Nature, Scope of Application of Hindu Law | Who is Hindi

Nature, Scope of Application of Hindu Law

  1. The Meaning Hindu Law
  2. Who is Hindu
  3. Who is a Hindu, scope/extent of application of Hindu Law.
  4. "A Hindu is born not made".
  5. "Hindu Law is not Lox Loci but a law of status".

Nature, Scope of Application of Hindu Law
Nature, Scope of Application of Hindu Law

Meaning of Hindu Law 

Law, according to Hindu jurists, is the enforceable part of Dharma. Law is Dharma itself. The word 'Dharma' generally includes all kind of rules, religious, moral, legal, physical, metaphysical or scientific, in the same way as the law does, in its widest sense. The word 'Dharma' is derived from the root 'dhri' (to hold, support or maintain) and it means law or duty, or the essential quality of persons or things. By the term 'Dharma ' is understood the rules which govern the whole mankind.
Dharma has been defined as "What is followed by those, learned in the Vedas and what is approved by the conscience of the virtuous who are exempt from hatred and in ordinate affections." According to Mayne, Hindu Law is the Law of 'Smiritis' as expounded in the Sanskrit Commentaries and Digests. which as modified and supplemented by custom, is administered by the courts.

The Madras High Court, had explained the term 'Hindu Law' in the following words : "What is ordinarily understood as Hindu Law is not like the customary law of the country like the Common Law of England. Neither is it a statute law in the sense that some King or Legislature framed the law and enforced its acceptance by people. Hindu Law as is commonly understood is set of rules contained in several Sanskrit books which the Sanskritists consider as books of authority on the law governing the Hindus."
Hindu Law occupies a prominent place in the field of jurisprudence due to its comprehensiveness, loftiness of its ideals and logical consistency. The Hindu Jurists laid great emphasis on the reasonableness of the rules they propounded. Law, according to them, exists for the benefit of the people and therefore they regarded the law as an instrument of social goods, binding on society.

Hindu Law is Not Lex Loci

It should also be noted that the Hindu Law is not a territorial law. In other words it is not a "Lex-Loci" (Law of Locality i.e., which applies only to a locality or Stale) but a personal law". It means that a Hindu, in whatever country he may be, is governed by Hindu Law in all personal matters. Territorial law or that country would not apply on the 'personal matters' or that Hindus.

Effect of Migration- Hindu migrates from one part of the country to another

It follows therefore, that where a Hindu migrates from one part of the country to another, the presumption is that he retains the laws and customs of the region from which lie comes and is not subject to the law of the place to which he migrates. This presumption has to be rebutted by showing that the family has adopted the law and usages of the State to which it has migrated.
But if a person has a permanent residence in one State, the mere fact that he is living in another State in connection with his employment would not amount to migration. Therefore, Hindu Law is called the personal law, i.e., wherever a Hindu goes, he carries the provisions of Hindu Law with him.

His rights and obligations respecting his personal or family matters shall be determined by Hindu Law. It is the law existing at the time of migration that continues to govern the migrated family. Origin of Hindu Law. There are two extreme views about the origin of Hindu Law. According to one view it is of "divine origin" while the other view is that it is based upon immemorial customs and usages.

Application of Hindu Law

Under the Constitution of India it is provided in Article that all laws (subject to such adaptations and modifications as might be made by the President under Clause 2 of the Article) in force in the territory of India immediately before the commencement of the Constitution, i.e., 26th January, 1950, shall continue until altered or replaced or amended by a competent Legislature or other competent authority. After the Constitution was adopted, four major Acts namely, Hindu Marriage Act, 1955. Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956 and Hindu Adoptions and Maintenance Act, 1956 have been passed with a view to overhauling the law concerning the above subjects.

Who is Hindu

The term 'Hindu' is a general term embracing all those who are commonly so known. The term "Hindu" denotes all those persons who profess Hindu religion either by birth, or by conversion to the Hindu faith. In the case of Yagna-purwdasji vs Muldas, the Supreme Court accepted the working formula evolved by Tilak regarding Hindu religion.
According to him, "Acceptance of Vedas with reverence, recognition of the fact that the means or ways or salvation are diverse and realization of the truth that the number gods to be worshiped is large, that indeed is the distinguishing feature or Hindu religion".
The court further posed the question as to who are the Hindus but did not give any categorical reply to it. In short, a person who carries a Hindu way of life and who is known by others to be a Hindu can be said to be Hindu.
Recently, in Manohar Joshi V. N.B. Patil, while pointing out the distinction between Hindu religion and Hindutva (Hinduism), the Supreme Court held that the "word Hindutva by itself does not invariably mean Hindu religion and it is the context and the manner of its use which is material for deciding the meaning of the word 'Hindutva' in a particular text.
It cannot be held that in the abstract, the mere word 'Hindutva' by itself invariably must mean the Hindu religion".

