( ARTICLE ON FAMILY LAW )

BY

Disha Roy- (18FLICHH010255)

BBA-LLB

Siddhant Kumar -(18FLICHH010151)

BBA-LLB
ABSTRACT

The word given by the Greeks, then the Persians, to refer to the land and peoples beyond the Indus
(or Sindhu) River later came to be known as Hindu. The term "Hinduism" came into common
use only in the 19th century. Again, the term was used originally by outsiders to describe the
“ism” of the Hindus and, eventually, by Hindus to differentiate themselves from Muslims and
others. At best, it describes a complex and dynamic pattern of life and practice. The Hindu
tradition is more an ethos than a set of beliefs; it is a complex social system and an elaborately
articulated religious sensibility.

INTRODUCTION

The people who today call themselves “Hindus” have many forms of practice, both in India and
around the world. The brahmins of Banaras and the businessmen of Boston, the ascetics and yogis
of the Himalayas and the swamis of Pennsylvania, the villagers of central India and the
householders of suburban Chicago all have their religious ways. Some Vaishnavas honour Lord
Vishnu or Lord Krishna, Shaivas who honour Lord Shiva, Shaktas who honour the Goddess. On
the whole, none considers the other a heretic. While there has occasionally been a conflict
between people of different religious ways, for the most part, all worship in one another’s
temples. Indeed, some of today’s newest temples, whether in New Delhi or Nashville, include the
whole spectrum of Hindu deities under one roof.

Key Words:-
& - And
AIR - All India Reporter
Anr. – Another
SC - Supreme Court
SCC- Supreme Court cases
v. – Versus
Ors - Others
The Religion From The River

The word given by the Greeks, then the Persians, to refer to the land and peoples beyond the Indus
(or Sindhu) River later came to be known as Hindu. The term “Hinduism” came into common use
only in the 19th century. Again, the term was used originally by outsiders to describe the “ism1”
of the Hindus and, eventually, by Hindus to differentiate themselves from Muslims and others.
The people who today call themselves “Hindus” have many forms of practice, both in India and
around the world. The brahmins of Banaras and the businessmen of Boston, the ascetics and yogis
of the Himalayas and the swamis of Pennsylvania, the villagers of central India and the
householders of suburban Chicago all have their religious ways. Some Vaishnavas honour Lord
Vishnu or Lord Krishna, Shaivas who honour Lord Shiva, Shaktas who honour the Goddess. On
the whole, none considers the other a heretic. While there has occasionally been a conflict
between people of different religious ways, for the most part, all worship in one another’s
temples. Indeed, some of today’s newest temples, whether in New Delhi or Nashville, include the
whole spectrum of Hindu deities under one roof.

Despite the sectarian diversity, there are Hindu assumptions about life that do have common,
although not universal, currency: the universe is permeated with the Divine, a reality often
described as Brahman; the Divine can be known in many names and forms; this reality is deeply
and fully present within the human soul; the soul’s journey to full self-realization is not
accomplished in a single lifetime, but takes many lifetimes; and the soul’s course through life
afterlife is shaped by one’s deeds.

Hinduism today is the world's third most popular religion, with around 900 million followers.
The real essence of a Hindu remains unknown to many. What do Hindus seek? What is the
purpose of being a Hindu still are some of the many questions that Hindus today don't seem to
care about? Hinduism is practised by more than 80% of India's population. Therefore
establishing itself as the basic religion of the nation.

1
Philosophy
“By whatever name and form the devotee worships me with love, I appear to the devotee in
that form.” This is what Krishna replies to Arjun when he asks “Hey Sakha if God is only one
how come there are so many different idols”.Nowhere in the Vedas the foundational texts of
Hindu theology do one find the word Hindu. Rather, “Hindu” is the name given to the people
living beyond the banks of the Sindhu or the Indus River, in what was known as the Indus valley
civilisation. Hindus refer to their religion as Sanatan Dharma, the eternal way of life. This way of
life encompasses everything from a philosophical understanding of the nature of the universe
and our role in it, to treatises on science, math, music, architecture and medicine.
The “religion” of Hinduism, if one wanted to attempt to neatly box it up, could be said to include
several components.

The first of these is inclusivity. Hinduism excludes almost nothing. The arms of Hinduism are
immeasurably long and embrace innumerable names, forms and concepts of the Divine.
However, worshippers of varying Divine manifestations all agree on one essential component: the
Supreme Reality is infinite, omniscient, omnipresent, and knowable by all names.

