CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW & GOVERNANCE

MATRIMONIAL CAUSES UNDER PRIVATE INTERNATIONAL LAW

Under the Supervision of – DR. AJAY KUMAR BARNWAL

(ASST. PROFESSOR)

Submitted By-

YASH BHUSHAN
B.A.LL.B (Hons) - 9th Semester
Enrolment-CUSB1513125049
 CONTENTS
TOPIC PAGE NO.

 INTRODUCTION--------------------------------------------- 1-2
 MEANING OF MARRIAGE-------------------------------- 2-3
 FORMAL VALIDITY OF MARRIAGE------------------- 3-6
POSITION IN ENGLAND-----------------------------
POSITION IN COMMON LAW COUNTRIES----
 CAPACITY TO MARRY------------------------------------ 6
 CONSENT OF THE PARTIES----------------------------- 7
 THE CHOICE OF LAW RULE---------------------------- 7-9
 MATRIMONIAL CAUSES--------------------------------- 9-13
POLYGAMOUS MARRIAGE AND
MATRIMONIAL RELIEF--------------
JURISDICTION---------------------------------------
JUDICIAL SEPERATION--------------------------
NULLITY OF MARRIAGE-------------------------
 POSITION IN INDIA--------------------------------------- 13-15
 CONCLUSION---------------------------------------------- 16
 BIBLIOGRAPHY------------------------------------------- 17
 ACKNOWLEDGEMENT

The writing a project has one of the most significant academic challenges I have ever faced.
Any attempt at any level can't be satisfactorily completed without the support and guidance
of learned people. Gratitude is a noble response of one’s soul to kindness or help generously
rendered by another and its acknowledgement is the duty and joyance. I am overwhelmed in
all humbleness and gratefulness to acknowledge our depth to all those who have helped us to
put these ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.

My first obligation, irredeemable by the verbal expression, is to our subject teacher Dr. AJAY
KUMAR BARNWAL who has given me his valuable help in myriad way from the start to the
very end. He was always there to show us the right track when we needed his help. He lent
his valuable suggestions, guidance and encouragement, in different matters regarding the
topic. He had been very kind and patient while suggesting me the outlines of this project and
correcting my doubts. I thank him for his overall supports with the help of which I was able
to perform this project work.

I would like to extend the thanks to my parents for their selfless encouragement and support
given to me at critical junctures during the making to this project.

Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.
 A. AIMS AND OBJECTIVE-
The aim of researcher, in doing the research work is to give a broad outline of validity
of marriage in Private International Law. The project will further analyze the various aspects
of validity of marriage in contrast with the various judicial precedents which are relevant to
the topic.

B. RESEARCH METHODOLOGY:-
As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal
methodology of research. Researcher has also followed the uniform mode of citation
throughout the project work.

C. SOURCES OF DATA:-
For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of Pivate International Law, Articles, and
Journals. The online materials have been remained as a trustworthy and helpful source for the
research.

D. SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in
doing his research work to highlight the various aspects relating to the topic, but the topic
being so vast and dynamic field of law and whose horizon and ambit cannot be confined and
narrowed down, the research work has sought with some of the unavoidable limitations.
 INTRODUCTION

Matrimonial causes include petitions for divorce, separation, nullity of marriage, presumption
of death and dissolution of marriage, or for declaration as to status. In early days matrimonial
causes did not arise question of conflict of laws in England, as these cases were exclusively
within the jurisdiction of the ecclesiastical courts of the Bishop’s. Every person residing
within a diocese was subject to the jurisdiction of the Bishop, and the law he administered
was, the Cannon Law, common to all Christian countries. However, the ecclesiastical courts
had no power to dissolve a marriage. That could only be done by the private act of
Parliament1.

Despite the changes in society in recent decades, there remains much truth in the
Lord Westbury‟s dictum in Shaw v. Gould2 “Marriage is the very foundation of the civil
society, and no part of the laws and institutions of a country can be of more vital importance
to its subject than those which regulate the manner and condition of forming, and if
necessary of dissolving, the marriage contract.” In English law, a marriage though a
contract, is a contract sui generis.

