Law Relating To Marriage And Divorce Amongst Christians In India

[Cites 187, Cited by 0]

Law Commission Report

Law Relating To Marriage And Divorce Amongst Christians In India

LD. 92 XV
3000

LAW COMMISSION
OF INDIA

F IF TEENTH REPORT

(LAW RELATING TO MARRIAGE AND DIVORCE AMONGST
GHRISTIANS IN INDIA)

GOV-'ERI\'IVIEI\'T OI' INDIA 1 MINISTRY OF LAW

I'R1I\iTED IN INDIA BY Tl-IF, (EIZNFILAL I»'I.-RNAGER. GOVI'. OF INDIA PRESS,
,"~II'*.'\.-'If ])El.I-II AND PLIBLISIIFD BY THE i\-IANAGFR 0}' PUBLICATIONS. DELHI 196i]

CHAIRMAN
LAW COMMISSION.
New Delhi--3.
August 19, 1960.

Shri Asoke Kumar Sen,
Minister of Law,
New Delhi.

MY DEAR Mrnrsrsaj

I have great pleasure in forwarding herewith the Fifteenth
Report of the Law Commission on the lawv relating to Marriage
and Divorce among Christians in India.

2. This subject was referred by the Law lllinistrjv to the
previous Law Commission, and was taken up '.)};..»' the present
Law Commission on a top priority basis. A draft of the
proposed legislation was prepared by me, and was revised by
the Commission in its meetings held on the 2 3rd and the 24th
April, and the 4th May, 1959. The revised draft was circulated
for opinion, and as a number of persons and associations
desired to make oral representations on the proposed Bill, we
took their oral evidence at Bombay on the 11th, 12th, 14th
and 15th September, I959, at Madras on the 13th, 14th and
I5th October, 1959, and at New Delhi on the 2nd, 3rd and 4th
November, 1959. The draft was again revised in the light of
the evidence given before us and was ﬁnalised l".I_\-' the
Commission at its meetings held on the 22nd and 23rd April,
1960. The Report has been drawn up in accordance with the
decisions taken at that meeting.

3. Shri P. Satjvanarayana Rao has signed the Report
subject to two separate notes which are appended to the
Report. Shri Sachin Chaudhnri has also signed the Report

subject to a note appended to the Report.
281 L--1 "

(ii)
4. The Commission desires to express its appreciation of
the services rendered by Shri D. Basu, Joint Secretary, in the

preparation of the Report and by Shri P. M. Bakshi, Deputy
Draftsman, in the preparation of the Bill and the Notes.

Yours since1'eIy,
T. L. VENKATARAMA AIYAR.

~._._.,.._H_ _....p ..,.

REPORT ON THE LAW RELATING To MARRIAGE
AND mvoscs AMONGST CHRISTIANS IN INDIA

CONTENTS
INTRODUCTION
Pi-utacn.-u=Hs
1. The need for revision . . . . . . .
2. (a) Consolidation . . . . . .
(:5) Title . . . . . . . .
3. Local extent . . . . . . . .
4. Applimtion . . . . . . .
5. Question of domicile . . . . . . .
6. Modes of solemnisation of marriages . . . . .
7. Pmoedurc for Indian Christians . . . .
8. Civil marriages . . . . . . . . .
9-14. Sacramental marriages . . . . . . .
:5---z9. Recognised Churches . . . . . . .
zo. Lioenoes to Ministers . . . . . . .
21. Registration of marriages . . . . .-
22. Conditions of a valid marriage . . . . .
23--25. Prohibited degrees . . . . . . . .
26. Age . . . . . . . , . .
Consent of guardian . . . . . . .
Guardianship . . . . . . . . .
27. Withholding of guardian': consent .,. . . .
28. B1-ide's own consent . . . . . . .
2.9. Prohibitions under Canon Law . . . . . .
3o. Danger of death . . . . . . .
31. Nullity of marriage . . . . . . .
32-.-34. Existing law under the Divorce Act, 1869
35. Marriages solemnised under existing law
36. Status of children born of voidable marriages . .
37. Status of children born of void n1s.rrisges---three views .
39. First view---Children legitimate . . . .
39. Second view--Children of bonnﬁde

meninges to inherit as
legitimate . . . . - . .

(iii)

4---1o
ICI

I0---II
11

1r--x3
I3--14
I-1"'I5

I5
I 5-16

16
16-17

17 7
17-423

18-19
19-20
go
2::

20--21

.?.1--3I

tévj

PARAGRAPHS
40. Third view--ChiIdren to inherit as lcaitimate . .
-_4I. First View not accepted . .
42. Argument in favour of second view . . .
43. Third view accepted . .
44-45. Judicial separation .
46. Capacity of wife to acquire property or to enter into contracts
after a decree for judicial separation - - - --
4?. Succession to the properties of 9. wife dying intestlte after I
decree for judicial separation . . . . .
48. Divorce . .
49. Grounds of divorce
5o. Provisions in other enactments
51. Ad leery
52. Leprosy .
53. Refusal to consummate marriage
54. Desertion
55-56. Cruelty
57. Imprisonment
58. venereal disease
59. Judicial separation and non-resumption of on-habitation
60. Renuneiation 6 . . .
61. Consent .
62. Artiﬁcial insemination .
63. Conversion
64. Joinder of aduiterer or adulteress in actions founded on
. adultery . . . . . . . .
65-66. Damages for adultery .
67-63. Settlement of property . .
6-9-70, Iurisdiction . .
71. Forum . . . . .
72-73. Course adopted as to iurisdict-ion . . .
3'4. Course adopted as to forum .
75. Matrimonial tribunal . . . . . . .
76. Decisions of ecclesiastical authorities .
77.-73. Decree nut' and decree absolute .

Pass:
2:.

22--23
33
13-44

24-25

25-26

26----27
2?
2?'
27
28
23
23 ---29
29
29
3o
30
3o
3o--3t

3?-38
33
38-40

(vi

PARAG-RAP]-IS

79. Conﬁrmation by High Court . . . .
King'; Proctor - . . . .
80. Minor changes . . . . . .
81. Appendices . . . . . . . . .
APPENDICES

APPENDIX

I.--Showing the recommendations cf the Commission in the
form of a draft Bill . . .
(There is an index at the beginning)

. . 1

APPENDIX II.----Notcs on clauses . . . . . . .
APPENDIX III.--Compa1:at.ive Table . . .
Am-END]: IV.---List of witncsscs examined by the Commission .

'APPENDIX V.--Recomlnendations in respect of othcr Act: .

PAGE!
40
4o
4::
41
43-33
84-130
131'-V3'?
I33-*1 39

I4o--16t

REPORT ON THE LAW OF CHRISTIAN MARRIAGE AND
DIVORCE

1. The law relating to divorce amongst Christians 15 Tm'':fs$:3 5"
contained in the Indian Divorce Act, 1369, and that relating
to marriage in the Indian Christian Marriage Act_ 1872.
Both these enactments are based on the law as it then
stood in England. Since then considerable changes have
taken place in the social conditions both in England and
in India. With a view to adjusting the law to those changes,
the British Parliament has enacted a number of statutes
on the above topics. culminating in the Marriage Acts,
1949, and 1954, and the Matrimonial Causes Act, 1950, In.
India, however, the law as originally enacted in the
statutes of 1869 and 13'f2 has remained practically un-
changed, and the criticism that it has become antiquated'
and to some extent obsolete is well-founded. The need'
has thus arisen for enacting a law on the topic of marriage
and divorce such as will be suitable to the present condi-
tions. Indeed private Bills on the subject were introduced'
in Parliament, and the question of revision of the law on

the subject has since been referred by the Government to}
the Commission.

We invited suggestions from all persons interested in'
the matter. The response was large, and written renre--
sentations were received from dignitaries of the Christian
Church. reoresentatives of Christian associations. members
of the Christian community. Bar Associations and Judicial
Officers. Special mention must be made of two draft
Bills which were nrepared and sent to us, one by the
National Christian Council, Nagpur, and the other b_v the
Catholic Bishops' Conference, India. It may be mentioned
that in England, a Roval Commission was anpointed in 1951
to "inquire into the law of England. and the Law of Scot-
land concerning divorce and other matrimonial causes and
to consider whether any changes shall be made in the law
or its administration". The report1 of the Commission
contains valuable discussion on several problems, which
arise for our decision. In the light of the above materials,
we prepared a draft of the Law on marriage and matri-
monial causes and had it circulated for opinion. and in
answer thereto, we received quite a large number of sug»
gestions and comments. Some of the correspondents
desired to make oral representations and in view of the
imnortance of the subject, we acceded to this suggestion
and took their evidence at Bombay, Madras and Delhi.
_ e names of witnesses who were so examined are set out
in an Appendix". The draft was then ﬁnalised by us after

_ IREPGFT of the floral Commission Marriage and Divorce, 19;,
(Grad. 9678).

"See Appendix IV.

(51) Conso-
hdation.

(la) Title.

Local extent,

taking their evidence into consideration and the same is
annexed to ibis report.

2. Under the present law, there are two statutes, one
dealing with divorce and another with marriage. It would
obviously be advantageous to have one comprehensive code
dealing with both the branches of the law; and that is the
View which has generally found favour with the com-
munity. The Parsi Marriage Act, 1936, the Special
Marriage Act, 1954, and the Hindu Marriage Act, 1955,
deal, all of them, both with marriage and with matrimonial
causes in one enactment, and that is the pattern which we
have adopted.

The proposed Act accordingly covers the ground
traversed by the Indian Divorce Act, 1869, and the Indian
Christian Marriage Act, 1872_ and it has been termed the
Christian Marriage and Matrimonial Causes Act. We have
omitted the word "divorce" in the title, because the Act
deals not only with divorce, but also with other kinds of
actions such as nullity o:E marriage, restitution cf conjugal
rights and judicial separation. It will also he more satis-
fying to sentiment to avoid the word "divorce" in the title
to a law on marriage.

3. We shall now discuss in detail the main points on
which the law requires revision. The first question that
has to be considered is as to the territories to which the
proposed law should apply. We have provided that it
should extend to the whole of India except Jammu and
Kashmir. At present the Indian Christian Marriage Act,
18'i'2, has no application to the areas of the State of Travan-
core---Cochin_ and Kashmir, though. it should be noted, the
Indian Divorce Act. 1869, was made applicable to the whole
of India except the State of Jammu and Kashmir. A
siiggestion has been made to us that the proposed legisla-
tion should not extend to the erstwhile Travancore--
Cochin State, which has now become merged in the State
of Kerala. and the main ground that has been urged in
support of it is that the Syrian Christians who form a
considerable proportion of the oopulation in that State are
governed by a customary law of marriage, which is ancient,
and differs from that in force among other Christian com-
munities, and that that should not be disturbed. But an
examination of that customary law does not reveal any
such radical diﬁerencc as would iustify a separate treat-
ment. Under that law. parties who intend to marry give
notice thereof to the clergyman, who publishes it in two
successive meetings of congregations and if there is no
obiection, the marriage is solemnised. If there is any
ohiection. then the matter is enquired into by a Bishop,
and his decision is ﬁnal. No marriage is solemnised if the
parties are within prohibited degrees of consanguinity or
afiinitv. That, in brief, is the customary law. and that
does not differ in substance from the mode of solemnisation

-.4-....,au.-c-st.-v-u. 1?, ._

"be solemnised under

in Roman Catholic Churches, and there is therefore no
sufficient justification to exclude the territories of the
erstwhile Travancore-Cochin State from the proposed Act.
We should add that though the suggestion for exclusion of
Travancore-Cochin from the Act was made in the written
representations, no
port the suggestion. The position regarding the State of
Manipur is similar. The Indian Christian Marriage Act,
IBTE, does not apply to it_ but the lndian Divorce Act, 1859,
does. It is desirable that e'_i:~: far as possible there should
be one uniform law for all Christians in India. We have
accordingly recommended tha.t the proposed legislation

should apply to the erstwhile Travancore-Cochin State as"

well Manipur.

4. One of the questions agitated before us is, whether Application.

the provisions of the proposed Act should govern marriages
even when only one of the parties belongs to the Christian
faith at the time of the marriage. Under section 4 of the
Indian Christian 1-Iarriagii Act, 1872, the marriage has to be
solcmnised in accordance with the provisions of the Act
even when only one of i:'ne foersons is a Christian. It has
bcen suggested before us that the law in this respect
requires modiﬁcation. Section 5 of the Hindu Marriage
Act, 1955, expressly provides that the Act
marriages between Hindus. Section 2(6) of the Parsi
Marriage Act, 1936, deﬁnes a marriage as one between
Parsis. Conformably to this. "husband" and "wife" are
deﬁned in section 2(5]- and section 2(9) respectively as
meaning a Farsi husband and a Parsi wife. Thus the
scheme of legislation has, latterly, been that laws govern-
ing marriages in a articular religious denomination should
have application onEly when both the parties to the marri-
age belong to that religious denomination. The wit-
nesses. who pressed for applying the Act to marriages even
if one of the parties thereto was a Christian while the
other was not, maintained that if the non-Christian party
was willing to have the marriage solemniscd in a Church
in accordance with the rites and ceremonies of that. Church,
there was no reason why the law should refuse to recog-
nise it. But clearly such a marriage cannot, in any sense,
be regarded as sacramental. In this connection, reference
should be made to the Special Marriage Act, 1954, which
is anplicable to marriages between persons belonging to

- different faiths, and it would be quite logical if marriages

between persons both of whom are Christians are alone
brougl . within the purview of the Act, while marriages
in which only one of the parties is a Christian are left to
the provisions of the Special
Marriage Act, 1954. Further, if a marriage between
persons belonging to different faiths is allowed to be
solemnised under the provisions of the proposed Act, that
would lead to various complications. If, for example, a
Christian male marries a Hinclufemale, the succession to
their properties would be governed as regards the husband

281 L--2

applies to -

witnesses appeared before us to sup- l

ti') Patmrn

followed by

other enun-
Lriu.

by the Succession Act. and as regards the wife by the
Hindu Law. The result would be anomalous and inequit-
able. Difficulties might arise as regards the rights of the
parents to the custody of children in case of dispute. The
normal law awarding to the father the right of guardian-
ship over children after a particular age might work
hardship on the mother. We consider that the proposed
legislation should apply only When both the parties there-to
are Christians. This View has also the support of a consi-
derable body of Christians.

5. The next question which falls to be considered is as
to the application of the proposed legislation to marriages

'sole-mnised in India, when one or both the parties thereto

are oi foreign dorniei1e_.- and on that there has been diﬁ'er-
ence of opinion amongst us. It has been strongly urged
that the legislation should be limited to marriage between
persons of Indian domicile because, according to rules of
private international law_ when there is a cL~ntlictof1=-r'--'s---
and that is bound to be when the parties to the II}aI'I'l"_§J_j€
have one or both of them a foreign dornieile--, the validity
of the marriage will have to be judged so far as the cana-
city of the parties is concerned by the law of their dorni-ile
or Ian: domicilii and that to the extent that the proyiosed
legislation prescribes conditions for the valin.iit_v of such a
marriage it will be oopc=sed to rules of nriv:-ate interna-
tional law. Therefore, it is said. the pres:-not lea?sEat'on
should be limited to marriages 'rsnctween persons of Indian
domicile.

It may be s'_.atci:i, at the very outset. that in giro:-"ding
that it is to apply? to ail marriages soletnmrged India.'
the proposed legis':at'on follows the pattern ar.iooted in
other countries. The Tuiferrfaige Act, 15]-it}. applies to all
marriages solemnis-ed in England, even 1.hoLi§~ih the partcs
thereto are not British by domicile, and _nro=.-isions'
prescribe not merely the form to he observed but also the
conditions of a valid marriage. That is also the scope of
the marriage laws in the American states. and in all
English speaking countries. Indeed no instance has been
brought to our notice where a sovereign state has enacted
a marriage law limited to persons domiciled in the state.
Conformably to this pattern, the Special it-iisrrfage Act,
195-1, and the Hindu Marriage Act, 1955, apply to all
marriages solernniscd in India. And what is the ground
on which our Parliament should now retreat from the
position taken by it in those enactments and by all
sovereign states in the marriage laws and decline to
legislate for marriages solemnised Within its territories,
when one or both the parties thereto. have a foreign
domicile'? That ground is stated to be the rule of pr:'-vate
international law, that the validity of a marriage should,
in case of eonﬂict, be decided according to the law of

'Vials sections 1:, 2 and 3.

'K:-vﬁ

domicile, and not the law oﬁ the country where the
marriage was celebrated. The answer to this is first that
as a statement of the rule of private international law, the
above proposition is too broad, and second that whatever
that rule, it operates not to encroach on grounds occupied

by municipal law, but to supplement the grounds which

should be complied with before the marriage can be 'held
to be valid. Both these statements W111 now be €'XP1B11'lE'd-

The rule of private international law generally accept- {ii} Rule of
ed, no doubt, is that where there is confiict of personal f1'1V"FmJ
laws the validity of a marriage should be determined as "mm

'regards forms and ceremonies according to lea: loci cele-

b'ra.ti.oni.s and as regards capacity of the parties according
to tea: domicilii. But this rule, it must be mentioned, has
come to be recognised only in quite recent times, and
cannot, even now, be said to command unqualiﬁed accep-
tance. The view which originally held the ﬁeld was, that
the validity of a marriage both in respect of capacity of
the parties and of the forms to be observed was governed
by the law of the country where the marriage was cele-
brated. That is onthe principle that the validity of a
contract must be judged by the tea: loci contractus and that
marriage is a contract which. it. concluded where it is
solemnised. On this ground, it was held in Dalrympte v.
Dali-ymple' that the validity of a marriage solemnised in
Scotland between an English domiciled husband, and a
Scottish domiciled Wife was to be determined in accord-
ance with Scottish law. In 1851, came the decision in
Brook v. Brook". There the question was as to the validity
of a marriage solemnised in Denmark, between persons
having English domicile. The marriage would be void
under English law on account of prohibited relationship,
but valid according to Danish law. It was held that the
prohibitions imposed by English law rested on nationality,
and that English subjects were subject to these prohibi--
tions wherever the marriage might be celebrated. Thus
the rule in Dalrymple v. Datrymple was departed from.
Then came the decision in Sottomayo-r v. De Borros
(No. 1)". There the question was as to the validity of a
marriage solemnised in England between persons, both of
whom were assumed to be of Portuguese domicile; and it

_ was held that the marriage was void, as it was prohibited

by the law of their domicile, though it would be valid
according to the law of England. It is this decision which
forms the foundation for the rule that as regards the
capacity of the parties to enter into a marriage contract it
is lea: domicilii that is determinative and not the less loci
celebmtionis. This statement of the law has generally

E1811) 2 I-Iagg. Cons. 54.
E1861), 9 I-LI... Gas. 193.
T1377): 3 P.D. I.

{:'-

been accepted as coriuzt', though its correctness has been
assailed in subsequent decisions".

£231') Doctrine It should however be mentioned that there is also
Of 1".'1~""" another view, which has the support of a large body of
f1':;:::1 opinion in England. It is that the validity of a marriage,

(in) Position

where done _
party 0l'.ElI-
ciled in the

country.

as regards the capacity of the parties, should be judged
not by reference to the domicile of the parties prior to
their marriage but by reference to what is called the
matrimonial domicile, that is to say, the law of the place
where the}: intend to set up their marriage home. That is
the View taken Cheshire in his 'Private International
Lavf" and that is also the recommendation made by the
Royal Commission on Marriage and Dix-'oroe"'. The trend
of the recent authorities in England has been in favour of
this View". The result of the authorities is thus summed
up in Graveson on 'Conflict of Laws":

"The essentials of a marriage are governed by the law
of the domicile oi each party at the time of marriage (or
just possibly by that of the intended matrimonial residence
of the parties). tshile the formalities are governed exclu-
sively by the law of the place of celebration applicable to
the particular type of marriage celebrated."

It will be thus seen that even the rule that the validity
of a marriage should be judged as regards capacity of the
parties by the law of their domicile is still far from being
settled.

But it is sufﬁoient for our purpose that even accepting
the law as laid down in Sottomayor V. De Bar-ros (No. 1)'.
an exception to it has been recognised when one of the
parties to the marriage is domiciled in the counlry, where
the marriage is solemnised. In Sottomayor V. De Barres
(No. 2)", which represents a later stage of the litigation in
3 P.D.l, the question arose as to the validity of a marriage
solemnised in England between two persons, one of whom
had the English domicile and the other the Portuguese
domicile. The marriage would be bad according to the
Portuguese law but valid accordzng to English law. It was
held that as one of the parties had the English domicile,
it was the law of England where the marriage was
solemnised that applied and that. according to that law,

'Vida Dii:ey's ' (jonﬁict of I.si.=.r~: '_, 7111 edn., Rules 31 and 32,
249 and 257
p. 91.

'Vida .'§or.romcag,-or i.-. De Barres {I879}, L.R. 5 P.D. 94 and Ogaicrc v.
Ogden (roost. p. 46. '

"See the dlSELl5Sl('I11 at pages 305 to 312, of the 5th edn.
'Vida Cn-id. 9678, p. 395.
51/z'a'e the observations of Lord "Greene M. R. in De Rene-2-z'ile V. De
Rerreeﬂle (1943)., 1 A.F..R. 56 at p. 61 ; Carey 1.'. Casey (I949), 2 A.E.R. no.
'3['d edition, p. [31,
K1877), 3 l'.D.1.
3111879) L.R. 5. RD. 94.

pages
; Halsburj.-'s Laws of England, Lord Simonds edition, 'Vol. 7,

it was valid. It is said that this decision is opposed to
principle, but it has stood and has been accepted as good
law, and as laying down an exception to the rule in Sette-
mxiyor v. De Barres (No. 1) '. On the rule enunciated there-
in, the proposed legislation can properly lay down the
conditions of a valid marriage, even as regards capacity.
if any of the parties thereto had the Indian domicile. And
even when both the parties there-to have foreign domicile,
there is, as already stated, a large body of opinion in favour
of the view that if they intend to set up their matrimonial
home in the country where the marriage is celebrated it is
the law of that country that will govern even in respect
of capacity to enter into marriages. Thus according to
rules of private international law, the validity of a mar-
riage solemnised in India, will be governed by our law,
not merely when both the parties thereto are of Indian
domicile, but also when even one of them is of Indian
domicile, and, it may be, even when both are of foreign
domicile, if they intend to adopt India as their matrimonial
home. No question of conflict of laws could arise in the
above cases.

