From Tradition To Codification - Divorce In Hindu Law And The Hindu Marriage Act, 1955
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Category: Family & Personal Law
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FROM TRADITION TO CODIFICATION: DIVORCE IN
HINDU LAW AND THE HINDU MARRIAGE ACT, 1955
Gurajala,Vishnusree, Symbiosis Law School
INTRODUCTION
Hindu personal law has substantially changed in dissolving a marriage or divorce. The cultural and religious ethos of the period was reflected in Hinduism's traditional notion of marriage as a holy and irrevocable connection. As it is now applied, Hindu law is the body of personal laws that apply especially to Hindus in India and regulate things like marriage, adoption, and inheritance. 1 • Hindu texts often disapproved of divorce, just like early Christian texts did. But even before the Christian era, writings like the Dharmasastra allowed separation under certain conditions. Furthermore, Kautilya's Arthashastra highlighted the necessity of obtaining court consent before being married again, suggesting that divorce was a common procedure in ancient Indian society. Buddhist literature recognizes divorce, even if Brahmanical traditions do not mention it.
• There were notable social reform movements supporting women's rights and gender equality in the late 19th and early 20th century. Ishwar Chandra Vidyasagar and Raja Ram Mohan Roy were among the leaders who questioned conventional wisdom and emphasized the necessity of using the judicial system to resolve marital conflict. The Hindu Marriage Act of 1955 was codified due to legislative interventions in Hindu personal law, which were made possible by these movements. • Based on the suggestions of the Hindu Law Committee, which had been formed in 1941 before to independence, the government decided to codify Hindu law after gaining 1 Herbert Cowell, The Hindu Law: Being a Treatise on the Law Administered Exclusively to Hindus by the British Courts in India (Calcutta, Thacker, Spink and Co. , 1871).
independence.2 • A significant change was brought about by the Hindu Marriage Act of 1955, which codified Hindu personal law and established a thorough legal framework for divorce. Along with procedural protections to guarantee equity and justice, the Act lists certain reasons for divorce, such as mutual consent, cruelty, and desertion. • This article explores the development of divorce in Hindu law over time, considering key clauses and court rulings under the HMA as well as the interaction between tradition and modernity. By examining these aspects, it aims to offer a comprehensive grasp of how divorce laws balance individual liberty and cultural values while addressing the shifting dynamics of Hindu society. THEORIES OF DIVORCE
1. Fault Theory, Also known as the offense theory or guilt theory, the fault theory of
divorce holds that a marriage may be dissolved when one partner violates the rights of the other, who is presumed innocent. According to this theory, a marriage must have both an innocent and a criminal party. The only person with the right to file for divorce is the innocent one. Both parties are not entitled to any remedies if it is determined that they are at fault.
2 Mutual Consent Theory
When two people voluntarily decide to get married, they ought to be free to do so again. This strategy, however, has drawn harsh criticism for possibly encouraging immorality since it may result in hasty divorces and marriages ending due to insignificant personality problems.
3 Irretrievable Breakdown of Marriage Theory
It is improbable that a couple will stay together when their marriage deteriorates to the point where there is no realistic prospect of reconciliation. The pair is unable to stay married in such difficult and terrible circumstances. The love, affection, and commitment that normally unite a husband and wife are thereby superseded in these circumstances by the necessity of living apart. A marriage should be ended if it cannot be saved. There is no need to 2 John Bannigan, "The Hindu Code Bill," Far Eastern Survey (3 December 1952): XX1, retrieved 22 October 2008. uphold the joint rights and obligations between the two people when a marriage cannot last. GROUNDS FOR DIVORCE UNDER HMA,1955
1. Adultery
Under Section 13(1)(i) of the Hindu Marriage Act, 19553, This is when a married person willingly engages in sexual activity with someone other than their spouse, regardless of that person's marital status. Relationships with either the first or second wife are not considered adultery in polygamous marriages. However, if the second marriage is void, then having sex with the second wife is considered adultery. Instead of needing proof of multiple violations, the Marriage Laws Amendment Act of 1976 amended the law to allow divorce based on a single occurrence of adultery. For adultery to be considered a crime, the marriage must be considered legal.
