Divorce in Hindu Law in Bangladesh
Divorce, also known as dissolution of marriage, is the termination of a marital union between a married couple under the rule of law of the particular country or state. In Bangladesh, there are different laws for different religion e.g. Dissolution of Muslim Marriage Act, 1939 for Muslims, The Divorce Act, 1869 for Christians. But, there is no codified law of divorce in Hindu personal law, unlike Muslim law or Christian law. Because, Hindus are not permitted to divorce their spouses, as Hindu marriage is considered a sacred relationship, a divine covenant and a sacrament.
According to Hinduism, marriage is meant for procreation and continuation of family lineage, not for sexual pleasure. It is an obligatory duty, part of Hindu dharma, which, once accepted, should be upheld by both the parties throughout their lives. Marriage is, therefore, a sacred bond, which cannot be dissolved through a divorce on some personal or selfish grounds. Thus, Hinduism places a very high value on marriage and does not approve of divorce.
Ancient Hindu law does not allow the dissolution of marriage, no matter how painful cohabitation it may be. Although, in some communities, divorce is allowed by custom, there are some grounds in which Hindu law allows separation or desertion. But it doesn’t have the effect of divorce or results like a dissolution of marriage tie completely. A Hindu married women can seek for separation and maintenance from her husband upon fulfilling some grounds that are mentioned in THE HINDU MARRIED WOMEN’S RIGHT TO SEPARATE RESIDENCE AND MAINTENANCE ACT, 1946.
The grounds for separation are:
- 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, 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 changing 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 Shastra does not allow divorce, The Hindu personal laws have been reformed and introduced the concept of divorce in many countries like India and Nepal. But, no significant reformation has been made in Bangladesh since the independence of 1971.
In India, The provision of “Divorce” has been dealt with under the Hindu Marriage Act, 1955 as being a true blue method whereby both the parties to the marriage, decide to break all the promises or vows taken at the time of marriage. There are some grounds that must be fulfilled to sought for divorce that re mentioned in section 13 of the said act.
The grounds are:
- Adultery: During the period of marriage, if either spouse maintains sexual relations with a person other than his or her lawfully wedded companion.
- Cruelty: After the marriage, subjecting the petitioner to cruelty.
- Desertion: If either one of the parties to the marriage deserts the other for a consistent span of at least two years, prior to the filing of the petition by the other party.
- Conversion to another religion by either party other than Hinduism
- Mental Disorder: If the spouse of the petitioner suffers from any unsoundness of mind, mental illness or disorder that cannot be cured, then the petitioner can file for divorce
- Virulent and Incurable Disease: in the form of leprosy.
- Venerable Disease in Communicable form.
- The renunciation of the world or entered any religious order.
Not heard being alive for a period of seven years or more.
According to the Act, both parties to a marriage may seek legal separation by mutual consent on the ground that “they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.” An aggrieved party in a divorce petition may seek permanent alimony and maintenance from the other party while filing a petition for divorce and if convinced, the court may grant gross sum on monthly or periodical basis for a term not exceeding the life of the applicant.
While Hindus who live in India have the Marriage and Divorce Act and similar legislation passed by their parliament, Bangladeshi Hindu women are suffering greatly to seek divorce or to demand compensation from their husbands.
Recently on 20 January 2015, the High court has issued a rule on the Government asking it to explain the reason ‘why a Hindu woman 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 Arpita 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. Also, article 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has focused on the same rights and responsibilities during marriage and at its dissolution for both men and women.
So separate and distinct legislation is highly required to be passed for the convenience of Hindu community in Bangladesh.
However, there is a noticeable practice of separation by the agreement of both party considering it as a divorce is prevailing in the absence of much-wanted legalisation of divorce of Hindus in Bangladesh. Nonetheless, it must be mentioned that this new way of separation though apparently seems and acts like a divorce but for real there are scope of both further challenge and new legal explanation. Therefore, it is wise to take proper legal advice for Hindu divorce or separation before you proceed.
Now it is high time to rethink the age-old rule in the free society. Reformation of Hindu law, especially in the matter of Divorce is a most needed one, thus the community members should come forward and take steps to reform the law. We know Reformation of personal law is nor new and not impossible there are a number of examples where the government reformed or added or barred age-old and outdated personal law.
The question is not if but when our Hindu community will initiate the process and give a better future for children.