..::Divorce under the Hindu Laws

As per the ancient Hindu laws there was no place for Divorce and it was with the codification of Hindu law that the first grounds for the new age laws were laid down.

Divorce between two persons married under the Hindu Marriage Act is also governed by the same act.

The Hindu Marriage Act, 1955 applies not just to Hindus in the ordinary sense, but any person who is a Buddhist, Jaina or Sikh by religion, domiciled in India and who is not a “Muslim, Christian, Parsi or Jew by religion.” The Act expressively prohibits polygamy by stipulating that a Hindu marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage and that if they are not of unsound mind or not suffering from severe bouts of epilepsy. It prohibits child marriages by stating that bridegroom should have “completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.” Certain types of marriages are explicitly prohibited in the Act, under the definition of prohibited marriages. A marriage may be solemnized through customary rites and ceremonies or by taking seven steps around the sacred fire or through a simple process of registration. Registration of marriage is however not compulsory. According to the Act, both parties to marriage have the right to claim their conjugal rights or seek judicial separation based on certain conditions. The Act also defines when marriages are voidable, such as when there was no consent of the guardian, impotency, pregnancy by another person before marriage etc.

According to Hindu Marriage Act, 1955 (India), divorce can be sought on certain grounds, namely, adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, leprosy, renunciation of the world, physical separation and absence of communication for more than seven years and so on. Following is an extract from the Act regarding these stipulations.

Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:

  • has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or

  • has, after the solemnization of the marriage, treated the petitioner with cruelty; or

  • has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

  • has ceased to be a Hindu by conversion to another religion ; or

  • has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground:

  • that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

  • that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upward after the passing of a decree of restitution of conjugal rights in a proceeding to which they were parties.

A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:

  • in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before the commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

    Provided that in either case the other wife is alive at the time of the presentation of the petition;

  • that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

  • that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or

  • that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

  • that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

According to the Act, both parties to a marriage may seek legal separation by mutual consent on the ground that “they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.” Newly married couple cannot file a petition for divorce within one year of marriage. Divorced couple can remarry if the divorced proceedings are complete and there is no right of appeal against the court decree. Bigamy is a punishable offence under the Indian Penal Code. An aggrieved party in a divorce petition may seek permanent alimony and maintenance from the other party while filing a petition for divorce and if convinced, the court may grant gross sum on monthly or periodical basis for a term not exceeding the life of the applicant.

Conclusion

Hindu marriage as an institution of family and society has undergone quite a number of changes in recent times. The position of women changed and she is not as dependent or subservient as her ancestors were. Still for many Hindus, divorce is the last desperate resort. The stigma associated with divorce is the biggest deterrent. It not only affects the couple involved, but their families and children also. Divorced people find it difficult to be accepted among their friends and family and find new partners. The problem is more acute in case of divorced women. The families involved on either side also suffer, especially if there are children of marriageable age. Dowry and interference of in-laws are two important causes of divorce. Many put up with the injustices, but a few take actions. There are many couples, who live together, though they have serious issues of compatibility, for fear of public humiliation and social disapproval or the love of children. Some women turn to religion to cope with the pressures of a difficult marriage or a difficult husband. Some live apart, under the pretext of working abroad or in some far away place.

Despite the progress achieved in recent times and the freedom Hindu women enjoy making their own decisions; marriage is still a sacred relationship in Hinduism. The Hindu law books have now given way to the principles of democracy and belief in the equality of genders. Compared to the marriages in the western world, Hindu marriages have a greater stability. A great majority takes the responsibility of marriage seriously and does their part in promoting social and family values through their adherence to ancient traditions and commitment to their children’s welfare. The balancing act calls for great patience. For the Indian judiciary, dealing with the cases of divorce is a big challenge because of the social and economic issues involved and the need to render social justice through timely dispensation of court cases, so that people can return to normalcy and leave behind their past, in a country where usually nothing is so easily forgotten, especially if it is something as important as marriage.

While Hindus who live in India have recourse to the Marriage Act and similar legislation passed in the aftermath of India’s independence, those living in other parts of the world may have to deal with their divorce issues through local courts, according to the laws prevailing in their countries. So far, most of the social issues related to Hinduism are being studied and interpreted from the Indian perspective. Perhaps it is time we begin to look at them from a global perspective and understand how each Hindu community in various parts of the world are coping with their social and religious lives and how the institutions of family and marriage are evolving there. Because Hindus are now in every country of the world, we need to know how they have been living and practicing their religion in the context of the local challenges, traditions and prevailing laws.

The Hindu Married Women’s Right to Separate Residence and Maintenance Act (XIX of 1946) (Pakistan Law)

According to Section 2 of the above Act, notwithstanding any custom or law contrary a Hindi married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds namely:

  • if he is suffering from any loathsome disease not contracted from her;

  • if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;

  • if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;

  • if he is married again;

  • if he ceases to be a Hindu by conversion to another religion;

  • if he keeps a concubine in the house or habitually resides with a concubine; and

  • for any other justifiable cause;

Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or cease to be Hindu by change to another religion or fails without sufficient cause to comply with a decree of competent court for the restitution of conjugal rights.

The Court shall determine the amount of maintenance to be paid by the husband to the wife while allowing a separate residence and maintenance under Section 2.

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