Even as regards the area wherein there might he ate) Compe-
conﬂict of laws, the question is whether the State legisla--"=11°° Pf 3
ture should withdraw when it comes into conflict w'ithf§'Vi:T1:t1,3,':E
rules of private international law. Now the law is settled 3' '
beyond doubt that it is competent to the legislature of a
sovereign state to enact laws so as to bind all persons
within its territories, irrespective of their domicile, and
that such a legislation is not liable to he questioned on the
ground that it is not in accordance with rules of private
international law. In enacting the law, the sovereign legis-
lature may and generally does take into consideration the
rules observed by other nations but it is ultimately for
the-'legislature of that State to decide what the law should
be, and when it comes to a decision and enacts a law, that
is supreme. Dealing with the very question of conflict of
laws arising by difference in domiciles, the court observed
in Sottomayor v. De Bari-os'-':

"This statute and all the marriage Acts which have since
been enacted are general in their terms, and therefore
applicable to, and bind, all persons within the kingdom. In
the weight}; language of Lord Mansﬁeld, 'the law and
legislative government of every dominion equally ailects
all persons and all property within the limits thereof, and
is the rule of decision for all questions which arise t'nere:'
Campbell v. Hull."

'Vida exception 1 aL'p. 264 of llicefs 'Conflict cdn;
I-Ialsbury's Laws of England, Vol. 7:, 11. 91, para. 165.

111879) LE. 5 RD. 94, at p. Ions; See also Schmitthoff,' The English
Conflict of Laws ', 1954 edn., pages 6-7.

3Cowp. 2.08.

(F5) Dicey':

VIEW.

(oh) Gnu-
tnn'I view.

What, then, is the effect, it may be asked, of the rule-
that in case of conﬁict, the validity of a marriage, as regards
capacity, should be determined according to the law of
domicile'? Its effect is, not to give validity to marriages
which are void according to less loci r-elebrctionis; for that
would be to encroach on the domain of a sovereign legis~
lature, but to render void marriages prohibited by lea:
domicilii, notwithstanding that they may be valid accord-
ing to lea: loci celebrationis. In others words, lea: domicilii
operates not in supersession of tea: celebrationis, but in
conjunction with it, with the result that such marriages, in
order to be valid, must comply with both the lex celebrc»
tionis, and lea: domicilii.

That is the view expressed in the latest edition of
Dicey'-s 'Conflict of Laws'. After setting out in Rule 31
the general principle that the validity of a marriage as
regards capacity of parties should be 'determined in accord-
ance with their respective domicile, the learned Editors
state an exception to it in the following terms'!:---

"A marriage is, possibly, not valid if either of the
parties is, according to the law of the country where
the marriage is celebrated, under an incapacity to
marry the other."

It is then observed that this is the view taken by
Westlal-re, Dicey and Chesire. Then we have the following
observations : --

"Accordingly, it is conceived that no marriage cele-
brated in England would be held valid by an English
court if the parties were within the prohibited degrees
of English law or if either of them was under the age
of sixteen, even if the marriage was valid by the law
of their domicile."

Then follows a reference to the decisions which support
the above view.

Discussing the inter-relation in case of conﬂict between
law loci cetebrctiomls and Ian: domicilii, with reference to a
marriage solemnised in England, Gravcson states the
position thusz:

"The overriding eﬁect of English law in
respect is to maintain minimum, not maximum, Eng-
lish standards of essentials of marriage, so that provided
the English standard is satisﬁed, reference will still
be made to the tea: domiciléi. to ascertain the existence
of capacity, for example, to perform an act in England."

In the same manner, a marriage solemnised in India

may be required to satisfy certain conditions which We-

'Dicefs ' Conflict of Laws ', Seventh Edition, 1:. :56.
,"'T'hc Conflict of Law' by R. H. Graveaocn, 3rd edn., p. 131.

this

hf .. - .V (V

_ consider essential, and then lex clomicilti may be left to

operate on it.

It will be material for the purpose of the present dis-
cussion to note that according to rules of private interna-
tional law, the question whether a marriage is void or void-
able is to be determined in accordance with lea: loci cele-
hrotiontsf and that as under the proposed legislation the
only two grounds on which a marriage will be void are
the existence of a spouse by a lprevious marriage and the
parties being within certain pro ibited relationship, and as
the list of prohibited relations has been framed with due
regard to other systems of law and is not stringent, a con-
ﬂict based on those grounds, though theoretically possible,
is practically speaking unlikely.

It remains to consider whether there is anything in sec- (viii) Sectfu

tion 83 of the Indian Christian Marriage Act, 18'?'2, which 33 'if F56
rnilitates against this view. That section provides that Chm-""'
nothing in the Act renders valid a marriage which is for- Am 1
hidden by the personal law of the parties thereto. It is said
that this is a recognition of the principle that the validity of
a marriage is to be judged not by lea: loci celebratiomls, but
by lea: domicilii. But this is to ignore alike the object
and the true scope of section 53. While the course of
legislation on marriage in England was to prescribe both
the conditions of a valid marriage and the forms to be
observed in its solemnisation, the Christian Marriage Act,
1872, deliberately departed from this scheme and restricted
itself to the latter, leaving the former to be determined
by the personal law of the parties. The reason for this
was, as stated by the Select Committee' on the Native Con-
verts' Dissolution of Marriage Bill, 1865, that in India a
considerable proportion of the Christian population was
Roman Catholic by persuasion, and it was not considered
desirable to impose on them conditions which had been
evolved in the ecclesiastical courts forming rt of the
Established Church of England. It is to give "(act to this
that section 88 was enacted. Now that the proposed legis-
lation is to be comprehensive and to deal both with con-
ditions of a valid marriage and modes of solemnisation
thereof, we must abandon section 38 and fall back on the
pattern of the English statutes, and on the latest of then;
the Marriage Act, 1949.

Nor does section 88 on its true construction lend any
support to the View that the marriage law of a State should
be limited to persons domiciled therein. It has not in
mind any question of conﬁict between lex loci celebra-
tionis and lax domicilii. It merely leaves the question of
validity of marriage to be determined by the personal law
of the parties, and that, of course, is something different
from the law of domicile. The contrast in section 88 is

wide De Rmwille v. or Rerieville (1943) : A.E.R. 55.
'Guam-.'of India, Ian. zo, 1866, p. :63, pan. 7.

'not between the lam loci celebrationis and the lea: domicilii,

(ix) Conclu-I
sion.

Modesto!
solelnnisation
afmlrriagcs

but between one system of personal law and another, appli-
cable to perso-ns having the same domicile.
Moreover, the section only says that nothing in the Ac
shall render valid a marriage Eorbidden by the personal
law of the parties, which is merely one other application
of the doctrine that the conditions as to the validity of a
marriage prescribed by Iex loci celebrationis and by lea:
domicilii, operate both cumulatively and that a marriage
which is invalid under the personal law of the parties does
not become valid because it complies vaith the requirements
of the Act.

We, therefore, recommend that the proposed legislation
should apply to all marriages solemnised within the terri-
tory of India whatever the domicile of the parties thereto,
and that it should leave no vacuum therein. And in this
we follow not merely the scheme adopted in the Special
Marriage Act, 1954, and the Hindu Marriage Act, 1955,
but also the pattern of imilar legislation in England,
which, being general, binds, as observed in Sottomayor v.
De Barros (No. 2)', all persons within the kingdom. And
in this we are no more disregarding rules of private inter-
national law than the very countries where they have been
developed.

6. Coming next to the topic of solemnisation of mar-
riages, section 5 of the Indian Christian Marriage Act, 1372.
enumerates ﬁve different modes in which marriages could

i be solemnised. It has been pressed before us that the law

as laid down in the section is complicated and cumbersome
and that it should be simpliﬁed by prescribing one mode
of solemnisation for all marriages between Christians in
India. We agree that the ultimate goal should be to enact
one law applicable to all Christians', but, as will presently

5 appear, it is not feasible, in the conditions as they exist, to

(I)
mt Indian
Eaatlstians.

enact such a law, and it is now possible only to make a
near approach to it.

'F. Dealing with the ﬁve modes of solemnisation men-
tioned in section 5, subsections (1) to {3} thereof contain
provisions applicable, in general. to marriages between
Christians, while sub-section (5) 15 limited to marriages be-
tween Indian Christians for which a special procedure is
laid down. The reason for making this distinction is stated
to be that the more formal and elaborate procedure for
solemnisation of marriages obtaining in the Established
Churches was unsuitable to Indian Christians, many of
whom were considered not suﬁiciently literate. But this
reason, even if it was correct in 1372, when the Indian
Christian Marriage Act was passed, has long ceased to be
so, and we think that there is no need at the present day
to retain the special procedure for solemnisation of

1L.R. 5 P.D. 94.

"1.

marriages between Indian Christians. We have,' therefore.
omitted the special procedure prescribed in section 5(5).

8. As regards the other four modes of solemniaation of :3 C.1V1E-:15
marriages mentioned in section 5. they can be divided into ""33 '
two categories--civEl and sacramental. Section 5(_4} pro-
vides for marriages being solemnized by or before the Re-

_ gistrar appointed under the Act. That of course. a civil

marriage, and that has been retained. There was a sugges-
tion that sinee all civil marriages could now be performed
under the Special Marriage Act, 1954, there was no need
to recognise such a category in the proposed enactment,
which might be limited to sacramental marriages. But the
representatives of the Christian' community are strongly
opposed to this, as marriages solemnized under the Special
Marriage Act could be dissolved by the consent of parties,
and that is against their notions and sentiments.

9. Coming next to sacramental marriages, the scheme (£2?) Sacra-

of the Indian Christian. Marriage Act, 1872, is this. Section 'Ti':'1::1 '"31"'
5(1) provides for marriages being solemnised by any per-I 3 '
son who has received episcopal ordination, and this head
will comprehend all marriages performed according to the
rites of the Church of Rome and the Church of England.
Section 5(2) provides for marriages being solemnised by
clergyman of the Church of England. Under Section 5(3).
marriages can be solemnized by any minister of religion
who is licensed under the Act. Now the question is, whe-
ther it is possible to have one category of what may be
said to be sacramental marriages as distinguished from
civil marriages.

10. The strength of the Christian population in India

_is stated to be about ten million, and the evidence is that

they belong to different Church organisations. Nearly half
the number is of the Roman Catholic persuasion, and that
-forms a distinct unit. Then there are those who were
members of the Indian section of the Anglican Church prior -
to 192?, and, on the constitution of that section as a distinct
Church under the Indian Church Act, 1927', under the
name of the Church of India. Burma and Ceylon, became
members of that Church. Then there is the Church of
Scotland which seceded from the Roman Catholic Church
in 1560, and after throwing oft' episcopalism became in
1633 a Presbyterian Church. Then there are the Presby-
terian Churches of America and of England. the Lutheran
Church, and several congregational Churches. The evidence
discloses that the Protestant Churches functioning in India
number several hundreds, each of them having its own
followers. There are substantial differences in the rites
and ceremonies relating to solernnisation of marriage in
those Churches. The question is, whether it is possible to
bring all these Churches under one category. It was sug-

gested that it would be possible to introduce uniformity,
_;_;n__ -.ﬂ_. ﬁ_. .ﬁ__n,_____

117 and 18 Geo. 5, c. 40.

if the law provided that no minister of religion, whatever-
the Church to which he might belong, could solemnize a
marriage unless he was licensed by the State, and also
prescribe the rules for solemnisation to be observed by
them.

11. Simple and attractive as this suggestion might seem,
there is considerable diﬁ-iculty, legal and practical, in giving
effect to it. Two of these Churches, the Church of Rome,
and the Anglican Church and its successor. the Church of
India, Burma and Ceylon, have rules for solemnization of'
marriages which are ancient, deﬁnite and well-designed to-
prevent clandestine or prohibited marriages. These
Churches are religious denominations, and have a constitu-

tional right to manage their own aﬁairs in matters of reli- 7

gion. It has been held by the Supreme Court' that religion
includes not merely matters of doctrine and belief but
also practices which are regarded by the community as
part of its religion. These Churches cannot, therefore, be
compelled to adopt rules for solemnization of a marriage
different from those sanctioned by their usage. It follows,
that we have to recognise two diiferent modes for solcmni-
zation of marriages, one for ministers of established
Churches and another for other ministers of religion. The-
former must be left to be governed by the rules and usages
of the Church wherein the marriage is solernnized, and
the latter will have to be regulated by statute.

12. Then, as regards the persons who are entitled to
solemnize the marriages in the Church of Rome and in the
Church of India, Burma and Ceylon, the ministers derive
their authority from episcopal ordination. And a provi-
sion that they should obtain license from the State might
be challenged as constituting the super-imposition of an
outside authority on the Church in what is a matter of
religion, and therefore repugnant to the Constitution.
Moreover, the power to grant a license carries with it the
power to revoke it. and it is a question whether such a
power can be reconciled with the episco al character of
the Church. And, legal difficulties apart. t ere is the prac-
tical inconvenience in having to license thousands of priests
all over the country. And what purpose does licensing
serve, it the solemnization is to be in accordance with the
practice of the_ Church? The rules of these Churches are
sufﬁciently stringent to maintain discipline among its
clergvmen. We therefore recommend that such Churches
should be brought under a distinct category, and that the
ministers of those Churches should, as heretobefore, 'have'
the authority to solemnize marriages in accordance with
the rules and usage observed therein.

13. Then there are other Churches, such as the Church
of Scotland, the American PresbyterianiChurch and the

1The Gommmioner, Hindu Reliﬁmo Endommmrs, Madras v. 311'
Inhshniindra Thirtha Swamior, (I954) S.C.R. 1005, Ind Sri Venkatarazmana
Dwaru v. State of Mysore (1958), S.C.R. 895. _

7;:-a.:..s_;_a.-au2.ac..y ,

_._|.

like which, though not episcopal in their constitution, have
well-settled rules as'to the appointment of ministers and
solemnization of marriages. These Churches also stand,
so far as the legal position is concerned, very much on the
Same footing as the Church of Home or -the Church of
India, Burma and Ceylon, and any provision requiring
their ministers to follow the rules of solemnisation pres-
cribed in this Act for licensed ministers, or even for obtain-
ing licenses from the State, may be open to attack. In
our opinion, these Churches also should be placed in the
same category as the Roman Catholic Church or'- the
Church of India, Burma and Ceylon.

14. Besides these Churches, if new Churches are form-
ed, and they frame their own rules for appointment of
ministers and for solemnization of marriages, those
Churches also will have to be accorded the same status as
is enjoyed by the Roman Catholic Church or other existing
Churches. The result is, that all these Churches which can
be said to form religious denominations will form a cate-
gory of their own, with the right to follow their own rules
as to solemnization of marriages. These Churches have
been termed by us as "recognised Churches". Where, how-
ever, parties to a marriage do not belong to any recognised
Church, we have to provide for solemnisation of their
marriages by ministers licensed by the State and to pres-
cribe the procedure to be followed by them in solemnizing
marriages. Thus sacramental marriages must necessarily
fall under two categories, (i) those solemnized by minis-
ters of recognised Churches, and (ii) those solernnized by
ministers licensed by the State.

15. That leads us on to the question as to which of the Recagniuec

Churches are to be recognised. There is no difficulty so
far as the established Churches, such as the Roman Catho-
lic Church, the Church of India, Burma and Ceylon and
similar Churches are concerned. The difficulty arises with
reference to other Churches, whose number is said to be
legion. It appears from the evidence that there is a move-
ment among several Protestant Churches to merge them-
selves into a single Church. In 194?, the four southern
dioceses of the Church of India, Burma and Ceylon united
with the Wesleyan Methodist Church and the Scottish
Church of South India to form a new Church called the
Church of South India. It is said that there is a similar
movement for union among the Protestant Churches of
North India. If that fructiﬁes, the task of recognition
would, to that extent, be rendered easy. But it is admitted
that there are several Churches which are functioning as
independent units, and, on the materials before us, it is not
possible for us to say which of them deserve recognition.

16. The evidence also discloses that new Churches are
in the course of formation and expansion, such as, for
example, the Indian National Church. This is said to have
been started in 194'? with the object of establishing a

Licenses to
Ministers.

national Church, which will be wholly free from the in-
ﬂuence of foreign Churches and missions, which will pro-
pagate the Christian faith on lines suited to Indian notions
and traditions, and in which the ministers of religion would
be Indians. This Association has been registered under
the Bombay Public Trusts Act, 1950, and is stated to have
a following of about 50,000 persons.

17. Now, what are the criteria which should be taken
into consideration before a Church is recognised for the
purpose of the proposed Act? They are that the Church
must have a sufficient following and strength to justify
recognition, that it should have 3 place of worship, that
there should be, in the Church organisation, a' proper autho-
rity to appoint and control ministers, that the Church must
have clear and deﬁnite rules as to solemnization of mar-

_riages such as will prevent hasty; and clandestine mar-

riages, and that it should be registered in accordance with
the law relating to registration of societies. These are,
in general, the factors that would be relevant in deciding
whether a Church should be recognised under the proposed
legislation.

18. Then there is the question as to the authority which
is to decide whether a Church should be recognised. We
have provided that the power of recognition should be
vested in the State Governments, and that they should be
guided by a committee consisting of Christians not ex-
ceeding ﬁve in number. It will be the duty of the com-
mittee to examine applications for recognition in the light
of the considerations set out above. and recommend to the

__.__.._ _..=- -.. sun.

State Government whether the Church should be recognis-- '

ed. and it will be for the State Government to come to a
decision on the recommendation of the committee.

19. To summarise the result. marriages can, according
to our recommendations. be solemnised in three modes;
(i) by or before the Marriage Registrar-eand that is a
civil marriage; (ii) by ministers of recognised Churches;
and (iii) by ministers licensed by the State----the two latter
being sacramental marriages; religious denominations hav-
ing clear and definite rules for solemnisation of marriages
by ministers constituted under the rules of the Church
should be classed as recognised Churches: a committee of
Christians should be constituted to recommend to the Gov-
ernment which Churches should be recognised; and the
State Governments should have the power to grant or
withhold recognition on such recommendation.

20. As regards licenses to ministers of religion. some of
the witnesses insisted that the Government should issue
licenses only to Indians. gs they are likely to understand
Indian customs and manners better. But if the parties do
not belong to a recognised Church. it is only Indian minis-
ters who would ordinarily solemnise such marriages, and
there seems to be no necessity to make it a rigid rule. The

man man-

system of lice rising

opinion was also expressed that the _
and that marriages

ministers should be totally a'c-olished '
should be allowed to be solemnized, as among the Hindus
and Muslims, by priests selected by the parties. This '1S
wholly unworkable. The system': oi' marriage ainone,' Hin-
dus and Muslims has evolved on diiterent lines, and can-
not be ﬁtted in with the scheme of solemn1zat..I.on among
Christians.

21. Though it
to bring all sacramental rn

has not been uossible. as alt»:-azly stated,
arriagges under one :ate,e'or;.r, we
have nrovided that all ministers of religion should. after
solemnizing a marriage, enter it in a book kept for the
pnL';Jo:.=.e and send r:;i,'.=;y thereof to the Re_r§isti":ir---G~:'.oeral.
That would iI1t'I"ridL'ce an clement of unitormi'-:;_.-' in all
sacramental '

22. We shrill now take no the o,uestion of conrliiwns of
a valid rnarriase. The Inriian fjilirislian Pu'l.arr':-"--- ."-.ct.
1,8'?2, deals exclusively with the topic of solemn '
marriage, and lr-at-es the rcrp-_iisit-:= ot". a valid 2:
be determined in :1ccoi:danr,., with the 'personal. l'
parties. That has '.nt.rodi:ced an elerncr:.t of uncc-rlainti,-' in
the law. which. it is desiratfc, shoiild be rcmovsda. .-''*.s the
object of the r_""'*:=.",-se-"l l"",'_'f:j*ElE'.lLl'".I'1 is to codify tli-'-2 l.'~".'-I re-
lating to Christian ms.rriagcs, we consider that it should
also prescribe the conditions on which a valid marriage
could be contracted.

23. One of the conditions of a valid marriage under the
proposed law is that the parties shoulcl rot be "within pro-
hibited relationship unless the custom governing each of
them permits of a marriage between the two." We have
set out' (i) the relatio-ns who cannot be married by a man
and (ii) the relations who cannot be married by a woman.
In framing this list, we have examined the lists appended
to the {English} Iblzirriage Act. i949. and the Soecia.l Mar-
riage Act, 1954, and the provisions of the Hindu Marriage
Act, 1955. and we have further taken into account the
sentiments of the Christian community; of this country in
the matter. There is one aspect of this question which
may be elucidated. In the list as originally framed by
us and included in the draft. '-.'«"nich was orculated for opi-
nion. we had included in- Part I. "sisters daiighter, brother's
daughter, mother's sister and fathefs sister". and in Part
II "brother's son, sister's son, mot.her's brother and father's
bro-ther". Objection is taken bit' the Roman Catholic
Church Witnesses to the inclusion of the alzove relations
in the prohibited lists, because, it is said, though inarriaqes
with those relations are not viewed with favour, and are
prohibited, the prohibition is not absolute and is capable
of being removed by a Papal dispensation. It was there-
fore urged that these relations should be taken out of the
lists, or, in the alternative, provision should be made for

'See Appendix I, Schedule 1.

Registration
of marriages.

Conditions
of a Valid

marriage.

1'1'ohibitod
degrees.

, . .__.r...._.i_.--.-4'

.-ﬁgg,

rconsent of

the grant of dispensation by the appropriate authorities of
the Catholic Church. We consider that it would be inappro-
priate in a piece of legislation like this to enact any provi-
sion for dispensation by any authority, and much less by
an outside authority. But the question still remains, whe-
ther these relations should be (placed inthe list of prohi-
bited relations. Can it bersai _that marriage with these
relations is so repugnant to the prevailing notions as tolcall
for prohibition? In some communities in India, marriages
with some of these relations, as for example, sister's
daughter, and mother's brother are not unusual, and they
are valid. The fact that the Pope can issue dispensation
with respect to these marriages shows that they cannot
be very obnoxious to Christian sentiment, though they may
not be favoured. We have, therefore, omitted these rela-
tions altogether from the lists.

24. Another point which was raised with reference to
prohibited degrees, may be mentioned. In requiring as a
-condition of marriage that the parties should not be within
prohibited relationship, we have made an exception where
the custom governing each of the parties permits of such
a marriage._ Two points have been raised in connection
with this provision. One is that the exception in favour
of custom should be omitted in the interests of harmony
and purity of the home. But in this country customs as
to marriage have varied from region to region, and they
have recognised as valid marriages which are not in accord-
ance with strict rules of law. Now to enact a law which
will render them void would he to throw the society into
great confusion. We are therefore unable to accept this
suggestion, though we appreciate the sense behind it.

