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Report No. 65

II. Legislative Device to be Adopted

1.11. Most convenient mode of dealing with subject-separate legislation.-

In view of the wide scope of this Report as explained above,1 another question may also be dealt with, before we proceed to deal with the subject-matter of this Report. The question is this-What specific legislative device should be adopted to give legal effect to our recommendations? This question arises because of the peculiar position that prevails in India on the subject of matrimonial and connected legislation. First, there is no enactment in India dealing directly with the recognition of foreign decrees of divorce and judicial Separation,-except the provisions2 in section 13 of the Code of Civil Procedure, 1908, and section 41 of the Indian Evidence Act, 1872, which are general in character and do not deal specifically with the problem of recognition of divorces. Secondly, we may also point out that the law relating to marriage and divorce in India is not contained in one enactment.

In so far as the law is codified, it is contained in several enactments3 applicable to members of several communities respectively. These enactments do not contain specific provisions as to the recognition of foreign judgments of divorce or legal separation, and that is logical, because the question of recognition of foreign judgments is outside their legitimate scope. In this position, our recommendations could not be carried out by merely amending one Act, as such a course would leave out communities governed by other Acts. One possible mode of implementing our recommendations would be to amend each of those enactments. Obviously, this is not a very convenient course. Also, it is open to certain theoretical and practical objections. Moreover, it would leave out communities whose personal law is not codified. We shall deal with those objections in detail later.4

The second alternative mode of implementing our recommendations would be to amend the provisions in the Code of Civil Procedure and in the Indian Evidence Act, to which we have already adverted5-which are general provisions as to foreign judgments and certain judgments concerning status. That also is not a very appropriate course, because those provisions are not confined to decrees of divorce or legal separation. Besides, they are procedural. Moreover, as will be evident from the various points which will be made in this Report6 hereinafter, an elaborate set of provisions will be required to give effect to our recommendations, and, as a matter of drafting convenience, it will not be feasible, in our opinion, to incorporate them by a mere amendment of the provision, in the Code of Civil Procedure, or in the Indian Evidence Act. In our opinion, therefore, the appropriate course will be separate and self-contained legislation, which would deal with recognition, in India, of foreign divorces and legal separations.

1. Para. 1.3, supra.

2. Chapter 4, infra.

3. Chapters 5-6, infra.

4. See para. 1.12, infra.

5. See supra.

6. See particularly, Chapters 10-11, infra.

1.12. Theoretical and practical objections to amending existing enactments.-

We have referred above1 to certain theoretical and practical objections which could be raised to the device of merely amending the various enactments dealing with the marriages of persons belonging to various communities. We may now elaborate those objections. What requires to be pointed out in this context, is that while most, if not all, of these enactments deal with persons belonging to a particular religion-excepting the Special Marriage Act, 1954, whereunder the religion of the parties marrying is immaterial-the decrees of divorce or judicial separation to which our recommendations relate would be decrees passed in foreign countries, and would not be confined to persons professing those religions.

The decrees could even relate to persons professing no religion. Secondly, those decrees would, even in the case of persons married under Indian legislation, have been passed, not necessarily on the grounds referred to in the relevant Indian legislation, but on grounds which are regarded as admissible under the law applied by the foreign Courts, whose decrees later come up for recognition. We need not, in the present chapter, deal with the vexed question as to the law which should be applied by the courts of a particular country when passing decrees of divorce. But we may state that the foreign Court which exercises jurisdiction would, at least in the Commonwealth, ordinarily apply not the Indian enactment, but its own law as to the grounds of divorce.2

1. Para. 1.11, supra.

2. See Chapter 3, infra.

1.13. Even where the parties were domiciled in India when they were married, it is not inconceivable that a foreign Court may dissolve a marriage between Hindus or Muslims who were married in India, and who are, at the time of the proceedings in the foreign court residing in the foreign country. In doing so, the foreign Court, if it is otherwise competent, may, without committing any breach of the relevant rules of its own private international law, dissolve the marriage on grounds or in circumstances valid under the Hindu Marriage Act or under Muslim Law as administered in India, or its statutory modifications. In this position, addition of the proposed provisions for recognition to the Hindu Marriage Act or other comparable law, would not be a very appropriate method of dealing with the subject.1

Apart from this, there is the practical- aspect, namely, the cumbersome procedure that will obviously be necessary if Parliament is to amend numerous enactments now in force, dealing with the marriages of members of various communities. The parties who have obtained the divorce in the foreign country, might be domiciled in India or not so domiciled. Their marriage might have taken place in India, or it might have taken place outside India but under an Indian enactment, or it might have been celebrated outside India. but not under an Indian enactment. Obviously, the problems arising out of all these various permutations and combinations can be better dealt with by separate enactment.2

1. See Chapter 3, infra.

2. Para. 1.11, supra.

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