Hindu law is the most ancient law in the world. We believed that a person who
believes in Hindu religion and follows rituals and customs of Hinduism is a
person who belongs to the Hindu religion either by birth or convictism that
people are called as Hindus. The concept of Hinduism is traced from the Indus
Valley Civilization this was known for urban and political development. This is
somehow called as Harappan Civilization because it is first city scooped out by
Harappans in Punjab-Pakistan. Let's discuss further more information about who
is Hindu.
Who is called as Hindu:
Hindu includes Arya Samaj, Buddist, Jain, Sikh, Bharmo, Prathna or any persons
who follows the Hindu religion by heart.
- By religion: Means that a person who believes in the Hindu
religion and followers or beliefs of Veerashaivas, Lingayats, tantriks, raidashis, Bharma,
samajists, Arya Samaj, Radhasomis, Satsangi, and Swayamariyarthas are Hindus by
religion.
Essentially, it believes that the people who are the followers of Veerashaivas
and Lingayats (which means worship of Lord Shiva) and practice their rituals are
called Hindus.
So, the person who, by religion, follows the customs and rituals of Hindus is
called a Hindu.
-
By Convert: We also say it as Hindu by converting or Re- reconverting. Any
person who converts or reconverts to Hinduism, Jainism, Sikhism, Buddhism, or Arya Samaj is called a Hindu.
Commonly in most religions, the conversation was going through a ceremony, but
in Hindu religion, the Dharamasharta did not provide any ceremony or procedure
for conversation to Hinduism. Usually by declaration, belief, following,
acceptance, or with faith, convert to Hinduism.
But in Hindus Arya Samaj, they were prescribed a ceremony called Sudhi.
According to Paras Diwan's Book of Hindu Law [1]a. If: - A person performed any ceremony that is prescribed by religion, community, sector, or any caste in which he wants to enter.
- If a person conveys a bona fide intention to accept Hinduism.
- A person announces or declares bona fide expression that a person will accept Hinduism in good faith.
-
By Birth:
Any person who is born in a Hindu family or by birth who is Hindu, that person is called a Hindu by birth.
- If both parents are Hindu, then the child born out from them is brought to Hindu.
- Or, any one of the parents is Hindu: first, at the time of birth, any one of the parents is to be Hindu. Second, the child is brought up to a Hindu.
And later, if a child wants to convert his religion by faith or in beliefs, he can.
In Hindu law, it is not necessary to choose the father's religion.
For example, a child born in 1980, at the time of birth, the mother was Hindu, and the father was Muslim. Later, in 1990, the mother converts her religion to Islam.
So, here the question arises: Was a child Hindu or not?
- The child will be considered as Hindu because at the time the child was born, his mother was Hindu. So, it is necessary to be called a Hindu by birth if both or either of the parents are Hindu at the time of the child's birth. If the child later wants to convert his religion by faith or beliefs, then he can.
Landmark Judgment:
[Sastri V. Muldas] 1966[2] This landmark judgment defines the most crucial factor: WHO IS HINDU?
Facts of the case:
- Sastri was a satsangi. Satsangi are those people who follow Shriman Sadan or Swaminarayan sector in Ahmedabad Narayan Temple.
- Muldas was the president of the Maha Dalit Association.
- Sastri filed an injunction in court, not to allow people of lower caste into the temple. Only satsangis were allowed to the temple to worship God.
- By the act of The Bombay Harijan Temple Entry Act, 1947, and sec 3 of The Bombay Hindu Place of Public Worship (Entry/Authority) Act, 1955.
Judgment:
The Supreme Court in 1966 held that who are Hindu?
- Who believes in Vedas.
- Who believes in rebirth and pre-existence.
- Who believes in idol worship.
- Who believes in salvation.
The court also stated that even people of lower caste have the right to visit the temple and worship God. In this case, Muldas and his committee of the Maha Gujarat Dalit Associations, all people have the right to visit the temple and no person can stop them.
The Hindu Marriage Act, 1955:
Section 2 of The Hindu Marriage Act, 1955 defines who is Hindu:
- 2(1)(a) – States that any person who is Hindu by religion and follows the forms and development of including Lingayat, Virshivya, Pratha, Brahmo, and Arya Samaj.
- 2(1)(b) – States that if a person who is by religion a Buddhist, Sikh, or Jain.
