by Jayaram V
Hindu civil code permits divorce on certain grounds. But the religion
as such does
not approve divorce, because the concept is alien to Hinduism. According to the
tenets of Hinduism, marriage is a sacred relationship, a divine covenant and a sacrament. Marriage is
meant for procreation and continuation of family lineage, not for sexual
pleasure. It is an obligatory duty, part of Hindu dharma, which,
once accepted, should be upheld by both the parties throughout their
Marriage is therefore a sacred bond, which cannot be dissolved through divorce on some personal
or selfish grounds.
The Historical Context
ancient times, women in Hindu society had limited freedom. Women were
bought and sold, abducted, forcibly married and forced into slavery or prostitution. There was
nothing like the modern concept of a divorce or a legal separation in Hindu
society. Once a woman left her parent's home, she was completely at the mercy of her husband
or his parents and if
he found her incompatible or unattractive and abandoned her, there was little that she could do.
She had no right to divorce, no right to remarry and no right to
leave the house and approach any one without her husband's permission.
Part of the problem was that Manu1,
the famous law maker, viewed women with suspicion and would not trust
them with freedom. He believed that they needed to be kept
under the protection and watch of men all the time, so that they would not
have the opportunity to cause
the confusion of castes.
In case of men the situation was different. Men had many rights and
privileges, which went with their status as upholders of Dharma, and
which they exercised in the name of religion, family or expediency. The
suffering of Sita in the epic Ramayana, after she was abandoned by her husband in the name of
dharma, is a case point. Lord Rama, a paragon of virtue, duty
and sense of morality, abandoned his wife, whom he loved so dearly, on
the mere allegations of possible infidelity on her part. He had no
proof, but as an upholder of Dharma, he reacted promptly and banished
her into the forests, ignoring the fact that she was pregnant and
of Sita amply reflects the attitude of ancient Hindu society towards women. Men had the right in ancient India to abandon
their women on mere suspicion of infidelity or adultery. There were no
courts that would argue the cases for women or legalize their separation.
There was no concept as gender equality. According to the Hindu law
books, women were born to serve. Women
were born to tempt men into vice. Women were born to be kept under
control. The action
of Rama is widely debated by scholars of today in the
context of the moral and marriage standards of present day Hindu
society. However few centuries ago, it was hardly a debatable issue,
because apart from its moral, social and symbolic implications, Rama's
action was neither unusual nor strange, but in conformity
with the Hindu law books and the practices of those times. If we
rationalize his action today, it is by ignoring the wider social context
in which it happened and the fact that Rama as the king and upholder of
Dharma was duty bound and had no choice, unless he wanted to present
himself as a person with double standards.
Even the great Buddha,
founder of Buddhism, who is known for his compassion and wisdom, felt
women were inferior to men and a spiritual hazard. When his disciple
Ananda approached him with a request to admit them in to the Buddhist
Sangha, he said to have remarked, "Just as when the disease called
crimson falls upon a field of sugarcane, that field will not last long,
even so Ananda in that doctrine and discipline in which women receive
the going forth from a house to houseless life, the religious life will
not last long." Eventually, when he relented and admitted Buddhist
nuns into his Sangha, it was by introducing a strict code of conduct.
Buddha's approach was not much different from that of the vedic scholars
and his words amply reflect the condition of women and the attitude of
even enlightened men towards them.
Woman, The Temptress and the Goddess
However it would be erroneous on our part to draw any hasty conclusions about
plight of women in ancient India, based purely on incidents such as the
above and the stand taken by the Hindu law books. The information is inconclusive
and contradictory. This was true, especially, in case of the Hindu Dharmashastras, whose influence and authority remained mostly confined
to certain pockets of Hindu society, among people, who had access to them, knew them and
for whom dharma or religion, as laid down in the scriptures,
mattered. It is is difficult to estimate how strongly they were enforced
in a society in which atheists, materialists and skeptics lived without fear, voicing
their beliefs against the caster system and excessive ritualism of vedic
The attitude of ancient Hindus
towards women was rather ambiguous. On the one hand, we have the Hindu
law books which proclaim women to be untrustworthy and subservient to men, having no claim
to liberty and independence. They declare a woman to be a possession,
owned by her father before marriage, her husband after marriage and her
children after her husband's death. They do advise men to treat women
honorably and keep them happy in order to beget progeny and continue
their lineage, but the emphasis is not on conjugal love but promulgation
of Dharma. They warn the consequences that befall unchaste
women, who neglect their families and their duties.
On the other hand, the scriptures equate women with Mother Goddess and
call upon men to treat them with respect and dignity. They warn that a house
in which women are unhappy would never prosper. A housewife is a goddess
in her own right. She is Lakshmi of the house. Without her, her husband
She brings her part of the karma to the marriage and by assisting him in
his duties fulfills his destiny. She shares his joys and
sorrows and his duties. She is his companion in the observation of
dharma. Her presence is important in the performance of rituals and the samskaras, because she is a partner, a soul mate, not only for this life
but for several. The duties and responsibilities of varnasharama
dharma, performance of
sacrifices and samskaras were not prescribed for women, but they were
expected to assist their husbands in performing them.
