This article has been written by Mr. Dhirendra Singh, a 1st year law student of Modern Law College, Pune.
ABSTRACT
This article on “Hindu divorce laws and notion of Kanyadan” helps us to the understand meaning of marriage and specifically a Hindu marriage, Article will throw light on the essential conditions for marriage. This article will help us understand what is divorce and specifically divorce in Hindus. What are legal condition and requirements to get divorce. This article will touch upon the philosophy of Hindu marriage and will try to establish a link between notion of Kanyadan and its relation to divorce. It will look into what relevance divorce had in ancient times and also try to find out whether Kanyadan has lost its relvance or still existing as a dormant sacrament.
KEYWORDS
Marriage, Divorce, Kanyadaan, Sacrament, Philosophy
INTRODUCTION
Marriage in India are celebrated like a festival. Generally, Marriage in every society refers to a ceremony which grants a legitimacy to a couple to enter into a union and form domestic household. Marriages allows a couple to go ahead in procreation of a family. These marriages are recognized in some sects as sacrament, in some a civil contract in which a couple out of their wish comes to be together and that contract is made. When they could not sustain in the domestic relationship and find hard to maintain a conducive environment among themselves they resort to legal separation which is known as divorce.
Divorce is recognized as matrimonial relief which is available to either party. The concept of Divorce to the marriage is not new and rather it had got place in ancient texts too. As marriage is recognized as sacrament in few sects and contract in others, the similar is the case with the divorce also. Hindus earlier did not recognize the divorce but later on after the enactment of Hindu Marriage act 1955, remedy of divorce was provided to all Hindus. Section 13 of Hindu Marriage Act 1955 deals with grounds of divorce for Hindus.
HINDU MARRIAGE: ANCIENT AND MODERN VIEWS
Hindu marriage is an ancient institution which has developed gradually and stemmed after ancient source of Hindu laws like Shrutis, Smritis and commentaries provided a detailed rules and procedure for the ceremony.
In ancient times, the institution of marriage was governed by the process and procedure mentioned in Hindu texts, such as Vedas, smritis and various Dharm shashtras. All these ancient texts recognized marriage as sacrament, a pious and pivotal ceremony in the life of an individual. It provided all the measures which was essential to maintain its sanctity and these texts lays emphasis on the duty of the parents to arrange the marriage of their children.
Ancient texts mention the conditions for a marriage to be solemnized. These conditions evolved with time and got firmly rooted as they found place in ancient texts. These conditions were meant to maintain peace and order in the society. For example, Individuals were not allowed to marry a person out of their caste that is Inter-caste marriage was not allowed. Also, women were not allowed to marry another person if her spouse is living. Marriage among the person of same gotra was also not allowed.
After the codification of the Hindu Personal Laws and enactment of Hindu Marriage Act 1955, it clearly mentions what are the condition required for the marriage among Hindus. Section 5 of Hindu Marriage act mentions the conditions of a Hindu Marriage. These are:
- Both the person shall not have a living spouse at the time of marriage.
- Both the party shall be of sound mind in order to give a valid consent and fit for marriage and procreation of child and had not been subject to recurrent attacks of insanity.
- The bridegroom shall have completed the age of marriage 21 years and bride shall have completed 18 years of age.
- Both the parties shall not be within the degree of prohibited relationship
- Bothe the parties shall not be in Sapinda relationship.
Thus, Modern Legislations thus aligning with demands of the progressive thoughts and society enacted the rationale and logical conditions into act and amended time to time. Modern sources of Hindu laws have given away the ancient condition of not being of same caste and not of being the same gotra. The act permitted remarriage of divorced and widows which was not a feature of ancient Hindu laws.
Many other amendments have added to strengthen the institution of marriage like in case of Seema vs Ashwani Kumar 2008 Supreme court ruled that all the marriages shall be compulsorily registered with the authorities. Modern sources of Hindu law have been a living document encompassing all the required and changing social norms and culture.
Modern laws giving due values to ancient sources and ceremonies under ancient text of Hindus inserted section 7 which asserts that A Hindu Marriage may be solemnized in accordance with customary rites and ceremonies of either party, and if ceremonies include Saptpadi, it is important and compulsory and must be done.
