religious scriptures. The Act aims to provide a uniform legal framework for marriage, covering aspects such as eligibility, conditions, ceremonies, registration, and dissolution of marriage.

Applicability of the Act (Section 2)

Section 2 of the Hindu Marriage Act, 1955 defines the persons to whom the Act applies. It states that the Act applies to:

  1. Hindus by Religion – Including followers of:

    • Virashaiva
    • Lingayat
    • Brahmo Samaj
    • Arya Samaj
    • Prarthana Samaj

  2. Buddhists, Jains, and Sikhs – Though distinct religions, they are considered under Hindu law for marriage purposes.

  3. Any Person Who is Not a Muslim, Christian, Parsi, or Jew – Provided they are domiciled in India, unless proven that their personal law is different.

  4. Children (Legitimate or Illegitimate) – If both parents or at least one parent is Hindu, Buddhist, Jain, or Sikh, and the child is raised in that tradition.

  5. Persons Who Convert or Reconvert to Hinduism – If a person adopts or reverts to Hinduism, they are considered Hindu under this Act.

Essential Conditions for a Hindu Marriage (Section 5)

A Hindu marriage is considered valid if:

  • Neither party has a living spouse at the time of marriage.
  • Both parties are mentally sound and capable of giving valid consent.
  • They are of marriageable age (21 years for males, 18 years for females).
  • They are not within prohibited degrees of relationship unless permitted by custom.
  • They are not sapindas (close blood relatives) unless permitted by custom.

Ceremonies for a Hindu Marriage (Section 7)

  • Marriage must be solemnized according to customary rites and ceremonies of either party.
  • The "saptapadi" (seven steps around the sacred fire) is recognized as an essential part of Hindu marriage.

Registration of Marriage (Section 8)

  • Registration is recommended but not compulsory.
  • Registered marriages serve as legal proof and help in resolving disputes.

Judicial Separation and Divorce (Sections 10-13B)

The Act allows for judicial separation and divorce under specific grounds such as:

  • Cruelty
  • Adultery
  • Desertion
  • Conversion to another religion
  • Unsound mind
  • Venereal disease
  • Renunciation of the world
  • Not heard alive for seven years

Mutual divorce is also permitted under Section 13B, provided both spouses consent.

Conclusion

The Hindu Marriage Act, 1955, provides a structured framework for marriage, ensuring legal validity and protection. Meanwhile, the definition of "Hindu" under Indian law is broad and inclusive, covering not only religious Hindus but also Buddhists, Jains, Sikhs, and those who convert or reconvert to Hinduism. This legal recognition ensures uniformity in personal laws for a large section of the Indian population.

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