How the idea of marriage has evolved over time

The idea of marriage in its dominant, modern, monogamous and patrilineal form is a product of economic and legal conditions. Historically, other forms of marriage have also existed in different parts of the world. Let’s understand the idea of marriage socially and legally.  

Marriage and kinship

Marriage is seen as the foundation of the family by bringing two people together socially and legally. It is also a key site where gender roles are clearly determined. In Indian society, men have traditionally been seen as hierarchically superior in the kinship system. Therefore, within marriage as well, the husband is granted rights, while the wife has to fulfil duties. The layers of gender inequality embedded in marriage are evident from popularly used proverbs such as ladkiya paraya dhan hain (girls are someone else’s property), etc. 

In patrilineal societies, there is an inherent understanding that a woman’s ‘real’ home is that of her husband. In Hinduism, marriage has been seen as a sacrament – a lifelong union. Islamic law (sharia), however, recognises divorce and maintenance as marriage is seen as a contract.

During the colonial period, marriage amongst Hindus was codified. The British granted maintenance to Hindu wives under section 488 of the Code of Criminal Procedure (CrPC), 1898. In the post-independent period, the Hindu Marriage Act, 1955, legalised divorce for Hindus.

Under Section 13 of the Act, the grounds for divorce include: “voluntary sexual intercourse with any person other than his or her spouse”; “cruelty”; desertion “for a continuous period of not less than two years immediately preceding the presentation of the petition”; “ceas(ing) to be a Hindu by conversion to another religion”; and being “incurably of unsound mind”.

However, according to the Hindu Marriage Act, 1955, cruelty was a condition to petition for judicial separation. It was after an amendment in 1976 that this basis became available for seeking both divorce and judicial separation.

Mental cruelty as ground for divorce

The Marriage Laws (Amendment) Act, 1976 introduced the ground of ‘divorce by mutual consent’. This changed the way divorce began to be seen not just as a fault of one party but as a mutual choice. Gradually, grounds such as irretrievable breakdown of marriage and cruelty have also been added. There is now a more constitutional interpretation of the Hindu Marriage Act in terms of values such as gender equality, personal liberty, and dignity.

For instance, in the Amardeep Singh versus Harveen Kaur case in 2017, the Supreme Court held that the six-month waiting period under Section 13B(2) of the Hindu Marriage Act is not mandatory. It can be waived by the family court if both parties have been living separately for more than the statutory period and all efforts at mediation and reconciliation have failed. It made fast-track divorce possible.

Similarly, divorce on grounds of mental cruelty has been granted to both parties by different courts. For instance, the Madhya Pradesh High Court granted divorce to the wife in the Bhuribai versus Bheem Singh case (2025) as the husband forced her to discontinue her studies. Similarly, the Odisha High Court in a 2025 judgement granted the husband divorce after the court found the wife’s remarks towards his physical deformity amounted to mental cruelty. 

However, the interpretation of cruelty is dependent on the court, often impacting how justice in cases of marital violence is delivered. The burden of proof lies on the party claiming cruelty, which requires credible evidence, and therefore is difficult to prove. The Delhi High Court, for instance, in 2024, ruled that asking a husband to live separately from his family amounts to cruelty by his wife. It also stated that in a marriage, the husband expecting his wife to do household chores cannot be termed as cruelty. 

Although there have been amendments to the grounds of divorce, one cannot conclusively argue that laws and their interpretations are entirely gender-just.

Gap between social practices and legal provisions 

The legal understanding of divorce is rooted in constitutional values. But the social implications continue to remain different. While divorce is legally permissible, it is not socially encouraged. Women, particularly, are advised to ‘adjust’ and ‘adapt’. While women’s rights activists have sought legal intervention in issues of marital justice, the same has been discouraged by religious groups. They see the growing involvement of law in personal matters as a threat to their autonomy. 

The Shah Bano case of 1985 illustrates the juxtaposition between constitutional values and personal laws. It also sparked a debate on the Uniform Civil Code (UCC) and women’s rights in India as the Supreme Court ruled in Shah Bano’s favour, stating that section 125 (maintenance of wives, children and parents) overrides personal law. The Court ordered the husband to provide her maintenance beyond the iddat period, which was seen as a violation of Muslim personal law by religious groups, primarily led by men.

Questions of gender justice have also shaped Hindu marriage acts. Apart from the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and the Hindu Succession (Amendment) Act, 2005 played a significant role in reshaping inheritance laws. While the Hindu Succession Act, 1956 gave daughters a right to inherit their father’s property, the 2005 amendment granted them equal coparcenary rights in ancestral property by birth, just like sons. 

But it is often found that women rarely exercise their legal rights. It is because most families view them as temporary members who will be married off and live in their husband’s homes. This is particularly true when they have brothers. Even if they ask for their property rights, they are denied. The dowry that they are given at the time of marriage is seen as their rightful share.

This chasm between the social practices and the legal provisions has been extensively studied by scholars such as Bina Agarwal and Prem Chowdhry. Women are seen as caught in kinship roles –  expected to fulfil the role of wives and daughter-in-law and that of sister/daughter. Although these legislations are decades old now, their implementation continues to remain sketchy.

Post read questions

Do you think marriage as a sacrament is losing its value in modern India? 

The institution of marriage reinforces gender inequality in patrilineal societies. Do you agree?

What changes did the Hindu Succession (Amendment) Act, 2005 bring for women’s inheritance rights?

Studies by some scholars found that in relation to women’s rights in marriages, there is a gap between the social practices and the legal provisions. Why?

(Rituparna Patgiri is an Assistant Professor at the Indian Institute of Technology (IIT), Guwahati. In the second part of this article, the author will examine the legal framework around marriage.)

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