CHAPTER - II

CONCEPT OF MARRIAGE AND DIVORCE

UNDER HINDU LAW
2.1 Introduction

Hinduism has always been against Divorce. This chapter deals with the historical
evolution of Divorce under Hindu Law. The question is that whether Hindu Law had
the concept of Divorce earlier or not? To know the answer, one must know who
Hindus are, what are the sources and schools of Hindu Law, and on whom does the
Hindu Law applies? This chapter deals with answering these questions and the
changes made in the Hindu law of divorce including the historical background of
divorce and its origin through legislation. And legislative modifications which took
place in the Hindu law of divorce and effects of such legislations and modifications
are discussed. In many religions, marriage has been considered as a ‘Contract’. And
it is said that when divorce takes place, it is a breaking of the contract of marriage
between husband and wife. Some religion like Catholic etc. believes that contract of
marriage is sacred and must not be broken but some other religions do not agree with
this. Under the uncodified Hindu law, divorce was not recognized, unless it was
allowed by custom because Hindus considered marriage as a sacrament and an
indissoluble bond. However difficult and painful the cohabitation may be, divorce
was not accepted by the old law. If we talk about a very early age we find that man
and woman did not use to marry. The society was not into existence and human were
not civilized at all. A Dollars and Sex commenter wrote that the “origin of marriage
was to create a legal contract by which a man could acquire a female slave.”
Interesting point, Is there an economic story that explains the origin of this most
debated of all institutions? The first humans, those who lived between 5 and 1.8
million years ago, had very little use for marriage. Using the behavior of bonobos as
the basis for how early humans would have behaved; it is presumed that early males
and females had sex with many partners. Food sharing was principally in exchange
for sexual favors, including sexual favors between same-gender pairs. Because
females could collect food (fruits, nuts and insects) while still carrying and protecting
their babies, males were not needed as protectors or providers. That meant that in this

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period neither partner gained from being in a committed pair. As the climate warmed
and the forests receded, humans began to move out into the savannah where their diet
consisted of gathered vegetation, scavenged meat left behind by predators and,
eventually, meat killed by hunters using tools. A more meat-based diet meant that
babies were born earlier requiring more care from their mothers. In this period
(between 1.8 million and 23,000 years ago), the males and females whose offspring
were the most likely to survive were those that formed the very first marriages. These
may not have been marriages in the way that we think of marriages today, but
couples in this period would probably have stayed together for about three or four
years before one, or the other, would wander off to start another family.18Eventually
they started to understand how to work. Men acquired lands for survival and started
working outside as women were physically and emotionally tied to the children.
Women used to care children and started staying with them. With the passage of time
they started understanding the value of family and rather searching for a new sex
partner they started living together for whole life. Then slowly human got civilized
and accepted marriage as an important social institution. But after the women came
to know about their rights they expected for a good treatment from husband and
family and it gave birth to separation and gradually it took the name, “Divorce”.

The concept of Divorce has been alien to Hinduism. The tenets of Hinduism say that
marriage is a sacrament, a sacred relationship and a divine covenant. For Hindus,
Marriage is meant for procreation and continuation of family lineage and not for
sexual pleasure. It is an obligation, a part of Hindu dharma, which, once accepted,
should be upheld by both Husband and Wife throughout their lives. Marriage is,
therefore, a sacred bond, which cannot be broken through divorce on any of the
personal or selfish grounds.

2.2 Concept of Marriage

In ancient era humans were not civilized and their job was to hunt animals and live
under trees as they had no homes and wander for their livelihood. Men used to have

18 Marina Adshade, “The Origin of Marriage (And the Evolution of Divorce)”, available at
http://bigthink.com/ dollars-and-sex/the-origin-of-marriage-and-the-evolution-of-divorce,
Visited on March24, 2018.

24
sex with any woman in their group whenever they desire to do so. Therefore, there
was no faithful relation like marriage. As there was no institution of marriage so sex
life was not restricted to any single person. To create a good family system and a
humble society some social leaders and some elders established the new system i.e.
marriage. To preserve social harmony the institution of marriage started developing
and Procreation became essential for the survival of all forms of life in this world.

The Concept of marriage has two ultimate views i.e. traditional view and individual
liberal view. But in today’s world as education, modernization and westernization has
taken roots in the society and have great impact on the mindset of youth so they seem
to have entered into both the views to their advantage. The concept of marriage in
India has three different aspects:

(i) The Social concept: Social concept of marriage has its roots in cultural
and traditions.
(ii) Individual or personal: Personal or individual concept of marriage is
base d on individual liberty.
(iii) Legislative & judicial concept: Legal concept of marriage is embedded
in statutory matrimonial laws.
2.2.1 Concept of Hindu marriage

Hindus believed the institution of marriage as a sacramental union as well as a holy

union. Wife is not merely a Gruhapatni but also Dharmapatni and Sahadharmini.
According to Manu, husband and wife are united to each other not merely in this life
but even after death, in the other world. Marriage is a sacramental union that implied
as a sacrosanct union. Hindus conceived of their marriage as a union primarily meant
for the performance of religious and spiritual duties. Such a marriage cannot take
place without the performance of sacred rites and ceremonies. Secondly, a
sacramental union implies that it is a permanent union. Marriage is a tie which once
tied cannot be untied. This implies that marriage cannot be dissolved. Thirdly, the
sacramental union means that it is an eternal union. It is valid not merely in this life
but in lives to come. The main aim and objectives of this institution of marriage is to
achieve cohabitation of man and woman, holding the supreme values of Dharma
(duty according to law and religion), Arth (economic effort and achievement), Kama

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(love and procreation) and purusharth (best and noble actions and deeds). These are
the material determinants of the concept of marriage. Moreover, the institution of
marriage enjoins and obliges both husband and wife to live together under the same
roof and by common effort to achieve the good of both. The objects of a Hindu
marriage have been to uphold offspring or able to perform religious rites and
sacrifices (which a man can perform only along with his wife) and to have highest
conjugal happiness and heavenly bliss for the ancestors and oneself. The achievement
of all these objectives is dependent upon the wife. Mahabharat in its Chapter Anu
Parva denotes that a wife is half part of the man and she is called as “Ardhangini”,
and the wife is medicine to a grievance husband19.

2.3 Historical Evolution of Divorce

The basic principles of Hindu law are present in the 'Vedas' or revealed texts, which
are believed to have been divinely inspired. Hindu Law is about 3000 years old; its
origin can be traced back from the Vedas. It is said that Lord Brahma, the creator,
and the first member of Hindu Trinity himself enunciated the Vedic texts. They were
regarded as infallible and as supreme to the early Hindus as were decay locks to the
later Christians. One can also discover in ancient India sacred works like the Puranas,
the two great epics. The Ramayana, the Mahabharata and the Bhagvata Gita, the
moral foundation upon which was built the Hindu law which has been in continuous
application to this day20. The Vedas, which are also called Shruti, what is heard is also
revealed text. Like any other revealed texts, the Vedas contains many titles of positive
law. They believed that the Rishis or sages of immemorial antiquity heard it and
transmitted it for next generation. There is another class of scripture known as the
Smriti which means tradition or 'what is remembered'. Smritis are different from
Shrutis as they are not a direct perception of the divine precepts but are an indirect
perception founded on memory. These two sources are considered as fundamental
source of Hindu Law. In ancient society the Hindu sages were the leaders of the

19 Chapter VI, “Conclusion”, available at

http://shodhganga.inflibnet.ac.in/bitstream/10603/71410/15/15_ chapter%206.pdf (Visited on:
June12, 2018).
20 D.K. Srivastava, RELIGIOUS FREEDOM IN INDIA, Deep & Deep Publications, 1982,
p. 213.

26
community and they were revered both for their holiness and their profound learning.
The rules laid down by them formed the basis on which the society was organized. In
addition to their religious duties they also served as a code of ethics and morality but
also governed social matters, and matters relating to politics and government. But in
the early writings of these sages no distinction was made between civil laws and
religious and social laws. It is only the later treatises that dealt them separately. That
is why it seems that in early societies law and religion were inter-twined and were
often indistinguishable from each other. During the Vedic age (1400 BC- 1000 B C)
Hindu Marriage was considered as indissoluble union and a religious sacrament. In
those times, the glorification of women was limited to literature only. In ancient era,
women in Hindu society used to have limited freedom. Women were considered as
things and were bought and sold, abducted, married forcibly and forced to slavery or
prostitution etc. They were treated as animals. They had no personal will. In old days,
there was nothing like the modern concept of a divorce or a legal separation in Hindu
community. Once a woman used to get married and left her parent's home, she was
completely at the mercy of her husband and his parents and if at any point of time he
found her incompatible or unattractive, he used to abandon her, and there was a little
that she could do. There was no right to Divorce for her and on her being widowed
she had no right to remarry. She had to seek husband’s permission to approach
anyone else. On one hand Manu stipulates that women should be honored and adored
by father, brother, husband and brother-in-law. His ultimate verdict is that where
women are honored there the god’s dwell, where women are dishonored and live in
sorrow the house-hold perishes for a curse dwells in that house and no religious rituals
yield any reward21. But on the other hand Manu22, viewed the women with suspicion

21 G. Buhler, THE LAWS OF MANU, Ch.III, Verses 54-59, p. 85, Kulluk Bhatta,
MANUSMRITI Chapter III Verses 54-59, p 91 Motilal Banarasi Das (1983).
22 V. Jayaram, “Hinduism and Divorce”, available at
http://www.hinduwebsite.com/hinduism/h_divorce.asp#fn01 (Visited on February 2, 2018),
Following are some of the excerpts from the Manusmriti regarding the duties of a chaste wife.
(Chapter 5)
147. By a girl, by a young woman, or even by an aged one, nothing must be done
independently, even in her own house.
148. In childhood a female must be subject to her father, in youth to her husband, when
her lord is dead to her sons; a woman must never be independent.
149. She must not seek to separate herself from her father, husband, or sons; by leaving
them she would make both (her own and her husband's) families contemptible.

27
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. But the situation was different in the
case of men. Men on the other hand used to enjoy many rights and privileges, which
they exercised in the name of religion and family. They were considered as the
upholders of Dharma. 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

150. She must always be cheerful, clever in (the management of her) household affairs,
careful in cleaning her utensils, and economical in expenditure.
151. Him to whom her father may give her, or her brother with the father's permission, she
shall obey as long as he lives, and when he is dead, she must not insult (his memory).
152. For the sake of procuring good fortune to (brides), the recitation of benedictory texts
(svastyayana), and the sacrifice to the Lord of creatures (Pragapati) are used at
weddings; (but) the betrothal (by the father or guardian) is the cause of (the
husband's) dominion (over his wife).
153. The husband who wedded her with sacred texts, always gives happiness to his wife,
both in season and out of season, in this world and in the next.
154. Though destitute of virtue, or seeking pleasure (elsewhere), or devoid of good
qualities, (yet) a husband must be constantly worshipped as a god by a faithful wife.
155. No sacrifice, no vow, no fast must be performed by women apart (from their
husbands); if a wife obeys her husband, she will for that (reason alone) be exalted in
heaven.
156 . A faithful wife, who desires to dwell (after death) with her husband, must never do
anything that might displease him who took her hand, whether he be alive or dead.
157. At her pleasure let her emaciate her body by (living on) pure flowers, roots, and fruit;
but she must never even mention the name of another man after her husband has
died.
158. Until death let her be patient (of hardships), self-controlled, and chaste, and strive (to
fulfil) that most excellent duty which (is prescribed) for wives who have one husband
only.
159. Many thousands of Brahmanas who were chaste from their youth, have gone to
heaven without continuing their race.
160. A virtuous wife who after the death of her husband constantly remains chaste,
reaches heaven, though she have no son, just like those chaste men.
161. But a woman who from a desire to have offspring violates her duty towards her
(deceased) husband, brings on herself disgrace in this world, and loses her place with
her husband (in heaven).
162. Offspring begotten by another man is here not (considered lawful), nor (does
offspring begotten) on another man's wife (belong to the begetter), nor is a second
husband anywhere prescribed for virtuous women.
163. She who cohabits with a man of higher caste, forsaking her own husband who
belongs to a lower one, will become contemptible in this world, and is called a
remarried woman (parapurva).
164. By violating her duty towards her husband, a wife is disgraced in this world, (after
death) she enters the womb of a jackal, and is tormented by diseases (the punishment
of) her sin.
165. She who, controlling her thoughts, words, and deeds, never slights her lord, resides
(after death) with her husband (in heaven), and is called a virtuous (wife).

