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Posted by Komal Patil

Marriages in India are not seen as just another life event, instead, they are regarded as a rite of passage, the ideal way to live a life and enjoy romantic relationships in a socially acceptable way. While the concept of marriage has now evolved to accommodate unity by choice, our country still continues to perpetuate deep injustice in the name of marriage as a holy institution. A recent comment by CJI Bobde asking the rapist-accused if he will marry the victim-prosecutrix is more than just a question – it’s a story of deeply entrenched patriarchy in Indian society that perpetuates violence. His comment is not just a disregard for the violence that women face but an evidence of a conscience that considers women less than human. 

A recent comment by CJI Bobde asking the rapist-accused if he will marry the victim-prosecutrix is more than just a question – it’s a story of deeply entrenched patriarchy in Indian society that perpetuates violence.

A recent comment by CJI Bobde asking the rapist-accused if he will marry the victim-prosecutrix is more than just a question – it’s a story of deeply entrenched patriarchy in Indian society that perpetuates violence. His comment is not just a disregard for the violence that women face but an evidence of a conscience that considers women less than human. 

Also read: Complicit In The Culture Of Impunity, The CJI Suggests A Rapist Marry The Victim

The politics of body 

Historian Margaret Hunt, explains the root of marriage as a means of transferring property, occupational status, personal contacts, money, tools, livestock and women across generations, and kin groups. The english word “husband” has its roots in agriculture, from Old Norse words that meant someone who owned and tilled land, the woman being a part of his property, and from which the term “husbandry”, as in “animal husbandry” comes from. These definitions and the origin story of marriage is a testament to the fact that women were considered property instead of humans with emotions, desires and rights over basic necessities and more importantly their own bodies and existence.

The rebellion against marrying as a means to transfer property started in the 18th century and several legal changes such as the introduction of anti-dowry laws, the option to enter into pre-nuptial agreements reflected this change in attitude. These changes suggested and mandated an outlook towards marriage that was devoid of materialistic gains. Despite these changes, to this day, women are routinely equated to a man’s property when married. The strongest evidence of this is our collective unwillingness to criminalise marital rape. Several ministers have justified this inaction by stating that, “cultural and religious values in India and society’s belief that marriage was sacred made it impossible to criminalise marital rape.” In another separate incidence, former CJI Dipak Mishra made an objectionable comment as recently as in 2019 saying, “criminalising marital rape will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”

The UN Population Fund found that more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex. Despite the recommendation of the UN Committee on the Elimination of Discrimination against Women, India’s resistance to recognise and offer support to survivors is telling – it points towards more than just complacency, it is also a testament to its active participation in perpetuating violence against women. 

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Gendered Burdens of Family Planning

Although the new amendment to the Medical Termination of Pregnancy Act offers an extension of the permissible time-frame within which an abortion can be performed without court interference, there are several institutional challenges that pregnant individuals may have to face in accessing such services. Delay in court orders, refusal and pressure from spouses and in-laws, and prejudice at the hands of doctors are just some of them. Another flipside to these laws is the lack of focus on the involvement of male partners in the pregnancy process which has led to forms of sexual violence and undue division of physical and emotional labour. For instance, a study titled  It’s On Him Too by the International Centre for Research on Women concluded that India’s family planning campaigns have always focused on women without mentioning the role and responsibility of men. Research has shown that a staggering 75% of Indian married men do not use any form of contraception – transferring the burden of dealing with unwanted pregnancies solely on female bodies. It is therefore unsurprising that the levels of knowledge as well as willingness to explore contraception is higher amongst women. The Rural Women’s Social Education Centre (RUWSEC), a grass roots organisation in Tamil Nadu found that among rural women, 81% have knowledge of all modern methods of contraception. Of those couples using contraception, 49.3% were sterilised and only 0.3% of whom were men. 

