CHAPTER-I

UNIT-A
Divorce according to the leading Hindu Sources Books -
Vedas Shastra-Manu Shastra-Yajnavlakya etc and Government
at Acts. (Hindi court Bill) and various Schools.

1. The Nature of Hindu Marriage:- In Hindu law, that is

to say, in the dharma Shastra or 'orthodox' Juridical
theory of India, marriage (Vivaha) is one of the ten
samkaras necessary for men of the twice born classes and
the only Vedic sacrament for women. (1) As in canon law
and moral theology matriminum is treated under sacraments,
so in Hindu law vivaha is not treated under vyavahara
(litigation) but under samskara. A samskara is a sacrament
or a purificatory act. Marriage is considered sacred
because it is said to be complete only on the performance
of the sacred rites attended with sacred procedure. This
samskara gives rise to the status of wifehood and its
performance cannot be annualed by the fact that the
husband or wife lapses from virtues i.e. by committing
adultery.(2) It is almost impossible to define marriage
in legal terms but the Shastric concept of marriage would
seem to be as a union between a man and a woman which
arises at the time when the ceremony of marriage (i.e.)
(samskara) has been compleleted, the bridegroom having the
requisite equalifications for taking a girl in marriage
and the bride the qualifications for being given in
marriage, and this procedure having been completed before
the nuptial fire.(3) Marriage is a sacramental rite,
which is performed for the girl for the purpose of making
 -:11:-

her a wife and is marked by the holding of hands along

with its entire procedure and subsidiary details.(4) It
gives the status of husband and wife to the married
couple. The mantras used in ceremony of wedding create a
wife. The sacrament becomes complete by the use of those
mantras. As regards the marriage of a Sudra, there are no
mantras but other ritesapply excludingthe mantras.(5)
2. The Purpose of the Samskarasi- The exact purpose of
Samskaras was left rather vague in our authorities. A
critical look at the list of Samskaras will reveal that
their purposes were manifold. According to ancient Hindu
religious belief man was surrounded by superhuman
influences which were powerful for good or evil
consequences. These influences could interfere in every
important occasion in man's life. Therefore/ the Hindus
tried to remove hostile influences and attract beneficial
ones, so that man might grow and prosper without external
hindrances and receive timely directions and help from
gods and spirits. Another purpose of the Samskaras was the
attainment of heaven. It had also a psychological value,
impressing on the mind of the person concerned that he had
assumed a new role and must strive to observe its rules(6)
The Vivaha-Samskara consists essentially in an acceptance,
which produces the mental impression that the girl is
man's wife, and wifehood arises from her having undergone
the Samskara, which Samskar itself could not occur but for
the marriage.(7)
 -:12:-

During the samskara of marriage a bride groom is

said to be an active receiver of the bride, who is taken
by him and given by her father or other guardian. From the
Shastric point of view the religious aspect of marriage
was so highly rated that a father was supposed to be under
a sacred duty to give his daughter in marriage at the
appropriate age, neglect of which duty was regarded as a
sin.(8) A critical look at the concept of Hindu Shastric
marriage \.ill show that ithas underwent changes from time to
time.

3. Marriage in the Vedic Period;- It was a simple

religious ceremony consisting of grasping the hand of the
bride by the bridegroom. The Rigveda enjoins, "I take the
hand for good fortune, that thou mayest attain old age
with me as thy husband; the gods have given thee to me
that I may be master of the household."(9)

4. Maarriaqe in the Sutra Period;- The procedure of

marriage became complex during the Sutra period. The

bridegroom was to lead the bride three times round the

nuptial fire, and the ceremony was completed on taking the

seven steps by the couple. The wife was shown the pole

star, which was symbolic of the fact of her stability in

her husband's home.(10)

5. Marriage in the Sinriti Period.;- During this period we

 -:13:-

During this period we notice various forms of

marriage, eight of which are briefly dealt with below,

(i) The Brahma;- The gift of a daughter, after decking

her with costly garments and honouring her by presents of

jewels, to a man learned in the Vedas and of good conduct,

whom the fatherhimself invites, is called the Brahma

(12)
rite. Medhatithi on Manu XXVII comments that there is
nothing to indicate the conection of special dressing with
either the bride only or with the bridgegroom only; hence
they should be taken as relating to both. This seems to be
the correct view, because in practice eve today both the
bride and the bridegroom are specially dressed ad adorned
, for the wedding.

(ii) The Daiva;- This was a gift of a daughter whom her

father had beautifully clothed when the sacrifice had

already begun, to the officiating priest, who performed

that act of religion.

(iii) The Arsha;- When the father gave away -his daughter
according to the rule, after receiving from the
bridegroom, for the fulfilment of the sacred law, a cow
and a bull or two pairs, that marriage was termed the
Arsha. On the face of this text it appears that the taking
of the consideration from the bridegroom rendered this
form inferior to the above two and the Prajapatya below.
. (13)
But this IS doubtful, for Medhatithi on Manu III, 29

comments that such receiving of the cattle by the father

was done in obedience to law, and not with the idea of

receiving it in exchange for the price of the girl.

(iv) The Prajapatya;- When the father gave away his

 -:14:-

daughter with honour saying distinctJ^y, "May both of you

perform together your civil and religious duties." Again
Medhatithi(l4) comments that the formula implies the
condition that the daughter is to be given to the
bridegroom only if he fulfills his duty, properly and
pleasure along with her. Therefore, this form was regarded
as inferior by reason of this condition. Ludwick
Sternbach,(15) whose study is based on the Dharmasastra,
Arthasastra, Kamasutra, Grihya-Sastras . and the
Mahabharata, concludes that when the forms of marriage are
closely examined there existed in ancient India not eight
but eleven forms of marriage. The difference betvjeen the
Projapatya and the Brahma is that the bridegroom in the
former is the suitor, i.e. he has solicited the girl, and
is not invited by the father of the bride . He is an
applicant for the bride's hand and this makes it inferior
to the Brahma form, where the bridegroom is voluntarily
and respectfully invited by the father of the bride to
accept his daughter. A Hindu marriage, being a gift of the
bride, loses a part of its merit if it is not voluntary or
wilful, but has to be applied for. The Prajapatya was
probably used only for a monogamic and hvjsband could not
renounce his wife and take to the order of Sanayasa or
Vanaprastha without her consent or her company. In fact
the Brahma was originally identical with the Prajapatya,
because Apastamba and Vasishtha do not mention Prajapatya
at all. The Prajapatya was added later, therefore, the
 -:15:-

Smriti writers fail to bring out the difference between

the two.(16) Prajapatya is the second best and approved

form. (17) As in the Brahma form so in the Prajapatya one

the bridegroom is invited and honourably received by the

father of the bride.(18)

(v) The Asura;- The bridegroom having given as much
wealth as he could afford to the father. Paternal Kinsman
and to the girl herself took her as his bride. This being
a sale of the bride was regarded as a base form of
marriage and was prohibited by Manu.(19) This form was
recognised by the Hindu law during the British period. In
Kailasanatha V. Parasakthi. (20) It was hold that the
distinctive feature of the Asura form of marriage is the
giving of or money's worth to the bride's father for
his benefit or as consideration for his giving the girl in
marriage. However, a courtesy or complimentary present
given to the bride or her family has to be distinguished
from bride-price.(21) Money paid by the bridegroom for
the specific purpose of making jewellery for the bride is
not bride-price and does not make the marriage an Asura
one.(22) Now after India Independence the whole situation
was reviewed by the Supreme Court,(23) which held that the
Asura is an unapproved form of marriage and the test of it
is that there shall be not only benefit to the bride's
father, but that benefit shall form a consideration for
the sale of the bride.
(vi) The Gandharva;- This was a marriage arising out of
 -:16:-

mutuai d08lre of a man and a woman^ and can b« compared

with the modern love marriage. It was enjoined by the
Sastra that a Brahmana could contract ' a marriage
legitimately in one of the first four forms.(24).
However, in practice at least according to the Mithila
School of law the Brahmins.(25) In Bhaoni V. Maharaj(26)
the Gandharva was equated with concubinage. It was held
that this form had become obsolute as a form of marriage
giving the status of wife and making the issue legitimate.
This case is unlikely to be followed in view of the Hindu
Marriage Act, 1955 and changing public opinion, which
tends to encourage grown up persons to make their own
decision in the choice of their life partenrs .
(vii) The Rakshasa;- This was a marriage by seizure of a
girl by force from her house while she wept and called for
assistance, after her kinsmen and friends had been slain
in battle or wounded and their house broken open,
(viii) The Paisacha;- Where the suitor secretly reduced
the girl while she was asleep or drunk or disordered in
intellect that sinful marriage was called Paisacha. This
is. the eight and the basest.

The first four marriages are regarded as

"approved" marriages. It was a Hindu reigious belief that

sons born of these marriages were radiant with knowledge

of the Vedas and were honoured by good men. Having these

qualities of beauty and goodness, possessing wealth and

 -:17:-

fame, obtaining as many enjoyments as they desire and

beiny most riyhteous, they would live a hundred years. The

remaininy four are regarded as blameworthy, from which

spring sons who are cruel and liars, who hate the Vedas
I 21)
and the sacred law. Rakshasa and Paisacha, which were
condemned by Manu as base and sinful, however did not

legalise force or fraud as the marriage ceremony had in

(29)
theory to be performed with sacred rites, v/ithout

which the marital relationship did not arise. Their

recognition can be justified on the ground that they

existed in order to validate the circumstances of which
the unfortunate woman was the victim. The jurists were
concerned with the results flowing from the circumstances
preceding the marriage and classified those circumstances
accordingly.

According to the sastra inferior forms of

marriage, namely, Asura, Gandharva, Rakshasa and Paisacha
do not involve a change of the gotra of the bride,
which is an essential part of the ceremony, of the Vedic
marriage, because in such forms there is no voluntary gift

of the bride by her father to the bridegroom. Approved

forms were meant for Brahmans (31) who were an important

caste. According to Manu the first six forms of marriage

were lawful for a Brahmana, the four last for a Kshatriya,

and the same four, excepting the Rakshasa, for a Vaisya

(32)
and a Sudra. The significance of the approved and
 -:18:-

unapproved forms of marriage was that it determined the

devolution of a woman's property on her death. In the

former the husband and his family/ while in the latter the
(33)
father and his family succeed to her Stridhana. Where
a woman was married in the unapproved forms, her death
ceremonies were to be performed by a member of the gotra
of her father, whereas in case of the approved marriage,
they might be performed either by her husband's gotra or
her father's. The reason for this distinction seems to be
that approved marriages were authorised by the families of
the couple concerned, while the unapproved were contracted
against the wish of family of the woman concerned, if we
reserve the case of the Asura marriage, which originally
did not imply a sacramental transfer but only a
sale-spiritually (so the sastra seems to imply) she
remained a member of her natal gotra. That is why she
retained the gotra of her father.
If we look critically at the above mentioned eight
forms of marriage, it will be evident that they were a
mere eleboration of the concept of marriage (vivaha). They
took account of local custom and usage, which were
developing alongside the sastra. A survey of the
Dharma-Sastra smritis, Nibandhas and the Commentaries
will prove that Hindu law was never static, but was
modified by the practice of the time to suit the just
demands of the people. With the advent of the British
 -:19:-

rule, the ancient sources of Hindu law began to be

modified by judicial decisions and legislative enactments,

while Hindu society assumed a new character because of its

contact with the Western education, civilisation, economic

and scientific progress. (34) In fact the Hindu Marriage

Act, 1955 is the result of the influence which had started

in the British period, thus the dharroa-sastra's contact
with actual usage, though sometimes difficult to trace,

has been, in practice, continuous.

According to Kautilya, whose Arthasastra (a

predominantly secular book), reflects practical usages,
there can be no divorce in case the marriage is contracted
in one of the approved forms. But if the marriage is in an
unapproved form, then it can be dissolved by mutual
consent, if both have come to hate each other. 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
(35)
performed. Kautilya actually says amokso
dharma-vivahnan "The law does not allow the dissolution of
marriage between spouses who have undergone a dharmic
vivaha." The first four marriages are dharmya, i.e.,

connected with righteousness, because they are brought

about under the authority of the father. Such marriages do

not admit divorce.

