B.A. LL.B. (Five Years) Sem 5 Family Law I (Hindu Law) 2017 Jun Question Paper with Solutions

The Supreme Court explained this in Sastri Yagnapurushdasji v. Muldas Bhudardas Vaishya, AIR 1966 SC 1119. The followers of the Swaminarayan sect, called Satsangis, claimed that they were not Hindus. Their aim was to keep non-Satsangi Harijans out of their temples under a Bombay temple entry law. The Court rejected the claim and held that they were Hindus.

The Court said that Hindu religion does not claim one prophet, does not worship one God and does not follow one dogma. In its words it "can be safely described as a way of life based on certain basic concepts". It approved a working formula of Tilak. A Hindu accepts the Vedas with reverence. He recognises that the ways to salvation are many. He accepts that the gods to be worshipped are many.

The codifying Acts therefore do not try to define Hinduism. Instead, each lists the persons to whom it applies.

The statutory scheme: section 2(1)

Section 2(1) of the Hindu Marriage Act 1955 is the model. The other three Acts use the same terms. The Succession Act and the Adoptions and Maintenance Act do so in section 2. The Minority and Guardianship Act does so in section 3. The Act applies to three groups.

The Explanation: who is a Hindu, Buddhist, Jain or Sikh

The Explanation to section 2(1) lists three kinds of persons.

1. A child both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion, legitimate or illegitimate.
2. A child one of whose parents is a Hindu, Buddhist, Jain or Sikh and "who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged".
3. "any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion".

The first two are Hindus by birth. The third is a Hindu by conversion.

Hindu by birth: upbringing in the mixed case

Where only one parent is a Hindu, upbringing decides. In Sapna Jacob v. State of Kerala, AIR 1993 Ker 75, the mother was a Hindu of the Pulaya caste and the father a Jacobite Christian. The daughter claimed a medical seat reserved for Scheduled Castes, which required her to be a Hindu.

Persons to whom the Acts do not apply

1. Muslims, Christians, Parsis and Jews. They are excluded by the residuary clause. Their own personal laws govern them.
2. Members of Scheduled Tribes. Under section 2(2), the Act does not apply to members of a Scheduled Tribe within Article 366(25) of the Constitution. The Central Government may direct otherwise by notification.

Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938, shows the effect. Both spouses were tribals of notified Scheduled Tribes, an Oraon and a Santhal. The wife prosecuted her husband for bigamy when he married again. She relied on a tribal custom of monogamy. The Supreme Court held that the Hindu Marriage Act did not apply because of section 2(2). A custom must be pleaded and strictly proved. She had not proved a custom making the second marriage void, so no offence of bigamy was made out. The appeal was dismissed.

3. Persons married under the Special Marriage Act 1954. For some of them, section 21 of that Act applies the Indian Succession Act 1925 to succession. Section 5(i) of the Hindu Succession Act then excludes that property from the Hindu Act.

But conversion does not end an existing Hindu marriage. In Sarla Mudgal v. Union of India, AIR 1995 SC 1531, Hindu husbands converted to Islam to marry again. The Supreme Court held that the first marriage continued, because only a decree of divorce on a ground in section 13 can dissolve it. The second marriage was void, and the husband was liable for bigamy.

To whom Hindu law applies, and on what matters

Hindu law applies to every person within section 2, whether by religion, by birth or by conversion. It also applies to every person under the residuary clause. It governs their personal matters:

1. marriage, divorce and matrimonial relief, under the Hindu Marriage Act;
2. intestate and testamentary succession, under the Hindu Succession Act;
3. adoption and maintenance, under the Hindu Adoptions and Maintenance Act;
4. minority and guardianship, under the Hindu Minority and Guardianship Act; and
5. the joint family, the coparcenary, partition and religious endowments, where the uncodified law still applies.

Conclusion. "Hindu" is not defined, because Hindu religion is a way of life rather than one creed, as Yagnapurushdasji holds. The Acts instead apply to Hindus by religion in all their forms and to Buddhists, Jains and Sikhs. They also cover every domiciled person who is not a Muslim, Christian, Parsi or Jew. A person is a Hindu by birth if both parents are Hindus, or one is and the child is brought up as a Hindu. A person may also become one by genuine conversion, as Perumal Nadar holds. Members of Scheduled Tribes are outside the Acts unless notified, as Surajmani Stella Kujur shows. A Hindu ceases to be one only by conversion, and even then his existing Hindu marriage continues.