Report No. 15
5. Question of domicile.-
The next question which falls to be considered is as to the application of the proposed legislation to marriages solemnised in India, when one or both the parties thereto are of foreign domicile, and on that there has been difference of opinion amongst us. It has been strongly urged that the legislation should be limited to marriage between persons of Indian domicile, because, according to rules of private international law when there is a conflict of laws- and that is bound to be when the parties to the marriage have one or both of them a foreign domicil,-the validity of the marriage will have to be judged so far is the capacity of the parties is concerned by the law of their domicile or lex domicilii and that to the extent that the proposed legislation prescribes conditions for the validity of such a marriage it will be opposed to rules of private international law. Therefore, it is said, the present legislation should be limited to marriages between persons of Indian domicile.
(i) Pattern followed by other countries.-It may be stated, at the very outset, that in providing that it is to apply to all marriages solemnised in India, the proposed legislation follows the pattern adopted in other countries. The Marriage Act, 1949, applies to all marriages solemnised in England, even though the parties thereto are not British by domicile, and its provisions1 prescribe not merely the form to be observed but also the conditions of a valid marriage. That is also the scope of the marriage laws in the American states, and in all English speaking countries. Indeed no instance has been brought to our notice where a sovereign state has enacted a marriage law limited to persons domiciled in the state.
Conformably to this pattern, the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, apply to all marriages solemnised in India. And what is the ground on which our Parliament should now retreat from the position taken by it in those enactments and by all sovereign states in the marriage laws and decline to legislate for marriages solemnised within its territories, when one or both the parties thereto have a foreign domicile?
That ground is stated to be the rule of private international law that the validity of a marriage should, in case of conflict, be decided according to the law of domicile, and not the law of the country where the marriage was celebrated. The answer to this is first that as a statement of the rule of private international law, the above proposition is too broad, and second that whatever that rule, it operates not to encroach on grounds occupied by municipal law, but to supplement the grounds which should be complied with before the marriage can be held to be valid. Both these statements will now be explained.
1. Vide sections 1, 2 and 3.
(ii) Rule of private international law.-The rule of private international law generally accepted, no doubt, is that where there is conflict of personal laws the validity of a marriage should be determined as regards forms and ceremonies according to lex loci celebrationis and as regards capacity of the parties according to lex domicilii. But this rule, it must be mentioned, has come to be recognised only in quite recent times, and cannot, even now, be said to command unqualified acceptance. The view which originally held the field was, that the validity of a marriage both in respect of capacity of the parties and of the forms to be observed was governed by the law of the country where the marriage was celebrated.
That is on the principle that the validity of a contract must be judged by the lex loci contractus and that marriage is a contract which in concluded where it is solemnised. On this ground, it was held in Dalrymple v. Dalrymple, (1811) 2 Hagg Cons 54 that the validity of a marriage solemnised in Scotland between an English domiciled husband, and a Scottish domiciled wife was to be determined in accordance with Scottish law. In 1861, came the decision in Brook v. Brook, (1861) 9 HL Cas 193. There the question was as to the validity of a marriage solemnised in Denmark, between persons having English domicile. The marriage would be void under English law on account of prohibited relationship, but valid according to Danish law.
It was held that the prohibitions imposed by English law rested on nationality, and that English subjects were subject to these prohibitions wherever the marriage might be celebrated. Thus the rule in Dalrymple v. Dalrymple was departed from. Then came the decision in Sottomayor v. De Burros (No. 1), (1877) 3 PD 1. There the question was as to the validity of a marriage solemnised in England between persons, both of whom were assumed to be of Portuguese domicile; and it was held that the marriage was void, as it was prohibited by the law of their domicile, though it would be valid according to the law of England.
It is this decision which forms the foundation for the rule that as regards the capacity of the parties to enter into a marriage contract it is lex domicilii that is determinative and not the lex loci celebrationis. This statement of the law has generally been accepted as correct1 though its correctness has been assailed in subsequent decisions2.
1. Vide Dicey's Conflict of Laws, 7th Edn., Rules 31 and 32, pp. 249 and 257; Halsbury's Laws of England, Lord Simonds Edn., Vol. I, p. 91.
