PRIVATE INTERNATIONAL LAW

PRIVATE INTERNATIONAL LAW

RELATING TO MARRIAGE

SHIVAM JAISWAL

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 TABLE OF CONTENTS

PAGE
SL. NO. CHAPTERS
NO.
I INTRODUCTION 6
CONCEPTUALISATION OF THE INSTITUTION
‘MARRIAGE’
II.I Position in England
a. Hyde v. Hyde: A deathblow to polygamous marriages
b. Essential components of marriage as per English Law
II II.II. Position in India 7-11
a) Marriage in Hinduism
b) Marriage in Islam
c) Marriage in Christianity
d) Marriage in Parsi Community

PROBLEM OF CHARACTERIZATION AS TO VALIDITY

OF MARRIAGE
III.I Meaning of Characterization
III.II Characterization as to validity of marriage
III 11-13
III.III Founding Stones of question as to validity of marriage
i. Parental Consent to marry
ii. Proxy Marriage

IV FORMAL VALIDITY OF MARRIAGE (GOVERNED BY 14-21

LEX LOCI CELEBRATIONIS)
IV.I Marriages in Foreign Consulates and Embassies
IV.II Exceptions to the rule of Lex Loci Celebrationis
a) Statutory Exceptions
i. Consular Marriages
ii. Marriages of members of British Forces serving
abroad.

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 PAGE
SL. NO. CHAPTERS
NO.
b) Common Law Exceptions
i. Where the Common Law is in force in the foreign
locus celebrationis.
ii. Where the Common Law is not in force in the
foreign locus celebrationis.
iii. Where there are insuperable difficulties in
complying with the Common Law.
iv. Marriage in countries under belligerent
occupation.
v. Marriage on board merchant ship.
IV.III Position in Indian Law
ESSENTIAL VALIDITY OF THE MARRIAGE
(GOVERNED BY LEX DOMICILLI)
V.I POSITION IN ENGISH LAW
i. Discovery of Essential Validity
ii. Matters relating to the Essential Validity
V 21-28
iii. Dual Domicile and Matrimonial Home Theory
iv. Various Aspects of Essential Validity
v. Remarriage after foreign divorce and nullity decrees
vi. Consent of the Parties
V.II POSITION IN INDIAN LAW

VI 29
CONCLUSION

BIBLIOGRAPHY 30-31

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 INDEX OF CASES

1. Abdul Kadir v. Salima, (1886) 8 All 149.…………………………………....……….…………7

2. Lily Thomas v. Union of India, AIR 2000 SC 1650…………………………....……..………
7
3. Corbett v Corbett, ( 1971) .…....... ………………………....……….……………………………
7
4. Hyde v. Hyde(1866) L.R. 1 P & D 130……………………………...…...….….……..…………
7
5. Parojcic v Parojcic (1958) 1 W.L.R. 128…………….……………..………………..…………
7
6. Nachimson v. Nachimson (1930) …......................................................................…………
8
7. Buckland v Buckland [1968] ………………………………....……………..………….…………
8
8. R. v. Bham [1966] 1 QB 159 …...………………………....……….……………………..………
9
9. Simonin v. Mallac (1960) 2 Sw & Tr 67…………………………....……….
………………..12
10. Ogden v. Ogden (1908)…………… ………………………....……….……………..………
13
11. Sottomayor v. De Barros, (1879) 5 PD 94……………………………....……….……………
13
12. Bliersbach v. McEwan (1959) S.C. 43…………………………....……….……………..……
13
13. Lodge v. Lodge {1963) 107 SJ 437…………………………....……….
…………………….....13
14. Apt. v. Apt (1947)……… ………………………....……….…………………………………..13
15. Scrimshire v. Scrimshire, (1752) 2 Hag Con 395………………..………………………14
16. Berthiaume v. Dastous, [1930] A.C. 79…………………………….……………………14

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 17. Dalrymple v Darlymple, (1811) 2 Hag Con 54…………………………....……….…………
14
18. Herbert (Lady) v Herbert (Lord), (1819) 3 Bhillim 5…………………………....
…………..14
19. Elbaz v Elbaz, (1966) 110 S.T. 287…………………………....……….
……………………....14
20. Radwan v. Radwan (No.2) [1973] Fam. 35. …………………………....……….……………
15
21. R v. Turpbull, expe troff,(1911) 17 F.L.R. 438…………………………....……….……..
…..15
22. Hay v. Northcote, (1906) 2 ch 262…………………………....……….
……………………….16
23. Taczanowska v. Taczanwski (1957) ………………………....……….……………………..…17
24. R v. Millis, (1944) 10 C.I. & Fin 534……………………………....……….…….………….17
25. Wolfenden v. Wolfenden (1946)… ………………………....……….………………………..18
26. Kent v. Burgess, (1840) 11 Sim. 361…………………………....……….…….…………….18
27. Ruding v. Smith, (1821)2 Hag Con 371……………………………....……….……..………18
28. Preston v. Preston, (1963)……………… ………………………....……….……………….19
29. Sainapati v. Sainapati, 1932 Lah. 116…………………………....……….………………..…21
30. Mandakini Pundalik Salkar v. Chandrastin Palkr, AIR 1986 Bom 172…………………
21
31. Joyce v. Robert, AIR 1982 AP 385……………………………....……….…………………...22
32. Brook v. Brook, (1861) 9 H.L.C. 193…………………………....……….……………..…….22
33. Pugh v. Pugh(1951)… ………………………....……….………………………………...…….24
34. Buclu v. Sabau (1997) F.L.C. 92…………………………....……….……………...…………
25
35. Conway v. Beazley (1831) 3 Hag, Ecc. 639…………….……………....……….……..
……..25
36. Lawrence v. Lawrence, (1985) Fam. 106…………………………....……….………..……..25
37. Scott v. Attorney General, (1886) 11 P.D. 128………………………………....……….…..26
38. Warter v. Warter, (1890) 15 P.D. 152…………………………....……….……..…………..27

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 39. Szechter v. Szechter, [1971] P.286………………………....……….……………...…………27
40. Re Bethell, (1887) 38 Ch.D.220…………………………....……….………………...……….27

I. INTRODUCTION
“Ihemavindra sa nuda chakravakeva dampatti
Prajayaunau swastakau vishwamayuwarya shanutam”
– [Atharva veda]
O Lord ! May you bring together this newly married couple in the same manner as a pair
of birds; let them enjoy marital bliss, and along with their progeny, live a full life…

