UNEQUAL VOWS: Gender Bias In Marriage and Divorce Laws

In India, marriage and divorce laws have historically played a key role in regulating family life, mirroring societal norms, religious beliefs, and cultural values. However, these laws have often been influenced by patriarchal systems that put women at a disadvantage, perpetuating gender inequality in both marriage and divorce. Traditionally, legal systems in different regions have treated men and women unequally regarding marriage, divorce, alimony, child custody, and property division. These disparities have resulted in systemic discrimination, where women frequently face economic hardships, social stigma, and legal hurdles in securing their rights.[1]

Even with attempts to promote gender equality through legal reforms and court interventions, notable biases remain in both the laws themselves and how they are interpreted. The idea of ‘unequal vows’ emphasizes that marriage laws create different expectations, responsibilities, and consequences for men and women, especially in situations where traditional gender roles still affect legal and judicial decisions.

What are Unequal Vows?

Marriage is often seen as an equal partnership, but many laws still favor men, leading to significant gender disparities. For instance, in India, the legal marriage age is 18 for women and 21 for men, reflecting outdated beliefs that women should marry younger. This limits women’s choices and autonomy. Divorce laws also illustrate this imbalance, as men can often end a marriage more easily than women, who face stricter requirements.[2] Financially, women struggle post-divorce due to inadequate alimony and unfair property division, often leaving them vulnerable. Custody battles typically favor mothers, reinforcing stereotypes about fathers. Additionally, the marital rape exception in Indian law implies that marriage means lifelong consent, a notion that needs to change. A Uniform Civil Code could help by establishing gender-neutral laws for marriage, divorce, and custody, ensuring equal treatment for everyone.

Marriage and Divorce in Ancient India

Hindu marriage was traditionally considered a sacrament rather than a contract, making divorce almost impossible under orthodox legal traditions. The Dharmashastra[3] texts prescribed lifelong marital commitment, with separation being allowed only in extreme cases such as prolonged abandonment, impotence, or religious renunciation. Women faced severe restrictions, with widow remarriage being highly stigmatized and polygamy being a common practice among men. Child marriage was also prevalent, further limiting a woman’s agency in choosing her spouse. While legal separation was rare, the caste-based and patriarchal structures dictated the nature of marital relationships, reinforcing gender inequities.

Gender Bias in Marriage Laws

Marriage laws worldwide frequently mirror outdated patriarchal values, positioning men as dominant and women as subordinate. For example, in India, the legal marriage age is 21 for men and 18 for women, which reinforces stereotypes regarding women’s maturity. Additionally, laws like the Indian Muslim Personal Law[4] allow men to easily initiate divorce, while women face significant hurdles. Marital rape is still not acknowledged in many legal systems, as outdated beliefs imply that being married means giving ongoing consent.

Although some countries, such as Sweden and Canada, have implemented gender-neutral laws that encourage equal partnerships and shared responsibilities, many legal systems still maintain gender biases. Progress has been made, such as the Hindu Succession (Amendment) Act of 2005[5], which grants daughters equal rights to property, but enforcement remains a challenge. To achieve true gender equality in marriage, ongoing legal reforms and cultural changes are essential to support the autonomy and financial independence of all individuals.

Gender Bias in Divorce Laws

Divorce laws globally often reveal entrenched gender biases that put women at a disadvantage. Traditionally, these laws have favored male authority, allowing men to initiate divorce more easily while imposing significant obstacles for women. For example, under Islamic personal law, men can divorce their wives simply by saying talaq, whereas women usually need to seek court approval and demonstrate specific reasons for divorce. This inequality is also apparent in financial settlements, where alimony laws generally assume that men are the main earners, reinforcing outdated notions of women’s economic dependence.

Child custody laws highlight these biases, typically favoring mothers as the primary caregivers based on the “tender years” doctrine. Although some areas are shifting towards shared parenting arrangements, many fathers still struggle to obtain custody. Moreover, divorced women often deal with social stigma that can result in economic disadvantages, while men usually encounter fewer negative consequences.[6]

Unequal Age of Marriage and Its Implications

A significant gender inequality in marriage laws is the difference in the legal marriage age. In India, the Prohibition of Child Marriage Act, 2006, establishes the minimum age as 18 for women and 21 for men, which reinforces outdated views that women should marry at a younger age. This difference restricts women’s ability to decide when they want to marry. Recent conversations, including the Supreme Court’s acknowledgment of the need for gender-neutral family laws, have led to calls for a uniform marriage age for both men and women. The proposed amendment to raise the legal age for women to 21 is a positive step, but it faces resistance from religious groups.[7]

Discriminatory divorce laws continue to exist, often making it more difficult for women. For instance, under Muslim personal law, men used to be able to divorce their wives with relative ease, while women had to navigate complicated legal challenges. Financial inequalities further complicate matters, as many women receive inadequate support post-divorce. Custody laws often favor mothers, reinforcing stereotypes about fathers as secondary caregivers.

