Marriage Under private international law

CHAPTERISATION CHAPTER – 1 $INTRODUCTORY%  

Introduction Meaning of ‘Marriage’

CHAPTER – ! $MARRIAGE%   

Formal validity of marriage – position in England and other countries Essential validity of marriage / capacity to marry Choice of Law rule

CHAPTER – " $NRI MARRIAGES%    

Concept of on!"esident Indian Marriages and legal issues #pplication of marriage #cts in on! "esident Indian Marriages $alidity $alidity of on! "esident Indian Marriages Marriag es Indian courts %cenario and International law

CHAPTER – # $JURISDICTION% $JURISDICTION%   

&ivorce and 'udicial separation  ullity of Marriage "ecognition of foreign &ivorces

CHAPTER – 5 $CONCLUSION% 

Conclusion

CASES REFERRED () #*dur "ahim +ndre v) ,adma #*dur "ahim- #I" (.0- 1om) 23( 0) #nil 4umar Mahsi v) +nion of India- 5(..67 ( %C8 .9!.3) 2) 1erthiaume v) &astous :(.29; #C (7- . ?)L)C) (.2 6) Cristofaro v) Cristofaro 5(.37 $L" (>2 >)  Davison v. Sweeney 509967 066 &)L)") >7 L" ( , @ & (29 .) 8acintha 4amath v) ,admana*ha 4)- #I" (..0 4ant 2) (0) Le Mesurier v. Le Mesurier, :(.6; #)C) 6(< (2) Levett v. Levett and Smith :(.6 4er)0) $ishwanathan v) #*dul a'id- #I" (.>2 %C (6 0) C''46 4* M'336

Essential validity covers all Kuestions of validity other than formal validity) Capacity to marry is a category within essential validity) Capacity to marry ought strictly to *e confined to rules which lay down that a particular class of person lac=s a power to marry which other people  possess 5for instance- rule that a person *elow a certain age may not marry7) In practice-

5 :5(.37 , (99; 6 CFLICD F L#%!E%%EDI#L $#LI&ID F M#""I#AE- 1y Aeoffery %awerLL)M)-1arrister at law)- senior lecturer in law at the +niversity of Mel*ourne)

however- capacity to marry also includes cases where the reason for the invalidity- is that such a marriage relationship is o*'ectiona*le in the eyes of law 5for instance- rules prohi*ited marriages *etween relatives of certain degrees7) Capacity to marry does not- however- cover  the whole field of essential validityB it does not include the consent of the parties or the non! consummation of the marriage) Dhere is general agreement that this terminology includes matters of legal capacity such as consanguinity and affinity- *igamy and lac= of age) Consideration is given later to a law to govern matters of consent and physical incapacity) Dhe fact that capacity as a term encompasses a wide range of matters does not necessitate the conclusion that all matters of  capacity should *e su*'ect to the same choice of law rule! a matter to which we shall return) # further preliminary point which ought to *e *orne in mind is that- provided that a person has capacity under the relevant law- the fact that he is- for eHample- under age according to English law will not invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage is not in England) Dhere are two main views as to the law which should govern capacity to marry!  

Dhe dual domicile doctrine- and Dhe intended matrimonial home doctrine)

C*//4 *2 P'34

Dhe rule states that no marriage is valid if *y the law of either party’s domicile he or she does not consent to marry the other !;ts, (?;tobe", 2008).

