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Report No. 23

11. Rules as to capacity and essential validity.-

(a) We have given anxious thought to the question whether the proposed legislation should contain rules in respect of capacity and conditions of validity. The English Act does not contain any such rules, while the Australian Act lays down a rule regarding the age of marriage and requires the consent of the 'prescribed person' where a party to the marriage is under 21 years. Of the English Act it has been said by an eminent authority1 that "the intention seems to have been that no marriage should be celebrated under the Act which could not have been effectively celebrated in England and, therefore, the English prohibitions on grounds of consanguinity and affinity must be respected".

Notwithstanding the absence of a statutory provision, it was held in Pugh v. Pugh, 1951, p. 482 that the Age of Marriage Act, 1929, would be applicable to determine the validity of a foreign marriage to which an Englishman was a party. That Act was construed as having extra-territorial application so as to affect the capacity of all persons domiciled in England, to contract marriages wherever the marriage may be celebrated. In this connection, we may also refer to sub-section (3) of section 18 of the Matrimonial Causes Act, 1950, which reads as follows:-

"In any proceedings in which the court has jurisdiction by virtue of this section, the issues shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings.".

Presumably, the above provision will apply in respect of marriages performed under the Foreign Marriages Act, 1892. On the other hand, our attention was drawn to sub section (3) of section 25 of the (Australian) Matrimonial Causes Act, 1959, which reads as follows:-

"Where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a State or a Territory of the Commonwealth), the court shall apply the laws of that country or place.".

It may be contended that in respect of marriages involving a foreign element, it would not be proper to apply our law as regards capacity and essential validity and that the choice of law should be determined by the rules of private international law. Broadly, the rules of private international law lay down that as regards the form of marriage, it is the law of the country where the marriage takes place which applies (lex loci celebrationis); but in matters relating to capacity and essential validity, it is the law of the domicile of the parties which applies (lex domicile),2 However, the theory of intended matrimonial domicile discussed by Cheshire3 has already made inroads into the rules of private international law based on domicile.

The rules of private international law cannot, therefore, be said to be well-established. In fact, the case-law on the subject in England, which has been discussed in our report4 on the law relating to Marriage and Divorce among Christians in India, is in a confused state. No single uniform principle can be gleaned from these cases. If the theory regarding the intended matrimonial domicile propounded by Cheshire is correct, the domicile of persons who marry under the proposed law may well be regarded as Indian. Moreover, the proposed law would be an enabling one and persons marrying thereunder may well be deemed to have submitted themselves to our law.5

We must also take notice of the fact that we have nothing like a lex loci in this country, prescribing the conditions of validity of all marriages. In view of the uncertainty of the rules of private international law, and the absence of a lex loci in our country, doubts will always arise regarding the validity of marriages solemnised under the proposed law if it remains silent on this question. In the circumstances we think it highly desirable that the proposed law should contain rules regarding capacity and essential validity. Since one of the parties to the marriage would be a citizen of India, we can with propriety make provisions in respect of these matters.

And in view of the saving provisions proposed as to international law and local law,6 the position of the non-Indian party to the marriage can be regarded as adequately safeguarded. Further, public policy demands that capacity of any of our citizens to marry abroad should be determined by our law on the basis of the social and moral standards prevailing in our country. But, in order to avoid, as far as possible, conflict with other laws we propose to restrict the provisions regarding capacity and essential validity to the basic and fundamental requirements.

(b) We are of the view that the provisions of the Special Marriage Act, 1954, as to capacity and essential validity embodied in section 4 of that Act, which already apply to a foreign marriage when both the parties are citizens of India, are suitable for adoption in the proposed law. We recommend accordingly.7

1. Westlake Private International Law, 4th Edn., p. 64.

2. Dicey Conflict of Laws, 7th Edn., p. 231.

3. Cheshire Private International Law, 5th Edn., p. 324.

4. See the Fifteenth Report, para. 5.

5. Cf. the observations in Lazerewicz v. Lazerewicz, (1962) 2 WLR 940 (Phillimore J.)

6. See para. 12, infra.

7. See App I, clause 4.

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