Because, Hindus are not permitted to divorce their spouses, as Hindu marriage is considered a sacred relationship, a divine covenant and a sacrament. According to Hinduism, Marriage is meant for procreation and continuation of family lineage, not for sexual pleasure.
The Hindu Marriage Act by an Act of the Parliament of India enacted in 1955. Three other important acts were also enacted as part of the Hindu Code Bills during this time: the Hindu Succession Act (1956), the Hindu Minority and Guardianship Act (1956), the Hindu Adoptions and Maintenance Act (1956).
Purpose
The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others. Besides amending and codifying Sastrik Law, it introduced separation and divorce, which did not exist in Sastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India there are religion-specific civil codes that separately govern adherents of certain other religions.
Applicability
Section 2 of the Hindu Marriage Act, 1955 says:
- This Act applies –
- to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
- to any person who is a Buddhist, Jain or Sikh by religion; and
- 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 section therefore applies to Hindus by religion in any of its forms and Hindus within the extended meaning i.e. Buddhist, Jains or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. The Act applies to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India.
The Act was viewed as conservative because it applied to any person who is Hindu by religion in any of its forms, yet groups other religions into the act (Jains, Buddhists, or Sikhs) as specified in Article 44 of the Indian Constitution.However, with the passage of Anand Marriage (Amendment) Bill in 2012, Sikhs now also have their own personal law related to marriage.
A Marriage (Arya Samaj Marriage or an arranged Marriage) is directly registered by the Registrar of Marriage under section 8 of Hindu Marriage Act-1955 on the same working day. Verification of all the documents is carried out on the date of application and thereafter Marriage is registered on the same working day by the registrar of marriage appointed by the Govt. of India and marriage certificate is issued.
Hindu view of marriage
According to Hinduism, marriage is a sacred relationship. In some Hindu systems of marriage, there is no role for the state as marriage remained a private affair within the social realm.Within this traditional framework reference, marriage is undoubtedly the most important transitional point in a Hindu’s life and the most important of all the Hindu ‘’sanskaras’’ (life-cycle rituals).
Therefore there was fierce religious opposition to enacting such laws for marriage, succession and adoption. The greatest opposition was to the provision of divorce, something which is anathema to the Hindu religion. Also resisted was the principle of equal inheritance by sons and daughters regardless of whether the daughter was married or unwed. This was contrary to the Hindu view of family, where married daughters were regarded as belonging to the family of their husband, not to the family of their father.
Some have argued that Hindu marriage cannot be subjected to legislative intervention. Derrett predicted in his later writings that despite some evidence of modernization, the dominant view in Hindu society for the foreseeable future would remain that marriage is a form of social obligation.
Conditions
Section 5 of Hindu Marriage Act, 1955 states:-
“Section 5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely–
- neither party has a spouse living at the time of the marriage
- at the time of the marriage, neither party-
- is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
- though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children;
- the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage;
- the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
- the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.”
Marriage can be solemnized between two Hindus if neither party has a living spouse at the time of marriage;
The conditions also stipulate that at the time of the marriage, neither party is incapable of giving valid consent or suffering from a mental illness that inhibits their fitness for marriage or procreation of children or suffering from recurrent episodes of insanity or epilepsy. In the original Act, the age of valid marriage was fixed at 18 for the boys and 15 for the girls, however this age requirement was later raised to 21 and 18 respectively for the boys and the girls through the Child Marriage Restraint (Amendment) Act 1978. Marriage of a female less than 18 years of age or a male of less than 21 years of age is voidable but not void: The marriage will become valid if no steps are taken by the minor spouse to seek a declaration that the marriage is void.
Finally, the Act specifically disallows marriages between prohibited degrees of relationships.
Guardianship
Section 6 of the Hindu Marriage Act specifies the guardianship for marriage. Wherever the consent of a guardian in marriage is necessary for a bride under this Act, the persons entitled to give such consent are the following: the father; the mother; the paternal grandfather; the paternal grandmother; the brother by full blood; the brother by half blood; etc. The Guardianship For Marriage was repealed in 1978 after the Child Marriage Restraint Amendment was passed. This was an amendment that increased the minimum age requirement for marriage in order to prevent child marriages.
Section
Section 7 of the Hindu Marriage Act recognizes the ceremonies and customs of marriage. Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. Such rites and rituals include the Saptapadi—the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. The marriage becomes complete and binding when the seventh step is taken.
Registration
As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages that the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register. This registration is for the purpose of facilitating the proof of Hindu marriages. All rules made in this section may be laid before the state legislature. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.