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 The ancient human society was a nomadic society. With the passage of time, the nomadic
human beings evolved into an agricultural society and it was considered necessary to
ascertain the paternity of children. Thus, it seems, in man’s quest to know the paternity of
children lie the seeds of the institution of marriage. 1Marriage is one of the most important
institutions of the civilized human society. According to sociologist Mazumdar, “marriage is
a socially sanctioned union of male and female for the purpose of establishing household,
entering into sex relations, procreating and providing care for the offspring2”.
Despite the uniformity in recognition of marriage as a social institution, some differences
remain amongst the communities and countries as to its status, to say, is it a contract or
sacrament, it can be monogamous or polygamous, is it formal validity or essential validity or
both giving effect to the validity of marriage and the most essential question as to the law
which shall govern the disputes arising out of such marriage.
Choice of law rules for marriage are therefore one of the main subject of conflict of laws
where certainty and predictability are greatly required amongst various legal systems of the
world. In certain countries, like the USA, the entire validity of marriage is governed by the
‘lex loci celebrationis’3, while retaining certain exceptions to the rule. In legal systems like
United Kingdom and France, the position is rather different insofar as they draw a distinction
between formal and essential validity of marriage. While formal validity is referred to the
‘lex loci celebrationis,’ these legal systems disagree on the issue of whether the personal law
to which essential validity is referred should be determined by ‘lex domicilli’ or ‘lex patriae’.
Hence, this paper is a little attempt to understand the private international law relating to the
status of marriage.
II. CONCEPTUALISATION OF THE INSTITUTION ‘MARRIAGE’
Practically all the countries agree that marriage is a union between a man and woman.
Beyond this, there are differences. In Western countries, marriage is considered as a contract
and a monogamous union. Though Roman Catholic Church still insists that marriage is a
sacrament and an indissoluble union. Muslim world has considered marriage as a ‘civil
contract4’ but also recognized limited polygamy. At one time in the East, Hindus and
1
P. Diwan and Peeyushi Diwan, Modern Hindu Law Codified and Uncodified, 62 (Allahabad Law Agency,
Faridabad, 16th Ed. 2005).
2
H.T. Mazumdar, Grammar of Sociology, 502 (Asia Publishing House 1966).
3
Local law of the place where the marriage was celebrated
4
Abdul Kadir v. Salima, (1886) 8 All 149

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 Buddhists considered marriage as a ‘sacrament’5 and an indissoluble union, though both
polygamy and polyandry was recognized. Today Hindus and Buddhists only recognize
monogamous marriage. Though Chinese Buddhists consider their marriage as a
contract.6Presently, amongst Hindus marriage is something between sacrament and contract.7

II.I Position in England

According to the English law marriage is considered as a contract by which a man and a
woman8 express their consent to create the relationship of husband and wife. Fundamentally,
this type of contract, differs from a commercial contract in the following three ways:
 As a general rule it can only be concluded by a formal public act;
 It can only be dissolved by formal public act; and
 It creates a status, which is taken into account in relation to (succession, tax, legitimacy
of children, and to some extent in relation to immigration laws.
It has been observed that, while ‘marriage’ may be based on agreement, it is an agreement
‘sui generis’, in that it confers on the parties a particular status.9
Until the establishment of the Court for Divorce and Matrimonial Causes in 1857, the Civil
Courts had operated upon an ill defined, though widely assumed, understanding of the
Christian marriage.10 The transfer of the jurisdiction from ecclesiastical courts and the
introduction of the new powers to make financial orders4 made the need for a clear statement
of the concept of marriage as understood in English law all the more pressing.
a. Hyde v Hyde11: A deathblow to polygamous marriages
Facts of the case: One Englishman, who had embraced the Mormon faith, married a
Mormon lady in Utah according to Mormon rites. After living with her for three years and
having children by her, he renounced the Mormon faith and, soon afterwards, became a

5
Lily Thomas v. Union of India, AIR 2000 SC 1650.
6
Chinese Family Law of 1931 and 1949
7
P. Diwan and Peeyushi Diwan, Modern Hindu Law Codified and Uncodified, 55 (Allahabad Law Agency,
Faridabad, 16th Ed. 2005).
8
At Common Law, the parties to the marriage are a man and a woman; Corbett v Corbett, [1971] P. 83.
9
Hyde v. Hyde(1866) L.R. 1 P & D 130.
10
Judicial divorce was introduces into England in the Matrimonial Causes Act 1857. Under which the court formed
part of the Probate, divorce, and Admiralty Division of the High court in 1875, In 1972, it was reconstituted as the
Family Division of the High Court.
11
(1866) LR 1 P&D 130.

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 Minister of a dissenting chapel in England. He petitioned for a divorce in England after his
wife had contracted another marriage in Utah according to the Mormon faith.
Observation of the Court: Lord Penzance assumed that the Mormon marriage was
potentially polygamous and he refused to dissolve the marriage. The laws of England, the
Judge thought, were not adopted for polygamy and the parties to a polygamous marriage
were ‘not entitled to
the remedies, the adjudication, or the relief of the English matrimonial law’. Lord Penzance
sought to define marriage for the purpose of ‘the remedies, the adjudication, and the relief of
the English matrimonial law’. He defined marriage as follows:
“ I conceive that marriage, as understood in Christendom, for this purpose be defined as the
voluntary union for life of one man and one woman, to the exclusion of all others. ”
b. Essential components of marriage as per English Law
Now, each of the Lord Pezance’s definition of marriage components will be examined:
 Marriage is a voluntary union: The first component of the above definition is the term
‘voluntary union’. It is a settled principle that, if one party to the marriage does not consent
to marry the other, the marriage will be regarded as invalid. Lack of consent may result from
fear for one’s life caused by duress12 or other forms of lack of consent, which would not be
recognized in the English courts.13
 Marriage is a union for life: The requirement that the ‘union should be for life’ does not
mean that the marriage must be indissoluble. It clearly means now, that the relationship must
be potentially for life and a ‘marriage’ delimited at its inception cannot be recognized as a
marriage for the purpose of the conflict of laws.14
In Nachimson v. Nachimson15, the facts were that the parties were married in Russia in 1924
under the Bolshevik Law of 1918. At that time, the marriage could be unilaterally dissolved
by Russian law and without any proof of causes. The Bolshevik law provided for dissolution
by mutual consent through an administrative process. In the event of no consent, a judge
could grant dissolution. Hill J refused an application for judicial separation, arguing that the
marriage was terminable at will.
12
S. 12(c) of Matrimonial Causes Act 1973
13
Parojcic v Parojcic [1958] 1 W.L.R. 128 (marriage in England voidable because of coercion by father of bride):
Buckland v Buckland [1968] P 296 (bridegroom threatened with prosecution).
14
R. H. Graveson; Conflict of Laws, Private International Law, (7th edn, 1974) at p 243.
15
[1930] P 217; 46 T.L.R. 444.

