Report No. 15
Appendix V
Recommendations in Respect of other Acts
1. Converts' Marriage Dissolution Act, 1866-As the existing Act is limited to cases of conversion from Hinduism to Christianity, the question whether a law generally applicable to all cases of conversion from one religion to another is needed, is under consideration. When such legislatibn is undertaken, the repeal of the Converts' Marriage Dissolution Act can be taken up.1
1. See the body of the Report, para. 63.
I am unable to subscribe to the view implicit in the provisions of the proposed Bill that no distinction ought to be made in the matter of capacity and essential validity between persons domiciled in India and persons not so domiciled, in the case of marriages solemnised under the proposed Bill in India. The proposed Bill proceeds on the assumption that the provisions as to capacity and essential validity embodied in clause 4 should apply inexorably even where one or both the parties to the marriage is or are of foreign domicile in all cases in which the marriage is solemnised in India under the Act. Be it noted in this connection that apart from the Special Marriage Act which suffers from a similar defect and which even otherwise is bound to be objectionable to the vast majority of Christians who would prefer a religious form of marriage, this is the only Act under which Christians may marry in India.1
1. See clause 3.
The relevant provisions of the Bill are clauses 1(2), 3, 4, 11, and 19.
Clause 1(2) provides that the Act extends to the whole of India except the State of Jammu and Kashmir and also to persons domiciled in India who are outside the said territories. This means that the Act will apply, irrespective of the domicile of the parties, to all marriages solemnised under it in India. This clause purports to follow section 1, first para, of the Indian Christian Marriage Act, 1872, and section 2, first para, of the Indian Divorce Act, 1869. It is so as regards the wording but not as regards the substance.
The former, as will be pointed out later, purported to deal only with forms of marriage. The latter dealt with matrimonial causes and in the very section relied on embodied significant qualifications. These are really no precedents. The draft clause proceeds on exaggerated notions of sovereignty and the earlier part of the clause is not in harmony with the latter part of the clause importing the domicile qualifications as to marriages solemnised under the Act outside India.
Clause 3 which provides that marriages between Christians in India shall be solemnised under the proposed Act unless the same is solemnised under the provisions of the Special Marriage Act, has been adverted to earlier.
Clause 4 deals with capacity and essential validity and it provides that a marriage may be solemnised in India between any two Christians if the conditions laid down by it are fulfilled. Clauses 11 and 19 deal with the duty of different persons entitled to solemnise a marriage under the Act to ensure that the requirements of clause 4 are complied with. Clause 11 applies to marriages before a minister of recognised church and it imposes a duty on the minister to refuse to solemnise a marriage if the minister has reason to believe that the solemnisation of the marriage will, inter alia, be contrary to the provisions of clause 4. Clause 19 deals with marriages before a licensed Minister or a Marriage Registrar and imposes on them a duty similar to that imposed on Ministers of recognised church by section 11, with this difference that clause 19 provides expressly for an enquiry into the matter and for an appeal from the decision.
It would be seen from the foregoing survey that the Bill makes lex loci celebrationis govern not only the formal validity of the marriage but also its essential validity. Further it excludes altogether the personal laws of the foreign party or parties to the marriage, at any rate, so far as the validity of the marriage in India is concerned. There is no provision in the Bill corresponding to section 88 of the Christian Marriage Act, 1872, saving the application of the personal laws to the parties. The elaborate provisions in the Bill giving effect to rules of private international law as to jurisdiction in matrimonial causes would naturally lend support to the view that the Bill should be construed to be exhaustive on the subject of the applicability of its provisions.
The very fact that a qualification is introduced on the basis of domicile in the case of marriages solemnised under the Act outside India may be construed as leading to the inference that no such qualification be introduced in the case of marriages solemnised in India. It has been asserted that the effect of the provisions of the Bill would be to make the lex domicilii operate cumulatively with the lex loci. Whatever may be the merits of the solution it is obvious that the provisions of the Bill do not give effect even to this solution.
I am of the opinion that this extreme lack of solicitude for foreign laws displayed by the Bill is (i) insular and (ii) not in keeping with the liberal approach in the matter of jurisdiction in matrimonial causes adopted in the Bill (iii) inconsistent with the policy adopted in the case of Christian marriages for nearly a century (iv) inconsistent with the practice followed in England from whose legal system we have drawn considerably, and an injudicious break with which is bound to be out of harmony with settled legislative and judicial approach, though it may satisfy pseudo-notions of sovereignty (v) contrary to the consensus of juristic opinion as to the proper principles of Private International Law applicable to the subject.
I will consider these objections seriatim.
(i) Insular approach.-The recognition of the foreign laws by all civilised countries for the purpose of doing justice between the parties has been well-established and all the writers on Private International Law have emphasised the necessity of such recognition. To quote only one authority-Cheshire on Private International Law1 sums up the position in the following words:-
"Private International Law owes its existence to the fact that there are in the world a number of separate territorial systems of law that differ greatly from each other in the rules by which they regulate the various legal relations arising in daily life. The occasions are frequent when the courts in one jurisdiction must take account of some rule of law that obtains in another territorial system. A sovereign is supreme within his own territory, and, according to the universal maxim of jurisprudence, he has exclusive jurisdiction over every transaction that is there effected. He can, if he chooses, refuse to consider any law but his own.