Nullity of marriage and divorce
Any marriage can be voidable and may be annulled on the following grounds: the marriage has not been consummated due to impotency,may be complete or partial impotency (for example conditions such as impotence quoad hoc), contravention of the valid consent mental illness condition specified iSection 5, or that the respondent at the time of the marriage was pregnant by someone other than the petitioner. Divorce can be sought by husband or wife on certain grounds, including: continuous period of desertion for two or more years, conversion to a religion other than Hindu, mental abnormality, venereal disease, and leprosy. A wife can also present a petition for the dissolution of marriage on the ground of if the husband marries again after the commencement of his first marriage or if the husband has been guilty of rape, sodomy, or bestiality. Newly married couples cannot file a petition for divorce within one year of marriage.
Supreme Court ruling in 2012
The Supreme Court of India exercised its powers under Article 142 of the Constitution of India and ruled in August 2012 that marriages can be ended by mutual consent before expiry of the cooling period of six months stipulated in the Hindu Marriage Act, 1955. Section 13-B of the Hindu Marriage Act provides for the couple seeking divorce through mutual consent to wait for a period of six months after making first joint application for divorce. It is only after the expiry of the six months that the couple can move second application for the dissolution of their marriage.
Pronouncing the judgment, Justice Altamas Kabir said: “It is no doubt true that the legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. But there may be occasions when in order to do complete justice to the parties it becomes necessary for this court to invoke its powers under Article 142 in an irreconcilable situation (between the couple). When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.”
Marriage Laws (Amendment) Bill, 2010
Based on recommendations of the Law Commission, a legislation was proposed. The Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to making divorce easier on ground of irretrievable breakdown of marriage was introduced in the parliament in 2012. The Bill replaces the words “not earlier than six months” in Section 13-B with the words “Upon receipt of a petition.”
It also provides a better safeguard to wives by inserting section 13D by which the wife may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial hardship to her and that it would in all the circumstances be wrong to dissolve the marriage.
New section 13E provides restriction on decree for divorce affecting children born out of wedlock and states that a court shall not pass a decree of divorce under section 13C unless the court is satisfied that adequate provision for the maintenance of children born out of the marriage has been made consistently with the financial capacity of the parties to the marriage.
Marriage Laws (Amendment) Bill, 2010 makes similar amendments to the Special Marriage Act, 1954 by replacing the words “not earlier than six months” in Section 28 with the words “Upon receipt of a petition” and provides restriction on decree for divorce affecting children born out of wedlock.
However, there was strong opposition to this bill due to the objection that it will create hardships for women and that the bill strongly supports one party while both parties should be treated equal in divorce.Therefore, the bill was amended to provide for the wife’s consent for waiver of six-month notice with the words “Upon receipt of petitions by the husband and the wife.”
The Bill was passed by the Rajya Sabha in 2013,though it was not passed in the Lok Sabha.
There was widespread protest against the bill. Hridaya, a Kolkata-based NGO, demonstrated against the bill. Amartya Talukdar (a prominent Men’s Right Activist) raised concern that the bill introduces no-fault divorce for Hindus only. According to him, “If the Government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus?”
Hindu civil code permits divorce on certain grounds. But the religion as such does not approve divorce, because the concept is alien to Hinduism. According to the tenets of Hinduism, marriage is a sacred relationship, a divine covenant and a sacrament. Marriage is meant for procreation and continuation of family lineage, not for sexual pleasure. It is an obligatory duty, part of Hindu dharma, which, once accepted, should be upheld by both the parties throughout their lives. Marriage is therefore a sacred bond, which cannot be dissolved through divorce on some personal or selfish grounds.
A divorce is among the most traumatic occurences for any couple. To add to this, it can also be a long-winded and costly affair in India if the divorce is contested. Even couples that mutually agree to the divorce, however, must prove that they have been separated for a year before the courts consider their plea.
In India, as with most personal matters, rules for divorce are connected to religion. Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956.
Types of Divorce Petitions
A couple can get a divorce with mutual consent, or either spouse may file for divorce without the consent of the other.
Divorce With Mutual Consent: When husband and wife both agree to a divorce, the courts will consider a divorce with mutual consent. For the petition to be accepted, however, the couple should be separated for over a year or two years (as per the relevant act) and be able to prove that they have not been able to live together. Often, even when either husband or wife is reluctant, they still agree to such a divorce because it is relatively inexpensive and not as traumatic as a contested divorce. Matters such as children’s custody, maintenance and property rights could be agreed to mutually.
