Law Commission Report
Law Of Foreign Marriages
LAW COMMISSION % OF INDIA TWENTY-THIRD REPORT (THE LAW OF FOREIGN MARRIAGES) AUGUST, 1962 GOVERNMENT OF INDIA : MINISTRY OF LAW ' ' CHAIRMAN, C LAW COMMISSION. 5, Jorbagh, New Dell1i----3. the 8th August, 1962. Shri Asoke Kumar Sen, Minister of Law. New Delhi. MY DEAR NIINISTER, I have great pleasure in forwarding herewith the Twenty-Third Report of the Law Commission on the subject of Foreign Marriages. 2. The subject was referred by the Government to the previous Law Commission and entrusted to Mr. P. S. Rao, Member. Certain preliminary points raised in a note prepared by Mr. Rao were discussed in the 33rd meeting of the Commission held on the 18th February, 1961. In conformity with the decisions taken on those points at the meeting. a draft Report was prepared together with a Bill in the form of amendments to the Special Marriage Act, 1954. The draft Report was discussed at the 35th meeting of the Commission held on the 22nd - September, 1961. It was decided at that meeting that instead of amending the Special Marriage Act, 1954 there should be independent legislation on the subject. 3. On the reconstitution of the Commission in December, 1961. the matter was reexamined. The draft Report and the draft Bill, as revised in the light of the decisions taken at the 35th meeting, were circulated to State Governments, High Courts, Bar Associations, etc. The comments received on the draft Report were considered by this Commission at the 38th meeting held on the 5th May, 1962, and the draft Report and the Bill were revised in accordance with the decisions taken at that meeting. 4. My colleagues and I wish to record our appreciation of the help given and labour put in by our Joint Secretary Mr. S. K. Hiranandani and by our Additional Draftsman Mr. P. M. Bakshi in the preparation of the Bill and the notes attached thereto. Yours sincerely, MR. JUSTICE I. L. KAPUR. REPORT Obi THE LAW OF FOREIGN MARRIAGES PARAGRAPH I N \Doo-.1D'\U\-Fmuo IO 11 12 :3 I4 16 17 18 19 CONTENTS Sun}enT-Mxrrsn Genesis of reference . . . '. . Scope of marriages outside India-----analysis Scope of proposed legislation . . . Legislation in other countries . . . ' English Act . . . . . Australian Act . . . . . Features of the English and Australian Acts Salient features of proposed legislation Enablitig provision . . . . . . Application of legislation \ . . . Rules as to capacity and essential validity . Saving provisions as to international law and local law . . . . . . . Matrimonial causes . jurisdiction . . . . . . . Registration . . . . Provisions as to reciprocity . . . Other provisions . . . . Form of proposed legislation . . . . Appendices . . . . PLPPE1~ID}'_CES APPENDIX I. "*'P1'0p0SEl1S as shown in the form of a draft 3111 APPENDIX II.----Notes on Clauses APPENDIX III.--Sugges1ions in l'€'S13'.:Ct of other Acts . PAGE N 'O '-lU'\G'\V"-It-hualfl 10 II II II I! I2 27 34 REPORT on THE LAW or FOREIGN' MARRIAGES 1. The reference on which this report is presented can Genesis of be traced to the Special Marriage Act, 1954. Laying down "'=f'3"'-"1'-'Cr the conditions relating to solemnisation of marriages under the Act, section 4(e) provides that where the marriage is solemnised outside the territories to which the Act -extends, both parties should be citizens of India domiciled in the said territories. When that legislation was before Parliament, a suggestion was made that it should apply to marriages solemnised outside India even where one of the 'parties thereto was an Indian citizen. The then Law Ministercshri C. C. Biswas, gave an assurance in the course of the debates that suitable legislation on the subject of foreign marriages would be undertaken after a careful examination. He observed: "Then comes sub--clause 4(f)1 which says, 'where the marriage is solemnised outside the territories to which this Act extends, both parties are citizens. of India domiciled in the said territories'. It was suggested that this is not enough and that we should also make provision in this Bill for cases where one of the parties who is abroad is an Indian national or an Indian citizen domiciled there and the other party to the marriage is a foreigner professing another religion and so on. Well, Sir, that ought to be the subje-ct--matter of a separate Bill, may be on the lines of the Foreign Marriage Act in the U.K. I have already told the Select Committee that Government have under consideration a measure of that kind, but that would not be quite appropriate in this Bill and therfiore that has been left out of this Bill. That does not mean that the matter will not be dealt with, but it requires very careful considel-_ ation, and wemay have to modify the English Foreign Marriage Act of 1892, a great dea] to suit our I'Eq'l11I'EIIl&I1tS."2 - The matter has since been referred to this Commission. 2. The object of the proposed legislation is thus to sum: Dg 'regulate marriages performed outside India when either of marriages The parties thereto is a citizen of India," the:-ebv filling aoutsjde gap 'in the Special Marriage Act, which is limited in its'1n$'ff; application to marriages between Indian citizens. Bgfore an 5' ' determining the true scope of the proposed legislation it will be useful 'to analyse the different types of marriages 1This corresponds to 5. 4 (e) as enacted. "Pat1'Bmemary Debates (Council of States) 'Vol. VI, N , th A H 1954. eels. 4563-4564. 0" 35 29 pr ' 'See Appendix 1, clause 4. Soup: of 1: sad legislation- marriage _ and matri- menial muses. 2 which could conceivably be entered into abroad by parties one or both of whom are citizens of India: (a) A citizen of India may marry a British subject in France in accordance with the law of France. The validit of such a marriage will be governed by the lea: loci ce ebrationis, that is, the French law, and such a marriage should stand unaffected by the proposed legislation.' (b) A citizen of India may marry a British subject in France in accordance with the law of England, for example, the Foreign Marriage Act, 1892, that is to say, in accordance with a law which is not the one in fiorce either in India or in the country where the marriage is actually solernnized, that is, F'rance. Such a marriage should also stand unaffected by the proposed legislation} (c) Two citizens of India may marry in a foreign country in accordance with the personal law of India applicable to such a marriage, for example, when a marriage between two Hindus is solemnized in accord- ance with the provisions of the Hindu Marriage Act, 1955. Such a marriage should also stand unafiected by the proposed legislation. In the result, the proposed legislation should only apply to marriages where the parties, one or both of whom is or are citizens of India, choose to get their marriages sole- mnized under its provisions? It would be convenient if the proposed law is made an exhaustive code relating to such marriages, that is to say, to that extent it should re- place the provisions contained in the Special Marriage Act, 1954, relating to extra-territorial marriages." 3. As will presently be explained,' the object of the proposed legislation is not merely to provide for solemnis- ation of marriages outside India where at least one of the parties thereto is a citizen of India, but also to enable the parties thereto to obtain, under its provisions, appropriate matrimonial reliefs, such as dissolution of marriage and so forth. The legislation will thus provide a form of marriage which can be availed of by an Indian citizen who wishes to marry abroad, and which will ensure beyond doubt the 1Although the validity of such marriages would stand unaffected by the proposed legislation, it would be necessary and convenient to confer juris- diction" on Indian courts to grant appropriate matrimonial reliefs in this country in respect of such marriages. This matter is further discussed in para. 13, infra. 'Sec Appendix I, clause 4. 'See Appendix II, Notes on Clauses, note at . _ the end relating to sug- gested amendments to the Special Marriage Act. 'Para. :3, infra. 8 validity of the marriage so far as India is concerned, and in respect of which it will be possible to obtain appropriate reliefs in Indian courts} While this legislation aims at providing a form of marriage whose validity cannot be ques- tioned in Indian courts, care has been taken" to secure conformity with rules of private international law on this subject so as to ensure, as far as possible, that the validity of the marriage might be recognised in other countries he- sides India. 4. Coming now to parallel legislation elsewhere, there ¥~°8i§_E:"°" -are the (English) Foreign Marriage Act, 1892», as amended ,'3',"),fg,,,i:3_ and added to from time to time, and the (Australian) Marriage (Overseas) Act, 1955. It will be useful to refer briefly to the scope of those two enactments. 