The Good, the Bad and the Ugly: The Evolution of Divorce Law in India and Its Impact on Women in Contemporary Society

Introduction

Historically, Indian society has characterised marriage as central to social and familial expectations for women. However, it is not a singular union between two distinct individuals; rather, it is greatly engulfed in familial, cultural and societal expectations. As such, divorce cannot be regarded as being purely legal. The 2020 Indian film Thappad vividly depicts how deeply-rooted these ties of family and society are within the constraints of marriage, as the main character, Amrita, is forced to reconsider her marriage due to a single act of physical violence. The film provides foundational insight into men, women and family interpersonal relations, and how they counteract within the scope of marriage and divorce. Inspiring me to question to what extent the law equips women with the right to exercise actual genuine autonomy, or is it simply a front to perpetuate societal pressures on women?

This article examines the evolution of India’s divorce law through the lens of its impact on women in society today. It is broken down into three parts: first, the “Good”, this would examine the extent at which the legal and judicial development have not only advanced women’s autonomy but also how it has been expanded; second, the “Bad”, this will observe areas in which the legal and procedural framework has fallen short and rather than expand women’s right has retracted it; and finally the “Ugly” which will explore how societal expectations continue to influence and negatively impact women’s ability to exercise their legal rights. Overall, this article argues that although the evolution of divorce law brought about significant progress towards greater family justice for women, formal legal reform alone has not gotten rid of the legal, economic and social inequalities that continue to shape women’s experiences as they undergo divorce.

The Good: The evolution of divorce law and the increasing recognition of women’s autonomy

Divorce law in India has greatly evolved, shifting from marriage being regarded as an institution that is absolutely necessary to be preserved towards recognition that individuals may have legitimate reasons to leave it. One of the most critical developments in divorce law in India was the establishment of the Hindu Marriage Act 1955 (HMA). This statute served to establish a statutory framework for governing Hindu marriage, which included judicial separation, annulment and divorce. Section 13 specifically provided various legal grounds for divorce, while section 13B permits divorce by mutual consent. The statute further acknowledges the financial and family consequences of marriage; disposal of property that may belong jointly to both the husband and wife under section 27, and custody of minor children under section 26. ¹

The greatest accomplishment of this development for women is the statutory recognition that marriage does not have to be permanent, as the government has acknowledged legal grounds for divorce. The most vital thing to note is section 13B, which particularly introduced the mutual-consent divorce. This demonstrates a great shift towards recognising the wishes of the individuals in the marriage, as it does not require one spouse to establish the issue against the other.²

It is essential to acknowledge that this development of autonomy for women is not limited solely to legislation. The judiciary has also played a significant role in progressing and expanding women’s autonomy through the practical operation of divorce law. This was highlighted in the case of Amardeep Singh v Harveen Kaur, in which the Supreme Court considered the six-month period in section 13B (2) of the HMA. The Court held that the waiting period was not mandatory and could be waived in circumstances where reconciliation is highly unlikely, and the other issues pertaining to alimony and custody had already been resolved.³ This decision by the Supreme Court is significant as it demonstrates a shift from protecting marriage towards protecting individual autonomy, as individuals are not forced to maintain the six-month period when it is clear that reconciliation is no longer possible. This case therefore demonstrates a recognition of an individual approach to family justice.

Another key development is the concept of irretrievable breakdown of marriage, which is simply the idea that a marriage could have effectively ceased to exist in practice all whilst it continued to exist legally. This concept was identified as early as 1978 in the Law Commission of India’s 71st Report, in turn recommending the consideration of irretrievable breakdown of marriage as a ground for divorce.⁴ This issue was also addressed by the Supreme Court in the case of Naveen Kohli v Neelu Kohli. In which the court subsequently recognised that a marriage could exist on statutory grounds but have fizzled out in reality. In turn, it recommended that irretrievable breakdown be incorporated into legislation as a ground for divorce.⁵ This development is significant as it shifted the focus from determining who is responsible for the breakdown of the marriage towards whether the marriage can realistically continue. This is therefore an expansion of women’s autonomy as a woman would not need to remain legally bound to a marriage simply because her circumstances did not neatly fall within the existing statutory scope.

The “Good”, therefore, does not lie solely in the mere existence or recognition of divorce in legislation, but rather in the broader scheme of recognising individuality within the family. Indian divorce law has demonstrated an increase in the recognition that preservation of marriage cannot automatically override autonomy and the practical circumstances of the individuals involved.

The Bad: The limitations of the legal framework and the gap between formal rights and substantive equality

Despite the rise of developments through the creation and existence of legal rights, these do not necessarily mean that those rights can be exercised effectively in practice. The main difficulties stem from the pluralistic nature of Indian family law. India does not operate solely under one single divorce regime, but rather different personal-law systems exist alongside secular legislation such as the Special Marriage Act 1954. As such, the process of marriage and divorce tends to vary depending on the legal framework which is applicable to the relevant parties.

