Marriage is among the oldest institutions of mankind – it is a subject of poetry, it is a religion, it is a rite. In India it is interwoven with social identity. It was planned decades before by families; whole communities organize around it. And yet, when we remove the ritualism and consider what the law actually does to women in marriage, a more disturbing scene is presented. Marriage in India is not just a union between two people through a feminist legal approach, marriage is an institution; historically it has organized, enforced and authorized the subordination of women. The law is not only a regulator of marriage but a producer of it, which tends to reproduce gender hierarchies behind a well-polished facade of impartiality. This essay poses a straightforward question: does marriage, as it is legally constructed in India, respect equality – or does it reproduce structural inequality? Based on feminist theory, statutory analysis and judicial evolution, the response requires sincere participation.
Gendered Institution Of Marriage
Facially, the legal framework of marital laws in India is neutral. The language of consent, rights and mutual obligation is that of the Hindu Marriage Act, 1955 (HMA), the Special Marriage Act, 1954 (SMA) and the personal laws of Muslims, Christians, Parsis, and so on. However, the problem of surface neutrality masking the patriarchal undertones has long been debated by feminist scholars such as Flavia Agnes and Ratna Kapur. The marriage law of India was to a considerable extent designed in colonial times – the Hindu Widow Remarriage Act of 1856, to name but one, informs us more about what women were supposed to be than it does about what they were allowed to do. The practices of pre-independence placed the institution of marriage as a place of male dominance with men as the economic providers and heads of the household and women as obedient wives and mothers with their identities lost to the marital unit.
Such structural gendering was not abolished at independence. It continued, evolved and was ingrained in the post-colonial laws. According to HMA Section 5, a marriage needs to be mutually agreed upon- however, the implementation of the agreement has always put women in a disadvantaged position. In a culture in which arranged marriages are still the rule, and family and community pressure can be overwhelming, consent is not as free as it is for most women. In The Second Sex (1949), Simone de Beauvoir stated that marriage is not a contract freely chosen by equals: it is a social institution that normalizes the state of dependence and inferiority of women. So many decades later her observation still reverberates in the Indian context.
The Issue of Consent: Continuity versus Entry
The difference between consent to enter marriage and consent within marriage is one of the most significant and least explored in feminist legal theory. In both HMA Section 5(ii) and SMA Section 4, Indian law requires the validity of marriage to have a free consent. However, after the wedding ceremonies have been fulfilled, the legal element of continuing consent is mostly lost. The body of the wife, her labour, her presence in the marital home, all these become assumed and not negotiated.
No better example of this can be brought out than the marital rape exception. Exception 2 of Section 375 of Indian Penal Code, 1860 formerly shielded a husband against prosecution in the event of raping his wife as long as she was above a certain minimum age. This is not an Indian invention, but a derivative of 19th-century English common law, namely, the reasoning in R v. Clarence (1888), which regarded marriage as a bestowing of eternal sexual consent to the husband. The sexual access of the husband at the altar had been accepted by the wife under this world view, and nothing thereafter could reverse that acceptance.
Such feminist jurists as Archana Parashar have claimed that not only is such an exception morally reprehensible; it is constitutionally unsustainable. It directly challenges the core of Article 21 safeguarding of life and personal liberty, which has been consistently interpreted by the Supreme Court to encompass bodily integrity and dignity. In 2013, the Justice Verma Committee that was formed in the aftermath of Nirbhaya gang rape specifically advised the elimination of the marital rape exception. This recommendation was disregarded. The exception survived, due to parliamentary inertia, a polite way of saying political unwillingness to upset deeply held social assumptions regarding marriage and the male right to it.
In the case of Independent Thought v. Union of India (2017), the exception was declared unconstitutional since it applied to wives below the age of 18, and child marriage could not be used as an excuse to sexually abuse girls. But it did not protect adult women at all. Even a wife who is above 18 cannot be raped by her husband under the Indian criminal law. That is no technicality, but a declaration of the kind of women known to be in marriage. The statement is that theyfree only to the extent that their husband wants.
Legal structures which are promoted as means to a stable marriage, in reality tend to be used as means of control over women. Take the case of HMA Section 9 that offers restitution of conjugal rights. According to this provision a court may order one spouse to return should he or she withdraw out of the company of the other without any reasonable cause. In a 1984 case of Harvinder Kaur v. Harmander Singh, the Delhi High Court argued that this provision was constitutional, since it did not contravene Article 21. The court considered it as a non-partisan solution that was equally accessible to both spouses. In a society wherein women are economically non-sufficient, where living out of the house means losing access to shelter, income, and children, where social stigma is disproportionately on the woman who has abandoned her family, restitution of conjugal rights is not a non-partisan solution. It is a process that can be employed to force a wife to resume a home that can be hazardous or demeaning.
The challenges increase at the exit point. A divorce under Indian personal laws is difficult to get unless a woman can demonstrate grounds in the form of cruelty, desertion, adultery, and before a court that is slow, cynical, and socially conservative. The burdens of evidence are great, and most severely felt by the women who have been secluded by years of domesticity. There are maintenance provisions under the CrPC Section 125 and HMA Section 25, yet the means of obtaining alimony as was seen in cases such as Vinny Paramvir Parmar v. Paramvir Parmar (2011) demonstrates judicial inconsistency as well as an implicit belief that the financial needs of women are secondary or temporal. Women who manage to win a divorce process still find themselves without proper houses, financial stability as well as appreciation of years of unpaid housework.