 -:20:-

6. Nuptial Ceremonies;- According to the plain smriti

texts marriages in the unapproved forms do not require the

performance of the religious ceremony, but the sastric law
as applied by the courts during the British period in
India held that such ceremony was essential for the
(37)
validity of the marriage. This is so even in modern
(38)
Hindu Law. It was held in Deivani V. Chidambaram that
there are two essential elements to constitute a valid
marriage, viz.; a secular element, which is the gift of
the bride in the four forms, the transference of dominion
for consideration in the Asura form, and mutual conset of
the spouses in the Gandharva form. These must be
supplemented by the actual performance of marriage by

going through the forms prescribed by the Grihya-Sutras,

of which the essential elements are 'panigrahana' (joining
of hands of the bride and the bridegrooms)• and 'saptapadi'

(taking of seven steps by the bridal couple). In the case

of Rakshasa and Paisacha forms also (should these be

capable of validity in modern times), there should be a

marriage ceremony prescribed by the sastras. In Bhaurao V.

State of Maharashtra (39) it was laid down that
solenmisation of the marriage with proper rites and
ceremonnies was essential in the Gandharva 'form'.
Similarly it was recently held by the Supreme Court in

a case of bigamy that in order to prove the validity of

the second marriage it is necessary to prove that the

essential nuptial ceremonies were performed.

The performance of rites and ceremonies according

 :21:-

to religious beliefs (e.g, saptapadi)or according to

custom and usage has bnnn reserved by the Hindu Marriage

Act. 1955. (41) The modern law has been developed xnsuch a

way as to show that the ceremony though vital to the

religious purpose is no longer vital to the working of

secular rights. Thus where a man and woman live as husband

and wife and have children who are recognised as such by

their community by the custom the rights of the spouses

and their children will not be destroyed merely by

someone's attempting to bring forth evidence that no

ceremonies of marriage were performed on the couple.

Whether or not such ceremonies are essential,

their non performance or wrong performance can be excused
under certain circumstances by the doctrine of factum
valet, e.g., where the saptapadi (taking of seven steps)
is not completed because of an accidental fire or some
other mishaps, the validity of such a marriage cannot be
upset subsequently. Where a marriage takes place under a
custom according to which saptapadi" is not an essential
ceremony, the non-performance of saptapadi does not
invalidate the marriage. In considering the validity of a

marriage it is necessary to distinguish between the

(43)
essentials and non-essentials of the custom. The

presumption that a valid marriage took place can be raised

where it is established that the marriage was duly

solemnised but some unessential ceremony was not performed

 -:22:

(44)
or there was some defect in the completion of the rite.

Thus the sacramental and sastric characteristic of the

Hindu marriage so far as the performance of the religious

ceremonies is concerned is still in existence.

According to the sastric view the spiritual aspect

of marriage was so important that the husband was said to
have received his wife from the gods and not wedded her

according tohis own will, for he was doing what was

agreeable to gods. (45) The consequence of marriage was
that man and woman became one person, as the Veda
expresses, "Her bones become identified with his bones,
flesh with flesh, skin with skin." From the time of
the marriage, they are united in body and mind as well as
(47)
in religious ceremonies. As a river loses its identity

by merging itself into the ocean, so a wife was supposed

to merge her individuality with that of her husband. In

the revealed texts of the Veda, in the traditional laws of

the Smritis, and in the popular usage, the wife is

declared to be half the body of her husband, equally

sharing the outcome of good and evil act. So a Hindu

marriage was a sacred union of two personalities into one

for the purpose of the continuance of the society and for

the uplistment the two by self-restraint, self-sacrifice

and mutual co-operation for the performance " of holy

(49) .
rites. This IS the central concept of Hindu ethics and

law.
 -:23:-

7. The Object Of Marriage;- It was threefold, namely

dharma (the performance of religious and righteous
duties), praja (progeny) and rati (pleasure). Where the
Hindu lawgivers regarded dharma as the first and the
highest aim of marriage, and procreation as the second,
dharma, according to the sastra, dominated marriage.
Marriage was a means not merely for satisfying sexual
desire or to obtain progeny, but to secure a partner for
the performance of religious duties. It enabled a man, by
becoming a householder to perform religious sacrifices to
the gods and to procreate sons. It was the duty of the

husband to require and the right of the wife to give

(51)
co-operation in all religious acts. Manu on the

authority of the Veda declares that religious rites must

be performed by the husband and wife together. Women were

not allowed to perform any sacrifice, vow or fast apart

from their husbands. They could obtain heaven merely by

being obdedient to their husbands.

It was a Hindu belief that a Hindu from his birth

IS born with three debts, (52) i.e., he owes brahmacarya

(study of the vedas) to the sages, sacrifice to the gods,

and progeny to pitris (ancestors). The second purpose of

the marriage was to procreate sons, who were supposed to

save a man from hell. A son is called putra because he

(53)
delivers his father from the hell called put. So much

importance was attached to the birth of a son that a man

 -:24:-

was said to have conquered the spiritual . worlds and

(54)
obtained immortality and heaven by having a son.

Immediately upon the birth of his first-born son a man was

(55) ..
freed from his debt to the ancestors. Legitimate

progeny being the objective, marriage was a religious

., (56)
necessity.

The purpose of the marriage is further evidenced

by the procedure of the marriage ceremony, when the

bridegroom addresses the bride as, "I am heaven you are

earth, Come! Let us join together so that we may generate

A male child, a son, for the sake ofthe increase of

( 57 )
wealth, a blessed offspring of strength." Marriage

enabled a man to make himself complete by the association

of his wife and his son. His sacred obligations, i.e.,

the proper performance of his religious duties, faithful

service to gods, his offspring, highest conjugal

happiness, heavenly bliss for himself and his ancestors,

{59)
depended on his wife alone, as he was incompetent to

perform the above mentioned acts without the help and

presence of the latter.

The Dissolution of Hindu Sastric Marriage;- It has

been seen that a Hindu marriage, being a sacrament, once

performed before the nuptial fire with the sacred texts,

becomes irrevocable on the completion of the ceremony of

taking seven steps by the couple. There is no evidence

as to the practice of divorce as such during the Vedic and

 -:25;-

Post Vedic periods. It was a holy union of mind, body and

soul of the spouses and, it was believed, that even death

did not put an end to it, for the wife remainedtinked with

her husband in soul after death in the next world. It

was the highest duty of husband and wife to remain united

/ go )

in marriage and be utterly faithful to each other. ^ It

was ordained by the Creator that a husband could not
release his wife by sale or repudiation. The wife was
required to be obedient to her husband under all
circumstances. She was expected to worship him as God even
if he was lacking in good qualities and virtue.
( CC. )

According to Apastamba if the solemn vow of

marriage is transgressed both husband and wife certainly

go to hell. Hindu marriage was regarded as an eternal and

sacred bond which united the husband and wife for the

performance of their religious sacrifices. Dissolution of

marriage was thus not contemplated by the sastra, for it

was un-dharmic, unrighteous and sinful.

9. Remarriage of Females:- It has been seen that the

sastra did not countenance divorce. From this the question

arises whether the remarriage of females was allowed? The

procedure of performing sastric nuptials was available

only for virgins, and never for girls who had lost their

virginity. A girl was fit for being given in marriage

only once as Manu has said, "Once is a maiden given in

marriage and once does a man say, 'I will give', this is
 :26:-

I en )
done only once." The bride is free to be transferred

from the father's house to that of the husband; but she is

not allowed to leave her husband's home and go elsewhere,

i.e., take another husband. This is supported by a hymn of

the Atharvaveda, which reads, "Hence from the father's

house, and not thence from the husband's house, I send the

bride free. I make her softly fettered there so that she

may live with her husband blessed in fortune and
(68)
offspring." This shows that no separation was allowed

between husband and wife.

According to the sastra a woman was expected to

lead a life of chastity and self-denial and was not to
mention even the name of another man after the death of
her husband. She who remains virtuous and chaste after
the death of her husband reaches heaven, although she may
have no son. On the contrary a woman who from a desire
to have offspring violates her sacred duty towards her
deceased husband, brings on herself disgrace in this world

and loses her place in heaven. "Nowhere is a second

72
husband perscribed for a virtuous woman." Thus the
non-existence of nuptial ceremonies for a second marriage
and the prohibition of remarriage of women are evidence
against the recognition of divorce in the matrimonial
system known to the sastra.

However, Narada, Parasara and Vasishtha authorise

a woman to take another husband in five cases, i.e., when

 -'.21:-

her husband is lost or dead, when he becomes a relligious

ascetic, when he is impotent and when he has been expelled

(72) .
from caste. A wife must wait for six years if her

husband had disappeared, twelve years if he went to a

foreign country for the purpose of studying. If he was

heard of she should go to him.^ According to Narada '

if the husband had gone abroad a Brahmana wife should wait

for eight years, or four years if she had no issue. A

lesser number of years was prescribed for Kshatriya and

Vaisya wives. After that period she was entitled to take

another husband. Manu says that if the- husband went abroad

for sacred duty, the wife should wait for eight years, six

years if he went for knowledge and fame, and three years

( 76 )
if he went for pleasure or for another wife. He does

not mention what the wife should do after these years of

waiting, but remarriage is obviously envisaged in such a

case.

Narayana, Kulluka and Raghava following Vasishtha

say that she should go to see her husband in the place

where he might be expected to be present. But Nandana and

(77)
Devala are of the opinion that she could take another
ither
(78)
husband and in doing so there would be no sin at all

It is argued on the authority of these texts that the

second marriage of the wife presupposes the dissolution of

(79) .
the first. It IS also contended on the authority of

the Atharva-Veda IX. 5, 27-28, that a widow could remarry

 :28:-

on performing the 'Aja Panchoudana' sacrifice. A second

husband dwells in the same world with his re-wedded wife
if she offers the 'Aja Panchoudana' to the memory of her
deceased husband. This argument is supported by the
funeral hymn in the Rig-Veda X. 18. 8, which reads, "Rise
woman, thou art lying by the side of one whose life is
gone; come to the world of the living away from him, thy
husband that is dead, and become the wife again of him who
is willing to take thee by the hand and marry thee."

However, this view did not find favour with Sir

Gooroodas Banerjee, who explained these texts on the
ground that these rules either, like the practice of
raising up issue by a kinsman on an appointed wife, relate
to an earlier stage of Hindu society in which rapid
multiplication of the race was regarded as an impoortant
object, or they merely show the existence of some
difference of opinion among the Hindu sages on a point on
which absolute unanimity of opinion can hardly be
expected. The prevailing sentiment of Hindu society has
always been repugnant to the second marriage of women. The
true explanation seems to lie rather in the need of the
sastra to recognise utilitarian practices. This is evident
from the Arthasastra of Kautilya, whose provisions reflect
/ go )
customary law and usage. Kautilya allows a woman to

remarry under certain circumstances, e.g., where her

husband had gone away on a long journey, or had become an

 •:29:

ascetic or was dead. She was expected to wait for certain

periods of time depending upon whether she had children

and was maintained by her husband's family. Remarriage of

women in such cases could be attributed to custom and

usage which were developing alongside the sastra. The

texts authorising or presumed to be authorising a woman to

take a second husband may alternatively be construed as

cases of presumption of death-actual death and civil

death-and could be seen by the orthodox as only apparent

breaches of the sastric pattern of the indissolubiity of

marriage.

According to the commentaries and digests the

above mentioned texts do not apply to the present

(Kali) age. The human race having degenerated from its

original virtue and purity, the sages of Hindu law, for

the benefit of human race declared that the remarriage of

widows in the 'Kali' age is forbidden. A.S. Altekar on

the authority of the Adityapurana, Devanabhatta and

Madhava, the commentator on parasara, admits that

widow-remarriage is no longer valid in the 'Kali' age.

Widow-remarriage in the present age was so much

disapproved of that an extended meaning was given to the

word 'widow' so as to include the betrothed girl whose

prospective husband had died before the performance of the

marriage ritual. If by mistake a man happened to marry

such a girl, he was to perform a penance and abandon her.

 -:30:-

Mowever, this practice did not find much approval in a

society which continued to be guided by Manu's sensible

opinion that no marital tie arises before the marriage

ceremony is performed.

