Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Applicability of the Act
Section 2 talks about the applicability of the Hindu Adoptions and Maintenance Act, 1956
Section 2: The Hindu Adoptions and Maintenance Act, 1956:
Application of Act-
(1) This Act applies-
(a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
In Sastri Yagnapurushadji v. Muldas Brudardas Vaishya1966 AIR SC 1119 case, in view of Gajendragadkar. J. “Unlike other religions in the world, the Hindu religion does not claim any one prophet, it does not worship any one God, it does not subscribe to any one dogma, it does not believe in any one philosophic concept, it does not follow any one set of religious rites or performances, in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more”.
In the cases like Brahmo Samajists (Ram Bhagwan v. J.C. Bose (1903) 301 A 249), Arya Samajists (Shyamsunder v. Shankar, 1960 Mys 27), Radhasoamis (Shanti Swarup v. R.S. Sabha,1969 All 248), Satsangist (Shastri v. Muldas, 1966 SC 1119), Swayainariyathais the Courts held that these movements represent a revolt against the orthodox practices of Hindus, particularly the ceremonial and ritual aspect of Hinduism, or against the rigidity of class system.
Section 2 (1): The Hindu Adoptions and Maintenance Act, 1956:
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person 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.
Clause (b) of section 2(1) of the Hindu Adoptions and Maintenance Act, 1956, enacts that the Act is applicable to any person who is a Buddhist, Jaina or Sikh by religion.
In Boddaladi v. Boddaladi, (1927} 50 Mad. 228, case Kumaraswami Sastri J. observed that ” Jainism has an origin and history much anterior to the Smritis. Jainism rejects the authority of the Vedas and discards all ceremonies and rituals. Jainism does not believe in the existence of God. It holds that by tapasya, by discarding worldly life and its worldly manifestations, Atma can become Paramatma and thus one can attain salvation (moksha)”.
In Chhote Lal v. Chhoonoo Lal (1879)4 Cal 744 (PC) case, the Court held that both the codified and uncodified Hindu law applied to Jains.
In Bhagwan Kour v. J.C. Bose, (1926)7 Lah 275 (Udasis), and Sugan Chand v. Parkash Chand, 1967 SC 506 cases, the Court held that in the absence of special custom among Sikhs they are governed by Hindu law.
In Ram Pergash v. Mst. Dahan, (1924)3 Pat. 152 case, the Court held that the Buddhists are governed by Hindu, law as modified by custom prevalent and recognized among them.
In Vanni v. Vannichi, (1924) 51Mad. (FB) case, the Court held that the codified Hindu law applied to the Buddhists just as it applies to any other Hindu.
Clause (c) of section 2(1) of the Hindu Adoptions and Maintenance Act, 1956, enacts that it would apply to all persons to whom Hindu Law applied before the passing of this Act except a Muslim, Christian, Parsi or Jew by religion. Unless it is proved that Hindu law is not applicable to such a person.
Section 2: The Hindu Adoptions and Maintenance Act, 1956:
Explanation to Section 2(1)-
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, Jainas or Sikhs by religion;
(b) any child, legitimate for 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,
(bb) any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who is either case is brought up as a Hindu, Buddhist, Jaina or Sikh, and
When Both Parents are Hindu:
Explanation (a) to section 2(1) provides that any child legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs, by religion is a Hindu and Hindu Law applies to him/her.
When One Parent is a Hindu:
Explanation (b) of section 2(l)of the Hindu Adoption and Maintenance Act further provides that a child legitimate or illegitimate born to parents one of whom alone is a Hindu will be a Hindu if he is brought up as a member of the tribe, community or group to which such parent belongs or belonged. The Hindu parent may be father or mother, what is important is that the child must be brought up as a Hindu. The word ‘belonged’ means that if subsequent to the birth of the child the parent who was a Hindu convert to another religion, the child would continue to be a Hindu provided he is brought up as a Hindu
Whose Parentage is Not Known But Brought Up as Hindu:
Explanation (bb) to section 2(1) provides that any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who is either case is brought up as a Hindu, Buddhist, Jaina or Sikh is Hindu and the Act is applicable to him.
Section 2: The Hindu Adoptions and Maintenance Act, 1956:
Explanation to Section 2(1)-
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh, religion.
In Peerumal Vs. Poonuswami, AIR 1971 SC 2352 case, the Court held that a person may also become Hindu if after expressing an intention, expressly or impliedly, he lives as a Hindu and the community or casts into the fold of which he is ushered in accepts him as a member of that caste or community.
A person who ceased to be Hindu by converting into a non-Hindu faith and who has come back to Hindu faith is also a Hindu. Thus, a person who ceased to be a Hindu by converting to non-Hindu religion may again become a Hindu if he reconverts to Hinduism. Jainism, Buddhism or Sikhism. It is not necessary that he reconverts to the same religion from which he converted to the non-Hindu religion.