Each legal system determines the attributes of a marriage; at Common Law in England, it is
in essence a consensual union of a man and a woman. A marriage was a voluntary union for
life of one man with one woman to the exclusion of others.3 This decision was the foundation
of the rule that polygamous marriages were not recognized in England but the situation has
been changed and such marriages are now recognized in England.

The Hague Conference on Private International Law has drafted the Hague Convention on
the Celebration and Recognition of the Validity of Marriages 1978. Few Common Law States
have adopted it, Australia being the only exception, having amended the (Australian)
Marriage Act 1961, in 1985 to give statutory force of convention relating to the recognition
of marriage. The Law commission in the United Kingdom recommended against its adoption.
Indian has not adopted it. The convention thus has little direct usefulness, some of its

1
https://shodhganga.inflibnet.ac.in/bitstream/10603/129467/12/12_chapter%205.pdf
2
(1868) L.R, 3 H.L, 55 at 82
3
Hyde v. Hyde, (1866) LR 1 P & D 130.
provisions are being briefly indicated, however to show what can be called the international
consensus of opinion on the subject.

A contract to marriage differs fundamentally from a commercial contract, 4 since it creates a

status that affects the parties themselves and the society to which they belong. It is sui
generis. It is fulfilled on the solemnization of the marriage ceremony, and thereafter there is a
change in the law that governs the relationship between the parties. As far as matrimonial
causes are concern they are now generally taken to include petition for divorce, nullity of
marriage, judicial separation and presumption of death and dissolution of marriage as well as
similar foreign proceedings which may fall recognition here.

Meaning of Marriage

Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife. This contract, however, differs fundamentally from a
commercial contract in the following ways:

• As a general rule, it can only be concluded by a formal public act.

• It can only be dissolved by a formal public act.

• More importantly, it creates a status which is taken into account in relation to, for
example, succession, tax, legitimacy of children, and to some extent in relation to
immigration laws.5

In English law, a marriage though a contract, is a sui generis. Each legal system determines
the attributes of a marriage, at Common Law in England; it is in essence a consensual union
of a man and woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde6, it was held
that a marriage was voluntary union for life of one man with one woman to exclusion of
others. This decision was the foundation of the rule that polygamous marriages were not
recognized in England.7 Even when divorces became easier, the concept was maintained, as
the dissolubility of a marriage did not affect its legal character. 8 This was also the position in

4
Under the Law Reform (Miscellaneous Provision) Act 1970, s. 1, an agreement to marry does not have effect
as a contract.
5
Cheshire & North, Private International Law, thirteenth edn, p. 741.
6
(1866) LR 1 P & D 130
7
Today the situation has been changed under this and now they are recognized for many purposes.
8
Nachimson v. Nachimson [1930] P 217 (CA), a marriage in the USSR at a time when a unilateral divorce was
available to either party was recognized as a valid marriage in England.
Australia, and Canada.9 In India, among Hindus marriage has always been regarded as
sacrament, whilst in Mohomedan Law, it is a contract.

The formal requirement of the marriage will be governed by the law of the country where the
marriage is celebrated. A marriage can be celebrated if the parties meet the substantive
requirement of the domestic law of the country where the marriage is celebrated, and one of
the parties is a national of that state, or habitually resides there; and each party satisfies the
substantive requirements of the law applicable to the parties in accordance with the conflict
of law rules of the place where the marriage is celebrated.10

Formal Validity of Marriage

The term ‘formalities’ includes such questions such as whether a civil ceremony, or any
ceremony at all is required, the number of witnesses necessary, the permitted hours during
which the marriage can be celebrated, whether publication of marriage is necessary, and so
on.15 Now as a general principle, the formal validity of a marriage is determined under the
municipal lex loci celebrationis on the date of the ceremony (the principle of renvoi does not
apply unless it will refer to a law that will validate the marriage), and the lex domicilii of
either party will be irrelevant. This rule is simple and easy to apply. It should be obvious to
parties wishing to marry that they should comply with the local formalities.11 English Private
International system, the requirement that a marriage may be formally valid by the principle
of lex loci celebrationis is imperative, which admits no alternative test. In the continental
Europe, however, the test is facultative: the requirement is that the marriage should be
formally valid either by the lex loci celebrationis or by the personal laws of the parties. Under
the French law a marriage which is solemnized outside France should be formally valid either
under the law of the place where it is celebrated or by the personal law of the parties. The
same is the position under the German Law. Countries like Greece and Malta lay down that
compliance with the personal law is necessary and obligatory, if the parties belong to the
Orthodox Church, in the former case, and to Roman Catholic Church in the latter case. In
Poland and Czech Republic, however, if marriage is formally valid under the personal law of
the parties, then the marriage is valid, irrespective of the fact whether it complies with the lex