2. Desertion.
As defined by the Act's Section 10(1)(b)4. If a spouse abruptly and unjustifiably leaves their partner's home, forsaking all marital responsibilities with the explicit goal of ending the relationship, they are said to have deserted the marriage. Living away but continuing to communicate (for example, by phone or email) does not constitute desertion. Divorce Requirement: Prior to requesting a divorce, the petitioner must demonstrate that the desertion persisted for a minimum of two years. CASE LAWS: Om Prakash v. Madhu5 The court ruled that the wife’s staying away was not desertion, as the husband himself prevented her from returning, citing his studies. The husband's argument that their 16 years of separation and the wife's failure to respond to notices showed desertion was dismissed.
3 The Hindu Marriage Act, 1955, § 13(1)(i)
4 The Hindu Marriage Act, 1955, § 10(1)(b)
5 (AIR 1997 Raj 214)
In Santosh Kumari v. Shiv Prakash Sharma6, The husband’s divorce petition on the grounds of desertion was rejected because the required two-year period of separation had not passed. Similarly, in Sharikant v. Saroj, Since the woman was forced to live apart because of her husband's and his family's misbehavior, desertion could not be demonstrated.
3. Cruelty
According to Section 13(1)(i-a) of the Hindu Marriage Act (HMA) of 19557, cruelty is a reason for divorce. It is described as when one spouse acts in a way that makes the other reasonably fear that the marriage is not safe to continue. CASE LAWS: In P. K. Vijayappan Nair v. J. Ammini Amma8, the Kerala High Court granted the husband a divorce on the grounds of cruelty. The wife mistreated his children, filed false cases, and attempted suicide. The court emphasized that after the 1976 amendment, it was not necessary to prove that the cruelty caused physical harm; it was enough if the cruelty made living together impossible due to mental agony. In Satya Narayan v. Mamta9, the Rajasthan High Court ruled that the husband’s behavior—disliking his wife, demanding dowry, living adulterously, and marrying another woman—constituted cruelty, entitling the wife to a divorce. In S. Vijaylaxmi v. S.
Bheemreddy,10 the Calcutta High Court granted the husband a divorce, ruling that the wife’s actions, including abusing him with her brother and goons, filing false criminal cases, and causing his arrest and job loss, amounted to cruelty. Additionally, her arrogance, refusal to do household work, and taunting him for being a "petty employee" were also considered cruel behavior. In Anil Kumar Benerjee v. Sefali Banerjee,11 the court emphasized the importance of
6 (AIR 2001 MP 94)
7 The Hindu Marriage Act, 1955, § 13(1)(i-a)
8 (AIR 1997 Ker 170)
9 (AIR 1997 Raj 118)
10 (AIR 1998 AP 296)
11 (AIR 1997 Cal 6)
dissolving broken marriages, stating that parties in such situations should not be forced to stay together.
4. Conversion
Covered by Section 13(1)(ii).12 Definition: The non-converting spouse may file for divorce if one spouse changes their religion without the other's approval.
5. Insanity
Described in Section 13(1)(iii)13. A mental state known as insanity occurs when a person is unable to make logical decisions or discern right from wrong, which makes them unfit to maintain a marriage. Reason for Divorce: The petitioner cannot be expected to remain with a spouse who is incapable of giving informed consent or keeping an eye on their environment.
6. Venereal Disease
Acknowledged in accordance with Section 13(1)(v)14. Definition: Due to the possibility of infection, the other spouse may apply for divorce if one of the spouses has a serious and incurable sexually transmitted illness (STD).
7. Renunciation
Protected by Section 13(1)(vi). Definition: A spouse establishes grounds for divorce when they give up all marital duties and renounce the material world in favor of a religious or philosophical belief system. Justification: This type of renunciation denotes a total disengagement from marital and family responsibilities.
8. Presumption of Death
As stated in Section 13(1)(vii)15. Definition: A person is considered dead, and their spouse may petition for divorce if they haven't been seen or heard from for at least
12 “The Hindu Marriage Act, 1955, § 13(1)(ii)
13 The Hindu Marriage Act, 1955, § 13(1)(iii)
14 The Hindu Marriage Act, 1955, § 13(1)(V)
15 The Hindu Marriage Act, 1955, § 13(1)(Vi)”
seven years. It is the petitioner's responsibility to substantiate the allegation of presumed death. Special Grounds for Divorce Available to the Wife
1. A husband who has several wives
Clause (i) of Subsection (2) of Section 13 16of the Act states that if a husband has another live wife, the woman may file for divorce. This is applicable when there is polygamy and the wife wants to end the marriage because of the existence of another spouse. In 1955, the Hindu Marriage Act introduced monogamy as the standard for Hindus and made bigamy a criminal offense under Section 494 of the IPC17. However, bigamy is treated less seriously than other crimes and is categorized as an "offense against marriage. " The impacted party is often the first wife, and although they can file a FIR, others cannot prosecute the case on her behalf if she chooses not to. As a result, bigamy often goes unpunished, and societal attitudes are lenient, sometimes even glorifying bigamous men as "macho. " A related case, A. Subhash Babu v.
