INTRODUCTION
Marriage is understood differently in law, religion, and culture, providing no universal definition. Marriage is considered to be a sacrament by Hindus and Catholics, a Contract by Muslims, and both by Parsis. It is an institution that is both a building block of society and one responsible for its continuance. It is commonly agreed to be an institution important to procreate, cohabitate, and create a family. To find out the ‘true’ value of marriage is a mystic pursuit based on abstract concepts.1 Henry Maine stated that “The progress of all civilisation has been from status to contract.” Initially, societies worked on the concept of lineage, class, power, and opportunities based on your birth. Status is based on ascriptive identities.2 Robin West argues that while all other areas of law have moved towards contract, only marriage has stayed in a position of a contract. In a contract, the parties analyse the risks and go through the terms and conditions in detail, but under marriage, women are supposed to give ‘blanket consent’ to everything that society feels should be included in the institution of marriage and not exercise their autonomy.3 Cultural and economic shifts have given rise to a modern understanding of marriage involving concepts of love, companionship, self-fulfilment, and personal autonomy. This shift is marked by the inclusion of women in decision-making, social media, Online Dating, Globalisation, and increased financial independence.4
Under Hindu law, marriage is not seen as a contract but rather a sacrament (Samskara) wherein partners fulfil their Dharma. It is considered to be a divine covenant, where both partners live a morally upright life. The holiness of the union is marked by a few complex ceremonies, including Kanyadaan (Bride’s parents giving her away as a gift), Saptapadi (vows of commitment and faithfulness taken around the holy fire), Sindoor, and Mangalsutra. Hindus believe that marriage is not just a union of two individuals but rather two families preserving communal life, social order, and family honour. The partners are compared to deities such as Shiva-Parvathi, Vishnu-Lakshmi, to understand ideal marriages and the essence of cosmic intervention. The pillar of Hindu marriages is faithfulness; hence, monogamy is upheld. The functions of a marriage are procreation, dharma, and companionship. Society’s perspective towards marriage was framed on the basis of religious texts and cultural practices. During the era of colonisation, the Britishers attempted to codify the laws to ease their administration, as it was getting extremely difficult to collect taxes, since nobody was the owner of land. The efforts of Warren Hastings, William Jones, and H.T. Colebrooke carved the way for modern-day legal framework. Hence, the majority of the texts were translated into English for better understanding, which is often criticised for leading to the loss of original drafts. Hindu law went through the reforms of the Bhakti movement, the Sati Abolition Act, 1829, the Removal of Caste Disabilities Act, 1850, the Widow Remarriage Act, 1856, Special Marriage Act, 1855, and several other legislations that led to the formation of Hindu Code 1955-56. 5
The Hindu Marriage Act, 1955, stands as a landmark reform in India’s legal history, fundamentally transforming the institution of marriage among Hindus. Before its enactment, Hindu marriage was largely governed by ancient religious texts and customary practices, many of which were rigid and discriminatory, especially towards women. By codifying and modernising Hindu marriage laws, the Act introduced clear legal provisions relating to marriage, divorce, maintenance, and restitution of conjugal rights. It established a system grounded in equality, justice, and contemporary principles of law, while simultaneously respecting the cultural and religious ethos of Hindu society. This reform not only brought Hindu marriage laws in conformity with the constitutional values but also played a pivotal role in dismantling social inequalities and advancing gender justice.6
A. Statement of Problem
The Hindu Marriage Act, aimed at reforming and modernizing Hindu personal law, perfectly penned, suiting constitutional values, continues to reflect practices against equality and autonomy. Several provisions illustrate how the law privileges male authority and entrenches traditional gender hierarchies. Judicial interpretations have further reinforced these biases, producing what is often only a “legal fiction” of equality. The persistence of cultural and colonial legacies within the law means that Hindu women’s marital experiences remain circumscribed by oppressive norms of duty, fidelity, and subordination. Battling such realities, the paper examines marriage under Hindu law through a feminist view, examining how sacred texts and secular statutes intersect, and exploring best practices for reimagining these provisions in genuinely gender-neutral terms.
B. Research Questions
• To analyse and understand the concepts of marriage and the role of women as described in Hindu sacred texts
• To understand the evolution of the Hindu Marriage Act, 1955, as a secular legal framework and examine its practical implications on society
• To examine the historical forces, including colonial influence and post-independence political negotiations, that shaped the act.
• To apply a feminist jurisprudence framework to critique specific provisions of the legal framework, including those related to grounds for divorce, restitution of conjugal rights, and maintenance.