9
Marriages celebrated according to Chinese, Japanese, Eskimo and Jewish rites were also recognized on proof
that such marriages were monogamous. Castels & Walkers, Canadian Conflict of Laws, sixth edn, para 16.6
10
Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978.
11
Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20,
2010).
loci celebrationis.12 In China too, for the substantive conditions of marriage, the applicable
laws relate to the law of the place where the marriage takes place or the personal law of the
parties (or both).13 Likewise in Scotland, a marriage which is solemnized outside Scotland
should be formally valid under the law of the place where it is celebrated. 14 Thus, it means
that if the marriage is formally valid in accordance with the law of the place where it took
place then the marriage would be valid everywhere. If the law of the place where the
marriage is solemnized lays down that a marriage which complies with the requirements of
personal law of parties (such is position under the Italian Law) is valid, then a marriage
performed accordingly will be valid.

A. POSITION IN ENGLAND
In recent years, the Common Law rules have been considerably varied by statute; such
changes are not discussed as the statutes would have no application outside England or
United Kingdom. A marriage is formally valid when any one of the following conditions as
to the form of celebration is complied with (that is to say):15
I. If the marriage is celebrated in accordance with the form required or recognized as
sufficient by the law of the country where the marriage was celebrated.16
II. If the marriage was celebrated in accordance with the English common law in a
country where the use of the local form is impossible.17
III. If the marriage, between parties of whom at least one is United Kingdom national is
celebrated outside the Commonwealth in accordance with the provisions of, and the
form required by, the Foreign Marriage Acts, 1892.18
The leading more modern authority in England on the point is Sottomayor, otherwise De
Barros v. De Barros,19 where the Court of Appeal held that „the law of a country where the
marriage is solemnized must alone decide all questions relating to the ceremony by which the
marriage is alleged to have been constituted; but, as in other contracts, so in that marriage,
personal capacity must depends on the law of the domicile; and if the laws of any country
prohibits its subject within certain degree of consanguinity from contracting marriage, and
12
Paras Diwan & Peeyushi Diwan, at 266.
13
Wang Hui, A Review of China’s Private International Law During the 30-year Period of Reform and
Opening-Up (May 2009) (ASLI Working Paper Series No. 002).
14
The Law Commission and The Scottish Law Commission, Private International Law Choice of law rules
in Marriage, Law Com. No. 165 & Scot. Law Com. No. 105, 3 (July 01, 1987).
15
Dicey & Morris, Conflict of Law, thirteenth edn. P651.
16
Rule 67(1) of Common Law Rules
17
Ibid, Rule 67(2)
18
Ibid, Rule 67(5)
19
(1877) 3 PD 1, p 5.
stamp a marriage between persons within the prohibited degree as incestuous.‟ In
Berthiaume v. Dastous,20 a decision of the Privy Council in an appeal from Canada, held that
a marriage would be regarded as valid if the form adopted by the parties was in conformity
with the law of the country where the marriage took place, even if it was not a proper form of
law of the domicile of the parties.
In English Law, two rebuttable presumptions are drawn presuming the validity of marriage:
a) That if the parties go through a ceremony of marriage and live together, they were
validly married.
b) If the parties cohabit and are reputed to be married, they regarded as validly
married; there must, however, be some evidence that the marriage complied with
local form.21