Additionally, the marital rape exception in Indian law denies married women their bodily autonomy. A Uniform Civil Code (UCC) could help establish gender-neutral laws for marriage, divorce, and inheritance, promoting equality and justice for all individuals.

Provision that supports Inequality in Marriages and Divorce in terms of Vows

Provisions and rituals that support gender bias in marriage and divorce often place men in positions of power while leaving women vulnerable. A prominent example is the practice of “triple talaq” in Islamic law[8], which allowed men to divorce their wives instantly by saying “talaq” three times. This practice not only stripped women of their rights but also left them without any legal recourse. In 2017, the Indian Supreme Court declared triple talaq unconstitutional, recognizing it as a violation of women’s fundamental rights and highlighting the need for gender equality in matrimonial laws.

The landmark case of Shayara Bano v. Union of India (2017)[9] is a crucial legal milestone that tackled the issue of triple talaq, a practice that enabled Muslim men to divorce their wives unilaterally. The Supreme Court declared this practice unconstitutional, stating that it violated fundamental rights outlined in Articles 14 (equality before the law) and 15 (prohibition of discrimination). This ruling was a major advancement for gender justice, highlighting the necessity for reforms in personal laws that continue to promote gender discrimination.

Likewise, other legal provisions contribute to this inequality. For example, under some personal laws, women encounter more complicated legal challenges when trying to obtain alimony or maintenance, while men usually have a simpler process for getting a divorce. The Hindu Marriage Act also shows gender bias by not including fully gender-neutral grounds for divorce, which can put women at a disadvantage. These outdated practices highlight the pressing need for thorough legal reforms, like a Uniform Civil Code, to guarantee that everyone, regardless of gender, is treated equally and fairly in marriage and divorce matters.

The Hindu Marriage Act, established in 1955, has faced criticism for its gender bias, especially in its divorce provisions. Although the Act outlines reasons for divorce, it lacks fully gender-neutral criteria, which can put women at a disadvantage. For example, women often have to meet stricter requirements when trying to obtain a divorce for reasons like cruelty or adultery, while men typically have an easier process to initiate divorce. This imbalance can result in lengthy legal struggles for women, who may find it challenging to prove the necessary grounds for divorce.

Research Gap: While existing research offers important insights into gender inequality in Indian marriage and divorce laws, there are still several areas that need further exploration. For one, there is a lack of analysis that looks at how factors like caste, class, and religion interact with gender to shape women’s experiences in marriage. Additionally, the effects of recent legal changes, such as the ban on triple talaq, haven’t been fully studied in terms of their real-world impact on women’s rights. There is also a shortage of comparative studies with other countries that face similar social issues, which limits our understanding of effective solutions. Finally, the influence of public opinion and awareness about these laws, as well as the role of technology in improving women’s access to legal resources, has not been adequately examined. Filling these gaps could greatly enhance the conversation around gender equality in Indian family law.

In conclusion, the Hindu Marriage Act’s[10] failure to fully incorporate gender-neutral grounds for divorce highlights significant disparities that disadvantage women. The Act creates inequalities in marriage and legal processes by placing greater demands on women to prove their cases and by upholding traditional gender roles. To achieve genuine gender equality, it is essential to amend the Act to ensure that divorce grounds are fair and applicable to both men and women. These changes would empower women by granting them the rights and independence they deserve, while also fostering a more equitable legal system for everyone involved.

[1] P. Dommaraju, Divorce and Separation in India, 42 Population & Dev. Rev. 195 (2016).

[2] P.P. Saxena, Matrimonial Laws and Gender Justice, 45 J. Indian L. Inst. 335 (2003).

[3] M.N. Dutt, The Dharma Shastra (Ripol Klassik 1978).

[4] R. Patel, Indian Muslim Women, Politics of Muslim Personal Law and Struggle for Life with Dignity and Justice, 44 Econ. & Pol. Wkly. 44 (2009).

[5] P.K. Chauhan & V.S. Yadav, Impact of the Hindu Succession (Amendment) Act, 2005 on Women’s Property Rights, 8 Int’l J. L. Mgmt. & Human. 554 (2025).

[6] S. Sethi, Divorce: A Tentacle of an Already Biased Society, 3 Jus Corpus L.J. 624 (2022).

[7] G. Bhatia, The Age of Marriage in India: The Requirement for a Change, 2 Indian J. Integrated Rsch. L. 1 (2022) (pt. 1).

[8] N. Ahmad, A Critical Appraisal of ‘Triple Divorce’ in Islamic Law, 23 Int’l J.L. Pol’y & Fam. 53 (2009).

[9] Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 (India).

[10] S. Raza, The Hindu Marriage Act 2017: A Review, 4 LUMS L.J. 219 (2017).