5. (1) The (English) Foreign Marriage Act, 1892, con- Enfiiiih 5°'- stitutes the culmination of a series of Acts which were passed earlier to "avoid the doubts and uncertainties which 'sometimes arose when British subjects married" in foreign countries. It provides for a form of marriage which may be availed of where one of the parties is a British subject. Provided that the requirements of the statute are complied with, the marriage Will be recognised in English courts as valid as though celebrated in England,' whatever View foreign courts may take of its validity. (2) It must be emphasised that the efiect of solemn.isa- tion under the English Act is only to ensure the formal validity of the marriage in English courts, though certain provisions are made in the Act to ensure maximum possible compliance with principles of confiict of laws. Thus, under section 19, the marriage officer may refuse solemnisation of a marriage whi ch would be inconsistent with International Law or the Comity of nations? Besides, power is given under section 21 of the Act to the Queen--in-Council to make regulations inter alia prohibiting or restricting the exercise by marriage officers of their powers under the Act in cases where the exercise of those powers appears to Her Majesty to be inconsistent with International law or the comity of nations, or in places where sufficient facilities appear to Her Majesty to exist, without the exercise of those powers, for the so-lemnisation of marriages to which a British sub- ject is a party. (3) Pursuant to this, it is provided under the English .Act that the marriage officer should refuse solernnisation in a foreign country where a marriage under the local law -of the foreign country is valid under English Law, unless 'See Appendix I, clause 18. 'See Appendix I, clause II (2). "Graveson, Conflict of Laws, Third Edn., p. 147. 'See '5. I of the English Act. 'Alright of appeal to the Secretary of State against an order refusing to golemnlse A marriage on this ground is provided under section I9, proviso. Avmtnllan Act. 4 he is satisfied that (a) both the parties are'E_»ritish subjects, or (b) if only one of the parties is a British subject, the other is not a subject or citizen of the toreign country, or (c) if one of the parties is a British subject and the other _a citizen or subject of the foreign country, that sufiicient facili- ties do not exist for the solemnisation of the marriage in the foreign country in accordance with the lawof that country, or (d) if the man about to be married is a British subject and the woman a subject or citizen of the foreign country. that no objection will be taken by the authorities of the count1'Y to the solemnisation of the marriage under the Act.' Further, it has been laid down that where it appears to _the marriage officer that the w-oman about to be married is a British subject and the man a foreigner, he must be satisfied (a) that the marriage will be recognised by the_1aW of the country to which the foreigner belongs, or (b) that some other ceremony in addition to that under the Act, has taken' place, or is about to take place, and that such other cere- mony is recognised by the law of the country to which the foreigner belongs, or (c) that the leave of the Secretary of" State has been obtained.' (4) The Act provides for the registration of marriages abroad to which a British subject is a party. Such registration does not confer any validity which the marriage does not possess otherwise,' but is merely of evidentiary ya me. (5) The Act deals with marriages between the "lines" (armed forces), but this is not of any interest to us. (6) Lastly, it may be mentioned that the Act does not affect in any Way the validity of marriages solemnised otherwise than under the Act,' nor does it deal with matrimonial causes. 6. (1) The Australian Act is the Marriage (Overseas) Act, 1955," which follows largely the English Act and some of the provisions" of the 'Foreign. Marriages Order in Council, 1913. Section 9(1) of the Act provides that a marriage between parties of whom one at 'least is an Australian citizen may be solemnised under the Act in an overseas country, whilst section 9 (2) provides that a marriage by_ a _marriage oflicer under the Act, being a marriage which if it had been solemnised in the Australian Capital Territory and the forms required by the law in force- in that territory had been duly observed would, under the- law of a State or territory of the Commonwealth, have been a valid marriage is by force of this Act. valid in that State or territory. ' rfhe Foreign Marriages Order in Council, 19;3_ SR_ 3, O_ 1913 No I270, Art. I. See Halsbury, Statutory Instruments, VOL 10,11 I72_ -- 'The Foreign Marriages Order in Council 1913. Gp. Cit. Am ;_ 'See section I3 of the English Act. 'Section 23 of the English Act. 'Act 31 Of 1955.. Commonwealth Acts, 1955, p. 479. 'Ste Pam 5(3). supra. 5 (2) The Act embodies the same safeguards as are 'Q0 133 found in the English Act and the Orders in Council to ensure as far as possible the international validity of marriages solemnised thereunder.' (3) A significant feature of the Act ls that it provldes. unlike its English counterpart, that a marriage shall not be solemnised if the Marriage Officer knows thateither party to the marriage has not attained the age of sixteen. Fur- ther, a party under 21 years has to obtain the consent of the prescribed persons. Lastly, the parties are required to declare that there is no impediment by consanguln-ltlr' 01' affinity or other lawful hindrance.' (4) The Act contains provisions as to registration of marriages' and also a saving provision in respect' 01 mam' ages solemnised otherwise than under the Act. (5) The Act does not provide for matrimonial causes. (6) Thus, taken as a whole, the Australian Act is similar in its scope and technique to the English Act. 7. The salient features of the two Acts may be :summaris- Feuum .01 ed as follows:--- $3 _ _ _ liun Acts. (i) the object of the Acts is only to provide for a form of marriage which may be availed of by person: marrying abroad where one at least of the parties to the marriage is a citizen; (ii) the Acts do not afiect the validity of marriages not solemnised under them; (iii) apart from providing for rules of guidance to marriage oflicers to ensure the international validity of marriage, the Acts do not deal with the capacity or parties or conditions for the validity of the marriage. In the Australian Act, however, there are some pro- visions dealing with this matter; (iv) the Acts do not deal with matrimonial causes or other incidental matters; (v)_ the Acts provide for registration of marriages solemnised outside their purview, but such registration has only evidentiary value and no more. 8. We are of the opinion that the principles on which 31- , the English and Australian Acts have been framed Ca.l'1,f¢;|11.1:e| .1 broadly speaking, be adopted with advantage in the propos- in-posed ed legislation, with such modifications as might be called F¢liIi|%i°n- '18:: section 23, which corresponds :0 section 19 of 111: English Act and sections 20 and 21 which correspond to Articles 1 and 2 of the Order in Council of 1913, issued under the English Act. 'See 3:. 17 to 19, Australian Act. ,'S=='~: sections 25 2gnd- 26 (3), Australian Act. It is made clear that an rogistration is for cvidcntiary purposes only, 'Section 31, Australian Act. ElIb_ll_ng PEDVLSIOIJ . Application f 0 legislation. 6 for under the conditions in this country. In the following paragraphs we briefly indicate the salient features which may be embodied in our legislation on the subject. 9. In our view, the proposed legislation should be enabl- ing in character, that is to say, it should not be obligatory on the part of an Indian citizen entering into a marriage out- side India to have it solemnised in the mode prescribed by it; it should be open to him or to- her to adopt any other mode which might be available if he or she is satisfied that that has the requisite validity under the rules of private international law and is better suited to him or to her. The form prescribed by the proposed legislation is not in super- session of, but in addition to. any other mode that might be permissible. We have accordingly provided} that marri- ages performed in a foreign country otherwise than under this legislation should remain unaffected by it. 10. A question which calls for decision at the very thre- shold is, What should be the criterion or criteria on which persons might be allowed to avail themselves of the pro- posed legislation. Domicile and citizenship are the two elements which enter into a discussion of the validity of foreign marriages according to rules of private international law. On the basis of these two elements. it is possible to conceive of three alternatives. The law might require that one or both of the parties to the marriage should have (at) Indian citizenship and domicile, or (b) Indian domicile, or (c) Indian citizenship. The Special Marriage Act, 1954, has adopted the first of the above alternatives and provides that both parties should be citizens of India domiciled in the territories to which it extends. Section 1(2) of the Hindu Marriage Act, 1955, has adopted the second of the above alternatives and enacts that it applies to Hindus domiciled in the territories to which it extends who are out- side the said territories. Being a denominational Apt limited in its application to Hindus. it was obviously con- sidered that any fine distinctions turning on citizenship and domicile would be of little practical importance. The English and Australian Acts have adopted the third alter- native--citizenship----as the sole criterion for the application of the Acts? It might be that in this they were inspired by the Common Law doctrine that British subjects carry with them, wherever they might go, as much of their law as is necessary. It is also possible that the above provision was made on practical grounds. To a Marriage Officer, citizenship is a more concrete concept and can be proved easily by relevant documents. It might be that to require a marriage officer, who may not be trained in law, to decide complicated questions of domicile (questions which are extremely difficult even for trained lawyers and judges to decide) would be to place upon him an unfair burden. Further, when an English court is called upon by a British 'See Appendix I, clause 27. 