As God is infinite and all of creation a manifestation of the same Creator, Hindus see the whole
world as one family. The scriptures state clearly: Vasudhaiv Kutumbakam, or “The world is one
family.” Hindu prayers are prayers for all; Hindus don’t pray for Hindus or Indians. Rather,
Hindus pray,

Save santu niraamayaah

Maakaschit duhkha bhaag bhavet

Another aspect is that of a personal relationship with God. Regardless of the name, form in which
a Hindu believes, he or she is encouraged to have a personal connection with that particular form.
The God of Hinduism is a God who is knowable, approachable, infinite and yet fully prepared to
incarnate in material form, a God to whom our food, water, earnings and lives are dedicated.

Ishaavaasyam idam sarvam

It means the entire universe is pervaded by the divine. That same all-pervasive Supreme Reality
manifests in infinite forms with infinite names. In the Bhagavad Gita, Krishna explains
beautifully, “By whatever name and form the devotee worships me with love, I appear to the
devotee in that form.”
Stemming from the tenet of an all-pervasive God, one of the core components of the Hindu
tradition is service, seva, or karma yoga. Hinduism teaches us to see God in the poor, sick, and
needy; the tradition is filled with stories of God appearing as an unexpected guest or a beggar.

As the traditional name of Hinduism is Sanatan Dharma or “eternal way of life” the tenets and
principles of Hinduism are not relegated only to worship or prayer. Rather, Hinduism informs
every aspect of our lives from the moment we awaken to the moment we sleep. There are shastras
and sutras for nearly every component of life, as well as for architecture, medicine, science, math
and music.

Another central and unique aspect of Hinduism is an emphasis on the divine feminine, or Shakti,
as the essential energy and force through which creation, sustenance and dissolution are
performed. Worship of the Divine Mother – whether in Her nurturing, compassionate form or
Her fierce, fiery form – is a common thread that weaves through the entire tapestry of Hinduism.
The Supreme Court of India defined the features of a Hindu in its 1995 ruling of the case,
Bramchari Sidheswar Shai and others V. State of West Bengal.2

1. Acceptance of the Vedas with reverence as the highest authority in religious and
philosophic matters and acceptance with reverence of Vedas by Hindu thinkers and
philosophers as the sole foundation of Hindu philosophy.
2. Spirit of tolerance and willingness to understand and appreciate the opponent’s point of
view based on the realization that truth was many-sided.
3. Acceptance of great world rhythm, a vast period of creation, maintenance and dissolution
follow each other in endless succession, by all six systems of Hindu philosophy.
4. Acceptance by all systems of Hindu philosophy, the belief in rebirth and pre-existence.
5. Recognition of the fact that the means or ways to salvation are many.
6. Realization of the truth that Gods to be worshipped may be large, yet there being Hindus
who do not believe in the worshipping of idols.
7. Unlike other religions or religious creeds Hindu religion not being tied-down to any
definite set of philosophic concepts, as
such.

2
1995 AIR 2089, 1995 SCC (4) 646
When the question of who is a Hindu is discussed today, we get a multitude of confused and
contradictory answers from both Hindu laypersons and Hindu leaders. That we have such a
difficult time understanding the answer to even so fundamental a question as "Who is a Hindu?"
is a starkly sad indicator of the lack of knowledge in the Hindu community today. Below are some
thoughts on the topic collated from a speech by Sri Dharma Pravartaka Acharya.

Some of the more simplistic answers to this question include: Anyone born in India is
automatically a Hindu (the ethnicity fallacy), if your parents are Hindu, then you are Hindu (the
familial argument). If you are born into a particular caste, then you are Hindu (the genetic
inheritance model), if you believe in reincarnation, then you are Hindu (forgetting that many non-
Hindu religions share at least some of the beliefs of Hinduism). If you practice any religion
originating from India, then you are a Hindu (the national origin fallacy). The real answer to this
question has already been conclusively answered by the ancient sages of Hinduism and is much
simpler to ascertain than we would guess.

If we ask the question what is a Jew?, for example, the answer is: someone who accepts the Torah
as their scriptural guide and believes in the monotheistic concept of God espoused in these
scriptures. What is a Christian? - A person who accepts the Gospels as their scriptural guide and
believes that Jesus is the incarnate God who died for their sins. What is a Muslim? - someone who
accepts the Qur'an as their scriptural guide, and believes that there is no God but Allahand that
Mohammed is his prophet.

In general, what determines whether a person is a follower of any particular religion is whether or
not they accept, and attempt to live by, the scriptural authority of that religion. This is no less true
of Hinduism than it is of any other religion on earth. Thus, the question of what is a Hindu is
similarly very easily answered.

