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Report No. 15

Referring to the decision, Dicey1 remarks as follows:

"an anomalous exception to the negative application of the doctrine under consideration was, as we shall see, established by the decision of Sir James Hannel P., on the second hearing of the case of Sottomayor v. De Burros, (1879) 5 PD 94, Although it may have been justified by some remarks of the Court of Appeal on the previous hearing of the case2, the decision was largely based on the judgment in earlier cases which stressed the predominance of the lex loci celebrationis in all matters affecting the validity of marriage.

The learned judge appears to have failed to appreciate the significance of the first decision which differentiated questions of capacity from those of formal validity, and his judgment in favour of the validity of the marriage celebrated in England between parties one of whom was domiciled there, and the other of whom was incapable of intermarrying with him by the law of her domicile, gives a national bias to English Private International Law which is logically indefensible.

Subject to the above anomalies, the rule that capacity to marry depends upon the law of the ante nuptial domicile of each of the parties is borne out to the full by the authorities; and it is submitted that it is consistent with sound principle, because a person's status is, as a general rule, determined by the law of his domicile, questions of status cannot be affected by the intention of the parties, and a person's capacity to marry is a matter of public concern to the country of his domicile."

1. Dicey on Private International Law, 7th Edn., pp. 250-51.

2. 1677 PD 1, pp. 6-7.

Schmitthoff1 thinks that the decision, however, could be sustained on other grounds than those on which it was decided and he also points out that the decision of Wilmer J. in Chapelle v. Chapelle, (1950), p. 134 indicates clearly that the alleged exception does not exist. In that case, it may be stated, the marriage was celebrated in England while the husband was domiciled in Malta where the wife went after the marriage and where she lived with him for about ten years; the marriage was valid by English law but void by the law of Malta. Willmar J. disregarded the domicile of the wife at the date of the marriage-if the alleged exception existed, he would have paid particular attention to this fact and would probably have held that the decree of a foreign court could not annul ab initio a marriage valid in English law-and made the recognition of the decree of nullity of the Maltese court dependent on the existence of a common domicile of both parties in Malta at the date of the commencement of the nullity suit.

1. Clive M. Schmitthoff The English Conflict of Laws, 3rd Edn., p. 352:

Even Graveson1, who has been relied on in support of the approach of the Bill concedes that the doctrine laid down by the case is 'inelegant' though he has something to say in favour of it by way of apology. He observes:

",it exists to protect domiciled Englishmen and English women on entering into marriages with persons domiciled abroad, the English marriage ceremony and the institution of monogamous marriage itself as the only type which can validly be performed in England and it only applied to marriages celebrated in England." It is unnecessary in the present context to examine how far this explanation is valid. Christians domiciled in India have managed without any such protection and have experienced no hardship. Besides, there is no question of inroads on the institution of Christian marriage as our Bill is applicable to Christians only and as it embodies different types of generally recognised marriage ceremonies. In short, if there is any force in Prof. Graveson's justification that does not hold good in the context of our Bill.

1. Graveson Conflict of Laws, 3rd Edn., p. 136.

It is needless to multiply other authorities in support of the criticisms levelled against the decision in Sottomayor v. De Barros. Though text-book writers who have obviously no power to over-rule decisions have to explain it away as an exception so long as it is not overruled by a competent tribunal it is hard to see how it can commend itself to us as a precedent worthy of being followed in the proposed Bill. To follow it would be only to swing back the pendulum to the situation which existed prior to the decision of the House of Lords in Brook v. Brooks, (1861) 9 HL Cas 193.

The foregoing survey of English Law represents the position as can be deduced from statutory provisions and judicial decisions. It does not take note of theories of what individual writers regard as ought to be the law. Private International Law is indeed a fertile field for the free play of imagination and a fine arena for the display of fanciful theories. Views of writers are not lacking which are far away from what can legitimately be deduced on the basis of doctrine of precedent and the established canons of interpretation. Judicial dicta swung out of their context can conveniently be made to buttress these theories. In the present context it is enough to consider two theories.

Firstly, the so called matrimonial domicile governing capacity and essential validity-a theory propounded by Prof. Cheshire. Prof. Cheshire has found respectable ancestry for this 'pet child' of his in Savigny and has managed to get it 'adopted' in the Royal Commission Report, by virtue of his position as the expert member. It is true, in recent years, a few judges have flirted with the theory though no one has wedded it much less wedded it to English Law! How truly it represents English law may be judged by the learned professor's own confession in the third edition of his book after a heroic struggle with a crusader's zeal to support it. After examining all the English cases excepting the second Sottomayor case he observed:

"It may be objected with force that one of these decisions is conclusive in favour of the law of matrimonial home. Nevertheless there remains one decision which, on the facts though not on the reasoning is a more convincing authority for the view now being advocated. This is Sottomayor v. De Barros (No. 2), (1879) 5 PD 94. ........ "1.

1. Cheshire Private International Law, 3rd Edn., 1947 (1949 reprint), p. 284.

Report on the Law of Christian Marriage and Divorce Back

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