There are three aspects regarding which a husband and wife have to reach a consensus. One is alimony or maintenance issues. As per law, there is no minimum or maximum limit of support. It could be any figure or no figure. The second consideration is custody of the child. This must necessarily be worked out between the parties, as it is inevitably what requires the greatest amount of time in divorce without mutual consent. Child custody in a mutual consent divorce can also be shared or joint or exclusive depending upon the understanding of the spouses. The third is property. The husband and wife must decide who gets what part of the property. This includes both movable and immovable property. Right down to the bank accounts, everything must be divided. It is not necessary for it to be fair, so long as it is agreed to by both parties.
The duration of a divorce by mutual consent varies from six to 18 months, depending on the decision of the court. Usually, the courts prefer to end mutual consent divorces sooner, rather than later.
As per Section 13 B of Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, the couple should be living separately for at least one year before divorce proceedings can begin. Section 10A of Divorce Act, 1869, however, requires the couple to be separated for at least two years. Do note that living separately does not necessarily mean living in different locations; the couple only needs to provide that they have not been living as husband and wife during this time period.
Divorce Without Mutual Consent: In case of a contested divorce, there are specific grounds on which the petition can be made. It isn’t as if a husband or wife can simply ask for a divorce without stating a reason. The reasons for divorce are as follows, though some are not applicable to all religions.
1. Cruelty
Cruelty may be physical or mental cruelty. According to the Hindu Divorce Laws in India, if one spouse has a reasonable apprehension in the mind that the other spouse’s conduct is likely to be injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
2. Adultery
In India, a man that commits adultery (i.e. has consensual sexual intercourse outside of marriage) can be charged with a criminal offence. The wife may, of course, file for divorce as a civil remedy. If, on the other hand, a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
3. Desertion
One spouse deserting the other without reasonable cause (cruelty, for example) is reason for divorce. However, the spouse who abandons the other should intend to desert and there should be proof of it. As per Hindu laws, the desertion should have lasted at least two continuous years. Christians, however, will not be able to file a divorce petition solely for this reason.
4. Conversion
Divorce can be sought by a spouse if the other spouse converts to another religion. This reason does not require any time to have passed before divorce can be filed.
5. Mental Disorder
If the spouse is incapable of performing the normal duties required in a marriage on account of mental illness, divorce can be sought. If the mental illness is to such an extent that the normal duties of married life cannot be performed.
6. Communicable Disease
If the spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy, the Hindu Divorce Laws in India say that the other party can obtain a divorce.
7. Renunciation of the World
If the spouse renounces his/her married life and opts for sanyasa, the aggrieved spouse may obtain a divorce.
8. Presumption of Death
If the spouse has not been heard of as being alive for a period of at least seven years, by such individuals who would have heard about such spouse, if he or she were alive, then the spouse who is alive can obtain a judicial decree of divorce.
What is Alimony?
When two people are married, they have an obligation to support each other. This does not necessarily end with divorce. Under the Code of Criminal Procedure, 1973, the right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children and even indigent parents.
The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities.
In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income.
Factors that influences the duration and amount of alimony
In a contested divorce, the alimony, its amount and tenure, depend upon the length of marriage. A divorce after a decade of marriage entitles the spouse to a life-long alimony. The other essential factors that need to be considered are:
1. Age of the spouse (or the person who is entitled to receive the alimony)
2. Economic condition or the earnings of the person who is to provide the alimony
3. The health of both spouse (the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim a larger alimony on the basis of their failing health).
4. The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.
How are property matters settled?
It seldom matters whether you or your spouse own the property. If you are married – irrespective of the fact that a divorce petition has been filed – you have the right to occupy the property. If you are also looking after children, the case is much stronger. While the property may be granted to one or the other spouse in the divorce settlement, until this is done, both spouses have the right to remain on the property.
What about child custody?
Many assume that the mother always gets custody of her children. This is not the case. While the courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support.
How much does it cost to get a divorce?
Court fees for filing a divorce are low; the cost of a divorce is mainly in the fees you pay your lawyer. Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands to lakhs of rupees.
What documents are required to file for divorce?
1. Address proof of husband
2. Address proof of wife
3. Marriage certificate
4. Four passport size photographs of marriage of husband and wife
5. Evidence proving spouses are living separately since more than a year
6. Evidence relating to the failed attempts of reconciliation
7. Income tax statements for the last 2-3 years
8. Details of profession and present remuneration
9. Information relating to family background
10. Details of properties and other assets owned by the petitioner
Annulment of marriage
Marriages in India can also be dissolved by means of annulment. The procedure for annulment is same as that of divorce, except that the grounds for annulment are different from that of divorce. Reasons for annulment are fraud, the pregnancy of wife by a person other than the husband, impotence before the marriage and subsisting even at the time of filing the case.
