Is a quick divorce possible in India? Marriage as a Sacrament: Applicable to Men Only
A quick divorce is the holy grail of the Hindu matrimonial litigant. Like the real/fabled Holy Grail, it is a bit elusive. A Hindu marriage is not easy or quick to dissolve today. This is the accepted wisdom, and this is the widespread experience too. It is quite likely that the former is a result of the latter.
This is a longish article, as an attempt is being made to examine the issue at hand in all its complexity. This writer recommends that you keep a large bag of chips handy when you start reading it.
There are a number of aspects of law which need to be discussed when the question, "(How) can I get a quick divorce if I am an Indian Hindu?" is asked. You can see a list hereunder, which will hopefully grow as more articles on this topic are added.
1) Marriage law interpretation by the judiciary in terms of the sacredness of marriage
2) Use of criminal laws by women to render this interpretation meaningless
3) Refusal to repeal or defang an outdated law by the legal fraternity for reasons best known to itself
Let us start with the first of these aspects.
Hindu marriage law interpretation by the judiciary in terms of the sacredness of marriage.
There have been innumerable court decisions in India wherein it has been held by the judge(s) that "marriage is a sacrament for Hindus, and hence marriages cannot be dissolved easily" (paraphrased). This gives rise to a number of questions which our lawyers for some reason do not appear to be asking (or as they love to say, "for reasons best known to themselves(...)") Let me try to raise some of these doubts here.
The first doubt is whether judges down the decades have examined the word 'sacrament' in detail. A sacrament is more often used to describe a rite of passage or an obligatory ceremony than a sacred bond or a sacred promise. The Hindi equivalent for this particular meaning of this word is sanskaar or sanskara or sanskar or samskar or etc. As many readers know, this is the precise word which has been used to describe wedding ceremonies inter alia in sastric literature from the most ancient times down to Manu and subsequently Yajnavlakya or even commentators on Manu or Yajnavalkya's work.
The paanigrahan sanskar is just one out of many sanskaars –sixteen to be exact, with seven still in prevalence– others being the mundan sanskar, daah sanskar, naamkaran sanskar, annaprasan sanskar, janma sanskar and, upanayan/yagyopaveet sanskar. Other, less common ones are garbhadhaan sanskar, punsavan, seemant/seemantnayan, nishkramana, karnavedh, vedarambh, samaavartana, sarva, and sanyaas sanskaars. And this is just the short list of sixteen. There are 48 in all if you want to be pedantic. In short, too many to list here.
If 36 fell into disuse over the times, and then nine more were reduced almost to nothingness, then isn't it logical that the remaining seven will also vanish one by one. How many families do you know who practice yagyopaveet sanskar? In fact this particular rite may well be rendered illegal by any random activist bench of judges one of these days due to its caste exclusivity. What about naamkaran? How many families have you known to have organised a religious ceremony just to give a child a name? Vivaah sanskar is also getting rough at the edges now as we all know. People are preferring to live together in cities without getting married. It is a recognisable trend in our country. The recent trend of accepting rape allegations at the end of relationships may put paid to this slightly older trend, but that is another story for another time.
Bear in mind that the foregoing discussion is about weddings, and not about marriage. But when the very solemnisation of marriage is not de rigueur anymore then how can marriage remain solemn or sacred or bonds, say it how you will?
This brings us to the next doubt, which arises from the freely interchangeable use of the words 'marriage' and 'wedding' in our country, and by extension in the legal arena. A ritual can be sacred without necessarily leading to a bond that is eternal. When a Prime Minister is sworn in, he is not sworn in for a guaranteed term of five years. It is the power of the people to elect their leader which is considered sacred here, and not the right of a constitutional authority to remain in power for a full term by virtue of being elected. Similarly, would it not make more sense if the happiness of the pair of individuals in a marriage is considered sacred instead of a bond which may outlive its utility due to circumstance or human created factors?
Another question which is raised automatically is that how is it possible that something which is a sacred bond can be broken. Is it not paradoxical that you are talking about divorce in your Act and simultaneously claiming that marriage is a sacred bond? If something is made by God, then how can mere humans destroy it? The judges of our country are surely aware that what is sacred is eternal and inviolable by any earthly force? How then can they reconcile the fact that the Hindu Marriage Act permits divorce with their assertion that marriage is a sacrament in the sense of being eternal?
And how is it that human beings can define conditions, the fulfilment of which is assumed to conclude that a heretofore sacred bond stands broken? Upon desertion, or an act of cruelty perpetrated by one partner on the other, or by one partner losing his mind, or by one partner contracting a venereal disease, or indeed due to any other reason? Has there been a voice from heaven, an akaashvaani, about this matter?
