Report No. 65
16.5. Certain special situations illustrating the absence of a valid marriage after divorce valid under proposed Act.-
In this context, one aspect should also be referred to. Where the effect of applying the provisions of the proposed Act would be to confer validity on a divorce granted by a foreign country X, then, obviously, the marriage in respect of which divorce is decreed cannot subsist after the decree of divorce, if the decree falls within the class of decrees covered by the proposed Act. Now, it may happen that country Y (i.e. another country), does not recognise that divorce, and a court of that country later grants a divorce to the same parties in respect of the same marriage.
This later divorce cannot be recognised by our courts; since our courts are bound to recognise the first divorce, the marriage does not subsist according to our law. The second divorce has, therefore, to be treated as void by our courts. A negative illustration can also be taken. Let us assume, that by virtue of the proposed provisions, a particular foreign divorce cannot be recognised in India. The divorce is, however, recognised by, say, country X and a party to the marriage, now divorced, enters into a re-marriage with a third person in country X. This re-marriage is not a valid marriage in the eye of our law, since our courts do not recognise the divorce.
The second marriage is, thus, void in the eye of our law. If this remarriage i.e., itself dissolved by a decree of divorce in a foreign country, that divorce cannot be recognised in India, there being no subsisting (valid) marriage according to the conceptions of our courts. In order to ensure such a position, it is desirable to make a suitable provision by way of exception to the normal rules for recognition. A general formula, such as-"where there is no subsisting marriage"-would cover all these cases. The English Act1has a provision on the subject, on similar lines.
1. Section 8(1), English Act of 1971, para. 10.15, supra.
16.6. It may be added that the situation may be one where Indian Law (internal Indian law), does not apply to the divorce. Rules of private international law, as is force in India, are to be taken into account in that case, and if the result of the application of these rules is that there is no subsisting marriage, then, again, the divorce cannot be recognised. This situation may arise where the marriage is null and void by reason of the application of Indian rules of private international law. For example, if the marriage was solemnised in India in violation statutory requirements as to prohibited degrees, the dignity and consistency of our legal and judicial system would demand that the divorce be disregarded.
