Marriage Historically an Instrument of Subjugation, Law Must Engineer Social Change: Justice Surya Kant

New Delhi – In a powerful address on the evolution of family law, Supreme Court Justice Surya Kant asserted that marriage has been historically “misused as an instrument of subjugation against women,” and stressed the judiciary's ongoing duty to transform the institution into a partnership founded on constitutional values of equality and dignity. Speaking at a seminar in the Delhi High Court, Justice Kant provided a comprehensive comparative analysis of family law in India and England, highlighting landmark reforms and outlining the path toward a more humane and gender-just legal framework.

The seminar, titled “Cross-Cultural Perspectives: Emerging Trends and Challenges in Family Law in England and India,” was a joint initiative by the Delhi Family Lawyers Association and the Delhi High Court Women Lawyers Forum. The event drew a distinguished audience, including senior members of the Bar from both nations, such as Ms. Barbara Mills KC, Chair of the Bar Council of England and Wales.

Elevating the Discourse on Family Law

Justice Kant began by challenging the common undervaluation of family law, a practice area often perceived as less rigorous than criminal or public law. "Family law and its practice are often unduly simplified as being concerned only with divorce," he remarked. "Family courts are too often perceived as spaces charged with emotion and tension... I could not disagree more."

He repositioned family law as a complex and profound domain sitting "at the intersection of emotion, morality and justice." It requires not only legal acumen but also a deep understanding of human relationships and social realities, governing our most intimate connections while reflecting our collective cultural and constitutional ethos.

A Tale of Two Legal Trajectories: India and England

Justice Kant meticulously traced the divergent historical paths of family law in the two jurisdictions. While English law evolved from the authority of ecclesiastical courts toward secular principles of fairness and equity, India’s journey has been significantly more complex, navigating a rich tapestry 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 noted that the colonial-era attempts to codify these diverse personal laws were often inadequate, failing to capture the vast cultural mosaic of the subcontinent.

Post-independence, the Indian legislature and judiciary embarked on the monumental task of harmonizing these pluralistic personal laws with the constitutional vision of equality. This effort, Justice Kant observed, has resulted in a unique legal framework that blends traditional conventions with modern realities, citing foundational statutes like the Hindu Marriage Act, 1955, and the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Unwavering March Towards Gender Justice

A central theme of the address was the progressive movement towards gender equality in family law, a shared commitment in both India and England. Justice Kant praised English jurisprudence, particularly the landmark decisions in White v. White and Miller v. Miller , for establishing the principle of fairness in financial remedies and recognizing the equal contribution of spouses, thereby dismantling the archaic "breadwinner versus homemaker" divide. He also highlighted the Divorce, Dissolution and Separation Act, 2020, which introduced "no-fault divorce" in England, as a pivotal step in ending the culture of blame.

Turning to India, Justice Kant cataloged the significant legislative and judicial milestones that have fortified women's rights. He cited the Dowry Prohibition Act, 1961, and the Protection of Women from Domestic Violence Act, 2005, as crucial protective statutes. He further emphasized the Supreme Court's directive for mandatory registration of marriages as a vital tool to combat child marriage, bigamy, and spousal desertion, while strengthening women's claims to maintenance.

Justice Kant described several Supreme Court judgments as transformative moments for gender justice:

- Shayara Bano v. Union of India : This landmark verdict struck down the practice of instant triple talaq (talaq-e-biddat), affirming the dignity and rights of Muslim women.

- Vineeta Sharma v. Rakesh Sharma : The Court affirmed that daughters have equal coparcenary rights in Hindu Undivided Family property, irrespective of whether their father was alive when the 2005 amendment to the Hindu Succession Act came into force.

- Suchita Srivastava v. Chandigarh Administration : This judgment was hailed as a "watershed affirmation of dignity and choice," recognizing a woman's reproductive autonomy as an integral part of her personal liberty under Article 21 of the Constitution.

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

Navigating Contemporary Challenges: Cross-Border Disputes and Child Welfare

Looking ahead, Justice Kant addressed the new complexities introduced by globalization and cross-cultural marriages. "With spouses residing in different countries, cross-border matrimonial disputes are increasingly common," he observed. He outlined the Supreme Court's guidelines on the recognition of foreign matrimonial judgments, stressing that they would not be upheld in India if obtained through fraud or in violation of natural justice principles.

These disputes, he noted, become exceptionally sensitive when children are involved. The courts face the delicate task of balancing the principle of comity of courts with the paramount consideration of the child's best interests. He commended both the Indian and English legal systems for prioritizing child welfare. Illustrating the principle, he referred to a recent case he handled involving a 22-year-old man with a cognitive disability, where the Court permitted him to live with his US-citizen mother to ensure he continued receiving advanced medical care abroad, deeming it in his best interest.

Law as a Social Engineer: A Vision for the Future

In his concluding remarks, Justice Kant offered a profound vision for the role of family law in a modern society. Quoting a sentiment he recently encountered, he stated, “Law must be a social engineer, responding to the felt necessities of time and the silent cry of the weak.”

This, he declared, is the very essence of family law. "It must blossom with society, yet remain deeply attuned to the human condition," he said. He urged judges, lawyers, and scholars to continue their collective effort to shape a body of law that is "humane, inclusive and responsive to the changing contours of family and society," ensuring that justice in this intimate domain always begins with empathy, equality, and care.