25. A suggestion different in its tenor is that when the
custom of one of the parties permitted the marriage, it
should be declared to be valid, even if the custom of the
other party did not sanction it. We are unable to accept
this suggestion, as marriage is a bilateral affair, and it is
oniy a custom which binds both the parties that could be
recognised. '

26. Another condition for a valid marriage under the
proposed legislation is, that "the bridegroom has completed
the age of eighteen years and the bride the age of ﬁfteen
years at the time of the marriage". Under section 60 of the
Christian Marriage Act, 18'?.?. as amended in 1952, it is a
condition of marriage between Indian Christians that the
age of the bridegroom shall not be under eighteen years
and the age of the bride shall not be under ﬁfteen years.
We have adopted this as a condition of all marriages solem-
nised under the proposed legislation.

We have also provided that where the bride is a minor,
the consent of her guardian must have been obtained. That
is because marriage, like other contracts, pre-supposes con-
tractual capacity in the parties; and as a minor cannot,

«ma .

' 17

under the law, consent to a contract, her guardian has to
act for her. On this, two questions arise for consideration:
(i) who are the persons who can act as guardian for this
purpose, and (ii) what is to happen if the guardian refuses
to consent, without just cause. On the ﬁrst_quest1on, the
witnesses are for liberalising the list of guardians, and for
including dc focto guardians also therein. We have, con-
formably to their evidence, provided for a long category of
guardians. As for including de facto guardians in the list,
we have, on full consideration, come to the conclusion that
they can obtain leave of the district court, and need not be
-specially mentioned.

' 27. Then the question is, what is to happen if the con-
sent of the guardian is withheld without just cause. We
have provided that in such cases, the permission of the dis-
trict court vvill have to be obtained before the marriage is
solemnized. At one stage, We were inclined to the view
that this provision might be limited to marriages solem-
nized by Marriage Registrars (as at present)1 or by licensed
Ministers. But the question has been raised whether such a
provision should not apply even to marriages solemnized
bf,-' Ministers of recognised Churches. It appears that in
"these cases, when consent is refused, the higher ecclesiasti-
cal authorities usually intervene and bring about a settle-
ment. We are of opinion that this is a function which per-
tains to the domain of civil rights, and more properly con-
Lﬁned to the district court. The result is, that the procedure
of resort to district court in case of refusal of consent will
glow be available for all marriages performed under the
ct.

28. Another point raised in connection with the marriage
of a minor bride is that under the Canon Law, if she is

.ovcr f .urteen years of age, her own consent must also be

obtained before a marriage could be solemnized and such
a provision should be enacted in the present law. Speaking
practically", the parents or guardians would be acting wisely
in obtaining the consent of the bride or else she might re-
fuse to go through it. But as, in law, she is incapable of
giving consent, that cannot be prescribed as a condition of
a valid marriage.

29. We may now refer to certain prohibitions to

marriage contained in the Canon law, which the Roman under cum

Catholics proposed for inclusion in the proposed law:

(1) Persons who have joined the sacred order
cannot marry. But it appears that this is an impedi-
ment which is capable of being removed by a dispen-
_sation being granted, and our policy is not to recognise
such prohibitions as conditions of a valid marriage.

(2) Under the Canon law, abduction, commission
of certain crimes, conduct violating public propriety

1S-ze section 45. Indian Christian Marriage Act, 1872.

Guardian-
ship.

;'i"g"t";;¥'*a.i":*.

GDDICIZIL

Bride'! own
oonscnt.

Prohibition

Law.

Danger of
Death.

Nullity of
marriage.

Existing law
under the
Divorce Act,
1369.

13 _

and certain spiritual relationships are also regarded as
impediments to a lawful marriage, and it is said that
the proposed law should not recognise, as valid,
marriages performed in disregard of that law. But
these impediments pertain to the domain of moral and
not positive law. and they cannot, therefore, be pres-
cribed as conditions the breach of which will render
the marriage void. This does not preclude the Church
from refusing to solemnize such marriages as are re-
pugnant to Canon law, and that is what has been pro-
vided'.

(3) In general, it is said that incapacitg-I which is
a bar to the solemnization of a marriage according to
the laws and customs of the Roman Catholic Church

should also be recognised as conditions of a valid'

marriage. For the reasons given above, we are unable
to :=cc-cpl. this.

fit]. Fli1E1ll_}'. it was suggested that under the Canon law,
when pe1'soii is in danger of dea1:h, he can validly enter
into a contract of marriage in the presence of two witnesses
wnthoui. going through the formalities of sz,-lemnisation by
the p1'ies':__ .".-nd that a similar provision might be made in
the proposed statute. But, in our opinion, to provide that
a declaration before two witnesses shnuld sulﬁce to consti-
tute a valid marriage will open a wide door to false claims
and perjured evidence. On the other hand, it should not be
difﬁcult for a dying man to send for the Registrar and have
the marriage solemn-ized before him under the provisions of

"this Act. We have, therefore, not accepted this suggestion.

31. Having dealt with the conditions of a valid marriage,
we now proceed to consider the effect of a breach of those
conditions on the validity of a marriage. In England, this
question is considered on principles applicable to contracts.
Under the general law, some contracts are void, as for
example when they are illegal or immoral, and some are
voidable, as for example when they are brought about by
fraud, in which case it is open to the party defrauded to
avoid them. This distinction has been maintained in the
law of marriages, certain grounds being recognised as
grounds for declaring a marriage void, and certain others
as grounds for annulling it. A void marriage is, under the
law, no marriage at all, whereas a voidable marriage is
good and valid until it is annulled by an order of court. In
English law, the differences in the legal consequences
between the two classes of marriages are well-st:-ttled.3 and
section 8 of the Matrimonial Causes Act, 1950, proceeds on
a recognition of them.

This stibiect is dealt with in section ':9 of the Divorce
act. 1359. Under that section, a marriage would be void if
{1} the respondent was impotent at the time of the marriage

'See Appendix I, clause 70.

'I_-Ia1sbu_ry's Laws -of England, Vol. I2, Paragraphs (420-425 3; Tolstoy
on Divorce, 4th edition, pp. 98-99.

and at the time of the institution of the suit; (ii)_the parties
are within the prohibited degrees of consanguinity or affi-
nity; (iii) either party was a lunatic or idiot at_the time of
the marriage; or (iv) the former husband or wife of either
party was living at the time of the marriage, and the marri-
age with such former husband or wife was then in force.
The section saves the jurisdiction of the court to annul
marriages on the ground that the consent thereto was
obtained by fraud or force. On general principles, those
marriages would be voidable. The distinction between void
and voidable marriages _has been adopted in the Special
Marriage Act1 and in the Hindu Marriage Act'.

33. Now the question is as to how marriages should be.

dealt with under the proposed Act, when they are invalid
either on account of breach of a condition prescribed or
otherwise. The opinion is overwhelmingly in favour of
limiting the category of void marriages within the
narrowest limits, the reason being that the children of such
marriages would be illegitimate. Agreeing with this view,
we have provided that marriages shall be void only in two
cases: (i) when either party has a spouse living at the time
of the marriage, or (ii) when the parties are within prohi-
bited relationship. Reasons of public policy require that
these marriages should be prohibited, and that is also in
consonance with the sentiment of the members of the
community. In all other cases, we have provided that the
marriages would be voidable.

34. Confornriablj,-' to the rules relating to avoidance of
contracts, the right to obtain annulment of a voidable
marriage will be available only to the party aggrieved. and
that is to be exercised subject to the conditions prescribed.

3:3. It will be seen that the scheme of the proposed Act
marks a substantial departure from that adopted in section
19 of the Indian Divorce Act, 1869, and as that Act is to
stand repealed b_v this Act,-the question arises as to the
legal incidents of marriages solernnizcd before the com-
inencomezit of this Act, when they suffer from inﬁrrnities
which will render them void or voidable under the proposed
Act. In dealing with this matter, we have followed two
principles; ﬁrst, that a marriage which was valid, according
to the law as it stood at the time of the marriage, should re-
main unsitected by the provisions of the proposed Act, and
second, that even if it was void under the existing law, it
might be treated as ooidable under the proposed legisla-
tion, and a right has been given to avoid it in those cases.
_lni_is_a marriage, when the spouse by a previous marriage
15 living, or between persons within prohibited relationship,
will be void both under section 19 of the Indian Divorce Act

'.Sec:ioi-is 24, 25 and 26.
'S«ectior1s_ II, 12 and I6.

281 L----3

Marriages
soleniniscd
under the ;
existing law.

and under the proposed Act. As, however, the Indian Chris-
tian Marriage Act, 1872 did not enumerate who the prohi-
bited relations are, whereas the proposed Act enumerates
them, it is conceivable, though highly improbable, that a
marriage between two persons, which might be bad on the
ground of prohibited relationship under the proposed Act,
might be valid if solemnised before its commencement,
having regard to the then law of prohibited relationship.
But such a marriage-will not be open to attack under the
provisions of the proposed Act, because we have provided
that a marriage solemnised before the commencement of
Act, shall not be deemed to be invalid by reason of any
provisions of the Act. Under the Indian Divorce Act, 1869,

.a marriage is null and void if (a) the respondent was

Status of
children ;
born of -'i
voidable 7.
marriages.

Status of
children born
of void ::~2:
marriages-
three views.

First View :
children
illegitimate.

impotent at the time of marriage and the date of suit, or
('0) either party was an idiot or lunatic at the time of
marriage. Under the proposed Act, the marriage would be
voidable in either of these cases, and we have provided that
the party aggrieved can move for annulment thereof. Thus
the retrospective operation of the Act will not prejudicially
affect rights previously acquired.

36. So far, we have considered the rights of the parties
to a marriage, when the marriage is void or voidable. We
have now to consider the rights of the children, if any, born
of such marriages. Where the marriage is voidable, no
difﬁculty arises. It is valid in law until a court passes a
decree annulling it, and the children born of that marriage
before a decree of annulment is passed are rightly regarded
as legitimate.

37. The problem arises only when the marriage is void.
Three views are possible as to the status of children born
of such a marriage: (i) they must be regarded as illegiti-
mate, because a void marriage has, in law, no existence, and
the children of such a marriage can only be regarded as
ﬁlius nullius; (ii) they should be entitled to succeed to
their parents, as if they were legitimate, provided the
parents had contracted the marriage bona ﬁde and without
knowledge of any impediment; (iii) they should, in all
cases, be entitled to succeed to their parents as if they were
legitimate.

38. The first view is the one generally accepted in all
English-speaking countries, and that was also the law of
England before the enactment quite recently of the Legiti-
macy Act'. In support of this view, it is said that as prohi-
bition of certain marriages rests on grounds of public
policy, it would defeat that policy if children of those
marriages are regarded as legitimate, because what largely
deters persons from contracting prohibited marriages is
the fear that the children would be illegitimate. In other
words, in a conflict between the interests of the general

'Legitimacy Act, 1959 (7828 Eliz 2, Ch. 73), section 2 (I).

public and those of the innocent offspring of prohibited
marriages, it is the latter that must give way to the former.

39. The second View recognises the force of the reason Second view:
in support of the first view, but seeks to limit it to cases §:';1;";3e°f
where the parties to a marriage deliberately break the law mamages to
and contract prohibited marriages. Where however they inherit as
are not aware of the true facts constituting the impediment, 1EsitimBT-e-
and there is no intention on their part to set the prohibitions
at naught, then, the demands of public policy are, it is said,
-sufﬁciently satisﬁed by declaring the marriage void, and
there is no need to go further and visit the consequences of
the mistake of the parents on the children. To illustrate, -
the wife marries a second time in the honest belief that
her husband had been drowned when the ship in which he
'travelled 511111: in the high seas. Likewise, two persons who
-are within prohibited degrees, contract a marriage in igno-
rance of their relationship. Public policy does not, it is
said, require that in addition to declaring the marriage
void, the children of the marriage should also be bastar-- _
dised. This principle has, it should be noticed, been accept-
ed to a limited extent in section 21 of the Divorce Act, which
provides that when a person contracts a second marriage in
'the bond ﬁde belief that the sp:.r.i.i.e 33;' the previous marri~
age was dead, then the children of such marriage would be
-entitled to succeed to the estate ti' their parents as if they
were legitimate.

It may be mentioned here that it is this '.-'lG'W that com-
mended itself to the Royal Commission on Marriage and
Divorce in England. Its report on this point runs as
follows':

"In England, if a marriage is void ab ia.i:.io, the children
of the marriage are deemed. to be illegitimate. It may be
noted, however, that before the Reformation, the Canon
"law held that the child of a void marriage was legitimate
where the defect rendering the marriage void was un-
known to one of the parties.

"Under the common law of Scotland, where at the
time of the marriage one or both of the parties to a putative
marriage was or were ignorant of the impediment to the
marriage, the children are held to be legitimate, and are
entitled to the ordinary rights of succession. The ignorance

must be of the existence of the impediment and not merely
"ignorance of the law.

"One witness suggested that the Scots rule be adopted
in England. Others advocated that to avoid hardship to
-children born of a void marriage they should always be
deemed to be legitimate. In our View no distinction can
be drawn between children who were illegitimate from

'Report of the Royal Commission on Marriage and Divorce, i955, Cmd.
@673, pp. 305 and 306, paragraplis IIS4 to 1186.

Third view:
children to
inherit as

legitimate.

First view
notaocepted.

Argument in
favour of
second view.

birth and children born of parents who had gone through:
a ceremony of marriage, both knowing at the time of' an
impediment which rendered the marriage V01d. The bCOtS

rule, on the other hand, seems to us to be sound and we-

suggest that in England, as in Scotland, children born of _a
void marriage should be held to be legitimate where it 13.
shown that one or both of the parents was or were ignorant.
of the impediment to the marriage."

It was to implement the above recommendation that the
British Parliament enacted, as already stated', the Legiti-
macy Act, 1959, providing therein that the child of a void'
marriage shall be treated as the legitimate child of his.
parents if at the time of the act of intercourse resulting in
the birth (or at the time of the celebration of the marriage-
if the marriage took place later) both or either of-the»
parents reasonably believed that the marriage was valid.

40. The third view also agrees that a marriage entered
into in disregard of prohibitions enacted on grounds of

-A public policy should be declared to be void, but seeks to

relieve the children of the marriage from the consequences'
of such a declaration on the ground that the children, being
innocent, should not suffer for the sins of their parents. It.
is suiﬁcient, it is said, that the parents are punished for
contracting a marriage prohibited by law.

41. The ﬁrst view is, strictly speaking, logical. But the-
Indian legislature has to some extent, made a departure
from it when it enacted section 21 of the Indian Divorce-
Act, 1869, conferring certain rights of succession on children
of void marriages contracted bona fide; and that having
stood as law for now ninety years, we do not consider it
expedient now to go back upon it on grounds of pure logic.
As already statedz, the British Parliament has also relaxed'
somewhat the strictness of the law _on this subject and has
recognised by the Legitimacy Act, 1959, certain rights in
children of void marriages contracted bona fide. We have,'
therefore, not adopted the ﬁrst view.

42. It is a more difﬁcult question whether we should
adopt the second or the third of the views set out above.
In support of the second view, apart from the fact that it
was adopted as law in section 21 of the Divorce Act, 1869,
it may be urged that if the third view is to prevail it would
mean that persons can with impunity defy a law based -on
grounds of public policy, and frustrate the purpose With'
which the legislature has' enacted the' prohibition.
Sympathy is undoubtedly due to innocent children of pro-
hibited marriages,,but they are not without rights under"
the law. They have a right to be maintained, and that is all
that legitimate children are entitled to, during the lifetime-
of their parents. But to enlarge these rights, and place
them on the same footing as legitimate children with right'

'See para. 38, supra.
'Paras. 38 and 39, supra.

Tie inherit, would be to abrogate the distinction between
marriage and concubinage. So long as society believes in
marriage as an institution and prescribes conditions there-
for, there must be a point at which breach of the regula-
tions must render the marriage void and the children illegi-
timate. That is the argument in support of the second view.

43. There is undoubtedly great force in this reasoning.
But, then, our Parliament had quite recently occasion to go
-into the question of the status and rights of children born
-of void marriages. in connection with two pieces of legisla-
-tion, the Special Marriageﬁct, 1954, and the Hindu Marriage
Act, 1955, and on both these occasions, it has adopted the
»third view and recognised the rights of children of void
.marriages to succeed to the properties of their parents as
if they were legitimate. Section 26 of the Special Marriage
..Act provides that where a decree of nullity is granted in
respect of a marriage which is either void or voidable, any
child begotten before the decree is made who would have
been the legitimate child of the parties to the marriage if it
had been dissolved instead or being declared null and void
'shall be deemed to be their legitimate child. Then follows
,a proviso which limits the rights of succession to the pro-
perties of the parents. Section 16 of the Hindu Marriage
Act is on the same lines as section 26 of the Special Marri-
-age Act and confers similar rights on the children of void
marriages. Now the question is, whether there are suiﬁcient
grounds for our departing from a decision taken by the
legislature quite recently on a matter which is as much

-social as it is juristic. We are unable to ﬁnd any justifica-

tion for treating children born of marriages prohibited by
the proposed legislation differently from those born of
marriages prohibited by the Special Marriage Act, 1954,
and the Hindu Marriage Act, 1955. We have accordingly
protrided that they should also be entitled to succeed to tr e
properties of their parents as if they were legitimate.

44. Under section 14 of the Matrimonial Causes Act,
1950, a petition for judicial separation can be presented on
the same grounds on which a petition for divorce can he
presented, and on certain other grounds speciﬁed therein.
That, in general, is the scheme of the Speci_al Marriage Act,
1954, and it is also provided in section 2? (1') of the said Act,
that when a decree for judicial separation is made, but the
parties do not, within two years thereafter, come together',
that itself would he a ground for a petition for divorce. Now
it is said that to provide for two remedies on the same facts,
one for judicial separation and another for divorce, serves
no purpose, and that, fmther, when a decree for j udicial
separation is passed, and, two years elapse thereafter with-
out the parties coming together, a provision that a fresh
action for divorce could again be ﬁled on the same gI'D'.l'.1JiS
can only result in needless delay and expense. It has there-
fore been suggested that an action for judicial separation
might be altogether omitted. There is considerable force

Third View
accepted.

Iudicial
separation.

Ca acity of
w' c to
acquire pro-
pcrtv or to
enter into
contracts
after a
decree for
judicial
separation.

2-1

in this. But the Roman Catholics do not recognise divorce,
and the legal systems based on the Canonical law, generally,
provide only for judicial separation. There are consider--
able sections \.f the Protestants also who are averse to
divorce, and they would prefer a decree for judicial separa-
tion to a decree of dissolution of marriage. This is one of
the modes of relief recognised in the Indian Divorce Act,
1859, and we do mt see sufficient grounds for changing the
law. We have, therefore, provided for relief by way of judi-
cial separation being granted on the same grounds as
divorce. But we are impressed by the suggestion that, to
permit a second action for divorce after a decree for judi-
cial separation has remained in force for two years, on the
identical grounds on which that decree is founded, must
result in delay and expense. We have accordingly provided
that it is open to either party, to apply, in that very suit,
after two years, for a decree of dissolution, if the parties do
not come t..gether.

45. It was also suggested by a few Witnesses that the
grounds for judicial separation might be less stringent than
those for divorce. Apart from the vagueness of this sug-
gestion, having regard to the fact that a decree for judicial
separation would, in the proposed Act, result, without
more, in a decree for dissolution', the nature and standard
of the grounds should be the same for both forms of action.
And that in general, is the scheme of the Matrimonial.
Causes Act, the Special Marriage Act. and the Hindu
Marriage Act.

46. We should now refer to sections 24 and 25 of the
Indian Divorce Act, 1869, which enact, inter alia, that after
a decree for judicial separation is made a married woman
shall have the right to hold and acquire property, dispose
of it inter visas or by testamentary disposition, and to
enter into contracts. This provision is based upon the
common law of England under which the personality of
the wife became, on marriage, merged in that of her
husband, and they constituted one person in the eye of
the law. The result was that marriage operated as an
assignment to the husband of the property which the wife
owned at the time of the marriage. Properties acquired
by her later also vested in him. On her death, they passed
to him absolutely. Likewise, any contract entered into by
her only operated as one entered into on behalf of her
husband. The Court of Chancery made some inroads into
this law, and in 1882, the British Parliament enacted the
Married Women's Property Act', providing that the pro-
perties of a woman would continue to be her own, even
after marriage; that she could acquire properties in her
own right after marriage; and, that she had absolute domi-
nion over them. When the Divorce Act was enacted in
1869, it was the common law doctrine that held the ﬁeld,
and it is that doctrine that is reﬂected in sections 24 and

'See para. 44, supra.

25 of the Divorce Act. The common law of this country,
however, was different, and, coniorrnably to it, the statute
law of this country allowed married women equal rights
with men in respect of property and contracts. Section -1
of he Married Women's Right to Property Act, 1874, which
applie. to Christians, provides that the earnings of a
marrzcd woman shall be her separate property, grid under
section 7 of that Act, she is entitled to maintain legal pro-
ceedings with reference thereto. Section 20 of the Indian
Succession Act, 1925, makes it clear that a person does not
become, by marriage, subject to any disability in respect
of his or her property, or acquire any interests in the
property of his or her spouse. Under the Contract Act,
13'?2. there is no bar to married woman entering into a con-
tract in her own name and in her own right. The pro-
visions of sections 24 and 25 of the Indian Divorce Act,
1869, based upon the then current English Law that marri-
age effaces the separate personality of the wife, and that
the eﬁect of judicial separation is to bring about its re-
emergence, must, therefore, be regarded as out of tune
with the common law of India and with the statutes afore-
said, and as obsolete. There being no need for those pro-
visions, they have been omitted in the proposed enactment.

47. Section 24 of the Indian Divorce Act, 1869, further Succession
provides that when there has been a decree for judicial to tl_== Pro-
separation, the properties acquired by or devolving on the P°.§":,' Pf '
wife shall, if she dies intestate, devolve as if her husband ,-v:,',;,a{._.m3
had then been dead. This was the law in England when after a
the Indian Divorce Act, 1869, was enacted, and that con- §i=C}'8,e 10
tinues to be the law even now under section 21(1) (a) of '-Bdrm'.
the Matrimonial Causes Act, 1950. The question is, whether sepamuom
the law should now he laid down in those terms. On
principle, the distinction between judicial separation and
divorce is that, while in the latter the marriage tie is dis-
solved, in the former it still subsists. If persons continue
to be related, in the eye of law, as husband and wife, and
if one of them dies intestate, the persons who are entitled
to succeed to the properties must be his or her heirs on
the footing that he or she is a married person. In that
view, if a married woman dies after the passing of a decree
of judicial separation, her husband will be one of the heirs.
Likewise, if the husband dies after a decree for judicial
separation is passed. the wife will be one of his heirs. To
provide, therefore, that on the death of a married woman,
in respect of whom a decree for judicial separation has been
passed, her property will devolve as if her husband were
dead even though he is in fact alive, is to ignore the very
basis of the jural relationship between the parties when
the decree passed is one of judicial separation and not of
divorce. Such a provision is, therefore, clearly illogical.