The stigma attached to the twice-married woman

proves that widow-remarriage was not prevalent in orthodox

Hindu society to which especially the sastra applied. She

was called a punarbhu, who might be of three kinds, namely

a 'widow' whose marriage had not been consumated/ one who

after having left the husband of her youth and betaken

herself to another, returns to the house of her former

husband, and the woman, who on failure of brothers-in-law,

is delivered by her relations to a sapinda

(blood-relative) of the same caste.

The Punarbhu was regarded as an inferior

( Qf.) (87)
wife, but her issue wore legitimate, though
according to the quality of her marriage they occupied an
I 88 )
inferior status, as her son (paunarbhava) did not

inherit his father's property as an heir but as a

Kinsman. He was not fit for being invited to a

sradha (a feast given to the Brahmins in the memory

one's ancestors). The husbands of remarried women were not

to be associated with nor to be invited to the

( 91)
sraddha. The daughters of the Punarbhus were to be
(92)
avoided and regarded as girls of the lowest birth.

They were treated as equal to the "mothers of Sudras."

 -:31:-

(The mothers of Sudras were fourth-caste wives of a

Brahmana, wedded for lust, and of low social status), the
children of these women were not
social admitted to
(93)
meetings; they were considered as unfit for society.

Apastamba enumerates the twice-married woman among those

who are unfit for being taken in marriage. He condemns

remarriage of females altogether when he says, "If one has

intercourse with a woman who had already another husband,

then sin is incurred; in that case the son also

sinful."^^^^

(95)
According to Vatsyayana who harmonises Kama

with dharma so that they may not clash in any way, there

was no regular marriage for a widow, but if a woman who

had lost her husband was of weak character and was unable
to restrain her desires, she might unite hersef to a man,
who was a seeker after pleasure and was an excelent4.over,
and such a woman was caled punarbhu. In the choice of such
a lover it was best for her to follow the natural
inclinations of her own heart. However, the connection
with her v/as of a loose character. She was more
independent than the wife wedded according to sacramental
rites. She assumed the place of a mistress, patronised his
wives, was generous to his servants and treated his

friends with familiarity. She was expected to show greater

knowledge of the arts than his wedded wives and to please

the lover with the sixtyfour arts of love (karaakalas). She

 -:32:-

participated in sports, festivities, drinking parties,

garden picnics and other amusements. Vatsyayana says that

it was improper to establish sexual relations with the

punarbhu, but such an act was not absolutely condemned,

because pleasure was the guiding motive in all such

connection. Thus the position of the punarbhu was quite

distinct from that of the wedded wife who participated

with her husband in all reigious performances and had to

live with decency. The inferior position accorded to the

punarbhu, the imposition of social penalties upon her

children, and sometimes upon her husband are evidence

against the approval of widow-remarriage by orthodox Hindu

society.

Divorce, in the sense of dissolution of marriage

whereby the status of husband and wife ceases to exist as

such, marital rights and duties are severed by law and the

spouses are free to remarry, was not recognised at Hindu

law by the sastra.^ This is also supported by a hymn of

the Atharva-Veda, which reads, "Be not divided, 0 husband

and wife; live together all your lives, sporting with sons
/ 97)
and grandsons, rejoicing in your happy home."

According to Vatsyayana even the Gandharva marriage

(an approved form) when solemnised before the holy fire

could not be dissolved. He treated this form of marriage

as the best. In this respect he seems to be more

humanitarian than religious. By marriage a girl normally

 -:33:-

became integrated into her husband's family. She formed

part of the hosehold, which consisted of his parents,

brothers, unmarried sis. ers and sisters-in-law together

with their children, all of whom enjoy commensality and

worship jointly. Whether or not her marital relationship

with her husband was happy, she could not be uprooted from

the family by abandonment or supersession. Therefore,

there was no divorce acknowledged by the dharmasastra.

However, a husband could abandon or supersede his

wife under certain circumstances (see later the distiction

between abandonment and supersession). Such an abandonment

had to be just and reasonable otherwise a very humi'lating

(99)
punishment is prescribed for such an act by Apastamba
who says, "He who has unjustly forsaken his wife shall put
on an ass's skin skin with hair turned outside, and beg
in seven houses saying, 'Give alms to him who forsook his
wife.' That shall be his livelihood for. 6 months."
Similarly if a wife forsook her husband she had to perform
a hard penance for twelve night. According to Manu a
wife is punished for her sin of disloyalty to her husband
in her next life by being born in the womb of a jackal and

tormented by disease. Narada enjoins that if a man

leaves a wife who is obedient, of pleasant speech,

skilful, virtuous and the mother of male issue, the king

shall make him mindful of his duty by severe punishment. A

person who leaves a blameless wife should be punished as a

 -:34:-

thief. Vasishtha makes a sweeping remark when he

states that though tained by sin, whether she be

quarrelsome, or left the house or has .suffered criminal

force or has fallen into the hands of thieves, a wife

cannot be abandoned.

She should be abandoned, however, if she yields

hersef to her husband's pupil, or to his teacher, or a man

of degraded caste or attempts to kill her husband.

This shows that even unjust abandonment was not allowed by

Hindu law, let alone the dissolution of marriage.

Steele as a result of his enquiries in the early

British period understood 'abandonment' in the above case

as equal to divorce, but it is submitted that this was

incorrect. 'Abandonment' coud be treated as relating to the

wordly and/or the spiritual purposes of marriage. The

former would be frustrated, where a wife was addicited to

drink, was of bad conduct, was diseased, insane, guilty of

adultery, had attempted to kill her husband or committed

other heinous crime including procuring abortion. The

latter purpose of the marriage would be frustrated, if she

was barren, bore daughters only and had reached the

menopause. Therefore, the husband would be justified

in ceasing to cohabit with such a wife, but this

'abandonment' never had the effect of divorce.

10. The Distinction Between Abandonment and Supersession;-

Since it might be apprehended that the right to

 -:35:-

abandon was tantamount to a right to divorce even under

sastric law, the vocabulary needs to be examined. The

Sanskrit word used for 'abandonment' is tyaga.

Medhatithi defines tyaga as giving up all intercourse

with her and forbidding her to do household work. He says

that for the wife going off in anger, caused by

supersession, there are two optionall alternatives in the

shape of confinement or divorce. Here Jha's translation

needs to be checked. Medhatithi in fact says tyaga or

samnirodha, abandonment or confinement in that order are

alternatives. Tyaga denotes separation from conjugal

intercourse as opposed to Moksa, which might be teachnical

divorce. It is not clear whether after being

abandoned by her husband, a wife was free to marry again.

Therefore, the word 'tyaga' can denote several things. It

implies supersession, e.g., where the husband abandoned an

obedient, pleasant speaking, sonbearing and skilful

•^ (110) ^^ . , ^. . .. ^u
wife. It may imply a divorcium a mensa et-thara,
where the wife became pregnant by another, or attempted to
kill her husband, or committed heinous crime. In such
cases she was abandoned from marital intercourse and
religious ceremonies. It may mean temporary separation,
where a wife was abandoned for three months for the
purpose of reforming her. But abandonment in any case
did not amount to dissolution of marriage whereby the
status of the husband and wife ceased to exist as such and
the marriage-tie was severed at law. Some coincidence with
 -•.set-

Christian teaching on divorce is visible here, but the

point is not appropriate for further exploration here.

Manu says, "But she who shows aversion towards a

mad man or an outcaste, a eunuch, one destitute of manly
strength or one afflicted with such diseases as punish
crimes, shall neither be cast off nor deprived of her
property." G. Banerjee on the authority of Kulluka
and Jagannatha rightly states that what Manu excuses
here is 'aversion', which means want of diligent
attention, and not absolute abandonment. Thus the text
does not authorise even abandonment. This is supported by
a popular verse which says that a husband could not
release his wife by sale or repudiatiort.

The object of 'abandonment' was to punish the wife

for her misdeeds, e.g., a wife who had committed adultery

v^as required to wear clothes smeared with clarified

butter, and was to sleep on a mat of grass, or in a pit

filled with cowdung; until her penance had been

perforemd. The 'abandonment' consists in not allowing

her to participate in religious rites and conjugal

matters, not casting her away onto the streets. She was to

be kept apart in one room and provided with •food and

raiments. She was to wear dirty clothes and was treated

with scorn. But after her periodical illness the sin was

expiated and she was to be restored to her original

position with her usual rights of a wife. ' Similarly a

 -:37:-

wife who was disrespectful to her husband; was addicted to

some evil passion; was a drunkard or diseased should be

abandoned for three months after depriving her of her

ornaments and furniture. The object of this temporary

punishment was to correct the wife and bring her to the

right way. A husband should bear for one year with a wife

who hated him. After that he should deprive her of her

property and cease to cohabit with her. Abandonment

under the above circumstances is regarded as virtually

legal dissolution of marriage.^ This is not

justifiable, for divorce as such did not exist at sastric

Hindu law. Abandonment in the above cases is reasonable,

(122)
because according to Manu, a husband must be
constantly worshipped as a god by a virtuous wife. The

wife was expected to follow the same principle as her

husband. By doing the above mentioned disgraceful act& ,
she was violating her sacred duty of obedience to her
husband and was accordingly punishable.

Supersession (like 'abandonment') could be treated

as relating to the worldly and/or the spiritual aspects of

marriage. The former would be defeated and the wife would

become unfit for the society of her husband, who might

supersede her at any time, if she was addicted to

spiritucil liquour, was of bad conduct, rebellious,

diseased, mischievous or wasteful. Manu allows

supersession of a barren wife in the eighth year, one all

 -:38:'

of whose children die in the tenth year, of her who is

quarrelsome without delay. Baudhyana allows
supersession of a barren wife in the tenth year of
marriage, bearing daughters only in the twelfth year, all
of whose children die in the fifteenth year and uttering
unpleasant word at once. Kautilya allows
supersession if a wife remains barren for eight years, if
she bears still-born children for ten years and if she

bears only females for twelve years. Then if he is

^ • ^ u • u • (126)
desirous of having sons, he can marry again.

Supersession under the above circumstances is

justifiable. As the purpose of the Hindu sastric marriage
is to perform religious rites and beget male progeny, if
either of the two is frustrated, a man is entitled to take
(127)
another wife. The above grounds defeat the religious

aspect of marriage, because the delivery of the ancestors

from hell after the death is considered to be brought

about only by the continuation of the line through sons.
The supersession had to be just and reasonable, and in the
case of a sick wife who was virtuous and kind to her
(128)
husband her consent had to be obtained. However, in

practice husbands could supersede their wives without

their consent and even against their wishes merely on the

ground that the wife was of a harsh and disagreeable

(129)
nature. Sometimes she was superseded even if she was

virtuous and was the mother of male issue. But in

 -:39:-

such a case she continued to occupy her status as a wife,

and her marital rights remained unimpaired. She must be
maintained properly and be given compensation as
Vijananesvara comments, "Though superseded by another
wife, she must be treated with courtesy, and receive gifts
and respect as before," In fact she had precedence

over her husband's subsequent wife in the performance of

(132)
religious sacrifices. But if superseded wife goes out

of her husband's home in anger, she must either be

instantly confined or abandoned in the presence of the

. ., (133)
family.

Both in abandonment and supersession the wife

retained her status of a wife and had to be maintained. In

the former she lost her conjugal, religious and household

rights unless and until she was restored to her former

position after the performance of the appropriate penance.

unjust abandonment was punishable. Prof. Indra on the

authority of Daksha Smriti, IV, 45 asserts that the wife

even though she be fallen should not be abandoned, and a

man violating this principle is born as a woman in his

next life and bears the agony of abarrenness. Thus

according to the sastra a Hindu marriage being a sacrament

cannot be dissolved, because the wife is a gift from gods

which cannot be revoked by the act of human beings.

11. Divorce Under Custom or Usage;- The position under

the sastra has been indicated briefly. How then is it
 . -:40:-

possible to claim that Hindus in India are familiar with

divorce? The answer lies in the field of custom. The
sastra itself recognised custom as a source of law. The
acts productive of merit which form part of the customs of
daily life, as they have been settled by the agreement of
those who know the law, have authority. The
time-honoured institutions of each country, caste and
family should be preserved intact. The laws of

countries, castes and families, which are not opposed to

(137)
the sacred law, have also authority. The Veda, the
sacred tradition, the customs of virtuous men, and one's
(138 ^
own pleasure are means of defining the sacred law.

