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Report No. 23

2. Scope of marriages outside India-analysis.-

The object of the proposed legislation is thus to regulate marriages performed outside India when either of the parties thereto is a citizen of India,1 thereby filling a gap in the Special Marriage Act, which is limited in its application to marriages between Indian citizens. Before determining the true scope of the proposed legislation it will be useful to analyse the different types of marriages which could conceivably be entered into abroad by parties one or both of whom are.citizens of India:

(a) A citizen of India may marry a British subject in France in accordance with the law of France. The validity of such a marriage will be governed by the lex loci celebrationis, that is, the French law, and such a marriage should stand unaffected by the proposed legislation.2

(b) A citizen of India may marry a British subject in France in accordance with the law of England, for example, the Foreign Marriage Act, 1892, that is to say, in accordance with a law which is not the one in force either in India or in the country where the marriage is actually solemnised, that is, France. Such a marriage should also stand unaffected by the proposed legislation.2

(c) Two citizens of India may marry in a foreign country in accordance with the personal law of India applicable to such a marriage, for example, when a marriage between two Hindus is solemnised in accordance with the provisions of the Hindu Marriage Act, 1955. Such a marriage should also stand unaffected by the proposed legislation.

In the result, the proposed legislation should only apply to marriages where the parties, one or both of whom is or are citizens of India, choose to get their marriages solemnised under its provisions.3 It would be convenient if the proposed law is made an exhaustive code relating to such marriages, that is to say, to that extent it should replace the provisions contained in the Special Marriage Act, 1954, relating to extra-territorial marriages.4

1. See App I, clause 4.

2. Although the validity of such marriages would stand unaffected by the proposed legislation, it would be necessary and convenient to confer jurisdiction on Indian courts to grant appropriate matrimonial reliefs in this country in respect of such marriages. This matter is further discussed in para. 13, infra.

3. See App I, clause 4.

4. See App II, Notes on Clauses, note at the end relating to suggested amendments to the Special Marriage Act.



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