By definition, a Hindu is an individual who accepts as authoritative the religious guidance of the
Vedic scriptures, and who strives to live in accordance with Dharma, God's divine laws as
revealed in the Vedic scriptures. In keeping with this standard definition, all of the Hindu
thinkers of the six traditional schools of Hindu philosophy (Shad-darshanas) insisted on the
acceptance of the scriptural authority of the Vedas (shabda-pramana) as the primary criterion for
distinguishing
a Hindu from a non-Hindu, as well as distinguishing overtly Hindu philosophical positions from
non-Hindu ones. It has been the historically accepted standard that, if you accept the Vedas (and
by extension Bhagavad Gita, Puranas, etc.) as your scriptural authority, and lived your life in
accordance with the Dharmic principles of the Vedas, you are then a Hindu. Thus, an Indian who
rejects the Veda is not a Hindu. While an American, Russian, Indonesian or Indian who does
accept the Veda is a Hindu.

The reference to the Supreme Court describing Hinduism as a "way of life" is a tad slant and
obfuscatory, if not considered in the context of which it was said. The conclusion is based on the
following judgments of the SC:

 Sastri Yagnapurushadji And ... vs Muldas Brudardas Vaishya And ...on3: The case pertained to
the question: Whether the Swaminarayan Sect is distinct from Hindu religion? The case
delves into the historical analysis of the word "Hindu", refers to Encyclopaedias, refers
to various "basic tenets" of Hinduism (attainment of Moksha, lack of a Prophet,
superiority of Vedas, etc.) and is an interesting read. However, the crux of the issue was
not adjudication over the nature of Hinduism but whether Swaminarayan Sect belongs
outside the Hindu religion. Additionally, such observations of the court that do not
directly effect the judgement of the court are referred to as obiter dicta and are non-
binding.

 Commr. Of Wealth Tax, Madras & Ors v. Late R. Sridharan By L.Rs4: The issue
involved assessment of Income Tax of a family consisting of a Hindu husband, his
Christian wife and their child. While discussing the religion of the child, the judgement
veers to a lengthy (and unwarranted) discussion of Sastri Yagnapurushadji to rightly
conclude that the child is a Hindu for he has been brought up by the family as one.
 Dr Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte5, 1995: This
judgement is a hotly-debated one. The facts relate to the declaration of a political candidate

3
1966 AIR 1119, 1966 SCR (3) 242
4
29 April 1976 Bench: A.N. Ray, C.J., Jaswant Singh, M.H. Beg, P.N. Shinghal, R.S. Sarkaria