• To examine landmark judicial interpretations and their role in either challenging or reinforcing patriarchal gender stereotypes, providing specific case examples to illustrate the gap between the law’s text and its application.
• To identify the core challenges and propose specific, actionable recommendations for further legal and social reforms to fully align Hindu family law with the constitutional principles of equality, dignity, and justice for all citizens.
C. Significance of Research
It examines the relationship between religion, law, and society. It describes the concept of marriage, balancing personal laws and constitutional values. It analyses the religious and cultural imprints that cannot be erased by merely enacting a law. For policymakers deliberating the future of personal laws such as the Universal Civil Code, this research gives insights into the challenges and possibilities and avenues for reform.
D. Scope and Limitation of Research
The research is limited to marriage under Hindu law alone, specifically referring to Hindu Marriage Act, 1955, and similar frameworks. There is very little insignificant comparison drawn to practices under various personal laws. The research is doctrinal in nature relying on sacred texts, interpretation of legislation, and secondary sources. Limitations include the vast diversity of Hindu practices across regions and castes, which cannot be comprehensively covered in one study.
LITERATURE REVIEW
Primary Sources
Rig Veda: Ch. 10.85 (Surya’s Wedding Hymn): This hymn is a ritual-poetic text used in Vedic marriage ceremonies. It celebrates the wedding as a sacred union, offering blessings for fertility, prosperity, and harmony. The hymn’s reflection on the bride leaving her home shows the early cultural view of marriage as a personal and community duty. While it gives the woman spiritual value and acknowledges her active participation in ritual life, the emphasis on “go to husband’s house” demonstrates how even the earliest sacred literature tied marriage to social structures that centered male lineage. This is a norm that secular laws later had to work against to recognize women as independent legal persons.
Manusmriti (Ch. IX – Marriage and Women’s Duties): It contains explicit rules on guardianship, women’s duties in marriage, acceptable marriage forms, and social sanctions for sexual conduct. The Manusmriti’s model of gender hierarchy provides the ideological basis for practices like patriliny, restricted remarriage, and “controlled sexuality,” which hinder a woman’s autonomy.
Hindu Marriage Act 1955: Sec. 7, 18-13B: This act provides for the conditions of marriage, judicial separation, and restitution. However, its continued reliance on fault-based notions, the social stigma around divorce, and procedural burdens may impede a woman’s access to legal relief.
Special Marriage Act, 1954: Provided marriage has a contractual nature, carved path for inter caste and inter religious marriages.
Hindu Succession Act, 1956 and the 3rd Amendment Act, 2005: This act governs inheritance among Hindus. The 2005 amendment grants a daughter equal coparcenary rights in joint family property and removes the disqualification for married daughters. This enhances women’s bargaining power to exit abusive relationships.
Hindu Adoption and Maintenance Act, 1956 (Sec. 18-19): This act includes statutory duties of support, but enforcement weaknesses and social attitudes (which prioritize male lineage) can limit its reach.
Dowry Prohibition Act 1961; IPC 304B (Dowry Death): This act confronts a practice often justified or formalized in marriage customs. However, enforcement is weak, and dowry practices adapt (e.g., “gifts,” “black money”), indicating insufficient social and economic change.
Criminal Procedure Code, Sec. 125: It provides that a magistrate can order maintenance for wives, children, and parents who cannot maintain themselves. This reflects how a woman’s subsistence and dignity needs are recognized in the context of marital breakdown.
Prohibition of Child Marriage Act, 2006: This act prohibits marriage below a critical age, protecting girls’ rights and bodily autonomy against customary practices. It shows the state’s interest in aligning marriage law with child protection and gender equality norms.
Constitution of India (Art. 14, 15, 21, 44): The constitution provides the foundational standards against which personal laws, which are based on sacred texts, are to be tested. This allows for challenging patriarchy in personal law to uphold equality.
Family Courts Act, 1984 (Institutional Procedure): This act makes secular remedies more accessible and less hostile to women.