Once annulment is granted by an Indian court, the status of the parties remains as it was prior to the marriage.
Void marriage
A marriage is automatically void and is automatically annulled when law prohibits it. Section 11 of Hindu Marriage Act, 1955 deals with:
Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5 of the Act.
Bigamy: If either spouse was still legally married to another person at the time of the marriage then the marriage is void, and no formal annulment is necessary.
Interfamily marriage: A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.
Marriage between close relatives: A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.
Voidable marriage
A voidable marriage is one where an annulment is not automatic and must be sought by one of the parties. Generally, an annulment may be sought by one of the parties to a marriage if the intent to enter into the civil contract of marriage was not present at the time of the marriage, either due to mental illness, intoxication, duress or fraud.
The duration for obtaining divorce varies from case to case and place to place. Generally speaking, contested divorce proceedings take 18 to 24 months. Mutual consent divorce varies from 6 months to 18 months.
In ancient times, women in Hindu society had limited freedom. Women were bought and sold, abducted, forcibly married and forced into slavery or prostitution. There was nothing like the modern concept of a divorce or a legal separation in Hindu society. Once a woman left her parent’s home, she was completely at the mercy of her husband or his parents and if he found her incompatible or unattractive and abandoned her, there was little that she could do. She had no right to divorce, no right to remarry and no right to leave the house and approach any one without her husband’s permission. Part of the problem was that Manuthe famous law maker, viewed women with suspicion and would not trust them with freedom. He believed that they needed to be kept under the protection and watch of men all the time, so that they would not have the opportunity to cause the confusion of castes.
In case of men the situation was different. Men had many rights and privileges, which went with their status as upholders of Dharma, and which they exercised in the name of religion, family or expediency. The suffering of Sita in the epic Ramayana, after she was abandoned by her husband in the name of dharma, is a case point. Lord Rama, a paragon of virtue, duty and sense of morality, abandoned his wife, whom he loved so dearly, on the mere allegations of possible infidelity on her part. He had no proof, but as an upholder of Dharma, he reacted promptly and banished her into the forests, ignoring the fact that she was pregnant and innocent.
The plight of Sita amply reflects the attitude of ancient Hindu society towards women. Men had the right in ancient India to abandon their women on mere suspicion of infidelity or adultery. There were no courts that would argue the cases for women or legalize their separation. There was no concept as gender equality. According to the Hindu law books women were born to serve. Women were born to tempt men into vice. Women were born to be kept under control. The action of Rama is widely debated by scholars of today in the context of the moral and marriage standards of present day Hindu society. However few centuries ago, it was hardly a debatable issue, because apart from its moral, social and symbolic implications, Rama’s action was neither unusual nor strange, but in conformity with the Hindu law books and the practices of those times. If we rationalize his action today, it is by ignoring the wider social context in which it happened and the fact that Rama as the king and upholder of Dharma was duty bound and had no choice, unless he wanted to present himself as a person with double standards.
Even the great Buddha, founder of Buddhism, who is known for his compassion and wisdom, felt women were inferior to men and a spiritual hazard. When his disciple Ananda approached him with a request to admit them in to the Buddhist Sangha, he said to have remarked, “Just as when the disease called crimson falls upon a field of sugarcane, that field will not last long, even so Ananda in that doctrine and discipline in which women receive the going forth from a house to houseless life, the religious life will not last long.” Eventually, when he relented and admitted Buddhist nuns into his Sangha, it was by introducing a strict code of conduct. Buddha’s approach was not much different from that of the vedic scholars and his words amply reflect the condition of women and the attitude of even enlightened men towards them.
Woman, The Temptress and the Goddess
However it would be erroneous on our part to draw any hasty conclusions about the plight of women in ancient India, based purely on incidents such as the above and the stand taken by the Hindu law books. The information is inconclusive and contradictory. This was true, especially, in case of the Hindu Dharmashastras, whose influence and authority remained mostly confined to certain pockets of Hindu society, among people, who had access to them, knew them and for whom dharma or religion, as laid down in the scriptures, mattered. It is is difficult to estimate how strongly they were enforced in a society in which atheists, materialists and skeptics lived without fear, voicing their beliefs against the caster system and excessive ritualism of vedic religion.
