Marriage Historically Misused to Subjugate Women, Law Must Engineer Change: SC Judge Surya Kant

NEW DELHI – In a powerful address on the evolving nature of family law, Supreme Court Justice Surya Kant asserted that marriage has been historically misused as an "instrument of subjugation against women," and called for the continued evolution of law to function as a "social engineer," transforming the institution into a partnership based on equality, dignity, and mutual respect.

Speaking at a seminar on “Cross-Cultural Perspectives: Emerging Trends and Challenges in Family Law in England and India,” Justice Kant offered a profound analysis of family jurisprudence, urging legal professionals to view the practice not merely as a field of emotional disputes, but as a critical domain at the "intersection of emotion, morality and justice." The event, held at the Delhi High Court, was jointly organized by the Delhi Family Lawyers Association and the Delhi High Court Women Lawyers Forum, and was attended by prominent legal figures including Barbara Mills KC, Chair of the Bar Council of England and Wales.

"Across continents, cultures and eras, marriage has too often been misused as an instrument of subjugation against women,” Justice Kant stated, acknowledging this as an "uncomfortable truth." He noted, however, that a positive transformation is underway. "Contemporary legal and social reforms in both jurisdictions are gradually transforming marriage from a site of inequality into a pious partnership grounded in dignity, mutual respect, and constitutional values of equality," he added.

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Reframing Family Law Beyond Divorce

Justice Kant began by challenging the common, simplistic perception of family law. He strongly disagreed with the view that family courts are merely "spaces charged with emotion and tension, and somehow less rigorous than criminal or public law practice."

“I could not disagree more,” he declared, describing family law as a domain that governs our most intimate relationships while reflecting our cultural ethos and constitutional values. He argued that it demands a deep, nuanced understanding of human relationships and complex social realities, making it one of the most significant and challenging areas of legal practice.

A Tale of Two Legal Trajectories: England and India

Drawing a detailed comparison, Justice Kant contrasted the historical development of family law in England and India. He observed that English family law evolved from the ecclesiastical courts to embrace secular principles of fairness and equity. In contrast, India's path has been more complex, deeply rooted in a mosaic of religious and customary traditions.

"In early Indian tradition, marriage was regarded not as a civil contract but as a sacred and enduring sacrament — a sanskara deeply rooted in philosophical thought,” he explained. He pointed out that pre-colonial family relations were governed more by a socio-moral order than by codified law.

The colonial-era attempt to codify these personal laws, he argued, was inherently flawed as it failed to capture the subcontinent's vast diversity. Post-independence, the Indian legislature and judiciary faced the monumental task of aligning these disparate personal laws with the constitutional vision of equality and justice. This has resulted in a unique pluralistic legal framework, exemplified by statutes like the Hindu Marriage Act, 1955, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, which blend traditional conventions with modern constitutional imperatives.

The Judiciary's March Towards Gender Justice

A central theme of Justice Kant's address was the judiciary's proactive role in advancing gender equality within the family. He highlighted landmark legal developments in both nations that reflect a shared commitment to this goal.

In England, he cited the seminal cases of White v. White and Miller v. Miller , which established the principle of fairness in financial settlements post-divorce and crucially recognized the equal contribution of the homemaker and the breadwinner. He also lauded the Divorce, Dissolution and Separation Act, 2020, which introduced "no-fault divorce" and ended the detrimental culture of blame in marital breakdowns.

In the Indian context, Justice Kant pointed to a series of transformative legislative and judicial interventions. He referenced the Dowry Prohibition Act, 1961, and the Protection of Women from Domestic Violence Act, 2005, as critical legislative safeguards. He also underscored the Supreme Court's directive for mandatory registration of marriages as a vital tool to combat child marriage, bigamy, and spousal desertion.

He hailed several landmark judgments as pivotal moments in this evolution: * Shayara Bano v. Union of India : The historic verdict that struck down the practice of instant triple talaq (talaq-e-biddat) as unconstitutional. * Vineeta Sharma v. Rakesh Sharma : The judgment that affirmed daughters have equal coparcenary rights in Hindu Undivided Family property, irrespective of whether their father was alive when the Hindu Succession (Amendment) Act, 2005 came into force. * Suchita Srivastava v. Chandigarh Administration : A "watershed affirmation of dignity and choice," this case recognized a woman's reproductive autonomy as an integral part of her personal liberty under Article 21 of the Constitution.

These decisions, he argued, demonstrate that "Indian family law is an evolving body of jurisprudence that is empathetic without being paternalistic, and principled without being rigid.”

Navigating Modern Challenges: Cross-Border Disputes

Addressing contemporary issues, Justice Kant acknowledged the new complexities introduced by globalization and cross-cultural marriages. He noted the increasing prevalence of cross-border matrimonial disputes, particularly concerning the recognition of foreign divorce decrees and international child custody battles.

"Our Supreme Court has laid down comprehensive guidelines governing the recognition of foreign matrimonial judgments," he said, cautioning that "such judgments will not be recognised in India if they are obtained by fraud or in violation of natural justice.”

He emphasized that these disputes become exceptionally sensitive when children are involved. In such cases, courts must delicately balance the principle of comity of courts with the paramount consideration of the child's best interests. Citing a recent case he presided over involving a 22-year-old with a cognitive disability, he explained how the Court prioritized the individual's welfare by allowing him to live with his mother in the US to continue receiving advanced healthcare.

Conclusion: Law as a Living Instrument

Concluding his address, Justice Kant reiterated his vision for family law as a dynamic and empathetic field. He quoted a line that deeply resonated with him: “Law must be a social engineer, responding to the felt necessities of time and the silent cry of the weak.”

“This sentiment captures the very essence of family law,” he affirmed. "It must blossom with society, yet remain deeply attuned to the human condition."

He called upon judges, lawyers, and legal scholars to continue their collective effort to shape a family law jurisprudence that is "humane, inclusive and responsive to the changing contours of family and society," reaffirming that true justice in this domain must always begin with empathy, equality, and care.