When it is impossible to act up to the precepts of sacred

law, is becomes necessary to adopt a method founded on

reasoning, because custom decides everything and overrules
(139)
the sacred law. Customs prevalent m a country must

be acknowledged as authoritative. There is evidence

that the smritis themselves represented the existing

practices. Thus custom is transcendent law according
to the sages so far as it is consistent with the sastric
principles. The Vedas, the smritis and the practices of
good men are the sources of law.

^'^"'^The right of dissolution of marriage recognised by

custom has been preserved by S. 29 (2) of the Hindu

Marriage Act, 1955 The writers belogning to high

castes attribute this to the low cultural level and high

 -:41:-

degree of illiteracy of tribes rendering the enforcement

of the provisions of the Act both inexpedient and
(144) (145)
difficult. According to O'Malley divorce is
opposed to the saramental idea of marriage/ but is
permitted by many law castes, on such grounds as the
unchasity of the wife or be failure to bear sons. Even
among them, however, it is regarede as a concession to
ahusband rather than as a right. Divorce or deviations
from the ordinary Hindu law are to be found only among the
aboriginal tribes and the lower classes of Aryans; they
are to be met with among the higher castes of Aryans only
vi7here (as in Southern India) they are surrounded by
non-Aryans or have been influenced by non-Hindu
communities However, this view popular to higher
caste written is not correct for divorce is known in
communities which are not necessarily low, e.g., in the
states of Maharashtra and some parts of the Punjab.
Divorce is practised custom even by Brahmins..

Widows can validly remarry under the custom of

'Karewa' or 'Darewa'. The most usual form of 'Darewa' is

when a widow marries the brother of her deceased

husband. The origin of this custom can be traced from

(149)
the time of the RigVeda. The second marriage is

contracted under the form known as Chaddar Andazi.

The fact, that dissolution of marriage and remarriage of

females are recognised by customary law, is no evidence

 -:42:-

that people governed by such customs are of low culture or

of low morality. On the contrary it rather militates

against it, for public morality is better served by a good

system of divorce than by ineffective orthdoxy. Moreover,

the courts do not recognise a custom which is contrary to

reason, morality and public policy.

Among the Khasas in the Himalaya districts of

Uttar Pradesh, marriage is not a sacrament, but a secular

transaction. The main features are the transfer of

dominion over the woman for consideration and her actual

or constructive appropriation as a wife. No stigma is

attached to divorce and widow-remarriage. Whether a wife

divorces her husband for just cause, e.g., leprosy or

impotency, apostacy, etc., or without such a cause, the

second husband is in all cases required to refund the

marriage expenses. The marriage can also be dissolved

by mutual consent of the spouses among the Khasas and the
(152 )
Patwas of Madhyaa Pradesh.
Pra Widow-remarriage is also
(153)
frequently practised.

In the Assam valley, among some agriculture

classes, the interchange of pan-leaf constitutes the

ceremony of marriage, and tearing of the pan-leaf by the

husband and the wife indicated its dissolution.

Second marriage is contracted in the forms of 'Sagai' and

'Shugna' in northern India. Among the Lingayat of

 -:43:-

south Canara the remarriage of a wife deserted (i.e.,

divorced) by her husband is valid. The remarriage is
called Serai Udiki. The ceremony consists in tying a toli
(necklace) and giving a new cloth to the woman.^ ' This
could only happen if the original bond of matrimony were
severed.

Among the lower castes women can remarry under

certain circustances, e.g., where the husband is impotent

r where there are constant quarrels between the spouses,

and the husband with the consent of his wife breaks her

neck ornament and tears her saree and gives her a chor

chitti, i.e. a deed of releasement. After this the

wife is free to contract a second marriage, which is

called the Pat in the Maharashtra and Natra in

^ . ^ (158)
Gujarat.

According to the custom prevailing in Manipur

divorce or Khainaba is permissible even amongst the
Hindus. There is no condition attached to it, and it can
be obtained at the pleasure of either spouse, even on a
slight pretext. The remarriage of a divorced woman is alo
recognised. The caste system is still practised by
the orthodox Hindus in India. Particular communities
governed in their social relations by their castes
recognise the authority of the Panchayats (i.e. important
and influential members of the caste) to dissolve the
marriage. The proceedings of the Panchayats are informal
 :44:-

and their judgements are not recorded. Therefore,

there is lack of material and knowledge on the working of

divorce under caste rules. The courts do not recognise the

authority of the caste Panchayat to dissolve a marriage

without the consent of both parties. However, if such

divorce is obtained by custom, its existence has to be

proved by the party alleging it.

As it has been shown (above at p.33) S. 29 (2) of

the Hindu Marriage Act, 1955 does not disturb the position
which a customary divorce occupied before the enactment.
For the operation of this section it must be proved as a
fact that such customary dissolution of marriage was
effected. In Andhra Pradesh in the Shepherd's
community, divorce in accordance with custom is prevalent.
Where such divorce is obtained it is not necessary for the
parties to have again to go before the court under S. 10
or 13 of the Hindu Marriage Act, 1955 and obtain sanction
of the court to render the divorce valid.

From all that has been said earlier it must be concluded

that divorce as such was not recognised by the sasrta.

Marriage being a sacrament once solemnised with the sacred

rites before the nuptial fire was irrevocable, and was

believed to exist even after the death of the husband. So

a widow was not allowed to remarry, and it was not until

the passing of the Hindu Widow's Remarriage Act, 1856 that

the harshness of this sastric principle was abolished by

 -:45:-

legalising the remarriage of widow. It is the most

fashionable view of Indian writers belonging to the high
castes that dissolution of marriage was actually practised
by the aborigines and lower communities of non-Aryans to
Hindu culture cannot be calculated with certainty. As we
have seen before there has been a mixture of the sastric
principles and the practice of the people. This is
testified to by the Arthasastra of Kautilaya and other
customs. Customary divorce is practised by many
communities which are by no means completely tribal or
low. such customs have been rightly preserved by the Hindu
Marriage Act, 1955, which recognises a utilitarian concept
of law.

12. Legislative Measures;- The Native Converts' Marriage

Dissolution Act, 1866 provided an indirect way of divorce
for converts to Christianity. Under this Act when one of
the spouses adopts Christianity and the other refuses to
live with the convert on that ground for a period of six
months, the latter may applly to the court or
alternatively to dissolve the marriage.

Under the Indian Divorce Act, 1869, the Indian

Christians could get divorce on the following grounds.

Under Section 10 any husband could petition for divorce on

the ground that his wife has, since the solemnisation of

the marriage, been guilty of adultery. Similarly a

petition could be presented for divorce by a wife on the
 :46:-

ground that her husband has exchanged his Christian

religion for that of some other, and had married another

woman; or has been guilty of incestuous adultery; or of

bigamy with adultery; or of marriage with another woman

with adultery; or of rape, sodomy or bestiality; or of

adultery coupled with such cruelty as without adultery

would have entitled her to a divorce a mensa at thoro; or

of adultery coupled with desertion, without reasonable

excuse for two years or upwards.

The Indian Divorce Act, 1869, applicable to

Christians, was also made available to Hindus marrying
under the Special Marriage Act, 1872. This was repealed
and replaced by the Special Marriage Act, 1954, which
provides under S. 27 that either spouse could petition for
divorce on the ground that the other has committed
adultery; or has been guilty of desertion for three years;
or is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian
Penal Code (Act XLV of 1860) provided that divorce shall
not be granted on this round, unless the respondent has
prior to the presentation of the petition undergone at
leat three years imprisonment out of the said period of
seven years; or has treated the petitioner with cruely; or
has been incurably of unsound mind for a continuous period
of not less than three yeas; or has for a period of not
less than three years immediately preceding the
 -:47:-

presentation of the petition, been suffering from venereal

disease in a communicable form, the disease not having
been contracted from the petitioner; or has not been heard
of as being alive for a period of seven years or more; or
has not resumed cohabitation for a period of two years or
upwards after the passing of a decree for judicial
separation against the respondent; or has-failed to comply
with a decree for restitution of conjugal rights for a
period of two years or upwards after the passing of the
decree against the respondent; and by the wife on the
ground that her husband has been guilty of rape, sodomy,
or bestiality. Section 28 provides for divorce by mutual
consent.

Drastic changes were effected in the personal laws

of the Hindus by the Hindu Marriage Act 1955. The

introduction of divorce was an innovation for a proportion

of Hindus and not all, because by S. 29 (2) of the same

Act any right recognised by custom or conferred by any

special enactment, such as the Travancore Nayar Act

(2 of 1100), to obtain the dissolution of Hindu marriage,

whether solemnised before or after the commencement of the

Hindu Marriage Act, 1955 has been saved. The motive behind

this enactment was to open the way towards a progressive

society and to recognise the independence of women. It

abolished polygamy and introduced divorce and judicial

separation, which are based on the principles borrowed

 -:48:-

from the (English) Matrimonial Causes Act 1950 (as

modified by the (English) Matrimonial Causes Act, 1965).

/^nder S. 13 (1) of the Hindu Marriage Act, 1955

divorce is available on the following grounds, namely,
that the other spouse is living in adultery; or has ceased
to be a Hindu by conversion to another religion; or has
been incurably of unsound mind for a continuous period of
not less than three years immediately preceding the
presentation of the petition; or has, for a period of not
less than three years immediately preceding the
presentation of the petition, been suffering from a
virulent and incurable form of leprosy; or has, for a
period of not less than three years immediately preceding
the presentation of the petition, been suffering from
veneral disease in a communicable form; or has renounced
the world by entering any religious order; or has not been
heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of
it, had that party been alive; or has not resumed
cohabitation for a space of two years or upwards after the
passing of a decree for judicial separation against that
pary; or has failed to comply with a decree for
restitution of conjugal rights for a period of two years
or upwards after the passing of the decree.

The following additional grounds are provided for

a wife petitioner. In the case of any marriage solemnised

 :49:-

before the commencement of this Act, that the husband had

married again before such commencement or that any other

wife of the husband married before such commencement was

alive at the time of the soleminisation of the marriage

provided that in either case the other wife is alive at

the time of the petition; or that the husband has been

guilty of rape, sodomy or bestiality.

The Act is based mainly on the provisions of the

Matrimonial Cause Act, 1950, whereby under Section 1 (1)
either spouse may petition for divorce on the ground that
the other has since the celebration of the marriage
committed adultery; or has deserted the petitioner without
cause for a period of at least three years immediately
preceding the presentation of the petition; or has treated
the petitioner with cruelty; or is incurably of unsound
mind and has been continuously under care and treatment
for a period of at least five years immediately preceding
the presentation of the petition; and by the wife on the
ground that her husband has, since the celebration of the
marriage, been guilty of rape, sodomy or bestiality.

Under Section 14 either spouse can petition for a

decree of judicial separation on the same grounds as are

available for divorce, or on the ground of failure to

comply with a decree for restitution of conjugal rights,

or on any ground on which a decree for divorce a meansa et

thoro might have been pronounced before the Matrimonial

 50:-

Cause Act, 1857.

Kenya followed the Indian example by passing the

Hindu Marriage and Divorce Ordinance, 1960 for Hindus
domiciled there. Under Section 10 (i), either party can
petition for divorce on the ground that the respondent has
since the celebration of marriage committed adultery; or
has deserted the petitioner withour cause for a period of
at leat three years immediately preceding the presentation
of the petitioner with cruelty; or is incurably of unsound
mind and has been continuously under care and treatment
for a period of at least five years immediately preceding
the petition; or has ceased to be a Hindu by reason of
convrsion to another religion; or has renounced the world
by entering a religious order and has remained in such
order apart from the world for a period of at least three
years immediately prceding the persentation of the
petition; or a decree of judicial separation has been in
force between the parties for a period of at least two
years immediately preceding the presentation of the
petition, and the parties have not cohabited since the
date of the decree.

A wife can petition on the additional ground that

her husband has since the celebration of the marriage,

been guilty of rape, sodomy or bestiaility; or in the case

of a marriage solemnised before the commencement of the

ordinance, at the time of the marriage was already

married; or married again before such conunencement/ the

other wife being in either case alive at the date of the

presentation of the petition.

