Courts Across Jurisdictions Must Uphold 'Comity Of Courts' In Cross-Border Marital Disputes Involving Children: Justice Surya Kant

Supreme Court judge, Justice Surya Kant, on Wednesday said that Courts, across jurisdictions, must uphold the principle of “comity of Courts” in cross-border marital disputes involving children.

“It becomes imperative for courts across jurisdictions, in such cases, 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,” he said. 

The judge was speaking at a seminar on “Cross Cultural Perspectives: Emerging Trends and Challenges in Family Law in England and India.”

The seminar was organized by Delhi Family Lawyers Association in collaboration with Delhi High Court Women Lawyers Forum.

Justice Kant was the Chief Guest of the event. Ms. Barbara Mills KC, Chair of Bar Council of England and Wales, was the keynote speaker.

In his address, Justice Kant said that a recurring issue that frequently arises across Courts in India concerns the recognition and indirect enforcement of foreign divorce decrees.

He said that the challenge faced by many jurisdictions today, as the world grows increasingly interconnected, and spouses often reside in different countries, is giving rise to cross- border matrimonial dispute.

He said that protection of children and the safeguarding of their welfare is a principle universally recognised across jurisdictions, and that both India and England share a largely aligned approach.

“The doctrine of the 'best interests of the child' has likewise been firmly entrenched by Indian courts across a wide range of family law matters and has been applied with equal rigour even in cases concerning the adoption and custody of children,” Justice Kant said.

He added: “In fact, I recently had the opportunity to apply this doctrine in a case where custody of a 22-year-old son with a cognitive disability was awarded to his mother—a US citizen. The decision was guided by the consideration that since he had been receiving state-of-the-art healthcare in the United States, it would be in his 'best interests' to reside with his mother abroad.”

Further, Justice Kant lamented that family Law, perhaps more than any other branch of private law, exists at the intersection of emotion, morality, and justice.

He said that family law is one of the most intricate areas of legal practice, which demands from both judges and practitioners, a nuanced understanding of human relationships, social realities, and the art of interpreting static laws to resolve interwoven familial conflicts.

“In both England and India, the evolution of Family Law tells a story larger than that of marriage or inheritance—it tells the story of how societies negotiate change, how they reconcile faith with freedom, and how they transform the private toward the constitutional realm,” the judge said.

Further, Justice Kant said that 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.

The judge emphasized that 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, deter desertion; and possible exploitation of young women.

He said that such rulings have also made way for decisions such as that in Shayara Bano case where the practice of triple talaq was rendered unconstitutional.

Indian family law is an evolving body of jurisprudence that is empathetic without being paternalistic, principled without being rigid, he said.

Closing his address, Justice Kant said that both in England and in India, family law stands as a living instrument, which not only governs private relationships but also mirrors our collective commitment to justice, equality, and compassion 

“As we continue to navigate new frontiers, it becomes our shared duty, as lawyers, judges, and scholars, to ensure that the law remains humane, inclusive, and responsive to the changing contours of family and society,” he said.

Justice Kant congratulated and appreciated Delhi Family Lawyers Association and the Delhi High Court Women Lawyers Forum for their commendable initiative in organising the seminar and creating a platform for a meaningful dialogue.

He also appreciated Ms. Mills for her comprehensive analysis of the Family Law framework in England and Wales in her keynote address.