State of AP18, involved a Hindu man who deceived a woman into a second marriage by falsely claiming his first wife was deceased. The woman filed charges under Sections 494, 495, 498A, and 420 of the IPC19, alleging bigamy, fraud, and dowry-related harassment. The court ruled that: Sections 494 and 495: As per Andhra Pradesh's amendment, these offenses were cognizable, and the police could investigate and file a charge sheet. However, the magistrate's cognizance of these offenses had to align with CrPC Section 198, which limits the filing of complaints to certain individuals. Section 498A: The court held that the second wife could not claim protection under this section because her marriage was void, and she was not a "legally wedded wife. "
16 The Hindu Marriage Act, 1955, § 13(2)(i)
17 Indian Penal Code,1860, § 494
18 (AIR 2011 SC 3031)
19 Indian Penal Code,1860, § 494, §495, §498A, § 420.
The Supreme Court highlighted that while state amendments can make offenses like bigamy cognizable, they cannot override the procedural requirements established by Parliament under the CrPC. This case demonstrated the legal challenges faced by second wives in prosecuting fraudulent or abusive husbands under existing laws.
2. The Husband's Sexual Offense Involvement
A wife may end the marriage following Section 13(2)(ii)20 if her husband has engaged in any of the following: Forcing sexual contact without consent is known as rape. Sodomy: Performing sexual actions that are not natural. Engaging in sexual activity with animals is known as bestiality.
3. Non-Resumption of Living Together Following Maintenance Orders
A wife may file for divorce if she has obtained a maintenance decision under Section
18 of the Hindu Adoption and Maintenance Act, 1956,21 or a maintenance order under
Section 125 of the Criminal Procedure Code, 197322. For a year or more, the couple has not returned to living together in spite of the injunction or decree.
4. Marriage Below the Age of Consent
Consummated before she turned 15. She can renounce the marriage when she reaches adulthood if this is completed before her 18th birthday. In the cases of Kalyani Chaudhary v. State of UP23, Simran Kaur v. State of HP24, 25Ravi Kumar v. State, and Manish Singh v. Government of NCT, Delhi26, The court clarified that there are two kinds of marriages recognized by Hindu law: invalid and voidable. Child marriage is prohibited by Section 11, although Section 12 states that a
20 The Hindu Marriage Act, 1955, §13(2)(ii)
21 The Hindu Adoption and Maintenance Act, 1956, §18.
22 Code of Criminal Procedure, 1973, §125.
23 (1978 CrLJ 1003)
24 (1998 (2) Crimes 168)
25 (124 (2005) DLT 1)
26 (AIR 2006 Delhi 37)
minor's marriage is not always voidable but may be so in specific circumstances. Impact of Socio-Legal Issues and Current Significance Women's Empowerment: The HMA's provision of legal remedies for marital disagreement has substantially contributed to women's emancipation. The Act's commitment to gender equality is seen in its custody, alimony, and maintenance provisions. Tradition and Modernity in Balance: The HMA's regulation of divorce represents a careful balancing act between upholding cultural values and meeting the demands of modern society. The Act's recognition of individual rights is consistent with India's constitutional values of justice and equality. Notwithstanding its progressive measures, the HMA nevertheless confronts obstacles such as the necessity for extensive revisions, public shame, and legal delays.
In a society that is changing quickly, addressing these problems is crucial to ensuring the Act's effectiveness. The Hindu Marriage Act of 1955 signifies the shift from custom to codify and marks a significant turning point in Hindu personal law. The Act addresses the complexity of marital relationships in modern society by offering a structured legal framework for divorce that balances individual liberty and cultural values. The HMA's continuous evolution through judicial interpretation and continuing revisions shows the dynamic interaction between tradition and modernity. Hindu culture views marriage as a holy union. Divorce was illegal prior to the Hindu Marriage Act of 1955 because it was seen too drastic for Indian society at the time. Women were left as silent victims of this inflexible institution, which did not acknowledge the idea of divorce.
It was believed that women would adapt and put up with concessions in their marriages. However, once the Hindu Marriage Act was passed in 1955, divorce and the rules surrounding it began to adapt to a society that was changing all the time.