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«1. Introduction In ancient law of the Hindus, rooted in Vedas announced in Smritis, explained and commented in the recognized commentaries and ...»

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1. Introduction

In ancient law of the Hindus, rooted in Vedas announced in Smritis, explained and

commented in the recognized commentaries and Digests; Supplemented and varied by

custom and usage, we find three expressions uttered by the divine sages and they are,

abandonment‖, ―supersession‖ and ―remarriage‖. But it is only in the “Arthasastra of

Kautilya” we find some interesting observations bearing on divorce. However, it is the unanimous view of the law givers that divorce was unknown in Ancient Hindu Law. If we refer to Narada1, Parasara2, Vasistha3, Gautma4, Manu5, Yajnavalkya6, there is reference of ―abandonment‖ or ―supersession but not to divorce as Kautilya has referred. Reason is obvious that Hindu marriage is sacrament and its object is continuity of progeny and performance of religious ceremonies. Though the provision to have another wife is positively contemplated but not divorce as the present law indicates.

But as is also clear, ancient Hindu law did speak of customary divorce and P.V.

Kane, an authority on Hindu Dharmasastras in two paragraphs spoke thus:In the Vedic literature there are at least some texts capable of being interpreted or relating to the remarriage of widows and we have the word “punarbhu”, but as regards divorce there is absolutely nothing in the Vedic texts nor is there much in post Vedic literature.7 But inspite of the supremacy of a custom, it clearly appears that law was based on two-tier system, one for the intellectuals or cultural elite and the other for the less sensitive or ill-informed. Hindu law approved the divorce to non-caste Hindus i.e, the lowest rung of the ladder in the socio-cultural hierarchy8.

Narada (XII 97, 98).

Parasara (IV.30).

(XVII 74, 78, 79).

Gautma (XVIII, 15, 17).

Manu (IX.76) Yajnavalkya (III.74) P.V. Kane, ―History of Dharamasstras‖ 1962, p. 619.

Ibid. History of Dharamsatras Chapter III & IV.

Thus customary divorce was prevalent among the communities to whom Hindu law was not made applicable in view of their orthodox assimilation with the usage and custom and the concept of customary divorce is not ignored by the judiciary unless the custom pleaded is derogatory in essence. Various cases are needed to be mentioned where the parties to the marriage sought customary divorce and when challenged, how the judiciary viewed it.

2. Customary Divorce and Judicial Recognition Khemkor v. Umiashankar9 In this case the question was whether a Sompura Brahama woman who has contracted a marriage with a man of that caste, during the lifetime of her husband and without his consent, is entitled to maintenance.

Held that among Sompura Brahmana Natras or remarriages are allowed among them but with the consent of the first husband but since consent was lacking, it was held that the second marriage is not valid as per custom of her caste.

Sundor v. Nihala10 It was held that it was found that by the customs of Jats of the district of Sialkot, a woman who has received a written divorce from her husband was free to contract a second marriage.

Kudomee Dossee v. Joteeram Kolita11 It is case where a Hindu husband sued his wife for restitution of conjugal rights and the defendant pleaded divorce. It was held that though the Hindu Law does not contemplate divorce, still in those districts where it is recognized as an established custom, it would have the force of law. There can be no doubt that the Hindu Law has been affected in particular district by particular usages and these usages have hitherto been respected unless clearly repugnant to the Principles of Hindu Law. According to Sham Churu12, where it is said that reason and justice are more to be regarded than mere texts and that wherever good customs exists, it has the force of law.

(1873) BHCR 381.

(1889) 84 PR 1889.

(1877) ILR 3 Cal 305 Sham Churu‘s Vayvastha Darpana, p. 387 Sankaralingam Chetti v. Subban Chetti13 The question in issue is whether there has been a valid and legal divorce between plaintiff and second defendant and the only point argued is that whether the caste custom is valid as it was contended that it is immoral and that the courts will not recognise it. It was held that divorce in this form is consistent with the ‗original‘ custom of the potters and if this be so, the custom is sufficiently ancient and it is not immoral since it does not ignore marriage as a legal institution but provides a special mode by which it may be dissolved.

