Justice Surya Kant emphasized during a seminar that courts in different jurisdictions must uphold the principle of “comity of courts” in cases of cross-border marital disputes that involve children. He explained that as the world becomes increasingly interconnected, such disputes are more frequent, especially when spouses live in different countries, or when foreign divorce decrees and/or custody orders are involved. The obligation of courts, he said, is to cooperate and show mutual respect in their adjudication, but without losing sight of their foremost duty: protecting the welfare and well-being of the child.
He pointed out that the doctrine of the “best interests of the child” is uniformly recognized and applied in both India and England across family law matters, including adoption and custody. As an illustration, Justice Kant referred to a recent case where a 22-year-old son with a cognitive disability was granted custody to his mother, who is a US citizen, because he had been receiving advanced medical care in the United States, and remaining with her would continue to serve his welfare.
Justice Kant also reflected on how family law lies at the intersection of emotion, morality and justice, and how both Indian and English legal systems are evolving. He described marriage as historically misused as an instrument of subjugation but noted ongoing legal reforms that are transforming marriage into a partnership grounded in dignity, mutual respect, and equality. He noted examples like registration of marriages irrespective of religion, and judicial decisions that curbed practices such as instant divorce. He stressed that legal reform must balance tradition with changing social realities.
He also discussed the challenges of indirect enforcement or recognition of foreign divorce decrees in Indian courts, especially when they conflict with principles of natural justice or Indian substantive law. The seminar was organized by the Delhi Family Lawyers Association in collaboration with the Delhi High Court Women Lawyers Forum, and included participants from both jurisdictions. Justice Kant concluded that while comity of courts is essential, it must always be accompanied by a commitment to constitutional values of justice, compassion, and the protection of vulnerable children.
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