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 Judgment of the Court: The Court of Appeal dismissed this argument and held that it was
immaterial that, under the local law of the foreign country where the marriage was
celebrated, dissolution could be obtained. What was important was that the parties, when
they were married, had envisaged that the marriage was potentially indefinite in duration and,
therefore, the possibility of its termination by the lex loci celebrationis was not relevant.
 Marriage between one man and one woman
According to Lord Penzance’s definition the marriage union must be of one man and one
woman. This requirement is, however, still applicable under the current English laws. This
requirement means that a marriage between parties of the same sex is not accepted as a valid
marriage. Neither is a marriage between one man and one woman who had been born as a
male but underwent a sex change operation accepted as a valid marriage, and a homosexual
relationship cannot be accepted for the purpose of the English conflict of laws.
 To the exclusion of all others
Although, at the time of the judgment in Hyde v Hyde, adultery was the main basis for
judicial divorce, this part of definition reinforces the point about polygamy and is not a
requirement of sexual continence. The adultery of one party, or, indeed, of both, never
resulted in the invalidity of a marriage but only in grounds which might allow one party to
petition for its dissolution. A polygamous marriage cannot take place in England, since the
rules on formalities set out in the marriage Act 1949 prohibit such act.16 A person who is
already lawfully married cannot contract a second valid marriage in England during the
subsistence of the first.17

II.II. Position in India

In India, each religious or quasi-religious community has its own personal law. In matters
relating to family, India has no national or regional law. The majority community, Hindus,
have their own family law, so has the biggest minority community Muslims. Other
communities like Christian, Parsi and Jews too have their own set of family laws. Let us
briefly understand the nature of marriage and its governance amongst different communities
in India –
a) Marriage in Hinduism
16
R. v. Bham [1966] 1 QB 159.
17
S. 11(b) of Matrimonial Causes Act 1973.

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 Hindu Marriage has been considered as ‘one among the 16 Sanskaras’, and believed as a
‘sacrament’. Which has the implication that it is permanent, indissoluble and eternal. 18In
modern Hindu Law, marriage has become not only monogamous 19 but also a dissoluble
union.20To a great extent it ceased to be a sacramental union, though it is doubtful whether it
has become a full-fledged contract. It may be noted that under The Hindu Marriage Act,
1955, any two Hindus, whether domiciled in India or not, whether Indian Nationals or
foreigners, can perform their marriage. Hindus can still perform their marriages in customary
modes.21
b) Marriage in Islam
Muslim Marriage unlike Hindu marriage, where proper ceremonies are sine qua non of valid
marriage, no special marriage ceremony is prescribed under Muslim Law except a religious
discourse by a Qazi. There is a fundamental difference between the nature & character of
Hindu and Muslim marriage, as in the former case it is a sacramental union and in the later
cases it is purely a contractual union. However, in Muslim society, a marriage proposal by
the male and its acceptance by the female is necessary for a valid (Sahih) marriage. Spousal
consent is not important in traditional Hindu marriage. Muslim marriage is potentially a
polygamous marriage as the husband is allowed to have up to four wives, as polygamy is a
part of personal law of the Muslims.
c) Marriage in Christianity
Among the Christians, the concept pf marriage is same as under English law. In India, the
Christian marriages are performed under the Christian Marriage Act, 1872. Under the Act, a
marriage may be performed before a marriage registrar22or be solemnized by a minister of
religion licensed under the Act.23The Act authorizes only monogamous marriages. The
peculiar feature of the Act is that, if a Christian, male or female, wants to perform marriage
with a non-Christian, the marriage can be performed only under The Christian Marriage Act,
otherwise such a marriage will be void.24

18
P. Diwan and Peeyushi Diwan, Modern Hindu Law Codified and Uncodified, 55 (Allahabad Law Agency,
Faridabad, 16th Ed. 2005).
19
S. 5(1) of The Hindu Marriage Act, 1955.
20
S. 13 of The Hindu Marriage Act, 1955
21
S. 7 of The Hindu Marriage Act, 1955.
22
Chapter III of the Christian Marriage Act, 1872.
23
Part VI of the Christian Marriage Act, 1872
24
Section 4 of the Christian Marriage Act, 1872.

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 d) Marriage in Parsi Community
The Parsis also consider their marriage as a contract. The Parsis are those who profess
Zoroastrian religion.25The Parsis marriage is a monogamous union, so much so that a Parsi
by changing his domicile or religion cannot contract another marriage under the Parsi law or
any other law in the life time of his or her spouse, whether a parsi or not. 26If such a marriage
is performed, it would be void.27The marriage and Matrimonial causes among Parsis are
regulated by the Parsi Marriage and Divorce Act, 1936 as amended by the Act of 1988. Under the
Act, a marriage can be performed only between two parties and for every such marriage, the
religious ceremony of ‘Ashirvad’ is necessary.28
III. PROBLEM OF CHARACTERIZATION AS TO VALIDITY OF MARRIAGE

III.I Meaning of Characterization

Characterization or classification is the most essential step in the Private international law
after the determination of jurisdiction by the Court. Characterization of the cause of action
means to fix the correct legal category of the factual situation at hand –
 whether the matter is Civil or Criminal
 whether the matter is Contract/ Tort
 whether the property is Movable or Immovable
 whether the Marriage is Valid or Void or Voidable

CHRONOLOGICAL ORDER AS TO CHOICE OF LAW

Application of Choice of Law

Selection of Choice of Law Applicable

[ Question of application of Renvoi arises at this stage ]

Determination of ‘Connecting factor’ by looking into Internal law(including Pvt.

International Law of the Lex Fori

25
S. 2(7) of Parsi Marriage and Divorce Act, 1936.
26
S. 4(1) of Parsi Marriage and Divorce Act, 1936.
27
S. 4(2) of Parsi Marriage and Divorce Act, 1936.
28
S.3(b) of Parsi Marriage and Divorce Act, 1936.

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 Allocation of the question to its correct ‘Legal Category’

Determination of Jurisdiction by ‘Lex Fori’ on institution of the matter before it.

III.II Characterization as to validity of marriage

Classification is considered as one of the most complicated problem in regard to validity of

marriage, by reference to which law the formal and essential validity of the marriage is to be
decided. The problem gets complicated as the domestic laws of countries of the world exhibit
great diversity. Therefore, it happens that the courts of one country consider a matter relating
to marriage as a matter of formal validity( English law as to parental consent), while courts
of the other country consider the same matter as of material validity( French law as to
parental consent).

III.III Founding Stones of question as to characterization of validity of marriage

It is proposed to examine and discussed two specific areas where difficulties have arisen
before proceeding to the general categories of formal and essential validity. These cases are
parental consent and proxy marriage –
i. Parental consent to marry: The issue of parental consent is one of the most controversial
question as whether lack of parental consent is a matter relating to formalities of marriage or
capacity to marry. Two case laws can be marked as founding stones for determination of the
question as to validity of marriage.
In Simonin v. Mallac,29 the question arose as to the validity of a marriage celebrated, in
England, between a 29 years old Frenchman and a 22 years old Frenchwoman. Such
marriage
was contrary to the provisions of Articles 151 and 152 of the French Civil Code. The
marriage was held lawful in England on the basis that questions of formal validity were to be
determined by the law of the place of celebration.

29
(1960) 2 Sw & Tr 67.

