04/10/2023

Divorce under Hindu Law

21BLA1089 – Suryaapaul G K
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Defining Divorce
Divorce literally means the legal ending of a marriage or separation. In the other way it
puts the marriage to an end, parties revert back to their unmarried status and are once
again free to marry.

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Research Objectives
1. To analyze the condition of Divorce in Hindu society

2. To analyze the condition of Divorce in Hindu Society in Neighboring Countries

3. To analyze on the problems faced by husband if he divorces his wife

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Research Questions
1. Weather will you lose anything if you divorce?

o Execution of order a concern for spouse

o Interpretation of law holds the key

o Autonomy of courts

2. Does the modern aspects such as the Live-in Relationships interfere in the Morality
aspects Divorce?

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Right to residence a landmark verdict
A woman can claim 'right to reside' in her matrimonial home under the Protection of
Women from Domestic Violence Act, 2005. Further, even right of residence has been
recently adjudicated by the top court in Satish Ahuja versus Sneha Ahuja wherein it was
held that right to residence is paramount for a wife, irrespective of whether she is working
or not. It has repeatedly been held by various courts that one cannot ignore the fact that an
Indian woman has been given an equal status under Articles 14 and 16 of the Constitution
and she has a right to live with dignity and according to the status of her husband.

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Divorce Under Hindu Law
• Under Shastric Hindu Law, the concept of divorce is quite uncommon as martial bond is
regarded as unbreakable and indissoluble.

• Manu declared: "let mutual fidelity continue till death; this in brief may be understood
to be the highest Dharma of husband and wife." 

• The duty of a wife continues even after his death and she can never have a second
husband.

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Divorce Under Hindu Law
Codes of Narada and Parashar permit divorce to wife in certain circumstances. Narada
mentions five conditions under which a woman could renounce her husband and choose
another. 

1. Husband lost and unheard of for a period of seven years;

2. Husband be dead;

3. Husband renounced the world;

4. Husband becomes impotent;

5. Husband is ex-communicated.

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Divorce Under Hindu Law
In Arthashastra, Kautilya declared that marriage might be dissolved by mutual consent in
the case of unapproved forms of marriage. To him, a wife could repudiate her marriage
under the following conditions:

• Husband's misconduct with the wife;

• Husband's prolonged absence;

• Husband's banishment'

• Husband ex-communicated;

• Husband having become impotent.

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Divorce Under Hindu Law
• Majority of ancient jurists expressed their approval of the divorce. It was only in
unapproved forms of marriage that they favored divorce, that too in extreme course of
distress.

• It is quite possible that conditions mentioned by Narada and Kautilya may take place in
approved forms of marriage also.

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UDHR, CEDAW & the Divorce
• Art. 16(1) of UDHR- equal rights as to marriage during marriage and at its dissolution.

• Article 2 of UDHR also says that everyone is entitled to all the rights and freedoms set
forth in this declaration, without distinction of any kind.

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UDHR, CEDAW & the Divorce
• State parties shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations. (Art. 16 of CEDAW)

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 Divorce under Hindu Law: Indian

04/10/2023
Perspective
• The passing of the Hindu Marriage Act 1955 in India has revolutionized the very idea
of marriage and divorce and above all the whole frame of Hindu law.

• Section 13 provides the circumstances in which the right of divorce can be exercised.
Section 13(1) has availed the right of divorce to both of the parties.

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Divorce under Hindu Law: Indian
Perspective
1. Adultery:

(a) Treated other party with cruelty;

(b) Deserted the other party for a continuous period of not less 2 years immediately
preceding the presentation of the petitioner.

2. Conversion to another religion

3. If one party becomes incurably of unsound mind or has been suffering continuously
or intermittently from mental disorder of such a kind and extent that the other party
cannot reasonably be expected to live with the respondent.

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Divorce under Hindu Law: Indian
Perspective
Four grounds are available only to wife: 

1. Bigamy

2. Rape, sodomy

3. Non-payment of maintenance decreed to the wife 

4. Wife was under 15 when she was married and has repudiated the marriage before she
is 18.

The Act has also made provision for divorce by mutual consent.

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Divorce under Hindu Law:
Bangladeshi Perspective
In Bangladesh no right of divorce is allowed to Hindus. Of course, this humiliation
stigmatizes the whole nation in the world.

Survey conducted by Bangladesh National Women Lawyers Association (BNWLA)

reveal that most of the member of the Hindu Community want divorce on justifiable
grounds.

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Constitutional Obligation and Protection
of Minority Rights
Article 28(1) of our Constitution declares that the state shall not discriminate against any
citizen on grounds only of religion, race, caste, sex or place of birth.

State should enact law immediately allowing divorce for Hinuds.

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Thank You!!

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