2. Vide Sottomayor v. De Barros, 1879 LR 5 PD 94 and Ogden v. Ogden, 1908 p. 46.
(iii) Doctrine Matrimonial home.-It should however be mentioned that there is also another view, which has the support of a large body of opinion in England. It is that the validity of a marriage, as regards the capacity of the parties, should be judged not by reference to the domicile of the parties prior to their marriage but by reference to what is called the matrimonial domicile, that is to say, the law of the place where they intend to set up their marriage home. That is the view taken by Cheshire in his 'Private International Law1 and that is also the recommendation made by the Royal Commission on Marriage and Divorces2. The trend of the recent authorities in England has been in favour of this view3. The result of the authorities is thus summed up in Graveson on 'Conflict of Laws'4:
"The essentials of a marriage are governed by the law of the domicile of each party at the time of marriage (or just possibly by that of the intended matrimonial residence of the parties), while the formalities are governed exclusively by the law of the place of celebration applicable to the particular type of marriage celebrated."
It will be thus seen that even the rule that the validity of a marriage should be judged as regards capacity of the parties by the law of their domicile is still far from being settled.
1. See the discussion at pp. 305 to 312, of the 5th Edn.
2. Vide Cmd. 9678, p. 395.
3. Vide the observations of Lord Greene M.R. in De Reneville v. De Reneville, (1948) 1 AER 56 (61); Casey v. Casey, (1949) 2 AER 110.
4. 3rd Edn., p. 131.
(iv) Position where one party domiciled in the country.-But it is sufficient for our purpose that even accepting the law as laid down in Sottomayor v. De Barros (No. 1), (1877) 3 PD 1, an exception to it has been recognised when one of the parties to the marriage is domiciled in the country, where the marriage is solemnised. In Sottomayor v. De Barros (No. 2), 1879 LR 5 PD 94, which represents a later stage of the litigation in 3 P.D. 1, the question arose as to the validity of a marriage solemnised in England between two persons, one of whom had the English domicile and the other the Portuguese domicile. The marriage would be bad according to the Portuguese law but valid according to English law.
It was held that as one of the parties had the English domicile, it was the law of England where the marriage was solemnised that applied and that, according to that law it was valid. It is said that this decision is opposed to principle, but it has stood and has been accepted as good law, and as laying down an exception to the rule in Sottomayor v. De Barros (No. 1), Vide exception 1, p. 264 of Dicey's Conflict of Laws, 7th Edn.; Halsbury's Laws of England, Vol. 7, p. 915, para. 165. On the rule enunciated therein, the proposed legislation can properly lay down the conditions of a valid marriage, even as regards capacity, if any of the parties thereto had the Indian domicile.
And even when both the parties thereto have foreign domicile, there is, as already stated, a large body of opinion in favour of the view that if they intend to set up their matrimonial home in the country where the marriage is celebrated it is the law of that country that will govern even in respect of capacity to enter into marriages. Thus according to rules of private international law, the validity of a marriage solemnised in India, will be governed by our law, not merely when both the parties thereto are of Indian domicile, but also when even one of them is of Indian domicile, and, it may be, even when both are of foreign domicile, if they intend to adopt India as their matrimonial home. No question of conflict of laws could arise in the above cases.
(v) Competence of a sovereign legislature.-Even as regards the area wherein there might be a conflict of laws, the question is whether the State legislature should withdraw when it comes into conflict with rules of private international law. Now the law is settled beyond doubt that it is competent to the legislature of a sovereign state to enact laws so as to bind all persons within its territories, irrespective of their domicile, and that such a legislation is not liable to be questioned on the ground that it is not in accordance with rules of private international law.
In enacting that law, the sovereign legislature may and generally does take into consideration the rules observed by other nations but it is ultimately for the legislature of that State to decide what the law should be, and when it comes to a decision and enacts a law, that is supreme. Dealing with the very question of conflict of laws arising by difference in domiciles, the court observed in Sottomayor v. De Barros, 1879 LR 5 PD 94 (106); See also Schmitthoff The English Conflict of Laws, 1954 Edn., pp. 6-7
"This statute and all the marriage Acts which have since been enacted are general in their terms, and therefore applicable to, and bind, all persons within the kingdom. In the weighty language of Lord Mansfield, 'the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there:' Campbell v. Hall, Cowp. 208."
What, then, is the effect, it may be asked, of the rule that in case of conflict, the validity of a marriage, as regards capacity, should be determined according to the law of domicile? Its effect is, not to give validity to marriages which are void according to lex loci celebrationis; for that would be to encroach on the domain of a sovereign legislature, but to render void marriages prohibited by lex domicilii, notwithstanding that they may be valid according to lex loci celebrationis. In others words, lex domicilii operates not in supersession of lex celebrationis, but in conjunction with it, with the result that such marriages, in order to be valid, must comply with both the lex celebrationis, and lex domicilii.
