January 3, 2024

Changing trends in Hindu Divorce: a socio legal perspective

This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu University, Varanasi.

Abstract:-

Divorce, how we see it is a recent phenomena and these rights were not won easily as an entire struggle and interaction of different cultures gave birth to these notions of the right of self determination of spouses even after consummation of marriage. The article aims to trace and understand how the Concept of Divorce changed in Indian society with an emphasis on Hindu Divorce rights and aims to provide the social conditions accompanying these changes and what changes the present society is going through. The article concludes with an optimistic conclusion that the cultural civilization benevolent view of marriage continues to exist.

Keywords– Divorce, Hindu Divorce rights, History, contemporary issues

 

Introduction-

The need for laws have always been questioned by several Philosophers, political theorists among others. However, after a time, it became a settled position that an existence of community presupposes existence of laws. This led to the birth of the Latin maxim- ubi societas, ibi jus which

means that wherever there is a society, there is Law. This dominant position of law was however not left unquestioned as new issues came to forefront as what can be regulated and how much? gained

prominence at the outset of the growth of liberalism. While political thinkers such as Locke and John Stuart mill called for a separation between public and private life with utmost scope for private liberty, Marx and Hegel were of the view that everything should be secondary to the law making power of sovereign. At the end, liberalism prevailed as private sphere was left pretty much untouched. However, with the growth of Feminism, demand of and of quote “personal is political” gained traction which led to change in law making process at the global level as new laws were formulated by keeping women as the centre of inspiration for law and policy making exercises. These trends also impacted how laws were formulated in India as with time, more gender sensitivity was introduced in the laws dealing with personal sphere of the citizens. But to appreciate legislative intent along with judicial innovation and how they have changed laws from a mere statute to active weapon for societal change, it is important to analyse the evolution of these laws, but for the scope of this article, we will restrict our analysis to Hindu divorce law to appreciate development of collective consciousness on women empowerment and gender justice with a special on Hindu Divorce rights. 

The period of overall development of Divorce rights cannot easily be divided into periods as being dear to a private citizen, it always remained intertwined by the religious beliefs and was mostly dominated by the same and evolved with the concept of marriage. However, major changes in divorce rights across all religions came in last two centuries where majority of these laws were codified. But a reasonable division of the period of development of Hindu Divorce rights can be done as-

  • Hindu Divorce rights in Ancient period.
  • Hindu Divorce rights in British or pre-Independence period.
  • Hindu Divorce rights after Independence.

 

Hindu Divorce rights during Ancient Period–

Marriage and Divorce are inter-related terms which co-exist and evolve together. But it was not so from the start in Hindu Family jurisprudence. Initially, marriage was considered as a sacred bond which only has its start with no easy end by human means. The earliest evidence supporting this view can be found in Vedas, which had to be recited in presence of God to solemnize the marriage. This time of period is of religious rules as almost all facets of life were dictated by norms or rules, which are believed to be made by the God themselves. Marriage, too was not different as the emphasis of religious beliefs and philosophical thoughts can’t be overstated. Marriage was considered as an indissoluble union of two souls where, contrary to popular belief, a great amount of liberty were given to the female counterparts as they could choose their life partner and existence of patriarchy is generally not evidenced as both men and women were treated equally with respect to responsibilities, rights and duties. However, no evidence of divorce rights exists, making divorce rights non-existent during this period. Whether there was need of these rights or not is a question which can’t be answered in a yes or no manner as some of the features of that society may appear patriarchal to modern observers but whether those conditions at that time was prevalent throughout the society or were just rules dictating a particular section is difficult to answer. Thereby, Vedic period is still full of enigmas as a lot still remains to be answered but looking at the notion of marriage, one can safely conclude that majorly Divorce rights were non-existent especially for women. But soon the landscape of these Divorce rights changed as new school of thoughts sprouted in India. Initially, Vedas were orally transmitted and Brahmins were the one who studied them, however, new commentaries and written laws were made to make it easier for the normal citizen. The prominent one is Manusmriti. Manusmriti does not approved dissolution of marriage in any condition and declared, “Let mutual fidelity continue till death, this in brief may be understood to be the highest dharma of husband and wife. The duty of a wife continues even after her death. She can never have a second husband.” From this, we can also conclude that as far as Manusmriti was concerned, no divorce rights were given to women. The situation of women, overall, remained secondary to Men and their will. However, it was not all prevailing over the society as major Dharmashastras- Narada and Parashar codes of law were also existing at the same time which if compared with Manusmriti, were modern as they enumerated Divorce rights. According to Narada, five grounds given to women for divorce are-