'Section 1, English Act ; section 9 Australian Act. 7 subject to decide on the validity of a marriage contracted by him or her in a foreign country, it would be unrealistic to enter into subtle questions of domicile. We have given anxious thought to the question whether we should depart from the scheme o-f the English and Australian Acts and require domicile as a condition for the application of this law. We have come to the conclusion that We should, on the pattern of the English and Australian Acts, provide for citizenship alone being the sole criterion. These Acts have been in force for quite a long period, and no inconvenience has resulted from them. To introduce the element of domicile, in addition to or in substitution of citizenship, as a criterion, will result in needless complications in the law. Having regard to the above prececients, as also consider- ations of convenience, we recommend' that the proposed legislation should have application when one of the parties to the marriage is a citizen of India, without any further question as to domicile. ii. (a) We have given anxious thought to the question whether the proposed legislation should contain rules in respect of capacity and conditions of validity. The English Act does not contain any such rules, while the Australian Act lays down a rule regarding the age of marriage and requires the consent of the 'prescribed person' where a party to the marriage is under 21 years. Of the English Act it has been said by an eminent authority" that "the intention seems to have been that no marriage should be celebrated under the Act which could not have been effectively celebrated in England and, therefore, the English prohibitions on grounds of consanguinity and affinitv must be respected". Notwithstanding the absence of a statutory provision, it was held in Pugh v. Pugh' that the Age of Marriage Act, 1929, would be applicable -to determine the validity of a foreign marriage to which an Englishman was a party. That Act was construed as having extra--territorial application so as to affect the capacity of all nervons domiciled in England, to contract marriages wherever the marriage may be celebrated. In this connec~ tion, we may also refer to sub-section (3) of section 18 of the Matrimonial Causes Act, 1950. which reads as follows:--- "In any proceedings in which the court has jurisdic- tion by virtue of this section. the issues shall be deter» mined in accordance with the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings". Presumably, the above provision will apply in respect of rnawfawcs performed under the Foreign Marriages Act, 1892. On the other hand, our attention was drawn to sub- section (3) of section 25 of the (Australian) Matrimonial Causes Act, 1959, which reads as follows:---- 'See Appendix I, cl.'us€ 4. 'WcsTlakc, Private International Law, 4th Edition, 1:. 64. 'I951. 9- 482- Rulea at to capacity and essential validity. "Where it would be in accordance with the com- mon law rules of private international law to apply the laws of any country or place (including a State or a Territory of the Commonwealth), the court shall apply the laws of that country or place". It may be contended that in respect of marriages involving a foreign element, it would not be proper to apply our law as regards capacity and essential validity and that the choice of law should be determined by the rules of private international law. Broadly, the rules of private international law lay down that as regards the form of marriage, it is the law of the country where the marriage takes place which applies (lea: loci celebrationis): but in matters relating to capacity and essential validity, it is the law of the domicile of the parties which applies (lea: domicile)! However, the theory of intended matri- monial domicile discussed by Cheshire" has already made inroads into the rules of private international law based on domicile. The rules of private international law cannot, therefore, be said to be welhestablished. In fact, the case-law on the subject in England, which has been discussed in our report3 on the law relating to Marriage and Divorce among Christians in India, is in a confused state. No single uniform principle can be gleaned from these cases. If the theory regarding the intended matri- monial domicile pi-opounded by Cheshire is correct, the domicile of persons who marry under the proposed law may well be regarded as Indian. Moreover. the proposed law would be an enabling one and persons marrying thereunder may well be deemed to have submitted them- selves to our law.' We must also take notice of the fact that we have nothing like a tea: loci in this country. prescribing the conditions of validity of all marriages. In View of the uncertainty of the rules of private international law, and the absence of a Zea: loci in our country, doubts will always arise regarding the validity of marriages solemnized under the proposed law if it remains silent on this question. In the circumstances we think it highly desirable that the proposed law should contain rules regarding capacity and essential validity. Since one of the parties to the marriage would be a citizen of India, we can with propriety make provisions in respect of these matters. And in View of the saving provisions proposed as to international law and local 1aw,5 the position of the non- Indian party to the marriage can be regarded as adequately safeguarded. Further, public policy demands that capacity of any of our citizens to marry abroad should be determined by our law on the basis of the social and #1-Dicey, Conflict of Laws, 7th Edn., p. 231. 'Cheshire, PIl'\'3.LE International Law, 5th Ech-1., p. 324. 'See the Fifteenth Report, para. 5. 'Of. the observations in Laserewicz 'V. Lazerercicz, (15:62) 2 'W.L.R.. 94o (Phillimorc 1.), 'Sec para. 1:, :'ru'r-a. moral standards prevailing in our country. But, in order to avoid, as far as possible, conflict with other laws We propose to restrict the provisions regarding capacity and essential validity to the basic and fundamental require- ments. (1)) We are of the View that the provisions of 'the Special Marriage Act, 1954, as to capacity and essential validity embodied in sectio-n 4 of that Act, which already apply to a foreign marriage when both the parties are citizens of India, are suitable for adoption in the proposed law. We recommend accordingly.' 12. (a) We have come to the conclusion that the proposed Swing Dro- legislation should ensure that marriages solemnised there-.;:::::J':t=;n: under have a high degree of international validity This law and can be achieved by authorising the Marriage Officer? to re-- local law. fuse to solemnise a marriage which appears to him to be in contravention of international law. We do not, however, consider it necessary to enact in the Bill detailed provisions of the nature contained on the subject in the Australian Act or in the English Act, read with the Orders in Council issued thereunder?' In our view, such provisions, if enacted in the statute, would make it too cumbersome and would render the task of the Marriage Otficer difiicult. Instead o-f imposing any rigid limitations and enacting hard and fast rules on a matter which does not admit of codification at present, we would prefer to insert in the proposed law guiding principles to be kept in mind by the Marriage Ofiicer. (b) We also consider that, apart from private inter- national law, some importance has to be attached to the law of the place of celebration of the marriage; for the proposed legislation constitutes an inroad into it. We therefore, recommend' that a specific provision should be introduced to the effect that, before solemnising any marri- age care should be taken to see that the intended marriage is not prohibited by the local law. This is necessary in the interests of good relations between India and the foreign country concerned. 13. As already stated,' we do not have in this country Mntrimonl. what may be called a less loci dealing generally with rnatri-- '1"'"-""- ,monia1 jurisdiction, and if suitable provisions are not made in this behalf in respect of marriages solemnised under the proposed legislation, there will be a lacuna in the law. We have, therefore, to depart in this respect from the English and Australian Acts. 'See Appendix I, clause 4. "See Appendix I, clause 11 (2). "Sec paras. 5(3) and 6(2), supra, "See Appendix I, clause 11(1). 'Para. 11(4), supra. Jurisdiction. 