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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.23

The great preachers of that time considered women as an inferior to men. Even certain
verses of the Vedas proclaim that the mind of a woman is uncontrollable and there
can be no friendship with women for they have wicked hearts.24 Later works of Shruti
have also declared women as weak and wretched25 and no sympathy or kindness must
be shown to her. In the medieval society the position of woman went to an all-time
low level. It is surprising to know that not even Indian but western philosophers also
considered women as inferior to men. According to Aristotle, women is to the man as
the slave to the master, the manual to the mental worker, the barbarian to the Greek
Women is an unfinished man left standing on a lower step in the scale of
development. The male is by nature superior and the female inferior. The one rules
and the other is ruled and this principle extend of necessity to all mankind. Women,

23 Ibid.
24 Vishveshwara, RIG VEDA WITH COMMENTARIES, Vedic Research Institute1965 and
RIG VEDA SAMHITA, Vedic Research Institute, 1951 X. 95.15 VIII 33.11.
25 Pandurang Vaman Kane, HISTORY OF DHARMASASTRA, Vol II Part I, Bhandarkar
Research Institute,1941, pp. 576-550.

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according or Aristotle are weak of will and therefore incapable of independence of
character or position. Finally Aristotle declares that the best condition for a woman is
a quiet home life in which while ruled by the man is her external relations; she may be
supreme in domestic relations. He says the dissimilarity between men and women
should be increased.26

The question corollary to the above findings is that, in spite of the high status
conferred to her in the scriptures at which point did her decline begin and why. The
answer, it appears, lies in the fact that the primitive man had to wage war with his
fellowmen whose savage instincts rendered their own existence precarious and that of
the women and children almost impossible as they were physically much weaker than
them. This naturally resulted in the formation of groups and alliances. Women,
children and slaves, in the same order of priority, formed the vulnerable group. The
stronger group of men began to bestow their protection on these groups, because
women by giving birth to a child assure the continuation of a community, a social
group. Hence she is valued and needs to be protected for her procreative power. This,
perhaps also, concealed the proprietary right in its embryonic form. In return of the
protection given, man began to demand unquestionable services. This heralded to
curtailment of liberties to this vulnerable group which resulted in absolute suppression
in later years. Infusion of religious ideas into the social fabric rendered the situation a
solemn rationality. The suppression, perhaps also flows from the fear that given a
chance the women may really live up to the exalted position allotted to her by religion
and ideology and may even be able to do justice to that role.27

In the institution of Marriage, have came out of the need and the role of man is that of
a protector especially in view of woman’s procreative powers and of the women
rendering unquestionable service. As the institution of marriage became the most
important social institution the question of woman’s subservience became eternal.
Since marriage is the most important of all social institutions, the law must decide as
to what is meant by marriage.

26 Aristotle, THE POLITICS, Penguin Classics, 1988, p13; R.G. Mulgan, ARISTOTLE’S
POLITICAL THEORY, Clarenden Press, 1977, pp 20, 44-47, 61,79.
27 Gangotri Chakraborty, “Divorce under the Ancient Hindu Law”, available at
http://indiankanoon.org/doc/ 1656031/, (Visited on January31, 2018).

30
Equal treatment to both the parties to marriage is the benefit to the community. Law
has come far from the original approach which treated the wife as a mere chattel
under the control of her husband. Originally marriage was seen in terms of contract,
dissolution in terms of property and marital offence. But the recognition of the
individuality of married women has been a slow process. What is equally important as
physical freedom is economic independence. Law must recognize that the unity of
married life lies in the oneness of the husband and wife; however this should not be
used to justify the preservation of the unity of family life at any cost and to reduce the
wife to a subordinate position. Once the institution of marriage is recognized legally,
divorce must be recognized per se. Yet the shruties, samriti and the scripture prima
facie the right for divorce. However, Narada and Parasara recognize the contingent
situations where a woman should be permitted to remarry.28

Narada and Parasara mention five circumstances in which a woman may abandon
her husband and take another when:

1. the husband is missing (for a long time).

2. the husband is dead.
3. the husband becomes an ascetic.
4. the husband is fallen (patita or out-caste29).
5. the husband becomes impotent.30

She can marry again after waiting for three months31. Narda has created a confusion
by using the word Kanya here as it may be taken to mean a maiden, a women or a
betrothed girl. But as at the time of Narda a maiden or a betrothed girl were not
expected to know about the impotency of her husband so Logically, however it must
be understood to mean a woman because at the time of Narada, a maiden or a
betrothed girl could not have been expected to know whether her would be husband is
an impotent or not.

28 Ibid.
29 Narada, XII, 81; Parasara, X, pp. 26-35.
30 Narada Smriti Ch XIII Verse 16,24,97,98 as referred to in Bhagbat N. Deshpanday.
DIVORCE AND HINDU SMRITIES, AIR 1934 Jour 204; Krishna Nath Chatterjee, HINDU
MARRIAGE PAST AND PRESENT, Tara publications, Varanasi 1972, p. 263.
31 Ibid. Verse 24.

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Parasara Smriti is in agreement with Narada Smriti. According to Parasara a woman
may marry again for all the reasons cited by Narada32. The word "Patita" used by
Parasara”33 is of wide significance for this word is capable of several interpretations.
Within it is included a man who is excommunicated, a man who is suffering from
sinful diseases like leprosy, venereal diseases and a man who is guilty of crimes like
rape, adultery, murder, incest etc. Conversion from one religion to another was not
significant or relevant at the time of Narada or Parasara but conversion is a
significant factor in the present context. It can be well understood what a conversion
would have amounted to in the days of the aforementioned srutis. Any action,
omission or behavior not in keeping with the normal norms of behavior was a good
cause for excommunication. An excommunicated man is a patita. Thus in view of this
wide backdrop of various causes and interpretations, it becomes clear that a woman
could avail of any of the above causes for divorce if she claimed that her husband had
become a patita. More than Narada, Parasara makes himself very clear on the issue
by clearly using the word “pati” which means a husband. Contextually too Parasaras
intention is very clear. He refers to a situation where the husband is unheard of for a
long time, or has left the grihasthasrama (Domestic Life) for Sanyas(life after
renouncing the domestic life) and refers to the impotency of the husband. All these
situations can arise only after marriage, thus, laying a quiet emphasis on the question
of divorce.

Kautilya is crystal clear on the concept of divorce but he excludes the first four types
of marriage from the rights of divorce. The first four superior form of marriage are
those that Kautilya refers to as dharmya, namely Brahma, Prajapatya, Arsa, Daiva.
For the remaining four types i.e. Gandharva, Asura, Rakshasa and Paisacha he
concedes divorce34. According to him “a woman may abandon her husband if he is of
bad character, if he is absent for a long time, if he has become a traitor, or is likely to

32 Parasara IV. 28. Madhavacharya. PARASARA SMRITI, Parasara Madhava Volumes II & III,
ChandrakantaTarkalankar PRAYASCHITTA KANDA AND VYAVHARAAKANCE,The
Asiatic Society, 1973.
33 Ibid.
34 V.K. Gupta, KAUTILYAN JURISPRUDENCE, B.D.Gupta Publication, 3rd ed. 1987, Ch. III
Verse 15-19; R.P. Kangle, THE KAUTILYA‟S ARTHASASTRA, 3.3. 15-19, Part I,
University of Bombay, 1969.

32
endanger her life, is an out-caste and lost his virility”.35 A disaffected wife is not to
be granted divorce from the husband who is unwilling nor the husband from the wife,
By mutual disaffection alone a divorce shall be granted, or if the husband seeks
divorce because of the wife’s offence he shall give her whatever he may have taken. If
the wife seeks divorce because of the husband’s offence, he shall not give her
whatever may have been received. There is no divorce in pious marriage. Thus ends
disaffection.36 That is why in the existing scenario a new element of mutual
disaffection is introduced.

Very clear concepts emerge from the above discussion of Kautilya37 in that he
recognises desertion, cruelty, apostasy, impotency and mutual consent. When the
husband leaves the wife and goes to a foreign land, if the husband is unheard of for a
long time or if the husband has withdrawn himself from the society of his wife, it
amounts to desertion. Cruelty however, is a wider term, though Kautilya’s use of this
term is only restricted to physical violence, but still it may include not only personal
violence but the fact that the husband is a drunkard, rake or is a degraded man,
apostasy is more relevant today than the medieval society. Impotency of the husband
is a vital factor in all times and mutual consent or divortium bona gracia is unique in
that in Hindu law Kautilya uses it for the first time. Add to these concepts the
eloquent concept of patita and we get a wide spectrum of causes and reasons when the
wife may divorce her husband38.

This reflects a picture of the society where the woman has a right of sex and happy
marriage and was assured against neglecting husbands. Interestingly all the
Smritiakars have given the right to divorce, laying down very special and exceptional
grounds. Most of these grounds are not made available to the husbands. Which can
only mean that the husbands were to follow monogamy except in the case of adultery
or mutual disaffection when he could cast his wife away? However, only the reverse
situation was true. There was a rising rate of polygamy on one hand incidents of
divorce being almost nil.

35 Kautilya III.
36 R.P. Kangle, THE KAUTILYA ARTHASASTRA 3.3. 15-19, Part II, University of Bombay,
1969.
37 Ibid. Part III. Ch.II Verse 48.
38 Ibid.

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The reason for this reverse situation in spite of the noble intention of the sages
appears to be two. The men did not really need any special reason to marry again
except for a flight of fancy. Their physical and economic supremacy gave them an
edge over the woman. On the other hand physical vulnerability, economic dependence
and social prejudices made woman stick to their unhappy marriages. They dare not
even dream of divorce let alone ask for one. The reason for this rigid attitude of
women also lay embedded in the precepts of the Primus Patriae of Hindu Law, Manu.
He was also the reason why divorce was not accepted by the higher caste and the
intelligentia of the patriarchal society as they could not afford any freedom to women.

Manu, whose precepts are largely anti women, says about marriage that39 neither by
sale nor by repudiation is a wife released from her husband, such we know the law to
be which the lord of Creatures (Prajapati) made of old40. Once is the partition (of the
inheritance) made, (Once is) a maiden given in ma (and) once, does (a man) say „I
will give‟ each of those three (acts is done) once only41. Let mutual fidelity continue
until death, this may be considered as the summary of the highest law for husband and
wife42. Let man and women united in marriage constantly exert themselves, that (they
may not be) disunited (and) may not violate their mutual fidelity43. In spite of this
bigamy or polygamy was not unknown but the women once discarded by her husband
could never hope to be legally married to another man because for her the marriage
never dissolves.

Still even in Manu’s work, there are certain discrepancies, Manu says if the husband
went abroad for some sacred duty,(she) must wait for him eight years if (he went) to
(acquire) learning of fame, six years; if (he want) for pleasure three years.44 He is
silent on what should the women do after the expiry of the waiting period even though

39 Kulluka Bhatta, MANU SMRITI, Ch. IX Verses 46,101,102 Edited by J.L. Sastri, Motilal
Banarasidas, 1983.
40 F. Max Muller, THE SCARED BOOKS OF THE EAST. Ch. IX Verse 46.
41 Ibid. Ch. IX Verse 47.
42 Ibid. Ch IX Verse 101.
43 F. Max Muller, THE SCARED BOOKS OF THE EAST translated by G. Buhler Vol. XXN
Motilal Banarsidas,1964Ch. IX Verse 102.
44 Ibid. Ch. IX Verse 76.

34
he admits that there is a possibility of her becoming corrupt.45 Buhler46 opines that she
must remain chaste and support herself by blameless occupation, which by Manu’s
own admission does not appear to be possible. The only logical consequence could be
that Manu may have implied by his eloquent silence that she should seek another
husband.

Again Manu says that if a woman abandoned by her husband or a widow, of her own
accord contracts a second marriage and bears (a son), he is called the son of a
remarried women (Paunarbhava)47. Manu could not have formulated the concept of a
Paunarbhava son if such incidents did not exist in the society then. Thus behind the
iron-strong commandments regarding marriage there is a tacit acceptance of divorce.

