History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v2.c31.s1.1
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v2.c31.s1.1
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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.
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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.
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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.