10 In our opinion the proposed law should contain arr express provision regarding matrimonial causes. Further, it has been brought to our notice that difiiculties are ex- perienced by citizens of India who choose to marry abroad not under our laws but under foreign laws, in obtaining' the appropriate matrimonial relief in our county in case the marriage unfortunately turns out to be a failure. In a recent case,' the Rajasthan High Court has held that where a person domiciled in India has contracted a marriage in England with an English Woman (presumably under the English Law) he can obtain a divorce under the Special Marriage Act, 1954, on the ground that that Act is the gene- ral law of divorce in force in this country. Without enter- ing into any discussion as to its correctness. We think that the decision emphasises the need for making the position clear by a. statutory provision. We are, therefore, of the- opinion that the provision about matrimonial reliefs to be included in the proposed legislation should also apply to a marriage performed in a foreign country under a foreign law Where one of the parties to the marriage is a citizen of' India? At the same time, care has to be taken to ensure" that a marriage in a foreign country between parties, only one of whom is a citizen of India. not solemnized under the- provisions of the proposed law, is not held to be void on the ground that it contravenes one or the other of the con- ditions for a valid marriage under this law, that is to say, if any such marriage is to be challenged on the ground that it is ab initio void, the ordinary rule relating to choice of law should apply rather than the provisions proposed in the new law. Subject to this reservation, any other matrimon- ial relief available to a party who is married under this law' should also be available to a citizen of India marrying a foreigner abroad under a foreign law. 14. The conditions on which a court in India can exercise- jurisdiction in proceedings for dissolution of marriage, for nullity or for any other matrimonial relief have been already discussed exhaustively in our Report on the law relating to marriage and divorce amongst Christians in India,' and we recommend the inclusiorfi of substantially similar conditions- for determining jurisdiction.' 1N'ee.i'kar:ran 1'. Mrs. Anne Naelkanmn, A.I.R-, 1959 Raj. 133. 'See Appendix I, clause 18 (1). 'St: Appendix 1, clause :8 (3), Exp-ln. 1. 'Sc: 15th Report, para. 69--73. 'See Appendix I, clause 18 (2). 'The view taken in that report that our Courts should have jurirdicrion not only on the ground of domicile. but in certain cases or '11:: pin] (' of residence receives support from the obs-crValior'.s of Lord Reid ir :' crse recently decided by the House of Lords, Ross v. Ram', (1962) 2. 'Cn",1..R. 3903 " It is not for me to consider whether Parliament was right, but i mry be permitted to say that I see much to co1'r;rne1".d thcsc C:-Her Eicvl s of iurisdiction in spite of the fact that they can create 'limping mam'ages'~marn'agcs held invalid or dissolved in England, though held valid by the law of the parties' domici1e.". 11 15. There are provisions in the English and Australian Rcs1'str81i0D- Acts for registration of marriages solemnized outside the purview o-f the respective Acts. Such registration has, as -noted by us -earlier} only a restricted object. Under sections 15 and 13(1) of the Special Marriage Act, 1954, a marriage registered under the Act has substantially been -assimilated to marriages solemnised -under the Act. This scheme has been found to be productive of beneficial results. We see no reason why similar provisions should not be made-'in'-respect of marriages solemnised outside India. We recommend accordingly? 16. Section 34(c) of the Australian Act authorises the P1'°Vi5i'«""-' Governor-General to make regulations providing for the 6:,' Egci, recognition in Australia of marriages solemnised under a I P Y' law in force outside Australia if that law contains a provision recognising a marriage solemnised under the Australian Act. In our opinion, this provision for the recognition of foreign marriages under a reciprocity of arrangements is _a very useful one, as that will secure, for marriages performed" under our Act, recognition abroad. This -device has been already adopted in giving recognition to foreign judgments. More recently, the decisions of the English Courts have followed it in recognising foreign decrees of divorce.3 We recommended that a provision similar to section 34 (c) of the Australian Act be made in the proposed legislation} 17. We have so far discuss-ed points which call for special Other mention. We consider that on other matters recourse can Pr0Vi9'¢'1'3- usefully be had to the provisions in the Special Marriage Act, 1954. 18. (a) Our recommendation" being that we should on the Form of several topics mentioned above draw from the provisions P1'°_P°9'?'l of the Special Marriage Act, 1954, the question naturally '°3'*"l"""" arises as to how that could best he done. The proposed legislation can be framed in any one of the following four modes: - (i) We may draft a separate and self-contained Act. This will deal both with marriage and with matrimonial causes, not by referring to the Chapters -in the Special Marriage Act and the Christian Marriage Bill, but by enacting the provisions therein in full. (ii) We may draft a separate Act without making it sel'-contained, and incorporate therein, by reference, the provisions relating to marriagein -Chapters IV, V, 'See paras. 5(4) and 5(4): cu?"- 'Scc Appendix 1.» |'-'laUS¢ 17(1): (2): (4)- 'Scc Dicey, G01'1flJ-Ct of L3" (7th Ed11v_)(: 13- 317: RT-116 43, Exception 2, anj Travers v. Holley, (1953) Probate 246 -(;.A.) Arnold, v. Arnold, (1957) Probate 237- *Sec App. I, clause 23. 'See para. 17, supra. -44: :1 En t 12 VI and VII of the Special Marriage Act, 195-1. This will be shorter than No. (i) above- (iii) We may insert a new Chapter in the Special Marriage Act; the Chapter itself would not be self- contained, but would refer back to the provisions in other Chapters relating to marriage a well as matri- monial causes. - (iv) A fourth course would be to amend section 1 (2) and section 4 (e) of the Special Marriage Act, so as to allow marriage in the special marriage form where one party is a citizen of India. This would be shorter than No. (iii) above. Consequential amendments may be required in other sections also. After careful consideration, we have reached the con- clusion that course No. (ii) above1 is the best. The usual objection to referential 1egislation--that it often leads to - ambiguity--wil1 no-t apply in this case. For the purposes of matrimonial relief, there is hardly any difference between a foreign marriage solemnized under the proposed law and a marriage solemnized in India under the Special Marriage Act, 1954. This device has the additional advantage of avoiding 'unnecessary -repetition of a major portion of the Special Marriage Act, 1954, in the proposed law. A d- I 19. Appendix I contains our proposals as shown in the "1"" '°°' form of a draft Bill. The notes on clauses in Appendix II explain briefly, with reference to the clauses in Appendix I, the points that require elucidation. Appendix III contains a summary of our suggestions in respect of other Acts. 1. MR. JUSTICE J . L-. KAPUR--Chatrman. 2. G. R. RAJAGOPAUL. 3. n. BASU 4 K. G. DATAR Membe.,._._ 5. NIREN DE 6. 'I'. K TOPE S. K. HIRANANDANI, Secretary. NEW DELHI; The 4th August, 1962. 'Pam. 18 (a) (£1), Supra. INDEX TO APPENDIX I Guns: SUBJECT-MATTER CHAPTER I PRELIMINARY I Short title. 2 Definitions. 3 Marriage Oflicers. ' CHAPTER II SOLEMNIZATIDN or FOREIGN MARRIAGES 4 Conditions relating to solemnization of foreign marriages. 5 Notice of intended marriage. 6 Marriage Notice Book. 7 Publication of notice. 8 Obiections to marriage. 9 Procedure on receipt of obiection. IO When marriage may be soiernnized. II Marriage not to be in contravention of local laws. 12 Declaration by parties and Witnesses. 1'3 Place and forni of solemnization. I4 Certificate of marriage. I5 Validity of foreign marriages in India. 16 New notice when marriage not solemnizcd within three months. CHAPTER III REGISTRATION or FOREIGN MARRIAGES soL15MNIznn UNDER OTHER LAWS :7 Registration of foreign marriages. 13 14 Cums}: SUBJECT-MATTER CHAPTER IV MATREMONIAL RELIEF :1»: RESPECT OF FOREIGN MARRIAGES 13 Matrimonial reliefs to be under Special Martiage Act, 1954. CHAPTER V PENALTIES 19 Punishment for bigarny. 20 Punishment _ for contravention of certain other conditions for marriage. 21 Penalty ihr false» dmlaaat-ion. 22 Penalty fotqwrongfult action of manriage officer. CHAPTER VI MISCELLANEOUS 23 Recognition of marriages solemnizcd under law of other countries. 24 Certification of docutnfillts of marriages solemnizetl in accordance with local law in a foreign country. 25 Certified copy of entries to be evidence. 26 Correction of errors. 2.7 Act not to affect validity of marriages outside it. 28 Power to make rules. 29 Repeal. SCHEDULES THE FIRST SCHEDULE--FORM or NOTICE op INTENDED MARRIAGE. THE SECOND SCHEDULE--DECLARATIf)N To BE MADE BY THE BRIDBGRDOM. THE THIRD SC HE'DULE--FORM or CERTIFICATE or MARRIAGE. w EXPLANATION OF ABBREVIATIONS USED IN Australian Act C. M. B. English Act H. M. A. S. M. A. APPENDIX I The Marriage (Qverseas) Act, 1955 (Australia). The Christian Marriage and Matrimonial Causes Bill, 1960, being Appendix I to the 15th Report of the Law Commission. The Foreign Marriage Act, 1892. . . The Hindu Marriage Act, 1955- The Spe:iaI Marriage Act, 1954- APPENDIX I PROPOSALS As SHOWN IN THE roam or A DRAFT BILL (This is a tentative draft only) THE FOREIGN MARRIAGE BILL, 1962 A BILL to make provision relating to marriages of citizens 03' India outside India. BE it enacted by Parliament in the Year of the Republic of India as follows:-- CHAPTER I PI-IELIIVIINARY 1. This Act may be called the Foreign Marriage Act, 1962. 2. In this Act, unless the context otherwise requires,--- (ct) "degrees of prohibited relationship" shall have the same meaning as in the Special Marriage Act, 1954; 43 of 1954. (13) "district", in relation to a marriage o1'ficer,gf, 3_ 2,5,1} means the area Within which the duties of his oifice are S. M. A. to be discharged; (c) "foreign country"_ means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place; (d) "marriage officer" means a person appointed under section 3 to be a marriage officer; e) "official house", in relation to a marria e Cf.5_ 8 4. officer, means-- Australian Act, and a. 24, English (2') the official house of residence of the officer; ACI- (ii) the office in which the business of the officer is transacted; (iii) a prescribed place; and (f) "prescribed" means prescribed by rules made under this Act. 3. For the purposes of this Act, the Central Government Cf_ 5, may, by notification in the Official Gazette, appoint such of S. M. A. its diplomatic or consular officers as it may think fit to be marriage officers for any foreign country. E.rpla'nation:--In this section, "diplomatic officer" means an ambassador, envoy, minister, charge d'affaires, high com- missioner, commissioner or other diplomatic representa- 16 Cf. s. I, English Act. 3. 