Report No. 15
Supplement to the Minute of Dissent
In view of the revision of the original paragraph 5 of the report subsequent to my sending the minute of dissent 1 feel it necessary to clarify certain points.
Firstly, it is assumed that what was urged was that the proposed legislation should be limited to marriages between persons of Indian domici1 and that a 'vacuum' should be left in the law as to marriages of persons not domiciled in India2. I would only emphasise that there is nothing in my minute to justify such an assumption. The following passage in my minute sets in clear terms the stand I have taken:
"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".
1. See opening para, entitled 'question on domicile' in paragraph 5 as revised.
2. See concluding para, entitled '(i) Conclusion in paragraph 5 as revised.
It is enough to point out that this liberal plea for giving persons domiciled abroad the elementary facility of having the essential validity of their marriages regulated by their personal laws cannot by any means be construed as a plea for not legislating on the subject of marriages of persons domiciled abroad.
Secondly, it has been added that the decision in Sottomayor v. Be Barros (No. 2), 1879 LR 5 PD 94. "has stood". To one familiar with the methods of legislative reform in England it will be no revelation to be told that other anomalies "stood" or have been "standing" for long periods without being slashed by the legislative axe. An instance in point is the law as to the deserted wife's right to petition for dissolution of her marriage. This was reformed partially in 1937 and almost completely in 1949. In short, "standing" of a rule in English law is not necessarily a safe test.
In this connection reference may be made to the passage in the Royal Commission Report on Marriage and Divorce which has been relied upon in support of the 'matrimonial home' or the so called 'matrimonial domicile theory'. The passage reads thus:
"If the marriage is alleged to be void on a ground other than that of lack of formalities, that issue shall be determined in accordance with the personal law or laws of the parties at the time of the marriage (so that the marriage shall be declared null and void if it is invalid by the personal law of one or other or both of the parties); provided that a marriage which was celebrated elsewhere than in England or Scotland shall not be declared void if it is valid according to the law of the country in which the parties intended at the time of the marriage to make their matrimonial home and such intention has in fact been carried out1."
1. Report of the Royal Commission on Marriage and Divorce, Cmd. 9678, p. 395 cited in Cheshire Private International Law, (5th Edn.), p. 312.
It is clear from the first part of this passage that the principle of determining the validity of the marriage according to the dual domicile of the parties applies to the marriages celebrated in England. It would seem that the rule in Sottomayor (No. 2) has not found favour.
Thirdly, I shall consider the interpretation placed on section 88 of the Indian Christian Marriage Act. It will perhaps be conceded that statement of objects and reasons, proceedings in the legislature in respect of even the very Act under consideration do not constitute an aid to construction of that Act in courts. It is no doubt true that one of the objects accomplished by section 88 is to save to Roman Catholics their personal law as to capacity. If that had been its only object it is strange that it has not been so stated. It cannot be denied that the section would apply to all persons marrying under the Act.
The next question is as to what is the meaning of the expression 'personal law'. The expression has to be construed in the light of the context in which it is used. In the context in which it occurs it is used to denote the law governing the person marrying under the Act, particularly the status of the person for purpose of marriage. This leads us on to the question as to what is the criterion by which to determine the law governing personal status.
The criterion may be with reference to the concept of a territorial system of law or to use the language of Dicey a "Law District" or it may be with reference to membership of a religious or tribal group. Where the criterion is with reference to a territorial system of law it is either Domicile or Nationality. Where on the other hand, it is with reference to membership of a group it may be religion or tribe membership. In India we have side by side the territorial criterion of domicile and also the criterion of religion. The latter concept is used as regards persons domiciled in India. The former criterion is employed as regards cases involving a foreign element. Either would lead to the same result in the case of persons domiciled in India.
Thus, for example, if a Hindu and a Christian, both domiciled in India, marry under the Christian Marriage Act and the criterion of personal law is said to be the law of domicile, then it will be Indian law. Now Indian law will say that if the party is a Hindu, Hindu law would apply, etc. In other words, it is an instance of the criterion religion coming into operation through the criterion of domicile1. It is for this reason that the expression 'domicile' is used as synonymous with 'personal' law.
1. For a proper appreciation of this point, see the judgment of Beaumont C. J., in Khambhatta v. Khambkatfa, 59 Born 278, wherein he pointed out that the lex domicilii of a Muslim domiciled in India would be Indian law applicable to Muslims (at pp. 284-285). Delivering his judgment in the appeal from the decision of Beaumont C.J., Broomfield J, observed at p. 308 thus: "It is recognised that the law of the religion is a part of the law of domicile "
It has been observed that the contrast in section 88 is between one system of personal law and another applicable to persons having the same domicile. It is difficult to justify this view. Firstly section 88 does not occur in Part VI but in Part VIII of the Act. Secondly the language of the section is very wide and it clearly has in view 'any marriage' solemnised under the Act. It cannot be denied that persons domiciled abroad, in the same country or in different countries, can marry under the Act. In such cases section 88 of the Act would come into operation to confirm the effect of the prohibitions under the lex domicilii of the parties. An authority on the point is the decision of Gentle J., in William Hudson v. Mr. Webster, AIR 1937 Mad 565, at p. 568 the learned judge observed:
"A bigamous marriage in England is a marriage which is not a valid marriage and section 88 of the Christian Marriage Act clearly to my mind contemplates and prevents a marriage which would be invalid in places elsewhere, including England, not becoming a valid marriage because it is celebrated in this country". It has been claimed that section 88 is merely "one other application of the doctrine that the conditions as to the validity of a marriage prescribed lex loci celebrations and lex domicilii to operate both cumulatively". This cumulative operation is not in the sense that the requirements as to capacity and essential validity under two systems are to be complied with for, as conceded in the Report, the Act deals with forms only.