In S. Anbalagan Vs. B. Devarajan, AIR 1984 SC 411 case, the Supreme Court concerned with a Hindu reconvert to Adi Dravida caste whose parents had converted to Christianity and who was also baptized at the age of seven months. As a reconvert, he successfully contested in the general elections from a reserved seat. His election was challenged mainly on the ground that since he did not belong to the Adi Dravida caste he could not contest from the reserved constituency. It was asserted that he continued to be a Christian. After a review of the authorities and on consideration of the facts, the Supreme Court observed that even if it was assumed that his parents had converted to Christianity and he was baptized when he was seven months old, there was sufficient evidence that he had long since reconverted to Hinduism and was accepted as one of its members by the Adi Dravida caste.
Section 2: The Hindu Adoptions and Maintenance Act, 1956:
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (2-A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.
(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.
Section 2(2) provides an exception to the general rale. The codified Hindu Law lays down that its provision would not apply to the members of Scheduled tribes coming within the meaning of Clause 25 of Art. 366 of the Constitution of India, unless the Central Govtby notification in the official Gazette direct that any of the enactment shall apply to the Scheduled tribes also.
In Kailash Singh v. Mewalal, AIR 2002 MP 112 case, the Court held that the Hindu Succession Act does not apply to Gonds in Madhya Pradesh and widow would inherit as limited owner.
In Soham Dolma v. Phunchog Angrup AIR 2002 HP the Court held that the provisions of Hindu Succession Act do not apply to Scheduled Tribes vis., Bodh, Swangla, Shipis and Lohars of Lahaul Spiti in Himachal Pradesh.
In Lakshmi v. Basi Majhian AIR 2004 Jharkhand 121 and Labishwar v. Pran Maghi (2002) 8 SCC 587 cases the Courts observed that the Santhal Scheduled Tribe follows Hindu traditions like offer pindas, had Hindu names of family members, performed Shraddha ceremonies, widow did not use vermilion or did not wear ornaments, cremate their dead. Thus Court held that they were sufficiently Hinduised to be governed by the Hindu Succession Act.
In Madhu Kishwar v. State of Bihar, AIR 1996 SC 1864 case, the Court held that the tribals, who are governed by their own customs and the custom various from people to people and religion to religion, codified Hindu Law does not apply to them.
In Dasrath Nath v. Gura Bewa, AIR 1972 Ori. 78 case, the Court held that the question whether a tribe is sufficiently Hinduised and hence governed by Hindu Law or not is a mixed question of fact and law, cannot be raised in the second appeal.
Sub-section (3) of section 2 further provides that the expression “Hindu” would include a person who though not a Hindu by religion is a person to whom the Act applies by virtue of the provisions contained in this section. A person may not be follower of Hinduism and may also not belong to the Muslim, Parsi, Jew or Christian religion, may be an atheist, and may profess a religion which is not either of these would be governed by Hindu Law unless it is proved that before the passing of the Act he was not governed by Hindu Law.
In Satish Chandra Vs. Bagran Brahma, AIR 1973 Gau. 76 DB case, the parties belonged to Boro Borokachari tribe in Assam, it was held that Hindu Succession Act does not apply but the old Hindu law doctrines of Bengal school that widow would take a limited estate and gift would not create any right in the donee, would apply to them.
In Baghyavathu v. Lakshmi Kanthammal, AIR 1993 Mad. 346 case, the Court held that dancing women(devadasis) or Hindu prostitutes, their customs and manners and observances are of Hindus, therefore Hindu Law would be applicable to them.
Meaning of Customs and Usage:
Section 3: The Hindu Adoptions and Maintenance Act, 1956:
Definitions- In this Act unless the context otherwise requires-
(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family; Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;
Section 3(a) of the Act define custom and usage. The following are the requirements of a valid custom
- The custom should be ancient or of long duration.
- Custom should be continuous and uniform
- Custom should be reasonable
- Custom should be certain
- Custom should not be immoral or opposed to public policy
- Custom should not be opposed to express Provisions of Law
Kinds of Custom
The customs are of the following kinds
- Local custom
- Caste or community custom
- Family custom
When the existence of custom is pleaded it has to be proved like any other fact
Overriding Effect of the Act:
Section 4: The Hindu Adoptions and Maintenance Act, 1956:
Overriding effect of Act- Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
Section 4 (a) abrogates “texts” of Hindu law. The texts of Hindu law will include “the Sruitis, Smritis (Dharmasurtras and Dharmashastras), commentaries, Nibandhas, and Digests. The term “rule” will include all textual and non-textual rules of Hindu law. Under this Section, this Act prevails over any text or rule of Hindu law or any custom or usage which ceases to have effect with respect to any matter for which provision is made in this Act. The term “interpretation” will include all those rules which have been laid down by the process of interpretation of textual and non-textual Hindu law. If a matter is not covered by the Act, it will not cease to have an effect.
Under Section 4(b) of the Act, other law shall cease to apply only so far as it is inconsistent with any provisions of this Act. Thus, the old customary law related to adoption and the various types of secondary sons which were recognized during the ancient period ceased to exist.
The Hindu Adoption and Maintenance Act abrogates all pre-Act customs and usage pertaining to adoption. Custom is preserved only in two areas
- A married child can be adopted if custom permits such an adoption, and
- A child of fifteen or above can be adopted if custom permit such an adoption.
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