The adoption, however, of this policy of indifference, though common enough in other ages, is impracticable in the modern civilised world, and nations have long found that they cannot, by sheltering behind the principle of territorial sovereignty, afford to disregard foreign rules of law merely because they happen to be at variance with their own territorial or internal system of law. Moreover, as will be shown later, it is no derogation of sovereignty to take account of foreign law."
1. 4th Edn., p. 1.
In this connection it may be noted that Indian courts1 and legislation2 have, by following English precedents, impliedly given preference to the theory so ably expounded by Savigny3 that the general principle in cases involving a foreign element should be that full effect should be given to foreign laws unless there are overriding principles of public policy to the contrary. It is thus clear that in disregarding altogether the personal laws of the foreign parties the Bill is unduly insular in character.
1. See in the sphere of marriage, 54 Born 288 and 59 Born 278. In other spheres see the collection of cases in the article by T.S. Rama Rao on Private International Law in India, in the Indian Year Book of International Affair, 1955.
2. Eg. section 13, C.P.C.; section 41, Evidence Act; section 2, Indian Divorce Act; section 5, Indian Succession Act; section 88, Indian Christian Marriage Act; sections 134 to 137, Negotiable Instruments Act, etc.
3. For an exposition of Savigny's theory and its merits, see Wolff Private International Law, 2nd Edn., pp. 34-38 and 39.
It must also be remembered that the followers of Christian religion in our country are a comparatively small minority; but there is an overwhelming adherence to this religion in the countries abroad. When considering a legislation for such a community it may not be justified to do so merely from the domestic angle. We should also take note of the principles of Private International Law. Domestic consideration in the legislative policy of a country which has one religious concept may be justified but it would be inadequate legislation if such principle is rigorously applied in a country like India.
It is not suggested that our legislature is not competent to legislate for marriages when one or both parties thereto have a foreign domicile. No one can dispute the competency of our legislature to legislate on the subject, nor is it maintained that we should not legislate on the subject. All that is said is that when we legislate we should take into account the peculiar feature of such marriages, namely, a party or parties being of foreign domicile and formulate rules suited to the situation. Private International Law is not super-State Law. It is only part of the law of a State. If foreign laws are allowed to be taken note of in cases involving a foreign element it is because the sovereign permits it. So there is no point in entertaining the fear of 'encroachments' of Private International Law into Municipal Law.
(ii) Not in keeping with the liberal approach adopted in the matter of jurisdiction:
In this connection reference may be made to clause 35 of the draft Bill. If in the matter of jurisdiction we are prepared to set a limit to the jurisdiction of our courts it is difficult to understand why we should not be actuated by the same spirit in the matter of capacity and essential validity of marriage. We must be logical.
(iii) Inconsistent with the policy adopted in the case of Christian Marriages for nearly a century:
The law relating to solemnisation of Christian marriages was consolidated and amended by the Indian Christian Marriage Act, 1872. An examination of the provisions of the Act of 1872 reveals that the main object of the Act was to provide the machinery for the solemnisation in India of marriages among Christians while leaving the question of essential validity to the personal laws of the parties.
Part I of the Act deals with persons by whom marriages may be solemnised;
Part II deals with the time and place at which marriages may be solemnised;
Part III relates to marriages solemnised by Ministers of Religion licensed under the Act;
Part IV relates to registration of marriages solemnised by Ministry of Religion;
Part V relates to marriages solemnised by or in the presence of marriage registrar;
Part VI relates to marriages of Native Christians;
Part VII deals with penalties and
Part VIII deals with miscellaneous matters.
This Act changed the law as it stood then under which the Registrar or Minister had to satisfy himself that there was no lawful impediment according to the law of England and by section 88 left the question of capacity and essential validity to the personal laws of the parties.1 Section 88 of the Indian Christian Marriage Act, 1872, expressly provides "nothing in this Act shall be deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into."
1. For a statement of the law prior to 1872, see Lopez v. Lopez, 12 Cal 706 (729).
Thus the determination of the capacity of the parties and the essential validity of the marriage was expressly left to the personal law or laws of the parties. Under this scheme, foreigners could take advantage of the provisions of the Act and have their marriages solemnised in one or other of the forms provided by it while being governed by the personal law in the matter of capacity and essential validity. This system ensured the international validity of their marriages without at the same time imposing restrictions alien to their personal laws and minimised in no small measure limping marriages or marriages valid in one-country and invalid in another country.
This state of law has obtained since 1872 at least. No hardship has been experienced; no objection has been expressed; no qualms of sovereignty were felt. Eminent judges of an age when, judicial side-comments on the propriety of the principles underlying a legislative provision were considered both proper and necessary, have had occasion to apply section 88 but none felt the need for criticising the principle. What then is the justification for the radical departure from the liberal principle in the proposed Bill? Why should we now revert to a system similar to that abandoned in 1872. It is hard to understand.
Back