Case Laws
In Seema v. Ashwani Kumar, the court addressed the issue of compulsory registration of marriage. Judgment upheld mandatory registrations to enforce women’s marital rights, inheritance, and maintenance claims.7
In Lata Singh v. State of Uttar Pradesh, the petitioner married a man of a different caste. Her family harassed and threatened the couple, the court reaffirmed the validity of inter-caste marriages under the Special Marriages Act, 1954. It directed police protection for consenting adult couples and warned against ‘honour killing’8
In Shakti Vahini v Union of India (2018), the Supreme Court addressed the menace of honour killing against couples marrying in different caste or community norms. It linked constitutional principles under the golden triangle to provide for preventive and punitive measures.9
Articles
The classic text “Beyond Dowry” by Veena Talwar Oldenburg explores the complex social and legal aspects of dowry and dowry violence in India, tracing their origins back to colonial-era changes that reshaped local practices. The book critically investigates the imperial origins of dowry as a social and legal issue. It critiques explanations of dowry-related deaths that focus only on economic factors. Ethnographic accounts and personal testimonies of women’s suffering highlight how dowry serves as a cultural symbol tied to caste inequality, family honor, and the persistence of patriarchy. The literature reveals that violence against women related to dowry is not only about money; it is deeply connected to gender power imbalances and the customs of patrilocal living that separate brides from their supportive natal families. Oldenburg examines the link between dowry and “crime” and discusses how the law struggles to address the root causes of dowry harassment and killings. The book also focuses on women’s informal networks and activist groups that work to achieve justice and foster solidarity among survivors. Notably, the author argues that legal reforms that target only dowry amounts are ineffective because they fail to address the larger family and social dynamics that contribute to violence. This in-depth discussion places dowry deaths within the broader context of women’s subordination, family norms, and the connections between caste and class, thereby enriching feminist scholarship on law and South Asian studies. The work underscores the necessity of social and legal reforms that go beyond legislation to reshape cultural views on marriage, gender relations, and economic justice.
Flavia Agnes’s “Bargaining under the Shadow of Law” provides a critical look at how Indian women negotiate family, marriage, and legal systems to secure rights over inheritance and property. Given the limitations of formal law and court rulings, Agnes uses a socio-legal perspective to show how the “shadow of law” influences real-life experiences, where community mediation, informal agreements, and judicial discretion interact and shape outcomes. The text highlights that matrimonial disputes rarely lead to victories in court; instead, they involve subtle negotiations influenced by power imbalances of caste, class, and gender. Agnes criticizes legal doctrines such as condonation and reconciliation, which pressure women to comply with marital norms, even in abusive situations. Her analysis reveals that property laws in Hindu and personal codes still favor male heirs, perpetuating the exclusion of women’s economic rights. She illustrates the varied legal perspectives among women, families, and court officials, revealing that legal reforms are often ineffective without addressing deep-rooted social attitudes. Agnes shows how women navigate their circumstances by using their understanding of the law, social supports, and community norms to negotiate custody, maintenance, and inheritance amidst coercion and structural inequalities. This work significantly contributes to feminist legal theory by highlighting the gap between legal texts and real-world applications. It promotes greater gender justice in Indian marriage law and property rights.
Uma’s paper “Wedlock or Wedlockup?” criticizes the enduring use of the colonial-era marriage law known as Restitution of Conjugal Rights in Indian matrimonial law. Imported from British law, RCR allows a spouse, usually the husband, to approach courts for orders that compel unwilling spouses, often wives, to return to cohabitation. Uma places this practice within the contexts of patriarchy and colonial interference in local legal systems and women’s autonomy. She traces how RCR’s continued existence reinforces sex discrimination by prioritizing men’s conjugal rights over women’s bodily autonomy, often violating constitutional rights to dignity and privacy. The paper challenges the legality and ethical basis of RCR by referencing constitutional law, feminist legal theory, and international human rights standards. It highlights conflicting judicial views; some courts support RCR as a way to preserve marriage, while others acknowledge its coercive effects. Uma discusses feminist critiques that label marriage as a tool that promotes women’s submission through legal and social pressure. She calls for legislative repeal of RCR to align with modern ideas of consent, sex equality, and bodily integrity. The paper invigorates the discussion of postcolonial law by revealing how RCR contributes to spousal coercion and undermines women’s rights, despite constitutional protections and international engagement.
Robin West’s critical commentary “Marital Rape, Consent and Human Rights” examines the links between marriage, law, and sexual violence. It highlights the human rights consequences of marital rape and the problematic legal exceptions found in various jurisdictions, including India. West builds on the work of Randall and Venkatesh by stressing that a wife’s married status often invalidates her legal protection from sexual violence, placing her at the mercy of her husband’s desires. The texts reveal the conflict between traditional notions of marriage, colonial legal legacies, and liberal human rights principles that promote sexual autonomy, bodily integrity, and freedom from coercion. West challenges preconceived notions of consent and proposes a redefinition of rape centered on coercion rather than merely the absence of consent. This approach aims to better address the complexities of sexual violence within marriage. The paper also investigates the broader social and political factors that reinforce sexual subjugation in marriage, including patriarchal norms and economic dependence. It considers the uneven criminal law reforms worldwide that attempt to reconcile matrimonial law with human rights obligations. West warns that criminalization, without disrupting structural coercion, may reinforce compliance instead of fostering genuine consent. This work enriches feminist legal studies by advocating for simultaneous changes in law and society to effectively combat marital rape and achieve real sexual and gender justice.
