Posted Jan 2025
Indian divorce and custody laws are well-intentioned to protect susceptible groups but often reflect traditional societal norms that can lead to gender imbalances in their application. Cross-border disputes are especially challenging for couples when one of the partners resides overseas.
With principles that are old and biased towards the female gender in custody decisions and allow provisions that may be misused in adversarial divorces, the need for a more neutral and internationally aligned legal system becomes ever so apparent. This article examines the inherent gender bias in Indian divorce laws and child custody laws in India by comparing them with more dynamic international trends leading to ways of reform.
Indian divorce laws operate under various personal laws, including the Hindu Marriage Act of 1955, the Indian Divorce Act of 1869, and the Muslim Personal Law (Shariat) Application Act of 1937. These laws, rooted in the traditions and philosophy of their respective communities, reflect a mix of progressive principles and inherent biases that influence their application.
One of the more significant concerns related to gender bias in Indian divorce laws is the treatment of alimony and maintenance under Section 125 of the Code of Criminal Procedure (CrPC). The law has been formulated in a way to protect women from destitution post-divorce. This provision does reflect the acknowledgment of the economic inequalities between genders. However, this establishment assumes a woman’s financial dependence on her spouse, regardless of her economic standing.
In cases where women are financially more stable than their partners, this presumption sounds outdated and even biased. Men, on the other hand, rarely have an alternative except to claim maintenance, even when they are financially weaker. The asymmetry between the two is a serious challenge to whether the law really achieves the principle of equality.
Another noteworthy complication to the issue is the misuse of provisions such as Section 498A of the Indian Penal Code. The section has provided significant protection to women against cruelty and domestic violence. However, it created a problem of its own by raising the instances of false accusations leading to unwarranted harassment of the accused and their families.
This has prompted debates about balancing the law’s protective intent with defenses against its misapplication. In Rajesh Sharma v. State of Uttar Pradesh (2017), the Supreme Court acknowledged these challenges and emphasized the need for a more judicious approach in dealing with cases under Section 498A. Read the full judgment here. This is very unfortunate that the Indian judiciary often appears indifferent to addressing these biases. However, divorce lawyers have the opportunity to take the lead and drive meaningful change
Child custody laws in India are another important aspect of divorce cases and often reveal the assumptions related to gender in Indian society. Custody is governed by rulings such as the Guardians and Wards Act of 1890, and the Hindu Minority and Guardianship Act of 1956. These laws speak about the “best interest of the child,” but practically, the mother is given custody, especially for small children.
This is driven by the myth that only mothers can care child in the early childhood years. Since this assumption takes its ground out of reality, there is always minimal recognition of involvement by fathers, even when fathers are competent, capable, or willing to act as sources of emotional and monetary security. Again, they come to be tagged as “weekend parents” because the prejudice against this co-parenting practice prevents the offspring from being adequately well-balanced regarding both parents’ relationship.
The landmark case of Githa Hariharan v. Reserve Bank of India (1999) challenged the assumption of exclusive maternal custody. The Supreme Court ruled that both parents have equal rights as natural guardians, marking a significant step toward gender-neutral custody laws. However, despite such rulings, the practical adoption of joint custody arrangements remains limited in India.
This joint custody, which is very common in many Western nations, balances out the situation where both parents can be actively involved in raising the child. In most Indian courts, this is very rarely enforced, thus sending their children solely to the mothers. Learn more about the case here.
Reforming gender bias in Indian divorce laws requires a combination of legislative amendments, judicial training, and societal awareness. These measures can narrow the gap between the law’s intent and its real-world application, nurturing a more equitable framework for all parties involved. The following are the crucial solutions that can be considered to tackle these issues –
Traditional laws need constant updating to ensure that they become fair and without bias. A straightforward rule about maintenance should incorporate both parties’ income, the ability to earn, and other financial liabilities and not consider gender. Ensuring joint custody with clear guidelines for visitation and shared responsibility would mean the involvement of the two parents with their child as well as making the child a central concern.
Judicial training in gender sensitivity can reduce bias and ensure decisions based on evidence, not stereotypes- mothers are caregivers, and men earn. Such a decision would then be fair and equal. This judicial oversight also prevents the misapplication of Section 498A while protecting actual victims. Careful scrutiny of evidence before giving interim orders to balance fairness with protection would serve the purpose well.
Reform requires more awareness and availability of legal aid. Many in the rural settings are not knowledgeable about their rights. Campaigns raise awareness about what legal options there are and why fair solutions are important. Free or low-cost access to legal aid ensures that everyone has a fair chance at justice, regardless of their financial condition.
A balanced approach to Indian divorce laws the epitome of the solution sought to balance traditional values with modern principles of equality. Targeted reforms and societal change are the keys to creating a jurisprudence that embodies the ideals of fairness and equity in India. Legislative modernization, judicial sensitization, and increased awareness form the holistic process toward that very goal. These measures both address existing bias and lay down a foundation to build a fairer and more inclusive society.
The complexities of gender bias in Indian divorce laws and child custody law in India reflect broader challenges of the balance between tradition and progress. Indeed, the law has made very significant steps to date, but there significant gaps remaining in achieving genuine equity. There is a great need for legal reform and a social attitude shift for both men and women to find justice.
