These are two different questions. It is not necessary that a person who comes under Hindu Law must be a Hindu. Both these questions are comprehensibly simplified time to time in various Laws and Status and Judgments of Courts.
Who is a Hindu?
There are many theories which state how did the term “Hindu” originate but the most famous theory was given by Swami Vivekananda and Swami Harshananda. According to Swami Vivekananda, Hindus are those people who lived on the other side of river Indus (Sindhu: in Sanskrit). This was elaborated by Swami Harshananda who explained that Persians, some 3000 to 4000 years ago, used to refer the people who lived on the banks of river Indus as Sindhus. But they couldn’t pronounce the letter “S” correctly in their native tongue and mispronounced it as “H.” Thus, for the ancient Persians, the word “Sindhu” became “Hindu.” The ancient Persian Cuneiform inscriptions and the Zend Avesta refer to the word “Hindu” as a geographic name rather than a religious name. In the play “Parijat Haran” written by Sankar Dev it is said that one who eradicates his bodily sin and evil thoughts through Tapasya and his enemies by weapons are called “Hindu”.
On 14th January 1996, in Sastri Yagnapurushadji and Ors vs Muldas Brudardas Vaishya and Anr [AIR 1966 SC 1119] Supreme Court of India elucidated the topic by putting the views of Bal Gangadhar Tilak in its judgement. It pronounces that there are three distinguishing features of Hindus. These are:
- Acceptance of absolute supremacy of Vedas.
- Belief in Polytheism (many gods).
- Recognition of the fact that ways or means of salvation are diverse.
On whom the Hindu Law applies?
A codified Hindu Law (also known as Hindu Code Bill) was drafted by the B.N. Rau Committee. It was introduced in the provisional Parliament in 1947 but could not be passed before its dissolution and consequently, the Bill lapsed.
The Code was then split into four parts for facilitating discussion and passage in Parliament. The first of these was the Hindu Marriage Act of 1955 (with effect from 18.5.1955). The Hindu Marriage Act, 1955 has been extensively amended by Act 63 of 1976, which received the assent of the President on 27-5-1976.
The Hindu Succession Act, 1956 (with effect from 17.6.1956) was the next part which came into effect. It treats sons and daughters as equals in the matter of succession.
Later on, The Hindu Minority and Guardianship Act, 1956 (with effect from 25.1.1956) was passed. This Act is about natural guardians and testamentary guardians under Hindu Law. “De facto” guardianship has been abolished under it.
The fourth Act is The Hindu Adoptions and Maintenance Act, 1956 (with effect from 21.12.1956). Owing to the equality of girls and boys emphasised in the Hindu Succession Act, it became easier to simplify the laws of adoption. It provides for adoption of both boys and girls. As per the law, a wife cannot be forbidden by her husband to adopt a child after his death. Hereafter, adoption shall not divest anyone of such property which been vested in him before the adoption. Also, a Hindu widow’s adoption will be in her right, instead of her deceased husband’s.
The rule of divestment, which was the cause of much ruinous litigation under the old law, has now been abandoned. The latter part of this Act deals with the subject of maintenance.
Section 2 of the Hindu Marriage Act 1955, Hindu Succession Act 1956 and Hindu Adoption and Maintenance Act 1956 and Section 3 of the Hindu Minority and Guardianship Act 1956 describe the people on whom the Hindu Law applies. The people on whom the Hindu law applies are:
1. Hindu by religion
(I) Follower of Hinduism: The Hindu law applies to the person who is a follower of the Hindu religion. This includes the followers of Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj. Apart from these it also applies to the persons who are the followers of Buddhism, Jainism or Sikhism. In addition to that, it includes all the persons who are not followers of Islam, Christianity, Zoroastrianism or Judaism.
(II) Converter to Hinduism: This law applies to all those people who convert themselves to Hindu religion. Regarding the conversion, the apex court put down necessary conditions for it in the case of Perumal Nadar (dead) by L.R.S vs Ponnuswami [AIR 1971 SC 2352]. According to this judgment, a person converted as Hindu is considered as same only if:
- He voluntarily puts his intention to live as a Hindu
- He starts living as a Hindu
- Hindu community accepts him as a part of its own.
It is applicable on those people who were Hindu once, converted into another religion and converted again into the Hindu religion. This was held in the case of G. M. Arumugam vs S. Rajgopal & Ors [AIR 1976 SC 939].
2. Hindu by Birth
- If both parents are Hindu: The Hindu law is applicable on a child (legitimate or illegitimate), whose both parents are Hindus, Buddhists, Jainas or Sikhs by religion and he is brought up as a Hindu.
- If either of the parents is Hindu: In the case of Myna Boyee vs Ootaram [8 M.I.A. 400], it was held that if either of the parents is Hindu and child is brought up as Hindu then he would be considered as a Hindu. In another case Menaka Gandhi vs Indira Gandhi And Anr [AIR 1985 Del 114] Delhi High Court held that child brought up as Hindu must be a Hindu.
Section 2(2) of Hindu Marriage Act, 1956 provides that nothing contained in this Act shall apply to the members of any Scheduled Tribes (even if they are Hindus) unless the Central Government by notification in the official gazette otherwise directs as Article 366(25) of Indian Constitution allows it.
It is well said that Hindu Law is a Law of Status. It means that wherever a Hindu goes, he will be considered as a person under Hindu Law, even when he moves out of his homeland.