Report No. 59
7.2. Position before the Act.-
Divorce was not totally unknown to the Hindus before the Hindu Marriage Act. Customary law, in many cases, recognised divorce. There were also provincial enactments in force in some provinces, which permitted divorce in specific circumstances1. In fact, even in the ancient texts, there is the often cited revolutionary verse in Parasara2, which runs as follows:-
"Another husband is ordained for the woman in five calamities, namely, when the husband is lost, is dead, has become a Sanyasin, is impotent or has falen".3-4
This verse did not find acceptance, in its literal sense, in judicial decisions which constituted the Anglo-Hindu Law, and courts refused to recognise divorce except on the basis of custom or specific legislation5-6. Banerjee7 regards this text of Parasara as relating to a very primitive stage of the community when multiplication was the main goal, or as evidence of a difference of opinion amongst the Hindu sages. There is no doubt that, in general, the view taken was that a marriage was regarded as indissoluble.
1. See infra, para. 7.3.
2. Parasara IV, 30.
3. The Sanskrit word is "Patita" (debased).
4. See also para. 1.19, supra.
5. Kudomeo v. Joteeratn, 1877 ILR 3 Cal 305.
6. Banerji Hindu Law of Marriages and Streedhana, pp. 128, 131.