Institute of Legal and Management Studies

Supreme Court judge Justice Surya Kant has said that marriage, across cultures and eras, has too often been used as an instrument of subjugation against women, and that the law must continue to evolve to transform it into a partnership based on dignity, mutual respect and equality. He, however, acknowledged that contemporary legal and social reforms are gradually transforming marriage from a site of inequality into a pious partnership grounded in dignity, mutual respect, and equality.

“Across continents, cultures and eras, marriage has too often been misused as an instrument of subjugation against women,” he said. "While this remains an uncomfortable truth, 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.

He was speaking at a seminar on “Cross-Cultural Perspectives: Emerging Trends and Challenges in Family Law in England and India”, organised jointly by the Delhi Family Lawyers Association and the Delhi High Court Women Lawyers Forum at the Delhi High Court on Tuesday evening.

The event was attended by senior members of the Bar, including Ms. Barbara Mills, King's Counsel and Chair of the Bar Council of England and Wales, and Senior Advocate Priya Hingorani.

Justice Surya Kant began by commending the organisers for their “commendable initiative” in creating a space for meaningful dialogue on a branch of law that he described as “profoundly significant in the contemporary world, but often misunderstood and undervalued.”

“Family Law Lies at the Intersection of Emotion, Morality and Justice”

“Family law and its practice are often unduly simplified as being concerned only with divorce,” Justice Kant said. “Family courts are too often perceived as spaces charged with emotion and tension, and somehow less rigorous than criminal or public law practice. I could not disagree more.”

He described family law as a domain that sits at the intersection of emotion, morality and justice, and as one that requires a deep understanding of human relationships and social realities. “It governs our most intimate relationships while reflecting our cultural ethos and constitutional values,” he said.

Historical Roots and the Indian Mosaic

Justice Surya Kant drew an elaborate comparison between the historical trajectories of family law in England and India. He noted that while English family law evolved from ecclesiastical courts towards secular principles of fairness and equity, India's evolution was more complex, rooted in 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 said, adding that pre-colonial family relations were shaped more by social and moral order than by codified law.

He observed that the colonial-era codification of personal laws failed to capture India's vast cultural and religious diversity. “India is a beautiful mosaic of religions, languages, cultures and regional diversities, each with its own way of carrying on traditions and conventions,” he said.

After Independence, he noted, the legislature and judiciary undertook the enormous task of reconciling personal laws with the constitutional vision of equality and justice. “The result has been a plural legal framework blending traditional conventions with modern realities,” he said, referring to the Hindu Marriage Act, 1955 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 as key examples.

Towards Gender-Just Family Law

Justice Surya Kant noted that the modern evolution of family law in both England and India reflects a growing commitment to gender equality. In England, he said, the principle of fairness governs financial remedies after divorce. Referring to the Miller v. Miller and White v. White decisions, he said these cases recognised equality of contribution between spouses, moving beyond the “breadwinner versus homemaker” divide.

He also pointed to the Divorce, Dissolution and Separation Act, 2020, which introduced the concept of “no-fault divorce” in England, ending the culture of blame in marital dissolution.

In India, he said, both the legislature and judiciary have taken significant measures to protect women's rights, citing the Dowry Prohibition Act, 1961 and the Protection of Women from Domestic Violence Act, 2005. He added that the Supreme Court's directive mandating registration of marriages was intended to check child marriages, bigamy and desertion, and to strengthen women's claims to maintenance and residence.

He described landmark judgments such as Shayara Bano v. Union of India, which struck down instant triple talaq, and Vineeta Sharma v. Rakesh Sharma, which affirmed daughters' equal coparcenary rights, as transformative steps towards gender justice. “Indian family law,” he said, “is an evolving body of jurisprudence that is empathetic without being paternalistic, and principled without being rigid.”

He also recalled Suchita Srivastava v. Chandigarh Administration, where the Supreme Court recognised a woman's reproductive autonomy as part of her personal liberty under Article 21, calling it a “watershed affirmation of dignity and choice.”

Cross-Border Family Disputes and Child Welfare

Turning to contemporary challenges, Justice Surya Kant said that globalisation and cross-cultural marriages have brought new complexities to family law, especially in the area of recognition of foreign divorce decrees and child custody disputes.

“With spouses residing in different countries, cross-border matrimonial disputes are increasingly common,” he observed. “Our Supreme Court has laid down comprehensive guidelines governing the recognition of foreign matrimonial judgments. However, such judgments will not be recognised in India if they are obtained by fraud or in violation of natural justice.”

He said these disputes become even more sensitive when children are involved, and courts must carefully balance the comity of courts with the best interests of the child. He praised both the Indian and English legal systems for giving paramount importance to child welfare.

Justice Surya Kant referred to a recent case he handled, involving custody of a 22-year-old man with a cognitive disability, where the Court allowed him to live with his mother, a US citizen, considering that it was in his best interest to continue receiving advanced healthcare abroad.

Law as a Social Engineer

Concluding his address, Justice Surya Kant said that family law must continue to adapt to changing social realities while remaining deeply attuned to human emotion and empathy.

Quoting a line he recently came across, he said, “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 said. “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 urged judges, lawyers and scholars to continue to make family law “humane, inclusive and responsive to the changing contours of family and society.”

The seminar concluded with an engaging discussion among participants, who reflected on the shared challenges of balancing tradition with social progress, and reaffirmed that justice in family law must always begin with empathy, equality and care.