The earliest example of this tacit acceptance is found in the Atharva Veda. In Atharva
Veda it is stated that whenever a woman having married one husband marries another
and if they two offer a goat with five dishes of rice, they would not be separated from
each other. The second husband secures the same world with his remarried wife when
he offers a goat accompanied by five rice dishes and with the light of fees.48

The superiority of Manu and all the teachers of law are not in dispute. However, one
would have expected Manu to cue from the above mentioned Vedic verse and develop
upon the issue Instead it is seen that smritikars and law teachers posterior to Manu
have been more liberal on point. But for some reason or another Manu Smriti had a
greater binding effect on the society than the Veda or its implied nuances.
Manusmriti, translated as "The Laws of Manu" or "The Institutions of Manu," is the
most important and authoritative Hindu Law Book (Dharmashastra), which served as
a foundational work on Hindu law and jurisprudence in ancient India at least 1500
years. Until the modern times, it was the standard reference for adjudicating civil and
criminal cases by both the rulers who patronized Vedic faith and the people who
practiced Hinduism. Hinduism has many law books. Of them, Manusmriti is certainly

45 Ibid. Ch. IV Verse 74.

46 G. Buhler, THE LAWS OF MANU, Motilal Banarasi Das Publications, 1964.
47 Ibid, Ch. IX Verse 175.
48 ATHARVAVEDA (Saunaka) Navam Kandam Su V.M. 27-28 with the PADAPATHA AND
SAYANACHARYAS COMMENTARY, Edited by Vishvabandhu Art II (Kanda VI-
X).Vishveshyarananda, Vedic Research Institute, Hoshiarpur, 1961.

35
the most popular and authoritative work. Manu in Hindu tradition is considered to be
the first of Brahma's sons and a progenitor of human race. Therefore, it is difficult to
determine the age of Manusmriti. The laws of Manu might have been known to the
Vedic people for a long time before they were codified into their present form
sometime during the post Vedic period. The work that we have today as Manusmriti
might have reached its final form through the contribution of many by 200 CE.49 The
custom of divorce continued to prevail among the Sudras and other low castes but
marriage became a Samskara, a sacrament and religious institution for the upper
castes. For them it became a spiritual union or a holy unity without any possibility of
its dissolution.

The reason for this perhaps is the fact that some parts of Manu‟s smiriti appear to be
of later origin. This is further emphasized and proved by Julius Jolly. To quote Jolly:

“The author of our M (Manu) at all events already knew various older law
books as he speaks of Dharmasastras in general as well as mentions several
teachers of law by name. The Vaikhanasa school for example which he refers
to when describing the duties of the Vanaprastha, has left us a Dharmasutra,
which though a very late work in its present form, yet that particular section
about Vanaprasthas shows a remarkable point of agreement with Manu.”50

Julius Jolly also establishes a link between Manu and Manava School which he traces
through Vishnu and Kathaka School and arrives at the conclusion that, “It should not
therefore, be doubted that the author had made use of works of various schools when
he intended to write a didactic poem on Dharma binding on all castes and to set it off
with the name of Manu, who had so long been glorified as the first parent of mankind
and was considered to be descended from Brahman the universal soul, or was
identified with it and was said to be the founder of the social order in this world, and
was renowned as the inventor of sacrificial usages and as the religious law giver.”51

49 V. Jayaram, “Manusamriti the laws of Manu- Introduction”, available at

http://www.hinduwebsite.com/ sacredscripts/hinduism/dharma/manusmriti.asp (Visited on
March28, 2018).
50 Julius Jolly, HINDU LAW AND CUSTOM, Bharatiya publishing House, 1975, p. 37.
51 Ibid. p. 38.

36
The contention of Jolly is further substantiated by a reading of the text of Manu
Smriti.52As a result of this, Manu developed a comprehensive and well planned text
which was naturally appreciated by and suited the intelligentia and the upper castes.
And since it suited their interest, it was implemented with tremendous vigour and
zeal. Thus the woman found herself more bound by these commandments. The
prevailing social custom and background also helped in this. The unique institution of
custom had a major contribution to make towards the developments of marital
relationships. Customs is perfectly democratic means of evolving social norms53 and
as the new norms evolved the older and untenable ones are destroyed. As a result on
one hand no specific matrimonial remedies took shape and on the other hand due to
their dependence both economic and protectoral, women were reduced to absolute
suppression and submission. The consequence was casuistry distortions of
commonsense values and human transactions and behaviours.54

Considering all the foregoing discussion, the statement that divorce is an idea which is
foreign to Hindu law is incorrect. The shastras really did not overcome the customary
element of the Hindu society. The rewaz-e-am of the agricultural class known as Jats
in the district of Jalandhar in the present state of Punjab is known to have followed
the custom of divorce by simply repudiating the marriage after which the spouses
could remarry. It is also a well-known fact that among the scheduled castes and
certain tribes divorce is easily obtained.

This fact was recognized by the Parliament because while enacting the Hindu
Marriage Act in the Year 1955 the Parliament in of abolishing customary divorce
gave it a special recognition under section 29 of that Act. Customary divorce thus was
remaining available to millions of Hindus in India. The Parliament has relied upon the
ubiquity of that right among the lower caste to introduce judicial divorce among the
upper caste.

52 G. Buhler, THE LAWS OF MANU, Motilal Banarasi Das publications, 1964.

53 Virender Kumar, “The Working of Formal Adversary Procedure in the solution of marital
conflict problems”, Banaras Law Journal, 1983, pp. 60-83.
54 Virender Kumar “Is not Law Rising Form Dogmatic Slumber”, Punjab University Law
Reform (reprint) 1991, p. 5.

37
However, the introduction of divorce has not interfered with the Samskara of
marriage, still less abolish it Divorce has not turned Hindu Marriage into contracts.
Marriage according to shastra is still a samskar, judicial divorce does not affect that
aspect, and it merely terminates the secular right of one spouse against other and frees
each other to enter into another union.55

The society has taken a very long time to realize this. The first attempt at making
written statutory provision for divorce as late as in the 20th century that is in the year
1931 in the form of the Divorce Act, 1931. Under this both the husband and the wife
were given the right to divorce for impotency, adultery, bigamy, desertion,
conversion, cruelty, intoxication and in addition to these, if the wife was pregnant at
the time of marriage or if either of the spouses disappeared for seven years or more.
This was soon followed by the Madras Act, 1933. After this the boldest attempt
towards the granting of divorce was made, in the form of the Hindu Marriage Act,
1955 which was applauded spontaneously and received a tremendous response.

While talking of the Hindu Marriage Act 1955 one must realize that this enactment,
by introducing divorce merely universalized what was hitherto for applicable only to
the lower castes Divorce was and is even now enjoyed by the lower castes,
notwithstanding the norms of Dharmasastra or any other legal precepts. However this
universalization has not made any significant change in the status of the women.
Keeping the oppressed condition of women as a common denominator, the situation is
still the same today. Majority of women do not claim divorce because of their
dependence especially economic dependence on their husbands. Today divorce has
taken form of punishment, where a person has a de facto power to inflict evil on
another for instance because of the latter’s economic and moral dependence on him
where the sovereign neither authorize nor forbids the exercise of that power.

To understand the inner mechanics of divorce one must understand what marriage
involves socially as well as legally. Socially speaking, when the marriage takes place
the woman as her newly gained status of a wife get a specific domestic, economic and
sexual status. These changes are quite significantly different from what she enjoyed

55 Harisingh Gour, THE HINDU CODE, Vol. 1, Law Publishers, 1974, pp. 8-12.

38
during her maiden days. In her maiden days, domestically she remains as one of the
many members of her father’s family. On marriage she assumes the role of a
manageress, either immediately or gradually. Economically she remains dependent.
Only the nature of dependence gets changed. Sexually her status undergoes an
overwhelming change. For in her father’s house she is only a member of the family
she does not have any specific significance as the procreator or propagator of her
father’s lineage, but she on marriage gets an added significance as progenetrix. She is
the procreator or propagator of her husband’s lineage. To this extent she acquires a
special right which was unknown to her before marriage. This perhaps is the most
significant social change a woman undergoes on marriage her status changes in many
ways but the role of the progenetrix is the most important one. In short, therefore,
marriage is the institution whereby men and women are joined in a special kind of
social and legal dependence for the purpose of founding a family.

Marriage therefore is jural relationship involving the transfer of certain jural

consequences in shape of rights, duties obligations and disabilities between the parties
to the marriage. This transference or creation of the jural rights is true of all
marriages. On marriage according to the Hindu law, the gotra of the women changes
to that of the husband. This legal fiction is followed only to signify the change of the
rights duties and obligations qua her husband and his family. That is the reason why
the change of gotra is signified irrespective of the form of the marriage. On the death
of the husband also the wife does not revert to the gotra of her father and according to
the ancient Hindu law her sexual right continued to be vested in the family of her
husband.

The principal right acquired by the women is that of the pro-genetrix of her husband’s
family. As a consequence she gets an absolute right to her husband’s society.56 This is
an express condition in the nuptial vows. That is why one party can sue the other for
the restitution of conjugal rights and marital fidelity is held in such high esteem even
in the Modern Hindu Law. Under the Hindu law the question of sexual morality was
carried to the extent that the widow of the deceased brother was taken by the other

56 Punjab Rao v. Atmaram, AIR 1926 Nag 124.

39
brothers in a custom called niyoga.57 Instances of such a nature are found in the Rig
Veda as well.58 Accordingly in Hindu law the marriage of the women or the bride is
not only with her husband but also to his kula i.e. Family.

This was perhaps aimed at preventing the passage of the family property to another
family and so the brother of the husband or anybody who could represent him or by a
pupil or by an old servant could even stop the widow from ascending her husband’s
funeral pyre.59 However this practice was put to an end by Apastamba and Manu. If
the sole reason for owning the women sexually was to prevent passage of property to
another family then they succeeded admirably. But on the other hand if the raison
detre behind this system was carriage of one’s own name and thereby his family
name, then beyond doubt, the problem remained unsolved. Kane thinks that the great
hankering for a son, evinced by all Vedic times was the most important cause of this
age old system, because the son was a religious necessity.60 So in default of a natural
son from her husband the women in her role of a pro-genetrix could beget a son
through the system of niyoga and in such cases, according to Manu the property
remains within the family and confined to the husband as he remains tie owner of
both the wife and the son61.

The Jural relationship of the marriage was very well discussed by Justice A.M.
Bhattacharjee in Kamal Kumar Basu v. Kalyani Basu62. Where the appellant husband
sought divorce on the ground of desertion by the wife who had been forced to leave
her matrimonial house because of a broken down relationship between herself and her
sister-in-law who had brought up her husband and also due to the uncompromising
attitude that was adopted by her husband. It was admitted that the wife never
misbehaved with her elder sister-in-law. While upholding the wife‟s claim for a
separate matrimonial home Bhattacharjee, J. asserted in no uncertain term that in the

57 K.M. Kapadia, MARRIAGE & FAMILY IN INDIA, Oxford University press, Calcutta, 3rd
ed. 1966, pp. 52-63.
58 RG VEDA, x.188 Vaidika Samsodhana Mandala (Vedic Research Institute), 1951;
Vishweshwara, RIG VEDA WITH COMMENTARIES, Vedic Research institute, 1965.
59 Krishna Nath Chatterjee, HINDU MARRIAGE PAST AND PRESENT, 1972, p. 258.
60 Pandurang Vaman Kane, HISTORY OF DHARMASASTRA, Vol. II, Part I, p 606.
61 F. Max Muller, THE SACRED BOOKS OF THE EAST, Translated by G. Buhler, Vol. XXV,
Motilal Banarasi Das ,1964.
62 92 CWN 323 (1988).

40
context of the set-up of our modern society with Articles 14 and 15 of the Indian
Constitution staring in the face, the wife cannot be exposed to unreasonable
unpleasantness in her matrimonial home. The wife is entitled to the society comfort
and consortium of the husband and those rights come within her rights to personal
liberty under Article 21 of the Constitution.63 So the wife can insist on a separate
matrimonial home away from the unpleasant in-laws and the husband cannot have
either a casting vote or a veto in this regard.

