Marriage Historically Misused to Subjugate Women, Law Must Evolve Towards Equal Partnership: Justice Surya Kant

NEW DELHI – In a powerful address on the evolution of family law, Supreme Court judge Justice Surya Kant asserted that marriage has historically been "misused as an instrument of subjugation against women," and emphasized the judiciary's role in transforming the institution into a "pious partnership grounded in dignity, mutual respect, and constitutional values of equality."

Speaking at a seminar on “Cross-Cultural Perspectives: Emerging Trends and Challenges in Family Law in England and India,” Justice Kant offered a comprehensive analysis of the jurisprudential shifts in both nations. The event, held at the Delhi High Court, was a joint initiative by the Delhi Family Lawyers Association and the Delhi High Court Women Lawyers Forum, and was attended by senior legal figures, including Barbara Mills KC, Chair of the Bar Council of England and Wales.

Justice Kant began by challenging the common undervaluation of family law, pushing back against the notion that it is a less rigorous field than criminal or public law. "Family law and its practice are often unduly simplified as being concerned only with divorce," he stated. "I could not disagree more." He characterized it as a profound domain "that sits at the intersection of emotion, morality and justice," demanding a deep understanding of human relationships and social realities.

A Tale of Two Legal Trajectories: England and India

Justice Kant drew a detailed comparison between the historical development of family law in England and India, highlighting their distinct paths toward modernization. He noted that English family law evolved from its ecclesiastical origins towards secular principles of fairness and equity.

In contrast, India's journey has been more complex, shaped by a "beautiful 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. The codification of personal laws during the colonial era, he observed, was an inadequate attempt to capture this immense diversity.

Post-independence, the Indian legislature and judiciary embarked on the monumental task of aligning these personal laws with the constitutional vision of equality and justice. This has resulted in a pluralistic legal framework, blending tradition with modern constitutionalism, as exemplified by foundational statutes like the Hindu Marriage Act, 1955.

The March Towards Gender-Just Jurisprudence

A central theme of Justice Kant's address was the relentless and necessary evolution of family law towards gender equality. "While this remains an uncomfortable truth, contemporary legal and social reforms... are gradually transforming marriage from a site of inequality into a pious partnership," he remarked.

Indian Reforms and Landmark Judgments:

Justice Kant lauded the proactive role of both the Indian legislature and judiciary in safeguarding women's rights. He cited key legislative measures such as the Dowry Prohibition Act, 1961, and the Protection of Women from Domestic Violence Act, 2005, as critical steps. Furthermore, he highlighted the Supreme Court's directive for mandatory registration of marriages as a crucial tool to combat child marriage, bigamy, and desertion, thereby strengthening women's claims to maintenance and residence.

He underscored the transformative impact of landmark Supreme Court rulings:

• Shayara Bano v. Union of India : This judgment, which invalidated the practice of instant triple talaq (talaq-e-biddat), was hailed as a monumental step towards securing the dignity and rights of Muslim women.
• Vineeta Sharma v. Rakesh Sharma : By affirming daughters' equal coparcenary rights in ancestral property, this decision dismantled a significant pillar of gender-based discrimination in Hindu succession law.
• Suchita Srivastava v. Chandigarh Administration : Justice Kant described this case, which recognized a woman's reproductive autonomy as an integral part of her personal liberty under Article 21, as a "watershed affirmation of dignity and choice."

Through these interventions, he argued, "Indian family law is an evolving body of jurisprudence that is empathetic without being paternalistic, and principled without being rigid."

Developments in English Law:

Justice Kant also pointed to parallel developments in England, noting the country's commitment to fairness in financial remedies post-divorce. He referenced the landmark cases of White v. White and Miller v. Miller , which established the principle of equality of contribution, effectively moving past the outdated "breadwinner versus homemaker" dichotomy. The introduction of "no-fault divorce" through the Divorce, Dissolution and Separation Act, 2020, was also praised for ending the "culture of blame" in marital dissolutions.

Navigating Modern Complexities: Cross-Border Disputes and Child Welfare

The contemporary challenges posed by globalization and cross-cultural marriages were another key focus of the address. "With spouses residing in different countries, cross-border matrimonial disputes are increasingly common," Justice Kant observed.

He clarified the Indian judiciary's position on recognizing foreign matrimonial judgments, stating that the Supreme Court has established comprehensive guidelines. "Such judgments will not be recognised in India if they are obtained by fraud or in violation of natural justice," he asserted.

These disputes, he added, become acutely sensitive when children are involved. The courts face the delicate task of balancing the comity of courts with the paramount principle 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, allowing him to live with his US-citizen mother to ensure access to advanced healthcare. This, he noted, exemplifies the child-centric (or in this case, ward-centric) approach adopted by the judiciary.

The Law as a Social Engineer

In his concluding remarks, Justice Kant offered a profound vision for the future of family law. Quoting a line that resonated with him, he said, "Law must be a social engineer, responding to the felt necessities of time and the silent cry of the weak."

This sentiment, he argued, captures the very essence of the field. "It must blossom with society, yet remain deeply attuned to the human condition. Both in England and India, family law stands as a living instrument that mirrors our collective commitment to justice, equality and compassion."

He issued a call to action for judges, lawyers, and legal scholars to continue their work in making family law more "humane, inclusive and responsive to the changing contours of family and society," ensuring that justice in this intimate sphere always begins with empathy and equality.