Divorce Under Existing Hindu Laws in Bangladesh: Is It Possible?

Marriage is one of the 10th sacraments mentioned in Hindu Dharma Shastra. It says husband and wife through marriage dedicate themselves for the performance of religious duties and also for the spiritual benefit. According to the conventional belief of Hinduism, if one can be blessed with a son, he/she can go to heaven. Further, son can be obtained only through marriage.

Following the Hindu Scriptures, marriage is a bond that lasts for ages. Even death cannot untie the bond. This belief made the absence of provision for divorce under the Hindu Shastra. Hinduism places a very high value on marriage and thus does not approve of divorce.

However, according to the Mitakshara School, the practice of dissolution of marriage is followed as custom in very special cases. But there is no such practice or provision of dissolution under Dayabhaga School. To be noted, Hindus in Bangladesh, West Bengal and Assam follow the Dayabhaga School. Everywhere else in India and in other countries of the world, Mitakshara School is followed by the Hindus.

Analysis of existing laws on divorce:

Due to the absence of any custom of dissolution of marriage or any scriptural provision in the Dayabhaga School and also absence of any such act regarding divorce in Bangladesh, the Hindu community living in this country cannot get a divorce even if they want it.

The government of India enacted a befitting act called The Hindu Marriage Act, 1955 to be applied to the Hindu community living in India. The most significant provision of that act is Section 13 which deals with divorce. Under Section 13(1) of that act, both husband and wife can get divorce with the intervention of the court if they want. On the application of aggrieved party, at the time of the decree of divorce, if convinced, the court may grant gross sum of money on monthly or periodical basis for a term not exceeding the life of the applicant as permanent alimony and maintenance.

In the Hindu colonized country like Nepal, there are also specific laws regarding divorce. So the Hindus living in India and Nepal can seek divorce according to the law of their respective country. 

There is Dissolution of Muslim Marriage Act, 1939 for the Muslim community who seek divorce and The Divorce Act, 1869 for the Christian society living in Bangladesh. But it is a matter of regret that, little attention has been paid to reform the Hindu personal law in Bangladesh. Since so many years have been passed after independence, so far there is no law of divorce for Hindu spouses. 

Fortunately the British enacted an act namely, The Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. Otherwise, Hindu women living in this country would not get this right too. This act enacted in the British period allows Hindu married woman to claim separate residence as well as alimony from her husband on certain grounds. Under Section 2 of the said act, the grounds for claiming separate residence are:

(1) If he is suffering from any loathsome disease not contracted from her;

(2) If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;

(3) If he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;

(4) If he marries again;

(5) If he ceases to be a Hindu by conversion to another religion;

(6) If he keeps a concubine in the house or habitually resides with a concubine;

(7) For any other justifiable cause:

Provided that a Hindu married woman shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by change to another religion or fails without sufficient cause to comply with a decree of a competent Court for the restitution of conjugal rights.                                          

The word ‘unchaste’ however, is not defined in this Act by which the wife can be considered as an unchaste. It should be kept in mind that even if the wife gets the decree of separate residence and maintenance from the competent court, it does not mean that the marriage is dissolved.  That is, the marriage is in the same foot as before.

Importance of making a ‘Law of Divorce’ for Hindu community:

Dissolution of a marriage can never be a better solution to any problem in the progress of a sound mind society. Disagreements between husband and wife, is also the part of conjugal life. But in a situation where it is almost impossible for the couple to be together then what will be the solution?

In our society, violence against women is happening all the time. In spite of hundreds of persecutions by the husband, wife tolerates everything as it is very normal for her life. Taking every word of the husband as a gospel has become the virtue of the wife. It can be said that if anything like this happens, Hindu women may go to the competent court, seeking separate residence and alimony under the act of 1946. In this case, it is only possible to get the decree of separate residence but in vain there is no permanent solution.

As there is no divorce law, a Hindu woman cannot remarry with the other person even if she is entitled to separate residence. If the wife remarries after going for separate residence, it will be illegal. Although the Shastric law allows Hindu male to exercise polygamy as much as he wants but the Hindu female is strictly prohibited to have more than one husband at the same time.

As a result, the burden of the first marriage has to be carried out till the death of her husband. The Hindu Widows’ Remarriage Act, 1856 was passed in the British period which is still in force in Bangladesh. So there is no obstacle for a widow to remarry.

In a newly married couple, if husband is too torturous to sustain a marital relationship, what will happen to the wife? Is there any solution other than carrying this burden for the rest of her life?

On the other hand, if the wife gets a decree of separate residence and maintenance under the act of 1946, the husband has to pay the alimony of his wife for a long period of time. This also becomes an excessive pressure for the husband.

Can Hindu spouse seek divorce under the jurisdiction of family court? 

The family court was established by the act namely The Family Court Ordinance, 1985. There are five kinds of jurisdiction of the family court. These are: divorce, restitution of conjugal life, dower, maintenance and guardianship. It was not mentioned in that act that which religious community can seek remedy regarding family matters under this Act. As a matter of fact an important question arises as to whether the Hindus can file a suit in Family Court or not for seeking divorce. In Pachan Rissi das vs Khuku Rani Dasi and others, 1998, 50 DLR 47 case, Court decided the issue that-

Every citizen of our country irrespective of all religious beliefs could sue in the family court according to their respective religious provisions. But the religion in which divorce and dower is not recognized, these issues will not apply to them.

Reason of absence of a separate ‘Law of Divorce’ for Hindu women:

Despite the recommendations from the Law Commission and under-pressure of various Human Rights Organizations, the government has not taken any steps to reform the Hindu personal law. The explicit objection from the leader of Hindu community is the prime reason in this regard. Government is not willing to enact or reform because the community itself did not welcome it. Hindu personal law was originated from various customs, rituals and also from Shastric provisions. They strongly believe the idea of such reformation to be an attack upon their tradition and religious belief. Marriage is an inseparable bond according to the Hindu Dharma Shastra. Thus, they believe divorce, to be contradictory with the philosophy of Hinduism.

Conclusion:

At present, laws have been enacted on the basis of needs and demands of the society. Since the practice of divorce is followed in special cases of Mitakshara School, the divorce law can be enacted based on it. Indian reforms of Hindu personal law can also be an example in this regard. It is mandatory for the government to uphold the right of every citizen irrespective of gender race or religion. So the government must take necessary steps as soon as possible to amend and reform the Hindu personal law for ensuring lawful protection for Hindu women and for the betterment of the society.   

Writer: 

Avi Datta, Student, LL.B (2^nd year), Department of Law, University of Chittagong.  

Endnotes:

1. https://www.thedailystar.net/law-our-rights/hindu-womens-divorce-rights-3558.
2. https://nilsbangladesh.org/a-comparative-study-on-the-condition-of-marital-rights-of-women-of-the-hindu-community-in-bangladesh-and-india-in-hindu-law-perspective.
3. https://lawhelpbd.com/civil-law/personal-law/hindu-law/divorce-hindu-law-bangladesh.
4. Zakir Hossain khan, Hindu Law of Bangladesh, Dhaka Law Book Company, 2015.