DI­VORCE & JUS­TICE

De­spite op­po­si­tion and stigma, di­vorce re­mains an in­te­gral part of the Hindu cus­tom and Hindu law.

Southasia - - Contents - By Taha Ke­har

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.

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