And how is it that the periods in these conditions are what they are, and not anything else? Why do exactly two years of desertion lead to the breaking of the sacred bond, for instance, and why not five years or eight months or a century of years?
The concept of Hindu marriage being a sacred sacrament comes in part from the rather sparse literature related to the legal aspects of marriage between Hindus. This includes commentaries. Most writers do not seem to bother to delve deep into the subject matter, and most judges are happy to regurgitate in court what they have been fed by these writers. Interestingly, these writers normally put this observation in sections of their books which come before their examination of the Hindu Marriage Act, whereas judges are prima facie ruling purely according to the letter of the Act. and not with reference to any commentary by anyone. Is it possible that the preliminary observations contained in the initial sections of these books are seen as an integral part of the respective writers' reviews of the Act by the readers of these writers?
Many of the aforesaid set of writers are devout Hindus in addition to being scholars of various shades –usually legal scholars. It is often observed in our country that devout Hindus and Muslims take each other's religions as a reference point (to the exclusion of all other religions) which must be opposed. Hindu (bigoted?) experts are heard to say on such occasions that the only agenda of Muslims is to do the opposite of what Hindus do, and that the Hindu way is more scientific or humane. Muslim (bigoted?) experts are heard to say that the Islamic way of doing things has corrected all the foolishnesses of the Hindu faith. It is not for this writer to judge the merits and demerits of these arguments at this place, but might it be wondered that the Hindu scholars' description of Hindu marriage as a sacred sacrament is inspired by their view of Muslim marriage as a social contract?
This assertion about the Muslim view is fairly common in the literature, and equally common is the mention of the former assertion in the same place as the latter. Might this be concluded to be proof that the foregoing question has an affirmative answer? To digress a little bit, the funny thing here is that Muslims call their wives their shareek-e-hayaats, or their partners on the pathway to heaven / enlightenment, but have no compunctions in letting them go when they get tired of them or when it becomes impossible to continue to live with them (depending upon who you are talking to). So is it not correct to say that Islam sees a conjugal partnership as something which is not limited by our earthly lives but which can be dissolved on Earth? This would appear to be a very practical view if it were not for the difficulty faced by Muslim women when they wish to dissolve a marriage. But this is not the place to open that can of worms.
Use of criminal laws by women to render the interpretation referred to in the section above meaningless.
Only men have been left to bear the burden of the sacredness of marriage ever since dowry related laws like the Dowry Prohibition Act and Section 498a of the IPC have been enacted. If a woman sees that her husband is not willing to grant her the divorce which she seeks, all she has to do is file a criminal complaint under any of these sections against him and sundry members of his family. When the poor husband has to run around lawyers' offices, courts, and mahila thanas just to maintain his family's freedom, he very quickly surrenders and grants his consent for divorce. This means that women do not have to bear any portion of the weight of the judicial notion of sacredness of marriage amongst Hindus. (Dowry laws work in a similar fashion for Muslim women too, and thereby give them an option which their personal law does not provide.)
These criminal laws operate (in combination with the various compulsory waiting periods) in another related way also, which is as an enabler of extortion. If a man files a divorce case against his wife shortly after she abandons him, she normally visits a lawyer. Lawyers are often unscrupulous and they advise such wives to file criminal complaints in their local CAW cells. Bear in mind that the CAW cell procedure does not usually take anything more than six months. This fact combined with the compulsory waiting period of a minimum of one year's separation before filing a petition for divorce by mutual consent means that the wife is quite likely to be able to carry out a successful legal shakedown before the earliest possible time for an MCD petition arrives. So the wife does not risk wasting any extra time than the minimum amount of time which is required in any event by her act of setting the wheels of the law enforcement authorities into motion. Do not forget however, that this is only one of the reasons for the vindictive actions of wives in marital litigation in the 21st Century; and also remember the fact that wives often file CAW cell complaints for extortion purposes without waiting for their husbands to file for divorce.
Usually when a person sees his or her marriage falling apart, he or she starts worrying about how to find the next person for marriage. It is human instinct to start searching for an alternative option as soon as the previously thought to be reliable choice becomes unreliable or unpredictable. If there was a small waiting period before filing for divorce, or none at all, then women would not think such idle thoughts as how to extort some money during the compulsory wait.
Next: Is Quick Divorce Possible for Hindus?: Part 2
Written by Manish Udar
Published by Manish Udar
Page created on 11th January 2014
Last updated on 16th February 2014