9 (I), Australian Act, and s. 4, S.M.A. E/in :- S? we 3:» pm 7"' Se Cf. s. 7 (I) an _;;,5.'' ?'.."' _D><:n :1 7(3). .A. S.M 17 tive or a counsellor or secretary of an embassy, legation or high commission. CHAPTER II SOLEMNIZATION OF FOREIGN MARRIAGES _ 4. A marriage between parties one of whom at least is a citizen of India may be solemnized under this Act by or before a marriage ofiicer in a foreign country, if, at the time of the marriage, the following "conditions are fulfilled, namely-- (a) neither party has a spouse living, (33) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage, and (d) the parties are not Within the degrees of pro- hibited relationship. 5. When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notice there- of in writing in the form specified in the First Schedule to the marriage officer of the district in which at least one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has so resided. 6. The marriage officer shall keep all notices given under section 5 with the records of his office and shall also [orth- with enter a true copy of every such notice in a book pres- c1'ibl¢:d for that purpose, to be called the 'Marriage Notice Boo . 7. Where a notice under section 5 is given to the marriage oflicer, he shall cause it to be published- (CL) by affixing a copy thereof to a conspicuous place in his own office, and (b) also in the prescribed manner in India and in the country or countries in which the parties are ordinarily resident. 8. (1) Any person may, before the expiration of thirty days from the date of publication of the notice under sec- tion 7, object to the marriage on the ground that it would contravene one or more of the conditions specified in sec- tion 4. Explanation:--Where the publication of the notice by aifixation under clause (a) of section 7 and in the prescribed manner under clause (13) of that section is on different Conditions relating to soIcmniza- tion of foreign marriages. Notice of intended marriage. Marriage Notice Book. Publication of notice. Objections to marriage. Procedure on receipt of objection. When marri- age may be solenmizcd. Marriage not to be in contraven- tion of _local laws. Declaration by parties and witnes- ses. 18 dates, the period of thirty days shall, for the purposes of this sub-section, be computed from the later date. (2) Every such objection shall be in Writing signed by the person making it or by any person duly authorised to sign on his behalf, and shall state the ground of objection: and the marriage oflicer shall record the nature of the objection in his Marriage Notice Book. 9. (1) If an objection is made under section 8 to an in- tended marriage, the marriage officer shall not solcmnize the marriage, until he has inquired into the matter of the objection in such manner as he thinks fit and is satisfied that it ought not to-prevent the solemnization of the marriage or the objection is withdrawn by the person making it. (2) Where a marriage officer after making any such inquiry entertains a doubt in respect of any objection, he shall transmit the record with such statement -respecting the matter as he thinks fit to the Central Government; and the Central Government, after making such further inquiry into the matter and after obtaining such advice as it thinks fit, shall give its decision thereon 'in writing tothe marriage oflicer, who shall act in conformity with the decision of the Central Government. 10. After the expiration of thirty days from the date of publication of the notice of an intended marriage under section 7, the period of thirty days being calculated, wherever necessary, in the manner specified in the Ex- planation to sub-section (1) of section 8, the marriage may be solemnized unless it has been previously objected to under section 8. 11. (1) The marriage officer shall not solernnise a marriage under this Act if the intended marriage is prohi- bited by any law in force in the foreign country where it is to be solemnized. (2) The marriage officer may refuse to solemnize a Cf. 3. I9: marriage under this Act on the ground that in his opinion, En S. 23: the solemnization of the marriage would be inconsistent with international law or the comity of nations. (3) Where a marriage officer refuses to solemnize a marriage under this section, any party to the intended marriage may appeal to the Central Government in the prescribed manner Within a period of thirty days from the date of such refusal: and the marriage oflicer shall act in conformity with the decision of the Central Government on such appeal. 12. Before the marriage is solemnized, the parties and three witnesses shall, in the presence of the marriage officer, sign a declaration in the form specified in the Second Schedule, and the -declaration shall be counter- signed by the marriage officer. rglish Act Australian Act. Cf. s. S. M. II, A. Cf. a. 1;, Cf. 3 8 .(2) English Act: as 5:- ?§ Cf, s. 9 (2), Australiln. Act and a. 1 English Act? Cf. s. 14, S. M. A. Ci'. 3. 26. Aultralian o 19 13. {I} A marriage by or before a marriage officer under this Act shall be solemnized at the ofiicial house of the marriage officer with open doors between the prescribed hours in the presence of at least three Witnesses. (2) The marriage may be soiemnized in any form which the parties may choose to adopt: Provided that it shall not be complete and binding on the parties unless each party says to the other in the presence of the marriage oflicer and the three witnesses and in any language understood by the parties,----"I, (A), take thee (B), to be my lawful wife (or husband)". 14. (l) Whenever a marriage is solemnizecl under this Act, the marriage officer shall enter a certificate thereof in the form specified in the Third Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and the three witnesses. (2) On a certificate being entered in the marriage certi~ ficate book by the marriage officer, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized, and that all formalities respecting the residence of the party concerned previous to the marriage and "the signatures of witnesses have been complied with. 15. Subject to the other provisions contained in this Act, a marriage solemnizeri in the manner provided in this Act shall be recognised by courts in India as a valid marriage. 16. Whenever a marriage is not solemnized within three months from the date on which notice thereof has been given to the marriage oflicer as required by section 5 or, where the record of a case has been transmitted to the Cen- tral Government under section 9, within three months from the date of decision of the Central Government, the notice and all other proceedings arising therefrom shall be deemed to have lapsed and no marriage officer shall solem- nize the marriage until a new notice has been given in the manner laid down in this Act. CHAPTER III REGISTTIATION OF FOREIGN MARRIAGES SOLEMNIZED UNDICR OTHER LAWS 17. (1) Where---- (:1) a marriage officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between par- ties of whom one at least was a citizen of India; and Place and form of S0l('T1'l'lI1lSI|- t ion. Certificate o f marriage.- Validity of foreign marriages in- India. New notice when marri- age not solcmnized within three- months. Reg istrationt of foreign: marriages. 20 (b) a party to the marriage iniorms the marriage omcer in writing that he or she desires the marriage to be registered under this section, the marriage officer may, upon payment of the prescribed fee, register the marriage. (2) No marriage shall be registered under this section unless at the time of registration it satisfies the conditions mentioned in section 4. (3) Registration of a marriage under this section shall be effected by the marriage officer by entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book, and such certi- ficate shall be signed by the parties to the marriage and by three witnesses. . (4) A marriage registered under this section shall, as from the date of registration, be deemed to have been aolemnized under this Act. CHAPTER IV MATRILIIONIAL RELIEF IN RESPECT OF FOREIGN IVIARRIAGES IVl3trimo- 18. (1) Subject to the other provisions contained in this nia-1 reliefs section, the provisions of Chapters IV, V, VI and VII of the ggffialmdfir Special Marriage Act, 195%}, shall apply in relation to marri- 43 of 1954. Marriage ages solemnized under this Act and to any other marriage Act, 1954. solernnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act. (2) Every petition for relief under Chapter V or Chapter VI of the Special Marriage Act, 1954, as made applicable to 43 of 19% the marriages referred to in sub-section (1), shall be pre- Ct s_ st U ' sented to the district court within the local limits of whose S. M. A. ordinary civil jurisdiction---- gigél cihuc . , I . (ct) the respondent is residing at the time of the
presentation of the petition; or
(b) the husband and wife last resided together; or
(c) the petitioner is residing at the time of the presentation of the petition, provided that the respon- dent is at that time residing outside India.
