Report No. 15
35. Marriages solemnised under the existing law.-
It will be seen that the scheme of the proposed Act marks a substantial departure from that adopted in section 19 of the Indian Divorce Act, 1869, and as that Act is to stand repealed by this Act, the question arises as to the legal incidents of marriages solemnised before the commencement of this Act, when they suffer from infirmities which will render them void or voidable under the proposed Act. In dealing with this matter, we have followed two principles; first, that a marriage which was valid, according to the law as it stood at the time of the marriage, should remain unaffected by the provisions of the proposed Act, and second, that even if it was void under the existing law, it might be treated as voidable under the proposed legislation, and a right has been given to avoid it in those cases.
Thus a marriage, when the spouse by a previous marriage is living, or between person's within prohibited relationship, will be void both under section 19 of the Indian Divorce Act and under the proposed Act. As, however, the Indian Christian Marriage Act, 1872 did not enumerate who the prohibited relations are, whereas the proposed Act enumerates them, it is conceivable, though highly improbable, that a marriage between two persons, which might be bad on the ground of prohibited relationship under the proposed Act, might be valid if solemnised before its commencement, having regard to the then law of prohibited relationship.
But such a marriage will not be open to attack under the provisions of the proposed Act, because we have provided that a marriage solemnised before the commencement of Act, shall not be deemed to be invalid by reason of any provisions of the Act. Under the Indian Divorce Act, 1869, a marriage is null and void if (a) the respondent was impotent at the time of marriage and the date of suit, or (b) either party was an idiot or lunatic at the time of marriage. Under the proposed Act, the marriage would be voidable in either of these cases, and we have provided that the party aggrieved can move for annulment thereof. Thus the retrospective operation of the Act will not prejudicially affect rights previously acquired.
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