Report No. 15
This is what the learned Doctor had to confess as late as 1947.
While the importance of the theory consists in focussing attention on the seat of the status in issue, it suffers from a serious drawback in that it makes everything hinge on intention and thus introduces confounding uncertainty as to the validity of the marriage. And if this defect is sought to be remedied by presumption such as that the matrimonial domicile will be the husband's domicile, its chief merit is pro tanto sacrificed.
In De Reneville v. De Reneville, (1948) 1 All ER 56 while dealing with the question of jurisdiction in nullity suits, Lord Greene M.R., observed at p. 61 as follows:
"In my opinion the question whether the marriage is void or merely voidable is for French law to answer. My reasons are as follows: The validity of a marriage so far as regards the observance of formalities is a matter for the lex loci celebrationis. But this is not a case of forms. It is a case of essential validity. But what law is that to be decided?
In my opinion, by the law of France either because that is the law of the husband's domicile on the date of the marriage or (preferably in my view) because at that date it was the law of the matrimonial-domicile in reference to which the parties may have been supposed to enter into the bonds of marriage. In Brook v. Brook the marriage in Denmark (by the law of which country, assuming it applied, it was valid) of two persons domiciled in England was held to be void on the ground that, although the lex loci governed the form of marriage, its essential validity depended on the lex domicilii of the parties".
Then the learned Lord quoted the passage from Lord Campbell's judgment in Brook v. Brook which has already been referred to. Let it be noted, and the relevant passage is italicised, that this case does not support the application of lex loci to determine essential validity: It lends countenance to the matrimonial domicile theory. But as Morris1 has pertinently pointed out something more tangible is necessary to hold that a case dealing with jurisdiction has given the go by to the law obtaining for nearly a century, a law stated in crystal clear terms only seven years earlier in Re Paine, 1940 Ch 46. In fact, Paine (in re:) was not considered in De Reneville's case.
1. Morris Cases on Private International Law, Note G, p. 174 (177)
Assuming that the matrimonial domicile theory represents the true position in English law how does it support the stand taken in the Bill of governing essential validity exclusively by lex loci? How can it be assumed that those who marry in India necessarily make India their matrimonial home?
I now pass on to consider the second theory, the theory of what may be termed public policy. Passages from Dicey and Graveson have been quoted that some or all the English requirements apply to marriages solemnised in England. In Dicey1 there is a frank confession that there is no reported decision in support of the proposition and that the only available case is a Victoria Court decision-Will of Swan which is against his view. It was held in that case that the invalidity by the lex loci celebrationis did not invalidate the marriage. Besides a suggestion is made that the lex loci celebrationis prohibitions may be overcome and the marriage saved by applying the Renvoi doctrine. It is clear from this that the statement is made in a half-hearted manner. Graveson observes that the municipal rule as to age would apply in all cases though he cites no authority but he cautions strongly against the full application of municipal law requirements. He observes:
"The overriding effect of English law in this respect is to maintain minimum not maximum standards of essentials of marriage, so that provided the English standard is satisfied, reference will still be made to lex domicilii to ascertain the existence of capacity."
1. Conflict of Laws (7th Edn.), pp. 256-257.
A passage from Sottomayor v. De Barros (No, 2) has been relied on in support of the application of the lex loci. It will indeed be edifying for the editors of Dicey and Graveson who have been floundering for authority for the proposition.
Enough has been said to show that English law howsoever construed would not support the extreme approach adopted in the Bill.
(v) Contrary to the consensus of authority as to the proper principles of Private International Law applicable to the subject:
That personal law plays a decisive part in determining the capacity of parties to a marriage is well established in practically all the systems of Private International Law of the world1, though there is divergence of opinion as to the criterion of personal law. Even in the United States of America with its emphasis on lex loci, statutory provisions have been made to ensure compliance with lex domicilii2.
1. For a survey of the various systems, see Rabel Conflict of Laws, A comparative study, Vol. 1. See also Wolff Private Intentional Law, (2nd Edn.), 326 as to the position in continental laws.
2. See e.g., Uniform Marriage Evasion Act of 1912. See also Restatements on Conflict of Laws, section 140.
In conclusion, we would like to emphasise that deviations from generally accepted principles of Private International Law in the sphere of capacity and essential validity of marriage will only lead to the increase of the number of limping marriages. The real solution for avoiding this is to follow principles generally accepted so that the requirements would be the same whether the marriage is celebrated in one country or the other and secondly to restrict so far as may be the application of, on grounds of public policy, local requirements.
In a composite legal system such as ours under which widely divergent institutions ranging from polyandry to polygamy coexist, it is not justifiable to insist on special requirements on grounds of public policy. If for hundred years no consideration of public policy were felt and capacity and essential validity could be exclusively left to personal laws of parties1 what justification is there now for deviating from that course?
1. See above discussion as to section 88 of the Indian Christian Marriage Act, pp. 143, 144.
The ideal solution would be to maintain the status quo by restricting the provisions of the Bill to persons domiciled in India and little consolation can be derived by claiming that we are creating a sort of "jus gentium" paying due regard to the requirements under different municipal laws. If it is intended to engraft an exception recognised in England in Sottomayor (No. 2) case, that may also be embodied. If, on the other hand, it is intended to adopt Cheshire's matrimonial domicile theory, that may be stated clearly.
As pointed out there are other types of cases, which are not covered by the principle in Sottomayor (No. 2) case, and provision has to be made for such cases. If on the other hand it is intended to tighten the provisions still further and to adopt the principle of cumulative impediments, that is, to insist that the conditions laid down in section 4 should be satisfied in addition to the conditions laid down by the law of domicile it may be so stated in the Bill instead of leaving it uncertain. It is of course, for the sovereign legislature of India which has undoubtedly the power to enact any law as it pleases to decide whether it should or should not take cognizance of the well-accepted principles of private international law which in some respects have been adopted in Indian legislation.
The precedents of the Special Marriage Act and the Hindu Marriage Act need not be taken seriously. In the case of the former, the question was not debated fully, possibly because of Law Minister's assurance on an allied subject that the question of conflict of laws would be examined and that a suitable bill would be introduced later. In the case of the Hindu Marriage Act different considerations apply. In any case, two wrongs cannot make a right.
P. Satyanarayana Rao.
30-5-1960
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