Marriage misused as a tool of subjugation — Justice Surya Kant’s insight reshapes family law, equality, and cross-border challenges.
Have you ever paused to wonder: Is marriage truly an equal partnership — or has it long served as a veil for inequalities?
That question is no longer rhetorical. In a recent seminar, Supreme Court Justice Surya Kant surprised many by saying that “across continents, cultures, and eras, marriage has too often been misused as an instrument of subjugation against women.”
In India especially, this uncomfortable truth collides with our romantic ideals about marriage. And therein lies the tension: can our laws, culture and social practices transform marital relationships into ones of dignity, equality, and genuine partnership?
In this article, I explore:
- How marriage has historically been misused against women
- How family law is evolving (in India and beyond) to correct that
- What practical challenges remain — especially in cross-border cases
- What each reader (lawyer, spouse, social advocate) can take away to push for change
Primary keyword: “marriage misused as a tool of subjugation”
(You’ll see how this frames the rest of the narrative.)
Let’s dig in.
The Hidden Shadow — How Marriage Has Been Misused in History
Marriage as a tool of control — a global pattern
Justice Surya Kant’s remark is blunt but rooted in reality: across regions and ages, marriage was more than a love contract. It was (and often still is) an instrument of control.
- Dowry, bride price, and financial dependency: In many societies, women were given to men in exchange for property or money. This establishes transactional dynamics, not equitable partnership.
- Inheritance exclusion: Even if legally possible, women often found themselves disinherited or limited in property rights through customs.
- Legal and social sanction of polygamy or unilateral marital rights: In some systems, husbands had more rights to divorce or demand obedience.
- Cultural narratives of “obedience,” “purity,” and “sacrifice”: Over time, the spiritual framing of marriage made questioning inequality taboo.
These patterns aren’t confined to India. In medieval Europe, for instance, women’s rights in marriage were severely limited until property laws shifted. In many parts of Africa and Asia, bride service or dowry systems reinforced male dominance in marriage.
Key takeaway: The misuse of marriage is not a glitch — it’s woven into the fabric of patriarchal institutions over centuries.
India’s specific legacy
In India, historical social norms often treated women as under the guardianship of fathers, then husbands. The “sacred marriage” model gave little space for autonomy.
Over time, laws were introduced (often under colonial or post-independence regimes) to codify and regulate personal laws governing Hindus, Muslims, Christians, etc. But even then, the shift from “marriage as sacrament” to “marriage as contract + rights” was slow and uneven.
Some turning points:
- Hindu Marriage Act, 1955: provided legal structure to Hindu marriages.
- Shah Bano case / Muslim Women (Protection of Rights on Divorce) Act, 1986: These debates opened up what maintenance, dignity, and rights look like in Muslim personal law.
- Protection of Women from Domestic Violence Act, 2005: Recognized that the private sphere — the home — can also be a space of violence and control.
These reforms helped chip away at the entrenched bias — but justice is still a work in progress.
Family Law as a Mirror — How Law Reflects (and Shapes) Social Values
Justice Kant called family law “a living framework” — not just divorce rules, but the social conscience of a nation.
Let’s look at how family law in India (and, by comparison, England) has evolved to embody principles of equality, dignity, and compassion.
Evolving from “paternal protection” to “equality and dignity”
- From paternalism to partnership: Earlier interventions often treated women as needing protection (like children). The newer jurisprudence treats them as rights-holders.
- Judicial “transformative interpretation”: Courts have interpreted statutes like the Dowry Prohibition Act or domestic violence law broadly to protect autonomy and deter exploitation.
- Mandatory registration of marriages: Supreme Court has pushed for registration of marriages across religions to prevent child marriage, polygamy, forced marriage, and to secure women’s claims to maintenance, residence, and desertion protections.
- Equal inheritance / coparcenary rights: Landmark judgments have affirmed daughters can inherit equally in Hindu undivided families. LawBeat
- Reproductive rights as constitutional autonomy: Courts have recognized that a woman’s decision over her body is part of her fundamental right to privacy and dignity.
Mini summary: Family law is no longer just about property or divorce. It’s about dignity, autonomy, and rebalancing centuries of inequality.
What England offers as a comparative lens
Justice Kant often compared Indian developments to English law, especially in post-divorce financial remedies.
In England:
- The Miller / White v. White principles established that financial relief post-divorce should reflect contributions equally, not just income differences.
- The no-fault divorce concept (from recent legislation) diminishes adversarial blame and lets couples dissolve marriage without assigning fault.
These ideas resonate in India’s trajectory toward reducing adversarialism and centering fairness over blame.
Key takeaway: Viewing Indian law through a global lens helps expose both strengths and gaps; our journey is unique but echoes global shifts.