Although they were not enjoined to
pursue studies or take up responsibilities in public life, we
have evidence to believe that in ancient India women played an important
role in Hindu polity and society. Women were employed in the army, in
the administration and in the royal court as soldiers, body guards, courtesans,
servants, cooks, doctors, dancers and spies. Women in the rural areas
worked in the fields, carried weights and helped their husbands in their
family occupation. There were women who were adept in art and
literature and scriptural knowledge. They participated in religious
debates and composed verses. We had women saints who exemplified the virtues of devotion and
surrender to God through their actions and lives. The Kunti, Draupadi,
Hidimbi, Subhadra and Gandhari of the Mahabharat were not helpless and passive women, but
women with a mind of their own, who married whom they wanted to marry, shared the ambition and vision of
their husbands, gave them counsel, questioned their wisdom and were heard. No one would believe
that Yashoda, the foster mother of Lord Krishna was a subservient member of her family.
She was perhaps a more vocal member of the family than her husband and
exercised greater influence
upon Lord Krishna when he was a child. Thus declares Manusmriti:
The teacher (acharya) is ten times more venerable than a sub-teacher
(upadhyaya), the father a hundred times more than the teacher, but the mother a
thousand times more than the father (2.145).
So while we are not sure how Hindu women were treated exactly in the
past or how the marriage laws worked for them, based on the fact that Hindu society has always been a pluralistic
society that cannot be characterized into a particular stereotype, which
some elite sections however tend to portray for its shock value, we have
to assume with some caution that the social and religious laws that
governed the behavior of men and women and the beliefs and practices
governing the institutions of marriage and family life and the status of
women in ancient India should have varied from place to place, time to time,
caste to caste and religion to religion.
Marriage As a Sacrament
If we have to understand the problems and issues concerning Hindu
marriages and divorce, we have to understand the concepts and the
beliefs that are attached to them. Traditionally speaking, in Hinduism there is no concept of divorce.
Especially, women cannot seek separation from their husbands.
Marriage is a sacrament,
sanctified in the presence of gods. During marriage a couple
vow to stay together for ever and uphold traditional family values in accordance with
Dharma. The bride is given to the bridegroom as a gift from the gods, whom he
can never abandon, without incurring the sin of violating the marriage vows.
Marriage is a sacred relationship between two people, which is predestined
because of their deep connection and joint karma in their previous
lives. It is a commitment that extends beyond this life, up to several generations. A
couple marry not because they have chosen to, but because they are
destined to. Hence any notion of separation is a
sacrilege, with terrible consequences awaiting both the parties in their future
lives. Whatever difficulties the couple may have, society and the scriptures
expect them to take them in their stride, as a part of their karma, and continue
their journey together. In exceptional cases, they may live separately, but
cannot throw away their marriage relationship without incurring negative karmic
consequences for themselves and their children. Hindu scriptures do not recognize
right to leave her husband under any circumstances. Her duty is to serve
her husband and remain loyal to him for the rest of her life. But
men have been provided with a choice under some special circumstances. The scriptures
allow a married man to leave his wife or
marry another on the grounds of infidelity, childlessness, an
incurable disease such as leprosy or insanity, or ever mere suspicion of
adultery or infidelity. Divorce is a modern practice introduced into Hindu
society through civil laws to protect the rights of both men and women
that are guaranteed in the Indian constitution.
The Hindu Marriage Act 1955, applies not just to Hindus in the
ordinary sense, but any person who is a Buddhist, Jaina or Sikh by
religion, domiciled in India and who is not a "Muslim,
Christian, Parsi or Jew by religion." The Act expressively
prohibits polygamy by stipulating that a Hindu marriage can be
solemnized between two Hindus if neither party has a living spouse
at the time of marriage and that if they are not of unsound mind or not
suffering from severe bouts of epilepsy. It prohibits child marriages by
stating that bridegroom should have "completed the age of
twenty one years and the bride the age of eighteen years at the time of
the marriage." Certain types of marriages are explicitly prohibited
in the Act, under the definition of prohibited marriages.
A marriage may be solemnized through customary rites and ceremonies or
by taking seven steps around the sacred fire or through a simple process
of registration. Registration of marriage is however not compulsory.
According to the Act, both parties to marriage have the right to claim
their conjugal rights or seek judicial separation based on certain
conditions. The Act also defines when marriages are voidable, such
as when there was no consent of the guardian, impotency, pregnancy by
another person before marriage etc.
According to the Hindu Marriage Act 1955 (India), divorce can be
sought on certain grounds, namely, adultery, cruelty, desertion for two
years, religious conversion, mental abnormality, venereal disease,
leprosy, renunciation of the world, physical separation and absence of
communication for more than seven years and so on. Following
is an excerpt from the Act regarding these stipulations.2.
