Pramāṇa · Search · About · API

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c7.s7: Divorce

The Position of Women in Hindu Civilisation, from Prehistoric Times to the Present Day c7.s7

Language
English

Divorce

c7.s7.1

There is no doubt that the later Dharmaśāstra literature as a whole (200-1200 A. D.), while liberally permitting the husband to remarry during the life-time of the first wife, refuses the remedy of divorce to the wife even when completely forsaken by the husband. Like early Christianity Hinduism also held that the marriage union was indissoluble; Manu advances the extreme view that the wife's marital tie and duty do not come to an end even if the husband were to sell or abandon her¹.

c7.s7.2

¹ न निष्क्रयविसर्गाभ्यां भर्तुर्भार्या विमुच्यते । एवं धर्मं विजानीमः प्राक्प्रजापतिनिर्मितम् ॥ *Manu*, IX, 46.

c7.s7.3

If, however, we examine carefully the earlier Dharmaśāstra literature, we find that divorces were permitted before the beginning of the Christian era under certain well-defined circumstances. It is interesting to note that even Manu himself observes elsewhere in his book that a wife is not to blame if she abandons a husband, who is impotent, insane, or suffering from an incurable or contagious disease². This abandonment of the husband practically amounted to a divorce, for Manu permits such a wife to remarry if her previous marriage was not consummated³. The children of the new union were legal heirs to their parents. In actual practice, however, down to about the beginning of the Christian era, divorces and remarriages took place now and then in all sections of society even after the consummation of the first marriage. The Atharvaveda in one place refers to a woman marrying again, very probably in the lifetime of her first husband; it lays down a ritual intended to unite her permanently in heaven with her husband (IX, 5, 27-8). Her second marriage of course presupposed a divorce. Dharmasūtra writers (400 B. C. to 100 A. D.) lay it down that a Brahmana woman should wait for her husband gone out on a long journey for five years; Kauṭilya reduces this period to ten months only (III 4). If the husband did not return within that time and she was unwilling or unable to go out to join him, she should regard him as dead and unite herself with another member of the same family or *gotra*¹. Similar permission is given by the *Arthaśāstra* of Kauṭilya which requires judicial permission before contracting the second marriage². Jurists differ only about the period of waiting, which however never exceeds eight years. Parāśara's permission to remarry given to the wife of a person, who is impotent or has become a religious recluse or is boycotted, clearly presupposes the possibility of divorce from the earlier marriage³.

c7.s7.4

² उन्मत्तं पतितं क्लीबमबीजं पापरोगिणम् । न त्यागोऽस्ति द्विषन्त्याश्च न च दायापवर्तनम् ॥ IX, 79.

c7.s7.5

³ या पत्या वा परित्यक्ता विधवा वा स्वयेच्छया । उत्पादयेत्पुनर्भूत्वा स पौनर्भव उच्यते ॥ सा चेदक्षतयोनिः स्याद्गतप्रत्यागतापि वा । पौनर्भवेन भर्त्रा सा पुनः संस्कारमर्हति ॥ IX, 175-6.

c7.s7.6

¹ **प्रोषितपत्नी पञ्च वर्षाण्युदीक्षेत । ऊर्ध्वं पञ्चभ्यो वर्षेभ्यो भर्तृसकाशं गच्छेत् । यदि धर्मार्थाभ्यां प्रवासं प्रत्यननुकामा स्याद्यथा प्रेते एवं वर्तितव्यं स्यात् । अत ऊर्ध्वं समानोदकपिण्डर्षिगोत्राणां पूर्वः पूर्वो गरीयान् ।** *V.D.S.*, XVII, 67.

c7.s7.7

² **अन्ततः परं धर्मस्थैर्विसृष्टा यथेष्टं विन्देत ।** III, 4.

c7.s7.8

³ **नष्टे मृते प्रव्रजिते क्लीबे च पतिते पतौ ।** **पञ्चस्वापत्सु नारीणां पतिरन्यो विधीयते ॥** IV, 24.