  • Husband was lost and unheard for seven years.
  • Death of husband.
  • Husband renounced the world
  • impotency of husband.
  • When the husband is subjected to punishment on religious grounds.

From existence of these contrary legal interpretation at the same time, it is clear as no individual legal philosophy was able to command clear cut majority. So, the most logical interpretation can be of that Upper caste women such as Brahmin were not having divorce rights while women belonging to Shudras may had divorcing rights and even that was not uniform due to different kingdoms being ruled by different kings who had different bias. Arthashastra by Kautilya, however, was revolutionary at that time as theory of mutual consent for divorce was adopted in the case of unapproved forms of marriage. Kautilya, in his treatise, gave numerous rights and grounds to women to get out off unhappy marriages. Some of the accepted grounds are-

  • Husband’s misconduct with wife.
  • Prolonged absence of husband.
  • Husband was banished.
  • Husband is impotent.
  • Living with husband is dangerous for wife’s life.

Seeing the above mentioned grounds, a striking resemblance with the present grounds as enumerated under Hindu Marriage Act,1955, can be observed. Looking at the evolution of divorce rights in ancient period, it is safe to say that even though sufficient development of divorce rights took place but the overall acceptance remained low. Women, who were divorced or took divorced on their own, were disrespected and stigmatized, making their remarriage a far away dream. Because of which, even though these divorcing rights existed, it were rarely utilized and the idea of indissoluble marriage continued. The advent of Muslim rulers, pretty much kept these notions of marriage intact as the ruling elites intermingled with the local population and as they both were having similar practices and ideologies because of which no major development in divorce rights took place. Thereby, to understand how Hindu Divorce rights developed, learning about the developments in British period is important as major intellectual and societal changes took place during that time which eventually gave substance to the concept of “Divorce” as we know it. 

Divorce during British Rule-

Initially, when Britishers came to India they were reluctant to interfere with the personal laws prevailing in the society as there main motive was their commercial disputes but as they gained territories, a need for regulating personal life was felt to foster their colonial interests. However, but due to the fear of backlash from the prominent sections, Warren Hastings in 1772 made the provision that Muslims should be governed by their religious laws and Hindus should be governed by their religious laws with respect to personal laws where “Hindus” included everyone except Muslim, Christian, Jewish or Parsi. Even though, it was said that no interference would take place in religious and personal matters but looking retrospectively, due to social reform movements and even for administrative purposes, state did interfered in the concerned religious matters leading to a formation of codified law. Britishers, being Christians, saw marriage as a civil and contractual matter which is apparent in the Special Marriage Act, 1872 where provisions for secular marriages were made, which was even supported by the Arya Samaj. This legislation acts as one of the watershed movement, as when seen in the broader scheme of things, that as after 1813, when Christian education began to be imparted to the Indian citizens, a change in societal values started to take place and passing of this legislation and being accepted by the society shows an evident change in societal values about marriage from a “Sacred bond” to a Contractual relation. While a slow change in value can be observed, a contrary step by British to criminalize lower-caste practices of divorce and remarriage for appeasing upper castes raises serious doubts on the overall intent of the Acts so formulated and it’s actual implementation.

