Hinduism and Divorce from Dharmasastras to Statutory Law (In Two Volumes)

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From the Jacket

The book is a detailed study (in two volumes) of the traditional concept of Hindu marriage as a sacrament, analyzing the validity of the reasons for incorporating the provision of divorce in the Hindu Law. Relying on a variety of original and secondary source - the juridical literature of ancient texts like the Vedas, Dharmasutras and work of eminent scholars on the subject, it first examines the status of women under Sastric law: her exalted position in family and society and the constraints imposed upon her. Showing how the concept of divorce is based on recognizing marriage as a contract rather than a sacrament, this scholarly work discusses divorce laws in the global perspective and makes a detailed analysis of statutory divorce in Hindu Law, particularly the grounds for divorce and its statutory evolutions.

Dr. Kohli considers crucial concerns related to secularization of marriage, the Western culture’s influence on the social upheaval in Indian society, and whether divorce is the solution to effectively address the social evils against women. Maintaining that Hindu marriage is still a sacrament despite inclusion of divorce-related provisions in the Hindu Marriage Act, 1955, he recommends abolition of divorce laws for their disastrous results on the society or, at least, a review of these laws. Quoting from diverse original Sanskrit works and giving their English translations as well for a better understanding of the modern law, the book will be extremely useful for law and Dharmasastra scholars and students and those interested in a study of the divorce laws in the Indian context.

Dr. Kohli, a specialist of Hindu Law, is a PhD from Andhra University who has put in years of painstaking research studying the Hindu Law of marriage and divorce.

Preface

When I was a student of law, I was astonished to find that statutory Hindu Law was being taught without much reference to the Sastric law, I found a similar disregard to the Sastric Law in the legal profession where total emphasis was on the statutory law and the Sastric Law was as if non-existed.

However, I got a penetrating feeling that for a study of Modern Hindu Law and its proper understanding, a thorough knowledge of Sastric Law is essential because the modern law has merely amended and codified the Hindu Law which was hitherto embodied in the Sanskrit textbooks and not repealed it. This is in spite of a provision in the statutory Hindu Law ‘overriding effect of Act’, by which any text, rule or interpretation of Hindu Law or any custom or usage as part of that law shall cease to have effect with respect to any matter for which provision is made in this Act and any provision inconsistent with the provision contained in this Act shall cease to have effect.

As I actively involved myself as a social worker in the field of free legal counseling to settle matrimonial disputes outside the Court, I was greatly amazed to find that Sastric Law played a large role in settling the matrimonial disputes amicably as Hindus still have awe and respect for Sastric Law.

The most common but complex matrimonial dispute noticed was regarding the concept of equality which created disharmony in the matrimonial home leading to breaking-up of marriage. There I found that I could settle the disputes using more of Sastric Law than statutory law and thus I thought of taking up the topic of ‘divorce’ for my thesis for the degree of Doctor of Philosophy in Law with a clear mind that I would endeavour to explain Hindu Law from a Hindu point of view.

I made an earnest attempt to have a harmonious reading of the Sastric Law and modern Hindu Law on divorce wherein I laid stress on the status of Hindu woman as a daughter, wife and mother, the sanctity of Hindu marriage and customary and statutory divorce. To have a broader view I incorporated the evolution of divorce in other countries as well.

In this book, I have given the original Sanskrit texts wherever required so that the modern law is better understood. Attempt is made to give the English translation as far as possible so that there may not be any inconvenience for the reader who is not well-versed in Sanskrit.

To illustrate the point further, I have cited leading cases wherever needed. I have also made objective comments which are more soul-searching with a view to explaining the Hindu perspective more vividly.

I have kept in view the law students, the advocates, the legislature and the judiciary and conveyed to them the concern of the society. My role is very modest and I hope that this research work shall be well received by all.