Application of Hindu Law — Who is a Hindu (Section 2 HMA)

Section 2 of the Hindu Marriage Act, 1955 — and the parallel Section 2 of the Hindu Succession Act 1956, the Hindu Adoptions and Maintenance Act 1956, and the Hindu Minority and Guardianship Act 1956 — answers the threshold question on which every other rule depends: to whom do these four codified Acts apply? The answer is wider than the word "Hindu" suggests in ordinary usage. The Acts apply to Hindus by religion, but they also apply to Buddhists, Jains and Sikhs, to Arya Samajis, Brahmo Samajis, Prarthana Samajis, Virashaivas and Lingayats, and to converts and re-converts. They apply, in a residual clause, to anyone who is not a Muslim, Christian, Parsi or Jew by religion and who is domiciled in India. They do not apply to the Scheduled Tribes unless the Central Government so notifies.

This chapter sets out the personal scope of the four codified Acts in the order Section 2 itself uses. It explains the three positive tests — Hindu by religion in any of its forms, member of a related faith deemed to be Hindu, or born of Hindu parentage. It then sets out the residual negative test for any other person not falling outside the personal-law net. It identifies the sects expressly named in the Act, the position of converts and re-converts, the rule on illegitimate children of mixed parentage, and the special exclusion of Scheduled Tribes. Finally, it explains how the same Section 2 frame governs the application of the Hindu Succession Act, the Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act.

The structure of Section 2

Section 2(1) of the HMA is in three lettered clauses, and the section as a whole has three sub-sections. Sub-section (1) lays down the three positive tests of who is a person to whom the Act applies. Sub-section (2) excludes the Scheduled Tribes unless the Central Government otherwise directs. Sub-section (3) clarifies that the expression "Hindu" in the Act includes a person who is a Hindu by religion in any of its forms or developments — including the named reform sects — and any person who is a Buddhist, Jaina or Sikh by religion. The Explanation to sub-section (1) defines who counts as a Hindu, Buddhist, Jaina or Sikh "by religion" for the purposes of clause (a) and clause (b).

The three positive tests under Section 2(1)

The Act applies, by force of Section 2(1), to three categories.

1. Section 2(1)(a) — Hindu by religion in any form or development. This covers a person who is a Hindu by birth and continues to follow the religion. It includes any of the recognised forms or developments of Hinduism — Vaishnavism, Shaivism, Shaktism, Smartism — and the Explanation extends "Hindu by religion" to include a person who is a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj.
2. Section 2(1)(b) — Buddhist, Jaina or Sikh by religion. This is the famous "deeming" clause. The Act treats Buddhists, Jainas and Sikhs as persons to whom it applies, even though it does not regard them as Hindu in religion. As the codified scheme puts it, they are persons "who, though not a Hindu by religion, are nevertheless persons to whom this Act applies". The same statutory frame is repeated in the HSA, HAMA and HMG. Any aspirant writing on Hindu law involving a Sikh, Buddhist or Jain marriage must therefore flag at the outset that the Act applies by force of Section 2(1)(b), not because the parties are Hindus.
3. Section 2(1)(c) — the residual category. The Act applies to "any other person domiciled in the territories to which this Act extends 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". This residual clause picks up tribal Hindus outside the Sixth Schedule, persons of unknown religion, and atheists who would otherwise have been governed by Hindu law. The burden of taking a person out of clause (c) rests on the party asserting the exclusion.

The Explanation — by birth or by either parent

The Explanation to Section 2(1) defines who is to be treated as Hindu, Buddhist, Jaina or Sikh "by religion" for purposes of clauses (a) and (b). It draws on three sub-clauses.

1. Clause (a) — both parents Hindu. Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion is treated as a person of that religion.
2. Clause (b) — one parent Hindu, brought up as Hindu. Any child, legitimate or 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, is treated as a person of that religion. The double requirement — one parent plus actual upbringing — was applied by the Kerala High Court in Krishnakumari Thampuran v. Palace Administration Board, Kalikotta Fort, AIR 2009 Ker 122 to deny HMA application to children of a Muslim father and a Hindu mother who were never brought up as Hindus.
3. Clause (c) — convert or re-convert. Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion is treated as a person of that religion. There is no required ceremony of conversion in the statute itself; the courts have read the Explanation broadly to cover any honest, voluntary act of acceptance, demonstrated by conduct.

