Marriage misused as a tool to subjugate women since time immemorial: Supreme Court Justice Surya Kant

Evolution of family law jurisprudence should be grounded on concepts of gender equality and human dignity, Supreme Court Justice Surya Kant said on Wednesday. .Justice Kant opined that this is the only acceptable path forward as marriage has often been used a tool to subjugate women from time immemorial, across the globe."Marriage, by its very nature, can be demanding for both partners. Yet history reveals that across continents, cultures and eras, it has too often been misused as an instrument of subjugation against women. 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 said. .Justice Kant was speaking at a seminar organised by the Delhi Family Lawyers Association in collaboration with the Delhi High Court Women Lawyers Forum on the topic of 'Cross-cultural perspectives: Emerging trends and challenges in Family Law in England and India'..Justice Kant observed that both in India and England, gender equality is being increasingly recognised as the guiding principle for the evolution of family law jurisprudence. "In both India and England, the most significant area of convergence today lies not merely in the evolving interpretation of these institutions, but in the growing recognition of gender equality as their guiding principle," he said..In India, the evolution of family law followed a layered route, Justice Kant said.In this regard, he highlighted the early traditions of marriage, legitimacy and inheritance being rooted in religious and philosophical thoughts and customs. The codification of personal laws for Hindus and Muslims took place only during the colonial period, Justice Kant said. However, these codifications were far from perfect."This effort, though administrative in intent, did not account for the diverse practices and deeply rooted belief systems that informed each community’s understanding of family and kinship. The result was a series of legal formulations that often stood at odds with indigenous traditions. In my opinion, such an industrious effort could not have borne any fruit without truly appreciating that India is a beautiful mosaic of religions, languages, cultures and regional diversities, where each community has its own distinct way of carrying on its practices, traditions and conventions," Justice Kant elaborated.The Supreme Court judge went on to explain that it was only after independence that the Indian legislature and judiciary restructured family laws to develop the diverse legal framework that exists today."The Supreme Court has made significant strides by mandating the registration of marriage irrespective of religion, to keep a check on child marriages, prevent marriages without consent, check bigamy or polygamy, enable women’s right to maintenance, inheritance and residence," he added. .However, one recurring issue in family law cases is with regard to the recognition and indirect enforcement of foreign divorce decrees, Justice Kant said.He suggested that the path forward is for courts to act with mutual respect while ensuring that they keep the best interests of the children involved in matrimonial cases, at the forefront."In such cases, it becomes imperative for courts across jurisdictions to uphold the principle of comity of courts—ensuring mutual respect and cooperation in adjudication—while remaining steadfast in their primary duty to protect the welfare and well-being of the child," Justice Kant said.