That being so, the women today is no longer married to the Kula or family of her
husband but to the husband alone. Her right in pro-genetricem is confined with the
husband and both acquire certain rights and liabilities against each other which by
logical extension of the above discussion includes the rights to a separate matrimonial
home and as well as a right to divorce.64

2.4 Sources of Hindu Law

There are two different and extreme views of the origin of Hindu Law. One is
according to Hindus that Hindu law as derived from Vedas is of divine origin. The
second view is of western jurists that it is not derived from Vedas; rather it is based on
immemorial customs and usages. Sources of Hindu Law can be divided into two
parts:

Ancient sources, and

Modern sources.
2.4.1 Ancient Sources of Hindu Law:

According to Hindu Dharma there are four basic Ancient sources of Hindu Law:

(a) Shrutis or Vedas- the literal meaning of shruti is ‘heard’. It is believed that it is the
language of divine revelation. Shrutis are consist of four Vedas (Rigveda, Samved,

63 Article 21 not only guarantees the right to life but also defines life as a right to live with
dignity. The scope of this Article was expanded to the widest possible amplitude in cases like
Maneka Gandhi v. Union of India AIR 1978 SC 597 etc.
64 Gangotri Chakraborty, “Divorce under the Ancient Law”, the CENTRAL LAW INSTITUTE
JOURNAL, Vol. XI, 1998 available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/39005/11/11_chapter%203.pdf, (visited on
February 1, 2018).

41
 Yajurved, Atharv ved) and are believed to have been written between 1700-1000
B.C, six Vedangas which are appendages to the Vedas, Six vedangas are– i) The
Siksha or orthography ii) The Kalpa or treatises dealing with rituals iii) The
Vyakaran or Grammar iv) The Chandas or prosody v) The Jyotish or Astronomy
vi) Nirukta or Lexicon and 18 Upnishads dealing mainly with religious rites and
means of attainment of Moksha or salavation.
(b) Smriti- means ‘remembered’, or “What was remembered” thus smritis were
Smritis is known as golden era, because it is era when well organised dependant
on the remembrance of saints and the era of creation of and serial wise
development of Hindu Law started. It is the second important source of Hindu
Law. It is of two types first are prose style and the other is of poetry style. Smritis
are divided into two: a. Dharam Surtra:- Dharam sutra are famous of Gautam,
Buddhyan, Apastamb, Harit, Vishnu and Vasith. b. Dharam Shashtra:- Are famous
for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. Manu smritis made of 12
chapters and 2694 shlokas. Yagyavalkya smriti is divided into 3 parts and is
extremely clear, brief and organised. Narad Smriti being the last smriti is such
first legal code which mentions subjects related to judicial process, courts and
Judiciary.65 Gautama, Baudhyana, Apastamba, Harita, Vasistha and Vishnu are
the chief Dharma Sutra writers and Manu, Yajnyavalkya, Brihaspati and Narada
belong to Dharamashastra. The exact number of smrities is not definitely known,
but Manu Smriti is the earliest one. Although Smrities deal with rules of morality
and religion, they are more secular than the Sruties66.
(c) Sadachara- Litrelly mean ‘good conduct’, originally stood for the established
practices of the virtuous in the society but later in history became synonymous
with custom or usages in general67. After the advent of society human being came
into contact to live a social group and share common interests, it became
necessary to confirm certain patters of human behavior for harmonious life in
groups. This human behavior pattern later called usage or custom. Custom are of

65 LB Notes, “Sources of Hindu law”, available at https://www.legalbites.in/sources-hindu-law/,

(visited on: March 24, 2018).
66 Unit I, “Sources of Hindu Law”, available at http://kamkus.org/coursematerial/Unt-I.pdf,
(visited on March 26, 2018.
67 Tahir Mahmood, PRINCIPLES OF HINDU LAW, Universal Law Publications, ed. 2014,
p. 4.

42
 three types, namely– (i) Local Custom: These types of customs belong to a
particular area or locality, State or District and are binding on the inhabitants of
such area. (ii) Class Custom: Such customs are of a caste of a sect of the
community or of the followers of a particular profession or occupation, like
agriculture, trade, mechanical art etc. (iii) Family Custom: Family customs as the
name suggests are related to a particular family.
Essentials of Customs:
(a) It must be Ancient or antique.
(b) The usage must be invariable and continuous.
(c) It should be certain.
(d) It should be reasonable.
(e) It should not be immoral.
(f) It must not oppose the public policy.
(g) It must not be forbidden by any expressed Law.
Following are some examples of customs unrecognized by the courts:
 A custom, which authorizes a wife to abandon her husband, and remarry
without his consent.
 A Custom, Divorce at will, where a husband leaves his wife at his will and
without the wish of his wife.
 A custom in South India, where a man could marry his daughter’s
daughter.
(d) Atamnastushi- It means ‘whatever is agreeable to soul’; it was used as a tool for
the development of Law. In modern times this concept is known as Equity, Justice
and good conscience. As a branch of legal system equity mean the rules and
principles growing in the course of administration of justice, where the judiciary
evolves the principles on the basis of fairness and justness. Justice, equity and
good conscience has been said and accepted by Supreme Court as basic sources of
Law in India. In Gurunath v. kamlabai68, the Apex court observed that if there
will be a lack of any rule in Hindu Law, the court will have the authority of
applying the principles of equity ,justice and good conscience while deciding a
case.

68 (1951) S.C.R. 1135.

43
Manusamriti has mentioned these sources for Hindu Law quoting,

“Shruti, Samriti, Sadacharah, Swasya cha priamatmanah

Etash chaturvigham prahuh sakshat dharmasya laksharam”.
It means that shruti, samriti, sadachara or customs and atmanashushthi or good
conscience, are the four evident sources of Hindu Law.
2.4.2 Modern Sources of Hindu Law
a. Judicial Precedents: The courts while deciding on any issue do all the
relevant research related to it and decide the case according to the changes
recognized in the society; therefore, the decisions of courts are called a
god and valid source of Law in modern times. The courts are bound to
follow the precedents because they are not only the evidence of a law but
also a source of Law. The judicial decisions are considered as important
sources of Law because they have modified and supplied the pure Hindu
Law. In Udhao v.Beshar69, Bose. J. observed that, “the laws we are
administering are judge made laws. The ancient sages said nothing about
the present matter and even where they often spoke with conflicting voices,
and when they did it, sometimes spoke so enigmatically that the learned
and able commentators were unable to agree as to what they meant. In the
circumstances it is the courts which have molded the Hindu Law and made
it what it is.” There is no denying the fact that judicial decisions have
played an important role in the growth of Modern Hindu Law. They have
immensely influenced the growth of Hindu law.
b. Legislation: It has been an important factor in the development of Hindu
Law. Most of them are in the direction of reforming Hindu Law and some
of them supersede Hindu Law. Prior to the British rule it was difficult to
find fixed principles of law on several areas so British Government passed
certain Acts which have effect of changing the religious nature of Hindu
law at several instances70. Some important legislation are–
i) The Indian Majority Act, 1875.

69 AIR 1946 Nag. 203.

70 Unit I, “Sources of Hindu Law”, available at http://kamkus.org/coursematerial/Unt-I.pdf,
(visited on March26, 2018).

44
 ii) The Transfer of Property Act, 1882.
iii) The Guardians and Wards Act, 1890.
iv) The Indian Succession Act, 1925.
v) The Child Marriage Restraint Act, 1929.
vi) The Special Marriage Act, 1954.
vii) The Hindu Marriage Act, 1955.
viii) The Hindu Minority and Guardianship Act, 1956.
ix) The Hindu Succession Act, 1956.
x) The Hindu Adoptions and Maintenance Act, 1956.
xi) Hindu Succession (Amendment) Act, 2005.
c. Equity, Justice and Good conscience: In some cases where any express law
has not been provided by the legislature, the courts have the right to decide
on the principles of equity, justice and good conscience. It is expected
from the court to decide the issue fairly and justifiably. It has been
observed that even in case if there is any conflict between the rules of
smrities then decision should be based on reason, justice and equity.
According to Kautilya if a Dharma text is found opposing any judicial
reasoning the authority of reasons shall prevail not the Dharma text.
Yajnavalkya said, “that equity should supersede law, if there is any conflict
between two samrities.” In Kanchava v. Girimalappa71, (before the passing
of the Hindu Succession Act, 1956), it was laid down by the Privy Council
that the murderer was disqualified from inheriting the property of the
victim. The rule of English law was applied to Hindu on grounds of
justice, equity and good conscience, and this was statutorily recognised in
the Hindu Succession Act, of 1956. It is, however, to be noted that the
principles of justice, equity and good conscience found due recognition in
the early Hindu Smriti era. An indirect reference to the principles of equity
was found in Manu’s and Yajnavalkyas narration of sources of law where
“what is agreeable to one’s soul (good conscience)” has been suggested as

71 AIR 1942 PC 209.

45
 ordained foundation of law.72 The writers of Dharmshastras themselves
recognized the importance of equity in the growth of Hindu Law.

2.5 Schools of Hindu Law

Vigyaneshwar’s Mitakshara and Jimutavahana’s Dayabhaga were considered as great

juristic works of 11th and 12 centuries in India. Later on these two juristic works were
called two broad schools of Hindu Law i.e. Mitakshra school of Hindu law and
Dayabhaga School of Hindu Law It was Mitakshra school of law which prevailed in
whole of the country whereas Dayabhaga school remained confined to eastern
regions of India. In the centuries to come the local jurists of various different regions
of the nation developed Mitakshra Law into different versions- North, East, West,
South. Thus, Mitakshra regime gave birth to four sub-schools which were developed
by four different jurists in different books as under:

1. Banaras school in Viramitrodaya, written by Mitramisra.

2. Bombay School in Vayavahara Mayukha, written by Nilkanhhabhatta.
3. Madras School in Smriti Chandrika, written by Devanandabhatta.
4. Mithila School in Vivada Ratnakara, written by Chandeshvara.

For centuries together these various schools and sub schools of Hindu law governed
their respective followers in various parts of the country. During the Muslim rule this
diversity was maintained and left undisturbed73. The Britishers who ruled India also
kept it up to large extent. After Independence the codification of Hindu Law
massively, has largely minimized the importance of these abovementioned schools
and sub schools of Hindu Law. Differences between the Mitakshara and the
Dayabaga Schools: The two schools of law differ in two main matters:

1. In some matters connected with the joint family system and

2. in the rules of inheritance.

72 Akshay Kaundal, “What are the modern sources of Hindu Law?”available at

http://www.shareyouressays.com/ knowledge/what-are-the-modern-sources-of-hindu-
law/117871, (visited on March26,2018).
73 Tahir Mahmood, PRINCIPLES OF HINDU LAW, Universal Law Publications, ed. 2014,
p. 6.

46
In the Mitakshara system, the right in the family property is acquired by birth, a
family is a unit and individual rights are not recognized and females have no rights of
succession to family property. This right passes to the male members by survivorship.
In Dayabaga system, the property is acquired by inheritance or by will. The share of a
74
deceased coparcener goes to his widow where there is no nearer heir. One more
point of difference between the two schools is the meaning of ‘spinda’.

2.5.1 How these schools arose?

Originally there was no school to Hindu Jurispudence. The schools under Hindu Law
came into existence when different commentaries interpreting the samrities started to
appear referring to different Local customs in different parts of our nation. The Privy
Council observed in Rutcheputty v. Rajendra75, that the different schools of Hindu
Law have originated due to different local customs prevailing in different provinces of
India. The commentators on the Smritis could not ignore the local customs and usages
and while interpreting the texts, they eventually incorporated different local customs.
The local conditions and customs of the different provinces have, therefore, gone to
mould the principles of law prevailing in each province. Process of development.In
the case of Collector of Madras v. Moottoo Rantalinga76, the Privy Council has held,
“The remoter sources of the Hindu Law (i.e. Smritis) are common to all the different
schools. The process by which those schools have been developed seems to have been
of this kind. Works universally or very generally received became the subjects of
subsequent commentaries. The commentator put his own gloss on the ancient text;
and his authority having been received in one and rejected in another part of Indian
schools with conflicting doctrines arose”. The differences between the sub-divisions
of the Mitakshara school are comparatively few and slight.