The named sects — Arya Samaj, Brahmo, Prarthana, Virashaiva, Lingayat

Section 2(3) and the Explanation expressly include five named groups within "Hindu by religion":

• Arya Samajis — followers of the reform movement founded by Swami Dayananda Saraswati. The Arya Marriage Validation Act 1937 had earlier validated Arya inter-caste marriages; the HMA now subsumes this validation.
• Brahmo Samajis — followers of the Brahmo Samaj founded by Raja Ram Mohan Roy. The Special Marriage Act 1872 had been enacted partly for Brahmos who did not wish to marry under personal law; today they fall within Section 2 HMA.
• Prarthana Samajis — the Maharashtrian reform movement on similar lines.
• Virashaivas — the Lingayat-related Karnataka community.
• Lingayats — separately named, although they overlap with Virashaivas. The continuing legal-political question whether Lingayats are a separate religion is not relevant for HMA purposes; they are within Section 2 by express inclusion.

Note one practical point. The Sikh, Buddhist and Jain communities are not included as forms of Hinduism. They are included as separate religions within the personal-law net by clause (b) of Section 2(1). The Constitution itself, in the proviso to Article 25(2), refers to Hindu, Buddhist, Jain and Sikh communities for the limited purpose of caste-based temple-entry reform — without any implication that the four are one religion. The Acts of 1955–56 follow that constitutional pattern.

Conversion and re-conversion to Hinduism

Hindu jurisprudence has classically been ambivalent about conversion into Hinduism. Hinduism, as the orthodox view holds, is a faith into which one is born; the older Smritis recognise no formal ceremony of acceptance. The Explanation to Section 2(1) cuts through this orthodoxy by including converts and re-converts. The Supreme Court in Perumal Nadar v. Ponnuswami Nadar, AIR 1971 SC 2352 settled the working test: a person can become a Hindu by an honest act of free will accompanied by conduct unequivocally expressing acceptance — formal ceremonies (suddhi for re-conversion, ritual purification, declaration before a Hindu congregation) help but are not legally indispensable.

For re-conversion the courts have applied a slightly more liberal test in cases involving Scheduled Caste status. In C.M. Arumugam v. S. Rajgopal, AIR 1976 SC 939 the Supreme Court accepted the doctrine that a person who, after conversion to another religion, sincerely returns to Hinduism and is accepted back by the community, regains his original Hindu status — and accordingly his Scheduled Caste class membership. This dovetails with the constitutional rule that only Hindus, Buddhists and Sikhs may be members of the Scheduled Castes.

Children of mixed parentage

The combined rule on children of mixed parentage is straightforward in statement and difficult in application. If both parents are Hindus (or Buddhist, Jain or Sikh), the child is a Hindu. If one parent is Hindu and the other is not, the child is treated as Hindu only if brought up as a member of the Hindu (or Buddhist, Jain, Sikh) parent's community. The actual upbringing — schooling in the religion, observance of festivals, names given, social acceptance — has to be pleaded and proved. The Madras and Andhra Pradesh High Courts have on several occasions refused HMA application to children of inter-religion marriages where the upbringing test was not satisfied.

An HMA marriage between two Hindus is valid by Section 5 read with Section 2; a marriage between a Hindu and a non-Hindu performed in Hindu form is a nullity. The Supreme Court so held in Gullipilli Sowria Raj v. Bandaru Pavani, (2009) 1 SCC 714, where the marriage of a Christian man to a Hindu woman performed by Hindu ceremonies was declared void. The same conclusion was reached in Margaret Palai v. Savitri Palai, AIR 2010 Ori 45 for the marriage of a Christian woman to a Hindu man under Hindu rites. The application question — whether both parties are persons to whom the Act applies — is logically prior to all the other conditions for a valid marriage in Section 5.

The Scheduled Tribes exclusion — Section 2(2)

Section 2(2) of the HMA says that nothing in the Act applies 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. The same exclusion appears in Section 2(2) HSA, Section 3(2) HAMA, and Section 3(2) HMG. It protects the customary law of those tribes — Naga, Mizo, Khasi, Jaintia, Garo, and the many smaller communities — that the Constitution itself shields under the Sixth Schedule.

The Supreme Court in Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938 held that a person belonging to a Scheduled Tribe is not governed by the HMA and therefore cannot be prosecuted for bigamy under the Act. The proper question is what the customary law of the tribe says — which must be specifically pleaded and proved. A custom against bigamy, even if alleged to exist, will not bring the parties under the HMA.

The exclusion is, however, not absolute. The Central Government has power to extend the Act to particular Scheduled Tribes by notification. And the parties themselves can opt into the wider Special Marriage Act 1954, which requires no community membership.

Domicile, citizenship and territorial extent

Section 1(2) of the HMA extends the Act to the whole of India — formerly with the exclusion of Jammu and Kashmir, an exclusion that has lapsed after the constitutional changes of 2019. The Act "applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories". The pivot is therefore domicile, not citizenship. A Hindu by religion who is a citizen of India but domiciled abroad permanently is outside the Act; an Indian-domiciled Hindu temporarily abroad is inside.