(3) Nothing contained in this section shall authorise any court---
(a) to make any decree of dissolution of marriage, except where---
(i) the parties to the marriage are domiciled in India at the time of the presentation of the peti- tion; or 43 9' 1954» Explanation I.---In its application to the referred to in sub-section (1), section 24 of the Special 31
(ii) the petitioner, being the wife, was domi- ciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the pre- sentation of the petition;
(b) to make any decree of nullity of marriage, except where--
(12) the parties to the marriage are domiciled in India at_the time of the presentation of the peti- tion; or
(ii) the marriage was solemnized under this Act and the petitioner is either domiciled or resid- ing in India at the time of the presentation of the petition;
(c) to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954, except where the petitioner is residing in India at the time of the presentation of the petition.
marriages "3 '"'54- Marriage Act, 1954, shall be subject to the following modifications, namely:---
(i) the reference in sub-section (1) thereof to clauses (ct), (b), (c) and (d) of section 4 of that Act shall be construed as a reference to clauses (:1), (b),
(c) and (d) respectively of section 4 of this Act, and
(ii) nothing contained in section 24 aforesaid shall apply to any marriage-
(a} which is not solemnised under this Act; or
(b) which is deemed to be solemnised under this Act by reason of the provisions contained in section 17:
Provided that the registration of any such marriage as is referred to in clause (in) may be declared to be of no efiect if the registration was in contravention of sub-section (2) of section 17.
Explanation II.--In this section, 'district court' has the 43 of 1954. same meaning as in the Special Marriage Act, 1954.
(4) Nothing contained in sub-section (1) shall eautho- rise any court to grant any relief under this Act in relation to any marriage in a foreign country not solernnized under 'it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special 43 If I954. Marriage Act, 1954, or otherwise) is available under any other law for the time being in force.
22CHAPTER V PENALTIES '
19. (1) Any person whose marriage is solemnized under this Act and who, during the subsistence of his marriage, contracts any other marriage in India shall be subject to $535 4::
the penalties provided in section 494 and section 495 of the ' ' Indian Penal Code and the marriage so contracted shall be 45 of 1360. void.
(2) The provisions of sub--section (1) apply also to any such offence committed by any citizen of India without and beyond India.
, Pullishmfim 20. Any citizen of India who prociircs a marriage of vggggfluggi himself or herself to be solemnized under this Act in con-
cmain travention of the condition specified in clause (c) or clause other condi- (cl) of section 4 shall be punishable- tion.s_ for marriage.
(a) in the case of a contravention of the condition Cf. s. :3, specified in clause (c) of section 4, with simple impri- 15- dM- 5-:
sonment which may extend to fifteen days or with fine 52 which may extend to one thousand rupees or with both; (3_ M'_ 3_ and
(b) in the case of a contravention of the condition specified in clause (d) of section 4, with simple impri-
sonment which may extend to one month or with fine which may extend to one thousand rupees or with both.
Pmlltl for 21. If any citizen ofylndia for the purpose of procuring a :lt3i§n'1°°1"' marriage, intentional1y--~ ((1) where a declaration is required by this Act, gf. c. 53, makes a false declaration; or MB.
and Con-
' _ _ _ trast, 5.45,
(h) where a notice or certificate is required by S.M.A. this Act, signs a false notice or certificate;
he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
¥'6D-91?? for 22. Any marriage oificer who knowingly and wiifully cf. 5. 46.
""°"3f"1 solemnizes a marriage under this Act in contravention of 5- M- 5- ifitjroggeof any of the provisions of this Act, shall be punishable with oflicei-. simple imprisonment which may extend to one year or with fine which may extend to five hundred rupees or with both. CHAPTER VI MISCELLANEOUS §=<;g-$3033 23. If_the Central Government is satisfied that the law wlemmicfi in force in any foreign country' for the snlemnizatioii of E13 8-54 (C):
under 13w of marriages contains provisions similar to those contained in A3" ""3 other_ this Act, it may, by notification in the Oflicial Gazette, CUI.1lltIl.C5.23
declare that marriages solemnized under the law in force in such foreign country shall be recognized by courts in India as valid.
_ Certification
24. (1) Where ofdocummts of marriages solernnised (Ct) a marriage is solemnized in any foreign i" a°°°"
a r' in country specified in this behalf by the Central Govern-- 1(,:r:1:e1a:'§., «Bf. u. 26, ment, by notification in the Oflicial Gazette, in accord- aforeign Ana-alian ance with the law of that country between parties of COW"?- ko whom one at least is a citizen of India; and
(b) a party to the marriage who is such citizen produces to a marriage officer in the country in which the marriage was solemnized---
(12) a copy of the entry in respect of the marri- age in the marriage register of that country certi- fied by the appropriate authority in that country to be a true copy of that entry; and
(ii) if the copy of that entry is not in the English language, a translation into the prescribed language of that copy; and
(c) the marriage oflicer is satisfied that the copy of the entry in the marriage register is a true copy and that the translation, if any; is a true translation;
the marriage ofiicer, upon the payment of the prescribed fee, shall certify upon the copy that he is satisfied that the copy is a true copy of the entry in the marriage register and upon the translation that he is satisfied that the translation is a true translation of the copy and shall issue the copy and i the translation to the said party.
(2) A document relating to a marriage in a foreign country issued under sub--section (1) shall be admitted in evidence in any proceedings as if it were a certificate duly issued by the appropriate authority of that country.