This becomes significant when personal laws (such as religious laws) interact with constitutional principles of equality. A prime example of this is Shayara Bano v Union of India, in which the Supreme Court considered the legitimacy of the practice of talaq-e-biddat (Muslim practice of divorcing a wife by saying the word talaq three times) under constitutional principles, and by a 3:2 majority set aside the practice. ⁶This is important as it illustrates how women’s rights within marriage may become a subject of tension between religious personal laws and constitutional principles. The subsequent development of the Muslim Women (Protection of Rights on Marriage) Act 2019 demonstrates the role of legislation in responding to the issue. However, it displayed that access to family justice is not universal and can often depend upon the interaction between personal law and judicial interpretation. This therefore reflects that although the law on paper is straightforward, the practicality of divorce is limited when under the influence of personal religious laws. Demonstrating that the law on paper is expansive but in practice it is limited.

Another weakness of the current divorce law is the economic consequences of divorce. Although the HMA makes provisions for maintenance and alimony, the existence of these provisions demonstrates that spouses may not enter divorce proceedings from equal economic positions. Women most often would have undertaken a substantial amount of unpaid domestic work and would have limited independent income, making them more economically vulnerable upon divorce. This is reflected in the Rajnesh v Neha case, in which the Supreme Court addressed the difficulties that surrounded maintenance proceedings and issued guidelines with the intention to provide both greater consistency and transparency.⁷ The intervention of the court is significant; it demonstrates that statutory recognition of a right does not necessarily guarantee that it is effectively implemented. This highlights the clear difference between formal legal equality and substantive equality, particularly for women in divorce proceedings. As in formal equality, it pertains to whether a woman actually possesses the legal right to seek divorce or maintenance, whereas in substantive equality it examines whether a woman is genuinely capable of exercising that right, in this case whether she is financially able to seek divorce when her circumstances are compared to her spouse. As such, due to the great disparity in financial circumstances between a financially independent woman seeking a divorce and a financially dependent woman, with the same formal right to divorce her husband would face significantly greater practical consequences from exercising her right to divorce.

The “Bad”, therefore, is not necessarily that Indian law has failed to recognise women’s rights, but rather it is that the legal framework recognises the right but may not always provide the most effective means of exercising them. Financial dependence and differing personal-law regimes all influence whether or not formal rights actually become meaningful rights.

The Ugly: The social realities that continue to constrain women’s ability to exercise those rights (357 words)

The most difficult aspect of achieving family justice in India is that the law does not operate as a sole entity separate from society. Legal reform can on paper alter formal rights; however, societal expectations can influence whether those rights are realistically exercised. This is in particular relevant to women as marriage carries the expectations of motherhood, domestic responsibility and family preservation. As a result, divorce often involves consequences that extend beyond simply the legal termination of a marriage. A woman may be subject to pressure from parents, in-laws and the broader society to remain married even when the law provides an opportunity to leave.

A case that examines this intertwining of law and societal expectations in divorce is the Joseph Shine v Union of India case. Although the case concerned the constitutionality of the adultery offence rather than divorce, the Court examined how the gender stereotypes embedded within the legal framework, such as women being subordinate to their husbands⁸ can influence whether divorce is considered, as the existence of a legal right does not necessarily equate to social freedom. For example, a woman may possess the legal right to leave a marriage but due to the cautioning of her family or community may choose not to. This demonstrates that family law cannot be separated entirely from societal expectations and gender roles. As such, the law therefore operates within a wider social structure that can either facilitate or restrict the exercise of legal rights.

This is where the film Thappad becomes particularly relevant, as Amrita’s struggle is not solely whether or not she can end her marriage legally, but it is predominantly whether she can accept the consequences of challenging societal expectations surrounding marriage. The film therefore provides a useful starting point for distinguishing the differences between legal autonomy and social autonomy.

Consequently, the evolution of divorce law in India should not be measured solely by the number of statutory grounds available or judicial decisions expanding those grounds. It should also be measured by whether women are genuinely able to exercise their legal rights and autonomy without being prevented by economic dependence, family pressure or societal stigma.

Conclusion

The evolution of divorce law in India demonstrates that the concept of family justice has undergone significant transformation. The establishment of a statutory framework for divorce through the Hindu Marriage Act 1955 recognised both the financial and familial consequences of marital breakdown. Cases such as Amardeep Singh and Naveen Kohli, through judicial interpretations, further developed the law by placing emphasis on autonomy, financial protection and the realities of divorce. Meanwhile, cases like Shayara Bano demonstrated the importance of the continuation of the use of constitutional principles to challenge discriminatory practices of personal law.

Ultimately, the evolution of Indian divorce law should therefore be understood as progress towards family justice rather than the achievement of family justice. The law has moved towards recognising women’s autonomy, but formal legal reform is not enough to tackle the societal and economic structures which influence women’s experiences of marriage and divorce.

Bibliography

Primary Sources

Legislation

Hindu Marriage Act 1955

Muslim Women (Protection of Rights on Marriage) Act 2019

Special Marriage Act 1954

Cases

Amardeep Singh v Harveen Kaur (2017) 8 SCC 746

Joseph Shine v Union of India (2019) 3 SCC 39

Naveen Kohli v Neelu Kohli (2006) 4 SCC 558

Rajnesh v Neha (2021) 2 SCC 324

Shayara Bano v Union of India (2017) 9 SCC 1

Secondary Sources

Law Commission Reports

Law Commission of India, The Hindu Marriage Act, 1955 – Irretrievable Breakdown of Marriage as a Ground of Divorce, Report 71 (1978)

Film

Thappad (directed by Anubhav Sinha, T-Series Films and Benaras Media Works 2020).