Pramāṇa · Search · About · API

History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c31.s1: Divorce

History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v2.c31.s1

Language
English

Contents

Divorce

v2.c31.s1.1.1

In the Vedic literature there are at least some texts capable of being interpreted as relating to the remarriage of widows and we have the word 'punarbhū'. But as regards divorce there is absolutely nothing in the Vedic texts nor is there much in post-vedic literature. The theory of dharmaśāstra writers is that marriage when completed by homa and saptapadī is indissoluble. Manu IX. 101 says 'Let mutual fidelity (between husband and wife) continue till death; this in brief may be understood to be the highest dharma of man and wife.' In another place Manu (IX. 46) declares 'neither by sale nor by desertion is the wife released from the husband; we understand that this is the law ordained by the Creator in former times.' The position of the writers on dharmaśāstra is that marriage is a saṁskāra, that the status of wife-hood arises from that saṁskāra, that even if the husband or wife became *patita*, the saṁskāra already performed is not annulled by that fact, that even if a wife committed adultery she still remains a wife and that when she performs a penance for her lapse, it is not necessary to have a fresh saṁskāra of marriage performed on her.¹⁴⁵⁶ We have seen (pp. 552-553) that a man was allowed to supersede a wife and marry another or others or to abandon his wife altogether in certain circumstances. But that does not amount to divorce (i. e. dissolution of the marriage tie); the marriage is still there intact. It was also shown (at pp.

v2.c31.s1.1.2

610-611) that according to Nārada, Parāśara and a few others a woman was allowed to remarry in case the husband died, or was unheard of &c.; but according to the digests and commentaries these rules apply to a former *yuga* (age). Therefore divorce in the ordinary sense of the word (i. e. divorce *a vinculo matrimonii*) has been unknown to the dharmaśāstras and to Hindu society for about two thousand years (except on the ground of custom among the lower castes). Even when the husband was allowed to abandon the wife for her lapse, still she was in most cases entitled to at least starving maintenance. Therefore *tyāga* (abandonment) was not only no divorce *a vinculo* at all but was not even a divorce *a mensa et thoro* (divorce from board and bed). Later smṛtis and medieval digests could hardly conceive of any ground for which the wife could desert her husband altogether, though Nārada and a few others allowed her to desert one husband and marry another if he was impotent, or became a saṁnyāsin or an outcast. The Mit. on Yāj. I. 77 says that a wife is not under the control of her husband as long as he remains *patita* (outcast or excommunicated) and that she should wait till he is purified by penance and restored to caste and that thereafter she again becomes dependent on him. The gravest sins can be expiated by penance (vide Manu XI. 89, 92, 101, 105-106); therefore it follows that a wife could not for ever desert even a *patita* husband.

v2.c31.s1.1.3

In modern times the Indian courts¹⁴⁵⁷ have held that mere change of faith or apostasy by a Hindu wife or husband does not *ipso facto* dissolve the marriage and that if the wife changes her religion and then marries another while the first husband is still living, she would be guilty of bigamy. Mere desertion or separation for many years or even adultery does not dissolve a Hindu marriage (vide 42 Madras Law Journal 276). Only in cases where the husband or wife becomes a convert to Christianity, a special procedure is prescribed for the dissolution of the original Hindu marriage by the Native Converts' Marriage Dissolution Act (XXI of 1866), which is not set out here as it is beyond the scope of this work to do so. Further, those Hindus who marry under the Special Marriage Act (III of 1872 as amended by Act XXX of 1923) can secure divorce under the Indian Divorce Act (IV of 1869). The Malabar Marriage Act (Madras Act IV of 1896) forbids polygamy if the first marriage is registered and allows divorce (sec. 19) among those who are governed by the Marumakkatayam or Aliyasantana Law prevalent in Malabar.

v2.c31.s1.2

¹⁴⁵⁶ Vide विश्वरूप on या. III. 253-254 केचित्तु परित्यक्तासु पारदार्यप्रायश्चित्तं नेच्छन्ति संबन्धिनिमित्तत्वाद्वारशब्दस्य । …… तथा च सति विधवास्वपि पारदार्यं न स्यात् । न च व्यभिचारादिभिस्तस्यापगमो युक्तः संस्कारनिमित्तत्वाद् दारशब्दस्य । तस्य च पतनेप्यनपगमात् । अत एव पतिता योषितः कृतप्रायश्चित्ताः पुनर्न संस्क्रियन्ते । अन्यथा तु पतनेन संस्कारस्यापगमात् कृतप्रायश्चित्ता अप्यदाराः स्युः । अतो व्यभिचारिणीष्वप्यस्त्येव पारदार्यम् ।

v2.c31.s1.3

¹⁴⁵⁷ Vide *The Government of Bombay v. Ganga* I. L. R. 4. Bom. 330; *in the matter of Ram Kumari* I. L. R. 18 Cal. 264; *Budansa v. Fatma Bi* 26 Madras Law Journal p. 260.

