Divorce in Hinduism

 

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 lives. Marriage is therefore a sacred bond, which cannot be dissolved through divorce on some personal or selfish grounds. 

The Historical Context

In ancient times, women in Hindu society had limited freedom. Women were bought and sold, abducted, forcibly married and forced into slavery or prostitution. There was nothing like the modern concept of a divorce or a legal separation in Hindu society. Once a woman left her parent's home, she was completely at the mercy of her husband or his parents and if he found her incompatible or unattractive and abandoned her, there was little that she could do. She had no right to divorce, no right to remarry and no right to leave the house and approach any one without her husband's permission. Part of the problem was that 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 innocent. 

The plight of Sita amply reflects the attitude of ancient Hindu society towards women. Men had the right in ancient India to abandon their women on mere suspicion of infidelity or adultery. There were no courts that would argue the cases for women or legalize their separation. There was no concept as gender equality. According to the Hindu law books, women were born to serve. Women were born to tempt men into vice. Women were born to be kept under control. The action of Rama is widely debated by scholars of today in the context of the moral and marriage standards of present day Hindu society. However few centuries ago, it was hardly a debatable issue, because apart from its moral, social and symbolic implications, Rama's action was neither unusual nor strange, but in conformity with the Hindu law books and the practices of those times. If we rationalize his action today, it is by ignoring the wider social context in which it happened and the fact that Rama as the king and upholder of Dharma was duty bound and had no choice, unless he wanted to present himself as a person with double standards.

Even the great Buddha, founder of Buddhism, who is known for his compassion and wisdom, felt women were inferior to men and a spiritual hazard. When his disciple Ananda approached him with a request to admit them in to the Buddhist Sangha, he said to have remarked, "Just as when the disease called crimson falls upon a field of sugarcane, that field will not last long, even so Ananda in that doctrine and discipline in which women receive the going forth from a house to houseless life, the religious life will not last long." Eventually, when he relented and admitted Buddhist nuns into his Sangha, it was by introducing a strict code of conduct. Buddha's approach was not much different from that of the vedic scholars and his words amply reflect the condition of women and the attitude of even enlightened men towards them. 

Woman, The Temptress and the Goddess

However it would be erroneous on our part to draw any hasty conclusions about the plight of women in ancient India, based purely on incidents such as the above and the stand taken by the Hindu law books. The information is inconclusive and contradictory. This was true, especially, in case of the Hindu Dharmashastras, whose influence and authority remained mostly confined to certain pockets of Hindu society, among people, who had access to them, knew them and for whom dharma or religion, as laid down in the scriptures, mattered. It is is difficult to estimate how strongly they were enforced in a society in which atheists, materialists and skeptics lived without fear, voicing their beliefs against the caster system and excessive ritualism of vedic religion.

The attitude of ancient Hindus towards women was rather ambiguous. On the one hand, we have the Hindu law books which proclaim women to be untrustworthy and subservient to men, having no claim to liberty and independence. They declare a woman to be a possession, owned by her father before marriage, her husband after marriage and her children after her husband's death. They do advise men to treat women honorably and keep them happy in order to beget progeny and continue their lineage, but the emphasis is not on conjugal love but promulgation of Dharma. They warn the consequences that befall unchaste women, who neglect their families and their duties.

On the other hand, the scriptures equate women with Mother Goddess and call upon men to treat them with respect and dignity. They warn that a house in which women are unhappy would never prosper. A housewife is a goddess in her own right. She is Lakshmi of the house. Without her, her husband is incomplete. She brings her part of the karma to the marriage and by assisting him in his duties fulfills his destiny. She shares his joys and sorrows and his duties. She is his companion in the observation of dharma. Her presence is important in the performance of rituals and the samskaras, because she is a partner, a soul mate, not only for this life but for several. The duties and responsibilities of varnasharama dharma, performance of sacrifices and samskaras were not prescribed for women, but they were expected to assist their husbands in performing them. 

Although they were not enjoined to pursue studies or take up responsibilities in public life, we have evidence to believe that in ancient India women played an important role in Hindu polity and society. Women were employed in the army, in the administration and in the royal court as soldiers, body guards, courtesans, servants, cooks, doctors, dancers and spies. Women in the rural areas worked in the fields, carried weights and helped their husbands in their family occupation. There were women who were adept in art and literature and scriptural knowledge. They participated in religious debates and composed verses. We had women saints who exemplified the virtues of devotion and surrender to God through their actions and lives. The Kunti, Draupadi, Hidimbi, Subhadra and Gandhari of the Mahabharat were not helpless and passive women, but women with a mind of their own, who married whom they wanted to marry, shared the ambition and vision of their husbands, gave them counsel, questioned their wisdom and were heard. No one would believe that Yashoda, the foster mother of Lord Krishna was a subservient member of her family. She was perhaps a more vocal member of the family than her husband and exercised greater influence upon Lord Krishna when he was a child. Thus declares Manusmriti:

The teacher (acharya) is ten times more venerable than a sub-teacher (upadhyaya), the father a hundred times more than the teacher, but the mother a thousand times more than the father (2.145).

So while we are not sure how Hindu women were treated exactly in the past or how the marriage laws worked for them, based on the fact that Hindu society has always been a pluralistic society that cannot be characterized into a particular stereotype, which some elite sections however tend to portray for its shock value, we have to assume with some caution that the social and religious laws that governed the behavior of men and women and the beliefs and practices governing the institutions of marriage and family life and the status of women in ancient India should have varied from place to place, time to time, caste to caste and religion to religion. 

Marriage As a Sacrament

If we have to understand the problems and issues concerning Hindu marriages and divorce, we have to understand the concepts and the beliefs that are attached to them. Traditionally speaking, in Hinduism there is no concept of divorce. Especially, women cannot seek separation from their husbands. Marriage is a sacrament, sanctified in the presence of gods. During marriage a couple vow to stay together for ever and uphold traditional family values in accordance with Dharma. The bride is given to the bridegroom as a gift from the gods, whom he can never abandon, without incurring the sin of violating the marriage vows. Marriage is a sacred relationship between two people, which is predestined because of their deep connection and joint karma in their previous lives. It is a commitment that extends beyond this life, up to several generations. A couple marry not because they have chosen to, but because they are destined to. Hence any notion of separation is a sacrilege, with terrible consequences awaiting both the parties in their future lives. Whatever difficulties the couple may have, society and the scriptures expect them to take them in their stride, as a part of their karma, and continue their journey together. In exceptional cases, they may live separately, but cannot throw away their marriage relationship without incurring negative karmic consequences for themselves and their children. Hindu scriptures do not recognize a woman's right to leave her husband under any circumstances. Her duty is to serve her husband and remain loyal to him for the rest of her life. But men have been provided with a choice under some special circumstances. The scriptures allow a married man to leave his wife or marry another on the grounds of infidelity, childlessness, an incurable disease such as leprosy or insanity, or ever mere suspicion of adultery or infidelity. Divorce is a modern practice introduced into Hindu society through civil laws to protect the rights of both men and women that are guaranteed in the Indian constitution.

Legal Position

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

According to the Hindu Marriage Act 1955 (India), divorce can be sought on certain grounds, namely, adultery, cruelty, desertion for two years, religious conversion, mental abnormality, venereal disease, leprosy, renunciation of the world, physical separation and absence of communication for more than seven years  and so on. Following is an excerpt from the Act regarding these stipulations.².

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

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

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

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

(ii) has ceased to be a Hindu by conversion to another religion ; or

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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