c7.s7.9

Kauṭilya gives detailed rules of divorce intended for the couples who found it impossible to live with each other. They were, however, applicable only to Āsura, Gāndharva, Kshātra and Paiśācha marriages.

c7.s7.10

These marriages, though commoner among the lower sections of society, were not unknown among Brahmanas and Kshatriyas; divorce therefore must have prevailed among higher classes also to some extent. According to Kauṭilya, if the husband or the wife hated each other, divorce was to be granted. If a man, apprehending danger from his wife, sued for divorce, he had to return to her whatever presents he may have received at the time of marriage. If it was the wife who was the complainant, she had to forfeit her proprietary rights in her husband’s family. No divorce, however, was permitted, if the marriage were performed by any of the four approved forms (III,3).

c7.s7.11

How far these rules of divorce were availed of, it is difficult to say. Recorded cases of divorce are not to be met with in Brahmanical tradition. In Buddhist literature, however, we meet with a few. Thus we are told that a woman named Kāṇā refused to return to her husband, when she learnt that he had contracted a second marriage during her absence. At the request of the Buddha, she was taken in adoption by a certain king, who married her to a nobleman (*Dhammapāda*, II, 82 and comm.). The nun Isidāsī had several divorces in her earlier life. She was first married to a merchant in Ayodhyā, who abandoned her within a month. Then her father married her to another person, who also disliked her and sent her back in an equally short time. She was then married to a third worthy, but this time the marriage did not last even for a fortnight (*Therīgāthā*, 72 and comm.). *Majhima Nikāya* refers to a family where the elders were anxious to divorce a discarded wife even against her wish and marry her to a new husband¹. It seems that parents in the lower sections of society were not accustomed to waste their time in inducing unwilling sons-in-law to accept unwanted wives; they would rather bring about a second marriage, though the woman concerned may not be enthusiastic about it.

c7.s7.12

¹ इमस्सेव सावत्थिया अञ्ञतरा इत्थी ज्ञातिकुलभागभासि। तस्सा ते ञातिका सामिकं अच्छिन्दित्वा अञ्ञस्स दातुकामा। सा च नेच्छति। Vol. II. p. 109.

c7.s7.13

The recorded cases of divorce, however, are few, and we have evidence in the Buddhist literature itself to show that divorce was rather unusual in cultured sections of society. Thus in the Kaṇhadipāyana Jātaka (No. 444), a woman points out to her husband that though she felt no love for him, she refrained from a new marriage because it was not the custom in that family for a wedded wife to take a new husband. It is therefore clear that women in higher classes of society were very unwilling to take advantage of the custom of divorce, prevailing among the lower classes.

c7.s7.14

At about the 5th century B. C. a wave of asceticism passed over Hindu society. Though there was a good deal of opposition to it, the ideal of renunciation and puritanism, which it assiduously advocated, became eventually very well grounded in society by about the beginning of the Christian era. As one of its natural consequences society began to hold that a girl could be given in marriage only once. To divorce one husband and to marry another, because the marital life was not happy, began to appear as a grossly sensual procedure.

c7.s7.15

Society, therefore, held that even if the husband were a moral wreck, or were grievously ill-treating his wife, the latter could not claim any relief by way of divorce. It may be pointed out that the Roman Catholic Church also holds the same view even today, as it regards marriages as indissoluble. In England down to the middle of the last century, a divorce could be had only by an Act of Parliament. During the long period of 140 years between 1715 and 1855 A. D., only about 180 persons could get relief through Parliamentary legislation¹.

c7.s7.16

¹ *Report of the Royal Commission on Divorce and Matrimonial Causes, 1912*, p. 11.

