DIVORCE & JUSTICE
Despite opposition and stigma, divorce remains an integral part of the Hindu custom and Hindu law.
Divorce is finally being considered as a safeguarding mechanism in Hindu Law.
In October 2011, a dispute arose between the government and the Hindu community in Pakistan regarding the contentious divorce clause of the Hindu Marriage Act. Clause 13 states that any Hindu in Pakistan can divorce his spouse in any court at any time. The bill was drafted in 2008 and has earned the ire of the Hindu community ever since. It has stirred controversies about the sensitive issue of divorce in Hinduism and prompted the Hindu community to actively criticize the government’s decision to sanction divorce.
While this overwhelmingly nega- tive response raises concerns about minority rights in Pakistan, it also presents some misperceptions about the status of divorce in Hinduism.
The subject of divorce has remained a moot point in Hindu law. And yet, the legal dissolution of marriage has been readily enforced in the Indian legal system. The concept of divorce has existed in some form or the other since the pre-colonial era and was also used to draft public policy during the British colonial period. Since India’s Hindu Marriage Act of 1956 also contains a divorce clause, the Parliament has not expressed a firm reluctance in introducing the Bill.
Moreover, there are also some practical considerations for sanctioning divorce for Hindus, which can prevent miscarriage of justice The underlying premise for introducing Clause 13 is to provide a deterrent to those unscrupulous elements who have misused the absence of a codified divorce law for Hindus as a pretext to exploit women. There have been numerous cases of forced marriage and rape, which justify the need for strict legal control.
Despite its social relevance, considerable criticism has been levelled
against this clause. Since marriage is considered a sacred union in Hindu culture and tradition, there is a false belief that divorce is impermissible in the Hindu religion and is not a vital component of Hindu law. Such assumptions do not account for the social and historical dimensions that have shaped Hindu law. They stand the risk of asserting that Hindu law is not based on social justice and is therefore not credible. After all, without a law that permits divorce, people will be stuck in a vicious cycle of domestic abuse and unpleasant marriages and the law would come across as oppressive, primitive and dictatorial rather than a means of protecting legal rights.
Accepting the rather myopic view that divorce is not a significant element of Hindu family law can lead to countless incidents of miscarriage of justice. Furthermore, the practice of divorce has existed as an important custom since the pre-colonial era and was gradually accommodated into law when India was colonized by the British. By analysing Clause 13 as a principle of justice rather than an example of a draconian law, it can be determined that it establishes stable family relations, deters the undue victimisation of women and preserves the custom of divorce.
While sacred texts do not make reliable references to divorce, they do indicate that some form of marital separation has existed since time immemorial. This form of separation permits an individual to forsake his or her spouse if they seriously misbehave or if their marriage is without issue. Although a separation of this nature may not necessarily constitute a legal dissolution of marriage, it shows that the idea of a separation is not a new phenomenon.
Lower castes have traditionally practised and approved of divorces that are based on mutual consent. These arrangements are legally recognized and provide a substantial body of evidence to prove that the idea of a separation between partners was used as a solution to the numerous quagmires associated with marriage.
Disagreements over the divorce clause have led to severe delays in finding a cohesive solution to the problems of Hindu marriage registrations. Critics are adamant that the practice of divorce contravenes religious beliefs and reflects unnecessary state involvement in what is essentially a religious matter. But historical evidence seems to suggest that these concerns about safeguarding Hindu principles are unwarranted.
The British were reluctant to enforce law that interfered with the customs of Hindu marriage and divorce. However, it was possible to enforce divorce laws in some princely states. As a result, the ‘judicial dissolution of marriage’ was introduced under an Act passed in 1937. It applied to people whose spouses had disappeared for more than seven years, developed reclusive tendencies, changed his or her religion, behaved needlessly cruelly, were addicted to intoxicants and committed adultery or bigamy. These provisions suggest that the key focus of divorce legislation has been to eliminate any form of injustice. It is also important to note that the law validated ‘customary divorces’ which were performed by lower castes and further reinforces the belief that such informal practices of divorce were prevalent.
While the law seems to favor divorces among Hindus in India, perceptions have not changed as swiftly as they should have. Divorce remains a taboo in society. There is a stigma associated with it, which has obscured the fact that it is a means of escaping exploitative domestic relationships. Unfortunately, women and children are the ones to bear the brunt of this stigma. There have been countless instances where women have been ostracised simply because they have the courage to seek a divorce and walk out of a potentially threatening marriage. Some women have been brave enough to withstand social criticism while others have succumbed to pressure and taken such drastic steps as suicide.
These instances reveal the ineffectiveness of the law to intervene and provide substantive justice. They provide a strong justification for the Parliament’s decision. After all, the state cannot allow the Hindu community within its jurisdiction to perpetuate such injustices, which could disrupt social order. If the Parliament were to succumb to the wishes of the Hindu community, it would be violating the inalienable rights of innocent women and children and encouraging the unscrupulous element to get away without impunity.
Before this matter is blown out of proportion and portrayed as a violation of minority rights in the media, it must be examined in its social and historical context. Through this divorce clause, the Parliament is trying to safeguard the rights of people who have been on the receiving end of injustice. The decision is neither unexpected nor unjust as it takes into account the manner in which the law has been previously implemented. However, the Parliament should respect the sensitive nature of divorce and find ways to make the divorce clause acceptable to the Hindu community in Pakistan. The writer is a blogger on social issues and has previously worked for a media magazine. He is currently pursuing Law at the School of Oriental and African Studies.