Uganda Passed the Hindu Marriage and Divorce

Ordinance, 1961. Under Section 9 (2) in addition to the
grounds for divorce mentioned in the Divorce Ordinance,
Matrimonial Causes, Chapter 112, a petition for divorce
may be presented by either party to a marriage on the
ground that the respondent has ceased to be a Hindu by
reason of conversion to another religion; or has renounced
the world by entering a religius order and has remained in
such order apart from the world for a period of at least
three years immediately preceding the presentation of the
petition; and by the wife, in the case of a marriage
solemnised before the commencement of this Ordinance, on
the ground that her husband at the time of marriage was
already married; or married again before the commencement
of this Ordinance, the other wife being in either case
alsive at the date of the presentation of the petition.

165
The Divorce Ordinance (1904) Section 5 (1)

provides that a husband may petition for the dissolutioon

of his marriage on the ground that since the solemnisation

thereof his wife has been guilty of adultery. Under

Section 5 (2), a wife may petition for the dissolution of

her marriage on the ground that since the solemnisation

 -:52:-

thereof her husband has changed his profession of

Christianity for the profession of some other religion,

and gone through a form of marriage with another woman; or

has been guilty of incestuous adultery or of bigamy with

adultery; or of marriage with another woman with adultery;

or of rape, sodomy, or bestiality; or adultery coupled

with cruelty; or adultery coupled with desertion, without

reasonable excuse, for two years or upwards.

In 1923 Tanganyika had passed the Marriage,

Divorce and Succession (Non Christian Asiatics) OOrdinance

(Laws of Tanganyika, Cap. 112). This, in brief, gave the

High Court jurisdiction to hear and determine all

matrinonial suits and suits aristing out of marriages

v/hich were valid marriages within the Ordinance, and

authorised the court to apply the 'law of the religion',

in matters of succession, the law of the religion

including caste custom in the case of Hindus, and being

specifically open to be determined by the court by any

means which if thought fit, whether evidence on the

subject were legal evidence or not Under Section 8, text

books on Hindu law, such as those of Mulla and Mayne, will

be used, and the Indian cases upon which they rely.

Kenya Ordinance, 1960 is similar to the (English)

Matrimonial Causes Act, 1950 in this, that adultery is a

ground for divorce. Both of these differ from the Hindu

Marriage Act, 1955, under which 'living in adultery' forms

 -:53:-

a ground for divrce, but single act of sexual intercourse

by the husband or wife with some one who is not his or her
spouse gives the other party a ground for judicial
separation. Uganda differs from all of 'these because in
the case of a wife petitioner, adultery has to be
incestuous or coupled with bigamy; or coupled with
marriage with another woman; or cupled with cruelty, or
coupled with desertion without reasonable excuse for two
years or upwards in order to provide a ground for divorce.
The provision for presumption of death does not appear in
the Kenya or Uganda ordinances.

The Keya and Uganda ordinances are more in accord

with (English) Matrimonial Causes Act, 1950 than with the
Hindu Marriage Act, 1955. This is evident in the
provisions and phraseology of the former. Yet the
prohibition of second marriage of the husband is common to
both the East African ordinances and the Hindu Marriage
Act, 1955, and so are the grounds for renunciation of the
world and conversion to another religion. However, the
provisions for venereal disease and leprosy do not occur
in the Kenya or Uganda statutes. The provision of care
and treatment for unsoundness of mind does not appear in
the Hindu Marriage Act, 1955, because the large number of
poopulation makes it impracticable that such mental
patients are properly looked after in the mental
hospitals. Here poverty is one of the causes. But care and
 -:54:-

treatment is provided for both in the (English)

Matrimonial Causes Act, 1950 and the Kenya Ordinance/
1960, S. 10 (2). Failure to resume cohabitation for a
period of two years or upwards after a decree of judicial
separation has been granted does not appear as a ground
for divorce under the Uganda Ordinance. The Kenya and
Uganda Ordinacnes differ from each other as they do from
the Hidnu Marriage Act, 1955 and the (English) Matrimonial
Causes Act, 1950.

Though the provisions of the English and Hindu

statutes have been adopted by the Kenya and Uganda
ordinances, the result of the application may not be the
same in every case, e.g., the economic, social,
educational and cultural outlook of the Hindus in East
Africa is different from those in India and from the
English. However, the concept of divorce was unfamiliar to
the Hindus there as it was in India and was first
introduced by the legislature and divorce laws were
enacted on the western notion of marriage and divorce.
This is claimed by many vocal crities to have destroyed
the purely sacramental nature of the Hindu marriage and
has turned it into a civil contract, which like any other
contract can be terminated by the parties on the
prescribed grounds. This is a superficial view, society
has its own notions of what marriage is. Conventionally
 -:55:'

these are contained within the juridical concept of

"Sacrament". It may be more true to say that remedies have
been provided for those to whom their sacrament is no
longer meaningful.
 CHAPTER-I
REFERENCES UNIT-A
(1) Manu 11, 67-68, F. Max Muller, Sacred Books of the
East, Vol. 25; K.M. Kapadia, Marriage and Family in
India, o.u.p., 1959; S.V. Gupta, Hindu Law of
marriage, Bombay, 1961; K. Srinivasa Iyengar,
"Powers of the Managing member of a Mitakshara Joint
Hindu Family" (1905) 15 M.L.J, Journal, 211 at p.224

(2) P.V. Kane, History of Dharmasastra, Poona, 1941.

Vol.11, Part 1, p. 620; Dwarka nath Mitter, The
position of women in Hindu Law, Calcutta, 1913,
p.195.
(3) J.D.M. Derrett, Hindu Law past and present Calcutta,
1957, p. 86.
(4) Medhatithi on Mau XX, Mannu-Smriti translated by
G.Jha, Vol. 11, Part 1, Calcutta, 1921, p. 45.

(5) Medhatithi on Manu, The principles of Hindu Law-The

Commentaries translated by J.C. Ghose, Vol. 11,
Calcutta, 1917, p. 46; see also J.D.M. Derratt, "The
Discussion of Marriage by Gadadhara," The Adyar
Library Bulletin (1963), Vol. XXVIX, p. 171 at 187.

(6) P.V. Kane, History of Dharmasastra, Vol. 11, Part 1,

p. 193; R.B. Pandey, Hindu Samskaras, Banaras, 1949,
ch.lll, p. 40-41; K.V. Rangaswami Aiyangar, Aspects
of the Social and Political System of Manusmriti,
Lucknow University, 1949, pp. 84-86; K.V. Rangaswami
Aiyangar, Some Aspects of the Hidu view of Life
according to Dharmasastra, Buroda, 1952, pp.
129-135; J.R. Gharpure, Hindu Law, Bombay, 1931,p.69

(7) J.D.M. Derrett, "The Discussion of Marriage by

Godadhara," The Adyar Liberary Bulletin, 1963,
Vol.XXVII, at p. 180.

(8) Grautama XVIII, 21-23, S.B.E., Vol. 11, Manu IX,4,

S.B.E., Vol. 25; Vasishtha XVII, 70, S.B.E., Vol.14.
(9) Rig-Veda X. 85,36 in S.B.E. Vol. 30,p.189; The
Atharva-veda XIV. 1. 49-50, R.T.H. Griffith; The
Hymns of the Atharva-veda, Vol. 11. Benares 1917,
p.169.

(10) Paras Kara-Grihya-sutra in S.B.E., Vol.29 Oxfor,

1886, pp. 283-285; Grihya-Sutra of Hiranya-Kesin in
S.B.E., Vol. 30, p.191; Khadira-Grihya-Sustra in
S.B.E., Vol. 29, p. 384; see also N.C. Sen-Gupta,
Evolution of Ancient India Law, London, 1953,0.119;
A.S. Altekar, The poosition of Women in Hindu
Civilisation, Benaras, 1956, p.8; P.H, Prabhu, Hindu
Social Organisation, Bombay, 1958, p.167.
 57:-

(11) Apastamba 11.5.11, 17-20, S.B.E., Vol. 2; Gautama

IV,6-13, S.B.E, Vol. 2; Mau 111, 27-34, S.B.E.,
Vol.25; Narada XII, 38, S.B.E. , Vol. 33; Vishnu
XXIV, 18-26, S.B.E., Vol. 7, Dwarka Nath Milter, The
''position of women in Hind Law, pp-210-216; G.
Banerjee, The Hindu Law, pp. 210-216; G. Banerjee,
The Hindu Law of Marriage and Stridhana, Culkutta,
1923, p. 86; K.P. Jayaswas, Manu and Yajnavalkya,
Calcutta, 1930, pp. 236-240; V.M. Apte, Social and
Religius Life in Grihya Sastra, Bombay, 1954, pp.
20-21

(12) Medhatithi on Manu, 111, 27 translated by G. Jha,

Manu-Smriti, Vol. 11, Part 1, Calcutta 1921, p.51.

(13) Medhatithi on Manu, 111, Ibid; p.55.

(14) Medhatithi on Manu, 111, 30, ibid, pp. 55-56.

(15) Ludwick Sternbach, Juridicial Studies in Ancient
India Law, Delhi, 1965, part 1, pp. 347-348. 375-376
(16) A.S. Altekar, The position of women in Hindu
Civilisation, pp. 46-47.
(17) Baudkayana 1.11.20,3, S.B.E., Vol. 14; Gautama IV,7,
S.E.B., Vol. 2.
(18) Narada XII, 40, S.B.E., Vol. 33.

(19) Manulll, 51, S.B.E., Vol. 25. For a critical study

of the Asura; see J. Gonda, "Reflections on the Arsa
and Asura forms of marriage", p 1954, p-223.

(20) Kailasanatka V. Parasakthi, A.I.R. 1935 Mod. 740.

(21) Sivanagalingam V. Ambalavana, A.I.R. 1938 Mad. 479.

(22) Velayutha V. Suryamurthi, A.I.R. 1942 Mad. 219.

(23) Veerappa V. Michael, A.I.R. 1963 S.C. 933; see Also

comments by S.S. Nigam, "Annual Servey-Hindu Law"
(1964) 6 J.I.L.I. at p. 548.
 , -:58:-

(24) Vishnu XXIV, 27, S.B.E., Vol.7.

(25) Kamani Devi V. Kamshwar (1946) 25 pat. 58.

(26) Bhaoni V. Maharaj (1881) 3 all. 738; see also M.L.

Jain, "Validity of Hindu Marriage Solemnised without
performing any customary. Ritual or Cermony" A.I.R.
1961, Jourval, p.84.
(27) Manu 111, 39-41.

(28) Manu 111, 33-34.

(29) Vasishtha XVII, 73, S.B.E., Vol. 14; see also J.D.
Mayne, A Treatise on Hindu Law and usage, Madras,
11th. ed., 1950, pp. 123, 127-128; P.N. Sen, The
Greneral Principles of Hindu Juris prudence,
Calcutta, 1918, pp-269-270.

(30) Vivada Tandava translated by J.C. Ghose, The

Principles of Hindu Law, The commentaries, Vol.11,
Calcutta, 1917, p. 1142.

(31) Vishnu XXIV, 27, S.B.E., Vol.7.

(32) Manu 111, 23, S.B.E., Vol. 25.

(33) Narada XIII, 9, S.B.E., Vol.33; see also "The Hindu
Law of Marriage by Surinnder Singh: old and New",
The Law Review, Panjab University Law College
(1965), Vol. XVII, 24 at pp. 111-112; P.W. Rage,
"The Development of woman's property in India" in
Legal Essays - 1 by T.K. Tope, Bombay (1961-1962) 46
at pp. 49-50.
(34) M.K. Lakshmipathi Chetty, "A Survey of the Hindu
Code Bill" (1953) 105 M.L.J., Journal, P. 1 ff. U.C.
Sannkar, Hindu Lawl: Its character-and Evolution",
J.D.M. Derrett, Hindu Law past and present,pp.42-43.
(35) Kautilya 111, 3, 15-19, R.P. Kangle, .The Kautilya
Arlhasastras part 11, University of Bombay, 1963;
P.V. Kane, History of Dharmasastra, Vol. 11, Part 1,
pp.621-622; S.R. Sastri, women in Sacred Laws, 1950,
p.49.
(36) Kautilya 111,3,19, trannslated by Derrtt. This
translation differs slightly from that of R.P.
Kangle, Bombay, 1963 ("there is o divorce in pious
marriages")

(37) Brindavana V. Radhamani (1899) 12 Mad. 72.