"Any marriage solemnized, whether before or after the commencement
of the Act, may, on a petition presented by either the husband or the
wife, be dissolved by a decree of divorce on the ground that the other
(i) has, after the solemnization of the marriage
had voluntary sexual intercourse with any person other than his or her
(ia) has, after the solemnization of the marriage,
treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous
period of not less than two years immediately preceding the
presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to
another religion ; or
(iii) has been incurably of unsound mind, or has
suffering continuously or intermittently from mental disorder of such
a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
(1-A) Either party to a marriage, whether
solemnized before or after the commencement of this Act, may also
present a petition for the dissolution of the marriage by a decree of
divorce on the ground-
(i) that there has been no resumption of
cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial
separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal
rights as between the parties to the marriage for a period of one year
or upward after the passing of a decree of restitution of conjugal
rights in a proceeding to which they were parties.
2) A wife may also present a petition for the
dissolution of her marriage by a decree of divorce on the ground-
(i) in the case of any marriage solemnized before
the commencement of this Act, that the husband had married again
before the commencement or that any other wife of the husband married
before such commencement was alive at the time of the solemnization of
the marriage of the petitioner:
Provided that in either case the other wife is
alive at the time of the presentation of the petition;
(ii) that the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu
Adoptions and Maintenance Act, (78 of 1956), or in a proceeding under
Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974)
or under corresponding Section 488 of the Code of Criminal Procedure,
(5 of 1898), a decree or order, as the case may be, has been passed
against the husband awarding maintenance to the wife notwithstanding
that she was living apart and that since the passing of such decree or
order, cohabitation between the parties has not been resumed for one
year or upwards;or
(iv) that her marriage (whether consummated or not)
was solemnized before she attained the age of fifteen years and she
has repudiated the marriage after attaining that age but before
attaining the age of eighteen years."
According to the Act, both parties to a marriage may seek legal separation
by mutual consent on the ground that "they have been living
separately for a period of one year or more, that they have not been
able to live together and that they have mutually agreed that the
marriage should be dissolved." Newly married couple cannot file a petition
for divorce within one year of marriage. Divorced couple can remarry if
the divorced proceedings are complete and there is no right of appeal
against the court decree. Bigamy is a punishable offence under the
Indian Penal Code. An aggrieved party in a divorce petition may seek
permanent alimony and maintenance from the other party while filing a
petition for divorce and if convinced, the court may grant gross sum on
monthly or periodical basis for a term not exceeding the life of
Hindu marriage as an institution of family and society has undergone
quite a number of changes in recent times. The position of women changed
and she is not as dependent or subservient as her ancestors were. Still
for many Hindus, divorce is the last desperate resort. The stigma associated with
divorce is the biggest deterrent. It not only effects the couple
involved, but their families and children also. Divorced people find it
difficult to be accepted among their friends and family and find new
partners. The problem is more acute in case of divorced women. The
families involved on either side also suffer, especially if there are children of marriageable age. Dowry and interference of in-laws are two
important causes of divorce. Many put up with the injustices, but a few
take action. There are many couples, who live together, though
they have serious issues of compatibility, for fear of public humiliation and
social disapproval or the love of children. Some women turn to religion
to cope with the pressures of a difficult marriage or a difficult
husband. Some live apart,
under the pretext of working abroad or in some far away place.
the progress achieved in recent times and the freedom Hindu women enjoy
to make their own decisions, marriage is still a sacred relationship in
Hinduism. The Hindu law books have now given way to the principles of
democracy and belief in the equality of genders. Compared to the
marriages in the western world, Hindu marriages have a greater
stability. A great majority take the responsibility of marriage
seriously and do their part in promoting social and family values
through their adherence to ancient traditions and commitment to their
children's welfare. The balancing act calls for great patience. For the Indian judiciary, dealing with the cases of
divorce is a big challenge because of the social and economic issues
involved and the need to render social justice through timely
dispensation of court cases, so that people can return to normalcy and
leave behind their past, in a country where usually nothing is so easily
forgotten, especially if it is something as important as marriage.
Hindus who live in India have recourse to the Marriage Act and similar
legislation passed in the aftermath of India's independence, those living in
other parts of the world may have to deal with their
divorce issues through local courts, according to the laws prevailing in
their countries. So far, most of the social issues
related to Hinduism are being studied and interpreted from the Indian
perspective. Perhaps it is time we begin to look at them from a global
perspective and understand how each Hindu community in various parts of
the world are coping with their social and religious lives and how the
institutions of family and marriage are evolving there. Because Hindus are now in every country of the world, we need to know how they
have been living and practicing their religion in the context of the local
challenges, traditions and prevailing laws. Let us hope some day we will
initiate a study of such issues on a global scale.
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
150. She must always be cheerful, clever in (the management of
her) household affairs, careful in cleaning her utensils, and economical in
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
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