B.POSITION IN COMMON LAW COUNTRIES

Position in Australia
a) Marriage by proxy will be recognized as valid if they are valid under the lex loci
celebrationis.22
b) Where the marriage is performed without the presence of an ordained priest, it had
been held that the marriage would not be recognized in Australia.23
c) Australian Court also recognize as a valid marriage performed according to religious
ceremonies of the parties even if the formalities prescribed by law of the place where
the marriage took place were not complied with in conditions prevailing at the time,
whether the parties were British subject or not.24

Position in Canada
The formal validity of a marriage is generally determined by the lex loci
celebrationis.25 The lack of parental consent, when required by the lex domicilii is treated in
the Canadian Common Law Province, as in England, as a question of formal validity, and,
therefore governed by the law of the place where the marriage is celebrated. 26 If the lex loci
recoginses as valid a marriage by cohabitation and repute, such marriage will be accepted as a
valid marriage in Canada.
20
[1930] AC 79, p 83
21
Cristofaro v. Cristofaro (1948) VLR 163.
22
Supra, no. 10
23
Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14
24
Savenis v. Sevenis, (1950) SASR 309.
25
Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR 324.
26
Hunt v. Hunt 14 DLR (2d) 243
If a marriage, though invalid by the lex loci when considered, is retrospectively validated in
the foreign country the marriage will recognized as valid in Canada even if , by then, both the
parties were domiciled in Canada.

Capacity to Marry

Essential validity covers all questions of validity other than formal validity. “Capacity to
marry” is a category within essential validity. Capacity to marry ought strictly to be confined
to rules which lay down that a particular class of person lacks a power to marry which other
people possess (for instance, rule that a person below a certain age may not marry). In
practice, however, capacity to marry also includes cases where the reason for the invalidity, is
that such a marriage relationship is objectionable in the eyes of law (for instance, rules
prohibited marriages between relatives of certain degrees). Capacity to marry does not,
however, cover the whole field of essential validity; it does not include the consent of the
parties or the non consummation of the marriage.

There is general agreement that this terminology includes matters of legal capacity such as
consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to
govern matters of consent and physical incapacity. The fact that capacity as a term
encompasses a wide range of matters does not necessitate the conclusion that all matters of
capacity should be subject to the same choice of law rule- a matter to which we shall return.
A further preliminary point which ought to be borne in mind is that, provided that a person
has capacity under the relevant law, the fact that he is, for example, 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.

There are two main views as to the law which should govern capacity to marry- the dual
domicile doctrine, and the intended matrimonial home doctrine.
 Consent of Parties

The rule states that „no marriage is valid if by the law of either party‟s domicile he or she
does not consent to marry the other‟.27 There appears to be no specific authority in England
on the subject though observation by the Court of Appeal, in a case where the issue was
whether amarriage by proxy was valid, observed that the mode of giving consent, as opposed
to the fact of consent would be governed by the lex loci celebrationis. It was also held that the
consent is governed by the law of the domicile of the parties. 28 The question that arises is as
to which lex domicilii has to be considered, of both parties, or of the party whose consent is
in question. The consensus seems to be, though there is no decision on the subject, that is
should be domiciled of the person who is alleged to have lacked consent. In Davison v.
Sweeney,29 it was held that alleged absence of consent was a matter for a domicile of the party
concerned.

In Canada, consent is regarded as a part of essential validity of a marriage and depends on the
ante nuptial domicile of the parties.

The Choice of Law Rule

Formal validity is governed by the law of the country where the marriage is celebrated, that
law is not generally thought appropriate in the English conflict of laws to govern the essential
validity. This is because the marriage may be celebrated in a country which in other respect
has no connection with the marriage or the parties. Neither of the parties may be domiciled
there before the ceremony and they may not establish their home there after it. The choice of
law rule doctrines are as under:

A. Dual Domicile Doctrine

According to the dual domicile doctrine rule is that a person‟s domicile at the date of the
marriage has to be considered. For marriage to be valid, each party must have capacity by the
law of his or her domicile to contract the marriage. This rule commands most in English law,
has several advantages. In terms of principle, it is appropriate that people be governed by the
law of their existing domicile. The main rationale of this rule is that a person‟s status is a

27
Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para 14-
010.
28
Way v. Way [1949] All ER 959.
29
(2005) 255 D.L.R. (4th) 757 (BC)
matter of public concern to the country to which he belongs at the time of marriage; and
therefore the domiciliary law of each party has an equal right to be heard. Another advantage
of this doctrine is that it is easy to apply in prospective situation.

