The true character of Hindu Jurisprudence is in fact different from that of the European system. The obedience to the Smritis etc., was not due to any political authority of their authors, but the veneration in which they were held by those for whom these writings were intended. These lawgivers showed admirable practical good sense in prescribing rules. “While apparently professing to follow the Divine Laws and Commands as found in the Vedas and claiming simply to interpret and explain them to the general public, in reality they so moulded these texts as to bring them in conformity with the general sense of their followers - a fact which secured them a following and obedience which was as universal and strong- as that secured by a political authority .
The developement of Hindu Law in this way may well he compared with English Equity and Roman Praetorian Legislation which had to pass through similar stages of formation. But the expression Hindu Law can even stand the test of Western Lawyers if the true origin of the Laws is properly borne in mind. In the East, as well as the West, it is never the King or Sovereign or Political Superior who composes the Laws himself, but it is only with his signature and seal that the Laws which are otherwise composed by private individuals are issued to the world with the Political Sanction imprinted on it. There is only one point wherein the two systems differ. For, whereas, in the West, the authors compose the Code by an authority previously given for the purpose, in the East, the political mark is affixed to the writings which probably were commenced and completed at the individual wish of a private person, but subsequently obtained political sanction and thus came to be laws by ratification subsequently given.
The term 'Hindu' is a general term, it denotes all those persons who profess Hindu religion either by birth or by conversion to the Hindu faith. Till this day there is no precise definition of the term 'Hindu' available either in the statute or in any judicial pronouncement. But it is easy to state the various categories of persons to whom Hindu Law applies. The persons to whom Hindu Law applies may come in the following three categories -
In this category two types of persons fall -
Any person who follows Hindu religion in any of its forms or development, either by practising it or by professing it, is a Hindu. However it is difficult to describe what is Hinduism.
Swaminarayana Sampradaya: This sampradaya prevails in Maharastra and Gujarat, founded by Shajanand (called later Swami Narayan) a brahimin by birth and the pupil of Ramanuj. The followers of this Sampradaya were called Satsangi. In Yagna - Purusdasji v Muldas . a question arose whether the followers of this Sampradaya came within the perview of Hindu or not. Their main argument was that the Swaminarayan Sampradaya, being a non-Hindu sect and the temple being also a non-Hindu temple, the HarUans had no right to enter it. This Sampradaya is different from Hindu Religion. So the provisions of Hindu Law are not applied to this temple. The Supreme Court decided that this Sampradaya was not different from Hindu Religion and the provisions are applied to this temple also.
A child whose both the parents were Hindus, Sikhs, Jains or Buddhists at the time of his birth, is regarded as Hindu. If one of the parents is Hindu and the other is Jain, Sikh or Buddhist, then also the child will be Hindu. It makes no difference that such child does or does not profess, practise or have faith in the religion of its parents. If after the birth, both or one of the parents become convert to another religion, the child will continue to be a Hindu, unless, in the exercise of parental right the child is also converted into the religion in which the parent or parents have converted (In case of legitimate child this right is on father, and in illegitimate case is on the mother).
A person will be Hindu if at the time of his birth one of the parents was Hindu and the child is brought up as a member of the tribe, community, group or family to which Hindu parent belonged at the time of his birth.
If both the parents of a child are not Hindu and the child is brought up as a Hindu, the child will not be Hindu unless he becomes converted Hindu.
Who are not Muslims, Christians, Parsis or Jews: Any person who is not a Muslim, Christian, Parsi or Jew and who is not governed by any other law, is governed by Hindu law, unless it is proved that Hindu law is not applicable to such a person (Raj Kumar v/s Barbara ). Those persons who are atheists or who believe in all faiths, or in conglomeration of faiths, may fall under this class. A Muslim who has renounced his religion and did not adopt any other religion will be considered as Hindu.
Applicability: It was the old belief that the Hindu Law applies only to those who are the followers of the rigid orthodox traditions of Hindu religion but the case of Ram Bhagwan Koer v EC. Bose has settled a rule that a Hindu does not cease to be governed by Hindu Law because of the lapse from orthodox Hindu practice or by deviation from its central doctrines.
Section 2 of the Hindu Marriage Act 1955, provides that the Act applies to the persons listed below (and similar provisions are also made in the other enactments of Hindu Law)
1.Application of Act - This Act applies –
a) to any person who is Hindu by religion in any of its forms of development, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
b) to any person who is a Buddhist, Jaina or Sikh by religion; and
c) 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 any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be -
a) any child, legitimate, or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
b) any child, legitimate, or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion, and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
c) any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.
2)Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution, unless the Central Government, by notification in the Official Gazette, otherwise directs.
3)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 by virtue of the provisions contained in this section.
The following persons are Hindus, Buddhists, Jain or Sikh by religion