c7.s7.17

We may, however, point out that divorce went out of vogue only in the higher sections of Hindu society. The *Śūdrakamalākara*, written in the 17th century, expressly permits it to Śūdras and other lower castes². In the middle of the last century the Panchayats of several castes in Gujarat used to grant divorce. The Bombay High Court in the beginning recognised this right, but later on pronounced the custom as invalid on the ground of its being opposed to the spirit of the Hindu Law³. In actual practice at present, however, divorces are not difficult to obtain in the lower sections of Hindu society.

c7.s7.18

² न शूद्रायाः स्मृतः कालो न च धर्मव्यतिक्रमः । विशेषतोऽप्रसूतायाः स्त्रियाः संवत्सराद्विधिः ॥ *Nārada in Śūdrakamalākara.*

c7.s7.19

³ Steele, *Law and Custom of Hindu Castes*, p. 26.

c7.s7.20

In recent years some educated ladies have begun to advocate the legal recognition of divorce in Hindu community. This demand is to a large extent a natural outcome of the present Hindu law of marriage, which is very unfair to the fair sex. Man is permitted practically to divorce his first wife by contracting a fresh marriage. He can even evade his legal responsibility of maintaining the discarded wife under the plea that she refuses to stay with him. How can a self-respecting woman stay with a husband, who has transferred all his affection to a new wife and who will at best treat her only as an unpaid and unwanted maid-servant? The number of young women, who have been in this way deserted by their husbands merely out of frivolity or whimsicality, is not small. The deserted wives cannot remarry, for neither law nor religion consents to sever their nominal marital tie with their heartless husbands. Some of them change their religion in order to contract a new legal marriage.

c7.s7.21

This state of affairs is undoubtedly unsatisfactory; it is against the spirit of what is best in Hindu culture. There are two ways of improving the situation. The first and the best one is to render polygamy altogether illegal. It may be pointed out that some cultured classes in Hindu society, *e.g.*, the Nāgara Brahmanas of Gujarat, have voluntarily foresworn the privilege of polygamy; it is high time for all sections of Hinduism to imitate their noble example. If this is done and polygamy becomes illegal, the cases of deserted wives, who pass their days in misery while their husbands are leading merry married lives with new consorts, will disappear altogether.

c7.s7.22

If, however, this step cannot be taken, divorce should be allowed in cases of proved and extreme hardship. In the interest of the solidarity of society and of the purity of morals, it is desirable that deserted wives should be allowed the remedy of divorce, *if they desire it*. It should not be, however, granted at the instance of their husbands ; for that would enable them to evade their legal responsibility of maintaining their unwanted wives. The latter may find it difficult to marry or maintain themselves after the divorce.

c7.s7.23

Should divorce be allowed on wider grounds like cruelty, insanity, long imprisonment, continued adultery etc. is a difficult question to answer. There can be no doubt that in the present state of the mentality of Hindu society, permission for divorce for the above reasons would be highly detrimental to the interests of women. Even child widows do not find it easy to contract a new satisfactory marriage. Among divorced wives, not even five per cent. may succeed in arranging a good second marriage. The remaining 95 per cent. would be unable to remarry ; divorce may merely result in depriving them of their legal right of maintenance against their husbands.

c7.s7.24

The introduction of divorce for reasons usually admitted as sufficient in the west would thus not be in the interest of women themselves. Experience in western countries shows that liberalisation of divorce laws usually leads to a slacker sex morality. In recent years in most of the western countries the rate of divorce has been increasing continuously like the velocity of a falling body, and the present tendency both in Russia and England is to restrict the facilities once granted. There is no doubt that the best interests of society require that the marriage tie should be normally regarded as permanent and indissoluble. This is possible only if the ideal of marriage is very high. Both the husband and the wife have to develop self control and a high sense of responsibility. They have to realise that human nature being what it is, temperamental differences are bound to arise now and then in daily life, and they cannot be got rid off by divorce and a second marriage. Happiness in family life is possible only if the husband and the wife are prepared to make great sacrifices in order to accommodate themselves to each other. Divorce should be the last remedy in very exceptional cases.

Linked texts (10)