B. Intended Matrimonial Home Doctrine

An alternative approach is that the law of the intended matrimonial homes governs the
essential validity of a marriage.30 This provides a basic presumption in favour of the law of
the country in which the husband is domiciled at the date of the marriage. This presumption
can be rebutted if at the time of the marriage the parties intended to establish a matrimonial
home in a different country and if they implemented that intention within a reasonable time.31

C. Real and Substantive Connection

Another possibility is that the essential validity of marriage should be governed by the law of
the country with which the marriage has its most and real and substantial connection. As with
the intended matrimonial home doctrine this rule is trying to connect the marriage with the
country to which it belong. Normally, the country with which a marriage is most closely
connected will be the country where the matrimonial home is situated. 32 Further, while the
real and substantial connection test has its supporters, it is, in reality, a question- begging test.
The question in which, choice of law rule will best lead to the application of the law to which
the parties and marriages belong. This test does not answer the question, but rather simply
restates the problem.33

D. Validity of either Party’s Domiciliary Law

Under this test a marriage would be regarded as essentially valid if it were valid under either
party’s ante nuptial domiciliary law. This proposal has the advantage that it would promote
the policy in favour of validity of marriage, but has little else to commend it.34

E. A Variable Rule

30
Cheshire & North, Private International Law, seventh edn, p 276.
31
Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p 448.
32
Lawrence v. Lawrence [1985] 1 All ER 506.
33
Davie, „The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of
Laws’
34
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
In order to determine the most appropriate choice of law rule, one should examine why a
particular impediment exists and which law has the most interest in the validity of the
marriage. On this basis, the modified intended matrimonial home rule proposed above seems
the more appropriate to govern incapabilities which are imposed to protect the public interest
of countries, rather than the interest of the parties to the marriage.35

Matrimonial Causes

Matrimonial causes are now generally taken to include petition for divorce, nullity of
marriage, judicial separation and presumption of death and dissolution of marriage as well as
similar foreign proceedings which may fall recognition here. The rules relating to the
jurisdiction of the courts and to the recognition of the foreign divorces, annulments and
judicial separations are, in essence, the same for all three matrimonial causes, and therefore
be examined together, identifying where appropriate any rule which do not apply to all three.
It will be seen that the one major area of difference remaining concerns the determination of
the law to be applied by the English Court. It is also necessary to discuss a further
preliminary issue, namely whether an English court will assume jurisdiction to grant
matrimonial relief in the case of an actually or potential polygamous marriage.

A. Polygamous Marriages and Matrimonial Relief

At Common Law

Until 1972, the rule of English Law was that the parties to a polygamous marriage were “not
entitled to the remedies, the adjudication, or relief of the matrimonial law of England.” 36 It
meant that, in the case of a polygamous marriage, the court would grant a divorce, a decree of
nullity even where the petitioner claimed lack of capacity to enter a polygamous marriage, 37
or a decree of judicial separation. It can be realized, however, that fundamental reform was
called for a view of the number of immigrants from jurisdictional where they had contracted
valid marriages in polygamous form. A substantial number of people, permanently residents
through not domiciled in England, were denied all matrimonial relief.

35
Jaffey, Topics in Choice of Law (1996) pp 3-7.
36
Supra no. 5.
37
Risk v. Risk [1950] 2 All ER 973.
Matrimonial Causes Act, 1973

The entire above rule have been changed now and Section 47 38 of the Matrimonial Causes
Act, 1973 makes it available to the parties to an actually polygamous marriage a wide range
of matrimonial relief,39 namely decrees of divorce, nullity, judicial separation, presumption of
death and dissolution of marriage, order for financial provisions in the cases of neglect to
maintain, variations of maintenance agreement, orders for financial relief or relating to
children which are ancillary to any of the preceding decree40 or order, order made under Part I
of the Domestic Proceedings and Magistrates Court Act 1978, order for financial relief after a
foreign divorce, annulment or legal separation 41 and any declaration under Part III of the
Family Law Act 1986 involving a determination as to validity of a marriage. Indeed it has
been said that the effect of section 47 of the 1973 Act is to abolish entirely the old rule, so
that all forms of relief which can be classed as matrimonial are now available in the case of
polygamous marriages.

