Table Of ContentHINDU DIVORCE
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Hindu Divorce
A Legal Anthropology
LIVIA HOLDEN
Socio-Legal Research Centre, Griffith Law School,
Griffith University, Australia
© Livia Holden 2008
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise without the prior permission of the publisher.
Livia Holden has asserted her right under the Copyright, Designs and Patents Act, 1988, to
be identified as the author of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing Company
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Croft Road 101 Cherry Street
Aldershot Burlington, VT 05401-4405
Hampshire GU11 3HR USA
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www.ashgate.com
British Library Cataloguing in Publication Data
Holden, Livia
Hindu divorce : a legal anthropology
1. Divorce (Hindu law) 2. Divorce - Religious aspects -
Hinduism 3. Divorce - Law and legislation - India
I. Title
346.5'40166
Library of Congress Cataloging-in-Publication Data
Holden, Livia.
Hindu divorce : a legal anthropology / by Livia Holden.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-7546-4960-1
1. Divorce (Hindu law) 2. Divorce--Law and legislation--India. I. Title.
KNS577.H65 2008
346.5401'66--dc22
2008015406
ISBN 978 0 7546 4960 1
Contents
Foreword by Professor Sylvia Vatuk vii
Author’s Preface xi
Note on Profits xiii
Acknowledgements xv
List of Abbreviations xix
List of Figures xxi
Note on Transliteration xxiii
1 Conceptualizing Hindu Divorce 1
2 Insights 27
3 Divorce Stories 69
4 Custom and Law 125
5 Gender Bias in Legal Debates 161
6 Conclusion 213
Appendix A: The Dharicha Law of the Princely State of Gwalior 221
Appendix B: Table of Cases 225
Bibliography 227
Index 253
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Foreword
Sylvia Vatuk
It is perhaps surprising that – notwithstanding a growing popular discourse
about an alleged precipitous rise in the Indian divorce rate, associated with
such contemporary social trends as increased urbanization, Westernization,
consumerism, globalization, women’s education and entry into the workforce – so
little of an empirical nature is actually known about Hindu divorce – and even
less about the remarriage of divorced Hindu women – either today or in the past.
The received wisdom on the subject has long been that, before 1955, when the
Hindu Marriage Act was passed, a marriage solemnized according to the sacred
rites prescribed by the ancient religious texts was indissoluble. Those rites were
understood to ritually transform a virgin into a married woman, her very body
becoming symbolically incorporated into that of her husband, a process that could
not be reversed. Whether or not the marriage was consummated, whether or not
the couple continued to live together or separated by mutual choice, by the wife
deserting her husband or being abandoned by him, by the husband taking another
wife or dying, insofar as the Hindu law was concerned, the union remained intact.
And for the woman to ever marry another man, even after her husband’s death,
was out of the question.
It is sometimes acknowledged in the literature that this description of Hindu
marriage was meant to apply only to the upper castes, particularly to the Brahmans,
and that among members of the lower castes – sudras and so-called ‘untouchables’
– as well as ‘tribal’ peoples, community councils often had the authority under
‘customary law’ to allow the dissolution of a marriage that had effectively broken
down and to give the divorced wife permission to marry another man. However,
few experts on Hindu religious law would accept the notion that, prior to the post-
Independence reforms of Hindu personal law, a high-caste woman might have
been able to do the same.
Livia Holden’s book invites a re-examination of this whole issue of Hindu
divorce, both in its past and its present manifestations. She takes a provocative
stance toward the question of whether and to what extent it is accurate to say that
the sacred texts of Hinduism make no allowance for the dissolution of marriage;
she suggests that one can find not only textual but also historical – as well as
contemporary – evidence of customary provisions for divorce and remarriage even
among Brahmans and other high-caste Hindus, notwithstanding the overwhelming
importance of prescriptions to the contrary in the Manusmriti and other Hindu
treatises dealing with marriage and women’s roles therein. She highlights the role of
viii Hindu Divorce
the British in giving legal priority to those texts that affirmed the indissolubility of
Hindu marriage, in the process of developing what they regarded as an authoritative
body of Anglo-Hindu personal law. This process took place in consultation with
men regarded as indigenous ‘legal experts’ – Brahman pandits – hired to assist
in the interpretation of the texts and their translation into English and to advise
British and British-trained Indian judges on how matrimonial cases brought to the
newly established courts by Hindu natives should be decided.
Dr Holden then goes on to discuss the question of the relationship between
statutory and customary law with respect to divorce in India today. She points
out that, despite the existence of the Hindu Marriage Act – which prescribes
monogamy for both sexes and provides for the dissolution of marriage either on
specified grounds or by mutual consent – it is a misconception to think that most
Hindu divorces take place through the judicial process in the civil courts. The act
specifically provides that where its provisions differ from the customs traditionally
followed by any local caste group or tribal community, the customary law shall
prevail. And given the widespread occurrence all over India of local customs
allowing for divorce and for the remarriage of the woman more easily and much
less expensively than by filing suit in a court of law, many more Hindu marriages
are, in actual practice, dissolved by the former procedures than by the latter.
The present work is based on 16 months of intensive anthropological fieldwork,
carried on in several phases over the course of 12 years in conjunction with her
anthropologist husband, Marius Holden. It focuses mainly on several closely
examined divorce cases that Dr Holden observed and documented with tape
recordings and film in a village in Madhya Pradesh – and its immediate vicinity
– that is already well-known to students of Indian kinship and marriage through
the writings of Jean-Luc Chambard. These chapters provide a richly documented
account of the well-structured, systematic customary procedures followed in
this region for dissolving an unhappy marriage – almost always at the initiative
of the woman, since the man is invariably understood to have the right to take
another wife whether divorced from the first or not. In the course of describing and
analyzing these cases and the role of the notaries who draw up the required divorce
and remarriage documents, Dr Holden gives abundant opportunity for the women
involved in these cases to tell their stories in their own words, something that
she argues is an imperative for someone in her position as a privileged European
scholar in a poor, rural Indian locale, who is committed, as she is, to the pursuit of
a truly collaborative feminist anthropology.
Dr Holden’s book is a very welcome addition to the growing body of literature
on gender and law in contemporary India. It is especially valuable in shedding a
detailed light on customary divorce and remarriage practices among Hindus, a
topic about which very little of a systematic nature has been written previously.
The author raises important questions about the degree to which laws – like
the Hindu Marriage Act – which were passed with the intention of improving
women’s lot, have actually enhanced women’s ability to gain control over their
lives when the reality of marriage does not live up to its expectations. She suggests
Foreword ix
that customary law may in fact provide more scope than statutory person law for
women to negotiate successfully and on their own terms the conditions of their
existence within – or outside of – marriage. Furthermore, the author’s findings
and the questions she raises in her examination of Indian case law on issues of
customary divorce – and of a few precedent setting cases in the Indian diaspora –
will be of significant value to legal scholars. It has been a pleasure and a privilege
to have been invited to write a foreword for this book and I expect that its intended
audience will find it equally rewarding to read it.
