Report No. 65
III. General Approach
1.14. Fundamental question as to general approach.-
Having dealt with the proper legislative device to be adopted to implement our recommendations, we proceed to advert to one fundamental question which is to be considered, namely, what ought to be the general approach in such matters? It is easy to say that a limping marriage must be avoided. But we venture to suggest, that this proposition cannot be raised to the status of a dogma. There must be cases where one of the parties to the marriage may, for legitimate reasons, like the marriage to survive and the foreign divorce to be disregarded. A familiar example is the case where the divorce was granted by the foreign court without giving a hearing to the opposite party.1 It is obvious that in such cases the consideration that a limping marriage should be avoided, is over-ridden by other considerations of justice.
There could be other comparable situations also. To formulate the criteria for the recognition of a foreign divorce in wide and unqualified terms would, no doubt, tend to decrease the number of limping marriages, but it would not always lead to justice. There are a number of cases where justice to the opposite party (the party who was the respondent in the divorce proceedings in the foreign court), requires that the matter adjudicated upon by the foreign court should be considered again. The fundamental aspect to be considered, therefore, is this-the rules to be laid down on the subject should be such as to do substantial justice to both the parties and subject to that consideration, as to avoid limping marriages as far as practicable.
1. Compare Article 8 of the Hague Convention.
1.15. Wide range of choice.-
The range of choice is a wide one. Between the extremes of no recognition of divorce on the one hand, and the recognition of every divorce on the other, there is obviously a wide scope for possible variations. At a time when, as a matter of internal law, divorce was severely restricted, it was natural that a similarly guarded view should be taken with respect to jurisdiction for divorce and the recognition of foreign divorces. This was reflected in the famous language of Lord Penzeance in Wilson v. Wilson, 1872 LR 2: P&D 435 (442).
"It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and a woman are held to be man and wife in one country, and strangers in another."
1.16. Views of Wolff.-As Wolff obstrves,1 it is impossible to recognise all judgments of all courts in any country all over the world, despite its manifest advantages, as the disadvantages are equally manifest in so unrestricted a recognition:
"It is not advisable to trust every court in the world to administer justice irreproachably. Bribery of Judges may have become so rare as to reduce this risk to a minimum; but in some countries unsatisfactory legal education, appointment of Judges from political motives, and the influence which the State or some powerful criminal organisation within the State brings to bear on the Judges are considerable obstacles to a universal recognition of judgments. Further, even where there is no danger of any kind of corruption of courts, differences between two countries in their fundamental attitude to questions of morality or public policy, must often make the recognition of some individual judgments seem undesirable. Finally, general recognition might result in grave injustice where the same relationship was regarded differently by the courts of two countries as in cases of marriage, divorce, inheritance, etc."
1. Wolff Private International Law, (1945), cited in Adbul Wazid v. Wishwanathan, AIR 1953 Mad 262 (264).
1.17. Cardozo's view.-
Cardozo, in his Paradoxes of Legal Science, dealt with the problems of rest and motion, stability and change, particularly as they are reflected in the law.1 His words have often been quoted-"The reconciliation of the irreconcilable, the merger of antitheses, the synthesis of opposites, these are the great problems of the law."
1. Cardozo The Paradoxes of Legal Science, (1928), p. 4.
1.18. Justice-the ultimate consideration.-
Ultimately, the rules relating to conflict of laws have to be examined from the point of view of justice and the broader consideration of social policy which conflicting laws may evoke.1
1. Cavers, in (1933) 47 Harvard Law Review 173.
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