Digests, Commentaries
Early post-colonial codification reframed Hindu laws from a mere sacramental nature towards a secular, right-bearing status. Feminist legal theorists argue that even when marriage is treated as a contract, adjudication often assumes pivotal marital roles. Ritual practices of kanyadaan and persistence of dowry showcase women’s unequal bargaining power in a marriage. Flavia Agnes’s article explains that Indian matrimonial law generally lacks community or equitable distribution upon divorce, and maintenance becomes a lone lifeline.
Socio-legal studies of family courts find that personal cases do not necessarily have a lawyer; they are conciliation-intensive forums. Such provisions were made to make justice available for all; however, they are proven to often reproduce gendered expectations of compromise and return, privileging marital community over rights-based relief. Secular rights must be inclusive for queers and those belonging to the transgender community.
E. Scheme of Study
The sources of Hindu law include the Shrutis (that which is heard), which include the four Vedas (Rig Veda, Yajur Veda, Sama Veda, and Atharva Veda), the Smritis (that which is remembered), such as the Manusmriti, Yajnavalkyasmriti, Naradsmriti, Commentaries like the Vignaneshwaras Commentary and Jimutavahanas Commentary, Approved usages (Customs- local, class, family), and Atmanushiti (one that is agreeable to conscience). Hindu law has always been sceptical about whether a man should live a life of attachment or ascetism. We often place renunciation as a sequel to household life. Hinduism upholds four stages of life: Brahmacharya (celibate student life), Grihasta (married life), Vanaprastha (Learning and self-study), and Sanyasa (Renouncing attachments for service to mankind and God). Hence, Grihasta (marriage) is an essential part of man’s Dharma. According to Hindu law, marriage is a Samskara (sacrament), which means perfection or completion. The ritual of marriage brings together husband and wife to become one person, merged in an indissoluble manner. The Dharmashastras recognized various forms of marriage, such as the Brahma Vivaha, which is considered the ideal form of marriage with proper rituals, the Asura form of marriage involving a bride’s price, and the Gandharva Vivaha, among others.
According to Hindu law, marriage is a Sanskara, not a contract, considered a deathless relationship. The concept of arranged marriage was of utmost prominence. A daughter is often seen as a visitor to her natal family, as she will be given as a ‘gift’ to her husband’s family. Vedic mantras recognize the divine marriage of Surya and Soma as a model for human marriage, invoking divine blessings, happiness, and progeny.10 Manu Smriti is not a set of commandments, but rather a description of various actions and their consequences. The texts outlined the roles and duties of husband and wife. It reflects the views of the upper class. He states that the upper class must only marry a virgin. A woman should be under the control of her father, husband, and son at various stages of life. Consent finds prominence under the guardianship of male relatives rather than the autonomy of women. Among the eight forms of marriage, the one recognised and blessed by parents positioned women as instruments for continuity of rituals and lineage rather than decision makers. Marriage was a necessity (Dharma) to be compulsorily performed; any resistance was considered sinful. Gendered imbalance was naturalised by equating women’s obedience with the cosmic balance. Therefore, Marriage was a means to achieve duty, prosperity, desires, and salvation. Marriage is defined as “a religious sacrament under which a man and a woman enter a permanent union for the physical, social, and spiritual purpose of dharma, procreation, and enjoyment of sexual pleasure.”
Under the uncodified Hindu law, marriage had three conditions:
• Marriage had to be performed between the same caste; only then was it considered to be a valid marriage
• Marriage between the same gotras was prohibited. Sapinda relations were not recognized.
• Betrothal, saptapadi, and Kanyadan were considered to be an essential part of the ceremony.
