Marriage as Subjugation: Across Continents, Cultures, and Eras
- Abstract
This article examines how marriage has frequently been used to subordinate women in different societies, eras, and legal systems. It analyses historical practices, legal doctrines, and modern case law and human rights instruments to show patterns of inequality built into marital institutions. The article argues that legal reforms—particularly in marriage registration, consent, property, and divorce laws—are essential to protect women’s autonomy and dignity. - Introduction
Marriage is often treated as a private, sacred, or cultural institution. Yet its legal, social, and economic dimensions have often enabled, rather than prevented, the subjugation of women. Across continents and historical periods, marriage has been used to limit women’s rights: restricting their autonomy, controlling their property, enforcing unwanted sexual relations, and denying their equality. This article traces some of those patterns; examines how modern law (both domestic case law and international human rights law) has responded; and proposes legal reforms to reduce or eliminate such misuse. - Historical Patterns of Subjugation in Marriage
a. Ancient and Pre‐Modern Laws
i. In many ancient codes, such as the Code of Hammurabi, women were treated largely as dependents: their legal status was attached to male relatives.
ii. Under Roman law, the doctrine of manus (control by husband) meant that a married woman was under her husband’s legal power.b. Religious and Customary Systems
i. In many societies, religious or customary norms have given husbands authority over wives’ mobility, dress, sexual behavior, or consent.
ii. Dowry and bride price systems sometimes turn marriage into an economic transaction, increasing women’s dependency or loss of negotiating power.c. Colonialism and Legal Imposition
i. Colonial legal systems often codified or reinforced patriarchal customary norms, tying women’s legal rights to male guardians, limiting their inheritance or autonomy. - Legal Doctrines That Have Enabled Subjugation
i. Marital Unity and Male Headship
The common law doctrine of coverture treated a married woman’s legal identity as subsumed in that of her husband. Married women could not sue, hold property independently, etc.
ii. Lack of Consent and Forced or Child Marriage
In many places, consent was treated as optional: marriages arranged by families or communities, sometimes forcing children into wedlock.
iii. Sexual and Domestic Obligations Without Recourse
Laws criminalizing adultery but not recognizing marital rape; tolerating domestic abuse within marriage because of doctrine that binds women to remain submissive.
iv. Property and Economic Disadvantages
Married women often excluded from inheritance, had restricted property rights, or lost control over their wages or earnings. - Modern Legal Responses
a. International Human Rights Instruments
i. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires State Parties to eliminate discrimination in “all matters relating to marriage and family relations.”
ii. Other instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights provide for rights to consent, equality, and protection from discrimination.
b. Domestic Case Law Examples
i. Women’s Legal Centre Trust v President of the Republic of South Africa and Others, 2022 (5) SA 323 (CC) (Constitutional Court of South Africa). In that case, the Court held that failure to recognize Muslim marriages (solemnized under Sharia law but not registered civilly) violated constitutional rights, including equality and dignity.
ii. Sarla Mudgal v. Union of India, AIR 1995 SC 1531. In that decision, the Supreme Court of India dealt with a husband’s conversion to Islam after a Hindu marriage, and whether that allowed him to solemnize another marriage without dissolution of the first. The Court held that the second marriage would be invalid under Indian Penal Code § 494 and that personal law cannot override statutory prohibition.
iii. Hadiya (Shafin Jahan v. Ashokan K.M & Ors.), (2017–2018). The Indian Supreme Court affirmed the right of an adult woman to choose her religion & spouse, rejecting claims that her marriage was forced or convened through brainwashing.
iv. Case of Mohd. Julfukar v. The State of Uttarakhand & Another, Criminal Appeal No. 174 of 2024. The Supreme Court quashed a rape FIR because though the complainant alleged being forced into marriage, the sexual relationship was after the marriage, and the Court found no initial forced sexual act under IPC Section 376.
v. Statutory and Regulatory Reforms- Laws against child marriage (e.g. Prohibition of Child Marriage Acts in several countries).
- Statutes require registration of marriages to ensure proof, legal recognition, and protection.
- Domestic violence laws include marital cruelty, protection orders, rights to maintenance etc.
- Gaps and Continuing Challenges
i. Marital Rape
Many legal systems still do not criminalize sexual violence within marriage. Even where laws exist, cultural norms or legal exceptions often prevent enforcement.
ii. Forced and Child Marriage Persisting
Practices of early marriage or forced marriage continue, especially in rural or traditional contexts. Socioeconomic pressure, gendered expectations persist.
iii. Property, Inheritance & Economic Dependence
Laws may exist, but social practices deny women their rights. Also, registration requirements, proof of marriage, or property titles may be biased or difficult to enforce.
iv. Recognition of Non‐Registered Marriages
Many marriages under religious or customary law are not officially registered, leaving women without legal protection in divorce, inheritance, or maintenance matters. - Legal Reform Proposals
i. Mandatory and Universal Marriage Registration
All marriages—whether religious, customary, civil—should be registered. This ensures legal recognition and proof.
ii. Ensuring Free and Full Consent
Laws should explicitly require free consent. No marriage under coercion, fraud, or when one party is a child (under internationally accepted minimum age).
iii. Criminalizing Marital Rape and Broadening Definitions of Cruelty
Modern legal systems should criminalize rape without a marriage exception, and define cruelty (physical, psychological, sexual) to include abuses within marriage.
iv. Guaranteeing Women’s Property and Inheritance Rights
Statutes should ensure married women have equal property rights, control over earnings, equal inheritance, and rights after divorce or widowhood.
v. Judicial Enforcement and Access to Justice
Legal aid, accessible courts; removing procedural barriers that disproportionately affect women; education of judiciary and law enforcement to cultural biases. - Conclusion
Marriage can be a source of great joy and mutual support. But when it is structured so that one partner—usually the woman—is legally, economically, socially subordinate, it becomes a tool of oppression. Across continents, cultures, and eras, we see that without legal and social checks, marriage has too often been misused to maintain male authority, suppress women’s agency, and limit their rights. Modern law has begun, in many places, to respond: through human rights treaties, case law, and statutory reforms. Yet serious gaps remain. To protect women fully, we need reforms that ensure consent, equality, economic autonomy, and protection in both law and practice.This article has been researched and written by Advocate Aarun Chanda, practicing divorce law in Mumbai and Pune. This article is intended solely for academic purposes and should not be construed as legal advice. Readers are encouraged to consult a qualified lawyer/advocate specializing in divorce cases for professional legal guidance.Seeking expert legal guidance?- Contact The Divorce Law Firm today.
