Scope and application of Hindu Law

In one minute

The Hindu Acts apply to three groups: Hindus by religion, Buddhists, Jains and Sikhs, and anyone else who is not a Muslim, Christian, Parsi or Jew. The last group is covered unless it is proved that Hindu law would not have governed that person.

Scheduled Tribes are outside the Acts unless the Central Government says otherwise. Exams ask for the three groups and for the Explanation about children and converts.

Exam focus

Frequency: Rarely asked
Usually asked as: Short answer (4 to 6 marks)

Legal provision

The same application section appears in each of the four Hindu Acts. It is section 2 in the Hindu Marriage Act, the Hindu Succession Act and the Hindu Adoptions and Maintenance Act. It is section 3 in the Hindu Minority and Guardianship Act, 1956.

Section 2(1)(a): a person who is a Hindu by religion in any form. This includes a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
Section 2(1)(b): a person who is a Buddhist, Jaina or Sikh by religion.
Section 2(1)(c): any other person who is not a Muslim, Christian, Parsi or Jew by religion. This holds unless it is proved that Hindu law or custom would not have governed that person. The Marriage Act and the Minority and Guardianship Act add that the person must be domiciled in the territories to which the Act extends.
Section 2(2): the Act does not apply to members of a Scheduled Tribe unless the Central Government notifies otherwise.
Section 2(3): "Hindu" in the Act includes a person who is not a Hindu by religion but is covered by section 2.

Meaning and definition

The Acts do not define "Hindu" in one positive sentence. They list who is covered. The residuary group works by exclusion, which keeps the law wide.

Persons governed by the Hindu ActsHow to read this: the top box is section 2(1). The three boxes below are clauses (a), (b) and (c).

Section 2(1): the Act applies to
- Clause (a)Hindus by religion in any form, including Virashaiva, Lingayat, Brahmo, Prarthana, Arya Samaj.
- Clause (b)Buddhists, Jainas and Sikhs by religion.
- Clause (c)Anyone else who is not Muslim, Christian, Parsi or Jew, unless proved outside Hindu law.

Detailed explanation

Step 1: the three groups

A Hindu by religion includes followers of every sect that grew out of Hinduism. Buddhists, Jainas and Sikhs are separate religions, yet the Acts treat them alike for family law. The third group catches a person with no other personal law.

Example. Gurpreet, a Sikh from Amritsar, marries Kavita, a Hindu. The Hindu Marriage Act governs both under clauses (a) and (b).

Step 2: the Explanation

The Explanation names who counts as a Hindu, Buddhist, Jaina or Sikh by religion.

A child, legitimate or illegitimate, whose parents are both Hindus, Buddhists, Jainas or Sikhs.
A child with one such parent, who is brought up in that parent's community, group or family.
A convert or re-convert to one of these religions.

The Hindu Adoptions and Maintenance Act adds one more child. This is a child abandoned by both parents, or of unknown parentage, who is brought up as a Hindu, Buddhist, Jaina or Sikh.

Example. Ravi's father is a Hindu and his mother is a Christian. His father raised him in the Hindu family. Ravi is a Hindu under the Explanation.

Step 3: persons outside the Acts

A Muslim, Christian, Parsi or Jew is outside clause (c) unless another clause applies. A person who converts away from these religions no longer falls in clause (a) or (b). Scheduled Tribes are outside the Acts under section 2(2).

Step 4: territory

The Hindu Marriage Act extends to the whole of India. It also applies to Hindus domiciled in India who live outside it (section 1(2)).

Exceptions and special rules

Scheduled Tribes: excluded unless the Central Government notifies that the Act applies.
Proof for the residuary group: a person in clause (c) is covered unless proved that Hindu law or custom would not have governed that person.
Special Marriage Act, 1954: two Hindus may marry under that Act instead. Section 29(4) of the Hindu Marriage Act leaves that Act untouched.

Don't confuse: Hindu by religion and Hindu by application

Point	Hindu by religion	Hindu by application of the Act
Who	Follower of Hinduism in any form	Buddhist, Jaina, Sikh, or a residuary person
Source	Section 2(1)(a)	Sections 2(1)(b), 2(1)(c) and 2(3)
Test	Religion	Religion or exclusion

Inside the concept. A Jain couple in Indore marry. The Act governs them under clause (b). The word "Hindu" in the Act includes them under section 2(3).

Just outside it. A Muslim couple marry. They are outside clause (c). The Hindu Marriage Act does not govern them.

Common mistakes

Saying that Sikhs, Jains and Buddhists are Hindus by religion. The Acts only apply to them as if they were.
Forgetting the Scheduled Tribe exclusion in section 2(2).
Ignoring the proof rule in clause (c).
Leaving out converts and re-converts from the Explanation.

Apply it

Problem

Sunita, born to a Hindu father and a Christian mother, was raised in her father's Hindu family in Warangal. She marries a Hindu man. Is the Hindu Marriage Act applicable?

Issue

Is Sunita a Hindu within section 2?

Rule

The Explanation to section 2(1) treats a child with one Hindu parent, brought up in that parent's family, as a Hindu by religion.

Application

Sunita has one Hindu parent and grew up in the Hindu family. She fits the second limb of the Explanation.

Conclusion

She is a Hindu under the Act, so the Hindu Marriage Act applies to her marriage.

Leading case laws

Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya
Facts. Followers of the Swaminarayan sect said their temples were outside the Hindu religion and closed to non-followers of the sect.

Principle. The Supreme Court held that the sect is not distinct from the Hindu religion. It described Hindu religion as a way of life with no single prophet, God, dogma or ritual.

Why it matters. It is the leading case on who is a Hindu and on what Hindu religion means.
Sarla Mudgal v. Union of India
Facts. Hindu husbands with living wives converted to Islam and married again.

Principle. The first marriage subsists after conversion. The second marriage is void and the husband is guilty under section 494 of the Indian Penal Code.

Why it matters. It shows that converting out of Hinduism does not end a Hindu marriage.

How to write this answer in the exam

5-mark answer

Section 2(1): three groups.
The Explanation: children and converts.
Scheduled Tribes: section 2(2).
Yagnapurushdasji for meaning of Hindu religion.

10-mark answer

Why the Acts list persons instead of defining "Hindu".
Clauses (a), (b) and (c) with examples.
The Explanation and its three limbs.
Exclusions: Scheduled Tribes, Muslims, Christians, Parsis and Jews.
Territory and persons abroad.
Cases: Yagnapurushdasji and Sarla Mudgal.

Key points to remember

Section 2(1) covers Hindus by religion, Buddhists, Jainas, Sikhs, and a residuary group.
The residuary group is anyone not Muslim, Christian, Parsi or Jew, unless proved outside Hindu law.
The Explanation covers children of Hindu parents, one-parent children and converts.
Scheduled Tribes are excluded unless notified.
The four Hindu Acts are almost identical here. The Marriage and Minority and Guardianship Acts limit clause (c) to persons domiciled where the Act extends.

Quick self-test

1. Are Sikhs and Jains Hindus by religion?

No. The Acts apply to them under clause (b).

2. Which sub-section excludes Scheduled Tribes?

Section 2(2).

3. Which case describes Hindu religion as a way of life?

Yagnapurushdasji v. Muldas Bhudardas Vaishya.