Is divorce possible under Hindu law in Bangladesh? -Jannatul Ferdous Sayma
In Hinduism, marriage creates a bond between husband and wife for eternity. Marriage is one of the 10 major religious reforms (not reforms, rather ritual) mentioned in this religion. According to Hinduism, through marriage husbands and wives dedicate themselves to fulfilling their religious responsibilities and seeking spiritual benefits. Besides, according to the prevailing belief of this religion, if a person gives birth to a son, he will get heaven. Therefore, marriage is the only social and accepted way to have a son. According to this religion, even death is not capable of breaking the bond of marriage. As a result of holding this belief for ages, the absence of divorce can be noticed in Hinduism. Due to the importance of marriage in Hindu scriptures, this religion never approves of divorce. The two main schools of Hinduism are ‘Mitakshara’ and ‘Dayabhaga’. Among them, the school of ‘Mitakshara’ follows the custom of divorce in certain circumstances. However, that is not possible in Bangladesh. This is because Hindus in Bangladesh, West India and Assam generally follow the ‘Dayabhaga’ School of Hinduism. And in this school, there is no mention of any custom or rule regarding divorce.
Usually, in Hinduism, scriptural rules are followed in the absence of law. Since there is no practice of divorce in the Dayabhaga school, the Hindus of Bangladesh do not get any remedy in this regard even if they want to. Moreover, there is no codified law in Bangladesh that gives Hindus the right to divorce. Thus, the only way for the dissolution of marriage is the death of one of the parties of a marriage. Therefore, it is not possible for a wife to legally marry another person during her lifetime. If any Hindu converts into another religion, then it is possible to break the marriage bond. Since there is no provision for divorce once married, women do not have the right to remarry. On the other hand, Hindu men have the opportunity to have multiple marriages without the permission of their wives. The Government of India passed The Hindu Marriage Act, 1955 and an important part of this Act is section 13 where the provision of divorce has been added. That is, in Hindu-majority India, both husband and wife have the right to go to court and divorce. According to section 13 of the said Act, one can apply for divorce in court on the grounds of cruelty, adultery, conversion, insanity or incurable disease etc. In addition, Section 12 of the Act gives a wife the right to divorce based on her husband’s impotence, and according to section 13 (2) (3), if a Hindu wife attains the age of 15 years, she can reject the marriage. Thus, it is quite clear that the divorce law for Hindu women in Bangladesh needs to be reformed.
The government of Bangladesh should enact a divorce law for Hindus. Even Hindu-majority countries, such as Nepal, have specific divorce laws. So Hindus living in India and Nepal can seek divorce according to the laws of their respective countries. But no change has taken place in Bangladesh. However, the British government enacted the ‘Married Women Separate Housing and Maintenance Act’ 1948 for Hindu married women. Although divorce is not possible in our country under Hindu law, there is a provision for separation of husband and wife under certain conditions. And at that time, the husband is bound to support her. Under section 2 of this act the conditions under which a Hindu wife can be separated from her husband are: (1) If he is suffering from any loathsome disease not contracted from her; (2) If he is guilty of such cruelty towards her as renders it unsafe or undesirable for her to live with him; (3) If he is guilty of desertion, that is to say, of abandoning her without her consent or against her wish; (4) If he marries again; (5) If he ceases to be a Hindu by conversion to another religion; (6) If he keeps a concubine in the house or habitually resides with a concubine; (7) For any other justifiable cause.
However, this law also has many weaknesses, such as the fact that even if allowed to separate, a Hindu married woman cannot remarry. And such a system has made the whole society helpless. In today’s society laws are made according to the needs of the people.
In our country, the Muslim Marriage Dissolution Act, 1939 and the Divorce Act, 1889 are in force for the divorce of Muslims and Christians. But in the case of Hindus, there is no such system. Due to this, Hindu women are suffering the most. Therefore, it is necessary to change the Hindu personal law in this regard and the reforms in the Indian Hindu law can be taken as an example in this regard. The state must uphold the rights of every citizen irrespective of gender, race or religion. Therefore, the government should take necessary steps as soon as possible to amend and reform the Hindu personal law to ensure the legal protection of Hindu women and for the betterment of society.
The writer is a Student of Department of law, University of Chittagong.