According to traditionalists, divorce was unknown in Hindu Law. Even today divorce is not a socially accepted norm among many sections.
“We can take judicial notice of the fact that even today considerable sections of the Hindu society look with disfavor on the idea of dissolving a marriage.”
Polygamy, without the right of divorce, caused, in many cases, tremendous hardship.
Contrary to the general notion regarding the indissolubility of Hindu marriages, a large section of Hindus among the lower castes have traditionally practiced divorce. These customary forms of divorce were recognized, both socially and judicially. The usual customary forms are:
(1) By mutual consent;
(2) Unilaterally—at the pleasure of the husband or by the abandonment of the wife;
(3) By deed of divorce (Char—chitti);
(1) By Mutual Consent:
The custom of obtaining divorce by mutual consent is prevalent among certain castes in Bombay, Madras, Mysore and Kerala. In Madhya Pradesh it has been held that divorce by mutual consent is a valid custom among the Patwas of that State.
A customary form of divorce by agreement (chuttam-chutta) amongst the Barai Chaurasiyas of Uttar Pradesh has been declared valid by the Allahabad High Court. These are only a few illustrations to indicate the existence of divorce by mutual consent.
(2) Unilateral Divorce:
According to the custom prevailing in Manipur (Khaniaba), it has been stated that a husband can dissolve the marriage without any reason or at his pleasure.
Among the Rajpur Gujaratis in Khandesh, and in the Pakhali Community marriage is dissolved if the husband abandons or deserts the wife.
Among the Vaishyas of Gorakhpur in Uttar Pradesh a husband may abandon or desert his wife, and dissolution takes place even without reference to the caste tribunal.
(3) Divorce by Deed:
This form is prevalent among certain castes in South India, also in Himachal Pradesh and the Jat community. Recently the Supreme Court has upheld a deed executed by the husband divorcing his wife.
Usually customary divorces are through the intervention of the traditional Panchayats of caste tribunals. Therefore, in States where this has not been customary, the courts have not permitted Panchayats to take upon themselves the right to dissolve a marriage. Once the custom is proved, however, the courts will not interfere.
The courts have exercised a lot of judicial scrutiny and discretion in upholding or rejecting such customary divorce practices. In doing so they have applied the strict test for the validity of such customs.
When the existence of a custom was not proved, or where the custom could be regarded as running counter to the spirit of Hindu Law, or was against public policy or morality, courts have declared such customary forms of divorce as invalid.
Under customary law there is no waiting period after divorce to remarry. But if divorce is obtained under the Hindu Marriage Act, then either party to the marriage can lawfully remarry only after a lapse of one year after the decree of divorce (Sec. 15).
Retention of customary forms of divorce under the Hindu Marriage Act is advantageous because this process of dissolving the marriage saves time and money in litigations. The only difficulty that may arise is if the divorce according to customary law is brought at some stage to the notice of the court and the latter decrees that particular form of divorce to be against public policy or morality. If one or both parties have remarried, such a marriage will be void and the status of the children will be affected.
To minimize this, it has been suggested that the Ministry of Law should prepare an exhaustive record of customs relating to divorce found in different States and set up a panel of socio-legal experts to determine if any of these customs are invalid. Copies of the record should be made freely and easily available to the people and the Panchayats.
With the enactment of the Hindu Marriage Act of 1955, divorce became a part of the law governing all Hindus. The ground for this had been already prepared by the passing of the Hindu Women’s Right to Separate Residence and Maintenance Act in 1946, which inter alia permitted the wife to separate from her husband on the ground that he had married again. Following this, some of the States took the initiative and as with monogamy, legislated to permit divorce for Hindus.