 -:59:-

(38) Deivani V. Chidambaram, A.I.R. 1954 Mad.657.

(39) Bhaurao V. State of Maharashtra , A. I .R. 1965 S .C.1564 .

(40) Kanwal V. H.P. Adminis ratio A.I.R. 1966 S.C. 614.

(41) S. 7(1) (2) of the Hindu Marriage Act, 1955; K.S.

Mathur, "Validity of Hindu Marriage solemnised
without performing any customary, Ritual or cermony"
A.I.R. 1962, Journal, p.27.
(42) D.F. Mulla, Principle of Hindu Law, Bombay, 1960,
pp.615-616,807;see also Rewaram V. Ramratann, A.I.R.
1963, Madh-pr. 160.
(43) RakappaV. Chockalingam, A.I.R. 1964 Mod.126.
(44) Parbia V. Thopali, A.I.R. 1966. Him. pr. 20.
(45) Grihya-Sutra of Hiranyakesin, S.B.E., Vol-29, p.285;
Manu IX, 95, S.B.E., Vol. 25.

(46) Dayabhaga Ch. IV, sec. 11, 14; P.H. Prabhu, Hindu
Social Organisation, pp.172,228.
(47) Apastamba 11,6.14, 16, S.E.B., Vol.3, Prof Indra,
The status of women in Ancient India, Banaras, 1955,
p.82, K.M. Kapadia, Marriage and Family in India,
p.169.

(48) Brihaspati XXV, 46, S.B.E., Vol.33; Manu IX, 45;

Pratapa Rudra Deva, Sarasvati-Vilasa, translated
from the original Sanskrit by Thomas Foulkes,
London, 1881, (492-493) p.99.

(49) P.V. Kae, History of Dharmasastra, Vol.11, part 1,

p.193.

(50) Rig-Veda X.85, 36 in S.B.E., Vol. 29, p. 282.

(51) Manu IX,96; Mau V. 155; P.V. Kane, History of
Dharmasastra, Vol.11,Part 1, p.556. R.M. Das, women
in Manu and his senn commenlators, Arrah, 1962,
pp.164,171,-172.

(52) Baudhayana 11,9.16,7, S.B.E.,Vol.14; Vasishtha XI,

48, S.B.E., Vol.14.
(53) Manu IX, 138.

(54) Manu IX, 137.

(55) Manu IX, 106; Narada XII, 19, S.B.E., Vol. 33.
 -:60:-
(56) Manu IX, 96; see also K.P. Jayaswal, Manu and
Yajnvalkya, Calcutta, 1930, p.225.

(57) Grihya-Sutra of Hiranya Kesin, S.B.E., Vol. 30,

p.190.
(58) Manu IX, 45.

(59) Manu IX, 28.

(60) Manu VIII, 227.

(61) Tekait man Mohini V. Basanta (1901) 28 cal-751at758.

(62) Manu IV, 101,102.

(63) Manu IX, 46; S.R. Sastri, women in Sacred Laws,p.91.

(64) Manu V, 154.

(65) Apastamba 11, 10,27.6. S.B.E., Vol. 2; D.N. Mitter,

The position of women in Hindu Law, p.278.
(66) Manu VIII, 226.
(67) Manu IX, 47.

(68) Alharvaveda, XIV, 1.18. The Hymns of the

Altharvaveda, translated into English by R.T.H.
Griffith, Vol. 11, Benaras, 1917, p.163.
(69) Manu V. 157.
(70) Manu V. 160.
(71) Manu V, 161.
(72) Manu V. 162.

(73) Narada XII, 97; Parasara IV, 30; Vasishtha XVII,74

(74) Grautama XVIII, 15-17 S.B.E., Vol.2.

(75) Narada XII, 98-99 ,Vol.33.

(76) Manu IX, 76.

(77) Devala, Book IV, Ch. IV, S. 11, 151-153 in

H.T.Colebrooke, Digest of Hindu Laws, Vol.11,
Mad.1874.

(78) R.M. Das, Women in Manu and his seven commentalors,

p.198.
 -:61:-

(79) A.S. Altehar, The position of women in Hindu

Civilisation, pp. 83-84.

(80) Ibid, p.150; K.T. Bhashyara Aiyangar, women in Hindu

law, p. 12.

(81) G. Benerjee, The Hindu Law of marriage and

Stridhana. pp. 207-208.

(82) Kautilya 111, 4, 24-31, The Kautilya Arthasastra

translated by R.P. Kangle, Bombay, 1962.
(83) B. Bhattacharya, The Kalivarjya or Prolibitions in
'Kali' Age, Cal. University 1943. pp.134.
(84) A.S. Altekar, The position of women in Hindu
Civilisation, p. 155.
(85) Narada XII, 46-48; Vasishtha XVII, 19-20.
(86) Narada XII, 45. (87) Manu IX, 159. (88) Manu V, 162 .
(89) Manu IX, 160.

(90) Gautama XV,18, S.B.E., Vol.2, Manu 111, 155; Yaj. 1,

222, Yajnavalkya Smriti.

(91) Manu 111, 1666.

(92) H.T. Calebrooke, Digest of Hindu Law, Madras, 1874,

Vol. 11, Book IV, Ch.IV, Section 111, 165.
93) Ibid-p.l62; see also G. Banerjee, The Hindu Law of
marriage and Stridhana, p.209.
(94) Apastamba 11, 6-3, 3-4, S.B.E., Vol. 2.
(95) H.C. Chakludar, Social Life in Ancient India,
Calcutta, 1954, pp. 127 ff.

(96) Kumari Agarwala,"Hindu Divorce Law - its History,"

(1959) 2 M.L.J., Journal, p. 45.
(97) Altharvaveda XIV. 1.21-22, translated by R.T.H.G.,
Vol. 11, p. 164.

(98) Vatsyayana (translated by K. Rangaswami Iyengar)

Book 111, Ch. V, 13,30 pp. 131,133.

(99) Apastamba 1.10.28, 19-20, S.B.E., Vol.2.

 -:62:-

(100) Manu IX, 30 S.B.E., Vol. 25.

(101) Narada XII, 95, S.B.E., Vol. 33; Yaj. 1, 76.

(102) Vasishtha XXVIII, 2-3, S.B.E., vol. 14.

(103) Vasishtha XXI, 10-11, S.B.E., vol. 14.

(104) A Steele, The Law and Custom of Hindu castes,
London, 1868, pp. 32,171;
(105) Mitak. on Yaj. 1,72, translated by J.R. Gharpora,
Yajnavalkya Srariti, Bombay, 1936, pp. 192-193.
(106) Devala, Book IV, ch.l, 8,11,62, H.T. Colebrooke, A
Digest of Hindu Law, vol.11, Madras, 1874.
(107) Madhatithi on Manu VIII, 389, Manu Smriti
translated by G. Jha, vol.IV, part 11, Calcutta,
1926, p.413.

(108) Madhatithi on Manu VII, 8, see also S.K. Tewari,

Nullity of Marriage in Hindu Law, (published)
thesis, Ph.D., London. 1965, pp. 71-77.
(109) K.P. Jayaswal, Mnu and Yajnavalkya, Calcutta, 1930,
p. 230; S. Venkataraman, "Matrimonial couses among
Hindus" (1962) M.L.J., p., ff.

(110) Mitak. on Yaj. 1,76 translated by J.R. Gharpure,

Yajnavalkya Smriti Bombay. 1936, p.199.

(111) Milak. on Yaj. 1,72, op.cit., pp. 192-193.

(112) Medhatithi on Manu IX, 78.

(113) Manu IX, 79.

(114) Book IV, ch.l. 57,67, H.T. Colebrooke, Digest of

Hindu Law, see also R.M. Das, women in Manu and his
seven Commentors, p.197.
(115) G. Banerjee, The Hindu Law of Marriage and
Stridhana, p. 214.
(116) Manu IX, 46. (117) Vasishtha XXI, 8 , S.B.E., vol.14.

(118) Gautama XXII, 35, S.B.E., vol.2; Manu XI, 177,

S.B.E., vol. 25; Narada XII, 91, S.B.E., vol 33.,
Yaj. 1, 70-72.
 -:63:-

(119) Manu IX, 78; see also R.M. Das, Women in Man and
his Seven Commentators, pp. 196-197.

(120) Manu IX, 77, 81; Narada XII, 93.

(121) Kewal Motwani, Manu Dharma sastra- A Sociological

and Historical Study, Madras, 1958, p. 118. "After
considerig marriage as a highly ethical
institution, Manu states, at great length, the
grounds on which a legal dissolution is allowed."

(122) Manu V, 145; Yaj. 1, 77. (123) Manu 4,80; Yaj.1,73

(124) Manu IX, 81; R.M. Das, Women in Manu and his Seven
Commentators, pp. 190-191; G. Banerjee, The Hindu
Law of marriage and Stridhana, p.212.

(125) Baudhayana 11.2,6, S.B.E.,vol.14; S.C. Banerjee,

Dharma-sastras- A Study in their Origin and
Development, pp. 163-164; P.V. Kane, History of
Dharmasastra, vol. 11, Part 1, p. 552; Prof. Indra,
The Status of Women in Ancient India p. 95;
Clarisse Bader, Women in Ancient India, p. 60.

(126) Kautilya 111, 2, 38-40, The Kautilya Arthasastra,

translated by R.P. Kangle, Bombay, 1963.

(127) Apastamba 11,5. 11, 12-13, S.B.E., vol. 2.

(128) Manu IX, 82.

(129) Manu IX, 81; see also A.S. Altekar, The Position of
Women in Hindu Civilisation, pp. 106-107; K.M.
Kapadia, Marriage and Family in India, pp. 98-99.

(130) Yanavalkya. 1, 76.

(131) Yaj; 1, 74; Mitak. on Yaj. 74, Yajnavalkya Smriti

translated by J.R. Gharpure, vol. 11, Past 1,
Bombay, 1936, p. 196; see also G. Banerjee, The
Hindu Law of Marriage and Stridhana, p. 211.
(132) Yaj. 1, 88. (133) Manu IX, 83.

(134) Prof. Indra, The Status of Women in Ancient India,

p. 94.

(135) Apastamba 1.1, 1-2, S.B.E., vol. 2.

(136) Brihaspati 11, 28, S.B.E., vol. 33.

(137) Gautama XI, 20, S.B.E., vol. 2.

 -:64:-

(138) Manu 11, 12, S.B.E., vol. 25.

(139) Narada 1, 40, S.B.E., vol. 33.

(140) Basistha 1, 10, S.B.E., vol. 14.

(141) U.C. Sarkar, "Hindu Law its Character and
Evolution" (1965) vol. XVI, The Law Review, Panjab
University, 1 at pp. 9-11.

(142) Baudhayana 1.1.1, 1-4, S.B.E., vol. 14; see also

N.C. Sen Gupta, Sources of Law and Society in
Ancient India, Calcutta, 1914, pp. 64 ff; A.S.
Nataraja Ayyar, Mimamsa Jurisprudence, Allahabad,
1952, pp. 48-62.

(143) Chellappan V. Madhuri, A.I.R. 1961 Ker. 311 F.B;

Chinuprasad V. Jani, "Hindu Marriage Act and
Divorce", A.I.R. 1964, Journal, p. 116.

(144) S. Venkataraman, "The Hindu Marriage Act 1955"

(1955) 2 M.L.J., Journal, 33 at p. 34.

(145) L.S.S. O'Malley, Indian Caste Customs, Cambridge

U.P., 1932, p. 94.

(146) G. Banerjee, The Hindu Law of Marriage and

Stridhana, p. 280; see also L.S. Mehta, "Some
Implications of The Hindu Code Bill 1948", A.I.R.
1950, Journal, 26 at p. 27; Paras Diwan, "Divorce
Law of Hindus, contemplated reform and a few
suggestions", A.I.R. 1953, Journal, 7 at p. 9.
(147) H.A. Rose, A Compendium of the Punjab Customary
Law, Lahore, 1911, pp. 53-58.