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 In Ogden v Ogden.30 In that case, a domiciled Frenchman aged 19 married in England a
domiciled Englishwoman without his parent consent as required by Article 148 of the French
Civil Code, which provided that a son who had not attained the age of 25 years could not
contract marriage without the consent of his parents. The Court of Appeal held:
(a) that questions of parental consent were matters of formality;
(b) that formality was governed by the lex loci celebrationis, and
(c) that, in any event, the marriage was valid under the principle in Sottomayor v. De
Barros31although the correctness of this decision was heavily criticized, 32 because the
operative provision of the French Civil Code quite clearly made the issue one of capacity, it
has since been followed in Scotland33 and England.34
ii. Proxy marriage: the validity of proxy marriage is an issue related to the mode of giving
consent, and the question of whether the parties must be physically present at the ceremony.
English law requires both parties to be present at the marriage ceremony. 35 However, in some
countries proxy marriages are permitted and questions can be arising as to validity.
In Apt v. Apt,36 an English domiciliary authorized a representative to go through a marriage
on her behalf with an Argentinean domiciliary in Buenos Aires. Proxy marriages are lawful
under Argentinean law but not under English law. In upholding the validity of marriage, the
Court of Appeal drew a distinction between the method of giving consent and the fact of
consent. The employment of a proxy was within the formal category and, thus, part of the
method by which the ceremony was performed; in such circumstances, it was a matter of
formality and, thus, fell within the lex loci celebrationis.

IV. FORMAL VALIDITY OF MARRIAGE (GOVERNED BY LEX LOCI

CELEBRATIONIS)
It is well established rule of English private international law that a marriage to be formally
valid must comply with the principles of ‘Locus Regit Actum37’. A marriage which does not

30
[1908] P. 46
31
(1879) 5 PD 94.
32
Morris, ‘The Conflict of Laws’, 186 (David McClean & Co., 5th Edn, 2000).
33
Bliersbach v. McEwan (1959) S.C. 43.
34
Lodge v. Lodge {1963) 107 SJ 437.
35
Section 44(3) of Marriage Act, 1949.
36
(1947) P. 83.
37
Scrimshire v. Scrimshire, (1752) 2 Hag Con 395

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 comply with the local law is not valid.38 Consequentially, as one of the clearest principles of
private international law, the question of the formal validity of a marriage is governed by the
lex loci celebrationis.39 The courts have frequently stressed the absolute nature of both the
aspects of this principle. “Every marriage must be tried according to the law of the country in
which it took place,”40 and if it is good by that law, then so far as its formal validity alone is
concerned “it is good all the world over, no matter whether the proceedings or ceremony
which constituted marriage according to the law of the place would or would not constitute
marriage in the country of the domicile of one or other of the spouses.”41
In some countries, analogous problems can arise from the rule of lex loci celebrationis that
parties may not marry in religious form unless both of them are members of the religion in
question. This is the situation in Israel, where Jews may marry only in the Jewish form,4 but
such marriages are void if either party is not Jewish. Despite the fact that this rule precludes
Jews from marrying non-Jews in Israel,42 English law regards it as relating to form. Thus
where a non-Jews woman resident (and presumably domiciled) in England went through a
Jewish ceremony of marriage in Israel, falsely asserting that she was Jewish, the marriage
was annulled by the English court for non compliance with the formalities required by the
lex loci celebrationis.43

IV.I Marriages in foreign Consulates and Embassies

The question of the formal validity of marriage celebrated in a foreign consulate a broad was
considered in Radwan v. Radwan (No.2),44 where in 1951, the husband domiciled in Egypt
married Ikbal in Egypt in polygamous form. In 1952, he married the petitioner, Mary, a
domiciled English woman, in the Egyptian Consulate General in Paris, in polygamous form
and their matrimonial home was established in Egypt. In 1953, the husband divorced Ikbal by
talaq. In 1956 the husband and Mary come to live in England and acquired a domicile there.

38
Berthiaume v. Dastous, [1930] A.C. 79
39
Scrimshire v. Scrimshire, (1752) 2 Hag Con 395, Dalrymple v Darlymple, (1811)2 Hag Con 54 and R v. Bham,
(1966) 1 Q.B. 159 Rex’s Marriage (1983) 65 F.L.R. 132; and Burke v. burke, (1983) S.L.T. 331
40
Herbert (Lady) v Herbert (Lord), (1819) 3 Bhillim 5 at p. 63.
41
Berthiaume v. Dastous, [1930] A.C. 79
42
Dicey and Morris, ‘The Conflict of Laws’, 642(12th Edition, 1993)
43
Elbaz v Elbaz, (1966) 110 S.T. 287: Swifte v Attorney General for Israel, A.C. 276; Re Alison's Trusts, (1874) 31
L.T. 638.
44
[1973] Fam. 35.

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 In 1970, the husband obtained a talaq divorce from Mary in Egyptian Consulate General in
London and then Mary petitioned the English courts for divorce.
Two questions had to be examined - whether the parties had capacity and whether the
marriage was formally valid. Cumming Bruce J. decided that, although Mary was incapable
by English law of entering a polygamous marriage, she was capable by Egyptian law, the law
of the intended matrimonial home. As to formal validity, the court held that the Egyptian
Consulate General in Paris was to be regarded as French, and not Egyptian territory. 45 The
court presumed the marriage to be formally valid in absence of decisive evidence of French
law to rebut this presumption.

IV.II Exceptions to the rule of Lex Loci Celebrationis

There are two statutory exceptions and one common law exception to the rule that the lex
loci celebrationis governs formalities –
a. Statutory exceptions
i. Consular Marriages
The first statutory exception that applies in relation to consular marriages is embodied in the
Foreign Marriages Act 1892, as amended by the Foreign marriage Act 1947, and the
Foreign Marriage (amendment) Act 1988, which provides that a marriage where one party is
a British subject conducted by a marriage officer in a foreign country in the manner set out in
the Legislation shall be as valid if the same had been solemnized in United kingdom. Such
marriages are often referred to as consular marriages in that, while Ambassadors or High
Commissioners may serve as marriage officers, the task is normally regarded as a consular
function, but they must hold a marriage warrant from the Secretary of State.
However, the Act has to be read with the Foreign Marriage Order of 1970,46 which stipulates
that a marriage is not to be solemnized in a foreign country unless there is evidence:
That at least one of the parties is a United Kingdom national; and
That the authorities of that country will not object; and
That there are insufficient facilities for the marriage of parties in that country; and
That the parties will be regarded as validly married by the law of the country in which each
party is domiciled.
45
R v. Turpbull, expe troff,(1911) 17 F.L.R. 438.
46
Sec. 1 1970 / 1539, as amended by Sec 1 1990 / 1598.