It is to be further noted that under the law of England,
if a husband dies after a decree for judicial separation is
passed, the wife is entitled to succeed as one of his heirs.
That is on the footing that the marriage still suhsists; and

Divorc 1:.

Grounds of
divorce.

equally the husband must be entitled to succeed to the
properties of his wife when she dies intestate after a decree
for judicial separation is made. but for the special rule
enacted in section 25. We see no reason to adopt different
rules as regards the two spouses, and it may be mentioned
that in neither the Special Marriage Act, 1954, nor the
Hindu Marriage Act 1955, has the law as laid down in
section 25 been adopted. We have therefore omitted the
special provisions in sections 24 and 25 of the Indian Divorce

Act.

43. Coming next to divorce, the Roman Catholics have
strongly pressed on us that divorce should not be recog-
nised, as it is opposed to their faith, or, in the alternative,
that they should be exempted from the provisions of this
Act in so far as they relate to divorce. They say, basing
themselves on the passage in the Bible, "what therefore
God has joined together, let not man put asunder", that.
it is a fundamental article of the Christian faith that
marriage is indissoluble; that the Canonical law therefore
does not recognise divorce; that the grant of divorce would
be repugnant to it; and that therefore the provisions re-
lating to divorce should not apply to them. But it should
be noted that the Indian Divorce Act, 1869, applies to all
Christians including Roman Catholics, and has been in
operation for now ninety years without any protest. It
will be too late now to reverse the current and exempt
Roman Catholics from the provision for divorce. It should,
moreover, be remembered that the provisions of the pro-
posed Act are merely enabling in character. They do not
compel any Roman Catholic to go against the Canonical
law. He or she can, consistently with it, apply for judicial
separation and not divorce. If notwithstanding that the
Divorce Act, 1869, has provided for divorce, the Roman
Catholic Christians have been in a position, during all
these years, to conform to Canonical principles, in not
resorting to court for divorce, they are free to do so under
the proposed Act as well. The proposed Act introduces
no change in the existing law. For these reasons, we have
provided that the Act should apply to all Christians,
Roman Catholics as well as Protestants.

-19. We may now refer to the grounds on which divorce
could be granted. The law on the subject is now con-
tained in section 10 of the Indian Divorce Act, 1869, and
that has come in for the following criticisms:

{1} It makes a distinction between the husband
and the wife in the matter of grounds on which they
could obtain divorce. While adultery, without more,
is a ground for divorce in a petition by the husband,
in the case of a petition by the wife, there should, in
addition, be some other element, such as that it should
be incestuous adultery, or bigamy with adultery, or
adultery coupled with cruelty or desertion for two
years. The criticism is, that there is no justification

2'?

for maintaining this distinction between the husband
and the wife. We agree with it.

(2) Under section 10 of the Divorce Act, adultery
is the only ground on which divorce could be granted,
apart from some grounds special 'to the wife. It is said
that this law has now become very much out of date,
and that it is necessary to allow divorce on several
other grounds, as has been done in all modern legis- .
lation. This criticism is also well-founded. Section 10
is thus of little assistance to us in formulating the
grounds for divorce.

50. We have, however, two enactments of Parliament, Prmrisiomin
the Special Marriage Act, 1954, and the Hindu Marriage °"-'-"51'

act, 1955, which deal exhaustively with this topic, and, °""°""°'"*

in laying down the grounds for divorce, we have, in

general, followed the provisions in those enactments oi.z.,

section 27 of the Special Marriage Act, and section 13 of

.. the Hindu Marriage Act. But there are certain matters

on which those two enactments differ, and certain matters

-on which the proposed Act differs from both of them. We
.shall now refer to them.

51. Under section III] of the Indian Divorce Act, 1859, Adultery.
it is a ground for divorce that the wife "has been guilty

-of adultery", and this follows the English law on the

subject. That is also the provision under section 2'i'(a)

of the Special Marriage Act; but the corresponding pro-

vision of the Hindu Marriage Act, section 13(1) (i), requires
that the respondent must be "living in adultery", That
imports a course of conduct, whereas on the language of
section 2"r'(a}, even a single act of adultery will be sufﬁcient
ground for divorce. But the law that has at all times
been in operation among the Christians is that even a
single act of adultery is a ground for divorce, and as there
is no serious opposition to it, we do not propose to depart
from it. We have accordingly provided, following the
language of section 27(3), that adultery is, in itself, a

; ground for divorce.

52. Under section 13(1) (iv) of the Hindu Marriage Act, Learns?-
it is a good ground for divorce that the respondent has been

-suﬁering for a period of not less than three years imme-

diately preceding the presentation of the petition from a
virulent and incurable form of leprosy. There is a similar
provision in section 2"r'(g) of the Special Marriage Act,
but it ditfers from section 13(1) (iv) of the Hindu Marriage
Act in two respects. It does not contain the limitation
that it should be virulent and incurable. But obviously
that must have been the intention. It is further provided
in section 27(g) that it is not a ground for divorce if the
leprosy has been contracted from the petitioner. We do
not think that any such limitation need be imposed, and
We have adopted the provisions of the Hindu Marriage
Act as more just. .

Refusal to
consummate
marriage.

53. Under .ection 25{i) of the Special Marriage Act,
wilful refusal by the respondent to consummate the mar-
riage is a ground for annulling it. This is in accordance
with the law as embodied in section 8 of the Matrimonial
Causes Ac1, 1950, but its correctness is open to question.
A decree for annulment could, properly, be made only
on ground;-: which exit at the time of the marriage, where-
as when the petition is founded on a ground which arises
subsequent thereto, the appropriate relief to be granted
is dissolution. On principle, herefore, a refusal to con-
summate a marriage, as distinguished from impotence at
the time of marriage, would be a ground for dis.-olving the
marriage, and not for annulling it. That is also the view
taken in the Report of the Royal Commission on Marriage
and Divorce, 19551. We have, accordingly, included wilful
refusal to consummate a marriage as one of the grounds
for divorce.

54. Under section 27{b) of the Special Marriage Act,
1954, it is a ground for divorce that the petitioner had been
deserted without cause for a period of at least three years
immediately preceding 'he presentation of the petition.
Under the Hindu Marriage Act thlj is a ground for judi-
cial separation, but not for divorce. In England desertion
was made a ground for judicial separation by the Matri-
monial Causes Act, 1857, and it was only in the Matri-
monial Causes Act, 1937, that "t became for the ﬁrst time
a ground for divorce, and that is the law as enacted in
section l{i){'o) of the 3.-iatrimonial Cau-..c: Act, 1950. In
our opinion this should be available as a ground for
divorce among Christians.

55. Under section 2'i'(d) of the Special Marriage Act,
cruelty is a ground for divorce. That is also the law in
England as embodied in section l(l}f_c) of the Matrimo-
nial Caures Act, 1950. Under the Hindu Marriage Act,
1955, cruelty is a ground for judicial separation under
section l[](l)(b), but it is not a ground for divorce under
section 13{i}_ We are of opinion that we should adopt
the law as embodied in section 2'?' (d) of the Special
Marriage Act.

53. The suggestion has been made that we should deﬁne
cruelty. What is cruelty for the purpose of divorce has
been considered in numerou decisions in England. In
Russell v. Russell" it was deﬁned as "conduct of such a
character as to have caused danger to life, limb, or health,
bodily or mental, or as to give rise to a reasonable appre-
hension of such danger". It has been observed in Latey
on Divorce" that "there has been so marked a develop-
ment in the mutual relations of husband and wife and in
the right of a wife since the Ecclesiastical Courts admi-
nistered the matrimonial law. and Judges are so bound
to exercise their judicial discretion with due regard to
the customs and manners of their own time, that a blind

d.68,ac , n1h\88 R, = , _

:(1rg§'9---)9P.713¥<j,§ﬁi%iIn£3at:I:.g pl? ca}, (1881:?) 1.23? 3p'.:5g-e 33 paragraph 283

'14th edition, page 82. para. 158.

_,.. .a;. ._-- ,...-.....s-_

adherence to the decisions of over a century, or even a
generation ago, is impossible." It would therefore be
obviously inexpedient to lay down hard and fast rules as
to what would amo-unt to cruelty. That appears to be the
reason why the Hindu Marriage Act, 1955, also does not
deﬁne cruelty, but provides in section 10(1) (b) that cruelty
which can be a ground for judicial separation must be
such as to cause a reasonable apprehens;on in the mind
of the petitioner that it will be harmful or injurious for
the petitioner to live with the other party. Considering
this question, the Royal Commission on Marriage and
Divorce, observed1 that it was preferable not to have a
detailed deﬁnition of that word but to allow the concept
of cruelty to remain open to such adjustment as it was
desirable to make through the medium of judicial decisions.
We also propose to leave it at that.

57. Under section 2'?(c) of the Special Marriage Act, Imprison-
it is a ground for divorce that the respondent is under- men'-
going a sentence of imprisonment for seven years or more
for an offence as deﬁned in the Indian Penal Code, and
there is a proviso that no divorce shall be granted on this
ground unless the respondent has undergone at least three
years' imprisonment at the time of the petition. But there
is nothing corresponding to this in the Hindu Marriage
Act; and following that Act, we have excluded this from
the grounds for divorce.

53. Under section 27(f) of the Special Marriage Act Vsncreal
and section 13(1) (v) of the Hindu Marriage Act, the =="1='°a=°v
petitioner can ask for divorce on the ground that the res-
pondent had been suffering from venereal disease for three
years prior to the petition. It has been urged before us,
that as a result of the advance of medical science venereal
disease could not now be regarded as incurable, and that
it should therefore be no longer a ground for divorce.

We, however, think that there are not suﬂicient grounds
for laying down the law in terms different from those of
the Special Marriage Act and the Hindu Marriage Act.
Nor is this view likely to create any great hardship, as
no action for divorce could be maintained unless the res-
pondent had been suffering from the disease for three years
prior to the petition. It should also be mentioned that

in the Hindu Marriage Act. We have preferred to follow
the language of the Hindu Marriage Act.

(Mi,

'Royal Commission': Report, 1955, Crud. 9678, page 42, para. 133.

Eudicial
separation
and non-re-
sumption of

.cohabitation.

"R emmciation

-Artiﬁcial
insemination.

59. Under section 27(i) of the Special Marriage Act,
it would be a ground for divorce if the respondent has
not resumed cohabitation for a period of two years or up-
wards after the passing of a decree for judicial separa-
tion. We have, as already explainedl, provided that, on
these facts it would be open to the petitioner to apply
for divorce in the very proceeding in which a decree for
judicial separation had been passed. There is therefore
no need to make this a distinct ground for a petition for
divorce.

60. Section 13(1) (vi) of the Hindu Marriage Act pro-
vides that if either party renounces the world by entering
a religious order, that would be a ground for dissolution
of the marriage. We do not think that there is need for
such a ground in the Christian community, and it should
be observed that there is nothing corresponding to it in
the Special Marriage Act. We have, accordingly, not in-
cluded it among the grounds for divorce in the proposed
Act.

61. Section 28 of the Special Marriage Act, 1954, enacts
that the marriage might be dissolved if a petition for
divorce is presented by both the parties stating that they
had been living separately for a period of one year or more,
that they are not able to live together, and that their marri-
age should, by consent, be dissolved. The question is
whether such a ground should be incorporated in the pro-
posed Act. The opinion of all sections of the Christian com-
munity is strongly against it. The question whether divorce
could be granted on the consent of the parties is discussed
in the Report of the Royal Commission on Marriage and
Divorce, 19557'. It states that with one exception, "all
agreed that the present lznv based on the doctrine of the
matrimonial offence should be retained." That is to say,
before a marriage which is intended to be a lifelong union
is dissolved it must be made out that either party is guilty
of what has been tr:-1'mcd. the matrimonial oftence. The
Hindu Marriage Act, 1955, also does not provide for a
marriage being dissolved merely by the consent of the
parties. There is no reason for treating sacramental marri-
ages between Christians diiferently from those between
Hindus. We have not, accordingly, provided for divorce
being granted on the mere consent of parties.

62. It is necessary to refer to one other ground for
divorce about which there has been considerable dlSCL1SS1CII'1
in England. The Report of the Royal Commission on
Marriage and Divorce5 suggests that artiﬁcial insemina-
tion by a donor without the husband's consent should be a
ground for divorce. This practice does not appear to have

'Sec para. 44, srs,-tn;-.
"Cmd. 9678, p. 13, para. 65.
"Cmd. 9678, _o. 25, para. 73, and _r:. 3:, para, go,

come into vogue in India to such a degree as to call for
legislation. We have accordingly ignored it.

63. One of the grounds on which divorce could be had Convenion.

under the proposed legislation is that the respondent has
ceased to be a Christian by conversion. This corresponds
to section 13(1) (ii) of the Hindu Marriage Act, 1955, under
which it is a ground for divorce that the other party has
ceased to be a Hindu by" conversion to another religion, and
to section 32 (j) of the Parsi Marriage and Divorce Act,
1936, which provides for divorce on the ground that the de-
fendant has ceased to be a Parsi.

A connected question which loomed large in the
evidence before us is as to the rights of a convert to Chris-
tianity to obtain dissolution of a marriage contracted before
his or her conversion. (That is the converse of the case for
which provision has been made by us). The Converts'
Marriage Dissolution Act, 1866, provides that 'when a
husband or wife changes his or her religion to Christianity
he or she can move the court for a decree dissolving the
marriage, and the court may pass such a decree after com-
plying with the procedure prescribed therein and that
thereafter the parties thereto shall have the right to re-
marry. But this Act applies only if the parties to the
marriage are not Muslims, Parsis, or Jews; and the criticism
levelled against it, that it is discriminative in character in
that (1) it applies only to cases of conversion from Hindu-
ism, and (2) it gives relief only in cases of conversion to
Christianity, is well-founded. In view of this. we are con-
sidering whether we should not recommend the enactment
of a law, which will be generally applicable to all cases of
conversion from one religion to another religion. The ques-
tion of the repeal of the Converts' Marriage Dissolution
Act, 1866, can appropriately be taken up then for consider-
ation. --

64. We should now refer to the changes proposed in the Joinder of
law relating to the joinder of adulterer as a co-respondent. adultercr 91'
Section 11 of the Divorce Act, 1869, enjoins that in a peti- ighltgess '"
tion for divorce presented by the husband, the alleged fodcéded on
adulterer shall be made a. co-respondent, and to this there adultery.
are three exceptions provided. The following questions

arise for our decision on this subject:--

(1) The 'first question is whether the rules relating
to the joinder of an adulterer should be enacted in the
section itself, as under section 11, or, whether they
should be left to be framed by the High Court in the
exercise of its rule-making authority. Under section
41(2) (a) of the Special Marriage Act this is one of the
matters on which the High Court is authorised to make
rules. That, however, is not the practice in England,
and, further, to delegate the power to the High Courts
would lead to diversity and differences in provisions,

on a_ subject in which uniformity is both possible and

Damages for
-adultery.

desirable. We have, therefore, enunciated the rules as
to joinder of an adulterer in the section itself.

(2) Another question which arises under this sec-
tion, is, whether the grounds set out in section 11 of the
Indian Divorce Act, 1369, for dispensing with the join-
der of an adulterer, require to be enlarged. While we
think that those grounds must prime facts, be taken as
exhaustive, the courts should, nevertheless, have a
discretion in, particular cases to excuse the non-plead-
ing of the adulterer as a party to the proceedings.
Such a provision is to be found in section 3 of the
Matrimonial Causes Act, 1950, and we have inserted a
similar provision in the proposed Act.

(3) A third question which calls for decision is
whether the adulteress should be made a party when a
petition for divorce is presented by the wife on the
ground of adultery. The principle on which this legis-
lation proceeds is that the husband and the wife
should. in all matters, be placed on the same footing,
and it therefore follows that the adulteress also should
be impleaded as a co--respondent, and that is what we
have provided.

(4) And, lastly, it has been suggested that when a
petition for judicial separation is made on the ground
of adultery, the adulterer or the adulteress should also
he made a co--respondent as in an action for divorce.
We have agreed with this suggestion, and given effect
to it.

65. Then there is the question of damages for adultery.
Section 34 of the Indian Divorce Act, 1869, provides that
the respr.-ndent. may claim damages from any person who
has cixmrnitted adultery with his wife, and that he can do
so eitlier in a petition for divorce or judicial separation, or
even inercljv for damages without any such relief. There is
no such provision in the Hindu Marriage Act, 1955. Under
the -Special ll-Iarriage Act, 1954, section 41 {2} (13), this matter
is left to he regulated by the rules to be framed by the
Courts. The question is whether the law should coun-
tenance such a claim. It is undoubtedly strange to Indian
sentiment that adultery should be a matter for compensa-
tion. in England, the rule in question has its origin in the
common law, and has been consistently followed by the
statute law on the subject. In the Report of the Royal
Commission on 1'.-larriage and Divorce, 1955'. it is observed
that this law has been criticised as out of tune with the
accepted law on the question. But the Report considers
that there might be circumstances in which it is reasonable
that the adulterer should be compelled to make redress to
the petitioner. and that therefore the provision should be
retained. While the law as enacted in the Hindu Marriage
Act, 1955, is more in accord with Indian sentiment, we have

'Crud. 9:;-is, p. ustﬂpara. 432.

retained the provision for damages as that has been the
law well--sett1cd in the Christian community for centuries,
and no exception has been taken to it by the witnesses who
appeared before us. And, on the principle of equality
already stated, this provision will be applicable not merely
to a husband as against an adulterer, but also to a wife as
against an adulteress. This is also the recommendation'
of the Royal Commission on Marriage and Divorce.

65. While we have thus retained the claim for damages
for adultery, we have, departing from the law as laid down
in section 34 of the Indian Divorce Act, 1869, provided that
such a claim could be made only in a petition for divorce
or judicial separation, and not independently of such relief.
According to the law of England as it stood prior to the
Matrimonial Causes Act, 1857', it was competent to the
husband to claim damages against any person who com-
mitted adultery in an action for criminal conversation,
without asking for divorce or judicial separation. That
statute abolished this action and substituted in its place a

. suit in the divorce court, and that right has been preserved

by the statute law right through, the latest provision being
section 30 (1) of the Matrimonial Causes Act, 1950. It is this
right that is embodied in section 34 of the Divorce Act,
1869, which provides that a husband can present a petition
limited to a claim for damages only. We are not in favour
of recognising such a claim. While it may be legitimate to
permit a claim for damages when it is ancillary to a prayer
for divorce or judicial separation, to permit such a claim to
be made as the only substantive relief must lead to black-
mail actions. We consider that a self-respecting husband
who is aggrieved by a person committing adultery with his
wife will seek to get the marriage dissolved and not to
make a proﬁt out of the wrong. It is true that seducing a
moms wife will, under the English law, furnish a cause of
action in tort, and damages can be recovered on the ground
of loss of consortium or service. But this doctrine has
come in for considerable criticism, and it was observed by
Talbot J ., in Delein v. Cooper? "it seems quite possible for
a husband and wife in ﬁnancial diﬁiculties to sow the
seeds of an action for enticement, and when the result has
proved a ﬁnancial success. to share the proceeds by staging
a touching reconciliation" in this report, we are not con-
cerned with the question whether the English law on this
subject should be adopted in this country, and if so, within
what limits, because it is well-settled5 that the remedies
of an action in tort {or enticement and petition for divorce
on the ground of adultery are based on different causes
of action. It is suiﬁcient for the present purpose that no
right should be recognised in the husband to move the
divorce court for damages sixrnplicite-r. We have accord-
ingly limited the claim for damages on the ground of

'Crud. gﬁrfizlgiizi, para. 434. KWW__'
'IE3 L.T. {Iounl 222.
5V1'-is Elliott v. Albert,' (1934) I K.B. 65o.

Settlement of

P1'°P°1'W-

adultery, under the Act, to petitions for divorce or judicial
separation.

67. The Indian Divorce Act, 1869, enacts certain provi-
sions with reference to settlement of property. Section 40
provides that when a decree for dissolution or nullity of
marriage is made, the court may inquire into the existence
of any settlement, ante--nuptial or post-nuptial, and direct
that the properties so settled be applied for the beneﬁt of
the husband~or wife or children or both children and
parents as it might deem ﬁt. This is a salutary provision,.
and has been retained. Section 27 of the Hindu Marriage-
Act enacts that the court might make such provisions in
the decree as it deems just and proper with respect to any
property presented at or about the time of marriage which
might belong jointly to both the husband and the wife.
This will comprehend properties other than those which
section 39 of the Indian Divorce Act might cover, and we
have accordingly inserted a similar provision
proposed Act.

68. Then there is section 39 of the Divorce Act, which
provides that when a court passes a decree for dissolution
of marriage or judicial separation on the ground of adultery
of the wife, and the wife has properties of her own, the
court may order such settlement of those properties to
be made as it thinks reasonable, for the beneﬁt of the
husband or children of the marriage or of both. Having
regard to the other provisions recommended by us, this
section should be omitted. The husband has a right to
claim compensation for the wife's adultery. He has also
been given a: right to claim alimony, interim or permanent,
in appropriate cases. In view of this, there seems to be
no reason why he should claim the properties of the
wife should also be settled on him. As for the children,
the court has the power to make suitable orders for their
maintenance and education. It should be remembered that
under the law the children have no right actually to the
properties of parents, but only a right to be maintained.
That being so, there seems to be no ground for a special
provision that the properties of the mother should be
settled on them by reason of the adultery of the mother.
On principle, therefore, it would seem that all that the law
need provide is adequate and reasonable alimony for the
parents and adequate maintenance and expenses for the
education of the children. To go further and to enact that
the-Wife should be deprived of a portion of her properties
and the same settled on the husband and children would
appear to be unduly severe and unjust, bordering on vindic-
tiveness. It is true that the Royal Commission has, in its
Report', considered this question and recommended that
there should be a provision for settlement of properties

'Report of the Royal Commission on Marriage and Divorce, I955, Cmd.
9678, p. I41, path. 516 ; p. 142, para. 520 ; and p. I54, para. 570.

in the

...

_.,,,_'J_'*_ 35 whenever there is a decree for divorce or nullity of mar- riage. For the reasons already given, we are unable to agree with this view. It may be mentioned here 'that no such provision has been enacted either in the Special Mar- riage Act, 1954, or in the Hindu Marriage Act, 1955. Qur proposal to omit section 39 will bring the law in line with those two statutes.

