Advocate Avinandan Dhar
Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state.
Hindu marriage is treated as a Sacrament or a Sanskara. Hindu marriage is holy union for performance of religious duties. (32 Bom. 81). According to Hindu Shastriya Law, the marriage is more religious than secular institution.
A Hindu marriage is complete as soon as the Saptapadi Gamana or seven steps or seven vows around the sacred are accomplished. According to Hindu beliefs, marriages are made in heaven and once the marriage is solemnized, the two souls are joined for seven lifetimes. So a Hindu marriage according Shastra is indissoluble. The personal law of Hindus in Bangladesh guided by the Bengal School i.e., Dayabagha propounded by the Jimutbahana, which does not permit dissolution of Hindu marriage.
In Bangladesh, there are different divorce laws for different religion e.g. the Divorce Act, 1869 for Christians, the Dissolution of Muslim Marriage Act, 1939 for Muslims. But, there is no statutory law of divorce for Hindus unlike Muslim law or Christian law. So dissolution of marriage under Shastriya Hindu law is not permitted except in certain communities where it is permitted by customs. (28 Cal. 75) But a Hindu married women can seek separate residence and maintenance under the Hindu Married Womens Right to Separate Residence And Maintenance Act, 1946. Section 2 of this Act provides that, notwithstanding any custom or law to the contrary a Hindu married woman shall be entitled to separate residence and maintenance from her husband on one or more of the following grounds, namely,
- if he is suffering from any loathsome disease not contracted from her;
- if he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him;
- if he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish;
- if he marries again ;
- if he ceases to be a Hindu by conversion to another religion;
- if he keeps a concubine in the house or habitually resides with a concubine;
- 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.
Although The Hindu Shastriya law does not permit divorce, countries like India and Nepal reformed and introduced the concept of divorce. Divorce of Hindu marriage in India is guided by the Hindu Marriage Act, 1955. In Nepal a new Civil Code was introduced in August 2018 which deals with the divorce matter. But, marriage law in Bangladesh has not been reformed unlike India and Nepal. Though there is ‘the Hindu Marriage Registration Act, 2012’ which provides provisions for registration of Hindu marriage optionally, but there is no such divorce law of Hindus in our country.
In Bangladesh the Hindu women are suffering greatly to seek divorce or to demand compensation from husbands. For a long time different NGOs, civil society, women’s rights groups are creating pressure upon the Government to enact the law of divorce for Hindu women. Recently on 20 January, 2015 the High court has issued a rule on the Government asking it to explain the reason why a Hindu women would not be allowed to divorce her husband as there exists no right to do so in the Hindu personal laws. Following a writ petition filed by Bangladesh Human Rights Foundation’s chief executive Alena Khan and aggrieved Aapita Das for enforcement of her fundamental rights. The petitioner mentioned that the Hindu laws on marriage and divorce are inconsistent with the provision of the citizen’s fundamental rights which are guaranteed in the articles 26(1), 27, 28, 31 and 32 of the constitution of Bangladesh as well articles 3, 5, 7 and 16(1) of the Universal Declaration of Human Rights.[1]
According to the Convention on the Elimination of All Forms of Discrimination against Women, the State Parties to the International Covenants on Human Rights have the obligation to ensure the equal rights of men and women where the State Parties can take necessary steps depending on Article 11 of the Convention. On the other hand, article 16(1) of the Convention has focused on the same rights and responsibilities during marriage and at its dissolution for both men and women. So the Government should enact a complete law with necessary divorce provisions to establish the Bangladeshi Hindu women’s divorce rights.[2]
A Hindu woman has no right to divorce her husband even if she faces violence and deprivation, and her husband takes many wives. This matter even caused sufferings to men as well. Now it is a crying need to reform the personal law of Hindu and introduce the system of divorce among Hindus. Like India and Nepal divorce law of Hindu in Bangladesh should be passed by the Parliament and Government should take necessary steps to cope with the situation. The society is changing day by day and law as well. Law cannot be stagnant, it must be reformed, changed with the needs of the issues of the society.
[1](https://www.thedailystar.net/law-our-rights/hindu-womens-divorce-rights-3558) Last accessed on 22.9.2019.
[2] Ibid.
The writer is Avinandan Dhar, Advocate, Judges Court, Chattogram…