The advent of Islamic rule in India during the medieval period made Hindu traditions, customs, and practices firm so as to preserve their identity. Practices of child marriage and Sati became more rigid and inalienable. The position of women deteriorated with the practice of dowry. The translation, codification, and reinterpretation of several personal laws mark the British colonial era. When the colonies were being established, the Britishers mistook India to be any other colony full of savages, but Indian society was a civilisation with years of diverse customs and traditions. Robert Clive, in the early 1700s, when the Crown of Bengal handed over the Dewani grants to the East India Company, it expanded from being a corporate entity in England to a sovereign entity collecting taxes and regulating money. The British method of collecting taxes was based on who owned the land; however, there were no owners, and property was a private matter. Warren Hastings decided to look at the existing infrastructure and implemented a dual court system as found in the Mughal empire. In civil courts, the Pandits decided personal matters. India followed a despotic model; there were no fixed rules of inheritance. Hastings observed that religious codes governed Indian society; he looked at the customs regulating the upper class and popularised them among all Hindus. He advocated for a uniform Hindu law. Warren Hastings did not trust the Pandits; hence, he compiled and translated sacred texts from Sanskrit to Persian and then to English. H T Colebrooke combined common law with Hindu law, observed that general principles already existed in Dharmaśāstras, Smritis, he simplified the law into the Dayabhaga and Mitakshara schools.11
By the 19th and early 20th centuries, social reformers began advocating for changes in the Hindu law, emphasizing issues like child marriage, polygamy, and widow remarriage, challenging oppressive practices. In 1815, Raja Ram Mohan Roy started a movement in Bengal to abolish the Sati system. Prominent psychologist Ashish Nandi observed that the Sati system was prominent in regions where the Dayabhaga system prevailed, which allowed widows to inherit their husband’s property.12 The efforts of reformers such as Dr. B. R. Ambedkar, Ishwar Chandra Vidyasagar led to several legislative changes, such as the Hindu Widow’s Remarriage Act, 1856, the Caste Disabilities Removal Act, 1850, and the Child Marriage Restraint Act, 1929 (Sarada Act).
Post Independence, India wanted to break free from feudal practices, and there was a strong push to codify Hindu laws supporting the principles laid out in the Indian Constitution. Under the guidance of Dr. B.R. Ambedkar, the Hindu Code Bill was introduced, aiming to modernise and standardise various aspects of Hindu law. The conservative sections of society regarded it as an attack on religious practices, and the bill faced backlash, but several leaders were aiming to build a secular nation that supported the same.
The Hindu Marriage Act, 1955, sought to reform aspects of divorce, maintenance, among others. It defined who is considered to be a Hindu and included several key provisions, such as Section 5 laid out conditions, including age, monogamy, and sapinda relationships (prohibited degrees of relationship, Section 3(g)). With modern laws, marriage now has a dual nature: Sacrament and contract. While the Special Marriage Act, 1954, treats marriage as a civil contract, the Hindu Marriage Act, 1955, incorporates contractual elements; however, dissolution depends on courts and not mutual will.
Section 7: Emphasized the importance of rituals like Saptapadi, Kanyadaan, Vivaha Homa for a valid marriage ceremony.
Section 8: Registration is optional, which gives space for ambiguity and misuse.
Section 9: Restitution of Conjugal rights- allowing a spouse to compel the other to resume cohabitation, nothing short of a state-sanctioned coercion.
Section 13: Disintegrated from the previous indissoluble nature of marriage and recognized its contractual nature by introducing grounds for divorce, such as cruelty, adultery, desertion, and conversion.
Sections 24 and 25: Maintenance and permanent alimony.
The codification formalized monogamy, increased the age limit, added consent, included rights to divorce and custody, but was only technically gender-neutral. Property division at divorce was not included; women received only maintenance, which was often denied on grounds of adultery. Widows gained absolute property rights. While monogamy was intended to empower women, the non-mandatory registration made it easier for men to deny marriage. Women in ‘invalid’ second marriages lost maintenance and status. Courts were strict about religious practices like Saptapadi to prove marriage, which was only observed in Brahmanical weddings before the codification standardized it. The government report of 1974, “Towards Equality” proved polygamy higher in Hindus at 5.8%. 13 Section 7 recognizes customs and practices of various communities, which further complicates the establishment of the validity of marriage. Custom is defined ambiguously, making it harder for the parties to establish validity.
Section 9 of the Hindu Marriage Act, 1955, allows either spouse to file a petition to compel the other to return to their society if they have withdrawn without a reasonable excuse. It is criticized as a way to force cohabitation, but the judges perceive it to be a tool for reconciliation. It is a ‘double-edged sword’ wherein it serves the purpose of reuniting a couple, but also a delaying tactic in divorce proceedings. Restitution of Conjugal Rights is based on the Doctrine of Coverture, in which husband and wife are seen as one person in law. In the case of Moonshee Buzloor Ruheem v. Shumsoonissa Begum14 the right was recognised for the first time in India, in which court upheld “On authority as well as principle, there is no doubt that a Musalman husband may institute a suit in the civil court of India for a Declaration of his right to the possession of wife and for a sentence that she return to cohabitation.” In the infamous Dadaji Bhikaji v. Rukhmabai case,15 she was married as a child, studied to become a doctor, and never cohabited with her husband. Bombay High Court refused to grant RCR, saying firstly, conjugal rights had not even commenced, here as a child, they never cohabited or condemnation, there is no question of restitution, secondly, the concept of RCR is alien to Hindu Law, it never directed one person to stay with another. “RCR is England’s giving, and I refuse to accept” Justice Pinny.
