Report No. 23
13. Matrimonial causes.-
As already stated,1 we do not have in this country what may be called a lex loci dealing generally with matrimonial jurisdiction, and if suitable provisions are not made in this behalf in respect of marriages solemnised under the proposed legislation, there will be a lacuna in the law. We have, therefore, to depart in this respect from the English and Australian Acts.
In our opinion, the proposed law should contain an express provision regarding matrimonial causes. Further, it has been brought to our notice that difficulties are experienced by citizens of India who choose to marry abroad not under our laws but under foreign laws, in obtaining the appropriate matrimonial relief in our country in case the marriage unfortunately turns out to be a failure. In a recent case,2 the Rajasthan High Court has held that where a person domiciled in India has contracted a marriage in England with an English woman (presumably under the English Law) he can obtain a divorce under the Special Marriage Act, 1954, on the ground that that Act is the general law of divorce in force in this country.
Without entering into any discussion as to its correctness, we think that the decision emphasises the need for making the position clear by a statutory provision. We are, therefore, of the opinion that the provision about matrimonial reliefs to be included in the proposed legislation should also apply to a marriage performed in a foreign country under a foreign law where one of the parties to the marriage is a citizen of India.3
At the same time, care has to be taken to ensure4 that a marriage in a foreign country between parties, only one of whom is a citizen of India, not solemnised under the provisions of the proposed law, is not held to be void on the ground that it contravenes one or the other of the conditions for a valid marriage under this law, that is to say, if any such marriage is to be challenged on the ground that it is ab initio void, the ordinary rule relating to choice of law should apply rather than the provisions proposed in the new law. Subject to this reservation, any other matrimonial relief available to a party who is married under this law should also be available to a citizen of India marrying a foreigner abroad under a foreign law.
1. Para. 11(a), supra.
2. Neelkantan v. Anne Neelkantan, AIR 1959 Raj 133.
3. See App 1, clause 18(1).
4. See App I, clause 18(3), Expin. 1.
Back