Cross-Border Complexities — When Families Span Jurisdictions
In today’s globalised world, many marriages are cross-cultural or cross-national. This introduces thorny legal puzzles — especially when children, maintenance, or property lie in different countries. Justice Kant addressed some of this.
Recognition of foreign judgments — a tricky terrain
- India’s courts have framed guidelines for recognizing foreign divorce decrees. But these don’t apply if the foreign judgment was procured by fraud, violates natural justice, or clashes with Indian substantive laws.
- For instance, if a spouse in another country gets a divorce under lax procedural standards, Indian courts may refuse to recognize it.
H3: Children and conflicting orders — who has final say?
- The principle of comity of courts demands mutual respect among jurisdictions, to avoid conflicting orders. Justice Kant emphasized this especially in child custody disputes.
- But when the welfare of the child is at stake, courts must prioritize “best interests of the child” over jurisdictional convenience.
- He cited a recent case: a 22-year-old son with cognitive disability, living in the US, was given custody to his mother because continuing advanced care in the US was in his best interest.
Real challenges on the ground
- Delay and jurisdiction shopping: Parties may try to file in courts more favorable to them.
- Enforcement issues: Even if a foreign judgment is recognized, enforcing maintenance or property orders across borders is hard.
- Cultural and legal mismatch: Laws and norms (custody rights, spousal maintenance, gender norms) might differ sharply across countries.
Takeaway: Cross-border family law is where idealism meets friction. The law must balance respect for foreign legal systems with safeguarding rights and welfare.
Common Mistakes, Pitfalls & What Still Needs Improvement
Even as laws evolve, real change is messy. Below are frequent pitfalls and areas still needing reform.
Mistakes by litigants, lawyers, and courts
- Viewing family law as “less serious”
Some treat it as emotionally charged but legally trivial. But it is tangled with equal rights, autonomy, and social norms. - Over-literal reading of statute without context
The transformative spirit of statutes can be lost when courts stick strictly to wording rather than purpose. - Ignoring intersectionality
Marriages cut across caste, religion, class, and disability. A one-size-fits-all approach won’t catch the nuances. - Delayed enforcement of protections
Even after favorable judgments, women may not secure maintenance, residence, or property in time.
What still needs reform or better implementation
- Uniform civil code vs pluralism
The tension between a unitary set of laws and respecting religious personal laws is unresolved. - Access to justice for marginalized women
Laws are useless if women lack resources, legal aid, or awareness. - Sensitive treatment of novel families
Interfaith, same-sex, live-in partnerships, surrogacy, assisted reproduction — laws struggle to keep pace. - Better handling of cross-border, digital, and migration issues
As more marriages cross national borders or rely on digital documentation, the law’s infrastructure must evolve.
Mini summary: Laws are necessary but not sufficient. Real change demands sensitized implementation and constant updates to match social reality.
What You Can Do as an Individual or Advocate
You don’t need to be a Supreme Court judge to push for fairer marriages and family law. Here are some steps — whether you’re a spouse, advocate, or observer.
Practical steps for those in a relationship
- Draft a mutual agreement early
A simple, written understanding about finances, property, and dispute resolution can reduce friction later. - Educate yourselves on rights
Know laws about maintenance, divorce, inheritance. Awareness gives you agency. - Use mediation and counseling
Before lawsuits, seek mediation. It can preserve relationships and reduce trauma.
For legal practitioners, activists, scholars
- Push for “judicial activism with caution”
Courts should interpret expansively but remain anchored in principles, not paternalism. - Advocate legal aid and gender-sensitive training
Judges, lawyers, and police should be trained to see women as full legal subjects, not victims. - Document data and contested cases
More case studies and empirical data can drive better policy and public understanding.
For society, media, influencers
- Challenge romantic myths
Narratives of “self-sacrifice” or “obedience” need rethinking. - Support women’s economic independence
A financially free spouse is less vulnerable to coercion. - Promote legal literacy at grassroots
Workshops in rural areas, colleges, and media platforms can change perceptions.
Key takeaway: Change doesn’t happen only in courtrooms. It begins in conversations, education, and daily practices.
Summary of Each Major Section
- Historical misuse: Marriage has been instrumentalised for patriarchal control across cultures, not just in India.
- Family law’s evolution: We’re moving from protectionism to equality, dignity, and autonomy.
- Cross-border issues: Global marriages test legal boundaries; courts must protect rights without losing coherence.
- Gaps and reforms: Implementation, sensitivity, and consistency remain major challenges.
- Practical steps: You can make a difference — in your relationship, profession, or community.
📣 Call to Action
I leave you with this reflection: if marriage was once a tool of control, can you help make it a tool of partnership?
- In your circle, how often do you see coercive norms masquerading as “tradition”?
- How can you (as spouse, professional, or friend) push for more equality, respect and agency within relationships?
If you feel strongly, leave a comment: which tradition or custom around marriage in your community needs rethinking?