According to Hindu law, marriage has been traditionally understood as a holy union in which the wife is bound to perform her marital duties within her husband’s household. In Ram Prakash v. Savitri Devi(1952)16It was observed that a wife is expected to reside with her husband and fulfil her obligations in his home. Similarly, in Tirath Kaur v. Kripal Singh (1964)17The Court held that a wife’s refusal to give up her employment and live with her husband amounted to desertion, thereby entitling the husband to a decree of restitution of conjugal rights. Reinforcing this patriarchal outlook, Gaya Prasad v. Bhagwati (1966)18 declared that a wife’s first duty is to submit herself obediently to her husband’s authority and to remain under his roof and protection. In T. Sareetha v. T. Venkata Subbaiah, the parties were married when Sareetha was only fifteen years old, but they had lived apart for nearly five years. In 1981, Venkata filed a petition for restitution of conjugal rights, while Sareetha had by then established a successful acting career. The District Court granted the decree of RCR, leading Sareetha to appeal before the Andhra Pradesh High Court. The Court examined the scope of Section 9 of the Hindu Marriage Act and held that restitution entails not merely a right to cohabitation but also the husband’s legal claim to demand sexual intercourse from his wife. Referring to Anna Saheb v. Tara Bai, it noted the judicial view that a husband does have a right to have sexual relations with his wife even against her will. The High Court firmly rejected this argument and reasoning, holding that such compulsion violates individual autonomy and bodily integrity. Consequently, the decree of restitution was not granted.19
Divorce marked a shift from the traditional belief of an indissoluble marriage. However, the evolution from guilt-based theory to fault-based theory also marks the evolution of grounds of divorce. The purpose of the right to dissolve marriage was to punish the party by depriving them of conjugal rights by awarding divorce to an innocent party. Ingredients included a party guilty of matrimonial misconduct, an innocent party that has suffered due to the misconduct, and there must be no collusion.
Adultery was earlier considered both a crime and a ground for divorce. In the case of Ramesh Chander Kaushal v Veena Kaushal, 1978, Justice Krishna Iyer noted “We cannot help but observe that the current Indian ethos rightly regards the family and its stability as basic to the strength of social fabric and the erotic doctrine of ‘sip every flower and change every hour’ and the philosophy of philandering self fulfillment unless combated on the militant basis of gender justice and conditions of service are fraught with catastrophic possibilities.” Feeling an over sexual desire for a man or wife is an infectious disease and marks the end of the spiritual or material meaning of collective life. He said places of work must moral police employees to ensure there are no adulterous relationships.20 Prosecution under the crime of adultery can be done only by the husband, as the wife is the property of the husband, and adultery is like trespassing on him. In Joseph Shine v Union of India, the court held “It will be noticed that the crime of adultery punishes only a 3rd party offender as against the crime of bigamy, which punishes the bigamist, and wanted to protect the proprietary interest of a man …” The 42nd Law Commission Report recommended making adultery gender neutral however, Justice Anna Chandi dissented and asked to decriminalise it for both. Justice Chandrachud stated “Adultery is the highest invasion of property.” Adultery is a personal choice, and whether society agrees or not, the person still has a right to make that choice, just because people think it is immoral. “The freedom of making choices also encompasses the freedom of making ‘unpopular’ choices.” Law enforcement agencies can be put to efficient usage rather than policing private, consensual sexual activities to signal respect for the institution of marriage.21 The grounds for divorce under the HMA show more gender imbalance. Both spouses can claim desertion and cruelty, but the rules around adultery have often stigmatized women more severely. Maintenance provisions in Section 25 created economic dependence for women instead of encouraging equality. Even though changes in 1976 and later aimed to increase women’s rights, patriarchal influences were still evident.
Feminists argue that the law reduces women’s consent to a blanket one, ignoring autonomy within marriage, which is reflected in the refusal to accept marital rape as an offense. Equality within property rights is a far-fetched dream, due to the economic dependence of women on husbands, reinforced through maintenance provisions. Courts often use religious justification in legal interpretation grounded in scriptures rather than equality, wherein reforms become conditional by nature. The same can be observed in contemporary debates surrounding the Uniform Civil Code and interfaith marriages, where communal sensitivities override women’s rights.
