Report No. 23
10. Application of legislation.-
A question which calls for decision at the very threshold is, what should be the criterion or criteria on which persons might be allowed to avail themselves of the proposed legislation. Domicile and citizenship are the two elements which enter into a discussion of the validity of foreign marriages according to rules of private international law. On the basis of these two elements, it is possible to conceive of three alternatives. The law might require that one or both of the parties to the marriage should have (a) Indian citizenship and domicile, or (b) Indian domicile, or (c) Indian citizenship.
The Special Marriage Act, 1954, has adopted the first of the above alternatives and provides that both parties should be citizens of India domiciled in the territories to which it extends. Section 1(2) of the Hindu Marriage Act, 1955, has adopted the second of the above alternatives and enacts that it applies to Hindus domiciled in the territories to which it extends who are outside the said territories. Being a denominational Act limited in its application to Hindus, it was obviously considered that any fine distinctions turning on citizenship and domicile would be of little practical importance.
The English and Australian Acts have adopted the third alternative-citizenship-as the sole criterion for the application of the Acts.1 It might be that in this they were inspired by the Common Law doctrine that British subjects carry with them, wherever they might go, as much of their law as is necessary. It is also possible that the above provision was made on practical grounds. To a Marriage Officer, citizenship is a more concrete concept and can be proved easily by relevant documents.
It might be that to require a marriage officer, who may not be trained in law, to decide complicated questions of domicile (questions which are extremely difficult even for trained lawyers and judges to decide) would be to place upon him an unfair burden. Further, when an English court is called upon by a British subject to decide on the validity of a marriage contracted by him or her in a foreign country, it would be unrealistic to enter into subtle questions of domicile. We have given anxious thought to the question whether we should depart from the scheme of the English and Australian Acts and require domicile as a condition for the application of this law.
We have come to the conclusion that we should, on the pattern of the English and Australian Acts, provide for citizenship alone being the sole criterion. These Acts have been in force for quite a long period, and no inconvenience has resulted from them. To introduce the element of domicile, in addition to or in substitution of citizenship, as a criterion, will result in needless complications in the law. Having regard to the above precedents, as also considerations of convenience, we recommend2 that the proposed legislation should have application when one of the parties to the marriage is a citizen of India, without any further question as to domicile.
1. Section 1, English Act, section 9, Australian Act.
2. See App I, clause 4.