Inequalities And Discrimination related to Marriage and Divorce Aspects under the Hindu Law

Hindu law refers to the legal theory, jurisprudence, and philosophical reflections on the nature of law found in Indian texts from the ancient and medieval periods.

Similar to the violation of the right to equality and discrimination of women in other aspects, Hindu laws governing marriage did not apply equally to males and females. In Vedas, the nature of Hindu matrimonial relations are described. A Hindu marriage, according to the Vedas, is an unbreakable unification that lasts for perpetuity. It is defined as an amalgamation of “bones with bones, flesh with flesh and skin with skin, the husband and wife become as if they were one person.”[1] Marriage in Hinduism is referred to as a ‘sanskara’, or a sacrament. It was irreversible in the logic that a female cannot have another spouse, no matter how harsh, drunken, impotent, demented, or otherwise, her husband is. Marriage is considered to be eternal and considered to last a lifetime in the sense that a wife was forbidden from marrying after her husband dies. A husband and a wife are considered to merge into a single person in the logic that the wife is said to lose her sense of self-identity. Limitless polygamy was authorised under Hindu law prior to the introduction of the Hindu Marriage Act 1955, where the husband might enter into the sacramental fold of marriage as many times as he wanted.

To a significant extent, the Hindu Marriage Act of 1955 has eliminated these inequities. Monogamy has become the norm for both men and women. According to the Act, a woman can divorce her husband and freely enter into another marriage. The reasons for separation that can be claimed as the basis for applying for divorce are listed under the Act. Section 5 of the Hindu Marriage Act of 1955, lays out the requirements for a marriage. It states that both parties to the marriage must be of legal age to consent to the marriage and that if consent is not free, the marriage stands null and void. Marriage is voidable if the consent was acquired by force or fraud, according to Section 12(c) of the Act. The validity of the marriage will be affected if the permission is not received at all. This holds true for both the husband and the wife. In practice, however, in a male-dominated society, only the consent of the male is sought, and on the other hand, the consent of the female is completely ignored. The male might be much older than a female is, and might completely be unsuitable for her, yet a marital bond is said to have been established without the consent of the female. A female, subject to such a case, must file for divorce relying on the provisions related to the termination of marriage set forth in the Hindu Marriage Act of 1955; or else, the marriage will not stand dissolved. When this aspect is observed, what is in practice is that even when a marriage is solemnized against her will or without her agreement, she is forced to remain in the marriage out of fear of any societal reaction or parental pressure. Though divorce is allowed by all personal laws, in reality, it is only available to those women who have their own money or who have well-off parents to sustain them. The provisions under the Act, related to governing the upkeep of a divorced woman and her children are insufficient to provide her with adequate protection.


[1] “2 Shyama Charan Sarkar, VYAVASTHA CHANDRIKA 480-481 (I.C Bose & Co., Calcutta, 1883).”

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