5
1996 AIR 1113, 1996 SCC (1) 130
in his affidavit that he believes in Hindutva. The Apex Court concludes: "the mere fact
that these words (Hindutva or Hinduism) are used in the speech would not bring in
within the prohibition of sub-section (3) or (3A) of Section 123 [of the Representation
of Peoples Act, 1951]. It may well be that these words are used in the speech to promote
secularism and to emphasize the way of life of the Indian people and the Indian culture
or ethos, or to criticize the policy of any political party as discriminatory or intolerant."
The facts reveal that during a meeting between Ramesh Prabhoo and Balasaheb
Thackeray, the latter proclaimed: ""We are fighting this election for the protection of
Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs
to Hindus and will remain so." A similar trend was witnessed in other speeches during
the election campaign. The court discusses Hinduism and Hindutva and holds that
reference to the two doesn't ipso facto make the speech hostile towards other religions.;
the intended meaning and the nature of the audience needs to be considered.
Interestingly, the court also states: "Fundamentalism of any colour or kind must be
curbed with a heavy hand to preserve and promote the secular creed of the nation. Any
misuse of these terms must, therefore, be dealt with strictly."
The above judgements reveal that the SC hasn't directly decided upon the nature of
Hinduism; doing so would be dehors the jurisdiction of the Court. The SC is an
adjudicatory body constituted for dealing with legal matters. It's empowered only to
decide matters brought before it and not pass its general opinion regarding religious
matters. Any such observation should thus be construed in the context in which it was
said.
The Indian Constitution posits a separation between a secular domain regulated by the
State, and a religious domain in which it must not interfere. However, courts of law are
regularly called upon to resolve a multiplicity of issues related to religion, and their
decisions may have a far-reaching impact on religious conceptions and practices. The
judicial process requires that standardized, clear-cut definitions of many notions (such
as “religion” itself, or “worshipper,” “custom,” “usage,” “religious service,” "religious
office," "religious honour," etc.) be established in order for them to be manageable
within a legal context. Moreover, even though a religious domain may be distinguished
from a secular one and protected from State intervention, there are litigations
concerning civil rights that involve religious issues on which civil courts may, therefore,
have an explicit duty to rule. Interventions such as imposing legal definitions or
deciding on religious matters on which civil rights depend are systemic and intrinsic to
“modern” law itself. In this they do differ from any explicit policy of state secularism
or the no less explicit reformist will of some judges, which may change according to
the historical period or to their dispositions. This paper comments on several judgments
from the upper courts of India chosen from the end of the nineteenth century to the
present day, with a view to discussing the disputed limits of this judicial intervention
and the resulting entanglement between law and religion.
There is considerable scholarship on relationships between law and religion in India,
which has followed various lines of enquiry. Authors have pointed out the legacy of
British policies in taking over the management of religious institutions in the name of
administrative rationalization; the history and political consequences of Private Laws;
the Constitutional protection and regulation of the freedom of religion (Articles 25 and
26); the role of the Courts in implementing this Constitutional mandate; or the reformist
agenda that some judges may try to promote. In the first part of this paper, I sum up
the aspects of these studies that mainly pertain to politics of secularism concerning
Hindu temples. Then, in a second section, I turn to the comparatively less explored
issue of the impact on religious practices of the mere imposition of legal categories
and requirements. How does the legal process by itself and beyond any particular
policies, beyond even a secularist agenda, shape religious practices (Hindu, Muslim,
Christian)? While acknowledging that such legal “determinism” is completely
entangled in general policies or judges’ personal values, I nevertheless wish to point
out a few systemic properties of modern law that have a decisive effect in shaping
religion although my argument also applies to Islam and Christianity, my study focuses
on Hinduism.
Although India presents features of its own, many issues are common to secular states
throughout the world where legal conceptions of religion are anchored in the distinction
the law makes between “private” and “public” domains. This was already the case in
India during British rule and was subsequently reinforced in the Constitution after
Independence. The “Fathers of the Constitution,” according to a former Chief Justice of
India, “placed the individual at the centre of the Constitutional scheme” (Bhagwati
 2005:40),5though not without a debate (Dhavan 1987:209). As far as religion is
concerned, the Preamble to the Constitution ensures all citizens the liberty of “thought,
expression, belief, faith and worship”; and Article 25 (1) stipulates that:

(1) Subject to public order, morality and health and the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion—my emphasis) (Constitution of India 1950: Art.25(1))

This individual character of religious freedom has been further developed in various upper
court decisions. For instance, in 1995, the Supreme Court of India referred to Halsbury's
Laws of England (1st ed. 1907, regularly re-edited and updated since then) according to
which "A church is formed by the voluntary association of individuals" and extended this
conception to all religious bodies (Most. Rev. P.M.A. Metropolitan 1995:§35). Society, and
religion, is thus seen as being made up of addition of individuals, a presupposition that is
widely at odds with the holistic view projected by most religious systems: placing the
individual at the center of legal action may foster, by itself, profound changes in religious
attitudes and practices. As Maya Warrier (2003:214) pointed out, secularization, in general,
may be linked to a "retreat of religion from public life":

By secularization I mean therefore a decline in the public, community-affirming and

socially-binding aspect of religion, and a growing trend towards the internalization of faith
such that it is personal choice, inner spiritual striving and self-fulfilment that become central
to religious life rather than the affirmation of shared community orientations, affiliations,
aspirations and identities.

Such an individualistic perspective found its way, for instance, into a definition of religion
given by the High Court of Bombay, which ruled that “whatever binds a man to his own
conscience and whatever moral or ethical principle regulate[s] the lives of men believing in
that theistic conscience or religious belief that alone can constitute religion as understood in
the Constitution”(Ratilal Panachand Gandhi6 ). However, this definition, solely in terms of

6
1952:§4
 conscience, was felt to be ill-adapted to Indian realities and was later broadened by the
Supreme Court in the so-called “Shirur Mutt case7”:

A religion may not only lay down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and modes of worship which are regarded as
integral parts of religion, and these forms and observances might extend even to matters of
food and dress (The Commissioner, Hindu Religious Endowments 1954:1024).

Thus, religious freedom actually extends beyond the individual’s conscience and concerns
public space through the freedom accorded to religious practice, as stated clearly in Article
25 (1) of the Constitution, quoted above, however limited it may be by considerations of
“public order, morality, and health” (a provision common to secular Constitutions
throughout the world). Religious communities are also recognized as such in Article 26 of
the Constitution under the label "religious denomination." While the law, therefore,
acknowledges absolute religious freedom in the intimacy of individuals, it also recognizes
the fact that the expression of this religious freedom may take various public forms, whether
through religious practice or by taking part in religious collectivities and institutions.
Nevertheless, this remains an individualistic perspective according to which society — and
religion—are made up of an addition of persons, with their rights and actions limited by the
public good, a presupposition that is widely at variance from what social science has
reported about the entanglement, if not the indeterminacy, of religious issues with social,
economic, legal, and political relationships.