Remaining Problems

Where the party to an actually polygamous marriage brings proceeding for divorce
alleged irretrievable breakdown of the marriage,42difficulties may arise over adultery,
unreasonable behavior or desertion as proof of breakdown. 43 If a wife alleges that her
husband has committed adultery with another wife, such a claim will usually fail because, “it
is an essential element of adultery that intercourse has taken place outside the marriage
relationship i.e. between persons not married to each other. This being so, intercourse with a
wife could not be adultery.”44 In terms of policy this conclusion seems right if both the
marriages were entered into in polygamous form. It has been said 45 that in such a case there
has been no breach of the obligation of fidelity imposed by the law governing the marriage,

38
A Court in England and Wales shall not be precluded from granting matrimonial relief or making a
declaration concerning the validity of a marriage by reason only that either party to the marriage is, or has
during the substance of the marriage been, married to more than one person.
39
Matrimonial Causes Act 1973, Section 47(2).
40
Chaudhary v. Chaudhary, [1976] Fam 148 at 151.
41
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15. 39Matrimonial Causes Act 1973, Section
47(3).
42
Ibid, Section 1.
43
Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of
the Family Law Act, 1996 is bought into force.
44
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
45
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
followed by a valid polygamous one. If a wife divorces petition is based on the husband’s
unreasonable behavior,46 the court will have to examine all the circumstances of the
marriage47 and it been also held that the taking by the husband of a second wife is
unreasonable behavior towards the first.48

Similarly, if a husband’s petition is based on desertion by the first wife, the fact that he was
the validity married a second wife has been held to give the first wife reasonable ground for
leaving him.49

B. JURISDICTION
• Divorce and Judicial Separation
It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that „according to
international law, the domicile for the time being of the married pair affords the only
jurisdiction and only true test of jurisdiction to dissolve their marriage.‟ The essence of the
rule in this case was that there should be only one test of jurisdiction and only one court
capable of dissolving a particular marriage, the court of the parties domicile. The
Matrimonial Causes Act, 1937, provided that the Court should have jurisdiction to grant a
divorce, in proceeding by a wife, notwithstanding that the husband was not domiciled in
England, if she had been deserted by her husband, or the husband had been deported from
United Kingdom, and the husband was immediately before the desertion or deportion
domiciled in England.50 These enactments were confined to proceeding by a wife. They did
not extend to cross-petition by a respondent husband. 51 The exercise of the English Courts
jurisdiction in proceeding for divorce is subject to rules requiring or enabling the court to stay
those proceedings in certain circumstances.52
• Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of
marriages was one of the most vexed and difficult question in the whole of the English
conflict of laws. An enormous simplification of the law was effected by section 5(3) of the
Domicile and Matrimonial Proceeding Act 1973. This provides that the English Court have