v2.c31.s1.4

The Arthaśāstra of Kauṭilya contains some interesting observations bearing on divorce.¹⁴⁵⁸ 'A wife hating her husband cannot be released from the husband if he is unwilling (to let her go), nor can the husband release himself from the wife (if she is unwilling); but if there is mutual hatred then release is possible. If a man fearing danger (or injury) from his wife desires release from her, he shall return to her whatever was given to her (at the time of marriage). If a woman out of fear of danger (or injury) from the husband desires release, the latter need not return to her what was given to her (at the time of marriage); marriages in the approved form cannot be dissolved.' Kauṭilya himself says (in III. 2) that the first four forms viz. brāhma, prājāpatya, ārṣa and daiva are dharmya (approved), since they are brought about under the authority of the father.¹⁴⁵⁹ Therefore according to Kauṭilya there can be no dissolution of the marriage tie if the marriage was celebrated in one of the first four forms. But if the marriage was in the gāndharva, āsura or rākṣasa form, then the tie may be dissolved by mutual consent, if both have come to hate each other. But he seems to hold that there can be no release at the instance of only one party to the marriage who has begun to feel aversion to the other party in whatever form the marriage may have been performed. Even in this latter case he apparently makes an exception, where physical danger is apprehended by one party from the other.

v2.c31.s1.5

¹⁴⁵⁸ अमोक्ष्या भर्तुरकामस्य द्विषती भार्या। भार्यायाश्च भर्ता। परस्परं द्वेषान्मोक्षः। स्त्रीविप्रकाराद्वा पुरुषश्चेन्मोक्षमिच्छेद्यथागृहीतमस्यै दद्यात्। पुरुषविप्रकाराद्वा स्त्री चेन्मोक्षमिच्छेन्नास्यै यथागृहीतं दद्यात्। अमोक्षो धर्मविवाहानामिति। अर्थशास्त्र III. 3.

v2.c31.s1.6

¹⁴⁵⁹ पितृप्रमाणाश्चत्वारः पूर्वे धर्म्याः। अर्थशास्त्र III. 2.

v2.c31.s1.7

It is beyond the scope of this work to compare the law of divorce in other countries or under other religious systems. It may be stated, however, that according to the strict theory of the Roman Catholic Church the marriage tie is indissoluble,¹⁴⁶⁰ though decrees of nullity of marriage were sometimes granted by that Church to those who could pay for them. In England after the Restoration divorce could be secured through the Parliament by a private Bill where a divorce *a vinculo matrimonii* was desired. But this method could be resorted to only by the rich, as the passage of a private Bill for divorce cost at least 500 £. The Ecclesiastical courts in England granted divorces *a mensa et thoro* on the ground of adultery, cruelty or unnatural offences, though such a divorce did not dissolve the marriage. But this procedure also was costly, as even an undefended suit for divorce *a mensa et thoro* would ordinarily cost from 300 to 500 £. Then came the Matrimonial Causes Act of 1857 (20 and 21 Vic. chap. 85) by sec. 27 of which a wife could petition for divorce only if she proved that since the celebration of marriage the husband was guilty of incestuous adultery, or of bigamy with adultery, or of adultery coupled with such cruelty as, without adultery, would have entitled her to a divorce *a mensa et thoro* or of adultery coupled with desertion. The Matrimonial Causes Act of 1923 (13 and 14 Geo. 5 chap. 19) placed women on an equality with men by allowing them to apply for divorce merely on the ground of adultery by the husband without having to prove anything more. Then the Act of 1937 known as A. P. Herbert's Act (1 Edw. 8 and 1 Geo. 6 chap. 57) allows the husband or wife to petition for divorce on four grounds. It will be noticed from this that the absence of divorce and rigorous restrictions thereon are not a peculiarity of the Brahmanical religion or of the caste system, but existed even in so-called progressive, casteless and Christian countries up to very recent times. In modern times even in Roman Catholic countries divorce is allowed on various grounds; and in India too efforts are being made to enact legislation permitting divorce among Hindus for various reasons. And it may be admitted that some legal provision is necessary for securing divorce in hard cases even as to marriages celebrated under the ancient śāstric system on grounds similar to those in the English Act of 1937.

v2.c31.s1.8

¹⁴⁶⁰ Vide the Gospels of Mark X. 2-12 and of Luke XVI. 18, which altogether forbid divorce.

Linked texts (2)