2.6 Application of Hindu Law

Before the advent of Muslims in India, the term ‘Hindu’ had no creedal connotation.
Then it had a territorial significance probably it also denoted nationality. It seems that

74 Unit I, “Sources of Hindu Law”, available at http://kamkus.org/coursematerial/Unt-I.pdf,

(visited on March 26, 2018).
75 1839 PC 133.
76 1(1968) 12 MIA 397.

47
word Hindu came into vogue with the advent of Greeks who called the inhabitants of
Indus valley as indoi and later on this designation was extended to include all persons
who lived beyond the Indus valley.77 But today the word ‘Hindu’ has no territorial
significance and also is not denoted nationality. Now modern India is abounding in
personal laws, every community in this country has its own personal laws. The power
of the court to apply Hindu Law before Independence was derived from the Acts and
statutes passed by the British Parliament and Provincial Legislatures from time to
time.

Now under the constitution of India it is provided in Article 372 that all laws in force
in the territory of India immediately before the commencement of Constitution, i.e.
26, Jan 1950, shall continue until altered or replaced or amended by a competent
Legislature or other competent authority.78

After the Constitution was adopted, 4 Major Acts have been passed with a view to
overhauling the law concerning the above subjects. They are

I. Hindu Marriage Act, 1955

II. Hindu Succession Act, 1956
III. Hindu Minority and Guardianship Act, 1956
IV. Hindu Adoption and Maintenance Act, 1956

Uncodified Hindu law applies to the following categories of persons

(a) Hindu by Birth, and also Hindus by religion (i.e. Converts to Hinduism)

(b) Illegitimate children where both parents are Hindus

(c) Illegitimate Children where the Father is a Christian and Mother is Hindu
and the children are brought up as Hindus

(d) Jains, Buddhist in India, Sikhs and Nambudri Brahmans.

(e) A Hindu by birth who, having renounced (given up) Hinduism, has
reverted to it after performing the religious rites of expiation and repentance.

77 Paras Diwan, MODERN HINDU LAW, Allahbad Law Agency, 18th ed. 2007, p. 1.
78 R.K.Aggarwal, HINDU LAW, Central Law Agency, 25th ed. 2016, p. 11.

48
 (f) Sons of Hindu dancing Girls of the naik caste converted to
Mohammedanism, where the sons are taken into the family of the Hindu
Grandparents and are brought up as a Hindu

(g) Brahmos, Arya Samajists and Santhals of Chota Nagar, and also Santhals
of Manbhum except so far as it is not varied by custom

(h) A person who is born Hindu and has not renounced the Hindu religion.

Section 2 of the Hindu Marriage Act, 1955 says:

1. This Act applies -

(i) 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;

(ii) to any person who is a Buddhist, Jain or Sikh by religion; and

(iii)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.

2.6.1 Definition of Hindu

The Supreme Court of India defined the features of a Hindu in its 1995 ruling of the
case, “Bramchari Sidheswar Shai and others v. State of West Bengal”79. At one place,
it says that the court identifies the following seven defining characteristics of
Hinduism and by extension Hindus:

(i) Acceptance of the Vedas with reverence as the highest authority in

religious and philosophic matters and acceptance with reverence of Vedas
by Hindu thinkers and philosophers as the sole foundation of Hindu
philosophy.

79 1995 SCC (4) 646.

49
 (ii) Spirit of tolerance and willingness to understand and appreciate the
opponent’s point of view based on the realization that truth was many-
sided.
(iii) Acceptance of great world rhythm, vast period of creation, maintenance
and dissolution follow each other in endless succession, by all six systems
of Hindu philosophy.

(iv) Acceptance by all systems of Hindu philosophy, the belief in rebirth and
pre-existence.

(v) Recognition of the fact that the means or ways to salvation are many.

(vi) Realization of the truth that Gods to be worshipped may be large, yet there
being Hindus who do not believe in the worshipping of idols.

Following persons are Hindus under Codified laws,80

(a) Any person who is Hindu by religion in any of its forms or developments
including a Virashaiva, a Lingayat, or a follower of the Brahmo, prathana or Arya
Samaj;

(b) Any person who is either a Buddhist, or a Jain by religion or a Sikh by

religion and

(c)Any other person domiciled (Reside) in the territories to which these Acts
extend who is not a Muslim, a Christian, a Parsi or a 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 which are dealt
with herein if this Act had not been passed.

The following persons are Hindus, Buddhist, Jainas or Sikhs by religion as the case
may be:-

(a) Any child legitimate or illegitimate, both of whose parents are Hindus,
Buddhist, Jainas or Sikhs by religion;

80 Section 2, Hindu Marriage Act 1955.

50
(b) Any child, legitimate or illegitimate, one of whose parents either (father or
mother) is a Hindu, Buddhist, Jainas or Sikhs by religion and who is brought
up as a member of the tribe, community, group or family to which such parent
belongs or belonged.

(c) Any person who is a convert to the Hindu, Buddhist, Jainas or Sikhs by
religion

Persons, who have been declared to be members of the Scheduled Tribe within
the meaning of clause (25) of Article 366 of the Constitution are not to be
treated as Hindus unless the Central govt. by a notification in the Official
Gazette, declares them so.

The Uncodified Hindu Law does not apply

(i) To the legitimate children of a Hindu Father by a Christian/Muslim mother

and who are brought up as Christians/Muslims.

(ii) To the Hindu converts to Christianity

(iii) To a convert from Hindu to the Mohammedan faith. But the conversion must
be bonafide.81

2.7 The nature of Hindu Marriage

Under Hindu law, that is to say, in the dharma Shastra or 'orthodox' Juridical
theory of India, marriage (Vivaha) is one of the ten samkaras necessary for men of the
twice born classes and the only Vedic sacrament for women. As in canon law and
moral theology matriminum is treated under sacraments, so in Hindu law vivaha is not
treated under vyavahara (litigation) but under samskara. A samskara is a sacrament
or a purificatory act. Marriage is considered sacred because it is said to be complete
only on the performance of the sacred rites attended with sacred procedure. This
samskara gives rise to the status of wifehood and its performance cannot be annualed
by the fact that the husband or wife lapses from virtues i.e. by committing adultery. It

81 Nangilsuvai, “Application of Hindu law”, Legum Baccuraleus, 2014 available at

http://asksts.blogspot.in/2014/02/application-of-hindu-law.html (visited on March 27, 2018).

51
is almost impossible to define marriage in legal terms but the Shastric concept of
marriage would seem to be as a union between a man and a woman which arises at
the time when the ceremony of marriage (i.e.) (samskara) has been completed, the
bridegroom having the requisite qualifications for taking a girl in marriage and the
bride the qualifications for being given in marriage, and this procedure having been
completed before the nuptial fire. Marriage is a sacramental rite, which is performed
for the girl for the purpose of making her a wife and is marked by the holding of
hands along with its entire procedure and subsidiary details. It gives the status of
husband and wife to the married couple. The mantras used in ceremony of wedding
create a wife. The sacrament becomes complete by the use of those mantras. As
regards the marriage of a Sudra, there are no mantras but other rites apply excluding
the mantras.82 From ancient times marriage in Hindu dharma has been considered as a
sacrament and indissoluble bond between the two people who get married and enjoy
the status of husband and wife. There has not been found any trace of word “Divorce”
in Hindu Dharmshastras. Under Hinduism, marriage is indispensably considered as a
branch of the four aims or purusharthas and the four stages or ashramas of human
life. Marriage has been considered as a religious sacrament and responsibility or
Dharma of each and every individual who belongs to Hinduism, unless he or she has
accepted the life of renunciation. Marriage according to Hindus is a sacred
relationship of two souls and not of two bodies. For the continuation of family lineage
and practice of Dharma one needs to marry in his life. In Hindu religion, there is no
concept of divorce. Once a couple marries they are wedded for life. In Modern Hindu
society divorce is introduced through the Hindu Marriage Act, 1955, in India.
Hinduism has a belief that marriage relationship continues beyond one’s life. In the
traditional Hindu marriage, the bride and the bridegroom are regarded as divinities.
The bride is first marries to God and then placed under the bridegroom's protection as
a gift from God. At the time of marriage, the bridegroom ties a sacred thread around
the bride's neck and accepts her hand (panigrahanam.) in marriage. Then they both
take seven steps (saptapadi) together around the fire uttering vows of friendship and

82 Chapter I, “Divorce according to the leading Hindu Sources Books - Vedas Shastra-Manu
Shastra-Yajnavlakya etc and Government at Acts. (Hindi court Bill) and various Schools”,
available at http://shodhganga.inflibnet. ac.in/bitstream/10603/57778/7/08_chapter%201.pdf,
(visited on March 27, 2018).

52
mutual loyalty. Hindu marriage tradition recognizes the importance of a woman in the
family. She is expected to share the responsibilities of the household like a goddess
(grihalakshmi) and enjoy the love and care of her husband and children.83During
British period Hindu Law of marriage was someway interpreted and supplied by then
rulers. As explained by British rulers the marriage then could be solemnized by one of
the eight forms introduced and recognized by law and was considered as a holy
sanskar. There was no minimum age for marriage, it could be solemnized at any age
and would be according to Shastric or customary rites. Inter caste and inter religious
marriages were prohibited but later they got sanction by the custom. Except among
Shudras, Marriage in one’s own gotra was prohibited. After marrying, husband and
wife have to live together and perform the duties towards each other. It was an
indissoluble union and divorce among couples was prohibited. Only if custom
permits, a widow could remarry, else it was considered as a bond which continues
after marriage.

2.8 Concept of Divorce under Hindu Law

The term ‘divorce’ has been derived from the Latin word ‘divortium’ which means ‘to
turn aside’ or ‘to separate’. Divorce is the legal dissolution of a matrimonial bond.
Divorce puts the marriage to an end, and the parties revert back to their unmarried
status and are once again free to marry.84All the rights and mutual obligations of
husband and wife which were acquired through the bond of marriage, cease. In other
words, after a decree of dissolution of marriage, the marriage comes to an end and the
parties cease to be husband and wife, and are free to go their own ways. There remain
no bonds between them except in relation to Permanent Alimony under Section 2585

83 V. Jayaram, “The Hindu Marriage, Past and Present”, available at

http://www.hinduwebsite.com/hinduism/h_ marriage.asp, (visited on March27, 2018).
84 Paras Diwan, MODERN HINDU LAW, Allahabad Law Agency, Faridabad (Haryana) 18th
ed. 2007, p. 128.
85 Section25. Permanent alimony and maintenance.-
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or
at any time subsequent thereto, on application made to it for the purposes by either the wife or
the husband, as the case may be, order that the respondent shall pay to the applicant for her
or his maintenance and support such gross sum or such monthly or periodical sum for a term
not exceeding the life of the applicant as, having regard to the respondent's own income and
other property of the applicant, the conduct of the parties and other circumstances of the case,
it may seem to the Court to be just, and any such payment may be secured, if necessary, by a
charge on the immoveable property of the respondent.

53
and custody, maintenance and education under Section 2686 of Hindu Marriage Act,
1955.

Matrimonial causes (i.e., legal action in respect of marriages) in their real sense did
not exist in Hindu law before 1955, although some reliefs in respect of marriage could
be obtained under general law. Thus, a suit for a declaration that a marriage is null
and void could be filed under Section 9 C.P.C87, read with Section 3488 of the Specific
Relief Act, 1963.