69. We shall now deal tvith questions relating to Iuﬁgdicﬁon.

jurisdiction and procedure under the proposed Act._ The provisions of the Indian Divorce Act, 1869, relating to jurisdiction fall under two categories: (1) Section 2 pres- cribes the conditions on which the court could pass decrees under the Act, such as for dissolution of marriage, for nullity and so forth. (2) The Act further speciﬁes in the several sections relating to the different kinds of action, the courts in which they could be instituted. These two categories have reference to two distinct aspects of juris- diction. The former views the question from the stand- point of private international law, the latter from that of municipal law. Dealing ﬁrst with the former, a Sovereign State can enact laws providing for the conditions on which its courts could grant relief by Way of decree for divorce or nullity of marriage, and the decrees passed by the courts acting within the authority conferred by these provisions will be valid and enforceable within its terri- tories. But when the status of the parties to such a decree becomes the subject-matter of a dispute in a proceeding between them in another State, the question arises whether courts of that State are bound to recognise that decree. That is a matter regulated by rules of private international law, and recognition of decrees passed by one State has not seldom been refused on the ground that it is not in accordance with the accepted rules of private internationa! law, with the result that "a man and woman are held to be man and wife in one country, and strangers in another".

70. Section 2 of the Indian Divorce Act, 1869, as it stood prior to its amendment in 192B_ provided that the court could pass a decree of divorce if the parties to the action resided within the jurisdiction of the court at the time of the presentation of the petition. But it is a rule of private international law, well-recognised, that a decree of dissolution of marriage could be passed by the courts of a country only if the parties thereto had the domicile of that country at the time of the application". In enacting that divorce could be granted if the petitioners were residing within jurisdiction at the time of the petition, irrespective of domicile, section 2 went beyond the bounds recognised by private international law, and in Keyes v.

'Vida Le Mesurier v. Le Meturfer, (I895) A.C. 517 : Vida also Mountbatten 1'. Mountbatten, (1959) I A.E.R. 99.

'Vida Rule No. 3: in Dicey': Conflict of Laws, 6th edition, page 216 and Rule No. 71 at page 3.68.

231 L----4 UCI1.

Keyes and Groyl it was held that a decree of an Indian court dissolving a marriage of persons of British domicile could not be recognised in England. As a result of this decision, the British Parliament had to enact a law validat- ing the decrees of Indian courts, and the Indian legislature passed an amendment Act' so as to bring section 2 in accordance with the rules of private international law. Under section 2, as amended, decrees for dissolution of marriages could be made only if the parties are domiciled in India at the time of the petition; decrees for nullity- if the marriage was solemnised in India and the petitioner was residing in India at the time of the petition; and other decrees--if the petitioner was residing in India at the time of the petition.

Fun, 71. When once the conditions provided in section 2 are satisﬁed and action could be taken in the Indian courts, the question arises as to which of the Indian courts is competent to entertain the action. It is this aspect which is dealt with in the second category of provision. Under the provisions of the Indian Divorce Act, the court where the proceedings could be taken is the High Court or the District Court, and according to the deﬁnition of these terms in section 3. that meant the High Court or the District Court within the territo of India within whose jurisdiction the husband and wi e reside or last resided together. This is analogous to the provisions of the Civil Procedure Code laying down in which court a suit could be irrtituted. Thus the Indian Divorce Act deals with jurisdiction of matrimonial courts in both aspects.

can,' 'Y2. Section 31(1) of the Special Marriage Act and ado_pce_:d,_as section 19 of the Hindu Marriage Act, deal with the second *5' |""""d'°' of the two aspects mentioned above. As for the first, there is nothing about it in section 19 of the Hindu Marriage Act, possibly because questions of marriage under that Act with persons of foreign domicile are likely to be of merely academic interest. Section 31(2) of the Special Marriage Act does deal with the ﬁrst aspect to a limited extent, but it is not exhaustive of the law on the subject. Having regard to the scope of the Indian Divorce Act, 1869, as already stated', and to the fact that Christians form an international community, we consider it desirable to lay down the law on the subject from the points of view of both private international law and municipal law. On the former aspect, while generally adopting section 2 of the Indian Divorce Act, we have introduced a new provi- sion under which a decree for dissolution could also be passed in favour of a petitioner, who, being the wife, was domiciled in India before marriage, and has been residing in India for a period of not less than three years preceding the presentation of the petition. The purpose of this 10921) p. 204..

'Act 25 of 1926.

'Pairs. 69, supra.

"3 ''..¥''' 3'?

enactment is to empower Indian courts to grant relief to Indian Women who may marry persons having foreign domicile. As. in law. the wife will acquire on marriage the domicile of the husband, such a provision is necessary to clothe the Indian court with jurisdiction to dissolve such a marriage. There is, it may be mentioned, a similar provision in section 13 of the Matrimonial Causes Act, 1950.

73. Then as regards decrees for nullity of marriage, they can be made under section 2, paragraph -1, of the Indian Divorce Act, 1869, only if the. marriage was solem- nised in India, and the petitioner is residing in India at the time of the petition. But it is now recognised that the courts of a country have jurisdiction to grant such decrees, even though either of those conditions is hbsent, if at the time of the petition, both the parties', or even the petitioner alonez, is domiciled in that country. We have accordingly enlarged the scope of section 2 of the Indian Divorce Act, by providing that decrees of nullity could be made if the parties are, or, in certain events, even the petitioner is, domiciled in India.

7'4. On the second aspect, that is municipal jurisdiction, 00"?"

we have provided that a petition in a matrimonial cause :g°£§_,°;'_"

may he presented to the district court within whose local ' limits the respondent is residing at the time of the petition, or the marriage was solemnised, or the husband and wife last resided together; and with a view to minimising delay and expense, we have enlarged the deﬁnition of 'district court' in section 3 of the Indian Divorce Act, 1869, so as to include any other court which may be notiﬁed by the State Government. We have further provided that the petition might be presented in the District Court within whose jurisdiction the petitioner resides at the time of the presentation of the petition, provided the respondent is, at that time, residing outside India'.

7'5. Coming next to matters of procedure, the National Matrimonial Christian Council, Nagpur, has strongly pressed for the 1'-'1'lJ"ﬂ*11- constitution of a matrimonial tribunal, consisting of a clergyman and some respectable members of the com- munity to bring about reconciliation between the parties '-to a matrimonial cause. They suggest that as soon as a dispute under the Act comes before the court, it should be transferred to the tribunal, that the latter should try .-informally to effect a settlement, and if that fails, then and only then should the matter be taken up by the court for trial under its ordinary procedure. The object behind this suggestion is, without doubt, commendable, but there are considerable difficulties in the way of accepting it in the form suggested. If the tribunal is constituted under ' 'Dicey': Co_nﬂict of Laws, 6th edition, page 244, Rule 35 ; Tolstoy on Divorce, 4th edition, page 13.

'D: Rene-m'I!c v. De Reneoills (1948), 1!. 100. 'See also Appendix 11, Notes on clauses, under clause 36.

Decisions of ecclesiastical courts.

Decree -xiii and decree absolute.

the provisions of the Act, it becomes a statutory body and cannot function informally, as' desired. It is true that in holding an enquiry, it is not bound by strict rules of evidence, but it has to observe rules of natural justice, and its ﬁndings will be open to attack in the normal way on appropriate grounds, and it is agreed that it is not such a body that is in their contemplation. The lawyer witness, who elaborated this point in his evidence, stated, after some discussion, that the object would be achieved if a duty is cast on the court to bring about, whenever possible, reconciliation, and a power is given to it to refer the matter to a person agreed to by the parties or sug- gested by the court, for the purpose of effecting settle- ment. We consider that that could be done, and have accordingly inserted a clause authorising such a reference. The referee under this provision is not a tribunal, not even an arbitrator, as under the Arbitration Act, but a conciliator, and a reference to him will be optional with the court.

76. We may now refer to the suggestion made by the Roman Catholic witnesses, that decisions of the ecclesiasti- cal authorities functioning under the Church of Rome on matrimonial causes heard by them should be accepted by the courts hearing petitions under the Act as ﬁnal and conclusive, the function of the latter being limited to merely carrying out those decisions. We are unable to accede to it. It is the courts constituted under the law of this country that can have the exclusive authority to determine disputes relating to civil rights, and there can be no surrender or abdication of that authority. That, of course, does not bar the reception in evidence of those proceedings to the extent they may be admissible under the law.

77. A question on which there is divergence of opinion is as to the procedure to be followed before a decree for divorce is ﬁnally made. Under section 16 of the Indian Divorce Act, a decree mist has ﬁrst to be passed, and a decree absolute could thereafter be made only after the expiration of such time as the High Court might direct but not less than six months from the pronouncement of the decree -n-iii. The point for consideration now is, whether the proposed legislation should retain that procedure, or whether, dispensing with the decree nisi, it should provide for a decree for divorce being straightway passed. In support of the latter view, it is said that that would simplify the procedure in an action for divorce, save time and reduce expense. It is also pointed out that both the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955, provide for the passing of only a single decree, and it is said that it is desirable that the law relating to divorce among Christians must also fall in line with them, and that therefore the provision for the passing of a decree nisi should be abolished. As against this, it is 39 claimed that the procedure of passing a_ decree ntsi, before a decree absolute dissolving the marriage is made, has

-certain advantages justifying its retention. First, it is said that the provision that there should ﬁrst be a decree wrist and that a speciﬁed period should elapse before it could he made absolute, would give the parties a further opportu- nity of becoming reconciled. Secondly, it is said that the present procedure is better suited to prevent collusive decrees of divorce being obtained. Mere service of sum- mons in a divorce action on the respondent goes generally unnoticed; but the proceedings in court resulting in a decree are bound to attract attention and afford reasonable

-opportunity to any person to establish that the proceedings are really collusive. It is said that the need for such a provision is all the greater, as it is now proposed to omit1 section 17A of the Indian Divorce Act, and there would thus be no ofﬁcer who could intervene in the proceedings and object to a decree being passed on the ground of

-collusion. In this connection, reference may be made to the sections of the Matrimonial Causes Act, 1950, bearing

-on this point. Section 12(1) provides for a decree nisi being passed, and that can be made absolute only after the expiry of six months from the pronouncement thereof, unless the court ﬁxes a shorter time. Then section 12(2) provides that any person might intervene and show cause why it should not be made absolute, on the ground of collusion or other relevant circumstances. It is said that the proposed legislation should be on the same lines for this reason as well. Thirdly, it is said that the procedure of ﬁrst passing a decree artist and then absolute obtains in all the English-speaking countries and has practically come to be regarded as part of the law of the Christians. The question whether this procedure should be continued, or whether one decree should be passed dissolving the marriage was considered by the Royal Commissiong, and it expressed the opinion that it was desirable to retain the existing procedure of passing a decree nisi which could be made absolute after a speciﬁed period, and it has fur- ther suggested that that period should be three months. The evidence of the witnesses before us is also in support of this view. There was only one witness who stated that the procedure of passing two decrees might be abolished, but in the course of discussion, it appeared that his objection to its retention was based mainly on the ground of additional expense. The Roman Catholic witnesses, on the other hand, desired that after the passing of a decree nisi nine months should elapse before a decree absolute is passed.

78. It will be relevant, for the purpose of deciding which of the two views should be accepted, to refer to section 5'? of the Indian Divorce Act, which enacts that when a decree 'See para. 79, infra. "

'Report of the Royal Commission on .Marriage and Divorce, 1955, Cmd. 4678, pages 250 to 252, paragraphs 952 to 958.

Conﬁrmation High DIJFI.

Kjng's Proc-

I 01'.

Minor changes.

for divorce has been passed, it shall be lawful for the res- pective parties to marry again after the expiration of six months from the date of the decree and not earlier. The combined effect of sections 16 and 5'? of the Divorce Act is that after a decree -nisi has been passed for dissolution, six months must elapse before a decree absolute can be passed, and another six months must elapse before the parties can re-marry. Section 30 of the Special Marriage Act, 1954-, provides that when the marriage has been dissolved by a decree, and that decree has become ﬁnal, the parties there- to may re-marry after the lapse of one year, but not earlier. A similar provision has been enacted in section 15 of the Hindu Marriage Act, 1955. Now it is for consideration whe- ther it would be expedient to enact a prohibition against re-marriage after a decree for dissolution is ﬁnally made. If there is a marriage during the prohibited period, it is in law null and void and the children of that marriage would be illegitimate. Questions have also arisen as to the pater-- nity of children born after the decree for dissolution of the marriage and within the prohibited period. We are disposed to think that the purpose of prohibiting a mar- riage after a decree for dissolution, namely, to prevent resort to divorce proceedings for getting rid of the wife, so as to be able to marry another v:omar2.~--is better served by prescribing an interval between the decree met and the decree absolute. So far as the parties to the action are concerﬂed, it will make no difference in the result whether there is a single decree dissolving the marriage, followed by a period during which they cannot ice-marry, or whether there is a decree nisi, followed ll}? a decree for divorce to be after a speciﬁed period, with no further prohibition against re-marriage. After careful consideration, we have come to the conclusion that Th-1'. or-r~.cs.~dure of decree mist and decree absolute should be 2:eta'.ned, and that after the ﬁnal decree, the parties slioulti be free to re-marry (after the period of appeal has expired).

79. Section 1'?' of the Indian Divorce Act provides for a decree for dissolution passed by a District Judge being conﬁrmed by a special Bench of the High Court. We see no need for such a provision. The decree of divorce passed by the district court would be open to appeal like other decrees of that court, and that, in our opinion, is sufficient. We have also come to the conclusion that section 17A of the Indian Divorce Act, 1869, may be omitted, because that provision does not appear to have been availed of in prac- tice to any appreciable extent. The purpose of that section will be suﬁiciently served by retaining' the procedure for the passing of :1 decree nisi'.

80. We have explained the important proposals above. Our recommendations on minor matters relating to the subject are explained in the notes on clauses.

'Sec para. 7:, supra.

31. In order to give a concrete shape to our proposals, we have. in Appendix I, put them in the form of a draft Bill.

Appendix II contains the notes on clauses, explaining, with reference to each clause in Appendix I, any points that may need elucidation.

Appendix III contains a comparative table showing the provision in the existing Acts and the corresponding provi- sion, if any, in Appendix I. Appendix IV contains a list of the witnesses examined by us on the subject.

Appendix V shows our recommendations in respect of other Acts.

1. T. L. VENKATARAMA AJYAR (Chairman}. *2. P. SATYANARAYANA mo

3. L. s. MISRA,

4. G. R. RAJAGOPAUL,

6. N. A. PALKHIVALA, *=-*5. s. CHAUDHURI.

D. BASU, Joint Secretary.

Nnv DELHI,' The 19th August 1960.

* Shri 330 1135 Signed the report, subject to.tT1e two appended.

*" Shri Chaudhuri has si appended.

Shed the report, subject to the note INDEX TO APPENDIX I Clause Subject matter Page Nos.

CHAPTER I PREHMINARY

1. Short title, extent and commencement . . . . . 49

2. Deﬁnitions . . . . . . . . . 49-51 CHAPTER II Cosinrrious r_-'on Cmusrum MARRIAGE

3.. Marriage Chrijtiaiis to be solernnized according to Act 51

4. Conditions of marriage . . . . . . 51-52

5. Consent of guardian in marriage . . . . . . 52--53 C1-IAPTEREIII SULEMNEZATIUN ('IF CHRISTIAN MARRIAGE A.--Fer5on.s amlaorfsed :0 soienmizs mar:-1'ages

6. Who may solemnizc marriages . . . . E53 Recognised Churches . . . . . . . 53-54 Gra._nt of licences to Ministers of Church to solernnize mar- riages . . . . . . . . . 5.4

9. Marriage Registrars in India . . . . . . 54 to. Marriage Registrars outside India . . . . . . 55 Bu---A=farr£age5 before M iaaisrers of recognised Churches :1. Solemnization of marriages by Ministers of recognised Churches 55 C.--Marrr'ages before licensed Mi'n£sIcrs and Marriage Registrars

12.. Notice of intended marriage to licensed Ministers etc._, and marriage notice book . . . . . . . 53-56 I3. Proceciure to be followed by licensed Minister on receipt of notice . . . . . . . . . 56----57

14. Proceciure to be foliowed by Marriage Registrars on Ereceipt. nf notice . . . . . . . . . . 57 is. Issue nf certiﬁcate of notice . 57 Y1, #3 «Clause - Subject matter P'-13¢ Nos.

16. Objection to oertiﬁcate . . . . . . . . S3

17. Application to district Court against decision on objection . 53

15. Procedure on receipt of objection by Marriage Registrar abroad . 53

19. Certiﬁcate not to he issued and marriage not [0 be solemnizcd in certain cases . . . . . . V - 53

20. Solernnization of marriage by licensed Minister . . . 59

21. Solernnization of marriage by Marriage Registrar . . . 59

22. Certiﬁcate void if marriage not solemnized within Lhree months . 59 D.--Reg:'srraI:'arr of marriage:

13. Certificate of marriage and registration . . . . . 59-60 C!-IAPTER IV Ras1'11'u'rruN or CDNJUGAL moms 1.1. Restitution . . . . . . . . . . 60 CHAPTER V JUDICIAL SEPARATION

25. Iurlicrar separationﬁ . . . . . . . . 6:; 2.6. Effect of judicial separation on duty to oohabit . . . 60-----6! CHAPTER VI] NUL11'nr 01? MARRIAGE

21. Void marriages . . . . . . . . . 6:

28. Voidable marriages . . . . . . . . 6r----62

19. Legitimacy of children of certain void marriages and voiclable marriages . . . . . . . . . 62 =-6 } CHAPTER VII Dlvonen A.--Grounrir of divorce

30. "Grounds of divorce . . . . . . . . 63--64

31. Divorce after decree for judicial separation . . . n 64

32. No petition for divorce to be presented within tluee hem of marriage . . . . . . . . . . 64-65 44 Glen: Subject matter Pﬁgc Nos.

3.4-Remarrfaze qr-tar divorce

33. Remarriagc of divorced persons . . . . . . 55 CHAPTER VIII JLIIISDICTIDN AND FROG'-'DUE!

34. Relief to be given to Christians only . . . . . 55--5'5

35. Jurisdiction of Indian Courts . . . . . . 66

36. Court to which petition should be made'_S} . . . . 155-5'.-'

37. Contents and veriﬁcation of petitions . . . . . 5'7

38. Application of Code of Civil Procedure . 57

39. Decree in proceedings . . . . . . GI

40. Adulterer or adulteress to be a co-respondent 63 ---69 :41. Relief to rtspondent in case of opposition to petition for divorce ' on certain grounds . . . . . . . $9

42. Deere: m':t' for divorce . . . . . . . 59

43. Damages from adulterer or adultereas . . 59

44. Maintenance pmdenre lite and expenses of proceedings . 7'0

43. Permanent alimony and maintenance . . . . . 1-'0

46. Disposal of property . . . . . . . 70"?-'1

47. Custody of children . . . . . . . . "-1

48. Proceedings ntey be in camera and rnay not be published . f-'[ 4:). Appeals from -decrees and orders . . . . 7! so. Enforcerncttt of decrees and orderﬁ . . . . . 7:

CHAPTER IX Pl.-.'2-3l.AI.T]'£'!.:«.

51. Punishment of bigamja . . _ . . . . . . 'H

52. Penalty for breach of certain other conditions of marriage 72

53. Penalty for falee oath, declaration. notice or certiﬁcate for pre- Cliflﬂg lT!ﬂ1'!'13gC - . . . . ".1

54. False persnnation by person objecting to marriage . "H

55. Solernnizing marriage '.\'i2h-OUT due authority . 72 JV' 4:} Chase Subiect matter PlE°

56. Penalty for not deciding objections within prescribed ueriod, or refusing to solemnize marriage . . . . . . 'I3-73

57. Penalty for wrongful action of Marriage Registrar or Minister, etc. . . . . . . . . . . . 73 5!. Destroying or faisifving Marriage Certiﬁcate Books . . . 73

59. Penalty for publishing proceedings held in corners . . . '33

60. Limitation for prosecution: . . . . . 73 CHAPTER X MiacsLr.aN'aous

61. Liability for frivolous objections . . . . . . 73-74

62. Savings regarding ir1'cg'J1a['iLies . . . . . . 74 6;. Correction of errors . . . . . . . . 74

64. Solemnization of marriages by Ministers of Church in placer.

nanerioued by custom or usage . . . . . . 74--q'5

65. Marriage Registrars Lo be deemed to be public servants . . 75

66. Inspection of iiriarriage Notice Book 75

67. Impecrion of Marriage Certiﬁcme Boo}: . . 15

68. Certiﬁed copy to be evidence. 75

69. Language of notices and declarations . . . . . 75-76

70. Ministers of Recognised Churches not compelled to solemnize marriages contrary to the rules of the Church . . . 76

71. Powers :1!' Niarriage Registrars in respect of inqiiiries . . 76

12. Power to make rules . . . . . . . . 76-77

73. Rules by the High Court . . . . . . 77

74. Strings regarding marriages solemnized before Lhe Act . . 77

75. Savings for other marriages 77

16. Repeal of the Indian Christian Marriage Act, 1372, and the Indian Divorce Act, 1859 73 THE Sounoores - 78-83 Hxpi-:¢rnm'¢m sf abbrev1L'rt'ruis urea' Christian Marriage Act The Indian Christian Marriage Act, I372.

Di\«'E:rce Act . . . . . The Indian Divorce Act, 1869.

'-l.M.A. .

M.C.A.

-P.Nl.D.A. .S..M.A. a 46 The Hindu Maniage Act, 1955.

The (English) Matrimonial Causes Act, 1950.

The Parsi Man-iagc and Divorce Act, 1936.

The Special Marriage Act, 1954.

APPENDIX 1 Proposal as shown in the form of a draft Hill. [This is a tentative draft only] [Corresponding sections, of the existing Act are rated"

in the margin] 4:'?

, r' U. ('u V':

e.

'THE CHRISTIAN MARRIAGE AND MA'1'RIMONIAL CAUSES BILL, 150 A BILL to amend and codify the law relating to marriage and matrimonial causes among Christians.

B: it enacted by Parliament in the Eleventh Year of the Republic of India as follow CHAPTER I Pnmmmmr

1. (1) This Act may be called the Christian Marriage Short tine, and Matrimonial Causes Act, 1960. extent and CDIT|-I'.l1CD.C¢-

DICDL {S. I, Ist BIB.

](:iIhris'tiaI i'é"'"i' ,an s. 1, DivomccAct.] (2) It extends to the whole of India except the State {s. 1, 2nd =01' Jammu and Kashmir, and anplies also to Christians 1=I_arI- C|'1_n=- domiciled in the territories to which this Act extends v.'ho'::_1":'f:

are outside the said territories. mpamabiﬁ Vote: Act.} (3) Section 7 shall come into force at once, and the re- {NEW} u-maining provisions of this Act shall come into force on Cfjushl (2):

-such date as the Central Government may. by notiﬁcation 6)' in the Ofﬁcial Gazette, appoint.

