There was no definitive divorce law in Hindu legal literature before its codification in 1937. Nevertheless, divorce was a customary practice in some communities. Traditional law represented the marriage bond as a sacrament (samskara) that was indissoluble—a union sustained not only during the present lifetime of the spouses, but also in their subsequent lives. This ethos of sacramental marriage seems to be unique to Hindu and Christian communities in premodern and modern India. There is little evidence of divorce as a legal category in Vedic and post-Vedic literature. The ninth chapter of the ancient law topic of Manu (Man-avadharmashastra) explains an orthodox position that husband and wife are to be seen as one entity and, just as an estate is only divided once, so too the bond of marriage ought to be performed only once. Neither by sale nor separation, it goes on to say, can a husband and wife be severed from each other.
Although these authoritative texts do not deal with the question of dissolving the sacrament of marriage, Hindus are familiar with divorce in the area of custom—another acknowledged source of law. The inclusion of divorce in modern Hindu law is justified on “customary grounds,” something that texts do not explicitly disallow. Under the modern legal system in India, the law topics themselves were the authority on matters governing marriage and all other facets of the private Hindu law, except for divorce law, which has evolved outside textual referents.
Under the Hindu Marriage Act of 1955, which still holds today, divorce was granted on ten grounds: adultery; conversion from Hinduism; trununciation of the world by entering a religious order; insanity; leprosy; unexplained disappearance for seven years; failing to resume cohabitation after two years of judicial separation; failing to comply with a decree for restitution for conjugal rights; a second marriage by the husband while the wife is still alive; and rape, sodomy, or bestiality.
Under this act, customary divorce in Hindu communities was also upheld: “Nothing contained in this Act shall be deemed to affect any right recognized by customs or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized, before or after the commencement of this Act” (Derrett 1957, 163).
Divorce is listed under the United Nations Universal Declaration of Human Rights. The actual practice of divorce in Hindu communities, and within South Asian society in general, remains a challenge. Because there is no universal code of law in India regarding divorce, it is difficult to successfully complete the legal process. Societal norms and economic dependence make it particularly challenging for women to end a marriage with divorce. Lack of education and the practical problems involved in gaining access to the legal system are both further impediments to exercising the legal right to divorce in modern India.