The attitude of ancient Hindus towards women was rather ambiguous. On the one hand, we have the Hindu law books which proclaim women to be untrustworthy and subservient to men, having no claim to liberty and independence. They declare a woman to be a possession, owned by her father before marriage, her husband after marriage and her children after her husband’s death. They do advise men to treat women honorably and keep them happy in order to beget progeny and continue their lineage, but the emphasis is not on conjugal love but promulgation of Dharma. They warn the consequences that befall unchaste women, who neglect their families and their duties.
On the other hand, the scriptures equate women with Mother Goddess and call upon men to treat them with respect and dignity. They warn that a house in which women are unhappy would never prosper. A housewife is a goddess in her own right. She is Lakshmi of the house. Without her, her husband is incomplete. She brings her part of the karma to the marriage and by assisting him in his duties fulfills his destiny. She shares his joys and sorrows and his duties. She is his companion in the observation of dharma. Her presence is important in the performance of rituals and the samskaras, because she is a partner, a soul mate, not only for this life but for several. The duties and responsibilities of varnasharama dharma, performance of sacrifices and samskaras were not prescribed for women, but they were expected to assist their husbands in performing them.
Although they were not enjoined to pursue studies or take up responsibilities in public life, we have evidence to believe that in ancient India women played an important role in Hindu polity and society. Women were employed in the army, in the administration and in the royal court as soldiers, body guards, courtesans, servants, cooks, doctors, dancers and spies. Women in the rural areas worked in the fields, carried weights and helped their husbands in their family occupation. There were women who were adept in art and literature and scriptural knowledge. They participated in religious debates and composed verses. We had women saints who exemplified the virtues of devotion and surrender to God through their actions and lives. The Kunti, Draupadi, Hidimbi, Subhadra and Gandhari of the Mahabharat were not helpless and passive women, but women with a mind of their own, who married whom they wanted to marry, shared the ambition and vision of their husbands, gave them counsel, questioned their wisdom and were heard. No one would believe that Yashoda, the foster mother of Lord Krishna was a subservient member of her family. She was perhaps a more vocal member of the family than her husband and exercised greater influence upon Lord Krishna when he was a child. Thus declares Manusmriti:
The teacher (acharya) is ten times more venerable than a sub-teacher (upadhyaya), the father a hundred times more than the teacher, but the mother a thousand times more than the father (2.145).
So while we are not sure how Hindu women were treated exactly in the past or how the marriage laws worked for them, based on the fact that Hindu society has always been a pluralistic society that cannot be characterized into a particular stereotype, which some elite sections however tend to portray for its shock value, we have to assume with some caution that the social and religious laws that governed the behavior of men and women and the beliefs and practices governing the institutions of marriage and family life and the status of women in ancient India should have varied from place to place, time to time, caste to caste and religion to religion.
Marriage As a Sacrament
If we have to understand the problems and issues concerning Hindu marriages and divorce, we have to understand the concepts and the beliefs that are attached to them. Traditionally speaking, in Hinduism there is no concept of divorce. Especially, women cannot seek separation from their husbands. Marriage is a sacrament, sanctified in the presence of gods. During marriage a couple vow to stay together for ever and uphold traditional family values in accordance with Dharma. The bride is given to the bridegroom as a gift from the gods, whom he can never abandon, without incurring the sin of violating the marriage vows. Marriage is a sacred relationship between two people, which is predestined because of their deep connection and joint karma in their previous lives. It is a commitment that extends beyond this life, up to several generations. A couple marry not because they have chosen to, but because they are destined to. Hence any notion of separation is a sacrilege, with terrible consequences awaiting both the parties in their future lives. Whatever difficulties the couple may have, society and the scriptures expect them to take them in their stride, as a part of their karma, and continue their journey together. In exceptional cases, they may live separately, but cannot throw away their marriage relationship without incurring negative karmic consequences for themselves and their children. Hindu scriptures do not recognize a woman’s right to leave her husband under any circumstances. Her duty is to serve her husband and remain loyal to him for the rest of her life. But men have been provided with a choice under some special circumstances. The scriptures allow a married man to leave his wife or marry another on the grounds of infidelity, childlessness, an incurable disease such as leprosy or insanity, or ever mere suspicion of adultery or infidelity. Divorce is a modern practice introduced into Hindu society through civil laws to protect the rights of both men and women that are guaranteed in the Indian constitution.
Legal Position
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 the 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 excerpt from the Act regarding these stipulations.2
“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-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion ; or
(iii) 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.
(1-A) 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-
(i) 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
(ii) 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.
2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground-
(i) 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;
(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) 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
(iv) 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 effects 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 action. 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 to make 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 take the responsibility of marriage seriously and do 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. Let us hope some day we will initiate a study of such issues on a global scale.