46
Matrimonial Causes Act 1973 Section 1 (2) (b)
47
Gollins v. Gollins [1964] AC 644.
48
Poon v Tan (1973) 4 Family Law 161.
49
Quoraishi v. Quoraishi [1985] FLR 780 CA
50
Section 13, but now repealed.
51
Levett v. Levett and Smith [1957] P. 156
52
Family Proceeding Rules, 1991
such jurisdiction to entertain such petition if (and, subject to section 5(5), on if) either party to
the marriage:
(a) Is domiciled in England on the date when the proceedings are begun
(b) Was habitually resident in England throughout the period of one year ending with
the date, or
(c) Dies before that date and either was at death domiciled in England, had been
habitually resident in England throughout the period of one year ending with the
date of the death.
Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now
the same as in divorce and judicial separation. A voidable marriage no longer confers the
husband‟s domicile at the date of the marriage. 53 The bases for jurisdiction are now same
whether the marriage is alleged to be void or voidable. It is therefore no longer necessary to
consult foreign law i.e. the law of the husband‟s domicile at the date of the marriage.54
Choice of Law
Divorce
The question of choice of law has never been prominent in the English rules of the conflict of
laws relating to divorce, which has always been treated as primarily a jurisdictional question.
English Court when deciding whether to recognize foreign divorce have never examined the
ground on which the decree was granted in order to hand, when English Court have
themselves assumed jurisdiction, they have never applied any other law than that of England.
In English law the only possible alternative to the lex fori would be the law of the domicile.
No difference between them could exist before 1938, because English courts did not exercise
jurisdiction unless the parties were domiciled in England. The Court of Appeal determined
the question of divorce by the law which would be applicable thereto if both the parties were
domiciled in England at the time of the proceeding, i.e. English law.55
The rule may be justified on the ground that it would be highly inconvenient and undesirable
from the practical point of view to apply foreign law in English divorce suit. Again, to require
English Court to dissolve marriage an exotic foreign ground would be distasteful to judge and
unacceptable to public opinion.

53
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
54
De Reneville v. De Reneville, [1948] P. 100.
55
Zenelli v. Zenelli (1948) 64 T.L.R 556.
 C. JUDICIAL SEPARATION
Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by the
ecclesiastical court before 1858. There it was called divorce a mensa et thoro( divorce from
bed and board). The principle effect of a decree was (and is) entitle the petitioner to live a
apart from the respondent, but not to dissolve their marriage nor enable either party to
remarry. The remedy is sought chiefly by person who have religious scruples about divorce.
It has never been doubted that the English court will apply English domestic law and no
other, even if the parties are domiciled abroad.

D. NULLITY OF MARRIAGE
A nullity decree is concern with the validity of the creation of a marriage, unlike divorce
which dissolves a marriage which is admittedly validly created. This means that the choice of
law issues in nullity is essentially the same as those already examined in context of marriage.
The reason why the choice of law for nullity is more difficult area than divorce is that the
effect of annulment varies according to the particular ground in issue and they vary in
relation to the same ground even within United Kingdom. Some defect avoids a marriage ab
initio, i.e. render it void, whilst other merely renders it voidable. If one party is below
minimum age of marriage or is already married, English Law regards the marriage as void. 56
In Scotland, on the other hand, lack of consent also renders the marriage void ab initio.57
There are further differences in relation to the effect of an annulment. The annulment of a
void marriage has retrospective effect; it declares the marriage never to have existed.
However the position is different in England in case of a voidable marriage. It has been
suggested that, as annulment of a voidable marriage and divorce decree both only have
prospective effect, the law of the forum should be applied to the former as to the latter.

POSITION IN INDIA

There seems to be only one decision of an Indian court on the subject, where the question did
not directly arise, and it was observed by a learned single judge that formal validity would be
governed by the lex loci celebrationis.58

56
Matrimonial Causes Act 1973, Section 11.
57
Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act 1977.
58
Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.
The Foreign Marriage Act 1969, provides that a marriage performed outside India would be
regarded as valid if it was performed in accordance with the law of the country where the
marriage was performed, thus implying that the test for such validity was the lex loci
celebrationis.59

As Indian courts tend to follow the rules of English law on most issues in conflict of laws, it
is probable that Indian courts would hold, as at Common Law in England, that the formal
validity of a marriage would be governed by the lex loci celebrationis.

CASE LAWS IN INDIA

In Y. Narasimha Rao v. Y. Venkata Lakshmi,60 the Supreme Court of India observed, “In
matters of status or legal capacity of natural persons, matrimonial disputes, custody of
children, adoption, testamentary and interstate succession etc. the problem in this country is
complicated by the fact that there exist different personal laws and no uniform rule can be
laid down for all citizens … The law … tends to be primarily determined and influenced by
social, moral or religious considerations, and public policy plays a special and important role
in shaping it.”61

Statutes enacted in India also recognise the principle that questions of capacity are governed
by the law of the domicile. The conditions for a valid marriage are set out in section 5 of the
Hindu Marriage Act 1955, which applies to Hindus domiciled in India, even if they are
outside India. This is clear statutory recognition of the rule that all questions of capacity are
governed by the law of a person's domicile.