Keshav Hargovan v. Bai Gandhi14 In this case the court held that a custom by which the marriage tie can be dissolved by either husband or wife, against the wish of the divorced party and for no reason but out of mere caprice, the sole condition being the payment of a sum of money fixed by the caste, is opposed to public policy and is also repugnant to Hindu Law and, therefore cannot be judicially recognized. In this case the custom pleaded was not recognised by the court.15 Thangammal v. Gengayammal16 In this case the validity of custom was challenged. It was held that there is no invalidity in a custom by which married couple being unable to live together, by consent seek divorce and are divorced by the parties, approaching the headman and other relations, paying certain amount and taking away the thali from around the neck of the wife and giving it back to the husband. It is only where the divorce is enforced against the wish of the wife that the custom permitting the divorce may be illegal.

In Mayne‘s Hindu Law,17 it is said that it was doubted whether a custom authorising her to marry again during the lifetime of her husband and with her consent, would have been valid.

(1894) 17 ILR Mad 479.

AIR 1995 Bom 197.

(1875-77) 1 Bom 347; (1892) 19 Cal 627; (1864-66) 2 BHCR; (1877-78) 2 Bom 140.

(1945) 1 MLJ 299.

Mayne, Hindu Law, para 37, p. 50, 13 thEdn., November 1991, Nallathangal v. Nainan Ambalam18 The case was under section 488 of Cr. P.C. 1898 wherein the point of divorce by custom was agitated by the court. The court held that though Hindu Law does not recognise divorce between husband and wife, nevertheless the custom in certain communities may permit a valid divorce by means of a caste panchayat or similar tribunal. Even after passing of the Hindu Marriage Act, 1955 customary rights of divorce were saved and such divorces continue to have the force of law among the communities where the custom prevailed.

Kishenla v. Mst. Prabhu19 It was a case of customary divorce and the court held that courts do not recognize the authority of the caste to dissolve a marriage or to give permission to a married woman to remarry. Therefore, a custom by which a caste panchayat can grant a divorce whenever it thinks fit irrespective of the mutual consent of the parties cannot be countenanced by court of law as valid custom. It is incumbent on the plaintiff to state with precision and clarity what the custom is.

Premanbai v. Channoolat Punao20 It is a case wherein the validity of customary divorce was challenged. The court held that divorce is unknown to Hindu law and is a creature of custom amongst the communities in which it obtains. Where a custom permits a divorce between patvas with the mutual consent of the spouses, the age of discretion under the Mitakshara School of Hindu Law does not govern the case and a wife in a Patva community can, at the age between 14 and 15 years, when she has attained sufficient maturity of understanding to comprehend the nature of the act she is doing, validly consent to her divorce from her husband in a caste panchayat held for the purpose and a consent so given is binding on her according to the caste custom.

Gurdit Singh v. Mst. Angrej Kaur21 In this case the point regarding customary divorce and the remarriage of the wife during the life-time of the first husband was in issue. The court held that a custom exists 1960 Cr LJ 490.

AIR 1963 Raj 95.

AIR 1963 MP 57.

AIR 1968 SC 142.

among the Hindu jats of the Jalandhar district which permits a valid divorce by a husband of his wife which dissolves the marriage. On the dissolution of such marriage the divorced wife can enter into a valid marriage with a second husband in the life-time of the first husband. In this case the Supreme Court affirmed (1962) 64 Punj LR 1179.

3. Dissolution of Marriage and Arbitration Raj Kumar Bansal v. Anjana Kumari22 It is a case where the court referred the matter to a referee and passed a decree of divorce on the basis of the award received from the referee. This decree of the court was challenged. The High Court referred to section 23(3) of the Act which envisages nomination of a person by the court to bring about reconciliation between spouses engaged in matrimonial litigation. It does not say that such nominated person can dissolve the marriage by a decree of divorce. The Act does not postulate that the matrimonial court can refer the matrimonial dispute for dissolution of marriage to a referee or an arbitrator.

The Arbitration Act stipulates that all civil and legal disputes may be referred to arbitration,23 but in matrimonial matters, suit for divorce or for restitution of conjugal right cannot be referred to arbitration24. Even in Russel v. Russell25, it is said that judgment in default or by consent is unknown in matrimonial law. Even section 13B is, in fact, not a decree by consent. The three ingredients stipulated in section 13B (1) are to be satisfied.

4. Hindu Law on Divorce: Judicial View Now Divorce though unknown to Hindu Law, was statutorily recognised under the Hindu marriage Act on the grounds specified under section 13 of the Act to be read with section 23(2) of the Act to make every endeavour to bring about reconciliation between the parties. While permitting divorce, this Act protects the customary divorce.26 The grounds specified and enumerated under section 13 need individual treatments and analysis.

AIR 1995 P&H 18.

Kamini Kumar Basu v. Birinder Nath Basu, AIR 1930 PC 100.