The residual clause (c) of Section 2(1) requires both that the person be a person to whom Hindu law would have applied if the Act had not been passed, and that he be domiciled in the territories to which the Act extends. Domicile of origin and domicile of choice both count. The Supreme Court in matrimonial cases of NRIs has consistently treated Indian-domiciled spouses as governed by the HMA wherever they may be at the date of solemnisation.

Effect of conversion away from Hinduism

Conversion out of Hinduism takes the convert outside the personal-law net of the four Acts in respect of acts done after the conversion. A Hindu who converts to Islam ceases to be governed by the HMA in respect of any subsequent marriage; a Hindu who converts to Christianity is governed for matrimonial matters by the Indian Christian Marriage Act 1872 and the Divorce Act 1869. The status acquired before conversion is, however, preserved by the Caste Disabilities Removal Act 1850 — so the convert does not forfeit property rights or rights of inheritance accrued before the conversion.

One important practical consequence is that conversion is a ground for divorce under Section 13(1)(ii) HMA — "has ceased to be a Hindu by conversion to another religion". The Supreme Court in Sarla Mudgal v. Union of India, AIR 1995 SC 1531 and reaffirmed in Lily Thomas v. Union of India, AIR 2000 SC 1650 held that a Hindu husband who converts to Islam and contracts a second marriage during the subsistence of the first commits the offence of bigamy under Section 494 IPC (now Section 82 BNS). Conversion does not dissolve the existing Hindu marriage; the only proper route is a decree of divorce under Section 13. The Sarla Mudgal rule is one of the most-cited illustrations of how Section 2 of the HMA — the application provision — interacts with the substantive grounds of dissolution to police boundary-crossing between personal-law systems.

The same frame across all four Acts

Section 2 of the HMA is the template for Section 2 HSA, Section 2 HAMA, and Section 3 HMG. The wording is substantially identical. In each, the same three positive tests, the same residual clause, the same Explanation on parentage and conversion, and the same Scheduled Tribes exclusion appear. There are minor terminological differences — the HSA uses "intestate" and "testator" terminology, the HAMA carries its own definition of "adoption" — but the personal-scope provision is the same.

This uniformity is doctrinally important. A person who is a Hindu for the purposes of HMA is also a Hindu for the purposes of HSA, HAMA and HMG. A finding that a particular person is governed by the HMA settles the question whether the same person's intestate succession is governed by the HSA, whether his power to adopt arises under HAMA, and whether his minor child's guardianship is under the Hindu Minority and Guardianship Act.

Effect on the school distinction and on uncodified Hindu law

Section 2 governs the application of the codified Acts. It does not, by itself, decide which school of Hindu law — Mitakshara or Dayabhaga — applies to questions outside the codified Acts. For those questions, the territorial test applies: a Hindu in Bengal or Assam is governed by Dayabhaga; elsewhere by Mitakshara, with the relevant sub-school depending on region. The interaction is straightforward: codified Acts apply to all Section-2 Hindus across India (with the Scheduled Tribes exclusion); uncodified Hindu law on coparcenary, joint family property and partition continues to be governed by the school of the parties' region, except where the codified Acts (most importantly Section 6 HSA after 2005) override.

Illegitimate children, posthumous children, and the Hindu undivided family

The Explanation expressly applies to legitimate and illegitimate children alike. An illegitimate child of a Hindu father by a Hindu mother is a Hindu — and is entitled, as Section 16 HMA recognises in the context of children of void or voidable marriages, to legitimacy for the purpose of inheritance from the parents. The Supreme Court in Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1 and again in the Constitution Bench reference of 2023 has expanded this to extend such children's rights to ancestral property of the parents under the post-2005 Section 6 HSA — a question still being worked out in the case law on the devolution of coparcenary property.

A posthumous child — one in the womb at the time of the father's death — is treated for inheritance purposes as if born before the father's death, by virtue of Section 20 HSA. The child's status as a Hindu is governed by the Explanation: parentage at conception is what matters, and the child takes the religion of the parents. The same rule extends to children adopted under the Hindu Adoptions and Maintenance Act — the adopted child takes the religious status of the adoptive parents from the moment of adoption.

For the purposes of membership of a Hindu undivided family, the test is the same Section 2 test. A Hindu by religion, a Buddhist, Jaina or Sikh by religion, and a person within the residual clause are all capable of being members of a HUF. Conversion of a member to Islam, Christianity, Parsi or Jewish religion takes him out of the HUF — the Caste Disabilities Removal Act 1850 protects his individual property rights from forfeiture but does not preserve his coparcenary interest in his original community.