In India, under the Hindu Marriage Act, 1955, ‘any two Hindus’ can perform their marriage,
provided that the conditions laid down under the Act are fulfilled. The Indian Courts would
accord recognition to such marriages even if one of the parties or both the parties to the
marriage have no capacity to enter into marriage under there ante-nuptial domicile or law of
their matrimonial home. This is also true in case of Muslims, Christians, Parsi or Jew
marriages performed in India under the law of there respective communities. This is because
in India, law of marriage is essentially a personal law, in the sense that the governing law of

59
The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23
60
1991 3 SCC 451, at 458.
61
Sujata Manohar, Inter-personal Laws in India, available at:
http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkokuabstr/Panel%20E4%20Manohar
%20revised.pdf.
(last visited on August 10 2015).
marriage is not the Indian Law or the state law but the law of the community to which the
parties belong.

In a case of Parwatawwa v. Channawwa,62 where a man domiciled in Hyderabad married a

second wife, who was domiciled in Bombay, at a time when a Hindu could contract a
bigamous marriage in Hyderabad but not in Bombay, it was held that the question related to
capacity which was dependent on the husband's domicile, and as he was not prohibited from
contracting a second marriage by the law of his domicile, the marriage was valid.

In the case of Bhagwan Ghamshamdas v Charlotte Zingg,63 a Hindu man, whose marriage
had been dissolved under the Hindu Marriage Act 1955, married another woman in Sri Lanka
within a few months of the dissolution, it was held that under section 15 of the Hindu
Marriage Act 1955, as it stood then, a person could not remarry within a year of the
dissolution; the man, therefore, lacked a capacity to marry which was governed by the law of
his domicile.

62
AIR 1966 Mys 100
63
(1959) ILR 1 Cal 4
 Conclusion

A contract to marry fundamentally from a commercial contract, since creates a status that
affects both the parties themselves and the society to which they belong. It is fulfilled on the
solemnization of the marriage ceremony, and therefore there is a change in the law that
governed the relationship between the parties.
There are many different situations in which the existence of a marriage must be established
as a preliminary to legal proceedings. The matter may concern many different parts of the
law. Thus the institution of matrimonial causes, such as a petitioner for divorce and judicial
separation, implies that the parties are related to each other as husband and wife. Each legal
system must determine the attributes of the consensual union between man and woman, the
common factor, in eyes of the English law, of every marriage, which are necessary to create
the relationship of husband and wife. The above project concludes that the case law just
illustrates the incidental question does not attract a mechanical rule. Therefore each case is
decided on its own facts and circumstances.
As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if
either party was habitual resident for one year or domiciled in England, or if either of the
parties died before that date and either was at domiciled in England or had been habitually
resident foe one year ending with the date of the death. A nullity decree may declare a
marriage either void or voidable.
As in the case of contract, there is proper law of contract, so also in the case of validity of
marriage, there should be a concept of Proper Law of Marriage, under which firstly, the law
to be applicable will be that law which is specified by the parties in the marriage deed or at
the time of the registration; secondly, it should be the law which can be inferred by the
conduct of the parties or according to the particulars filled by the parties during the
registration of the marriage; thirdly, since in many countries the registration of marriages is
not compulsory, so many people do not go for registration of there marriages, in such a case
it will be the law with which the parties had the most real and substantial connection. This
may end many of the problems and will also give judiciary wide powers to decide the matter,
on the basis notions of justice which they follow.
 Bibliography
B. Books
1. Atul M Setalvad, Conflict of Laws, 2nd Ed. Lexis Nexis Butterworts Wadhwa: Nagpur,
2009.
2. Cheshire, North & Fawcett, Private International Law¸ 14th Ed., Oxford University
Press: New York, 2008
3. V.C. Govindaraj, The Conflict of Laws in India, Oxford University Press: New Delhi,
2013.
1. Articles
1. Rajat Joshi, Validity of Marriage And Conflict Of Laws, ILI Law Review, 2010.
2. N Chaturvedi - 2011