The modern matrimonial law in India has been greatly influenced by and based upon
English matrimonial law. In England, the Matrimonial Causes Act, 1857 for the first
time permitted divorce by judicial process. Before 1857, divorce could be obtained
only by a private Act of parliament and only very rich could afford this luxury. Under
the Act, the husband could file a petition for divorce on the ground of wife’s adultery
(single act was enough), but a wife had to prove adultery coupled with either incest,
bigamy, cruelty or two years desertion or alternatively, rape or any other unnatural
offence. This was the typical mid-Victorian attitude to sexual morality.89

The Matrimonial Causes Act, 1923 put both spouses at par and wife could also sue for
divorce on the ground of adultery. The Matrimonial Causes Act, 1937 added three

(2) If the Court is satisfied that there is a change in the circumstances of either party at any
time after it has made an order under sub-section (1), it may at the instance of either party,
vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the Court is satisfied that the party in whose favor an order has been made under this
Section has re-married or, if such party is the wife, that she has not remained chaste or if such
party is the husband, that he has had sexual intercourse with any woman outside wedlock, it
may at the instance of the other party vary, modify or rescind any such order in such manner
as the court may deem just.
86 Section26. Custody of children.- In any proceeding under this Act, the Court may, from time
to time, pass such interim orders and make such provisions in the decree as it may deem just
and proper with respect to the custody, maintenance and education of minor children,
consistently with their wishes, wherever possible, and may, after the decree, upon application
by petition for the purpose, make from time to time, all such orders and provisions with
respect to the custody, maintenance and education of such children as might have been made
by such decree or interim orders in case the proceedings for obtaining such decree were still
pending, and the Court may also from time to time revoke, suspend or vary any such orders
and provisions previously made.
87 Section 9 of C.P.C. reads as under: “The court shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature axcepting suits of which their
cognizance is either expressly or impliedly barred”.
88 Section34 of the Specific Relief Act deals with declaratory decrees.
89 Paras Diwan, FAMILY LAW, Allahabad Law Agency, Faridabad (Haryana), 6th ed. 2001,
p. 124.

54
more grounds; cruelty, three years desertion and supervening incurable insanity. After
the Second World War, a movement developed for the reform of divorce law which
accepts the breakdown of marriage as the basic principle of divorce. Later, the
Matrimonial Causes Act, 1973 was passed which is a consolidating statute and retains
the breakdown of marriage as the basic ground of divorce.

The Indian matrimonial law has closely followed the development in English law.
The Converts Marriage Dissolution Act, 1866 was passed to provide facility of
divorce to those native converts to Christianity whose spouses refused to cohabit with
them on account of their conversion. But the first divorce statute was passed in 1869.

The Indian Divorce Act, 1869 is based on the Matrimonial Causes Act, 1857 and lays
down the same grounds of divorce. At the time when the statute was passed, it applied
only to Christian marriages. The Indian Divorce Act was extended to marriages
performed under the Special Marriage Act 1872. This Act was repealed by the Special
Marriage Act, 1954. The Special Marriage Act was passed in 1954 and the Hindu
Marriage Act, 1955.90 Some States introduced divorce by legislation.

2.8.1 Divorce under Hindu Marriage Act

As discussed earlier, that under Hindu dharamshastras, marriage has been considered
as sacred indissoluble bond, so concept of divorce is new to Hinduism. But in some of
the Law books stating Hindu Law, some traces for this concept has been found as for
example, a Hindu law book, states: "When her husband is lost, or dead, becomes an
ascetic, is impotent, or is expelled from caste, in these five conditions, a woman may
remarry." Katyayana says that if the husband turns out to be of another caste, or the
same gotra, or if he is guilty of foul acts, the wife may remarry91. Can we take these
verses to suggest that divorce was allowed in Hinduism at some point of time?92In
vedic times divorce used to take place. As it is stated in epic of Nala and Damayanti,
Damayanti’s father organizes remarriage of his daughter through sawayamwar as her
first husband Nala goes missing. The question there arise is that did Damayanti

90 Ibid.
91 Katyayana, NARADASMRITI DHARMASHASTRA, verse XII, 97.
92 Devdutt pattnayak, “Is Divorce permitted in Hinduism?”, available at
https://www.dailyo.in/lifestyle/hindu-marriage-divorce-puranas-dharmashastra-
hinduism/story/1/19280.html, (visited on: March27, 2018).

55
remarried because Nala belonged to a tribal sect? We cannot deny the fact that there
were traces of Divorce under ancient Hindu society. Section 13 of the Hindu Marriage
Act, 1955 has introduced a revolutionary amendment to the shastric Hindu law. It
provides for the dissolution of marriage. Under the Hindu law, divorce does not take
place unless it has been granted by a court. Before passing of the Marriage Laws
(Amendment) Act, 1976, the grounds for judicial separation and divorce were
different. The Marriage Laws (Amendment) Act, 1976 makes the grounds of divorce
and judicial separation common. An aggrieved party may sue for divorce or judicial
separation.

In 1964, Section 13 (1-A) has been inserted containing 2 clauses under which, non-
resumption of cohabitation for 2 years or upwards after the decree of judicial
separation or restitution of conjugal rights was made a ground of divorce. This is a
modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955.
After the amendment, either party to the marriage can prefer such petitions. However,
this facility is not available to the cases where the decrees of judicial separation and
restitution of conjugal rights were obtained prior to the passing of the Amendment of
1964. The Marriage Laws (Amendment) Act, 1976 reduced the time limits form two
years to one year.93 Section 13 (1-A) introduced Break-down theory in the Hindu
Marriage Act, 1955. The Hindu Marriage Act, 1955 permitted divorce to all the
Hindus on certain reasonable grounds. Perhaps this permission was given for the first
time in the history of Hindu law. The Act of 1955 also saved the customs and special
legislation granting the dissolution of marriage before its time.

Under Shastric Hindu law, wedlock was unbreakable and the marital bond existed
even after the death of a party to marriage. Divorce was known only as a matter of
exception in certain tribes and communities which were regarded uncivilized by the
Hindu elite. The courts recognized it in these communities due to the binding force of
custom. But the general Hindu law did not recognize it.94

93 G.C.V. Subba Rao, FAMILY LAW IN INDIA, S. Gogia & Company, Hyderabad, 8th ed.
2005, p. 205.
94 Swarajya Lakshmi v. Padma Rao AIR 1974 SC 165.

56
The provisions regarding divorce have been twice amended since the passing of the
Hindu Marriage Act, 1955;

(i) by the Hindu Marriage (Amendment) Act, 1964 and

(ii) by the Marriage Laws (Amendment) Act, 1976.95
The original provisions of the Hindu Marriage Act regarding divorce have been
liberalized by the Marriage Laws (Amendment) Act, 1976. It also added a new
ground namely divorce by mutual consent of the parties has been made available as a
matrimonial relief under the Hindu Marriage Act, 1955. The divorce Law in India is
based on some theories which are discussed in other chapters. The Hindu Marriage
Act, 1955, gives the right to a married man and woman to demand for a decree of
divorce on some particular grounds. Those grounds are also recognized by various
personal laws in India. All over the civilized world, marriage is a very important
social institution. Whether considered as a sacrament or a contract marriage gives rise
to status96 . It confers a status of husband and wife on the parties to marriage and it
confers a status of legitimacy on the children of marriage. The basic difference
between the marriage and any other contract is that a commercial or mercantile
contract does not give rise to any status, while marriage does. Then, once the marriage
is performed, the contract of marriage has no utility in respect of the marriage or in
regard to any rights and liabilities arising under it. Practically all the countries of the
world agree that marriage is a union between man and woman. Beyond this there are
differences. In the Western countries marriage is considered as a contract, and a
monogamous union, though Roman Catholic Church (despite the recent Italian
legislation conferring power of dissolving marriage on civil courts) still insists that
marriage is a sacrament and an indissoluble union. The Muslim world has all along
considered marriage as a civil contract though has, at the same time, recognized
limited polygamy.97 At one time in the East- among Hindus and Buddhists- marriage
was considered as a sacrament and indissoluble union; among both the people

95 Act 68 of 1976.
96 Rajneesh Rajpurohit (Dr.) v. Savita, AIR 2008 Raj 119, “the concept of marriage under the
Shastric Hindu Law is a sacrament, religious ceremony which results in a sacred and a holy
union of man and wife by which the wife is completely transplanted in the household of her
husband, become a part and parcel of the body of her husband.”
97 “A Muslim can have four wives simultaneously, and even when he takes a fifth or more, the
marriage is not void but merely irregular (fasid). Some Muslim countries like Turkey have
abolished polygamy, while some like Pakistan have placed restriction on its practice. On the
other hand, in countries, like India, Muslims are allowed to practice polygamy limited to four
wives”.

57
unlimited polygamy was recognized. Today the Buddhists and Hindus no longer
recognize polygamy. The Chinese Buddhists consider their marriage as a contract.
Among Hindus marriage is something in between a sacrament and a contract.
According to the Vedas a Hindu Marriage is an indissoluble union till eternity. It is
defined as a union of bones with bones, flesh with flesh and skin with skin, the
husband and wife become as if they were one person98.According to Swami
Vivekananda, “In countries where there is no marriage, there is no duty between
husband and wife; when marriage comes, husband and wife live together on
account of attachment; and that kind of living together becomes settled after
generations; and when it becomes so settled, it becomes a duty”99. The Hindu
Marriage Act, 1955 came into force on 18thMay 1955. It applies to a Hindu by
religion in any of its forms and development. A Hindu marriage may be solemnized
between any two persons who are Hindus by faith and religion.100Hindu marriage is
monogamous101. According to Muslim law marriage is a purely civil contract; no
religious ceremony is essential; there must be an exchange of offer and acceptance

98 Dr. P.V.Kane, HISTORY OF DHARMASHASTRAS, Vol. II, part I, pp. 427-428.

99 Swami Vivekananda, THE COMPLETE WORKS OF SWAMI VIVEKANANDA, available
at http://www.ramakrishnavivekananda.info/vivekananda/complete_works.htm (Visited on
March27, 2018).
100 Section 2, Hindu Marriage Act, 1955, reads as under:
Application of Act- (1) This Act applies,-
(a) to any person who is a Hindu by religion in any of of its forms or developments, including
a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) 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.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the
case may be,-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas
or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or
Sikh by religion and who is brought up as a member of tribe, community, group or family to
which such parents belongs or belonged; and (c) any person who is a convert or re-convert to
the Hindus, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366
of the Constitution unless the Central Government, by notification in the Official Gazette,
otherwise directs. (3) The expression "Hindus" in any portion of this Act shall be construed as
if it included a person who, though not a Hindu by religion is, nevertheless, a person whom
this Act applies by virtue of the provisions contained in this section.
101 Monogamy amongst the Hindus is introduced for the first time by the Act. Bigamy now
punished under the Indian Penal Code, 1860. The conditions and requirements of a valid
marriage are now very much simplified as is evident from the provisions of section 5 and 17
of the Hindu Marriage Act, 1955.

58
respectively by the parties, in each other‘s presence and hearing. A special feature of a
Muslim marriage is that the wife is always entitled to receive from her husband
money or other property in consideration of the marriage. The Indian Christian
Marriage Act is applicable to persons who profess the Christian religion including
natives in India converted to Christianity and their Christian descendants. This Act
deals with the forms and ceremonies of a Christian marriage. The marriage and
divorce of Parsis in India is now governed by legislation contained in the Parsi
Marriage and Divorce Act. The marriage is monogamous. The making and validity of
a contract of marriage between Jews in India depends wholly on the religious usages
of the Jewish faith and is unaffected by legislation. In India, Marriage and Divorce is
treated as part of the personal law of the parties considered mainly by reference to
their religious profession. With the advancement of time and social awareness, several
acts have been passed by the government to make the present day divorce procedure
in India more progressive with respect to gender affairs and related sensitive issues.

The Supreme law of the nation called Constitution of India got enacted on November,
26th, 1949. The Constitution resolved to constitute India as a Union of States and a
Sovereign, Socialist, Secular, Democratic, Republic. Today, a population of over 132
crores Indians live in twenty nine States and seven Union Territories within India and
about 25 million non resident Indians who reside in foreign jurisdictions. India is a
country of diversities and Within its territory of 3.28 million sq. kms., the most Indian
population is comprised of multicultural and multilingual societies professing
different religions, professing different customs and speaking different local
languages coexist in peace and harmony in one of the largest democracies in the
world, i.e. India. The Indian Parliament, at the helm of affairs, legislates on central
subjects in the Union and Concurrent lists and State legislatures enact laws pertaining
to State subjects as per the State and Concurrent lists with regard to the subjects
enumerated in the Constitution of India. Likewise, pertaining to the judiciary under
article 214 of the Indian Constitution there shall be a High Court for each State and
under Article 124 there shall be a Supreme Court of India. Under the Indian
Constitution, the Law declared by the Supreme Court shall be binding on all Courts
within the territory of India. However, the Supreme Court may not be bound by its
own earlier views and can render new decisions. Part III of the Constitution of India
secures to its citizens “Fundamental Rights” which can be enforced directly in the
respective High Courts of the States or directly in the Supreme Court of India by issue

59
of prerogative writs under Article 226 and Article 32 respectively of the Constitution
of India. Under the Constitutional scheme amongst others, Freedom of Religion and
the right to freely profess, practice and propagate religion is sacrosanct and is thus
enforceable by a writ.102 Directive Principles of State Policy contained in part IV of
the constitution of India are not enforceable by court. They are still fundamental in
nature and the state is bound to consider these principles while making Laws as it is
the duty of state. Apart from the provision contained in Article 44 of the Constitution
in this Part, the State shall endeavor to secure for the citizens a uniform Civil Code
throughout the territory of India, the nation is still waiting for the date to achieve and
enact a uniform civil code.