More specifically with regard to Hinduism, equality for all citizens, as posited by the
Constitution, contradicts views of human nature that are found in many Hindu (upper caste)
traditions, which Coward (2005) summarizes as “presuppositions of karma and guṇa
theory.” As the author develops, “the very idea of ordering society in terms of sattvic purity
of guṇa theory is ruled out by the new Constitution. It is for this reason that D.E. Smith
describes the Constitution as introducing a revolution in traditional conceptions. For
Coward, the inspiration behind this “revolution” is to be traced back to philosophers such as
the Utilitarians (Bentham, Mill) and Locke: “in the Hindu case the Constitution is acting to

7
1954 AIR 282, 1954 SCR 1005
 secularize and reform religion by replacing the karma and guṇa presuppositions with the
Lockean view of human nature” (Coward 2005:64). Even if the “karma and guṇa theory”
might not actually characterize all the traditions that fall under the umbrella of “Hinduism,”
it is certainly the case that the Constitutional framework—its fundamental assumptions
about the individual and equality—profoundly re-orientates the perspectives of many
religions in India, and imposes a legal universe of discourse which is at variance with
widespread conceptions of the position of man and other creatures within an overall divine
order.

The distinction between private and public domains has had other important consequences in
matters of religion: the dissociation of religion, as a private belief and activity, from religious
institutions, many of which are deemed public in character, has allowed the State since British
times to extend its control over these institutions in the name of “rationalizing” their
management.8 This is made clear in Article 25 (2) (a) of the Constitution:

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law—
(a) Regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice—my emphasis) (Constitution of India 1950: article
25(2)(a))

This formulation presupposes the possibility of distinguishing between the “secular” and the
“religious,” which the Constitution does not define however. It has historically fallen on the
Courts to establish, case by case, the activities or situations that were to be considered
"secular"—on which they could pass judgment—and those that were "religious"—outside their
jurisdiction (save some exceptions, as we shall see). They rapidly acknowledged that it could not
be easily done. As Justice Gajendragadkar wrote in 1963 about Hinduism:

It is true that the decision regarding the question as to whether a certain practice is a religious
practice or not, as well as the question as to whether an affair in question is an affair in matters of
religion or not, may present difficulties because sometimes practices, religious and secular, are
inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well
known, under the provisions of ancient Smritis, all human actions from birth to death and most of
the individual actions from day to day are regarded as religious. … Though the task
 of disengaging the secular from the religious may not be easy, it must nevertheless be attempted’
(Tilkayat Shri Govindlalji 1963:622).

Justice Gajendragadkar was a judge known for his reformist views who was brought up in a
family of pandits and was a Sanskrit scholar versed in Vedanta (Gadbois 2011:71). When he was
Chief Justice of India (1964–1966), he put forward in another judgment a rather encompassing
view of Hinduism mostly based on the philosophy of Sarvepalli Radhakrishnan (who was
President of India at the time). While, according to him, establishing “the distinctive features of
Hindu religion” was a near impossible task, he nevertheless found that “monistic idealism … can
be said to be the general distinguishing feature of Hindu Philosophy” (a disputable contention)
and that however diverse Hindu philosophers and thinkers were, they all “accepted the Vedas as
the sole foundation of the Hindu philosophy” (Sastri Yagnapurushadji 1966:262). He added:

Whilst we are dealing with this broad and comprehensive aspect of the Hindu religion, it may be
permissible to enquire what, according to this religion, is the ultimate goal of humanity? It is the
release and freedom from the unceasing cycle of births and rebirths; Moksha or Nirvana, which is
the ultimate aim of Hindu religion and philosophy, represents the state of absolute absorption and
assimilation of the individual soul with the infinite (Sastri Yagnapurushadji 1966:264)

As many studies have pointed out, this type of idealistic characterization of Hinduism has been at
the core of most judgments that have sought to distinguish the (truly) “religious” from the
“secular,” leading to a complete legal filtering of actual practices.

REFERENCES

Magazine & Books

 The Hindu
 Readers Digest
 Akruti
 The Family Law Part I

Acts
 The Hindu Marriage Act 1955
 The Hindu Minority and Guardianship Act(1956)
 The Hindu Adoptions and Maintenance Act (1956)

Websites
 Manupatra