2. In this Act, unless the context otherwise requires,--1)eﬁnj;ion.,

(a) "Christian"' means a person professing the [s_ 3, put, Christian religion;

Ila Act.]

(b) "church building' includes any chapel or other 3,_ part building generally used for public Christian worship', Mal'i5,11=-D Act.) (C) "desertion" means the withdrawal by one [S.3(9), spouse, without reasonable cause and without the con- Dim!" I'M] sent or against the wish of the other spouse, froms 3*?"

cohabitation with the other spouse with the intention E'xpL' of bringing cohabitation permanently to an end; and H.M.A. its grammatical variations and cognate expressions shall be construed accordingly;

4 ii New] Cf. 9. 2 (J1, S.M.A. New] Cf. 9. 2 (J1, S.M.A. is. 3 (3), part, Divorce Act} CL s- 3 <6), I-I.M.A. Cont ms:

3. 2 (£2), S.M.A. {S. 3._ part.

Christian Marriage Ax:t.] [New] [New] {NW} [S- Pan:

ChI1SElZIl Man-iaees Act I. 3 {SJ} Divorce Act] [New] [New] Cf. a. 2 (b), S.M.A. 50 {d} "diplomatic oﬁicer" means an ambassador.. envoy, minister, charge d' aifaires, High Commissioner, Commissioner or other diplomatic representative, or a counsellor or secretary of an embassy, legation or High. Commission;

(2) "district", in relation to a Marriage Registrar, means the area for which he is appointed as such under this Act;

if) "district court" means, in any area for which there is a city civil court. that court, and, in any other area, the principal civil court of original jurisdiction, and includes any other civil court which may be speci-

ﬁed by the State Government, by notiﬁcation in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act', (9) "India" means the territories to which this Act extends;

(h) "alicenserl Minister" means a Minister of Church licensed under section 8 to solemnize marriages under this Act;

(71) "Marriage Registrar" means the i'vIarriage Regis-- trar appointed under section 9 or section 10:

(j) "Minister of a recognised Church' means a Minister of any Church which is a recognized Church within the meaning of this Act;

(Tc) "minor"' means a- person who has not complet-

ed the age of eighteen years:

(i) "prescribed" means prescribed by rules made under this Act;

{ml "prohibited relationship"---a man and any of the persons mentioned in Part I of the First Schedule, and a woman and any of the persons mentioned in Part II of the said Schedule, are within prohibited relationship;

Esrplanotion l.--"Rel.1tionship' includes,-

fo) relationship by half or uterine blood as well as by full blood;

(73) illegitimate bioocl relationship as well as legitimate; and Eli terms oi relationship in this Act shall be construed accordingly;

Explanation 2.--"Fu1l blood" and "half blood"--~ Two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by diiferent wives;

Escplimation 3.--«"UI:ei'iiie i»iooci"«tv.-"o persons are said to be related to each other by uterine blood when they are descended from :2 csrnmon anccstress 'put by different ]'1UShEiI1d:-;

(11) "rccogniseci Church" means a Charo-h declared [mm] to be a IECCIE-II1ESCd Chiirc.-'1 iznder section 7"

4d 7 (to) "Registrar-General' means" [s. 3, part, . , . _ , Christian

(i) a rtegistra-r--Gc-iierzii of Births, Deaths anc. Mm-igge Marriages appointed under the Births. Deaths a;1dAct.1 iviarriages Registration Act, 1886, and 5 gf 1335

(ii) in relation "o any territories to which that Act does not extend, an oiiicer pciforming the functions of a Regisuar-General of Births, Deaths and Pviarriages Lrrider any corrcspimdiiig law in force in those territories;

{I0} "_rLi1e", in an;/_ exprassiori denoting rules of arc: Ly"; Church, includes a rite, cerimony or custom of that Church.

CHAP"E'EE--E II CONDITIONS FOR CHRISTIAN 1\I.-iHHIAGE;-3

3. Every marriage beti=_.-'een persons both or Whom are _Mm.,,-E3.' Christians shall he soiemnized in accordance with the pro-- betwcen visions of this Act, unless the inariiaggc is sol-::mnE2:c-d under C.h1'isLiarLs the provisions of the Special Marriage Act, I954. 1" be. soicmizcd accordiiig to Act.

[S. 4, Chris-

tian Marriage Act.) 43 of :94.

Conu._'itio.'is s of marriage.

4. A marriage may be sotcmnised between any two Christians if the foiiowing conditions are fuiﬁlled narneiyzv ii} neither ;.:art.§.«' has a spouse living at the time [New] of the marriage; ' Cf. 5. 60(2), Chriitfﬂit Marriage AC1.

9 sm '- I I .-I H.M.A., 5; 4 (=1):

5.M.A. {ii} the parties are not within prohibiieti re1stion»[S. $52.

ship. uniess the custom governing each of them Chrlﬁfian permits of a marriage hetween the two; fgrfag' W» s_. 4 {-=1'}» s.M.A. 2-81 L------5 52 W] , {iii} neither pa1'l;:_.r is an idiot or a lunatic at the H-hi-AZ 99- time of the marriage;

1- 4 (3').

S. A. [New] {iv} the bridegroom has completed the age of 05 55- _5° (0: eighteen years and the bride the age of ﬁfteen years M1 at the time of the marriage;

8. ' , I. 4 ts).

S.M.A. [Nam] (12) where the bride has not completed the age of

- 5- 5 {Ma eighteen years, the consent in writing of her guardian MA. in marriage or the permission of the district court under sub-section (4) of section 5, has been obtained for the marriage; and {New} (vi) where the marriage is solemnized outside fﬁ 4 ':53 India, both parties are domiciled in India.

Ckmsenl of 5. (1) Whenever the consent of a guardian in marriage l'"|f¢_|i=\H in is necessary for a bride under this Act, the persons entitled """""5'*" to give such consent shall be the following in the order

5. cl .

L 4:? 'ﬁt speciﬁed hereunder, narnely:--

(ri) the father;

l",f;"_§"3' {b} the mother;

01'. s. 6, {C} the paternal grandfather:

H-M-A {ii} the paternal grandmother;

{2} the brother by full blood;

as between brothers, the elder being preferred;

(f) the brother by half blood;

as between brothers by half blood, the elder being preferred:

Provided that the bride is living with him and is being brought up by him;

ig) the paternal uncle by full blood; as between paternal uncles, the elder being preferred;

(hi the maternal grandfather;

ii) the maternal grandmother;

(3') the maternal uncle by full blood; as between maternal uncles, the elder being preferred:

Provided that the bride is living with him and it being brought up by him.

[NW1 (2) No person shall be entitled to act as a guardian in marriage under sub-section (1) unless such person has himself completed the age of twentyuone years.

INIWI (3) Where any person entitled to be the guardian in marriage under sub--section (1) refuses, or is for any cause 53 'unable or unﬁt, to act as such, the person next in order shall be entitled to he the guardian.

(4) Where no such person as is referred to in sub-[31 315, part.

section (1) is living and willing and able and ﬁt to act Ch"'."'"

as guardian in marriage, or where any guardian in Ac "_ marriage, without just cause, withholds his consent to the ::nded.] marriage, the permission of the district court shall be neces- sary for the marriage of the bride.

{5} The permission of the district court for the [S. _45, pm, marriage of the bride under su'o--section (4) may be ﬁflﬁfiaﬂ applied for by a petition made by the parties to the Ac?"

intended marriage.

to') Where such a petition is made, the district court [5- .4{.- 9""- shall examine the allegations of the petition in a summary Marrlfigg manner and shall decide the matter after giving a reason- ;,.3_] able opportunity to the parties to be heard.

('F') The decision of the r".?str:'r:'_ court granting or refus~ [NW] ing permission under sub--scction {4} shall be final.

1'3) Notwithstanding anything contained in sub-section [New] (1), where any person has been appointed or declared by :"'3'1'J'ard'i';m;"

a court to be the guardian of the person of the bride, he and wards alone shall be entitled to act as guardian in marriage. Arr', 13:30.

(9) Nothing in this section shall affect the jurisdiction [NW]

-of :2 court to prohibit by injunction an intended marriage, if in the interests of the bride for whose marriage consent is required the court thinks it necessar;._~ to do so.

CHAPTER III SDLEMNIZATIDN or CHRISTIAN l\«'l'AniuAGEs A.--Persons o-uthorised to sole-maize marriages ti. Marriages may be solemnized under this Act-«-- coho 11.133 (:1) by any It-Iinister oﬁ a recognised Church;

(b) by any Minister of Church licensed under [5- _S._ D311» section 8 to solemnize marriages;

7. (I) For the purpose of advising the State Government Rccognisgd as respects Churches to be declared as recognised Churches, Churches.

the State Government shall, by notiﬁcation in the Official [NEW]

-Gazette, establish a Committee consisting of such number of Christians, not exceeding ﬁve. as the State Government

-may think fit to appoint, and it shall be the duty of the

-Committee to examine applications by Churches for being declared to be recognised Churches and to make recom-

miendations to the State Government thereon.

tian Marriage 5 -l 54 (2) In making any recommendation to the State Gov- ernment under sub-section (1), the Committee shall have regard to the following, ainong other matters, namely:--

(i) whether the Church is properly organised;

{till wheilicr the Church is 1*egistei'ed under any law for the time being in force relatlnr' to the regis- tration of societies in general or religious societies in ioarticular;

{iii} whether the Church has well--established rules for the sole:-nnization of marriages;

ii-o} whether the Church has proper places oi worship;

(1)) whether, according to the rules of the Church, clergj,-'men are ordinarily ordained to solemnize marriages;

{oi} whether the strength or standing of the Church is such as to justify recognition being accord- ed thereto.

(3) The State Government, after taking into considera- tion the recommendations made by the Committee under this section, may by notiﬁcation in the Oillcial Gazette declare any Church to be a recognised Church for the purposes of this Act, and any such notiﬁcation may also dectare a group of Churches belonging to any organisation or denomination to be recognised Churches.

8. The State Government rnafg, "oi: riotiﬁcation in the Olﬁcial Gazette, grant licences to i;';in.isters of Church to solemnizo marriages within the ~:.'hoTe or on}-' part of the State.

E}. (I) The State Government in: by noti1"ice;.tion in the Uﬁicial Gazette, appoint any person to be a Marriage [g_ -,3 Chris- Registrar for any district.

tiau Marriage (2) Where there are more Marriage Rngfsa rars than one in any district, the State Government shall appoint one of them to be the Senior 1'.-larrioge Registrar.

(3) Where there is only one I\:i'.3_rr:o.ge Registrar in a district, and such Registrar is absent from the district or is iii or his oﬁice is temporarily vacant, any person autho- rised in this behalf by the State Government, by general or special order, shall act as, and be, the Marriage Regis- trar of the district during such absence, illness or tempo- rary vacancy.

19. For the _"urpo:.cs of this Act. in its application ' to Christians dormcxled in India 'min are outside India, the _ . . s .,. . Outside Central Government may, by notiﬁcation 121 the Uiric1al1n_dga_ Gar:-:t1.e,---- U'*'°"'l (:1) in the ease of the State of Jammu and Kashmir, Cf. S. 3 (23 appoint such officers of the Central Government as it 5'M-'"'- may think fit to he the Marriage Registrars for the State or any part thereof; and (la) in the case of any other country, place or area, appoint such diplomatic or consular officers as it may think fit to he the Tviarriage Rerristrars for the country, place or area.

B.----M£trrir1ge.s before Ministers of -recognised Churches

11. {1} Marriages may be solcmnized under this Act 5°'Fmﬂi;_ by any Minister of a recognized Church according to the :*:;';§'aE';s rules of the Church of whoich he 15 a Mtnister and in the -,3}. M_,"n;,;r¢.-3 presence of at least two Witnesses. of recognised Clnlrchcs.

iS- 's._ part.

Christian It-iarriage {2} No such marriage shall be solernnized~-- -""1 (01) if the Minister has reason to believe that the [I'~'t=('-V] solemnization of the intended marriage would be contrary to the provisioris of section =1' or

-3

(b) if any other lawful impediment be shown 1o the satisfaction of the Minister why such marriage should not be solemniaedg or

(i) by the hridewroom, and

(ii) by the bride or_ if she is a minor for whose marriage the consent of the guardian is required under this Act, by the guardian on behalf of the bride.

C.---Marriages before licensed Ministers and Marriage Registrars I2. (I) When a marriage is intended to he solernn'7..r-d by a_ licensed Minister or loy or in the }_:resence of ;1',1r.l';lLﬁ,;;§__,e[,:, Marriage Registrar, the parties to the marrzarm shall giw,' 3- L LiL'x:r1::ed notice thereof in writing in the form Speciﬁed in the -\1inis-ﬁrs, Second E-3chcdule,--~ ;'[["'-r'ri"]gd .2 ti '-3 _ _ _ _ l'I- t'C l~'.

{ct} to the licerzsed Ii.-'I1mster whom they desire to E.'fjJ.":Ir2 End solemnize the marriage, or s. 1.8; Chris'- [i_an Pviar {bl to the Marriage Registrar of the r'i5:'ric-i; -In r';"§i°":M_$_'_'] which at least one of the parties to the marriage has s.l'»i.h.i' [New] Procedure to be followed by licensed Minister on receipt of notice.

[S. I 3, Chris-

tian Marriage .-'Act.] . .6 ), ha. "

S. 14, 'alien Marriage Act] E; .15» M r1s_u.an smug:

J'sCt.} Cf. also a. 39.

and pu'I., Christina Mlrringe Act.

dsiia M .

Act 56 resided for a period of thirty days immediately preced- ing the date on which such notice 15 given.

(2) Where the bride is a minor for whose marriage the consent of the guardian is required under this Act, the notice to be given under sub--section (1) shall be signed on behalf of the bride by the guardian.

(3) The licensed Minister or the Marriage Registrar, as-

the case may he, shall keep all notices given under sub- section (1) with the records of his office and shall also forthwith enter a true copy of- every such notice in a book prescribed for that purpose, to be called the Marriage Notice Book. .

13. Where a notice under section 12 is given to a licensed-

Minister, he shall proceed as follower-

{a) if the parties intending marriage desire it to he solemnized in a particular church building, and if the licensed Minister be entitled to ofﬁciate therein, he shall cause the notice to be published by affixing a copy thereof to some conspicuous part of such church building;

(b) if he is not entitled to ofﬁciate as a Minister in such church building, he shall notwithstanding anything contained in sub-section (3) of section 12, at his option, either return the notice to the person who delivered it to him, or deliver it to some other licensed Minister entitled to oﬁiciate therein, who shall there- upon act as if the notice were given by the parties to him under section 12;

(c) if it is intended that the marriage shall be solemnized in a private building, the licensed Minister, on receiving the notice under section 12_ shall forward a copy thereof to the Marriage Registrar of the district, who shall cause it to be published by aﬁixing it to some conspicuous place in his own office;

(d) if the bride intending marriage is a minor, the licensed Minister, on receiving the notice under section 12 shall, unless within twenty--four hours after its receipt he returns the same under clause lb), send by post or otherwise a copy of such notice to the Marriage Registrar of the district, or, if there be more than one Marriage Registrar of the district, to the Senior Marriage Registrar, and the Marriage Registrar _or Senior Marriage Registrar, as the case may be, on receiving any such copy, shall aﬁix it to some conspi- cuous place in his own office and the latter shall fur- ther cause a copy of the said notice to be sent to each 57 of the other Marriage Registrars in the same district, who shall likewise publish the same in the manner above directed.

14. Where the notice under section 12 is given to a PF°¢'=d""= Marriage Registrar, he shall proceed as follows:-- Egwiﬁ fig"

Marriage Rcgistrng DD ITCC1 of notice.

{-1) the Marriage Registrar shall cause the notice [s. 39, in to be published by aﬁixing a copy thereof to some I331'!-i"?_1"|' conspicuous place in his own office; 32:: Ac,"

Cf. 1. 6 J}.

S.M.A.

(b) if the bride is a minor, the Marriage Registrar 13. 39. and shall, within twenty-four hours after receiving the Em-= 51""- notice under section 12, send, by post or otherwise, a ﬂag] copy of the notice to each of the other Marriage Regis- c _.1so ., [5, trars, if any, in the same district, who shall aﬂix the 'n}ian copy to some conspicuous place in his own oﬂice; A'M;_"'"'3°

(c) if either of the parties intending marriage is [Nerd not permanently residing within the local limits of the district of the Marriage Registrar, the Marriage Regis- gfjufhﬁ €31' trar shall also cause a copy of such notice to be ' ' transmitted to the Marriage Registrar of the district within whose limits such party is permanently resid-

ing, and that Marriage Registrar shall thereupon cause a copy thereof to be affixed to some conspicuous place in his own office.

15. (1) Any licensed Minister or Marriage Registrar less 0*' d consenting or intending to solemnize any marriage under mace "

this Act shall, on being required so to do by or on behalf [3, x}, pm, oi either of the persons by whom the notice was given, 24, 41. Pm. issue under his hand a certiﬁcate of notice in the form 5."- specified in the Third Schedule.

Act] (2; No such certiﬁcate shall be issued--- §§-4;f- ; (it) until the expiration of seven days from the H '.

date of publication of the notice or, where the bride A.,,_] is a minor, until the expiration of twenty-one days from the said date; and {b) unless a solemn declaration has been made before the licensed Minister or the Marriage Registrar, as the case may be, in the form speciﬁed in the Fourth Schedule-

ii) by the bridegroom, and {it} by the bride, or, if she is a minor for whose marriage the consent of the guardian is required under this Act, by the guardian on behali of the bride.

Dbjgcﬁgntg 16. (1) Any person may, before the expiration of seven certiﬁ_<:at<=. days from the date on which any notice has been published g}°":l 7 1) under section or section 14. nraite an objection in writ- and 5' 7 (3), ing to tne marrzage on the grazunci that it \=.*o'uld contravene s.M,,rt, one or more of the conditions speciﬁed in section 4.

cf. 5. 8 (1), {2} If an objecfirin is made under sub-section (I). the Earlier P311: licensed Minister or the l'«'Iar:'age Registrar shall not issue S-MA' the certiﬁcate under section 1:3 unless he has iitquired into the matter of the ohjecti-on and is satisﬁed that it ought not to prevent the issue of t.he certiﬁcate or the objection is withdrawn by the person makiiig it.

Cf. s. 3 (ii, (3) The licensed Minister or the Marriage l'i!.'.'Tl5'[i'E!I' shall lattcr Part. not t:--:,'-re- more than ".l']l1"[_1,' jays from the date of the objec-

54"-Ar tion for the purpose of inquiring into the matter of the ohjecioii and arriving at a decision.

Application 17. (I) If the licensed Miriister or the Marriage Regis- to district trar upholds an objection to an intended n-iairizzge and re- ggzlfstkglgagft fuses to issiie_th:'+ certiticatej oi notice ofl'm_arria2ge, _ either Objection. party to the intended niarriagge may, within a period of £5. 46, twenty--one days from the date of such refusal, apply by Chfiﬂiaﬂ petition to the district court.

Marﬁagc git: '~'=Kt¢ﬂd' (2) The district court mag; examine the allegations of Cﬂls' 3 (3,, the petition in a summary manner, and shall decide the _ _ _ ' matter after giving a reasonubie opportunzitg,-' to the parties to he heard.

{3} The decision of the tltstrict court on such petition shall be final, and the licensed Minister or the Marriage Registrar shall act in coriformity with the decision. P1'°'=,°d"1'9 '"1 18. Where an objection is made under section 16 to a gﬁgﬁitogfby Marriage Registrar outside lndia in i'es,oect of an intended Maniage marriage outside India. and the Marriage He-gistrar, after Rcgistrar making such inquiry into the matter ..-s he thiizks ﬁt, enter- 3b1'°-"d- tains a doubt in respect thereof, he shall not soiemnize the [New] marriage but shall transmit the record to the Central Gov- ernment with such statement respecting the rnattter as he Cf- 5- I0: thinks fit to rnaire, and the Central Government, after mak-

- 5- ing such inquiry into the matter and after obtaining such advice as it thinks ﬁt, shall give its decision thereon in writing to the Marriage Registrar, uho siiail act in con- forinity with the decision of the Central Goverrnn-orit.

Certiﬁcate 19. No licensed Miniester or Marriage Registrar shall 1101710 be issue a certiﬁcate of notice in respect of any marriage or ﬁiﬁgginiot solernnize any marriage under this Act----

Liizgg ;c1;iem- (at) if he has reason to believe that the solemniza- semi" 933$ tion of the intenrlcd rnarriage would be contrary to [S. 17, part, the provzszons of section -1; er

3. 4.1:, part ' I I "gt 5-CL]I'l§_= (h) if any other lawful impediment be shown to his gin Mar},-aée satisfaction why such ceitiﬁcate should not be iSShEd Acr_] or such marriage should not be solemnized.

20. After the issue of the certiﬁcate of notice by the Sgo1emm'za- licensed Minister, the marririge. may be solernnized be-tween '{°" C'; mar' the persons therein described by the licensed Minister according to such form or ceremony as obtains in the M_jni5n-_-r_ Church to which the licensetl Minister belongs and in the [g_ 251 presence of at least two with esses. giirisiian J. 'll"TlH C Act] g

21. (1) After the issue of the certiﬁcate of notice by the Solemniza- Marriage Registrar, the martiapje may be solernriized be-"Em "f ma"

tween the persons therein d:scribe.:1 by or in the presence ﬁfgigge

-of the Marriage Registrar according to such form or ccrc-- Rcgi5[rar_ mony as the parties think fit to adopt. and in the presence [S_'5I_ of at least two witnesses: Eilriﬁiian . a:'r'agc .'5iCI.] Provided that the marriage shall not be complete and Cf. s_. 12(2), binding on the parties unless each party says to the other1'mV!'0a in the presence of the Marriage Registrar and the wit- S'M'A' nesses and in any language understeocl by the partiesw "I, {A.B.) take thee (C.D.] to be my lawful wife (or husband)".

(2) The marriage may be sclemnizcdu ((1) at the office of the Marriage Registrar; or ['.\'¢w]

(b) at such other place in his district and within Cf. s. 12(1), a reasonable distance 'Store his oiiice, as the parties S.M-IL may desire, and upon '::L1Ci'1 conditions and the payment of such additional fees may be prescribed.