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 In a rather curious provision, the Act lays down that no marriage is to be celebrated where it
would be a breach of the international law47 or the comity of nations, which Section 23
provides that the provisions of the Act are not to Affect the validity of other marriages
celebrated abroad.
Therefore, according to this exception, so long as the foreign marriage complies with the
requirements laid down by the Act, it will be held formally valid in England from the point of
view of form, even though it might be void under the law of the place of celebration.48
ii. Marriages of Members of British Forces serving abroad
The second statutory exception to the general rule is embodied in Section 22 of the Foreign
Marriage Act 1892, as amended by both the 1947 and the 1988 Acts which provides that –
1. A marriage solemnized in any foreign territory by a chaplain serving with any part of the
naval, military, or air forces of His Majesty serving in that territory or by a person
authorized by the commanding officer of any part of those forces serving in that territory
shall, subject as hereinafter provided, be as valid in law as if the marriage had been
solemnized in the United Kingdom with a due observance of all forms required by law.
(1.a) Subsection (1) above shall not apply to a marriage unless;
(a) At least one of the parties to the marriage is a person who;
(i) Is a member of the said forces serving in the foreign territory concerned or is employed in
that territory in such other capacity as may be prescribed by Order in Council; or
(ii) Is a child of a person falling within sub-paragraph (i) above and has his home with that
person in that territory, and
(b) Such other conditions as may be so prescribed, are complied with.
(1.b). In determining for the purpose of sub-section (1.a) above whether one person is the
child of another;
a. It shall be immaterial whether the person’s father and mother were at any time married to
each other; and
b. A person who is or was treated by another as a child of the family in relation to any
marriage to which that other is or was a party shall be regarded as his child.
Thus, this exception applies to marriages entered into by members of Her Majesty British
forces whilst serving abroad. However, there is no requirement that either party must be a
47
S. 22 of Foreign Marriage Act 1892
48
Hay v. Northcote, [1906] 2 ch 262.

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 British citizen.49 The term “foreign territory” does not include any part of the
Commonwealth, but it does include a ship in foreign waters. The operation of the section
depends very largely on Order in Council. 50 Unlike the rest of that Act, Section 22 is largely
declaratory of the common law. It is a real exception to the principle that compliance with
the formalities prescribed by the local law is necessary to the validity of a marriage, but its
scope is limited.
b. Common Law Exceptions
Prior to the introduction in England by statute of specific marriage formalities, English law,
subject to one qualification, adopted the ‘Rule of the Canon law’, which merely required that
the parties voluntarily exchange mutual marriage vows, the so called marriage per verba de
presenti. This type of marriage emerged a very long time ago at a time when canon law
marriage was in force. Prior to 1843, the only essential requirement to formal validity was
that the couple should take each other as man and wife. However, the House of Lords, in R v.
Millis,51 imposed that further requirement that an episcopally ordained priest or deacon,
whether of the English or Roman Catholic Church, should perform the ceremony. In this
case, a marriage celebrated in Ireland by a Presbyterian Minister according to the rites of the
Presbyterian Church was held to be invalid, on the ground that it was contrary to the common
law requirement that the marriage should be celebrated in the presence of an episcopally
ordained Clergyman.
Cases in which the exception prevails
There are different situations in which a marriage contracted out of England is formally valid
if it satisfies the requirements of the common law –
i. Where the Common law is in force in the foreign locus celebrationis.
The first is where the common law of England continues to govern the parties even in the
foreign country where they take each other as husband and wife. This can be illustrated by
the earlier days of colonialism. It was consistently recognized as a matter of Constitutional
law that the British settlers in countries such as Australia took the common law with them,
but only so much of it as was suitable to the local conditions.52

49
Taczanowski v. Taczanwski [1957] P. 301.
50
Foreign Marriage (Armed Force) Order, 1988.
51
(1944) 10 C.I. & Fin 534
52
Blackstone, ‘Commentaries on the Laws of England’, p. 108.

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 Tested by this principle, it seems clear that the rule of the common law requiring the
intervention of an episopally ordained priest could scarcely be extended to a marriage
contracted in a colony during the early days of the colonization when there was no Church
establishment and no division of the countries into parishes.
In Wolfenden v. Wolfenden53, where the parties both Canadian, went through a ceremony of
marriage at a Church of Scotland Mission Church in a remote part of China, the ceremony
was performed by the Minister of the Mission without banns or license. Moreover, the
Minister was not episcopally ordained, nor was he authorized to perform such a marriage in
accordance with the Foreign Marriage Act, 1892. The court after examining the decision in
R v. Mills, and subsequent decisions, held that the rule in the case had been qualified to apply
only to marriages performed in England and Ireland. Additionally, under the circumstances,
the parties were unable to celebrate their marriage before such an Ordained Priest.
Accordingly, the marriage was formally valid.
ii. Where the Common law is not in force in the foreign locus celebrationis
The second situation is where the parties, though not subject to the common law in the
foreign locus celebrationis have, nevertheless, without regard to the local formalities, taken
each other as man and wife at a ceremony performed, usually, by an episcopally ordained
priest.

iii. Where there are insuperable difficulties in complying with the Common Law
There are a number of situations where a valid common law marriage is found because the
demands of the lex loci were impossible for the parties to fulfill, and not because the territory
is deemed subject to the common law.54 Lord Stowell considered that “legal or religious
difficulties" might justify a relaxation of the principle locus regit actum.55 Lord Eldon held
that a common law marriage had been established where two Protestants had been married in
Rome before a Protestant clergyman when the Court received evidence that no Roman
Catholic Priest would perform the ceremony.56

53
[1946] P. 61
54
Kent v. Burgess, (1840) 11 Sim. 361
55
Ruding v. Smith, (1821)2 Hag Con 371
56
Lord Cloncusive's case; (1811)

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 Thus, the parties must have found it impossible, or virtually impossible to comply with the
local law, and not only that they found it embarrassing, distasteful or inconvenient so to
comply as in the case of, Kent v. Burgess,57 where a marriage in Belgium was held void for
non compliance with Belgian residence requirements, there being no insuperable difficulty in
the parties waiting the prescribed six months period.

iv. Marriage in Countries under belligerent occupation

The leading case in this regard is Taczanowska v. Taczanowski,58 where the fact as follows;
a Polish solder stationed in Italy as a member of the Allied Forces in occupation of that
country at the end of the Second World War, married a Polish woman at a religious
ceremony in Rome. The ceremony did not comply with the form which Italian law
considered essential to a valid marriage. The ceremony was also insufficient under Polish
law, the law of their common law nationality and domicile, to constitute a valid marriage.
Since the husband as a member of a belligerent force in occupation of Italy, was not subject
to the finding force of Italian law, the wife petitioned for a decree of nullity in England on
the ground non-compliance with the local forms.
The Court of Appeal held that the marriage was valid as a common law marriage. The main
ground of the decision appears to have been that the husband was not in Italy from choice but
under the orders of his military superiors, he was exempt from the operation of the local law
unless he submitted to it of his own volition. Widely constructed, this ratio could be taken to
include ordinary civilians who are present in a country from necessity and not from choice.
But it is now clear that the principle does not extend to them.59
v. Marriages on board merchant ships
Due to the public international law theory60 which says that a ship is a floating portion of the
country whose flag it carries, it has been thought that a marriages celebrated in merchant
ships would be held valid if celebrated in accordance with the formalities prescribed by the
law of the ship’s port of registration and that if this was English law, it seems that it would
suffice if parties took each other for husband and wife per verba de praesenti, provided the

57
(1840) 11 Sim. 361
58
[1957] P 301; All ER. 563.
59
Preston v. Preston, (1963)
60
Article 2 of the Geneva Convention on the High Seas, 1958.; Article 89 of Law of the Sea Convention, 1982.

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 court is satisfied that it was impracticable for them to wait the ship reached a port where
sufficient facilities were available either by the lex loci or under the Foreign Marriage Act,
1892.

