Divorce in India

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The Law

All major religions have their own laws which govern divorces within their own community, and separate regulations exist regarding divorce in interfaith marriages.

Hindus, including Buddhists, Sikhs and Jains, are governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939, which provides the grounds on which women can obtain a divorce, and the uncodified civil law. Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956 (Kapur and Cossman 101).

Other community specific legislation includes the Native Converts' Marriage Dissolution Act, 1866 that allows a Hindu to appeal for a divorce if a spouse converts to Christianity (Virdi 36-37).

Grounds for Divorce

In most Western nations, there are approximately 16 distinct reasons for which divorces are granted. In India, however, only five main reasons are generally accepted as sufficient grounds for divorce (Choudhary 90).

Adultery. While no formal definition of adultery exists, it does have "a fairly established meaning in matrimonial law" (Diwan 171), namely "the voluntary sexual intercourse of a married man or woman with a person other than the offender's wife or husband" (Choudhary 91). While the law considers it valid grounds for either sex, adulterous women are "judged more harshly" than men (Kapur and Cossman 102). The various religious regulations a e not unanimous on this issue. The law regarding Hindus allows divorce to be granted on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty (Kapur and Cossman 102-4). A recent Bombay High Court decision "recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage," striking down a section of the law that allowed for an unconstitutional distinction between the sexes (Raiker-Mhatre 1).

Desertion. The three main components of desertion are the "disruption of cohabitation, absence of just or reasonable cause and their combination throughout three years" before the abandoned spouse may petition for a divorce (Virdi 71). There also must be an obvious intent on the part of the offending spouse to remain permanently apart from the other. This statute also applies to cases in which a spouse has been heard from for at least seven years (Choudhary 91).

Cruelty. As with adultery, "the definition of the type of behavior that constitutes cruelty varies according to the gender of the petitioner" of the divorce. "Despite the fact that cruelty is often equally available to husbands and wives, the way in which the law is interpreted and applied suggests that women and men are evaluated by rather different standards" (Kapur and Cossman 105). This category includes both physical and mental abuse and neglect (Choudhary 91). A court decision made in early May 1997 made cruelty sufficient grounds for a Christian woman to obtain a; previously, the law required both adultery and cruelty to be proven. The national Indian Christian community seems to have embraced this judgment (Raikar-Mhatre 1-2.

Impotency. This refers to the physical inability of the couple to consummate the marriage (Choudhary 91) or the refusal by one spouse to do so (Diwan 136). Some cases have established that sterility can be construed to mean non-consummation if the other partner is not aware of the condition before the marriage (Diwan 139).

Chronic Disease. Both mental and physical illnesses are included in this category, as well as sexually transmitted diseases (Choudhary 92). Not all religions recognize identical diseases as grounds for divorce. Christians and Parsis do not allow divorce for a sexually transmitted disease or leprosy while the other communities do (Diwan 204-5).

Consequences of Divorce

Economic. There is great disparity between the economic ramifications of divorce between men and women. Men remain relatively unaffected while women, especially those with children, have difficulty "providing food, clothing and shelter for themselves and their children." The government in urban areas usually provides some form of public assistance to single mothers, but this service is not fully taken advantage of because most do not know of its existence (Amato 210). Often a woman is not able to rely on her family for support because many parents "feel they have discharged their obligations to a daughter by arranging her marriage and providing a dowry." Dowries are not returned after a divorce. Also, due to the social stigma of divorce, women find it difficult to remarry and usually attempt to establish an independent household (Amato 211).

Social. While India feels that one should have the right to divorce, it is still a highly stigmatizing action. Women are looked upon more harshly than men in this regard. There continue to be segments of Indian society that feel divorce is never an option, regardless of how abusive or adulterous the husband may be which adds to the greater disapproval for women. A divorced woman often will return to her family, but may not be wholeheartedly welcomed. She puts, especially if she has children, an economic burden on her family and is often given lowly household tasks to perform. There is also the risk that a divorced woman's presence would ward off possible marriages for other daughters within the household. Unavoidably, the overall status of the family and household are lowered by having a divorcee living with amongst them. A woman's class and caste are a major factor in her acceptance back into society. Women from higher classes tend to have an easier time than middle or lower class women in returning to the social order after a divorce. An exception to this model is the extreme bottom of the society who have experienced little rebuff from peers after a divorce. This results from their already atypical status in society (Amato 212-4).

Divorce in The God of Small Things

In Arundhati Roy's The God of Small Things, the marriage and quick divorce of Ammu has devastating consequences, reflecting the social and cultural stigma of divorce in India:

"...Ammu left her husband and returned, unwelcomed, to her parents in Ayemenem. To everything she had fled from only a few years ago. Excpet now she had two children. And no more dreams" (42).

"Baby Kochamma resented Ammu, because she saw her quarreling with a fate that she, Baby Kochamma herself, felt she had graciously accepted. The fate of the wretched Man-less woman" (44-5).

"...the commonly held view that a married daughter had no position in her parents' home. As for a divorced daughteræaccording to Baby Kochamma, she had no position anywhere at all" (45).

Chacko "said that Ammu and Estha and Rahel were millstones around his neck" (82).

"Die-vorced?" His voice rose in such a high register that it cracked on the question mark. He even pronounced the word as though it was a form of death" (124).

"She was [Estha and Rahel's] Ammu and their Baba and she had loved them Double" (155).

Works Cited

Amato, P. R. "The Impact of Divorce on Men and Women in India and The United States." Journal of Comparative Family Studies 25 (1994): 207-221.

Choudhary, J. N. Divorce in Indian Society: A Sociological Study of Marriage Disruption and Role Adjustment. Jaipur, India: Printwell Publishers, 1988.

Diwan, Paras. Family Law: Law of Marriage and Divorce in India. New Delhi, India: Sterling Publishers Private Limited, 1983.

Kapur, Ratna, and Brenda Cossman. Subversive Sites: Feminist Engagements with Law in India. New Delhi, India: Sage Publications, 1996.

Raikar-Mhatre, Sumedha. "Divorce & Christian Marriages in India." The Indian Express May 20, 1997. Http://www.goacom.com/news/news97/may/marriages.html (November 5, 1997).

Roy, Arundhati. The God of Small Things. New York: Random House, 1997.

Virdi, P. K. The Grounds for Divorce in Hindu and English Law: A Study in Comparative Law. Delhi, India: Motilal Banarsidass, 1972.

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Author: Michael Fried, Fall 1997 (mfrie03@emory.edu)

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