22. If a marriage is not soleronized within three months Certiﬁcate after the date of the certiﬁcate issued by the licensed Min- void if mar- ister or the Marriage Registrar under section 15, such "3,8" ".°'ed certiﬁcate and all proceedings. if any. thereon shall be void, lfhme and no person shall proceed to solemnize the said marriage m._mh5_ until new notice has been given and the certiﬁcate l.l1E.'I"€'Of{5g_ 25 and issued in the manner provided in this Chapter. :2, Christian Marriage Act] C)'. 5. I4, S.M.A. D.--Registration of marriages

23. (I) When the marriage has been solemnized, the Certiﬁcate Minister of recognized Church or the iicensed l'-xlinister or °fd"'?':!33°* the Marriage Registrar, as the case may he, shall enter a::,'mU';_°'3' certiﬁcate thereof in the form speciﬁed in the Fifth Scho- dule in a book to be kept by him for that purpose and to [.<s.27Io 36. be called the Marriage Certiﬁcate Book, and such certiﬁcate '5!-1d34;» 5- $5 shall be signed by the parties to the niarriage and the ffhﬁmfan - ' witnesses. Marriage Act} Ci'. 5. 113(1), S.M.;"-.

*?'f. 8- Is (22. (2) On a certiﬁcate being entered in the Marriage Cer-

5M- tiﬁcate Book by the Minister of a recognized Church or the licensed Minister or the Marriage Registrar, the certi- ﬁcate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized.

Eff. 5. 43, (3) Every Minister of a recognized Church, licensed 5-M--'L Minister or Marriage Registrar in a State shall send to the Registrar-General of that State, at such intervals and in such form as may be prescribed, a true copy of all entries made by him in the Marriage Certiﬁcate Book since the last of such intervals.

CHAPTER IV Rssrrrunon or CONJUGAL Rroirrs Restitution. 24. (1) When either the husband or the wife has, with- [s_ 32, part, out reasonable excuse, withdrawn from the society of the Divorce other, the aggrieved party may apply by petition to the 5°53 district court, for restitution of conjugal rights.

[S_ 33, Di_ (2) Nothing shall he pleaded in answer to such peti- vnroc Act] tion which would not be a ground for judicial separation or for nullity of marriage or for divorce.

5_ 32, pan, (3) The court, on being satisﬁed of the truth of the £ivorctAct.] statements made in such petition, and that there is no legal ground why a decree of restitution of conjugal rights should not be granted, may decree restitution of conjugal rights accordingly.

CHAPTER V Jomcnu. Snranarron Judicial 25. Either party to a marriage, whether solemnized '°1-""'"°"-_ before or after the commencement of this Act, may pre- [5- 22: =,|fl1¢1' sent a petition praying for a decree for judicial separa-

"'"; Ij_',_:t_] tion on any of the grounds speciﬁed in section 30.

%i'M";«..'°""

(I)! Effect of 26. (1) Where a decree for judicial separation has been iudicial passed, it shall no longer be obligatory for the petitioner ;:E.']_'§"i:;°'' '"1 to cohabit with the respondent. :0 .

[S. :2, latter _'J-9-4.

(2) The court may, on the application by petition of C)'. s I0 (31 either party and on being satisﬁed of the truth of the state 3 MA- ments made in such petition, rescind the decree where the CL s_ 3 {1} parties have expressed a desire to come together and to S.M.A. resume cohabitation or where for any other reason the ' court considers it just and reasonable to rescind the decree. E14 (1. ..

. ,.A. CHAPTER VI NULLITY or MARRIAGE

27. Any marriage solemnized, whether before or after void mar- the commencement of this Act, shall be null and void and rinses- Inay, on a petition presented for the purpose, be so dec1ar- [S. :8, Di- ed by a decree of nullity, if it contravenes the condition "Om 5"

speciﬁed in clause {i} or (ii) of section 4. :33 ','9(I3E')' Divorce Adz} Cf. a. II, opening line:

H.M.A. Cf. a. 24 (1)-

(EJ, S.M.A. 2.8. (1) Any marriage solemnized, whether before orvo;dab1¢_ after the commencement of this Act, shall be voidable and marriages.

may be annulled by a decree of nullity on any of the fol- lowing grounds, namely:---

[[o) that the marriage is in contravention of the B3; 19 5(3) condition speciﬁed in clause (iii) of section 4; or "'°"=" "- Cf. :. I2 {I}

(b). H.M.A. Contrast s. 24 (no), S.M.A. [(13) that the respondent was impotent at the [5- '9 ('lt-

time of the marriage and continued to be so till the (1,3;";'°:2A::')1 institution of the proceeding; or (,,j_ 'H_MJ,_ Contrast

3. 24 (1) (5).

S.M.A. [(c) that the consent of the petitioner, or where [PER 19' 1""

the consent of the guardian in marriage of the pet1-- Divoice tioner is required under clause (1)) of section 4, the Act] consent of such guardian, was obtained by force or cf. 3. 12 (1) fraud; or ('L H 'A' C]. s. :5 {1':':') S.M.A. [New] [(cl) that the respondent was at the time of the marriage pregnant by some person other than the petitioner. CL 3. 25 (,3),

5.M.A. {New} Contrast, 3- 24 (I) go, s..u..A..

cw]

-Cf. s. 12 (2), HJVL .

A Cf. s. 25, and proviso,

-S.M.A. C .9. I2 (2) .l'v/LA. and s. 25, Isl:

revise, .M.A. {New] Legitiniacy

-of children of certain void mar-

riages and voidabie marriages.

(2) Any marriage solemnized after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds, name-

ly:--

[(o.) that the marriage is in contravention of the condition speciﬁed in clause (iv) of section 4; or [(i)) that the marriage of the petitioner, being the wifc, is in contravention of the condition speciﬁed in clause ('0) of section 4.

(3) Notwithstanding anything contained in suh-section (I), no petition for annulling a marr1agc----

[(:1) on the ground speciﬁed in cluse (c) of sub- section (1) shall be entertained, if-

[(i) the petition is preserited more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or [{ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;

[(13) on the ground speciﬁed in clause (cl) of sub- section (1) shall be entertained, unless the court is satisfied---

[(i] that the petitioner was at the time of the marriage ignorant of the facts alleged;

[(ii_i that the proceedings have been institut- ed, in the case of a marriage solernnized before the commencement of this Act. Within one year of such commencement and. in the case of a marriage solemnized after such commencement, within one year from the date of the marriage; and [(1-',1'.1',) that marital intercourse with the con- sent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

(4) Notwithstanding anything contained in sub-section (2). no petition for annulling a- marriage under that sub- section shall be entertained if the petition is presented more than one year after the petitioner has completed the age of eighteen years.

29. (1) Where a marriage is null and void under section 2'? by reason of contravention of the condition speciﬁed in clause (11) or clause (ii) of section 4, any child begotten or conceived before the marriage is decfsred to be null and void, who would have been the legitimate child of the par- ties to the marriage if the marriage had been valid, shall __,..a' 63 be deemed to be their legitimate child notwithstanding that [5- 21: Di- the marriage is null and void. """°° Am] Cf. S. 16,.

H.M.A. Cf. s. 26.-

S.M.A. (2) Where a marriage is annulled by a decree of nullity under section 28, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if the marriage had been dissolved instead of having been annulled by a decree of nullity, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in this section shall be constru- Cf. s. :6, ed as conferring upon any child of a marriage which is void proviso, or which is annulled by a decree of nullity any rights in E-;"'1'-"""= or to the property of any person other than the parents in C'}_ _ 26:

any case where, but for the passing of this Act, such child proviso, would have been incapable of possessing or acquiring any -'3-M-A such rights by reason of his not being the legitimate child of his parents.

CHAPTER VII DIVORCE A.----Groimds of divorce 3!}. (1) Any marriage, so-leinnized whether before or Grounds of after the commencement of this Act, may, on a petition d"'°f¢¢- gresented either by the husband or the wife. be dissolved [5- 10; Ist y a decree of divorce on the ground that the respondent------- §';"1'§"'2§'3"

para. part, E-ivorcc Act ]

(i) has, since the solemnizstion of the marriage, s. 27 (a), committed adultery; or 3-1 -I -

Cf. s. 13 (I) (1), I'I.M.A.

(ii) has ceased to be a Christian by conversion off. 5. 13 (1) to another religion; or '§10sH-1"v'1--'L

(iii) has been incurably of unsound mind for a 5- I3 (I) continuous p::i'it,_'e. not less than three years imme- '-'"3' H-M-A-

diatel receciine the -resentation of the etitiorr or C5 3- 27 ('L y P U 9 P ' 3.M.A. (in) has, for :1 period of not less than three years Cf. 5. 13 (1) immediately pro. r:l?ng the presentation of the peti»(fvLH.M.A. tion, been suffering iroin a virulent and incurable form 1515127 (g); of leprosy; or - - -

(c) has, for a period of not less than three years Cf. 5- 13(1) immediately preceding the presentation of the peti- H-MA tion, been suﬁering from venereal disease in a corn- Q1-*_ ,_ 27¢-)_ municable form; or S.M.A. ' 37 (-75):

3. I3 {1}, main.

-Contrast s. :5 (0.

SMA is.

-03'. s. 3': ca).

P.M.D.A. CL I- 27 U3.

s.M.a.

qt s. 13 (1) {ix}, H.M.A. C11 3- 27 (in) S.l\-LA. and ' see the de-

ﬁnition of 'dcsertion.' ' .5. 2712-*-U. S.M.A. and Contrast

1. I0 (I){b)-

Judicial 'Separation, H.M.A. C}. 5. 1'3 (2)

-(s'),H.M.A. I. 17, last Icntcncc, S.M.A. Divorce after decree for judicial separation.

{NW1 No petition for divorce to be presen-

ted within dire: years of marriage.

f[Ncw] Cf. s. 14, H.M.A. S. 29.

3.M.A. 64

(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or

(vii) has wilfully 'refused to consummate the marriage, and the marriage has not, therefore. been consummated; or

(viii) has failed to comply with a decree for resti- tution of conjugal rights for a _ riod of two years or upwards after the passing of e decree against the respondent; or

(ix) has deserted the petitioner for -a period of at least three years immediately preceding the presen- tation of the petition; or (:12) has, since the solemnization of the marriage. treated the petitioner with cruelty.

(3) A wife may also present a petition for the disso- lution of her marriage by a decree of divorce on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

31. Where in respect of any marriage, solemnized whe- ther before or after the commencement of this Act, a decree for judicial separation has been passed, and there as been no resumption of cohabitation as between the parties to the marriage for a period of two years or up- wards after the passing of the decree, either part may, by an application in the proceeding in which t e decree was passed, pray for a dissolution of the marriage by a decree of divorce; and the court may, on being satisﬁed of the truth of the statements made in such application, pass a decree accordingly'.

32, (1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce under section 30, unless at the date of the presen- tation of the petition three years have elapsed since the date of the marriage:

Provided that the court may grant leave to present 8 petition before the said three years have elapsed, if the 'If it is considered that a fresh proceeding for divorce should be ﬁled the clause can run as follows :

"Either the husband or the wife me also present a petition for the dissolution of the marriage by a deuce in divorce on the ground that there has been no resumption of cohabitation Is between the parties to the manic c for a period of two years or upwards utter the passing of a decree for 1' icial separation in a proceeding to which they were oat-tics ".

court thinks ﬁt to do so on the ground that the case is one of exceptional hardship to the petitioner or of excep- tional depravity on the part of the respondent; but any such leave may, in the interests of justice, be revoked by the court at any time before a decree waist of divorce is passed; and where the leave is so revoked, the court may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said three years upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

{2} In disposing of any application under this section C.f- 5-14(2). for leave to present a petition for divorce before the H'M'A° expiration of three years from the date of the marriage, s_ 29 M the court shall have regard to the interests of any child- S.M.A. ' ren of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said three years.

B.------Re-marriage after divorce

33. Where a decree of divorce has been made absolute Re-marriage under section 42 or a decree of divorce has been passed Of divorced under section 31, and the time for appealing has expired P""""""' I without an appeal having been presented or an appeal [3- 57' D1' has been presented but has been dismissed and the decree Wm" Act)' of dismissal has become ﬁnal, but not sooner, either party g{'é'A'3 ('J3 to the marriage may marry again. Qantas, and a. go, S.M.A. CHAPTER VIII JURISDICTION AND PROCEDURE

34. Nothing contained in this Act shall authorise any Relief to be court to grant any relief under Chapters IV to VII, gfgllf except Where-- ml, ""

(a) both the parties to the marriage are Chris-{S 2, 2nd glans at the time of the presentation of the petition; 532:

(33) both the parties to the marriage were Chris-

tians at the time of the marriage, and at least one of the parties is a Christian at the time of the presenta- tion oi the petition; or

(c) the marriage was solemnized under any enactment repealed hereby, and at least one of the 66 parties is a Christian at the time 01 the presentation of the petition'.

Jurisdiction 35. Nothing contained in this Act shall authorise any of Indian 1;

can-ns_ pour [S. z,D_-ire] (ti) to mzil-ze any decree of dissolution of marri- a.ra., 1- __ game Act] age, except where _ ' - h (1) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

(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 presentation of the petition;

Is. 2, 4th {ii} 1;: make any decree of nullity of marriage, ta, 1; _.

ﬁivoicc excep W' ere I . I .

Act] (L) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or

(ii) the marriage was solemnized under this Act or under any enactment repealed hereby, and the petitioner is either domiciled or residing in India at the time of the presentation of the petition;

[S. 2, 5th (c) to grant any other relief under Chapters IV 033%., Act to VII, except where the petitioner is residing in D"'°'C" '1 India at the time of the presentation of the petition. C;'1:'é'1'° 36. (1) Every petition under sub--section (5) of sec- gcmion :0 tion 5 shall be presented to the district court within the be made. local limits of wliose ordinarjr original civil jurisdiction {Mm} the bride resides.

[New] (2) Error}? petition under section 7 shall be presented to the district court within the local limits o.E v.-'hose ordinary original civil jurisdiction the licensed Minister discharges 1Thc following alternative draft can also be considered :-

" No court shall grant any relief under Chapters IV to VII except where at least one of the panics was a Cliristiari at the time of the marriage and continued to be so till the institution of the proceeding ".

This is wider in some rcspect than the main draft, her;-ruse it will cover cases where 2 Cliristian and a non--Christisri nizirij: outside India (or Lhouch this can happen i'cr~_i- rarely cw.-en witliin Ir:die_.wl'cre the personal law of the non- Christian allows such marriage} and one of the parties petitions for matrimonial relief. It is, how- ever, narrower in one respect than the main draft, because, it will :1: t apply to cases where for example, two non-Christians marry and then be omc converts to Christianity.

It is narroti er than the existing section, by requiring that one party should have been a Christian at 1l'ie time of the marriage also | K 8'7 Lhis functions or the office of the Marriage Registrar is situate, as the case may be.

(3) Every petition under Chapters IV to VII shall be [Rd 3 L1): Part ;presented to the district cot1rt_ W1_th_1n_the local limits of '33:" 5- 3 (3?

-whose ordinary original civil }u1'S1dlCt101'1---- Divgrce AC,'

3. In first P373: P3":

and second para. part, Divorce Act, and section 23, earlier part, Divorce Acr,} "((1) the respondent is residing at the time of the Cf. 5.251(1), __ presentation of the petition, or P-M-D-A

(b) the marriage was solemnized, or Cf I9.

H.}n:ii.

(c) the husband and wife last resided together, 5. 31 (I).

0,. S.M.A. (ct) the petitioner is residing at the time of the c;_ g_ 29 (3), presentation of the petition, provided the respondent P.M.D.A. is, at that time, residing outside India.

3?. {1} Every petition presented under Chapters IV Content; :10 VII shall state as distinctly as the nature of the case ;'i'£n.;':':f permits the facts on which the claim to relief is founded pemiDns_ and shall also state that there is no collusion between [5 47 M 'the petitioner and the other party to the marriage. ,,_.;,,,, ',,,,d s. 10, third para, Di.-

vorce Act} Cf. 3. 2o, H.M.A. s. 32, 3.51.25.

(2) The statements contained in every petition underl3- 4?, ,2nd Chapters IV to VII shall be verified by the petitioner or 9313-» E1-I some other competent person in the manner required by 'me': "'1 law for the verification of plaints and may, at the hear- ing, he referred to as evidence.

38. Subject to the other provisions contained in this Appiication Act and to such rules as the High Court may make in of Code pf this behalf, all proceedings under this Act shall be regu- $E';"1'1'r'F'°' lated, as far as may be, by the Code of Civil Procedure, ' _ isos. 1*' 45: D1' vorcc Act] 6}'. s. 2;, H.M.A. Cf. s. 40, S.M.A. 5 of 1903.

5 of I903.

281 L---7 Decree in proceedings.

IS. I2, part,

5. I3, part,

3. 14, part, and 5. 23, latter part, Divorce Act] Cf. s. 24, I-I.M.A. S. 33, S.M.A. [New] [New] Adultcrcr or adultercss to be a co-res-

pendent.

IS. 11, Di-

vorce Act.] . s. 3, M.C.A.I95o.

Of. .9. 4: (2) (at), S.M.A. 63

39. (1) In any proceeding under Chapters IV to VII, whether defended or not, if the court is satisﬁed that-

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advant- age of his or her own Wrong or disability for the pur- pose of such relief, and (tr) where the ground of the petition 15 adultery, the petitioner has not in any manner been accessory to or connived at or condoned the adultery, or Where the ground of the petition is cruelty, the petitioner has not in any manner condoned the cruelty, and

(d) there has not been any unnecessary or im- proper delay in instituting the proceeding, and

(a) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under Chapters IV to VII, it shall he the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconci- liation between the parties.

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if it thinks it just and proper so to do, adjourn the proceeding and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether a recon- ciliation can be, and has been, effected, and shall, in disposing of the proceeding, have due regard to the report.

40. (1) On a petition for divorce or judicial separa- tion presented on the ground of adultery the petitioner shall make the alleged adulterer or adulteress a co- respondent, unless the petitioner is excused by the court from so doing on any of the following grounds, namely:---

(a) that the respondent is leading the life of a prostitute, and that the petitioner knows of no per- son with Whom the adultery has been committed;

(b) that the name of the alleged adulterer or adulteress is unknown to the petitioner although the petitioner has made due efforts to discover it;

.:,__.

(d) any other ground which the court may regard 67- S. 3, as sufficient in the circumstances of the case. M'C'A' (2) The provisions of sub-section (1) shall, so far as [New.] may be, apply in relation to the answer of a respondent praying for divorce or judicial separation on the ground C_ S_ 2' of adultery, as they apply in relation to a petition for M.C.A. ' divorce or judicial separation presented on that ground.

41. If, in any proceeding for divorce or judicial separa- R6561' I0 tion, the respondent opposes the relief sought on the §§5g;';'ed"o'}' ground of the petitioner's adultery, cruelty or desertion, opposition", the court may give the respondent the same relief to petition for which he or she would have been entitled if he or she had diY°F,¢¢ 0"

presented a petition seeking such relief, ;';g'§n"§s_ [S- 15, Divorce Act.]

42. (1) Every decree for divorce under section 30 Decree nisi shall, in the ﬁrst instance, be a decree nisi, not to be made f0' d1g°f°°- absolute until after the expiration of ;six months from Eire: Act." the pronouncing thereof, unless the court ﬁxes a shorter time.

(2) After the pronouncing of the decree nisi and Cf. ss. 12 (1), 'before the decree is made absolute, any person may, by 12 gig an application made in accordance with such rules as M may be made by the High Court in that behalf, show cause why the decree should not be made absolute by reason of the decree having been obtained by collusion or by reason of material facts not having been brought before the court, and in any such case the court may make the decree absolute, reverse the decree nisi, require further Enquiry or otherwise deal with the case as the court thinks t.

(3) Where a decree mist has been obtained and no appli- 0155- 12 (3):

cation for the decree to be made absolute has been made ' 'A' within six months from the pronouncement of the decree nisi by the party who obtained the decree, then, at any time within three months from the expiration of the said six months, the party against whom the decree nisi has been granted shall be at liberty to apply to the court and the court, on such application, may make the decree absolute, reverse the decree nisi, require further inquiry or other- wise deal with the case as the court thinks ﬁt.

43. ( 1) A husband or wife may, on a petition for divorce Damages or for judicial separation, claim_ damages from any person :'r1"l' on the ground of adultery with the wife or husband of adu1mcss_ the petitioner. [s. 34, Divorce Act.] (2) The court may direct in what manner the damages [S- 39, 3rd recovered on any such petition are to be paid or applied, f;'i{,"(;;Cc Am] and may direct the whole or any part of the damages to Cf_ s_ 30, be' settled for the beneﬁt of the children, if any, of the M.C.A. marriage, or as a provision for the maintenance of the wife, AgIA(2)(b), or husband. V 70

44. Where in any proceeding under Chapters IV to VII and ,,x_ it appears to the court that either the wife or the husband, penses of as the case may be, has no independent income sufficient P1'0C°€d1ﬂ89- for her or his support and the necessary expenses of the [S_ 36 Di_ proceeding, it may, on the application of the wife or the ,,,,,ce'Act_} husband, order the respondent to pay to the petitioner the Cf_s_ 24' expenses of the proceeding, and monthly during the pro- H_M_A_ ceeding such sum as, having regard to the petitioner's Of. 3. 36. own income and the income of the respondent, may seem _ 5-M-A to the court to be reasonable. §,'§§,,"§,i',';°',',§,d 45. (1) Any court exercising jurisdiction under Chap- maintenance. ters IV to VII may, at the time of passing any decree or S D. at any time subsequent thereto, on application made to it E,o'rcZ2,',_ct;' for the purpose by either the wife or the husband, as the ' case may be, order that the respondent shall, while the ap- Cf. s. 25, plicant remains unmarried, pay to the applicant for her H-M-A or his maintenance and support such gross sum or such CL 3. 37, monthly or periodical sum for a .term not exceeding the life s,M,A_ of the applicant as, having regard to the respondents own income and other property, if any, the income and other property of the applicant and the conduct of the parties, may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisﬁed that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem iust.

(3) If the court is satisﬁed that the party in whose favour an order has been made under this section has re- married, or, if such party is the wife, that she has not re- mained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.

Disposal of 46. (1) In any proceeding under Chapters IV to VII, the P'°P"'Y' court may make such provisions in the decree as it deems [New] just and proper with respect to any property presented, at or about the time of the marriage, which may belong joint- ly to both the husband and the wife.

8. 4°a_main (2) In any case in which the court pronounces a decree Pa'3'D"'°'°° for divorce or nullity of marriage, the court may inquire Am] into the existence of ante-nuptial or post-nuptial settler of. s. 25, ments made on the parties whose marriage is the subject M-C-A~ of the decree, and may make such orders, with reference to the application of the whole or any part of the property so settled (whether the settlement is for the beneﬁt of the children of the marriage or of the parties to the marriage or both), as the court thinks ﬁt.

'T1 (3) The court shall not make any order under sub- 5- 43=.F"°' section (2) for the beneﬁt of the parents or either of them :'§'1f,':'e A2,.) at the expense of the children.