(148) H.A. Rose, op. cit., p. 42; J.C. Ghose, The

Principles of Hindu Law, Calcutta, 1906,
pp.696-698.

(149) N.K. Dutt, Origin and Growth of Caste in India,

pp.72-73.
(150) Nathu V. Ram (1905) Punjab Record 29.

(151) L.D. Joshi, Khasa Family Law, Allahabad, 1929,

pp.2, 162; a very interesting example of the
working of this rule is given by Jim Corbett in My
India, O.U.P., 1954, pp. 59-62.

(152) Smt. Premanabai V. Channolal, A.I.R. 1963 Madh.

Pr. 57.
 -:65:-

(153) Bhagwant Rao Dubey, "Widow Re-marriage in Madhya

Pradesh", Man in India (1965) vol. 45, p. 50
(a quarterly anthropological Journal); see also Ram
Keshav Ranade, "Widow-Remarriage (whether on
approved form or an unapproved form)" A.I.R.
Journal, p. 59.

(154) E.T. Dalton, Descriptive Ethnology of Bengal,

Calcutta, 1872, p. 86.

(155) Hurry Churn V. Nimai (1884) 10 Cal. 138; Rally V.

Dukhee (1880) 5 Cal. 692.
(156) Virasangappa V. Rudrappa (1885) 8 Mad. 440 (Manu
and Narada cited at p. 450). As to the status of
Lingayats, see Honourable Mr. Justice P.B.
Gajendragadkar, "Hindu Code Bill", (1951) 53 Bom.
L.R. 77 at p. 88.

(157) Golapchandra Sarkar Sastri, A Treatise on Hindu

Law, p. 169.

(158) Rahi V. Govind (1876) I Bom. 97; J.S. Siromani,

Commentary on the Hindu Law, Calcutta, 1885, p. 83.
(It seems that Natra is capable of being confused
with concubinage. See Laxmansingh V. Kesharbai,
A.I.R. 1966 Madh. Pr. 166 at p. 169).

(159) Puyam V. Moiranthem, A.I.R. 1956 Manipur 18.

(160) See also J.D.M., Derrett, "Divorce by Caste Custom"

(1963) 65 Bom. L.R., Journal, p. 161 at 163.

(161) Kishenlal V. Prabhu, A.I.R. 1963 Raj. 95; see also

Pramanbai V. Channolal A.I.R. 1963 Madh. Pr. 57.

(162) Balli V. Rapetti (1957) 2 An. W.R. 308.

(163) Edamma V. Hussainappa, A.I.R. 1965 Andh. Pr. 455;

Kamala V. Kumaran, A.I.R. 1958 Bom. 12.

(164) Are Lachiah V. Are Raja (1963) 1 An. W.R. 295.

(165) Laws of Uganda, Cap. 112.

(166) J.D.M. Derrett, "Comments, Recent Legislation", Am.

Journal. Comp. Law, p. 396.
 CHAPTER-I
UNIT-B
DIVORCE ACCORDING TO THE QUR'AN/HADITH/LEADING SCHOOLS OF
JURISPRUDENCE, THE LATEST ACTS-PRE-POST-INDEPENDENT INDIA

A Muslim marriage, unlike marriages in certain

other Religions, is not a sacrament. It has been stated by
some writers and also held in some cases that it is a
civil contract. But this view is equally incorrect and
Muslim marriage is not a mere civil contract. Great
importance has been given to marriage by Islam and
al-Durr-ul-Mukhtar, Al-Ashbah wan Nazair and Hedayah and
other books have called in on act of devotion. The former
has stated it to be incumbent on a person whose passion in
ungovernable. The Holy Prophet (peace be on him) has said,
"Marriage is my Sunnah", But in spite of the above point
it is ot to be considered a sacred and indissoluble tie
and al-Durr-ul-Mukhtar goes so far as to state that when
there is any fear of injustice, marriage becomes
abominable. Similarly it is stated in Tahtavi that
marriage when injustice is certain is unlawful. A
sacrament can not be violated but Muslim Law
unquestionably allows divorce. On the other hand there is
no virtue a-lrtached to a civil Contract but marriage in
Islam is considered a virtuous act. Hence to say that it
is a sacrament or to describe it as a mere civil contract
is not correct. As pointed out by Abdur Rahim in his
well-known book, Muhammaden Jurisprudence, marriage under
 -:67:-

Muslim Law Partakes of the nature of both a sacrament and

a civil contract. Being commended by religion it tends
to be treated as a holy injunction. It holds a position
midway between the two. But so far as the rights and
obligations of the parties in relation to each other are
concerned, they are governed by the ordinary law of
contracts. It is open to the spouses to specify and
restrict each other's rights and obligations wising out
of the marriage and fix the conditions for its termination
by mutual consent. Muslim writers treat it as something
between religious matters and worldly affiars. The Muslims
have been enjoined to contract marriags safeguard against
loose living. - A marriage also unites two different
individuals aby love and affection and two different
families by a bond of Kinship. When these objects, amongst
others, fail, the continunance of a marriage may not be in
the interest of the spouses and so its dissolution is
permitted. Divorce is not regarded as a disgrace in Islam
nor necessarily a sequel that follows misconduct by either
the husband and the wife or by both.

^ Muslim law does not compel the spouses to lead a

miserable life when their marriage has proved a failure,
but grants them the right to separate. At the same time it
does not contemplate separation on frivolous and trivial
grounds, such as are now recognized sufficient in some
parts of the world.
 -:68:'

In Arabia itself divorce, prior to Islam, was a

frequent occurrence without any regard to marital
obligations and every individual took as many wives as he
could afford and then divorce them at his sweet will.

In Islam Divorce, when not absolutely necessary,

is strongly disapproved of and discouraged. Talaq
(divorce) is strongly condemned by the Mohammadan religion
and it should not be pronounced unless it has become quite
impossible for the parties to live together in peace and
harmony, but once it is pronounced it is upheld and valid
although there may be no good cause for it. It is
described in a precept of the Holy Prophet (PBUH) as the
worst of all the things that law permits. It has been done
in two ways namely, condemning divorce except in certain
circumstances and commending forbearance and the
continuation of marital relationship even in the case of
disagreement and some suffering. The Holy Prophet (r-eace
be on him) has said, "of all the permitted things divorce
(lA)
is the most abominable with Allah." Even when a man is
not satisfied with his wife, the Holy Qur'an enjoins
forbearance. It says, "And retain them (the wives) kindly.
Then if you hate them, it may be that you dislike a thing
while Allah has put abundant good in it."(2) The Holy
Prophet (Peace be on him) has said, "That man is better
amongst you who is better to his wife."' (3) On another
occasion he said, "The most perfect amongst the faithful
in respect of faith is he who is best in disposition among
them (women) and better among you are those who are better
(4)
towards their wives."
 -:69:-

Abu Hurayrah (Rad ) reports that the holly Prophet

(peace be on him) said, "Let not the faithful man hate the
faithful woman; if he dislike some of her habits, he may
like others."(5) He is also reported to have said,
"Marry, donot divorce, for Allah does not like men and
women who relish variety in sex matters. "(6) In short,
the husbands have been enjoined not to divorce their wives
except in the case of their being unfaithful.(7)

Divorce, when permitted;- If it is established that a

husband and wife can not live togather in peace and
harmony, they are given the option to separate. Divorce is
also permitted when the wife's conduct is undsirable as
when she does injury to her husband or is not chaste.
Divorce is obligatory on a husband when he is incapable of
matrimonial intimacy or can not maintain his wife, and the
like.(fi) This rule is based on a Qur'anic text wherein the
husbands have been enjoined, "to keep the wives with
kindness.(9)

\./t>ivorce is permitted as a matter of necessary for

the avoidance of greater evil which may result from the
continuance of a marriage. But even in such cases an
attempt is first to be made for reconciliation by
referring the matter to arbitration. Thus it is laid down
in the Qur'an, "And if you fear a breach between the two
(husband and wife), then appoint an arbiter from his
(husband's) people and an arbiter from her (wife's) people.
 -:70:-

If they desire agreement, Allah will effect harmony

between them."(10) According to the spirit of the law, it
is only when disagreement continous and efforts to bring
about a reconciliation prove unavailing that the parties
may dissolve the marriage. Judicial separation in which
the aggrieved spouse is allowed to live separate from the
other without the marriage being dissoloved is an
institution not recognized by the Muslim Law. The reason
for this is that the objects of marriage are not restored
by judicial separation, while it may result in immorality
which in Islam is an evil far greater than divorce. The
Muslim Law, while it permits divorce, insists.that there
shall be some guarantee that the husband or the wife if
not acting from caprice or frivolity or on the impulse of
a momentary provocation. For this purpase certain
restrictions are imposed by the law upon the spouses,
right to dissolve their marriage. The object of these
restrictions, as stated above, is to ensure that the
spouses should not act in haste such as under the
influence of wine, anger, excitement, and the like, and
that an opporunity is provided to the parties for
rapprochement. This cautious attituds towards divorce
forms the basis of the al-talaq al-sunnah under v/hich
marriage is terminated only after a minimum period of
there terms of the wife's menstrual courses from the time
of the pronouncement of divorce. During this period the
husband has the option to take the wife back.
 -:71:-

The above discussion will make it clear that a

Muslim husband can not justly divorce his wife in the
absence of reasonable grounds and without having recourse
to an attempt at reconciliation. It is unfortunate that
this basic principle regarding divorce has been lost sight
of and divorce given capriciously and without any
justification, whatsever, is considered good in law though
it is strongly discouraged in religion. This conception of
law ignores the strong condemnation and disapproval of
divorce in Islam and has led many a husband to make an
unscruptuous use of his power misery and unhappiness for
the wife and has made marriage insecure and the wife's
possition very precarious.

Muslim jurists have held different views regarding

divorce in Islam. According to some, divorce is prohibited
but is permissible in case of necessity. It is stated in
al-Radd al-Muhtar, dealing with Hanafi Law, that no doubt
it (divorce) is forbidden, but it becomes mubah
(permitted) for certain outside reasons. Its ibahah
(permission) arises from the necessity for release (from
the marital tie) in certain cases. Therefore, when there
is no cause for separation whatsever, there is no
necessity for release, and if there is no legal ground for
talaq, or release, then it must be considered unlawful.
Holy
for the Qur'an says, "So if they (your women) obey you,
seek not away against them".(11) The Hanafi Jurists also
assert that divorce in itself is a pernicious thing and is
a disapproved procedure, as it dissoves marriage, a tie or
relationship which involves many considerations of
temporal as well as spiritual nature nor is its propriety
at all admitted except on the ground of urgency of release
from an undesirable wife. (12) They further add that the
propriety of divorce rests upon the cause of the urgency.
The urgency itself being a matter concealed and
unascertainable (but by virtual proof) and the act of
preceding to divorce is proof of the urgency.(13) The
explanation of the Hanafi Jurists is based on too
technical a ground. The underlying principle is however,
clear. Most of the Muslim Jurists, while discussing
talaq, say that 'talaq being in itself a pernicious
and disaprroved procedure, it is only the urgency of
release that can give sanction to it. (14) It is a very
reasonable and sound view of the matter and it is not
clear why it was not adopted by all the jurists who,
however, agree that divorce is pernicious and should be
discouraged. Hence, if a person divorces his wife without
there being an urgent need for release, he shall be guilty
of sin. Abu Hanifah (Ra ) is of the opinion that if there
is no urgent need for release from the marriage-tie, the
divorce is 'haram' (Forbidden).(15)

The author of al-Bada'i'wa '1-Sana'i' has

discussed the matter at length. He says, "Marriage is a
beneficial union which becomes the means for obtaining
benefits in the hereafter and in this world and divorce
destroys it and the destruction of a good thing is
reprehensible. Allah has said/ "And verily Allah does not
like mischief. And this means that in law it (divorce) is
undesirable, for Allah does not love it. It can happen
that sometimes on account of disparity in temperament and
nature or due to disputes the advantage of marriage is
lost; the husband knows that the benefits bypass him
because of his marriage with a particular woman and on
account of his living with her, and that is such cases
advantage would lie in divorce so that the objectives of
marriage might be fulfilled by marriage with another
woman. However, there is constant likelihood that he may
not have thought over the matter as carefully as its
gravity requires and he might not have visualized all the
possible consquences, so the Shari'ah and reason both
require that he should reconsider the matter and for this
reason he is expected to give her one revocable divorce so
that the woman may repent her sisconduct and dislike (for
him) and might return to the path of rectitude. But when
she has tasted the betterness of separation and does not
repent, the husband will consider his over situation
whether he can stay away from her. And if he facts he will
not be able to bear a separation, he might bring her back,
but if he feels that he will be able to bear the
separation, he may divorce her again in the second tuhr" (16)
 -:74:-

It is unfortunate that some later jurists have

over looked this basic concept regarding divorce, nor have
they taken into consideration the hardship caused to a
wife as a result there of. It can not be gainsaid that the
present practice which allows a husband to divorce his
wife unscrupulously, does not only contravene the basic
principle of Muslim law of marriage and divorce but also
very ften r ins the life of the wife and even leaves her
absolutely destitute. There is no Bayt al-Mal (public
treasury) to support her now, and it is, therefore
necessary that this autlook should be changed and a
reasonable view in keeping with the basic principle of
Muslim Lav; be adopted.