However, some lights in the shade too existed, mainly in the field of women’s rights as evidenced by demands for Ban on Sati and Widows Remarriage, which were eventually conceded by the British in the form of Sati Prohibition Act of 1829 and Hindu Widows Remarriage Act,1856. But even after that, discussion of divorce rights at legislative level was feared due to fear of backlash. Because of which the case of Dadaji Bhikaji vs Rukhmabai is a sui-generis where Queen herself allowed the marriage between Dadaji Bhikaji and Rukhmabai on the grounds that wife was minor at the time of marriage and eventually served as the inspiration for the debates on the age of consent in Age of consent bill 1891. The overall debates and societal reaction during the Rukhmabai case showed that society was not ready even at that time to give divorce rights to women as all the courts asked Rukhmabai to either consummate her marriage or face imprisonment. From this it is clear that society at that time was in a transition state where it was shedding its old conservative values while at the same time, was adopting western values of liberty and equality because of which society was ready albeit not easily, to shed some of its conservative practices, but it was not modernized enough to accept some core changes. Therefore, it is safe to conclude that the ancient image of marriage as a sacred union continued even to this time with some individual cases and divorce rights for women were overall not developed much in text and in practice and whatever rights, did exist were in essence, patriarchal.

Divorce rights after Independence–

The last year of Independence movement changed the social position of women as it uplifted them from a mother-figure to forefront freedom fighters. The impact of women on freedom movement was such that Quit India movement was a women dominant movement as many prominent personalities were arrested even before the movement started. This close-working with compatriots gave future political leaders of the Government of Independent India, much required understanding of the needs of the women and backing of the will to bring substantial changes in the legislations. This understanding and believe in equality was evidenced primarily by allowing Universal Adult Franchise, where even in some European countries, franchise was not given till late. Hindu Divorce laws, too were brought into the ambit of this change where a codified Hindu Marriage act was passed in 1955, which also gave clear divorce rights to both the spouses equally and it repealed and replaced Hindu Marriage Act, 1856 which along with Hindu Dharmashastras served as a bedrock for the new law. But the new law is more successful as how women were perceived were different in 19th century and 20th century, in the major backdrop of their active involvement in Independence movements. Hindu Marriage Act,1955 was enacted to unify and codify laws dealing with marriage of Hindu where the term “Hindu” is an inclusive term which includes, Buddhists, Sikhs , Jains and other such person who is not subject to other law applied in India. The grounds for divorce given under the Act are-

  • Bigamy– Initially, bigamy in Hindus were prevalent, however, slowly it was criminalized and when the Hindu Marriage Act, 1955 was passed, it included it as a ground for divorce. This ground is available to both men and women, but in reality, it was a good step for maintaining the dignity of women in society as bigamy not only affected matrimonial status of the women concerned but also affected the societal status of the women concerned.
  • Minor – If anyone of the spouses is minor during the institution of marriage, the spouse have a right to divorce after attaining the age of majority. The affect of Rukhmabai case is evident in it as the age of majority of men is taken as 21 years and for women, it is taken as 18 years of age.
  • Cruelty- To deal with domestic violence, this ground was entered where the definition of cruelty was not restricted to physical cruelty but it also encompassed mental cruelty as a good enough ground for divorce. This ground is inclusive as what constitutes cruelty can change with period of time and this ground can keep up with changing times.
  • Abandonment by the spouse- If the spouse for two years preceding the application deserts the wife and refuses to comply with his/her martial obligations, then divorce can be sought. This was included through the amendment of 1976.
  • Conversion– If one of the spouse changes his religion without the consent of the other, they can ask for divorce.
  • Unsoundness of mind– If the spouse concerned becomes insane, then a divorce can be granted as an insane person is unable to give free consent and is dependent on the other for their basic necessities of life.
  • Leprosy and venereal diseases– One can’t be expected to do something against his or her own welfare. This basic doctrine of self preservation is at the core of this ground as living with the spouse having communicable disease will be detrimental to one’s own health.
  • Renunciation– Hinduism from early periods have sages who left their homes and societal life in pursuit of otherworldly knowledge, keeping this mind, this ground was incorporated to allow the other spouse to continue their role in society without being bounded by non-existent bonds.
  • Presumption of Death– The same reason of that of Renunciation was the bedrock for this ground as it is different from death. An absence of seven years is enough to create a reasonable apprehension about the well-being of the spouse which can be used as ground for divorce.