Prominent case laws
In the case of Seema v. Ashwani Kumar (2006), the issue was related to Section 8 of the Hindu Marriage Act, 1955, which does not mandate registration. The Court held that registration is not merely procedural but protective of women’s rights, emphasizing that unregistered marriages lead to greater risk of bigamy, fraudulent claims, and denial of legal remedies.22
In Revanasiddappa v. Mallikarjun, the legitimacy and protection of children born out of void marriages were challenged. The Supreme Court recognised that the welfare of the child is paramount and the void nature of marriage should not hinder the same. Children cannot be penalised because of the legal technicalities between their parents.23
In Saroj Rani v. Sudarshan Kumar (1984), the Supreme Court upheld the constitutional validity of Restitution of Conjugal Rights, focusing on marital unity, stating that social and moral obligations outweigh individual autonomy and privacy.24
In Githa Hariharan v. RBI, guardianship of minor children was the key issue. Githa challenged the provisions under the Hindu Minority and Guardianship Act, 1956, due to its biased nature rooted in the traditional belief of prioritising fathers over mothers. The Supreme Court upheld the mother’s right to be a natural guardian, especially in situations where the father is absent; it didn’t completely deconstruct the patriarchal roots of favouring fathers.25
Sarla Mudgal v. Union of India, 1995, depicted a scenario wherein Hindu men converted to Islam to contract a second marriage. The Supreme Court held such conversions impermissible. Highlighted judicial resistence to directly challenge gendered biases in Hindu law.26
In D. Velusamy v. D. Patchaiammal, 2010, the Supreme Court delivered a landmark judgment clarifying the concept of a “relationship in the nature of marriage,” which is not as simple as it is defined under any statute. The Court distinguished it from a general live-in relationship, noting that not all live-in relationships qualify for legal protection. The Court held that a relationship in the nature of marriage is analogous to a common law marriage and must satisfy the following essential criteria: The couple must present themselves to society as akin to spouses, both parties must be of legal age to marry, both must be otherwise eligible to enter into a legal marriage, including being unmarried, they must have voluntarily cohabited and held themselves out publicly as akin to spouses for a significant period. The parties must have “lived together in a shared household” as defined under Section 2(s) of the Domestic Violence Act, 2005.27 Depicting the evolving nature of marriage and the modern interpretation of law by the judiciary.
FINDINGS
Marriage is one of the earliest institutions, and Hinduism is considered to be one of the earliest religions, but over time, it has evolved through legislation and judicial interpretations. The rights of women cater to evolving social standards, but are often misused by both men and women. The absence of marital rape recognition demonstrates the subordination of women’s autonomy to traditional marital norms.
The Hindu Marriage Act, 1955, is celebrated to be a milestone for its progressive nature and modern interpretation suited for the society; however, in practice, it reiterates patriarchal and traditional norms and values. This can be observed with the existence of Sec 219 of the Indian Penal Code and Section 84 of the Bharatiya Nyaya Sanhita, 2023, that provides for enticing or taking away or detaining with criminal intent a married woman, which is nothing but adultery wrapped in a different name.
Maintenance provisions provided economic relief, but without addressing structural inequalities like women’s limited access to property. Reform became a patchwork rather than a paradigm shift. The judiciary played a dual role, balancing its progressive and regressive nature in providing justice as established in the case laws above. Codification blurred the boundary between religion and law; most importantly, upper caste traditions are granted standardised application, whereas other customary practices are to be proven in the court of law, establishing which is next to impossible. Religious practices treated women mainly as bearers of lineage, while secular laws perceived them as dependents needing protection rather than full independence. This persistent patriarchal approach shows why marriage laws must be rethought from a feminist perspective, ensuring women’s rights, autonomy, and equality within the institution of marriage.
The court, willing or unwillingly, hesitates to interpret law in accordance with the changing society, as the root of such laws lies in religious sentiments, which are held close to the heart by several. To address the evolving social realities, the legislature enacted a series of laws between 1829 to 2006, sustaining the institution of marriage. Certainly, statutes such as the Domestic Violence Act, 2005, have changed the course of interpretation and allowed for a just society (alongside accusations of misuse).