IV.III Position in Indian Law

In India, two forms of marriages are available. If both the parties are Hindus Muslims,
Christians, Parsis or Jews, then they may perform their marriage under –

(i) the personal law of community to which both the parties belong; or
(ii) under the Special Marriage Act, 1954. In the latter case the marriage has to be a civil
marriage, though parties are free to append any other ceremonies.61

In the former case, the marriage may be performed in accordance with the ceremonies laid down
by the personal law of the parties. If parties belong to different communities then they can
perform their marriage only in a civil marriage form. Whenever a marriage is performed in India,
compliance with one of the above formalities is essential; non-compliance of which renders the
marriage void or voidable.

Hindu Marriage: Among Hindus, two essentials of marriage are considered to be the matters of
Formal Validity :-

1. Age of the Parties

2. Consent of the Parties

Ceremonies under Hindu Marriage62:

When both parties are Hindus( irrespective of their domicile or nationality), a marriage may be
solemnized in accordance with the customary rights and ceremonies of either parties thereto 63
and if such ceremony includes Saptapati, marriage must be considered to be complete on taking
of seventh step by the spouses.64 This ceremonies and rites fall under two heads:

 The Sastric Ceremonies and rites as prescribed under Hindu Law; or

61
S. 12 of the Special Marriage Act, 1954.
62
S. 7 of Hindu Marriage Act, 1955
63
S. 7(1) of Hindu Marriage Act, 1955.
64
S. 7(2) of Hindu Marriage Act, 1955

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  The Customary Ceremonies and rites recognized by custom in the caste or community to
which either party belongs.
 Muslim Marriage: Muslim marriage being primarily a contract, the only essential ceremony
that is required is that there must be a proposal and acceptance made in one and same
meeting. Among, the presence of sane and adult witness – two males or one male and two
females is required at the time when proposal and acceptance are made. But the absence of
witness does not render the marriage, void but only irregular. 65 Among the Shias, presence of
witness is not necessary. No religious ceremony is needed. Even writing is not required.
 Christian Marriage: In case the marriage is solemnized among the Indian Christians, the
formality of notice is not necessary. The Indian Christians can perform their marriage in the
presence of a person licensed to perform such marriages and, at least, in the presence of two
credible witnesses.
 Parsi Marriage: A Parsi Marriage must be solemnized in the “Ashirvad” form by a Parsi
priest in the presence of two Parsi witness other than the priest.66

Thus, It is an established principle of ‘Indian Private International Law’ that a marriage to be

formally valid must comply with the lex loci Celebrationis.67

 Consular Marriage: The Foreign Marriage Act, 1969, modelled on the English Statutes of
that name and The Foreign Marriage Order, 1964 provides for consular marriages if one of
the parties to the marriage is an Indian national. The Act lays down that a consular marriage
may be performed abroad when one of the parties to the marriage is an Indian national( the
other party may be an Indian or a foreigner) at the official house of the Marriage officer in
the presence of at least three wittiness in any form which the parties may choose to adopt.
The Marriage Officer has power to refuse to solemnize or register a marriage which in his
opinion, is inconsistent with International law or the Comity of Nations.68
A marriage solemnized abroad in accordance with the lex loci celebrationis between parties,
one of whom at least is an Indian National may also be registered under the Act and once it is
so registered, it shall be deemed to be a marriage under the Act.69

65
Mulla’s Mohammedan Law, (14th edition, 257)
66
S. 3(b) of Parsi Marriage and Divorce Act, 1936.
67
Sainapati v. Sainapati, 1932 Lah. 116; Mandakini Pundalik Salkar v. Chandrastin Palkr, AIR 1986 Bom 172.
68
S. 11(2) and S. 17(3) of The Foreign Marriage Act, 1969.
69
Chapter III of the Act of 1969.

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 But if a marriage has not been registered under the Act, a petition for divorce cannot be filled
in India.70
V. ESSENTIAL VALIDITY OF THE MARRIAGE (GOVERNED BY ‘ANTE-NUPITAL
DOMICILE)
We turned now to consider the second major question relating to choice of law in context of
marriage, the law governs the essential validity or as it is sometimes called capacity to marry.
Until the mid of the nineteenth century English Courts did not separate questions of capacity
to marry from issues of formal validity and assumed that all matters of marriage validity
were governed by the lex loci celebrationis.71

V.I. Position in English Law

1. Discovery of Essential validity: The turning point came in Brook v. Brook,72 where the
House of Lords held void a marriage celebrated in Denmark between two English
domiciliaries which was valid by Danish Law on the ground that the parties were within a
prohibited degrees of affinity by the English Law. The reverse situation subsequently arose in
Sottomayar v. Barros (No. 1)73 where the Court of Appeal held void a marriage celebrated in
England between Portuguese domiciliaries, and valid by English Law, on the ground that the
parties were within a prohibited degree of relationship by the law of Portugal.
2. Matters relating to essential validity: Questions of essential validity includes matters relating
to impediments of the prohibited degrees of consanguinity, affinity, marriageable age and
existing marital status (bigamy) e.g. whether a person is already married and therefore cannot
remarry under a monogamous system). Indeed question of essential validity probably include
all questions that arise in relation to marriage validity other than question of formal validity,
Consent and personal impediments will be discussed as matters of capacity, as is at least
arguable, then a single category of essential validity can be constructed to encompass all
matters other than issues of formal validity.
3. Dual Domicile and Matrimonial Home Theory
1) Dicey’s Dual Domicile Theory

70
Joyce v. Robert, AIR 1982 AP 385
71
Scrimshire v. Scrimshire (1752) 2 Hag. Con 161 E.R. 7S2
72
(1861) 9 H.L.C. 193
73
(1877) 3 PD 1.

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 According to this theory capacity to marry is governed by the law of each party’s ante nuptial
domicile. Therefore, the law of each party’s domicile at the time of the marriage has to be
considered. This theory based on the idea that the community to which each party belongs is
interested in his or her status, and that in these days of sex equality no preference should be
shown to the laws of one community rather than the laws of the other.74
According to this view, a distinction is drawn between matters that arise up to the date of the
marriage ceremony and those that arise after that date. Those that arise separate before the
marriage, when the parties are separate, are governed by their personal laws, which are the
laws of their separate domiciles, which are each thought
to provide a personal safeguard to a certain extent. The law of their matrimonial domicile
governs matters that arise after the marriage, when the parties are one, which
is the law of the place where they have their permanent home.
2) Cheshire’s Intended Matrimonial Home Theory
According to this theory, pre-marital domicile is irrelevant and the only relevant law is the
law of the place where the parties intend to live their married life. The law of the intended
matrimonial domicile is presumed to be the law of the husband’s domicile (but that
presumption may be rebutted if it can be inferred that the parties at marriage intended to
settle in a different country and can show that they did so within a reasonable time).
According to this theory all questions of essentials should be and are in fact governed by the
law of the law of the intended matrimonial domicile although it is probably also necessary to
comply with the lex loci celebrationis as to both essentials and form. There can be little
doubt that the law of the matrimonial domicile applies to all matters of essentials arising after
the marriage but there is controversy as to whether it applies to capacity. However, authority
in favor of the matrimonial home is rare75 and criticism of it not hard to find.76
Nevertheless, Cheshire’s view has the advantage of ensuring that only one law governs
capacity to marry. It is predicted on the assumption that the law which should determine
whether the parties have assumed the obligations of is that of the community to which the
parties belong after their marriage.
4. Various aspects of essential validity