In the backdrop of the above brief description, this is a modest attempt to put together
possible answers to the above questions and issues raised to examine the harmonious
coexistence of law and religion in the Indian democracy in the light of different
family law legislations enacted by the Indian Parliament and the view of the Indian
Supreme Court expressed on the issues posed above103.

2.9 Changes Brought by the Hindu Marriage Act, 1955

Radical and substantial changes were introduced by this new codified Law in old
Hindu Law. Following changes are important to be noted:

1. Hindu marriage is now more a result of mutual consent than sacrament and
obviously not so much concerned with religion.104

102 Chapter III, “Evolution of Divorce”, available at

http://shodhganga.inflibnet.ac.in/bitstream/10603/ 39005/11/11_chapter%203.pdf, (visited on:
March 28, 2018).
103 Ibid.
104 Section 5(ii)&(iii), Hindu Marriage act, 1955 Conditions for a Hindu Marriage. A marriage
may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
(b) 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; or
(c) has been subject to recurrent attacks of insanity or epilepsy;
(iii) the bridegroom has completed the age of twenty one years and the bride the age of eighteen
years at the time of the marriage;
(iv) 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;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two;

60
 2. Hindu marriage act applies to Hindu, Sikh, Jains and Buddhists, and marriages
under these religions are considered as valid Hindu Marriages.105

3. As per section 3 of the act, the divergence between the Mitakshra and
Dayabhaga schools in connection with the prohibited degrees of the
relationship for the purpose of marriage is now removed. The strict rule
prohibiting marriages within the limit of spinda relationship, as defined in the
samrities, have been considerably relaxed. Some new degrees of relationship
have also been added. Thus one cannot now marry a person who was the wife
of the brother of other.106

4. The conditions of marriage are simplified; it introduced the concept of

monogamy and made bigamy as punishable under Indian Penal Code, 1860.

5. All restrictions are now eliminated relating to caste and community. Now, one
can marry inter-caste and inter-religion.

105 Section 2, Hindu Marriage Act, Application of Act (1) This Act applies,-
(a) to any person who is a Hindu by religion in any of of its forms or developments, including
a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) 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.
Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the
case may be,-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or
Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or
Sikh by religion and who is brought up as a member of tribe, community, group or family to
which such parents belongs or belonged; and (c) any person who is a convert or re-convert to
the Hindus, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366
of the Constitution unless the Central Government, by notification in the Official Gazette,
otherwise directs.
(3) The expression "Hindus" in any portion of this Act shall be construed as if it included a
person who, though not a Hindu by religion is, nevertheless, a person whom this Act applies
by virtue of the provisions contained in this section.
106 Mayank Madhav, FAMILY LAW-I, Singhal Law Publications, 3rd ed. 2013, p. 19.

61
 6. Now the concept of different types of marriages has been abolished and no
particular form of marriage has been prescribed. The marriage can be
solemnized only according to section 7 of Hindu Marriage Act, 1955.107

7. There is no difference between marriage of a maiden and the marriage of a

widow. Ancient law did not provide any age for marriage but new Act provide
it as one of the conditions of valid marriage. It prescribed the minimum age of
bride and groom as 18years and 21 years, respectively.

8. Hindu Marriage Act, 1955, provides for the registration of marriage.108

9. The whole provision relating to Judicial separation, Divorce and annulment of

marriage has been elaborated in detail by the Act.

10. Restitution of Conjugal Rights and the concept of remarrying after a valid
divorce have been provided under Hindu Marriage Act, 1955.

11. Provisions related to permanent alimony and maintenance, legitimacy of

children, custody and maintenance of minor children has been elaborated by
the Act.

107 Section 7, Ceremonies for a Hindu marriage.

(1) A Hindu marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptapadi (that is, 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.
108 Section 8, Hindu Marriage Act, Registration of Hindu Marriages-
(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may
make rules providing that the parties to any such marriage may have the particulars relating to
their marriage entered in such manner and subject to such condition as may be prescribed in a
Hindu Marriage Register kept for the purpose.
(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is
of opinion that it is necessary or expedient so to do, provide that the entering of the particulars
referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in
all cases or in such cases as may be specified and where any such direction has been issued,
and person contravening any rule made in this behalf shall be punishable with fine which may
extend to twenty-five rupees.
(3) All rules made under this section shall be laid before the State Legislature, as soon as may
be, after they are made.
(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall
be admissible as evidence of the statements therein contained and certified extracts therefrom
shall, on application, be given by the Registrar on payment to him of the prescribed fee.
(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage
shall in no way be affected by the omission to make the entry.

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Section 13 runs as under:

Section13 Divorce:

(1) 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.

Explanation- In this clause(a) the expression "mental disorder" means

mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and include
schizophrenia; (b) the expression "psychopathic disorder" means a
persistent disorder or disability of mind (whether or not including sub-
normality of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the other party and whether
or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) has been suffering from veneral disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

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(vii) has not been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of it, had that party been
alive;

Explanation.- In this sub-section, the expression "desertion" means the

desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party,
and includes the willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expression shall be
construed accordingly.

(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

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 (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

(iii) 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.

Explanation.- This clause applies whether the marriage was

solemnized before or after the commencement of the Marriage Law
(Amendment) Act, 1976.

Section 13-A. Alternate Relief in Divorce Proceedings

If any proceeding under this Act, on a petition for dissolution of marriage by a decree
of divorce, except in so far as the petition is founded on the grounds mentioned in
clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it
considers it just so to do having regard to the circumstances of the case, pass instead a
decree for judicial separation.

Section13-B. Divorce by mutual consent

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a
decree of divorce may be presented to the District Court by both the parties to a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act, 1976, 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.

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(2) On the motion of both the parties made earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen
months after the said date, if the petition is not withdrawn in the mean time, the Court
shall, on being satisfied, after hearing the parties and after making such inquiry as it
thinks fit, that a marriage has been solemnized and that the averments in the petition
are true, pass a decree of divorce declaring the marriage to be dissolved with effect
from the date of the decree.

Section 13 of Hindu Marriage Act, 1955, provides for nine grounds for divorce which
are as under:

1. Adultery- “Adultery” means the voluntary sexual intercourse outside a lawful

marriage. The Hindu Marriage Act, 1955 came into force on May 18, 1955,
has incorporated adultery as a ground for both judicial separation and divorce.
A decree of divorce can be obtained only if the respondent ‘is living in
adultery’ has been proved in the court.

2. Conversion- A Hindu spouse who ceased to be a Hindu by conversion to

another religion does not acquire any right under the Hindu Marriage Act. On
the other hand, he or she exposes himself or herself to a claim for divorce by
the other spouse on the ground of such conversion. The spouse who remains a
Hindu gets a right under S.13(1)(ii) of the Hindu Marriage Act to seek
dissolution of the marriage with the spouse who since the marriage ceased to
be a Hindu by conversion to another religion. The right of non converting
spouse is indefeasible. The statute does not provide for any qualification on
such right of the non converting spouse. Nor does the Hindu Marriage Act
state that the conversion shall be a conversion without the consent of the other
spouse in order to entitle such spouse to apply for divorce. A conversion does
not cease to be a conversion within the meaning of S.13(1)(ii) if it is with the
consent of the other spouse. We cannot read into the statute something which
is not intended in the context; nor can we qualify a disqualification in the

66
 matter of conversion as one with the consent of the other spouse so as to take
it out of the purview of S.13(1)(ii).109

3. Mental disorder/Unsound Mind- The Hindu Law considers a marriage as a

valid one if none of the parties is an idiot or a lunatic or suffering from any
mental disorder at the time of marriage. A Hindu marriage is voidable
according to Hindu Marriage Act, 1955, if either party to marriage:

(i) Does not have capability of giving a valid consent because of his/her
unsoundness of mind, or

(ii) If he or she is capable of giving a valid consent but is suffering from such kind
of mental or to such an extent that makes it unfit for marriage and the
procreation of children, or

(iii)He or she has been subject to recurrent attacks of insanity.

In the above-mentioned circumstances, the marriage can be declared null and void.
And if the marriage has not been consummated due to impotence of the respondent,
the marriage can be considered null and void. Also, the marriage can be considered as
null and void if that the consent of the concerned guardian was obtained by fraud or
forcefully; or the respondent at the time of the marriage was already pregnant by some
person other than the petitioner.

4. Leprosy- Leprosy is apchronic, infectious disease caused by Mycobacterium

leprae. Leprosy has been considered as loathsome disease. It is virulent when
ulcerous and an unsightly symptom appears or when social intercourse
becomes almost impossible. Leprosy is a ground for divorce and judicial
separation under most of the matrimonial laws of the Indian communities.
Under the Hindu marriage act, the ground runs: respondent “has been
suffering from virulent and incurable form of leprosy.”And also under the act
where leprosy is a ground for divorce of judicial separation, the duration of
leprosy is not specified. According to the Hindu Marriage Act, 1955 if one of

109 Indian Divorce Laws, “Grounds of divorce under Hindu Marriage Act, 1955, Conversion”,
available at https://sites.google.com/site/indiandivorcelaws/grounds-of-divorce-under-hindu-
marriage-act-1955/conversion, (visited on March28, 2018).

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 the spouses is suffering from leprosy that is ‘virulent and incurable’, the other
can file a petition for divorce based on this ground.110

5. Venereal disease- A disease that is in a communicable form and venereal in

nature gives birth to a ground for divorce under Hindu marriage Act, 1955.
Sexual intercourse makes a contagious disease spread. Sexually transmitted
diseases are much in number and the most common form of venereal disease
is Syphilis and Gonorrhoea. The fact that the disease was contracted
innocently or is curable is immaterial under the Hindu Marriage Act. It is
important here to note that the disease must be communicable venerable
disease to be a ground for divorce.

6. Cruelty- Almost all the statutes in India accepts cruelty as a ground for
Divorce in India. Cruelty, however, has not been described under Hindu Law.
It is a course of conduct of one of the spouses which adversely affects the
other. Cruelty is mainly of two types, i.e, Mental or Physical. In Simpson v.
Simpson, it was held that, “when the legal conception of cruelty is described
as being conduct of such a character as to cause danger to life, limb or health,
bodily or mental, or to give rise to a reasonable apprehension of such danger,
it is vital to bear in mind that it comprises two distinct elements; First, the ill-
treatment complained of, and, secondly, the resultant danger or the
apprehension thereof. Thus, it is inaccurate and liable to lead to confusion, if
the word cruelty is used as descriptive only of the conduct complained of,
apart from its effect on the victim”.

7. Desertion111- It means desertion of the petitioner by the other party to the

marriage without any reasonable cause and without the consent or against the
wishes of such party and includes willful neglect of the petitioner by the other
party to the marriage and its grammatical variations and alike expressions.
Traditionally, desertion has been defined as abandonment of the one spouse by

110 Amit Kashyap, “Leprosy – a ground for divorce: Medical Jurisprudence”, available at
https://judgementsincriminallaw.wordpress.com/2016/12/29/leprosy-a-ground-for-divorce-
medical-jurisprudence/, (visited on March28, 2018).
111 Nimish Raja & Tathagat Yagnik, “Divorce under Indian Law”, available at
http://www.goforthelaw. com/articles/fromlawstu/article42.htm, (visited on: March28, 2018).

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 the other without any reasonable cause and without the consent of the other.
The desertion is withdrawal not from the place but from the state of things. In
other words ‘desertion’ is a total repudiation of marital obligations. Though
previously it was a ground for judicial separation, the Amendment Act of
1976, for divorce, added it.