In her book, The Illusion of Equality (1991), Martha Fineman proposed that the language of stability and family preservation within the family law often obscures the preservation of the male privilege. That perception is true here. The law is not safeguarding the institution of marriage in an abstract sense when it makes it hard to exit, when it forces cohabitation, when it does not acknowledge the economic worth of domestic labor. It is safeguarding the terms under which women are mined in terms of labour, care and obedience.
Judicial Shifts: Away to an Individual-Centred Jurisprudence
It would be wrong and inappropriate to say that Indian courts have been totally complicit in these structures. The judicial changes have been truly significant and must be recognized. A constitutional bench of nine judges in Justice K.S. Puttaswamy v. Union of India (2017) broadly interpreted the right to privacy under Article 21 to mean decisional autonomy when it comes to intimate relations. Though mostly regarding the Aadhaar scheme, the language of the judgment directly criticizes the basis of marital law, i.e., the notion that by getting married, one gives up the right to make a decision concerning their body and life.
In the case of Joseph Shine v. Union of India (2018), the Supreme Court invalidated Section 497 of the IPC, the law of adultery, on the basis that it objectified women as property of their husbands: as objects that cannot be subjected to interference on the part of other men, but as independent individuals who can make their own decisions. The wording used by the court was sharp: adultery statutes, the court declared, treat a woman like a chattel. In Shayara Bani v. Union of India (2017), the court struck down triple talaq, noting that unilateral divorce in the Muslim personal law, which happened immediately, was against the dignity of Muslims and equality. In more recent years, the 2024 remarks of the Delhi High Court in RIT Foundation v. Union of India rekindled calls to completely criminalize marital rape, indicating an apparent judicial consensus that the exception is untenable constitutionally.
These decisions are a significant paradigm shift preferring the institution-centric mode of thinking (where the survival of a marriage is the most important thing) to the individual-centric mode of thinking (where rights and dignity of the people in a marriage is the most important issue). This transformation reiterates the point by Catharine MacKinnon who argues that formal equality, according to which men and women are treated equally before the law, is not enough when the power structure is grossly unequal. Substantive equality is what is required: laws which target such power imbalances.
Reframing Marriage: Hierarchy to Partnership
The critique of marriage by feminists is often equated to anti-marriage and anti-family. It is neither. The point the feminist scholars are putting is not that marriage needs to be abolished, but rather it needs to be reformed. It is aimed at a form of marriage founded on equal partnership and not hierarchy; on ongoing, revocable agreement, as opposed to a single, non-renewable exchange; on common agency, as opposed to the economic and social superiority of one partner over the other.
The actual reforms can be provided and made feasible. The most urgent is to criminalize marital rape, which 18 out of 28 surveyed countries had already done by 2023 when the UN Women report was released. The suffering of women, who are caught in bad marriages due to evidentiary hurdles would be minimized by introduction of no-fault divorce as default option, instead of proving certain grounds. The material dependency that exposes women during marriage and after divorce would be resolved by making domestic labour economically recognised, by property rights, via pension entitlements or pilots of universal basic income as caregivers. Sweden has a considerate blueprint in terms of its consent-based model that does not tie marital stability to coercion internationally.
Behind all this has to be a change in the philosophy of law – not from the positivist neutrality that H.L.A. Hart in The Concept of Law (1961) assumed the law, which considers the law as it is written and does not enquire whose interests it serves, but towards substantive equality under Articles 14 and 15 of the Indian Constitution. According to the argument of the feminist legal theorist Ngaire Naffine, the field should be open to questioning the dominance of legal doctrines contained in it even where such dominance is not explicitly expressed.
Conclusion
Marriage in India is not a non-partisan legal institution. It is a structurally and historically gendered one, constructed on assumptions about the nature, role and value of women, which the Constitution should supposedly renounce. Feminist criticism does not undermine marriage – it makes it responsible. It demands that an institution which prides itself on love and partnership must in fact be able to provide equality, not just to talk about it in ceremonial terms. Judicial developments of the last few decades are no less real or significant, but still, legislative loopholes, most notably, the marital rape exception, remind women that their independence has boundaries the moment they get married. Reform is to make marriage a place of free choice and respect. Until this change has taken place, the institution will not have fulfilled its promise of justice, a hollow ringing of the constitutional values which it purports to celebrate.
THIS ARTICLE IS WRITTEN BY ANUSHKA JHA A FIRST YEAR STUDENT OF CHANAKYA NATIONAL LAW UNIVERSITY.
REFERENCE :
Harvinder Kaur v. Harmander Singh Choudhry, AIR 1984 Delhi 66
Hindu Marriage Act, 1955, § section number Example: Hindu Marriage Act, 1955, § 13 (India). (Section on divorce).
Vinny Paramvir Parmar v. Paramvir Parmar, (2011) 13 SCC 112.
Independent Thought v. Union of India & Anr., (2017) 10 SCC 800