dealing with dissolution of marriages which are covered *y the Foreign Marriage #ct- (.>.which is a complete code in itself as it answers all the issues in conflicts) ,arties marrying under their personal law in a foreign country are governed *y the law in force in that country in respect of such marriage for matrimonial relief) ,arties marrying in a foreign country according to the civil law of that country- relief can *e claimed in India under %u*section 5(7 of %ection (- of Foreign Marriage #ct- (.>.- which lays%u*'ect to the other provisions contained in this %ection the provisions of Chapter I$- $- $Iand $II of the %pecial Marriage #ct- (.63- shall apply in relation to marriages- solemniGed under this #ct @ to any other marriage solemniGed in a foreign country *etween parties of  whom one at least is a citiGen of India as they apply to marriages solemniGed under that #ctJ) In the latter situation- 5i)e) the parties marrying under civil law7 the formal validity of the civil marriage in foreign country will *e governed *y the civil law of that country) For matrimonial relief as envisaged *y %ection ( 5(7- the law of domicile of the parties is applica*le) %ection (< 5>7 of the Foreign Marriage #ct- (.>. *eing a deeming provision- ma=es the provisions of  the %pecial Marriage #ct- (.63 applica*le to all marriages performed under the Foreign Marriage #ct- (.>. for purposes of matrimonial relief) %ection (< 5>7 thus lays- # marriage registered under this %ection shall- as from the date of registration- *e deemed to have *een solemniGed under this #ctJ) In view of the deeming provision found in %ection (< 5>7 of the #ct- registration a*solves the parties of   proving that the marriage of the parties was in fact solemniGed under the #ct)0> is a foreign marriage within the meaning of Foreign Marriage #ct- (.>.) Dhe marriage is governed *y Chapter I$ of the #ct) Dhe said marriage would *e governed *y the %pecial Marriage #ct- (.63 and not *y the personal law of the hus*and)0 %ometimes on "esident Indians contract civil marriages a*road under foreign laws without solemniGing ceremonial marital customary rites simultaneously either in India or  a*road nor register their marriage under any of the Indian marriage laws- such marriages do not come within the am*it of Indian law in any way) ?owever if the couple- in addition ta=e the precaution of solemniGing their marriage under the Foreign Marriage #ct- (.>. in any

27 @$ Desa!, I , (Aa$a an$ Co. #a%", ndi anLaw ofMar r i ageandDi vor ce 2004). 28 +b$" Ra! Bn$"e . Pa$a +b$" Ra!, +R 1982, -o. 341.

Indian diplomatic office a*road- such a marriage can come under the 'urisdiction of Indian courts) #lternatively- "I spouses may have to choose either their foreign nationality law or  their domicile law a*road to resolve their marital disputes in accordance with such laws) %ection 0. of ?indu Marriage #ct- (.66 gives statutory recognition to customary marriages and divorces) Dhis aspect is very important as far as a certain category of Indian immigrants are concerned–those men who have migrated a*road from parts of rural India and have su*seKuently remarried after divorcing their Indian wives *y pleading customary divorce) 1efore permanent settlement can *e o*tained *y the Indian immigrant- who has su*seKuently remarried a woman of foreign origin and eHtraction- the immigration authorities will reKuire evidence regarding the legal validity of the customary divorce o*tained in India) ?owever- custom has to *e pleaded and proved that it must *e a regular practice in the community of the parties pleading it) %uch a custom should *e ancient- certain- reasona*le and not opposed to pu*lic policy) Dhe Madras ?igh Court held that customary divorce was recogniGed *oth *efore and after passage of ?indu Marriage #ct- (.66- it is not necessary for  the parties in such a case to go to Court to o*tain divorce on grounds recogniGed *y custom) 0. For the application of ?indu Marriage #ct- (.66 as well as %pecial Marriage #ct(.63- the parties must *e domiciled in India at the time of marriage while the Kuestion of  domicile is not relevant under Dhe Foreign Marriage #ct- (.>.) Every ?indu domiciled in India shall *e governed *y the ?indu Marriage #ct- (.66 and those whose marriage has *een solemniGed under the %pecial Marriage #ct- (.63 would  *e governed *y the %pecial Marriage #ct- (.63) Dhe %pecial Marriage #ct- (.63 provides for a civil form of marriage- which can *e availed of *y any one domiciled in India irrespective of the religion- through registration as  provided in Chapter II of the %pecial Marriage #ct- (.63- *y fulfilling the conditions laid down in clause 5a7 to 5e7 of %ection 3 of the said #ct) Dhus the ?indus availing of Chapter II of the %pecial Marriage #ct- (.63 i)e) %ections 3 to (3 would *e outside the pale of the ?indu Marriage #ct- (.66) ?aving married under the %pecial Marriage #ct- (.63 they cannot *e heard to complain of the rigors)29 # certificate of registration of marriage under the %pecial Marriage #ct- (.63 operates as conclusive evidence of two facts 29 a"!aon!a P.  Pa$anaba, +R 2001 a$. 350. 30 +n!l @a" as! . Bn!on of n$!a, (1995) 1