The law made can easily be said to be inspired by the previous religious and British laws and in its essence, remained a child of its time. Soon it was felt that the need for existence of any of the grounds to be present for divorce is discriminatory and was creating false litigations, even though both of the spouses were eager to end their martial ties. So to fill this void, through amendment of 1976, theory of mutual consent was incorporated in the statute by incorporating section 13B. This section provided for mutual divorce subject to some pre-conditions such as leaving separately for last one year and they are unable to resume their married life and therefore, mutually decided to end the marriage. This amendment made divorces easier as it made scope for divorces to be not bitter and respectful and brought women and men at an equal stage where the idea of marriage as a “civil contract or transaction” started to get a stronghold and the sacred notion which ultimately gave grounds for discrimination for women started to fade away. But in keeping in view, the crimes against sexuality of the female spouse, some grounds for divorce were given to the women only, so they don’t have to face the long litigation process and can get hassle-free divorce. The grounds given to women are-

  • Bigamy by Husband.
  • Act of rape, sodomy and bestiality by husband – Crimes against women have took the form of violence from time immemorial which despite being condemned by the society as a whole, continues to exist. However, the issue with the current legal jurisprudence is that Martial rape is not penalized under criminal laws because of which no criminal action exists for the same but it constitutes a valid ground for divorce under the Act which represents the contradiction between the recognition of an offence by the personal law and criminal law.
  • No cohabitation after restitution of conjugal rights have been passed for one year.
  • If the marriage was solemnized when the wife was below 15 years of age.

These grounds provides some of the leverage to the women for getting divorce when the general grounds and mutual consent option is no longer present. However, there can be cases where none of these grounds are applicable and only one of the spouse wants to get divorce, then it appears that years of litigation is what follows. Judiciary gave an answer for this issue by incorporating the suggestion of law commission about irretrievable breakdown of marriage in N. G. Dastane v. S.G. Dastane(1975) where the court observed that if no possibility of restoring the relationship exists, then divorce can be granted on this ground and even in Naveen Kohli v. Neelu Kohli (2006) Supreme court suggested the Union to incorporate it in a statute and through several judgments, the status of the this new ground became established through judicial decisions.

 

Contemporary Issues-

The Indian society at present is at a critical juncture, as new ideas and philosophies are emerging where even the idea of women is challenged as what gender one belongs to, can change. The growing demand for LGBTQ+ rights and how marriage laws should be applied is difficult and is continuously under scrutiny on the values of Indian Constitution. The issue lies in contradiction as  recognition is granted for consensual intercourse to the community but right to marriage is not which complicates the issue as the bond created would be treated as live-in relationship which have rights based on contradictory judicial decisions of different high courts rather than a concrete statute which creates confusion about the rights and liabilities of the live-in partners while at the same time, marriage as an institution is affected from growth in live-in relationships. The growing misuse of Divorce rights against men is also a concern as because of them, genuine cases are made to suffer. While Judicial scrutiny of the issues is currently going on, legislative initiative for clarifying these issues is important, which is still awaited.

Conclusion-

Divorce, how we see it is, just a tip of an iceberg as its development of concept in Indian society is one of contradictions and struggles. While initially, marriage was treated as an indissoluble bond which even though, a novel concept gave rise to several social ills which was challenged by several local philosophers but not much change came from within, which only came after independence as an affinity existed between the lawmakers and the subject of that law. The law was updated and amended with time to make it reflective of the societal values but the change that Indian society is undergoing currently is something which can be termed anything other than gradual which demands a collective response by judiciary and legislature to regulate and channel the “change” in a productive way as any step without required deliberation can affect marriage as an institution which remained an integral part of Indian society from its inception

 

References-

Featured articles
IPR Laws Applicable to Theater in India – Notes
Basic Intellectual Property Rights for Digital Content Creators
THE DOCTRINE OF PREEMPTIVE DEFENSE: LEGAL IMPLICATIONS AND CONTROVERSIES
SEBI Regulatory framework for IPOs in India
     DEBENTURES – A Brief on Alternative Source of Capital
A study on the principle of separate legal entity and its exception

Related articles

All articles