Malika v. Sardar, AIR 1929 Lah 394.

(1924) AC 678.

See section 4 and section 29(2) of the Act.

Adultery: Section 13(1) (i) The word ―adultery‖ has not been used in present section 13 instead expression, ―voluntary sexual intercourse with any person other than his or her spouse.‖ Adultery in matrimonial law may be defined as consensual sexual intercourse between a married person and a person of the opposite sex, not the other spouse, during the subsistence of marriage.27 Before the Marriage Laws (Amendment) Act, 1976, ―Living in adultery‖ was a ground o divorce. ―Living in adultery‖ implies more or less continuous course of adulterous conduct continuing right up to the filing of the petition. These conditions proved too severe for numerous ignored spouses and thus come the amendment by which one act of sexual intercourse with a person, not the other spouse, is sufficient, to grant decree of divorce, if proved.28 Virupaxi v. Sarojini29 Where in a petition for annulment of marriage with his wife inter alia on the ground that she committed adultery which was witnessed by the husband himself. The petitioner‘s own version is for the sake of dignity of the family, he condoned the lapse of the wife then, even if it is assumed that an adulterous conduct on the part of the respondent wife had been established by the subsequent conduct of the petitioner it must be held that he had condoned such an act and upheld the order passed by the civil judge.

Arun Kumar Bhardwaj v. Anila Bhardwaj30 It is a case of divorce on the ground of adultery against the wife. Circumstance shows that witness was procured by husband to prove his version. Husband failed to prove adultery. Further averment in the petition that parents of the wife were apprised of her Redpath v. Redpath, (1950) All ER 600, Charlton v. Charlton, (1952) 1 All ER 611, Sapsford v. Sapsford, (1954) 2 All ER 373 (adultery need not be a ―veracoupla‖ Gita Bai v. Fatto, AIR 1966 MP 130.

Mahalingam Pillai v. Amsa Valli, (1956) MLJ 289; Rajni Prabhakar Likur v. Prabhakar Raghvendra Likur, AIR 1958 Bom 264; Bhagwan Singh v. Amar Kaur, AIR 1962 Punj 144; Chanda v. Mst Nandu, AIR 1965 MP 268; Annamilia v. Perumayee Ammal, AIR 1965 Mad 139; Vardarajulu v. Balu, AIR 1965 Mad 29; Subharama v. Saraswathi, (1966) 2 MLJ263; Valliammal v. Singaram, (1966) 2 MLJ 425;

Pattayeeammal v. Manickem, AIR 1967 Mad 254; Gita Bai v. Fatto, AIR 1966 MP 130; Pullikkottial Chera v. Mary Zechariah, AIR 1981 MP 112.

AIR 1991 Karn 128;N.B. Rukmini v. P.M. Srinivasa, AIR 1984 Karn 131; N.G. Dastane v. S. Dastane, AIR 1975 SC 1534; 1975 (2) SCC 326: 1975 (3) SCR 967.

AIR 1993 P&H 33.

misdeeds and wife was given opportunity to mend her ways. The parties thereafter were living together. Held that condonation of offence by husband can be presumed.

Rajee v. BabuRao31 It is a case of adultery against the wife but without any details. Evidence produced was not sufficient. Even the suspicious circumstances were not stated by the witnesses.

Here high reputation of the family is not sufficient to raise presumption of adultery.

Prem Chand Pandey v. Savitri Pandey32 In this case a petition is filed by a wife alleging adultery against the husband. Her conduct was found to be most unreasonable and the allegation of adultery was found false.

Held that wife is not entitled to divorce. The court also dismissed the petition filed under section 27 of the act.

Sunita Singh v. Raj Bahadur Singh33 It is case under section 13 on the ground of cruelty and adultery. Wife was found to be in love with person other than her husband. She was found indulging in sexual intercourse with other person after the marriage held that order granting divorce to the husband is not to the interfered with. She was also found not entitled to maintenance and litigation expenses.

Nidhi Dalela v. Deepak Dalela34 A petition was filed by the husband on the ground of adultery against the wife.

There was untainted evidence against the wife of her adulterous conduct. Explanation given by the wife is not truthful. There was a counter allegation against the husband of the same nature. The court found that the marriage has irretrievably broken down. No interference in the decree of divorce granted to the husband.

AIR 1996 Mad 262; (1995) 4 SCC 15: 1995 AIR SCW 2528; Parvati v. Shiv Ram, AIR 1989 HP 29;

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