2. Defining Divorce
Divorce literally means the legal ending of a marriage or separation. In the other
way it puts the marriage to an end, parties revert back to their unmarried status
and are once again free to marry.
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3. Research Objectives
1. To analyze the condition of Divorce in Hindu society
2. To analyze the condition of Divorce in Hindu Society in Neighboring
Countries
3. To analyze on the problems faced by husband if he divorces his wife
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4. Research Questions
1. Weather will you lose anything if you divorce?
o Execution of order a concern for spouse
o Interpretation of law holds the key
o Autonomy of courts
2. Does the modern aspects such as the Live-in Relationships interfere in the
Morality aspects Divorce?
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5. Right to residence a landmark verdict
A woman can claim 'right to reside' in her matrimonial home under the
Protection of Women from Domestic Violence Act, 2005. Further, even right of
residence has been recently adjudicated by the top court in Satish Ahuja
versus Sneha Ahuja wherein it was held that right to residence is paramount
for a wife, irrespective of whether she is working or not. It has repeatedly been
held by various courts that one cannot ignore the fact that an Indian woman
has been given an equal status under Articles 14 and 16 of the Constitution
and she has a right to live with dignity and according to the status of her
husband.
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6. Divorce Under Hindu Law
• Under Shastric Hindu Law, the concept of divorce is quite uncommon as
martial bond is regarded as unbreakable and indissoluble.
• Manu declared: "let mutual fidelity continue till death; this in brief may be
understood to be the highest Dharma of husband and wife."
• The duty of a wife continues even after his death and she can never have a
second husband.
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7. Divorce Under Hindu Law
Codes of Narada and Parashar permit divorce to wife in certain
circumstances. Narada mentions five conditions under which a woman could
renounce her husband and choose another.
1. Husband lost and unheard of for a period of seven years;
2. Husband be dead;
3. Husband renounced the world;
4. Husband becomes impotent;
5. Husband is ex-communicated.
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8. Divorce Under Hindu Law
In Arthashastra, Kautilya declared that marriage might be dissolved by
mutual consent in the case of unapproved forms of marriage. To him, a wife
could repudiate her marriage under the following conditions:
• Husband's misconduct with the wife;
• Husband's prolonged absence;
• Husband's banishment'
• Husband ex-communicated;
• Husband having become impotent.
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9. Divorce Under Hindu Law
• Majority of ancient jurists expressed their approval of the divorce. It was
only in unapproved forms of marriage that they favored divorce, that too in
extreme course of distress.
• It is quite possible that conditions mentioned by Narada and Kautilya may
take place in approved forms of marriage also.
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10. UDHR, CEDAW & the Divorce
• Art. 16(1) of UDHR- equal rights as to marriage during marriage and at its
dissolution.
• Article 2 of UDHR also says that everyone is entitled to all the rights and
freedoms set forth in this declaration, without distinction of any kind.
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11. UDHR, CEDAW & the Divorce
• State parties shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations. (Art.
16 of CEDAW)
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12. Divorce under Hindu Law: Indian
Perspective
• The passing of the Hindu Marriage Act 1955 in India has revolutionized the
very idea of marriage and divorce and above all the whole frame of Hindu
law.
• Section 13 provides the circumstances in which the right of divorce can be
exercised. Section 13(1) has availed the right of divorce to both of the
parties.
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13. Divorce under Hindu Law: Indian
Perspective
1. Adultery:
(a) Treated other party with cruelty;
(b) Deserted the other party for a continuous period of not less 2 years
immediately preceding the presentation of the petitioner.
2. Conversion to another religion
3. If one party becomes incurably of unsound mind or has been suffering
continuously or intermittently from mental disorder of such a kind and extent
that the other party cannot reasonably be expected to live with the
respondent.
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14. Divorce under Hindu Law: Indian
Perspective
Four grounds are available only to wife:
1. Bigamy
2. Rape, sodomy
3. Non-payment of maintenance decreed to the wife
4. Wife was under 15 when she was married and has repudiated the
marriage before she is 18.
The Act has also made provision for divorce by mutual consent.
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15. Divorce under Hindu Law:
Bangladeshi Perspective
In Bangladesh no right of divorce is allowed to Hindus. Of course, this
humiliation stigmatizes the whole nation in the world.
Survey conducted by Bangladesh National Women Lawyers Association
(BNWLA) reveal that most of the member of the Hindu Community want
divorce on justifiable grounds.
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16. Constitutional Obligation and
Protection of Minority Rights
Article 28(1) of our Constitution declares that the state shall not discriminate
against any citizen on grounds only of religion, race, caste, sex or place of
birth.
State should enact law immediately allowing divorce for Hinuds.
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