Hindus Born as Well as Made

It is often said that a Hindu is born and not made, i.e. the status of a person as Hindu is determined by his birth. If a person is born of Hindu parents he is a Hindu unless he changes his existing status by becoming a member of such a religion as would destroy his status as 'Hindu' and give him a new one.
A Hindu on his conversion to Christianity, Islam or Zorostrianism ceases to be governed by the Hindu Law. 'The term 'Hindu' according to their Lordships of the Privy Council includes "those born as Hindus and also those who become converts to Hinduism". Hindus are therefore born as well as made and thus the applicability of Hindu Law is not restricted or confined to those persons only who are Hindus by birth. Its application has been extended to those persons also who have accepted the Hindu religion or convert to Hinduism.

A Non-Hindu may renounce his religion and become Hindu by Conversion by any of the three methods :

(a) if he performs the ceremony of conversion prescribed by the caste or community to which he converts;
(b) if he expresses an intention to become a Hindu and actually lives as a Hindu and the community or caste into the fold of which he is ushered in accepts him as a member of that community or castes;
(c) if he declares that he is a Hindu and lives as a Hindu.

Persons to Whom Hindu Law Applies

The enacted Hindu Law is now applicable to Hindus on their personal matters. For example, the Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoptions and Maintenance Act of 1956 and Hindu Minority and Guardianship Act of 1956 apply to a person who is Hindu. Following persons are Hindus for the purpose es of those codified laws .

I. Any person who is Hindu by religion in any of its forms or developments, including

(a) a Virashaiva,
(b) a Lingayat, 
(c) a follower of the Brahmo, Prathana or Arya Samaj.

II. Any person who is either

(a) a Buddhist by religion; or
(b) a Jain by religion; or
(c) a Sikh by religion.

Ill. Any other person domiciled in the territories to which these Acts extend who is not—

(a) a Muslim by religion; or
(b) a Christian by religion; or
(c) a Parsi by religion; or
(d) a Jew by religion;

except when it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law (Hindu Law) in respect of any of the matters which are dealt in these Acts if these had not been passed.

The following persons are Hindu, Buddhists, Jains or Sikhs by religion :

(a) Any child, legitimate or illegitimate, both of whose parents (father and mother) are Hindus, Buddhists, Jains or Sikhs by religion :
(b) Any child, legitimate or illegitimate, one of whose parents either (father or mother) is a Hindu, Buddhis, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group of family to which such parent (either the father or the mother) belongs or belonged;
(c) any person who is a convert to the Hindu, Buddhist, Jaina or Sikh religion. Persons, who have been declared to be members of the Scheduled Tribe within the meaning of clause (25) of Article 366 of the

Constitution are not to be treated as Hindus unless the Central Government, by a notification in the Official Gazette, declares them so.

People Who Have Changed Religion

It is general principle of law that a person who has accepted a religion cannot rely on a custom opposed to that religion. Thus where a Hindu converts to Mohammedanism, he will be, as general rule, governed by the Mohammedan Law. But a well- established custom in the case of such converts following their old law in matters of succession and inheritance has been held to override the general presumption. Thus several classes of Mohammedans, who were formerly Hindu like the Khojas and the Cutchi Memons of Bombay, the Halwai Memons of Katiawar and the Sunni Bohras of Gujarat had by custom, retained the Hindu Law of Succession and inheritance.
But in view of the passing of the Muslim Personal Law (Shariat) Application Act, 1937, the custom in the communities ceases to be applicable and these Muslim communities are governed by Muslim Personal Law in the matters of.succession and inheritance also (except where the questions relate to agricultural lands.)

Persons to whom Hindu Law Does Not Apply

The uncodified Hindu Law does not apply—
(i) To the illegitimate children of a Hindu father by a Christian mother and who are brought up as Christians, or to illegitimate children of a Hindu father by a Mohammedan mother, because these are not Hindus either by birth or by religion;
(ii) To the Hindu converts to Christianity. Succession to the estate of a Hindu convert to Christianity who dies as a Christian intestate is governed by the Indian Succession Act, 1865 (now Indian Succession Act, 1925). A person ceasing to be a Hindu in religion cannot since the passing of the Act of 1865, elect to continue to be bound by the Hindu Law in the matters of succession;
(iii) To a convert from Hindu to the Mohammedan faith. But the conversion must be bonafide. If a Hindu converts to become a Muslim only to legalise his second marriage (without divorcing the first Hindu wife) the conversion is not bonafide and Hindu law of monogamy shall. continue to apply on such converted Muslim.

Extent of the application of Hindu Law. Hindu Law, as administered by the Courts of India is applied to Hindus in some matters Only. Furthermore it is not the original Hindu Law which applied to Hindu Law Hindu in India. A considerable portion of it was subjected to change and modifications.

Written By
Lovely Rawat

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