74
Dicey and Morris, ‘The Conflict of Laws’, 672(13th edition 2000)
75
Radwan v Radwan. (No.2); [1973]Fam. 35
76
R.H. Graveson, ‘Conflict of Laws’(7th edition 1974)

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 Prohibited degrees of relationship
Most legal systems impose restrictions on marriages between persons who are closely
related. The rules vary between different countries. Moreover, in some systems the
prohibitions are not only restricted to consanguinity, but also to relationship by marriage
(affinity). However, one reason for the prohibition of marriage between blood relations must
be the eugenic one of reducing the risk of defective offspring. The other reasons for the
prohibitions are sociological, moral, and religious. Thus, it is the public interest more than
the protection of the spouses themselves, which is the main object of these impediments.
In Re Paine,77 a clear indication was given in the decision that the dual domicile theory was
the best to be applied, where the wife, a British subject and domiciled in England, visited
Germany, where she married her deceased sister’s husband, a German subject. This marriage
was void in England until their respective deaths. On the question of whether the surviving
daughter was legitimate for the purpose of succession, the court had to decide the validity of
the marriage. Bemett J applied the dual domicile rule and held that the marriage was void,
since the ante-nuptial domicile of the wife attached incapacity on her to contract such a
marriage.
 Lack of Age
Countries have varying rules on the minimum age for marriage. In English law, a marriage
between persons, either of whom is under the age of 16, is void, 78 in other legal systems the
minimum age for marriage may be higher or lower than 16. The question arises here as to
what law governs such an issue if one of the parties, not necessarily the party domiciled in
England, is under the age of 16, there is no doubt that the dual domicile rule applies here.
The law which is most fitted to decide whether a young person needs protection against his
own immaturity and want of judgment is the law of country to which he belongs at the time
of the marriage.
The surprising result came in Pugh v. Pugh,79 where the provision was understood by the
Judge to mean that under English law, not only does a person under 16 lack capacity, but also
a person of whatever age lacks capacity to marry some one who is under 16. The court held
void a marriage celebrated in Austria between a husband domiciled in England and a wife

77
[1940] Ch. 46.
78
S. 2 of the Marriage Act 1949. (Re-enacting the Age of Marriage Act 1929).
79
[1951] P.482.

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 domiciled in Hungary because the wife was only 15, on the ground that the husband lacked
capacity to marry her according to the law of his English domicile, even though the wife was
old enough by her own law and also to be old enough according to the other party’s law.
Therefore, it appears that in England no marriage is valid to which either party are under 16.
Thus the conclusion, which may be drawn here, is that; Lack of age effects capacity to marry
and that if either party lacks capacity by the laws of his or her ante nuptial domicile the
marriage is void, wherever celebrated.80
5. Remarriage after foreign divorce and nullity decrees
There is a general agreement that the impediments related to the case of bigamy or
remarriage after a divorce or nullity decree should be included under the heading of essential
validity or (capacity to marry)81. In this regard, we are concerned with the cases where none
of the possibly applicable laws permit polygamy. The conflict arises because one of the
parties is already married according to one of the law but not according to the other. In such
case the marriage will be bigamous only if the English courts decline to recognize the foreign
divorce or annulment. There are several different kinds of choice of law problems arises here
needs to be discussed separately as follows:
 Remarriage after a recognized divorce or nullity decree
If English court recognizes a foreign divorce, the parties will be regarded as unmarried and
capable of remarrying under the English law. But if they (or one of them) are regarded by
their personal laws as still married, they will be incapable of remarrying as those laws do not
recognize the divorce.
Remarriage in United Kingdom: According to the recognition of Divorces and Legal
Separation Act, 1971 if the foreign divorces was recognized and the marriage was in the
United Kingdom, any incapacity under the law of the domicile to be ignored.
Remarriage Abroad: The statute was silent regarding remarriages outside the United
kingdom, and it was a matter of doubt as to whether recognition of the divorce carried with it
capacity to remarry.
In Lawrence v. Lawrence,82 where the wife domiciled in Brazil, obtained a divorce from her
first husband in Nevada; the next day, she married the second husband in Nevada, who was

80
Buclu v. Sabau (1997) F.L.C. 92-765
81
Conway v. Beazley (1831) 3 Hag, Ecc. 639
82
[1985] Fam. 106.134 ( C.A).

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 domiciled in England. England was their intended matrimonial home. The wife’s Nevada
divorce was recognized by English law but not by Brazilian law, under which she remained
married to her first husband. The wife petitioned in the English court for a nullity decree on
the ground that the marriage was bigamous. English and Brazilian law agreed that the wife
did not have capacity to contract the second marriage unless she was single. The conflict
arose because the two laws also took different views as to whether the wife was single when
she remarried.
The wife contended that her capacity to marry her second husband was governed by
Brazilian law as the law of her ante nuptial domicile. Since the Nevada divorce was invalid
by Brazilian law she lack capacity by that law, so the marriage was void. However, the trial
Judge held that the validity of the marriage was governed by English law, because, being the
law of the intended matrimonial domicile, it was the law of the country with which the
marriage had its most real and substantial connection. Since the divorce was recognized by
English law, the marriage was held valid.
 Prohibition against re-marriage
Some legal systems impose prohibition or restrictions on the remarriage of divorced persons.
Prohibitions of this kind appear to be imposed for three main reasons as follows:
Those are directed against the guilty party: which might prohibit remarriage to both or any
one of the parties, and might apply only until the death or remarriage of the innocent party, or
permanently. Now it seems settled that penal provision of this kind will not be applied in
England, irrespective of the domicile of the parties. Thus in Scott v. Attorney General,83
where two persons domiciled in South Africa were divorced in that country, and thereupon
become subject to a rule of South Africa law which provided that the guilty party could not
remarry as long as the other party remained unmarried. The wife who was the guilty party,
remarried in England, her former husband being still unmarried. It was held that her
remarriage
was valid, because after the divorce she was a single woman and therefore free to acquire an
English domicile separate from that of her first husband. But the same judge James Hannen
P, in the later case of Warter v. Warter,84 explained Scott v. Attorney General, on different