(vi) Dicey's view.-That is the view expressed in the latest edition of Dicey's 'Conflict of Laws'. After setting out in rule 31 the general principle that the validity of a marriage as regards capacity of parties should be determined in accordance with their respective domicile, the learned Editors state an exception to it in the following terms1:-
"A marriage is, possibly, not valid if either of the parties is, according to the law of the country where the marriage is celebrated, under an incapacity to marry the other."
It is then observed that this is the view taken by Westlake, Dicey and Chesire. Then we have the following observations:-
"Accordingly, it is conceived that no marriage celebrated in England would be held valid by an English court if the parties were within the prohibited degrees of English law or if either of them was under the age of sixteen, even if the marriage was valid by the law of their domicile,"
Then follows a reference to the decisions which support the above view.
1. Dicey's Conflict of Laws, 7th Edn., p. 256.
(vii) Graveson's view.-Discussing the inter-relation in case of conflict between lex loci celebrationis and lex domicilii, with reference to a marriage solemnised in England, Graveson states the position thus1:
"The overriding effect of English law in this respect is to maintain minimum, not maximum, English standards of essentials of marriage, so that provided the English standard is satisfied, reference will still be made to the lex domicilii to ascertain the existence of capacity, for example, to perform an act in England."
In the same manner, a marriage solemnised in India may be required to satisfy certain conditions which we consider essential, and then lex domicilii may be left to operate on it.
It will be material for the purpose of the present discussion to note that according to rules of private international law, the question whether a marriage is void or voidable is to be determined in accordance with lex loci celebrationis2;' and that as under the proposed legislation the only two grounds on which a marriage will be void are the existence of a spouse by a previous marriage and the parties being within certain prohibited relationship, and as the list of prohibited relations has been framed with due regard to other systems of law and is not stringent, a conflict based on those grounds, though theoretically possible, is practically speaking unlikely.
1. The Conflict of Law by R.H. Graveson, 3rd Edn., p. 131.
2. Vide De Reneville v. De Reneville, (1948) 1 AER 56.
(viii) Section 88 of the Christian Marriage Act, 1872.-It remains to consider whether there is anything in section 88 of the Indian Christian Marriage Act, 1872, which militates against this view. That section provides that nothing in the Act renders valid a marriage which is forbidden by the personal law of the parties thereto. It is said that this is a recognition of the principle that the validity of a marriage is to be judged not by lex loci celebrationis, but by lex domicilii.
But this is to ignore alike the object and the true scope of section 68. While the course of legislation on marriage in England was to prescribe both the conditions of a valid marriage and the forms to be observed in its solemnisation, the Christian Marriage Act, 1872, deliberately departed from this scheme and restricted itself to the latter, leaving the former to be determined by the personal law of the parties. The reason for this was, as stated by the Select Committee1 on the Native Converts' Dissolution of Marriage Bill, 1865, that in India a considerable proportion of the Christian population was Roman Catholic by persuasion, and it was not considered desirable to impose on them conditions which had been evolved in the ecclesiastical courts forming part of the Established Church of England.
It is to give effect to this that section 88 was enacted. Now that the proposed legislation is to be comprehensive and to deal both with conditions of a valid marriage and modes of solemnisation thereof, we must abandon section 88 and fall back on the pattern of the English statutes, and on the latest of them, the Marriage Act, 1949.
Nor does section 88 on its true construction lend any support to the view that the marriage law of a State should be limited to persons domiciled therein. It has not in mind any question of conflict between lex loci celebrationis and lex domicilii. It merely leaves the question of validity of marriage to be determined by the personal law of the parties, and that, of course, is something different from the law of domicile. The contrast in section 88 is not between the lex loci celebrationis and the lex domcilii, but between one system of personal law and another, applicable to persons having the same domicile.
Moreover, the section only says that nothing in the Act shall render valid a marriage forbidden by the personal law of the parties, which is merely one other application of the doctrine that the conditions as to the validity of a marriage prescribed by lex loci celebrationis and by lex domicilii, operate both cumulatively and that a marriage which is invalid under the personal law of the parties does not become valid because it complies with the requirements or the Act. 1. Gazette of India, Jan 20, 1866, p. 163, para. 7.
(ix) Conclusion.- We, therefore, recommend that the proposed legislation should apply to all marriages solemnised within the territory of India whatever the domicile of the parties thereto, and that it should leave no vacuum therein. And in this we follow not merely the scheme adopted in the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, but also the pattern of similar legislation in England, which, being general, binds, as observed in Sottomayor v. De Barros (No. 2), LR 5 PD 94, all persons within the kingdom. And in this we are no more disregarding rules of private international law than the very countries where they have been developed.