Modifications in Mulsim Law;- Many Muslim Jurists of the

past did not hesitate to modify the law to make it suit
the needs of their own times and we should also do the
same. These Jurists considered tha.iselves bound only by
express injunctions of. the Qur'an and the traditions
regrading obligations to do a thing or to abstain
from doing a certain thing. But, where the law was not
obligatory and was merely permissive, they allowed its
modification however necessary. Muslim law is very
elastic. The muslim jurists in later times, however,
considered themselves absolutely bouned by the law laid
down by the early jurists, without caring to see if it
suited the needs and conditions of their times and so they
made the law very rigid.

Muslim law however, is full of instances where

necessary modifications, to meet the requirements of their
own times had been made by the jurists. To quote a few
instances drinking was punishable with fortly stripes
during the caliphate of Abu Bakr, but 'Umar increased the
number to eighty in order to put a stop to the evil
habit.(17) Pronouncement of three divorces at one and the
same time was considered tantamount to one divorce in the
time of Prophat (peace be on him) and Abu Bakr,(R)andduring
the first two or three years of the caliphate of 'Umar.
People, however, used to wantonly repeat the pronouncement
many times siraultanoouslythere by ignoring the seriousness
of divorce. Umar considered it necessary to discourage
this practice and held that repetition of three
pronouncements at the same time would amount to three

divorces. To give another example, conquered lands were

Holy
distributed amongst the Muslim warriors by the Prophet
(peace be on him), but 'Umar stopped this practice in the
public interest. Again, marriage with
Kitabiyah a
Holy
(Christian or Jewish woman) was permitted by the Prophet
(peace be on him) and the first three caliphs, though the
second caliph discouraged it, and when a Governor had
married a Jewess, the caliph ordered him to divorce
her. (18) But 'Alii;R)the fourth Caliph, took up a very
strong attitude and according to the majority of
Shi'i'ulama' such a marriag is absolutely forbidden.
 -:76:-

According to some other Shi'i Jurists the marriage is not

forbidden though it is considered highly undesirable. The

Supreme Court of Pakistan has accepted the latter view.

For a learned and interesting discussion of the subject,

see Syed Ali Nawaz Shah Gardezi V. Lt-Col Mohammad Yusuf

Khan, P.L.D.1962 (w.p.), Lahore.558.

This practice of modifying rules of law continued

even after the orthodox caliphs as can be seen from the

following instance.

(a) Formerly, if a husband wanted to take his wife to

another place and she refused to accompany him, then,

according to Abu Hanifa, Abu Yusuf, and Imam Mohammad, she

was considered disobedient and lost her right to

maintenance. But later, Abu Qasim Saffar held that the

rule was applicable in the times of those Imams, but in

Suffar's time the husband could not take her to another

city (against her wishes).(19) The modification in the

rule is probably due to the fact that travelling had

become d^>ngerous in later times. Also, because the Muslims

had then spread out to very distant lands and means of

communication were difficult and it was not considered

desirable to force a wife to leave her relations and

country in such circumstances.

(b) In the 'Alamgiriyah it is stated, " If a person

divorces his wife while under the influence of hemp or

 bhniiy , then, according to Tandhib, divorce would not be
effected. But a divorce under such circumstances would now
be given effect to and the husband would also be liable to
punishment because of the prevalence of the vice (of the
taking) of bhang or hemp amongst the people in our times
and the Fatwa in our time is in accordance with view."(20)
To give instances of our own times, we may quote some
important changes introduced in the Muslim law of divorce
by the dissolution of Muslim Marriages Act of 1939. The
bill was introduced in the Central Legislative Assembly by
the late Muhammad Ahmad Kazimi, a member of the working
Committee of the Jamiyyat al-Ulama'-i Hind, because it was
considered necessary to bring about certain important
modifications in the then prevalent provisions of Muslim
law. The following will show the extent to which
modifications were made:

(1) A Muslim girl could not formerly exercise her option

of puberity on attaining majority if she had been given
away in marriage, while a minor, by her father or paternal
grandfather. This rule was based on the reasoning that
they were so closely related to the girl that it could be
presumed that they must have acted in the best interests
of the girl and must have given her away in marriage to
the most suitable person. But, in course of time, it was
found that a father or a grandfather gave away his

daughter or Gran daughter in marriage to- •-a^. v's^y^,. .>

. ^'^\-\ - •^ ^
undeserable person or even to a man of depraV^ed character ^ .
 -:78:-

either through carelessness or simply for the sake of some

monetory or other gain and thus sacrificed the girl's
future happiness. The law was, therefore, amended to meet
this situation and a girl can now exercise her option of
puberty even when she is given away in marriage by her
father or grandfather during her minority.

(ii) The Hanaf i law did not allow the dissolution of a

marriage on the basis of the husband's cruelty to the
wife or for his failure to maintain her which was
found to result in great hardship to her. The Act
now allows the dissolution of a marriage on these
grounds.

(iii) Under the Hanafi law, the wife of a missing husband

had to wait for at least sixty years before
contracting a second marriage.(21) But under the
Maliki law, the period of waiting is four years
only. The act has adopted the latter rule with some
modifications in order to save the wife from obvious
hardship.

(iv) There was a great difference of opinion amongst the

the Muslim Jurists about the effect of the conversion
of a Muslim wife to a revealed religion. The majority
of Muslim Jurists held the view that the marriage
would get dissolved on the renunciation of Islam by
the wife, but the 'Ulama' of Ma-wara al-Nahr
 -'.19:-

(Transoxiana) held a different opinion and stated

that the marriage would not be dissolved under these
circumstances.(22) The Act has adopted the latter
opinion.

Reason for Differences of Opinion;- We sometimes find

that the Muslim Jurists have expressed different views ©n
a particulars point. It may be mentioned here that the
difference is often due to a difference in the mode of
interpretation as explained below:
(a) One group of Muslim Jurists considers that a verse of
Holy
the Qur'an or a tradition is to be interpetated
literally, but the other group prefers to look into
the underlying idea and to apply the basic principle
according to the changed conditions and to meet the
requirements of their own times. They consider that
the spirit of a rule cannot be changed, but its
application changes with time, environment,
circumistances, conditions etc. It is obvious that
these two modes of interpretation will result in a
difference in the application of the rule though there
is no difference in the basic rule applied by them.
(b) The other ground for difference lies in the
application of a certain rule of law. Thus, some
Jurists hold that a rule should be followed and
applied strictly so that people should not take pndue
advantage in any way and may not lightly ignore it and
 -:80:-

commit a breach of it. But there are other Jurists who are
of the opinion that Allah wants to be merciful and does
not want to be hard on man kind and so we should lenient
in applying the rule of law in order to avoid the
infliction of hardship on the people.

It can thus be seen that after there is no real

difference in the basic rule applied by the jurists, but
the difference arises out of the process of application of
a rule.

As the basic rule in each case is generally the

same/ it is open to us to adopt such interpretation of law
us meets the needs and requirements of our own times.

Some one has aptly stated that all kindness and

leniency is due to the injunctions of Allah and the
Prophet (peace be on him) while all hardships and
difficulties arise out of the rules laid down by Ulama
Ibn Qayyum has nicely explained that the Shariah (Muslim
Law) is based on wisdom and is meant for the worldly and
spiritual benefit of the people, and means complete
justice for all and absolute kindness and wisdom. Hence we
cannot consider that code of lav/, a law of the Shariah in
which there is cruelty instead of justice, hardship in
place of leniency, loss instead of advantage and
foolishness in place of reason. He stresses that law
changes with the change of environment time, place.
 -:81:-

financial conditions, and customs of the people and that

misunderstanding has arisen among people due to their
ignorance of the relation between human society and the
law, which has constricted the scope of Islamic Shariah.
They do not realise that such narrow-mindedness can have no
place in a system which has given most consideration to
the welfare of the people.(23)

Wife's Right to Dissolve Marriage;- Under the provisions

of Muslim law, the right to the dissolution of marriage
does not rest with the husband alone, but the wife has
also been given this right though it is not as absolute as
that of the husband. She can herself terminate her
marriage under certain conditions or get it dissolved
through a Qa^i if there are genuine yrounds for such a
step. But generally speaking, the right of the wife is not
coextensive with that of the husband. The difference lies
in the fact that where as the husband can himself divorce
his wife, the wife can, except under special circumstances
or conditions, obtain the dissolution of her marriage only
through the intervention of a t?adi or an Arbitrator.

Difference in Powers of Husband and Wife;- There are two

Holy
verses in the Qur'an which deal with this matter. It is
stated in the first verse, "They (the women) have rights
similar to those (of men) even them in kindness and men
are a degree above them".(24) The other says, "Men are
 -:82:-

the maintainers of women with that Allah has made some of

them to excel others and with that they spend out of their
wealth."(25)

Reasons for the above mentioned difference;-

The superiority of men over women has been explained in
the second verse to be due to two reasons, namely:
(a) because they spend of their property (for the support
of women),. and
(b) because Allah has made one of them to excel the other.
This shows that superiority has been given to man
because of his responsibility to support and his
capacity to protect his wife. He has to bear a greater
burden of domestic life than the wife and so,
consequently, enjoys greater rights in some matters
than she does. As regards the second ground, it is
generally accepted that men are physically superior to
women.
 -:83:-

CHAPTER-I

REFERENCES ONIT-B

(1) Abdur Rahim, Muhammaden Jurisprudence, 1958, p.327.

(lA) Sunan, Abu Dawud, 1: 296.

(2) Qur'an, IV:19.

(3) Wall al-Din al-Khatib, Mishkat al-Masabih, Delhi,

P. 181.

(4) Ibid, p. 282- (5) Ibid, 280.

(6) Ali al-Muttaqi, Kanz al-Ummal, Hyderabad, V. 159.

(7) Ibid, 'Ibn Abidin, Al-Radd-al-Muhtar, 11: 426-7

(8) Ibid, (9) Qur'an, 11: 231.

(10) Qur'an, IV; 35. (11) Qur'an, IV; 34.

(12) Al-Marghinani,'Ali b. Abi Bakor, al-Hidayah Delhi,

n.d. 11:335; Shami op.cit. 11: 426-7

(13) Hedayah 11:335; Ibn al-Humam, Fath al-Qadir, 111:24.

(14) Sami op,cit, 11:426-7.

(15) Shami, op.cit., II: 426-7.

(16) Al-Kasani, Ala'al-Din, Bada'i' al-Sana'i', Cairo,

111:95 p. 95

(17) Abu Dawud, op.cit., 11:259-60.

(18) Shah V\;ali A l l a h , Fiqh-Umar (Urdu translation).

Lahore, 1952 A.D. p p . 6 5 - 6 .
(19) Al-Fatawa al-Hindiyah Urdu, I I : p . 406.
(20) Ibid. p. 145.

(21) Shami, op.cit., 11:338.

(22) Ibid, 11-402-3.

(23) Hidayat-al-Murtasid (Urdu tr, of Bidyat-ul-Mujtabid)

Idarat al-Musannifin, Rabwah. 1958 A.D., p.35.

(24) Qur'an, 11:228.

(25) Ibid., IV: 34.