SUGGESTIONS AND CONCLUSION
India is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), which obligates states to eliminate discrimination in marriage and family relations, which led to prominent changes in the Indian legal landscape to curb discrimination against women, such as live-in relationship, prevention of sexual harassment at workplace, Domestic violence Act, among others. India’s failure to criminalise marital rape violates the provisions of the convention that guarantee bodily autonomy, recognising the same will align India with global standards of human rights. Free and full consent in a marriage is important, not treating it as blanket consent or a one-time event. Adopting a civil contract form of marriage will ensure state authority over marriage without religious imposition, but such a solution is not suitable for a country as diverse as India, and religious practices tracing back several centuries. The aim is to secularise Hindu marriage law without erasing cultural rituals, which can continue as optional ceremonies.
Reforms in statutes and legislation must ensure that there are no ambiguities or legal loopholes for misuse. Mothers are still secondary guardians under the Hindu Code. Maintenance should be reframed as a reciprocal duty, ensuring economic equality rather than dependence. Introduce provisions for equitable distribution of marital property upon divorce, moving beyond mere maintenance. Rather than a homogenising tool, the UCC should prioritise substantive gender equality.
Public awareness through campaigns and drives to normalise consent and equality within marriage. Stronger enforcement of the Dowry Prohibition Act is to be prioritized. The government should strive to provide women access to education, employment, and reduce dependence on the institution of marriage.
The institution of Hindu marriage plays an important role in maintaining societal balance and fostering individual growth within family and social contexts. Deeply rooted in tradition and culture, Hindu marriage has, over time, undergone significant transformations in response to contemporary societal changes. While it continues to hold sacred and cultural significance for many, the concept and practice of marriage have evolved to accommodate modern legal frameworks and social expectations. Today, Hindu marriage stands as a dynamic institution that embodies both continuity and change, preserving its religious and cultural essence while adapting to the demands of modern life. Legal reforms, shifting social norms, and the influences of globalization have collectively shaped its evolution, making Hindu marriage a complex and multifaceted institution.28
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Footnotes
1. Supriya Chakraborty & Anr. v Union of India, 2023 INSC 920
2. Khushi, From Status To Contract: An Analysis Of Henry Maine’s Social Evolutionary Theory, IIJLLR, Vol VII, Issue II
3. Robin West, When and Where They Enter, Transcending the Boundaries of Law, Chapter 14
4. https://testbook.com/ias-preparation/type-of-marriage, last visited 10th September 2025
5. C L Avadhani, The Evolution of Hindu Law and the Conceptual Framework in Indian Constitution, Volume 5, Issue 4, Pg 267-285
6. Arshita Tyagi and Dr. Axita Srivatsava, THE HINDU MARRIAGE ACT, 1955: A CRITICAL ANALYSIS OF DIVORCE AND MAINTENANCE PROVISION, Indian Journal of Law and Legal Research Volume VII Issue II
7. Seema v. Ashwani Kumar, AIR 2006 SUPREME COURT 1158
8. Lata Singh v. State of UP, 2006 (5) SCC 475
9. Shakti Vahini v. Union of India, 2018 (3) SCC (CRI) 1
10. Rig Veda, 10.85: The Marriage Hymn
11. Bernard S. Cohn, Colonialism and its forms of knowledge, Chapter 3, Law and its Colonial State in India
12. Somraj Banarjee, Critiquing the Politics of Outrage, Ashis Nandy and his reading of Sati, Vol II, Issue II, Galaxy: International multidisciplinary Research Journal
13. Towards Equality, Report of the Committee On The Status Of Women In India, Dec, 1974
14. Moonshee Buzloor Ruheem v. Shumsoonissa Begum is (1867) 11 Moo Ind App 551 (Privy Council)
15. Dadaji Bhikaji vs Rukhmabai on 21 September, 1885, ILR 9BOM529
16. Ram Prakash v. Savitri Devi (AIR 1952 All 411)
17. Tirath Kaur v. Kripal Singh (AIR 1964 P&H 28)
18. Gaya Prasad v. Bhagwati (AIR 1966 MP 212)
19. T. Sareetha vs T. Venkata Subbaiah, 1983, AIR 1983 AP 356
20. Ramesh Chander Kaushal v Veena Kaushal, 1978 AIR 1807
21. Joseph Shine v. Union of India, 2019 (3) SCC 39
22. Seema v. Ashwani Kumar (2006) 2 SCC 427
23. Revanasiddappa v. Mallikarjun, (2011) 1 SCC 328.
24. Saroj Rani v. Sudarshan Kumar, (1984) 1 SCC 107
25. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228
26. Sarla Mudgal v. Union of India, (1995) 3 SCC 635
27. D. Velusamy v. D. Patchaiammal, AIR 2011 SC 479
28. Dr. Jyoti Yadav, Hindu Marriage: Analysing Legal framework, Practices, And Case Law, Vol 12, Issue 12, International Journal of Creative Research Thoughts