- 2(1)(c) – States that if any person, rather than Muslim, Parsi, Jew, or Christian by religion, remains other persons who have domicile in India, such a person is considered as Hindu.
Explanation:
- If any child, whether legitimate or illegitimate, if both the parents were Hindu, then the child will also be considered as Hindu.
- If any of the parents of the child is Hindu at the time of the birth of the child, the child is considered as Hindu by religion.
- Any person who by conversion or re-conversion to Hinduism.
- 2(2) – Nothing that is mentioned in section 2(1) of this act shall apply to STs within the scope of Article 366(25), until and unless any notification by official gazette or central government.
- 2(3) – States that this section would not apply to any person who is not a Hindu by religion, does not believe in Hindu religion, did not have faith in Hindu religion, and does not follow the customs or ideology of the Hindus.
Case Laws:[
Rajkumar V. Barbar]1989[3]: At the time of the birth of the child, his father
was Hindu and his mother was Chistian, so it was not shown that the child was
brought to Hindu. The Calcutta High Court states that unless a child converts
his religion, he belongs to the religion of his birth.
[
Menkha Gandhi V. Indra Gandhi] 1985[4]. This case is about Sanjay Gandhi, son
of Indira Gandhi. She is Hindu, and father of the child was Parsi when Sanjay
Gandhi was born.
Here the question arises: on the death of Sanjay Gandhi, should the rituals be
performed by Hindus or Parsis? So, the Hon'ble Court held that the mother was
Hindu at the time when Sanjay Gandhi, her son, died, and also when he was alive,
he followed the Hindu customs. So, on his death, all the rituals should be
followed as per Hindu religion or customs.
Sources of Hindu Law:
- Primary Sources: Primary sources are those sources that are ancient and uncodified.
- Shruti: Means, "Something which can be heard". Shruti is based on Vedas.
It explains what was heard in ancient times. This is the theory of permanent or primary source of ancient Hindu Law,
and it was believed that Shruti is nothing more than a divine revelation. It is uncodified and not legally enforced.
- Vedas: There are 4 Vedas:
- Rig Veda: Includes religious songs and is the oldest form among all Vedas.
- Yajur Veda: Contains religious rituals.
- Sama Veda: Contains prayers and musical notes.
- Arthva Veda: Contains magical formulas against diseases or enemies.
Rig, Yajur, and Sama Vedas together are also known as trayi-vidya, meaning "threefold knowledge".
- Smriti: Means "what was remembered". It refers to words that gods spoke to their sages and what the sages remembered from revelations.
Smriti is classified as two types: old Smriti and new Smriti.
- Manusmriti: Contains 12 chapters and 2694 shlokas. It denied rights to lower caste people and women, with significant caste discrimination. It introduced the first legal system and Hindu system.
- Yajnavalkya Smriti: Focuses on legal processes and improved positions for lower caste people and women compared to Manusmriti.
- Naradasmriti: Free from all religious and moral activities.
- Digest & Commentaries: Refers to additional writings.
In the case of Angubai V. Hemchardra Rao, the court held that commentaries do not enact the law but explain the law.
- Custom: Refers to traditions followed since ancient times without interruption.
Essentials of a Valid Custom:
- Followed since ancient times.
- Must be certain and specific.
- Must be reasonable.
- Consistent.
- Should not be against any laws.
- Should not oppose public policy.
- Existence from time immemorial.
Types of Custom:
- Local Custom: Followed in a specific geographical location or particular local areas.
- Family Custom: Traditions followed by a particular family from generation to generation.
Example: Different customs or rituals of marriage in families.
- Caste Custom: Also called community custom. These are customs followed by a particular community or caste, binding individuals or groups.
- Modern Sources: Modern sources are codified.
- Legislation: Refers to the law-making body.
- Precedents: Refers to previous judgments.
- Equity, Fairness & Good Conscience: Laws and courts must act or decide based on equity, justice, and good conscience.
Conclusion:Through this article we get to know about who is Hindu and sources of Hindu Law.
So, any person who believes in Hindu religion by faith, or either by birth or
convictism the person is said to be Hindu.
End Notes:
- AIR1960MP382
- 26th Edition, 2023
- 966 AIR 1119 1966 SCR (3) 242
- AIR1989CAL165
- AIR1985DELHI114
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