The most frequently asked question in an international divorce involving India is: will I fare better financially if I file for divorce in India? The honest answer: it depends on whether the person asking is the wife or the husband.
For an Indian wife, it makes little difference whether she is Hindu, Muslim, Sikh or Christian. Regardless of religion, the law rarely works in her favour. Thus, in Indian divorce proceedings, it is gender, far more than religion, that proves decisive.
Once again, it took the Indian film industry, not Parliament and not the courts, to drag gender injustice in domestic relations back into public consciousness. From Thappad to Haq, Bollywood continues doing what our legal system hesitates to do: hold up a mirror.
Haq literally means “one’s right.” Yet in any international comparison, the obvious question is: where are those rights?
Consider this: only in 2017 did India finally declare triple talaq - a practice where a Muslim husband could instantly end a marriage simply by saying “talaq” three times, sometimes even by text message - unconstitutional. The marriage dissolved immediately, with no notice, no waiting period, no due process and no opportunity for the wife to contest it. It took decades to strike down a practice fundamentally incompatible with human rights norms and the public policy of most modern legal systems. Meanwhile, Nikah Halala, polygamy and restitution of conjugal rights still await their long-overdue constitutional reckoning.
And even as we celebrate the abolition of one archaic practice, we remain nowhere close to addressing the gender-inequality in Indian divorce law. Take the financial distribution of assets upon the dissolution of a marriage, for instance. Across much of the world, there is at least a basic recognition that marriage creates an economic partnership deserving of fair division when it ends.
In the United States, 41 states follow equitable distribution, 9 follow community-property principles and 2 two retain limited title-leaning regimes. The United Kingdom divides marital assets based on needs and sharing, treating caregiving and homemaking as equal contributions. Canada equalises net family property. Australia evaluates all contributions (financial, domestic and caregiving). Even South Africa, Singapore and much of the European Union recognise marriage as an economic partnership with clear statutory rules for sharing assets accumulated during the marriage.
India, meanwhile, has none of these protections. There is no statutory concept of marital property, no 50:50 presumption and no equitable distribution framework. This holds true across religions, including under the Special Marriage Act, which one might naïvely expect to be more aligned with contemporary global standards. In practice, the only time assets are divided is when both spouses’ names appear on the title. And even then, the property is treated as ordinary co-ownership, not as the result of joint marital labor, caregiving sacrifice or economic partnership.
For perspective, New York abandoned the title theory in 1980 and became an equitable distribution regime and even then, it was considered embarrassingly late. Yet, here we are in 2025, and India still lacks even the most basic statutory marital property regime.
In the absence of legislative guidance, courts stretch the doctrine of maintenance, borrowing principles from constructive trust or broad equity to fill the void. The results are inconsistent, unpredictable and chronically inadequate for the financially weaker spouse - usually the wife. And instead of empowering her with clear financial rights, the law hands her an assortment of gender-specific criminal provisions to pursue against the husband. This does not create economic security; it merely shifts the arena to criminal court while leaving the underlying injustice untouched.
Yes, we occasionally see landmark judgments advancing gender equality in family law, but they usually lack the statutory backing needed to transform everyday outcomes. As far back as 2006, the Supreme Court in Naveen Kohli v. Neelu Kohli urged Parliament to recognise irretrievable breakdown of marriage as a statutory ground for divorce - an appeal that went unanswered for nearly two decades. More recently, the Court in Shilpa Sailesh v. Varun Sreenivasan (2023) and Nandini Bajaj v. Gaurav Bajaj (2024) again acknowledged irretrievable breakdown as a valid ground under Article 142, finally giving judicial voice to what countless spouses have lived through for years.
Yet, despite these repeated milestones, Parliament has not amended a single marriage law to incorporate this ground, leaving litigants dependent on the Supreme Court’s extraordinary powers rather than on accessible, predictable legislation.
If the law cannot even adopt a universally accepted ground for dissolving a dead marriage, it is no surprise that it has also failed to confront the far more foundational issue of marital property, where the financial fate of women is decided.
Why these judicial developments never become statutory reforms remains the central unanswered question.
In 1979, the US Supreme Court in Orr v. Orr struck down an Alabama law that required only husbands to pay alimony, holding that support cannot rest on gender stereotypes but must be based on need and ability to pay. Legislatures across the United States updated their statutes accordingly. That was almost fifty years ago.
In the recent decades, many nations have modernised their family law frameworks to recognise marriage as a genuine economic partnership. India, meanwhile, continues to celebrate incremental victories while avoiding the structural reforms women urgently need.
A country that prides itself on constitutional equality cannot keep leaving half its population to fight for rights the rest of the world has long addressed.
Stutee Nag is an international family law attorney licensed in India, New York and New Jersey.