.cf_ ,;1_ 53' :?.o_. Every certified copy purporting to he signed by the Certified
-C. M. B. marriage officer of an entry of a marriage in the Marriage copy of Certificate Book shall be received in evidence without pro-- emri?-S I0 duction or proof of the original. be '"'d°"°°-
26. (1) Any marriage oflicer who discovers any error in Correction. the form or substance of any entry in the Marriage Certifi- of crncirs. cate Book may, within one month next after the discovery a. u. 49: of such error, in the presence of the persons married, or, in S. 191.] 135. case of their death or absence, in the presence of two other B = Witnesses, correct the error by entry in the margin without any alteration of the original entry and add thereto the date of such correction.
~ (2) Every correction made under this section shall be :_attested by the witnesses in whose'-presence it was made.
2!.
$3 M' E0 27. Nothing in this Act shall in any way afiect the dfi;,°'Df;1"3;:va1idit3g of a marriage solemnized in a foreign country 1.1.3:, out- otherwise than under this Act.
aid: it.
3;" £3 28. {.13 The Central Government may. by notification 'in the Offici '_ Gazette, ma}-re rules for carrying out the purposes of this Act.
(El In particular, and without prejudice to the genera- iity of the foregoing power, such rules may provide for all or any of the following matters, namely':---
(:1) the duties and powers of marriage officers and their districts;
(b) the manner in which a marriage officer may hold any inquiry under this Act:
(:2) the manner in which notices of marriage shall be published;
(:1) the places in which and the hours between which marriages under this Act may be solemnized;
(e) the form and the manner in which any books required by or under this Act to be kept shall be main-
tained;
(f) the form and manner in which certificates of marriage may he entered under sub-section (3) of section l'i';
(Q) the fees that may be levied for the performance of any duty imposed upon a marriage ofiicer under this Act;
{It} the authorities to which, the form in which and the intervals within which copies of entries in the Mai-r_iage Certificate Book shall be sent, and, when corrections are made in the Marriage Certificate Book, the manner in which certificates of such corrections shall be sent to the authorities;
{ii the inspection of any books required to he kept under this Act and the furnishing of certified copies of entries therein;
(j) the manner in' which and the conditions subject to which any marriage may be recognized under section 23;
{Is} any other matter which may be, or requires to be, prescribed.
(II Et'sr_v rule nlarle under this section shail be [aid as soon as may be after it is made ':-sf:-re each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form
1.; gr 1933 25 or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
29. The Indian Foreign Marriage Act, 1903, is hereby Repeal. repealed.
THE FIRST SCHEDULE (See section 5) FORM or NOTICE or INTENDED MARRIAGE To The Marriage Offlcer Cf. Second Schedule, for . . . . . . . . S-M-A. _ and We hereby give you notice that a marriage under the Second . . . . . Schedule, Foreign Marriage Act, . . . . . . . .15 lntended to be solemnized c_ M_ 3_ between us within three months from the date hereof. Permanent Length Name Condition. Occu- Date DwclI- dwelling of and pltion. of ing placc if residence father': birth. place. present in the nuns. dwelling present:
place is dwelling not pcr- place.
mlncnt.
A.B. Unmarried _ Widener Divorce:
C.D. Unmarried Widow Divowcu Witness our hands, this . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . . . . . . . . . . . .. 19 . . . . . . . . .. Sd. A.B. Sd. C.D. THE SECOND SCHEDULE (See section 12) DECLARATION TO BE MADE BY THE BRIDEGROOM I, A.B., hereby declare as follows:--- Cf. Third Schedule,
1. I am at the present time unmarried (or a widower S. M. A. or a divorcee, as the case may be) .
2. I have completed . . . . . . ..years of age. of Fourth
3. I am not related to C.D. (the bride) within the S==h°d"19» degrees of prohibited relationship. C' M' B' 26
4. I am a citizen of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
(to be filled up)
5. I am aware that, if any statement in this declaration is false, I am liable to imprisonment and also to fine.
Sd. A.B. (the bridegroom} DECLARATION TO BE MADE BY THE BRIDE I, C.D., hereby declare as f01loWs:--«
1. I am at the present time unmarried (or a widow, or a divorcee, as the case may be).
2. I have completed . . . . . . ..years of age.
3. I am not related to A.B. (the bridegroom) within the degrees of prohibited relationship.
4. I am a citizen of . . . . .. (to be filled up).
5. I am aware that, if any statement in this declaration is false, I am liable to imprisonment and also to fine.
Sd. C.D. (the bride) Signed in our presence by the above named AB. and C.D. So far as we are aware, there is no lawful impediment to the marriage.
Sd: G.H. Sd: I.J. }Three witnesses.
Sd: K.L. J (Countersigned) E.F. Marriage Officer.
Dated the . . . . . . . . . . . . . . . .clay of . . . . . . . . . . . . . . . . . . .19. . . .
THE THIRD SCHEDULE (Sam section 14) 'FORM or CFIRTIFICATE or MARRIAGE I, E.F., hereb;.-' c-urtiiiy that on the . . . . . .day of . . . . . . . . . . {CL Fourth 19 . . _ . . . ..A.B_ and CD . . . . . . . . . . _ . . __1appeared before me Scheduig' and that the d'cciarai.ion required by section . . . . . . . . ..*
3. M. A. of the Foreign Marriage Act, 19.... was duly made, and Fig that a marriage under that Act was solemnized between Schedule, them in my presence and in the presence of three wit-
-.c_ M_ 3. nesses who have signed hereunder.
Sd: E.F. Marriage Oificer.
Sd: A.B_ (bridegroom) Sd: C.D. (bride) Sd: G.H.'1_ Sd: I.J. }Three witnesses.
Sd: KL. J Dated the . . . . . . . . . . . . . .day of . . . . . . . . . . . . . . . . . . . . . .19....
'.H'.erein give particulars of the parties. 'To be entered.
APPENDIX II NOTES ON CLAUSES Clause 1 This does not need any comment, as it is of a formal nature.
Clause 2 "district"---follows the Special Marriage Act, with some verbal changes.' "foreign countr'y"-----This will be useful as the expression occurs at several places?
As regards ships in the territorial waters of foreign countries, they will be deemed to be foreign countries, so that the celebration of a marriage on such a ship will be facilitated. The definition will be applicable in each of the following three situations, namely, where---
(i} the ship is an Indian ship (in foreign waters};
(ii) the ship belongs to the very foreign country, within whose territorial waters it is; and
(iii) the ship belongs to another foreign country. Thus, if the foreign country in question is, say, Japan, the ship may be Indian, Japanese or American; the definition will cover all the three cases.
"official house"--fo11ows the English and Australian Acts. Other definitions--need no comments.
Clause 3 This provides for the appointment of marriage officers and follows the Special Marriage Act. (Section 3).
Clause 4 This is the operative clause relating to solemnization of marriages outside India under the Act, and contains the im- portant condition that at least one of the parties must be a citizen of Indias.
"Districts " of marriage oflicers will be defined by rules under clause
2.S(2)(a).
'See, for example, clauses 4, 17, 24, etc. "Ac; regards the condition relating to citizenship see the detailed dis- cussion in the body of the Report, para. 10.27 28
It also deals with the essential conditions of a marriage and follows in that respect mainly the corresponding pro- visions in the Special Marriage Act.
Clauses 5 and 6 These follow sections 5 and 6 of the Special Marriage Act, in substance.
Clause 7 This follows sections 7(1) and 7(3) of the Special Marriage Act, but, as the marriage would take place outside "India and one of the parties would be an Indian citizen, it has been provided that the notice shall be published in India as well as in the country or countries of residence.
Clause 8 This follows section 10 of the Special Marriage Act. The Explanation is intended to define the date of publi- cation. ' Clause 9 This follows section 7(2) of the Special Marriage Act, and indicates precisely the procedure to be followed by the marriage ofiicer.
Clause 10 This follows the Special Marriage Act.
Clause 11(1) This requires that the foreign marriage must not be in violation of the local law of the foreign country'. §:"he provision would be useful. Thus, the laws of some foreign countries (e.g. Kenya) provide that no marriage shall be solemnised in those countries except under the laws in force therein.
Clause 11(2) This provides that the marriage officer should not sole- mnize a marriage in contraventicm of the rules of inter- national law. The matter has been discussed elsewhere."