DIVORCE
“Divorce is the golden key to the legal cage of the marriage”. The term divorce comes from the Latin word divortium which means to turn aside, to separate. A matrimonial bond comes to cease after divorce. It is a legal (social in some society) form of dissolution of marriage.
Generally, Divorce is a concept of a civil contract which means it emanates from a union which is dissoluble in nature and thus was not placing in ancient Hindus texts of marriage. Marriage have always been considered a social contract and it has never been so easy to get out of this social contract of institution of marriage. Institution of marriage has always been hedged by all round protection. It has always been believed that there are always others remedies available to safeguard the institution of marriage and a couple should resort to divorce in an emergency and when all the doors have shut.
DIVORCE UNDER HINDU LAWS
Ancient Hindu texts have always considered marriage as an indissoluble and eternal union. These texts, Dharmshashtras never recognized the concept of divorce and may be the reason that many scholars claim that there is no such word in the Sanskrit or Hindi language which means divorce. Ancient Hindu laws provided for leaving the husband in exceptional cases.
Sage Vashistha have proposed that a women can leave her husband if he treats her with cruelty or have lost his conscious and became lunatic. Narada in his smriti also mentions few grounds wherein a woman can leave her husband and can remarry another man but that is also under exceptional situations. Though these sages considered few exceptional cases of remarrying yet ancient Hindu law does not allow for simple divorce arising out of simple discontent among couples.
Modern legislations after giving due considerations to that “if marriages are based on moral and love then only those marriages shall continue in which both love and morality continues” enacted Hindu Marriage act 1955 and provided for several grounds for divorce out of which few are available to either party and few specifically reserved for women.
Section 13 of Hindu Marriage act 1995 provides for grounds on which a Marriage solemnized in accordance with this act, before or after the commence of act can be dissolved. The grounds for divorce are:
- Adultery.
- Cruelty,
- Desertion for not less than 2 years,
- conversion to other religion,
- Incurably, unsoundness of mind,
- Either of the partners suffering from communicable venereal disease
- Either of the partner has renounced the world
- Either of the partner is not heard of as being alive for a period of seven years or more by those who would naturally hear of it.
There are some specific grounds of divorce mentioned which can be exercised by the wife only, like Bigamy, Husband after solemnization has been guilty of rape, sodomy or bestiality etc.
Also, they can go for mutual divorce under section 13B of HMA 1955, It is a condition where both the partner realize and accept the fact that their marriage has been irrevocably broken down and want to dissolve their marriage.
NOTION OF KANYADAN
Hindu marriages are solemnized in accordance to various Hindu religious ceremonies and traditional ceremonies. Out of many ceremonies few have gained importance and all followed in almost every Hindu Marriage like Kanyadaan, Panigrahana and Saptpadi.
Kanyadaan, as the word comprises of two words a “Kanya” meaning Girl and “Daan” meaning donation which together means offering of a girl or maiden. According to ancient text a girl is the property of the father and has all the rights secured for her. He looks after her education, maintenance and will search a suitable groom for her marriage. Kanyadaan is one among few holy rituals in marriage in which father transfers his rights over her girl to the husband of the bride.
Though ceremony of Kanyadaan is not accepted as necessary requirement of marriage as decided in case of Ramlal Agarwal vs Shanta Devi and others 1999. As per section 7 of Hindu Marriage act if Saptpadi is a ceremony which is done in rituals of either party it will be the essential ceremony for the marriage to be considered to be complete.
Thus, Kanyadaan ceremony gives one important insight with respect to marriage rules as per ancient Hindu law that a Girl can only be given once in life in Kanyadaan. Since notion of Kanyadaan is about offering the maiden to Bridegroom by the father of a girl and here itself it clearly sets a rule prohibiting the remarriage, widow-remarriage.
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CONCLUSION
Hindu marriages since ancient times have been recognized as an indissoluble union which in due course of time and through modern legislations have been made dissoluble. Divorce though resorted to as last remedy is now been resorted to by innumerable couple and even on silly issues. Marriage shall be protected by all round hedged institutions as this institution is the base for stability in the society.
REFERNCES
Seema vs Ashwani Kumar 2008 SCC 180
Ramlal Agarwal vs Shanta Devi and others 1999
Hindu Marriage Act 1955.
Family law by Kusum Saxena.pdf
https://aishwaryasandeep.in/live-in-relationship-and-hindu-divorce-laws