The evolution of Hindu divorce laws is an interesting journey into India’s social, cultural, and legal history. Ancient Hindu texts, mainly the Dharmasastras, portray a complexity concerning the dissolution of marriages. Though marriage was treated as holy, still, in some of these texts, Narada Smriti and Parashara Smriti permitted certain grounds for ending marital relationships. These ancient texts, as noted by P.V. Kane in his authoritative work “History of Dharmashastra” (Bhandarkar Oriental Research Institute, 1962),[i] permitted dissolution of marriage under some circumstances, such as abandonment, long absence, or gross misconduct.
Regional variations during the medieval period were very pronounced in the practice of divorce as communities came together to form local customs and traditions. Customary practices were more elastic than classical textual position, especially during the time of lower castes and tribal communities. The colonial period was pivotal in the development of law concerning divorce to Hindus. British administrators were increasingly trying to codify Hindu law and found themselves grappling with the variety of customary practices. Colonial courts attempted to standardize Hindu law, which often led to dogmatic interpretation while favoring the upper-caste practices, whereas customary approaches to divorce remained marginalized.
The Hindu Marriage Act, 1955 witnessed a revolutionary change in the post-independence era. It forged an intricate balance of modernity and tradition. It gave formal grounds for divorce while at the same time curtailing innovations with Section 29(2) keeping customary practices intact. What is on record is that provisions of the Act heavily drew upon both legal principles from the West and indigenous legal traditions and created what Menski refers to as a “new hybrid legal system” in “Hindu Law: Beyond Tradition and Modernity” (Oxford University Press, 2003).[ii]
Divorce provisions have been further liberalized by amendments to the Act in 1964 and 1976 and certainly reflect changing social attitudes and increased recognition of women’s rights. Such amendments demonstrate how the tension between traditional views of marriage as sacramental and modern views of marriage as a contract has evolved over time and remains the focus of much contemporary Indian jurisprudence.
JUDICIAL INTERPRETATION OF CUSTOMARY DIVORCE PRACTICES
The Indian judiciary has performed an effective role in shaping the customary and statutory divorce laws. The approach of the Supreme Court changed from strict adherence to documented customs towards more elastic recognition of living traditions. The aforesaid case of Madhu Kishwar v. State of Bihar[iii] focussed on the fact that customs need to be interpreted by the Constitution especially in terms of gender equality.
Courts have evolved certain guidelines in the matters of recognition of customary divorce practices. These are extracted from “The Hindu Marriage Act” analyzed by Justice Y.V. Chandrachud (LexisNexis, 2018),[iv] which are: it must be a very old and both continuous and certain custom; it must neither be shocking to the conscience and must not be contrary to public policy; and there must be, affirmatively, clear evidence of its existence. Thus, the scope of judicial doctrine has kept the balance between two fronts: traditionalism and legal certainty.
Regional variations in customary divorce practices have been dealt with elaborately by High Courts. For instance, the Kerala High Court has reviewed extensive local customs such as “mura chikkan” practices prevalent among certain groups, and the Himachal Pradesh High Court has recognized traditional tribal divorce practices. These decisions reflect what Agnes would call the “legal pluralism in action” in her book “Family Law Volume 1: Family Laws and Constitutional Claims” (Oxford University Press, 2011).[v]
A significant challenge that courts face in this direction is the recording and proof of customary practices. The Supreme Court, in a series of judgments, has ruled that although customs need not be recorded since time immemorial, they must be proved to be continuous and sure. The amendment in this regard has helped in protecting genuine customary practices simultaneously preventing the wrongful exercise of custom as a defence in divorce cases.
GENDER JUSTICE AND EQUALITY IN HINDU DIVORCE LAWS
Gender justice at the point of intersection with Hindu divorce laws throws up stark problems in customary and in statutory provisions. Customarily, often times the practice is patriarchal in nature, thus positioning the lady at a severe disadvantage in case of divorce. However, as argued by Parashar in “Women and Family Law Reform in India” (Sage Publications, 1992),[vi] some of the customary practices among certain tribes accorded women a more autonomous control over the option of divorce as compared to that promised by the colonial interpretation of Hindu law.
The statutory framework envisioned under the Hindu Marriage Act sought to correct wrongs against women through certain provisions. Mutually agreeing to divorce, which became a law in 1976 by an amendment, was indeed the most important stride toward equality between genders, for both spouses were granted equal rights over the initiation of a divorce case. However, the Act’s property rights and maintenance provisions, according to Sivaramayya in “Matrimonial Property Law in India” (Oxford University Press, 1999), “do not guarantee economic justice to women after divorce”.[vii]
There has been a spate of judgments in this recent past, which recognize gender justice while interpreting not only the statutory divorce laws but also those pertaining to customs. Here, in this judgment, the Supreme Court recognizes irretrievable breakdown of marriage as one of the grounds for divorce, although this is not provided specifically under the Act. The other grounds for divorce taken up and decided by courts are those related to customary practices, which discriminate against women and cannot in any way be protected under Article 13 of the Constitution.
Of course, ensuring gender justice is quite challenging when there are plural legal systems. Women may not have access in practice to formal legal systems and must rely mostly on customary mechanisms of dispute resolution. It is a reality that calls for what Kapur terms a “multi-pronged approach” to legal reform in her work “Gender Justice: Some Issues” (LexisNexis, 2016).[viii]
Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
References
[i] P.V. Kane, History of Dharmashastra Vol. II (Bhandarkar Oriental Rsch. Inst. 1962).
[ii] Werner Menski, Hindu Law: Beyond Tradition and Modernity (Oxford Univ. Press 2003).
[iii] 1996 AIR 1864.
[iv] Justice Y.V. Chandrachud, The Hindu Marriage Act (LexisNexis 2018).
[v] Flavia Agnes, Family Law Volume 1: Family Laws and Constitutional Claims (Oxford Univ. Press 2011).
[vi] Archana Parashar, Women and Family Law Reform in India (Sage Publ’ns 1992).
[vii] B. Sivaramayya, Matrimonial Property Law in India (Oxford Univ. Press 1999).
[viii] Ratna Kapur, Family Law and Gender Justice, 23 J. Indian L. Inst. 289 (2016).