83
(1886) 11 P.D. 128
84
(1890) 15 P.D. 152-155

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 ground that the prohibition on remarriage attached only to the guilty party and therefore
could be disregarded in England because it was discriminatory.
Those that postpone the date at which either party may contract a further marriage: the
purpose of which is to protect the unsuccessful party’s right to appeal; the practical effect of
such prohibition is the same as that of a system in which a decree nisi is granted in the first
instance and decree absolute is pronounced only after all appeals have ran their cause.
Those, which prevent disputes about the paternity of children subsequently born to the
woman: The only reported case in which a restriction of this kind seems to have been
considered is the Australian case of Lundgren v. O ’Brian85(.No.2),us which concerned a
breach of promise action by a woman against a man. The plaintiff had been divorced in
Belgium and the marriage to the defendant was to take place in Australia. The court held that
a provision of Belgian law that prohibited the remarriage of a divorced woman (but not a
divorced man) for a period of ten months after the divorce was inapplicable to a marriage in
Australia and could not furnish a defense to the action.
6. Consent of the Parties
As we have seen earlier, marriage is a voluntary union, that there can be no valid marriage
unless each party consented to marry the other. However, the question of consent is often a
question of fact, but sometimes it may be a question of law. The issue here concerns the
reality of consent not the form of giving it. At Common Law, after a long period of
uncertainty, it appears now settled that a marriage was not valid if one or both of the parties
did not genuinely consent due to duress, 86 mistake87 and more, doubtfully, want of intention
to contract at monogamous marriage.
The Marriage Act, 1961 declares void a marriage where the consent of either of the parties is
not real because:
(1) It was obtained by duress or fraud,
(2) That the party or as to the nature of the ceremony performed; or
(3) That party' is mentally incapable of understanding the nature and effect of the marriage
ceremony.88

85
[1921] V.L.R. 361
86
Szechter v Szechter, [1971] P.286
87
Re Bethell, (1887) 38 Ch.D.220
88
S. 23(1)(d) of Marriage Act, 1961

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 Now the matter is set at rest, so far as marriages celebrated after (July 31 st 1971), are
concerned. By Section 12(c) of the Matrimonial Causes Act, 1973, which provides that a
marriage shall be voidable if either party did not consent to it, whether in consequence of
duress, mistake, unsoundness of mind or otherwise. Under Section 12(e) a marriage is
voidable if at the time of the marriage the respondent was suffering from venereal disease in
a communicable form, and under S. 12(f), if at the time of the marriage the respondent was
pregnant by some person other than the petitioner.

V.II. Position in Indian Law

The researcher is not aware of any direct Indian authority having bearing on the material validity
of marriage. It would appear that when marriages are performed in India among the members of
any community the capacity would be governed by the personal law of the parties. From the
present state of an Indian law, it is discernible that we have displayed adherence to the old
approach of English law where under both the material and formal validity depended upon the
lex loci celebrationis.

Under the Hindu Marriage Act, 1955 any two Hindus can perform their marriage, provided the
conditions laid down under the Act are fulfilled. The Indian Courts would accord recognition
only to such marriages even if one of the parties or both the parties have no capacity to enter into
the marriage under their ante-nuptial domicile or the law of their matrimonial home.

 Marriage performed under Special Marriage Act, 1954: The most remarkable feature of
Indian law is that the Special Marriage Act, 1954, which permits civil marriage between
‘any two persons’ also gives birth to a separate personal law. If any two persons perform
their marriage under the Act, then the validity of the marriage is determined under the Act,
even where both the parties are domiciled elsewhere.
 Marriage performed under Foreign Marriage Act, 1969: Where one of the parties or both
the parties is an Indian national and the marriage is performed or registered under the
Foreign Marriage Act, 196989the validity of marriage is governed by the Foreign Marriage
Act, 1969. Section 11 of the Act contains a provision which has bearing on the conflict of
laws problem. It lays down that in the following cases the marriage officer will refuse to
solemnize the marriage:
89
S. 4 of the Foreign Marriage Act, 1969

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 a) If lex loci celebrationis prohibits such marriage, or
b) If the solemnization of the marriage will be inconsistent with international law or the
comity of nations.
As to the marriages solemnized abroad and not covered by the provisions of the Foreign
Marriage Act, 1969, the Act lays down( though it was not necessary to do so) that they will
come under the purview of the general rules of Private International Law.90 It is submitted
that in such cases Indian Courts should judge the material validity by reference to the ‘law of
matrimonial home of the parties’.

VI. CONCLUSION
In the doctrine and practice of private international law the story of choice of law rules for
marriage has attained prominence and remains one of the most debated subject. Its very
reputation as an arcane field accounts for the fascination it has exerted on lawyers, scholars
as well as the courts. Indeed, the rules relative to the conclusion, the requirements and the
nullity of marriage in different legal systems are extremely varied, for they are so closely
connected with morality, religion and the fundamental principles prevailing in each society
that their application is often regarded as a matter of public policy. It follows that the present
conflict of law problems concerned with marriage are mainly caused by the interrelation
between different social, religious and legal cultures.
However, it is not surprising that in spite of all the valiant intellectual efforts lavished on the
subject, and the voluminous literature that has been built up over the years, the choice of law
rules for marriage remain mired in mystery and confusion. It is evident that the submission of
the formal validity of marriage to the lex loci celebrationis reflects the importance that
countries attach, as an incident of their sovereignty, to regulating just how and by whom
marriages may be solemnized within their territories.
In conclusion, it is to be hoped that any future legal reforms, either at the domestic or
international level, should give particular attention to the coordination of the competing

90
S. 27 of the Foreign Marriage Act, 1969

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 policy considerations relevant in marriage, and the attainment of the proper application of the
general choice of law rules in the present subject. The efficient solution to the conflict
problems of marriage, in general, would be a complete reconsideration of English and Indian
conflict rules of marriage in a more straight forward fashion. It is a difficult task to achieve
but the problems cannot be left to the piecemeal effect of statutory changes to existing rules
or occasional judicial innovations. The best conflict system would therefore remain pure
theory as long as legal systems are unwilling to compromise their traditional rules, and the
courts are not prepared to apply such a system as part of their law.

REFERENCES

STATUTES REFERRED

1. CONSTITUTION OF INDIA, 1950

2. MATRIMONIAL CAUSES ACT, 1973
3. HINDU MARRIAGE ACT, 1955
4. CHRISTIAN MARRIAGE ACT, 1872
5. THE SPECIAL MARIAGE ACT, 1954
6. THE PARSI MARRIAGE AND DIVORCE ACT, 1936
7. FOREIGN MARRIAGE ACT, 1969
8. MARRIAGE ACT, 1949

CONVENTIONS REFERRED

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 1. HAGUE CONVENTION ON CELEBRATION AND RECOGNITION OF THE
VALIDITY OF MARRIAGES, 1978.

BOOKS REFERRED.

1. M P Jain, Indian Constitutional Law, 12th Edition, Lexis Nexis, 2019.

2. V N Shukla ’s, Constitution of India, 13th Edition, Eastern Book Publishing, 2017.
3. Paras Diwan, Private International Law: Indian and English, 4th Revised Edition, Deep
and Deep Publications, New Delhi, 1998.
4. Cheshire, North & Facett, Private International Law, 14th Edition, Oxford University
Press, 2008.
5. Dicey, Morris & Collins, Conflict of Laws, 13th Edition, 2002.
6. R.H. Graveson, Conflict of Laws, Private International Law, 7th Edition, 1974.

LAW LEXICONS

1. Black’s Law Dictionary, 4th Revised Edition

2. Encyclopaedic Law Lexicon by Justice C K Thakker, 2nd Edition, 2013

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