Clause 11(3) A right of appeal is provided.
Clause 12 _ This follows section 31 of the Special Marriage Act.
'For a detailed discussion, see the body of the Report, para. 12(2). =See the body of the Report, para. 12(1).
Clause 13(1) This follows the English Act. Also compare the Inain paragraph of rule 10 of the Special Marriage (Diplomatic etc.) Rules, 1955.
Clause 13(2) Follows section 12 of the Special Marriage Act.
Clause 14 This follows section 13 of the Special Marriage Act, but the certificate of marriage has been made conclusive proof of the formality regarding residence of a party also. This will enhance its utility.
Clause 15 This is intended to provide for the validity of a marri- age under this law, so that the marriage solemnized outside India will be recognized as valid by courts in India. The language has been made more concise than that adopted in the English Act.
Clause 16 This follows section 14 of the Special Marriage Act.
Clause 17 This provides for registration of marriages solemnized under the law of a foreign country. The conditions for registration are, in substance, the same as those in the English and Australian Acts, except that the condition of personal attendance of the marriage officer has not been adopted, as being unnecessary.
A marriage will not be registered unless it satisfies the conditions of validity applicable to marriages solemnized under the Act itself. In the absence of such a provision, the substantive requirements of the proposed law might be circumvented by the parties first marrying under the foreign law and then applying for registration under the Bill.
It also provides for the mode of registration. As re- gards consequences of registration, it is considered desir- able to treat such marriages as equivalent to marriages solernnized under the Act'.
Clause 13(1) This applies the provisio f Ch t IV t VII f Special Marriage Act, so as!-1t':):(.}_ ap erg 0 0 the . d _ this git, $6 the consequences of a marriage under __ (ii) provide for matrimonial relief.
33" 313° 'he 1305? of the Report, para. :5.
30Read with sub-clause (4), it covers also foreign marriages under other laws for which matrimonial relief is not avail- able in India under any other law.
Clause 18(2) This is intended to define the district court which will have jurisdiction. Cf. section 31(1). Special Marriage Act. Clause 18(3) This deals with the jurisdiction of Indian Courts to grant matrimonial relief under this law.' As regards marriages solemnized under other laws, care has been taken to ensure that--
(a) their validity is not affected by the provisions of this Bill", and
(b) even where such a marriage is registered under this law, its validity is not affected by the said pro- visions, the only relief available in such a case being cancellation of registration.
Clause 18(4) See under sub--clause (1) above.
Clause 19 This follows section 44 of the Special Marriage Act. In its application to a second marriage taking place outside India, it is confined to citizens of India, as in section 4, I.P.C.
Clause 20 This prescribes the penalty for contravention of certain conditions relating to marriage?
Clause 21 This prescribes the penalty for false declaration, etc}.
Clause 22 This penalty provision follows section 46 of the Special Marriage Act, in substance.
Clause 23 _ This, like its Australian counterpart, provides for the recognition of marriages solemnized under the law of any 'The clause follows clause 35, Christian Marriage, ctc., Bill, annexed to the 15th Report.
'See the discussion in the body of the Report, para. I3.
"Compare the Hie-5-1 Marriage Act. 5:. 15.
'See the Christian Marriage. etc., Bill, appended to the 15th Report.
..-v 31 foreign country which may be notified by; the Central Government, provided the law contains provisions similar to those contained in the present Bill. _ The procedure for such recognition and the manner in which such recognition may be granted will be regulated by rules.' Clause 24 This' follows, in substance, the Australian Act, Cert!"
fication under this clause is given an evidentiary value, so that a document issued by the marriage ofIicer-------whether a copy or translationmcan be admitted as evidence in India, in the same manner as e certificate issued by a competent authority of this country. Registration," on the other hand, equates the marriage registered with a marriage solemnized under this Act.
Clause 25 This provides that certified copies of entries in certain books shall be evidence?' Clause 26 This provides for correction of errors in marriage _ registers.
Under sub-clause (3), the corrections are to be com- municated to the ''prescribed'' authority to Whom the original entry was sent. The authority is prescribed by rules.' Clause 27 This clause, saving marriages solemnized under other laws, has been inserted by way of abundant caution."
Clause 28 This authorises the making of rules.
Clause 29 This deals with repeal Strictly speaking, the Indian Foreign Marriage Act, 1903, is not relevant for the present purpose. It was passed to give effect to the Foreign Marriages Order in Council, 1903. The said Under directed that, if a Marriage Officer acting under the (English) Foreign Marriage Act, 1892, was satisfied that such notice 'Sce clause 28(z){j).
'Under ciause 17.
'Cf. the Christian Marriage, etc., Bill, annexed to the 15th Report. 'See clause 28(2).
"See the body' of the Report, para. 9.32
of an intended marriage had been given by a arty dwel- ling in India as might be required by any W of the Governor-General in Council of India implementing the Order, the Marriage Officer should regard the notice as suflicient for the Q sea of the Foreign Marriage Act, 1892. It would thus e seen, that the Indian 'Act of 1903 has nothing to do with foreign marriages of Indians, and that it is merely ancillary to the English Act. [See the Statement of Objects and Reasons appended to the Indian Foreign Marriage Bill, 1903, Gazette of India, 1903, Part V, pagle 466]. Its repeal is proposed as it has outlived its uti itv.
It is considered unnecessary to say anything about the Marriages with Foreigners Act, 1906, as that Act is prac- tically a dead letter. As regards the Foreign Marriage Acts, 1892 to 1947, see the British Statutes Application to India (Repeal) Act, 1950 (-57 of 1960), Schedule, entries 92 and 258. As regards the Marriage of British Subject (Facilities) Act, 1915 (and the amendment made thereto in 1916), see the British Statutes, etc., Repeal Act, 1960 (5? of 1960), Schedule, entries 146 and 152.
THE FIRST SCHEDULE This follows the Second Schedule to the Special Marriage Act, but the father's name has been included in the particulars to be given.
THE SECOND SCHEDULE This follows the Third Schedule to the Special Marriage Act.
TH E THIRD SCHEDULE This follows the Fourth Schedule to the Special Marriage Act.
SUGGESTED AMENDMENTS TO THE SPECIAL MARRIAGE ACT, 1954 On the enactment of the proposed Legislation, the pro- visions in the Special Marriage Act, 1954, relating to marriages of citizens of India, which take place outside India, will become redundant and will have to be deleted. The e::tra--territoria1 operation of the Act in relation to Jammu and Kashmir will, of course, continue. The following amendments will, therefore, become necessary in that Act:----
Section I(2}.~----For the words "outside the said territor- ies", substitute the words "in the State of Jammu and Kashmir".
Section 2(a.}.--"conm1ar officer"--omit.
33Section 2(c).---."dip1omatic officer"--omit.
Section 3(2) .--(i} For the words "outside the said territories", substitute the words "in the State of Jamrnn and Kashmir".
(it) After the words "Official Gazette", add the words "specif such oflicers of the Central Government as it may think . t to be Marriage Ofificers for the State or any part thereof".
(iii) Omit clauses (:1) and (b).
Section 4(e).~--«Su,bsti.tu.te the following for this clause:--
"(e) where the marriage is solemnized in the-
State of Jammu and Kashmir, both parties are citizens of India domiciled in the territories to which this Act extends."
Section 10.--For the words "outside the territories to which this Act extends in respect of an intended marriage outside the said territories", substitute "in the State of Jfimnéu and Kashmir in respect of an intended marriage in t at tate".
Section 50(1).--Omit the words "diplomatic and con- sular officers and other".
34APPENDIX III SUGGESTIONS IN RESPECT or OTHER Acrs The Special Marriage Act, 1954 Amendments should be made to the Special Marriage Act, 1954 in- respect of provisions dealing with marriages solemnized outside India.' 1See Appendix II, Notes on Clauses, note relating to suggested amend' ments to the Special Marriage Act.
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