HISTORICAL FOUNDATIONS OF DIVORCE IN INDIA
The Indian tradition of marriage has long been rooted in the idea of a sacrosanct and indissoluble union, a concept deeply embedded in the country’s religious and cultural customs. In the pre-colonial Hindu cultures, marriage between two people was seen as a sacrament and not a contract; divorce was very difficult, with few customary clauses that were followed in some form or another in some societies. In the same regard, Islamic jurisprudence acknowledged the event of divorce but controlled it by implementing strict procedural practices that favour reconciliation and fair outcomes. Other faiths, including Christianity and Zoroastrianism (also known as Parsi), practised different paradigms regarding doctrines, which often restricted the allowable reasons for severing marital bonds. Therefore, the pre-modern era in India was dominated by theological principles, traditional regulations, and patriarchal establishments, thus giving women little control over the process of marriage dissolution.[1]
The epoch of colonialism marked the beginning of legal intervention in marital life. Initially hesitant to interfere with the law of personal action, the British rule gradually introduced acts to meet the soaring demand for codified remedies. The Indian Divorce Act of 1869, which applied to Christians, was one of the first statutory instruments. Still, it was pervaded by the spirit of Victorian moralism and offered only a few reasons for divorce, often to the advantage of male litigants. Until the mid-twentieth century, Hindus had a lifelong commitment to marital indissolubility, until the 1955 Hindu Marriage Act provided a formal justification of divorce. Though the Act was groundbreaking in recognising a dissolution, it limited divorce to certain reasons such as cruelty, desertion, adultery, and conversion, thus imagining it as a special right in place of an inherent right. Similarly, the Special Marriage Act of 1954 provided a secular framework for interfaith marriages and divorce, albeit in a parallel, limited statutory design. The Muslim personal law continued to accept the existence of divorce, including talaq; however, the praxis often created issues of fairness and gender equity, which subsequently became matters of constitutional concern.
The legal image of divorce in this interregnum was characterised by inflexibility and limited availability. It was presented as a legal exemption from marital sanctity, which is available only in specific situations and following lengthy court hearings. This was a style that echoed the colonial and early post-independence culture, prioritising social stability and religious sensitivities over an individual’s needs. Divorce was not interpreted as an act of individual freedom but rather seen as a regulated legal solution, carefully delimited to avoid alleged abuse. Therefore, the institution of marriage was given priority instead of addressing the rights of people trapped in abusive or unsustainable marriages.[2]
Simultaneously, the evolution of family law in other nations around the globe has started shifting towards understanding the concept of divorce as an integral part of individual freedom. Other nations like the United States and the United Kingdom gradually broadened the grounds of divorce and leaned towards the teachings, such as the irretrievable breakdown of marriage. These comparative tendencies highlighted the growing awareness of personal independence and respect in the context of marital relations, thereby paving the way for constitutional discussion in India. However, the Indian legal system was still cautious in nature, reflecting the conflict between traditionalism and modernity, as well as the tension between collective and individual morality and rights.
Altogether, the historical underpinnings of divorce in India trace the path of the religiously controlled indissolubility to the reluctantly codified statutory solutions. Despite the introduction of divorce legislation in the mid-twentieth century being a major legal change, it was still embedded in a remedial paradigm rather than a rights-based paradigm. This chapter highlights the understanding of divorce as a statutory concession, first established as a colonial legacy and influenced by religious sensitivities, and demonstrates how this understanding led to the subsequent reformulation of the matter within a constitutional discourse of autonomy, equality, and dignity.
[1]Publisher, THE EVOLUTION OF DIVORCE LAWS IN INDIA: FROM GROUNDS TO PROCESS TO MODERN CHALLENGES » Lawful Legal, Lawful Legal (2024). https://lawfullegal.in/the-evolution-of-divorce-laws-in-india-from-grounds-to-process-to-modern-challenges/.
[2]Adv.B.S. Sharma, The evolution of divorce in India: From social taboo to legal reality, (2024). https://www.linkedin.com/pulse/evolution-divorce-india-from-social-taboo-legal-reality-sharma-alxic.