Another facet of this is also the refusal to vasectomy procedures by Indian men. Despite being comparatively less risky as well as less intrusive, the burden is often on women to consume contraceptives or undergo sterilisation procedures. This reluctance, while can be attributed to the distrust associated with the unlawful and harmful sterilisation efforts by the Indian government in 1975, also point to common feelings of emasculation which are often associated with such procedures. As a result of a complex mix of social stigma, implications on class and caste divides and history of unreliable medical procedures vasectomies have fallen by 73% – indicating greater reluctance among men to use invasive and permanent birth control methods – according to Health Management Information System data. But the use of emergency contraceptive pills among women increased during the same period by over 100%.

An institution of division, discrimination and disregard

Marriage, as an institution, has been used as a tool to propagate notions of purity which seek to exclude all unions from being able to achieve formal recognition by discriminating on the grounds of religion, caste, gender and sex. 

Inter-caste and inter-religious marriages are the stories of progressive modern Indian society. However, earlier ban on marrying outside one’s own caste, religion or community was a way to use sexuality to propagate the discriminatory class and caste system. Image Source: Epified

Inter-caste and inter-religious marriages are the stories of progressive modern Indian society. However, earlier ban on marrying outside one’s own caste, religion or community was a way to use sexuality to propagate the discriminatory class and caste system. Casteism and religious divisions are an asset to patriarchy as they marginalise a significant portion of the population and only keep the few happy and content just enough to oppress the others. Inter-faith marriages were only legalised in 1954 when the Special Marriages Act was established. In spite of the laws, Indian society still remains divided on the concept of inter-caste and inter-religious marriages. Many share their experiences even today about how the judiciary will still create obstacles for couples who want to register their marriage under this act.

Also read: Marital Rape: Why Are Indian Laws Still Confused About This?

“In Uttar Pradesh, it is routine to call couples and often their parents to the police station, particularly in cases of inter-religious marriages,” said Lucknow-based lawyer Renu Mishra of the Association for Advocacy and Legal Initiatives (AALI). The recent anti-conversion laws passed are functional in eight out of twenty-nine Indian states and take action against forced religious conversions. While this law claims that it is neutral and only takes action against forced conversions, the parameters for the same are undefined. Furthermore, majority of these forced conversions are reported unsurprisingly against Muslim men. In UP, the saffron capital of current India, 86 people have been charged under 16 cases for forced conversions, with all of the cases being registered against Muslims

When it comes to gender and sexuality too, the institution of marriage regularly discriminates. The definition of marriage, in law and largely within the society, only considers heterosexual couples. It does not consider queer, trans people or non-binary people in this union. Even parameters of sexuality are extremely rigid i.e. the institution of marriage can only exist between two cis-gendered people. The recent judgment by the Centre about homosexual couples not fitting in the ambit of Indian marriages is evidence that we as a society have a long way to go when it comes to accepting marriage between two people who do not conform to heteronormative definitions of patriarchy. 

The current changes in some marriage laws in India are definitely a miniscule step towards our journey for a gender-just world where definitions of companionship and love are not synonymous to this supposed holy institution. However, these amendments are not an end or a destination in itself and it is therefore wise to conclude that there’s a lot to be rewritten, reimagined and revolutionised. 

Redefining marriages or getting rid of the institution itself?

Even though the rules of marriage have been challenged by many including intersectional feminists and several women’s rights activists, we must not forget that it is an institution that was built on commodifying women and erasing all other gender identities and sexual orientations. The question then remains is how feasible is it to seek legal inclusion in an institution that has a history of sanctioned discrimination and violence? Then there is the complex concept of inclusion itself which does not connote automatic freedom from every kind of discrimination and violence within this system. The current changes in some marriage laws in India are definitely a miniscule step towards our journey for a gender-just world where definitions of companionship and love are not synonymous to this supposed holy institution. However, these amendments are not an end or a destination in itself and it is therefore wise to conclude that there’s a lot to be rewritten, reimagined and revolutionised. 


Komal Patil is a One Future Fellow and an active member of the One Future Collective Community.

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