A. Actual desertion: It means the fact of actual abandonment of matrimonial

home. Mere intention to abandon without actual abandonment of matrimonial
home is not enough. A person may go out on business, study etc. and may be
stranded there for two years or more; it would not amount to the desertion. To
constitute desertion the Factum (fact of desertion) and Animus Deserendi
(intention to desert) must co-exist, and the moment they co-exist, it amounts to
desertion. However it is not necessary that intention must precede factum. For
instance, as was ruled in Venei v. Nirmala112, when the spouse left the
matrimonial home (for business, pleasure, trip etc.), he has all the intentions to
return home, but subsequently if he forms the intention not to return, the
moment such an intention is formed he becomes a deserter. If a spouse leaves
the matrimonial home without any reason, he or she is a deserter.

B. Constructive desertion: The doctrine of constructive desertion state that it is

not to be tested by merely ascertaining which party left the matrimonial home
first. If one spouse is force by the conduct of the other to leave home, it may
be that the spouse responsible for the driving out is guilty of desertion. There
is no substantial difference between the case of a man who intends to cease
cohabitation and leaves his wife, and the case of a man who compels his wife
by his conduct, with the same intention, to leave him. In constructive desertion
it is the behaviour of one party that makes him the deserter, though he
continues to live in the matrimonial home.

C. Wilful Neglect: Willful neglect means that the act was done deliberately and
intentionally rather by accident or inadvertence, so that the mind of the person
who does the act goes with it. In short it means omit to do something

112 AIR 1987 Del. 79.

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 purposely. So far, before the Indian courts, no case has come where wilful
neglect has been taken as ground for divorce, or judicial separation. Though in
Laxman v. Meena113 Subha Rao J. Obitter observed that wilful neglect was
designated to cover constructive desertion, and therefore should fulfil all the
ingredients of desertion.

8. Renounced the World- when any one of the spouses renounces the world the
marriage automatically terminates as other one has no point to live in such
marriage. It has been recognized as a ground for divorce under Hindu Law.

9. Not heard alive for seven years- It is also a ground for divorce under Hindu
law if one of the spouses has not been heard for continuous period of seven
years by his family and friends. It is called presumption of death and law
permits divorce on the basis of this ground.

There are four more grounds which are specifically given to woman for her role in
institution of marriage as a wife. These grounds are:

1. Pre-Act polygamous marriage or Bigamy- A Hindu wife has right to file a

petition of decree of divorce if her husband had committed the offence of
bigamy before the commencement of Hindu marriage Act, 1955. The other
condition for the application of this clause is that the other wife must be alive
at the time of filing of petition.

2. Rape, Sodomy or Bestiality- Rape is a crime under section 375 of Indian Penal
Code, 1870. A wife has a right to file a divorce petition if her husband has
been convicted of the said offence and it does not matter if he has not been
convicted by the court. Bestiality is also an unnatural offence.

3. Decree or order of maintenance- Where a decree for maintenance of wife

under s.18 of the Hindu Adoptions and Maintenance Act 1956, or an order for
maintenance of wife under s. 125, Cr PC 1973, has been passed by a
competent court against the husband, the wife in favor of whom the decree or

113 AIR 1964 SC 40.

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 order has been passed is entitled to present a petition for divorce under the
following two conditions:

a) that she was living apart, and

b) that since the passing of the said decree or order there is no cohabitation
between her and her husband for at least one year.

4. Repudiation of marriage- A Hindu wife can file a petition for divorce if her
marriage was solemnized before her attainment of the age of fifteen years or
she has been victim of child marriage provided that she has repudiated the
marriage after attaining the age of fifteen years and before attaining the age of
eighteen years. But as the rule suggests the petition may be presented only
after the completion of eighteen years of age. If birth certificate is not present,
the evidence by parents of the girl is a sufficient proof in such cases.

Section 13 of Hindu Marriage Act, 1955, has given special grounds to wife
with an intention to protect the women from the bad behavior of husband as it has
been noticed from time immemorial that husband has treated wife as a servant and
even spoiled her human rights. The law now has provided the power to women to
save her rights and leave with dignity.

2.10 Marriage Law (Amendment) Bill, 2010

Based on recommendations of the Law Commission, 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

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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?"114

2.11 Irretrievable Breakdown of Marriage

There are many instances in today’s world where couples are living together but their
marriage is commensurate to a separation and there is no codified law to govern a
situation like this. Ideally people face one of the three situations,

(i) where both the parties believe that the marriage is failing, they can apply
for divorce,

(ii) when both agree that the marriage is failing, they can file divorce by
mutual consent but what if ,

(iii) one party believes that the marriage is failing but the other party refuses to
believe it. In the light of this, a Law Commission Report was forwarded to
the Government of India in 2009, in order to add irretrievable breakdown
of marriage as a ground for divorce under Section 13 of the Hindu

114 Wikipedia, “The Hindu Marriage Act, 1955”, available at

https://en.wikipedia.org/wiki/The_Hindu_ Marriage_Act,_1955, (visited on January 25, 2018).

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 Marriage Act, 1955 through the case of Naveen Kohli v. Neetu Kohli115.Till
date, Laws relating to divorce in India under various acts have not
recognized a situation where the husband and wife are living together in
same house and under the same roof but actually their marriage is not
working at all. That is, irretrievable breakdown of marriage as a separate
ground for divorce has been still not recognized. The Hindu Marriage Act,
1955, recognizes few grounds for divorce in Section 13.But with the
change in time and the social mores, and accordingly changing nature of
institution of marriage in the society, the Supreme Court and Law
Commission of India has time to time shown a special concern over the
matter, and advised the government to recognize irretrievable breakdown
of marriage as a separate ground for divorce. The Supreme Court has
directed the dissolution of marriage if the marriage seems to be
irretrievably broken, with a view to do complete justice and shorten agony
of the parties engaged in long drawn battle. Wherever the supreme court
has given such directions, it has been found that they were extremely
exceptional cases as law does not specifically provides to grant decree of
divorce on the grounds other than those given in Hindu Marriage Act,
1955. Irretrievable breakdown of marriage is not a ground for divorce
under the Hindu Marriage Act, 1955, so far. To end the virtually dead
marriages this concept needs to press into services soon, because large
number of couples are living in completely broken marriages and spoiling
their youth. Today, the society is demanding the inclusion of irretrievable
breakdown of Marriage as one of the separate grounds for divorce under
the Hindu Marriage Act, 1955, because it has no point to live in such a
relation that has been actually broken and irreparable.

Examples of the kind of evidence the court will accept as proof of irretrievable
breakdown:

 “The couple has not lived together like husband and wife for a period of time.

115 (2006) 4 SCC 558, Paras Singhal, “Recent Amendments in Divorce Law In India”, available at
https://legalconclave.com/blog/recent-amendments-in-divorce-law-in-india/, (visited on
March 28, 2018).

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  One partner had sexual intercourse with somebody else and because of this
the other partner finds it impossible to continue living together as husband
and wife.

 One partner is in prison after being declared an 'habitual criminal'. (This

means he or she keeps committing crimes, and because of this was sentenced
to 10-15 years in prison.)

 One partner deserted the other.

 One partner abused the other, for example the husband keeps assaulting the
wife.

 One partner is an alcoholic or a drug addict.

 The partners no longer love each other, they may be too different, or they
married when they were too young. One of the partners finds it impossible to
live together as husband and wife for any other reason”.116

If there are recommendations from Supreme Court and law commission to make
irretrievable breakdown of marriage a separate ground for divorce, there are certain
objections in the mind of law making bodies and some of them are as under:

1. If this ground will be available then it may become a threat to the sanctity of
marriage, which can be disrespected.

2. In our society divorce has been considered as curse so it brings social disgrace,
especially to woman.

3. This ground also gives recognition to the theory of divorce at will, as it may
permit husbands to dissolve the marriage whenever he wants to.

4. The inclusion of this ground under Hindu Law can make errant husband to
misuse it and;

5. The understanding of "irretrievability" and "breakdown" carries subjective

elements.

116 Himani Sharma & Chetan Bagdi, “Irretrievable Breakdown of Marriages”, available at
http://www.legals erviceindia.com/articles/break_mar.htm, (visited on March28, 2018).

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2.11.1 Marriage Laws (Amendment) Bill, 2013

The UPA Government introduced Marriage Laws (Amendment) Bill, 2013 proposing
amendments to the Hindu Marriage Act.117 The present Government had decided to
introduce the bill again; Law Minister issued a statement saying that the Government
has contemplated against the Bill since as much as 70 representations have been made
against the Bill. Objections have been raised by, senior citizens and various non-
governmental organizations like Save Indian Family contesting that the amendment
would bring down the marriage rate in India.

Nevertheless, this amendment can be a boon in terms of maintenance as it entitles

wives to husband’s share of the immovable property that he acquired in the course of
their marriage in cases of irretrievable breakdown of marriage.

2.11.2 Drawbacks of the Bill

However, this benefit is only limited to cases of irretrievable breakdown of marriage

and not in other cases which, manifests Government’s hiccup in fostering this as there
is no rationale behind why it should not be availed in all cases of divorce.

Further, the Amendment Bill provides that a woman can oppose the divorce claiming
financial hardships while the husband cannot do so. Again, this was uncalled for as in
a country where we are fighting for gender equality day in and day out, it is important
that Bills such as this, keep both genders on an equal pedestal especially at a time
when we have been witnessing an increase in false 498A cases against men. Besides,
the provision is also a violation of the Indian Constitution. Also, under Section 13F of
the Amendment Bill, a wife can claim property acquired by the husband both before
and after the marriage. This includes both ancestral and self-acquired property. In
cases of divorce with mutual consent, the judge can grant the divorce to one of the
parties after three years irrespective of the stand of either party. Many times, one party
withdraws consent for various reasons including harassment. However, with this
amendment, the judge can grant the divorce even in the absence of one party118.

117 Hindu Marriage Laws (Amendment) Bill 2013.

118 Parag Singhal, “Recent amendments in divorce laws”, available at
https://legalconclave.com/blog/recent-amendments-in-divorce-law-in-india/ (Visited on
January 20, 2018).

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2.12 Conclusion

The Hindu society which had considered marriage as an indissoluble union, a

sacrament, a non breakable bond has by time accepted the concept of Divorce and it
not only provided a codified law but also tried to uplift the position of women in
India. The Hindu Marriage act, 1955, has made drastic changes in the law of divorce
and status of women in India. Despite the fact that Hindu women has got many rights
as compared to Vedic times and much progress has been achieved by her, marriage is
still considered as a sacred relationship. Democratic principles and belief gender
equality have got place in Hindu Law books. As compared to rest of the world Hindu
Marriages have a greater stability. Majority of People in India believe in institution of
marriage and take the relationship seriously. But as the time changes the needs of
human being also change. Human started life as an animal and today he is considered
as the most civilized animal in universe. Human used his mind and found everything
according to his needs and desires and made his life comfortable. Now as he is in
habit of living in comfort so tolerance towards each other has also become less as
compared to olden time. Wives know their rights and they know how to get their life
better. Majority of women is working and earning money and they don’t feel need of
men for their survival. Therefore, they opt divorce if they feel that marriage is not
working as husband is indulged in adultery or inflict cruelty on her.
Everything in this world has positive and negative aspects and same is with the
introduction of codified law of Divorce. No doubt the Law of divorce under Hindu
Law has changed the position of women in India but the changes made in the law of
divorce under Hindu Law are too much and undesirable as they have changed the
nature of Hindu marriage. As we all noticed that too much liberalization has been
introduced after the amendment of 1976 which may lead to flood of divorce cases in
Indian courts. With making the changes like reducing the time limit for few grounds
and addition of new grounds, it almost altered the sacramental nature of Hindu
marriage. Further the introduction of Irretrievable Breakdown of marriage as a ground
of Divorce (as proposed) may also bring drastic change in Hindu society. It is of the
view that if irretrievable breakdown of marriage will be introduced as a separate
ground for divorce then it may be misused at the instance of husband and many are of
the view that Law on divorce under Hindu Marriage Act, 1955, is a women friendly
Law.
****

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