The exam frame — five questions before applying any HMA rule

For any fact-pattern raising a Hindu personal-law issue, ask the following five questions in order before applying the substantive rule. (i) Is each party a Hindu, Buddhist, Jain or Sikh by religion under Section 2(1)(a) or (b)? (ii) If not, does the residual clause (c) apply — is the party domiciled in India and not a Muslim, Christian, Parsi or Jew, and would Hindu law have governed him absent the Act? (iii) If a party is a child, are both parents within the personal-law net, or is the one-parent-plus-upbringing test under the Explanation satisfied? (iv) Has there been conversion or re-conversion to Hinduism, supported by an honest act of acceptance? (v) Is either party a member of a Scheduled Tribe, and has the Central Government issued a notification under Section 2(2) extending the Act to that tribe?

Only after all five are answered in the affirmative for both parties can the substantive provisions — the conditions for a valid marriage, the grounds for divorce, the rules of intestate succession — be applied. Skipping the application question is the most common error in fact-pattern answers; it is also the question on which the Supreme Court has repeatedly nullified marriages and reversed judgments. For the doctrinal background to the codified Acts and the uncodified residue, see the chapter on sources of Hindu law; for navigation across all subjects, the Hindu Law notes hub indexes every chapter by Act and doctrinal cluster.

Frequently asked questions

Are Sikhs, Buddhists and Jains considered Hindus under the Hindu Marriage Act?

No. The Hindu Marriage Act does not regard Sikhs, Buddhists or Jains as Hindus by religion. Section 2(1)(b) brings them within the personal-law net of the Act by a deeming provision: they are persons "who, though not a Hindu by religion, are nevertheless persons to whom this Act applies". The same frame is used in the Hindu Succession Act, the Hindu Adoptions and Maintenance Act, and the Hindu Minority and Guardianship Act. The Constitution similarly references the four communities together in the proviso to Article 25(2) for the limited purpose of caste-based temple-entry reform, without treating them as one religion.

Can a Christian marry a Hindu under the Hindu Marriage Act?

No. The Supreme Court in Gullipilli Sowria Raj v. Bandaru Pavani (2009) 1 SCC 714 held that a marriage of a Christian man to a Hindu woman solemnised in Hindu form is a nullity in law, because the HMA applies only between two persons each of whom is Hindu within Section 2. The Orissa High Court in Margaret Palai v. Savitri Palai, AIR 2010 Ori 45 reached the same conclusion for a Christian woman married to a Hindu man under Hindu rites. The proper route for an inter-religion marriage is the Special Marriage Act 1954, which requires no common religious community.

Is a child of a Hindu father and a Muslim mother automatically a Hindu?

No. The child is a Hindu under the Explanation to Section 2(1) only if (a) he is brought up as a member of the Hindu parent's community and (b) the parent is a Hindu by religion. The Kerala High Court in Krishnakumari Thampuran v. Palace Administration Board (2009) refused HMA application to children of a Muslim father and Hindu mother who were never brought up as Hindus. The double requirement — one parent in the personal-law net plus actual upbringing in that community — must be satisfied. Pleadings and evidence of religious upbringing are essential.

Does the Hindu Marriage Act apply to members of Scheduled Tribes?

No, unless the Central Government issues a notification under Section 2(2). The exclusion protects the customary law of Naga, Mizo, Khasi, Jaintia, Garo and other Scheduled Tribes whose customary systems are independently safeguarded under the Sixth Schedule. The Supreme Court in Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938 held that a person belonging to a Scheduled Tribe is not governed by the HMA and cannot be prosecuted for bigamy under the Act. The proper question is what the tribe's customary law says — which must be specifically pleaded and proved.

Can a person become a Hindu by conversion?

Yes. The Explanation to Section 2(1)(c) brings converts and re-converts to Hinduism within the Act. The Supreme Court in Perumal Nadar v. Ponnuswami Nadar, AIR 1971 SC 2352 held that a person can become a Hindu by an honest act of free will accompanied by conduct unequivocally expressing acceptance. No specific ceremony is statutorily required, though formal acts (suddhi, ritual purification, declaration before a Hindu congregation) help. For re-conversion to regain Scheduled Caste status the courts have followed C.M. Arumugam v. S. Rajgopal, AIR 1976 SC 939 — sincere return to Hinduism and acceptance back by the original community restore the original status.

What is the residual clause in Section 2(1)(c) of the Hindu Marriage Act?

Section 2(1)(c) extends the Act to "any other person domiciled in the territories to which this Act extends 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". This residual clause picks up tribal Hindus outside the Sixth Schedule, atheists, and persons of unknown or unspecified religion who would otherwise have been governed by Hindu law. The burden of proving exclusion rests on the party asserting it.