47.111 any proceeding under Chapters IV to VII, the Custody of court may, from time to time, pass such interim orders and Children- make such provisions in the decree as it may deem just and [S5 4, 42 proper with respect to the custody, maintenance and edu- 43 3,1,1' 44,' cation of minor children. consistently with their wishes,I)ivnrce wherever possible, and may, after the decree, upon applica- Act] tion by petition for the purpose, make, from time to time, HM5}, all such orders and provisions with respect to the custody, 3,' 3'3,' - maintenance and education of such children as might have S.M.A. been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.

43. A proceeding under this Act shall be conducted in Proceedings camera it either party so desires or if the court so thinks "133 bean? fit to do, and it shall not be lawful for any person to print $30, be or publish any matter in relation to such proceeding except published. with the previous permission of the court. [8, 53:

Divorce Act.} I _ :2 U}, 3- 33:

S.l\-'LA.

49. Except as otherwise provided in this Act, all decrees Appeals and orders made by the court in any proceeding under this from d='=r'='= Act shall be appealable as decrees of the court made in ['"'§"1 °'d"f,_:T the exercise of its original civil jurisdiction, and such D,',.,§,5,§c§,]a,¢,_'} appeal shall lie to the court to which appeals ordinarily lie Contrast from the decisions of the court given in the exercise of its 5- 23» original civil jurisdiction. §"'$:°"

Provided that there shall be no appeal on the subject 3'M'A' c. . 96, of 0051'-S °n1Y- Cgdesof Civil Procedure.

50. All decrees and orders made 'r the court in any Enforccmem proceeding under this Act shall be en orced in the like gfddeigeii manner as the decrees and orders of the court made in the " ° ' 26, a a - - 1 » - . . 1 . . S' J an} exercise of its original civil _'ju1"1SdICl.1Dl'l for the time being hivéiep are enforced. Act] Cf. s. 23, I-I.M.A. 3.39: S.I|-'LA.

PENALTIES

51. Every person whose marriage is solemnized under Punishment this Act and who, during the lifetime of his or her wife 01' bis?-mi'. or husband, contracts any other marriage shall be subject [News] to the penalties provided in section.494 and section 495 5_j,,{_,i§,_ 44' of the Indian Penal Code for the oﬁence of marrying 45 of 1859 again during the lifetime of the husband or wife, and the marriage so contracted shall be void.

3. I am not related to C. D. (the bride) within the prohibited relationship.

4. I am a Christian.

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).

Dacmmnom TO 131-: MADE BY THE Barns I, C. D., hereby declare as fo1lows:-----

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 prohibited relationship.

4. I am a Christian.

5. Consent of my guardian in marriage, Shri . . . . . . . ..

............. .. has been obtained to my proposed marriage with AB.'

6. I am aware that, if any statement in this declaration is false, I am liable to imprisonment and also to ﬁne.

(sci) c. D. (the Bride).

NOTE :--In the case of a minor bride for whose marriage the consent ofan is required, the guardian should sign on her behalf.

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. 1 }- Two witnesses.

{Sd.) I. J.

(Countersigned) E. F. Minister of a recognised Church"

_I_s_ieensed_ Minister' Marriage Registrar' Dated the ...................... ..day of .... ....... 19 .......... ..

'Sn-ii e off if not applicable. If in iieu of guardian's consent, permission of the rdjstrict court has been obtained state so.

'Strike on" what is inapplicable.

-declares that the objection is not 'F3 (2) Whoever, being a licensed Minister or a Marriage Registrar, refuses, without just cause, to solemnize a marriage under this Act, shall be punishable with simple imprisonment for a term which may extend to three months, or with ﬁne which may extend to one hundred rupees, or with both.

51'. Whoever, being authorised under this Act to Pcnalt)' for solemnize a marriage, knowingly and wiIfu1ly-- (rt) so-leninizes such marr-iage--- %'la1'_1'iag¢ . . . . - . E 1S[l'al' 01' (7,) without publishing a notice regarding M,-§,,m,',._.m_ such marriage as required by any provision of [.53. 69, 7::-, this Act, or 7:, 73Ch:'i1sd

(ii) in contravention of any other provision Lujarrjagg contained in this Act, or Act.]

(b) issues any certiﬁcate in contravention of any 45' provision contained in this Act, ' ' ' .-shall be punishable with simple imprisonment for a term which may extend to one year, or with ﬁne which may

-extend to five hundred rupees, or with both.

58. Whoever, by himself or another, wilfully destroys Dcstmying or injures any Marriage Certiﬁcate Book, or any part or falsifying thereof or any authenticated extract therefrom, or falsely giargliiacgﬁc makes or counterfeits any part of such book, or wilfully B,,f,k3_ inserts any false entry in any such book or authenticated I extract, shall be punishable with imprisonment for a [$-7s:Ch_r1s- term which may extend to seven years and shall also be '"'C"]M""3ge liable to ﬁne which may extend to two thousand rupees. '

59. Any person who prints or publishes any matter in Penalty for 'contravention of the provisions contained in section -13 P'1bH5hi."3 shall be punishable with ﬁne which may extend to one fﬁgcldmgs thousand rupees. _ cw"?

gcs£']2z (2) . H. J

60. No prosecution for any offence punishable under Limitation .section 52, section 53, section 54, section 55, section 56, 5." P"°'*'°""' section 57, section 53 or section 59 shall be instituted t.'s°""'5 after the expiry of two years from the date on which the[ ' 7 ' _ _ Christian

-offence is committed. Marriage .*'ict.] CHAPTER X MiscsLL.-iizsoos

61. (1) Where any person makes an objection against hiabﬂity for 'the issue of any certiﬁcate of notice of marriage and the f1'i"°1°"5 Marriage Registrar under section 16, or the district court °b'e°"°"5' under sub-section (4) of section _5 or under section 2?, [S_4gCh_1-ﬁg.

reasonable and has not itian Marriage been made in good faith, the Marriage Registrar or the AC'-1 district court, as the case may be, may, after givin h person a reasonable opportunity of being heard, Eufalifd, §:'j:,t'j'_3,.9 'Z3' Savings re-

garding irre-

gularities.

rs. _77, Christian Marriage 2\.ci.] Correction of errors.

[S. '38, Christian Marriage Act} Cf- 9- 49, S.M.A. Solemniza-

tion of mar-

riage by Ministers of Church in

- places sanc-

tioned by Custom or usage.

[New] 74 by way of compensation, costs, not exceeding one thousand?

rupees, to the parties to the intended marriage.

(2) Any person aggrieved by an order of the Marriage-

Registrar or the district court under sub-section (1) may, within a 'period of thirty days from the date of the order, appeal to the district. court or the High Court, as the case- may be.

(3) Subject to any order passed on appeal under sub--« section (2), the order of the Marriage Registrar or the district court under sub--section (1) shall be ﬁnal.

{4} Any order of costs made under sub-section {J} rnay be executed in the same manner as a decree passed"

by the district court within the local limits of whose jurisdiction the office of the Marriage Registrar is situate-

82. Whenever any marriage has been solemnized bet- ween two Christians under this Act in accordance with the provisions of section 6, it shall not be void merely on account of any following matters, name-ly:----

_ (i) any statement made in regard to the dwell- ing place of the persons married; {ii} the notice of the marriage;

(iii) the certiﬁcate of the notice of the marriage-

or translation thereof;

(its) the registration of the marriage.

63. (1) Any person authorised to solemnize a marriage under this Act, who discovers any error in the form or substance of any entry in the Marriage Certiﬁcate Book may, within one month next after the discovery of such error, in the presence of the persons married, or, in case of their death or absence, in the presence of two other witnesses, correct the error by entry in the margin, without any alteration of the original entry and shall sign the marginal entry and add thereto the date of such correction.

(2) Every correction made under this section shall he attested by the witnesses in whose presence it was made.

(3) 'Where a copy of any entry has already been sent under sub--section (3) of section 23 to the Registrar- General, such person shall make and send in like manner a separate certiﬁcate of the original erroneous entry and' of the marginal corrections therein made.

64. Subject to the other provisions contained in this Act, a marriage under this Act may be solcmnized by a Minister of a recognised Church or a licensed Minister---e

(a) in a church building, or irregularity in respect of any of the-

75.

(b) in any other place agreed upon between the parties to the marriage, if solemnization at such place is in accordance with the custom or usage applicable to the community to which the parties to the marriage belong.

65. Every Marriage Registrar shall be deemed to be a h,{arf]'g_g¢ public servant within the meaning of section 21 of the Registrars Indian Penal Code. '° $5 51'3"-med [CI 6 public scr-

WIIILS.

[New] 45 of 1860.

66. The Marriage Notice Book shall be open for inspec- Inspection of.

tion at all reasonable times, without fee, by any person Mgrflaﬂc desirous of inspecting the same. ilogie [S- 40. pm, Christian Marriage ASL] 61'. (1) The Marriage Certificate Book kept under this I'"P'?""°" Of Act shall at all reasonable times be o en for inspection and Mamag"

. . . , C ' t shall be admissible as evidence of t e statements therein B§§'k"_°'°" C contained. [S. 79 and So. part, S. (2) Certiﬁed extracts from the Marriage Certiﬁcate Chrisdan Book shall, on application, be given by the person who M3'T5"3° solemni;-zed the marriage or other person having the custody GEMS 4, for the time being of the Marriage Certiﬁcate Book, to any 3_1{,»1,,a;, "

person who applies for thesame. as (3), (3) Inspection of the Marriage Certiﬁcate Book under sub-section (1) and the grant of certiﬁed extracts therefrom under sub-section (2) shall be-

(ti) without fee, if applied for by the parties to the marriage at or about the time of the marriage;

(b) subject to the payment of the prescribed fee, in other cases.

68. Every certiﬁed copy, purporting to be signed by the Certiﬁed person entrusted under this Act with the custody of any '="_PY W b"

Marriage Certiﬁcate Book. of an entry of a marriage in such "deuce"

Book, shall be received in evidence without production or §g,,§§;,{"""

proof of the original. Marriage Act.]

69. {1} Any notice to be given or declaration to be made Language of by any person in respect of an intended marriage under this "Dim? Emd Act may be given or made in a language commonly in use d°°]""'"°""

in the State or the part of State in which the notice is given or declaration made, or in English. [New] (2) Every person solemnizing a marriage under this Act [$9. 23, shall satisfy himself that the parties to the marriage have n 53* understood the contents of the notice given and the dec1ara- Mm,-age tion made by each of them, and (where a certiﬁcate of Act.] TE notice of marriage is required to be issued under this Act) of the certiﬁcate of notice of marriage issued for the Ministers of marriage' . . . .

recognised 70. No Minister of a recognised Church shall be com- Churches nmpelled to solemnize any marriage, the solernmzation of compelled to which would be contrary to the rules of the Church of solerrmirc - - - -

marriages which he is a Minister.

contrary to the rules of the Church.

[s. 53, Di-

vorce Act, extended] Powers of 11. For the purpose of any inquiry under this Act, the Maimﬁﬁ Marriage Registrar shall have all the powers vested in a geﬁtggg civil court under the Code of Civil 'Procedure, 1908, when of j_nquj_1-i¢3_ trying a suit in respect of the following matters, namely: --

5 of I903 [s. 53, Chris-

tian Mar-

riage Act.] Cf- 5- 9 (I), (0.) summoning and enforcing the attendance of 3'M-A- witnesses and examining them on oath;

(b) discovery and inspection;

(ct) reception of evidence on aﬁidavits; and

(e) issuing commissions for the examination of witnesses;

and any proceeding before the Marriage Registrar shall be deemed to be a judicial proceeding within the meaning of 45 of Ig5o_ section 193 of the Indian Penal Code.

Emp1o:nation.--For the purpose of enforcing the attend- ance of any person to give evidence, the local limits of the jurisdiction of the Marriage Registrar shall be the local limits of his district.

Power to 72. (1) The Central Government may. by notiﬁcation in "§:'_ke8;"l'::i the Ofﬁcial Gazette, make rules for carrying out the pur-

' 3, chriman poses of this Act.

Mar-

riage Act.] Cf. 5, 50, (2) In particular, and without prejudice to the generali- ,S-MJL ty of the foregoing power, such rules may provide for all or any of the following matters, name1y:--

(o.) the duties and powers of Marriage Registrars and the areas in which they may exercise jurisdiction;

(b) the manner in which a Marriage Registrar may hold inquiries under this Act, and the procedure therefor;

(C) the form and manner in which any books required by or under this Act shall he maintained;

{d} the fees that may be levied for the perfor-

mance of any duty imposed upon any person under this Act;

71*

(e) the conditions under which licenses to solem- nize marriages may be issued by the State Government, and the circumstances under which they may be revoked;

(f) the surrender of such licences on the expiry thereof by revocation or otherwise;

(9') the procedure to be followed by Committees constituted under section 7'

(h) the form in which, and the intervals within which, copies of entries in the Marriage Certiﬁcate Book shall be sent to the Registrar--General;

(11) any other matter which may be or requires to be prescribed.

(3) Every rule made under this section shall he laid, as .soon as may be after it is made, before each House of Parlia- ment, 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 or be of no effect, as the case may be; so, however, that .any such modiﬁcation or annulment shall be without preju-

dice to the validity of anything previously done under that rule.

73. The High Court may, by notiﬁcation in the Oﬁicial Rules bythe Gazette, make such rules consistent with the provisions High Court- contained in this Act as it may consider expedient for the 62 DE_ purpose of regulating the procedure to be followed in peti-- Eire, pm] tic-ns under sub-section (5) of section 5 or under section _1'T, and for the purpose of carrying into eifect the provisions Cf-S-41(1), of Chapters IV to VII. 3-M-'''' 7-1. A marriage solemnized before the commencement Savings rc- of this Act, which is otherwise valid, shall not be deemed sardine mar- to be invalid merely by reason of any provision contained "ages 3° . . solemnized 1Il this Act? befgpg [ha Act.

[NW] Cf. the wording of '35. Nothing in this Act shall affect the provisions of Savings for the Special Marriage Act, 1954, or apply to any marriage °.'h°'-" mar' solemnized under that Act. 33:3, 'An alternative draft, based on section 79 (7) of the (English) Marriage '*3 °f 1954' Act, 1949, would be as follows :--- _ _ Cf 3 29 (4) " Nothing in this Act shall affect the validity of any marriage solcmnizcd H 'M'A before the commencement of this Act". ' ' ' But the words "affect the validity " would extend the protection, it can be argued, to voidable marriages also {which is not the intention). The phi-ascolcgy used in the English Act has not, therefore, been adopted.

Repeal.

4 of 1369 15 of 1372 15 of 1872 Cf. s. 5: (2), (G), S.}\-LA.

15 of 137;

Contrast 5- 29 (3).

I-I.M.A. and s. 51 (2)05).

S.M.A. 4 of 1869 :5 of 187;:

CL 5- 51 (3).

S.M.A. ID of 1897 [New} Of. First Schedule, S.l'v!l.A. 73

76. {I} The Indian Divorce Act, 1869, the Indian Christian Marriage Act, 1872, the Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction Act, 1949, the Indian Divorce Act, 1945, and any enactment corresponding -to the Indian Christian Marriage Act, 1372, in force in the territories which, immediately before the ﬁrst day of November, 1956, were comprised in the States of Travancore-Cochin and Manipur are hereby repealed.

(2) Notwithstanding such repeal,-~

(a) all marriages duly solemnized under the- Indian Christian Marriage Act, 18'F2, or any such corresponding enactment, shall be deemed to have been solemnized under this Act;

(b) all suits and proceedings in causes and matters matrimonial which, when this Act comes into force, are pending in any court under the Indian Divorce Act, 1869, or under the Indian and Colonial Divorce Jurisdiction Act, 1926, or under the Indian and Colonial Divorce Jurisdiction Act, 1940, or under the Indian Christian Marriage Act, 18'?'2, or any such corresponding enactment, shall be dealt with and decided by such court as if this Act had not been passed.

(3) The provisions of sub-section {2} shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897, which shall also apply to the repeal of the Indian and Colonial Divorce Jurisdiction Act, 1926, the Indian and Colonial Divorce Jurisdiction Act, 1940, the Indian Divorce Act, 1945, the Indian Divorce Act, 1945, and such corresponding enactment.

THE FIRST SCHEDULE Pnornsrren RELATIONSHIP [See section 2(m)] PART I . Mother . Father's widow (step-mother.) Mother's mother.

M-other's father's widow (step-grand-mother) . Father's mother Father's father's widow (step-grand-mother) . Daughter . Son's widow . Dauguhte-r's daughter

10.

11.

12.

13.

14.

15.

16.

17.

13.

19. Eat-pIa*n.ation.--For the purpose: of this Part, the expres-

"widow" includes a divorced wife. -

sion

20.

21.

22.

23.

24.

25.

26. 2?.

28.

29. .30.

31.

32.

33.

34.

35.

36. 3'7.

. 38.

Daughter's son's widow Son's daughter Son's son's widow Sister Wife's daughter (stepdaughter) Wife's mother Wife's son's daughter (step-son's daughter) Wife's daughter's daughter (step-daughter's daugh- ter) Wife's father's mother Wife's mother's mother.

Pmrrll Father M0ther's husband (step-father) Father's father Father's mother-'s husband (step-grand-father) Mother's father Mother's mother's husband (step-grand-father) Son Daughter's husband Son's son Son's daughter's husband Daughter's son Daughter's daughter's husband Brother I-Iusband's father Husband's son (step-son) Husbands son's son (step-son's son) I-Iuband's daughter's son (step--daughter's son) Husband's father's father Husband's mother's father.

E.1:p?.an41tion.---For the purposes of this Part, the expres- sion "husband" includes a divorced husband.

THE SECOND SCHEDULE [See section 12(i}] [St:h. I, Christian Marriage Act.) T0 Cf. Second The [licensed Minister]' [Marriage Registrar]'- for Schedule, s'M'!" We hereby give you notice that a marriage under the Christian Marriage and Matrimonial Causes Act, . . . . . . ..

. . . . . . . . .. is intended to be solemnized between us within three calendar months from the date hereof.

FORM or Norrer. or INTENDED MARRIAGE Name Condi1ionf0ccupa- Date of Dwelling Permanent Length Church, titan' birth place dwelling of chapel or place, if re5i- place of present deuce worship dwelling in wl_uch place not?' rnarnnﬁe permanent 13 to e solerrmlzed (if the marriage is to be so solem-

nize-cl) A. B. Unmarried Widow:

Divorce:

"--f:--jr C. D. Unmarried Widow Diturc-cc 'Strike off what is inapplicable. 4 M _ V ﬁt"

Witness our hands, this . . . . _ . . _ . . . . . . . . . . . . . . . . _ . . . . . ..

day of . . . . . . . . . . . . . . . . . . . . . . . .19 . . . . . . . . . . . Sd. A. B. Sd. C. D. NOTI.---In the case of a minor bride for whose marriage the consent of her guardian. ,'s required, the guarclian should sign on her behalf.

THE THIRD SCHEDULE [See section 15(1)] Form; or CERTIFICATE or NOTICE I, . . . . . . . . . . . . . . . . . .. do hereby certify that, on the ,m_] . . -- -- --.day of........----, notice was duly enteredin 81 my Marriage Notice Book of the marriage intended between the parties therein named and described, delivered under the hand of both the parties, that is to say,-

Nanie Condition Oceu- Dete QweH- Perma- Length Church, patio:-1 ot mg nent oi resJ- chapel or birth place dwell- denee place of ing worship in place, which if pre- marriage sent is to be dwelling ao]emniz-

place end {if the not marriage per1na- is to nent be so s.olemniz-

ed) A. B. Unmarried Widower Divorce:

CD. Unmarried Eid_°1L.

Divorcee and that the required by cfthe Chr1'stian Marriage and Matrimonial Causes Act has been duly made by the Date ofnotioe entered........,...,,A.,.,,,_,_, Date of certiﬁcate given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Witness my hand this . . . . . . . . . . . . . . . . . . . . . . ..day of . . . . . . . . . . . . . . I9 . . . . . . . . . . (8 cl.) This certiﬁcate will be void unless the marriage is solemnized on or hcforethe . . . . . .

day of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..r9 . _ _ _ . . . . . . . . . . . . ..

Licerlﬂd Minister' M'arn'age Registrar 1 THE FOURTH SCHEDULE [See sections 11(2) (c) and 15 (2) {b]] Decumnon TO BE MADE BY THE Brunmaoom [New] I, A. B., hereby declare as fo1lows:--- Cf. Third I. I am at the present time unmarried (or a widower §?Il'-r1$e.£.:i°llle1 or a divorcee, as the case may be).

2. I have completed years of age.

"To be ﬁlled up.

'Suﬁ: Off what is inapplicable.

3. I am not related to C. D. (the bride) within the prohibited relationship.

4. I am a Christian.

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).

Dacmmnom TO 131-: MADE BY THE Barns I, C. D., hereby declare as fo1lows:-----

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 prohibited relationship.

4. I am a Christian.

5. Consent of my guardian in marriage, Shri . . . . . . . ..

............. .. has been obtained to my proposed marriage with AB.'

6. I am aware that, if any statement in this declaration is false, I am liable to imprisonment and also to ﬁne.

(sci) c. D. (the Bride).

NOTE :--In the case of a minor bride for whose marriage the consent ofan is required, the guardian should sign on her behalf.

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. 1 }- Two witnesses.

{Sd.) I. J.

(Countersigned) E. F. Minister of a recognised Church"

_I_s_ieensed_ Minister' Marriage Registrar' Dated the ...................... ..day of .... ....... 19 .......... ..

'Sn-ii e off if not applicable. If in iieu of guardian's consent, permission of the rdjstrict court has been obtained state so.

'Strike on" what is inapplicable.

THE FIFTH SCHEDULE [See section 23(1)] FORM or Cnnrrrzcsrs or Mmamcs E I, E. F., hereby certify that on the . . . . . . . . . . .. day of [Schs. III " .......... ..19 . AB. and C.D.' appeared before me and *('_:11fﬁsIfa:u that the declaration required by section . . - - . - . .. Marriage I of the Christian Marriage and Matrimonlal Causes Act, Am] 1 19 ............. .. was duly made, and that a marriage under that Cﬁ F0"-H11 Act was solemnized between them in my presence and in Scllzﬁfle the presence of two witnesses who have signed hereunder. ' ' 3 (Sd.) E. F. Minister of a recognised Church' __ Licensed Minister"

Marriage Registrar.' (Sd.) A. B. (Bridegroom).

(Sd.) C. D. (Bride).

(Sd.) G. H. (Sd.) I. J.

Two Witnesses.

Dated the ...................... .. day of 19 ......... ..

an-din" vﬁ-all-' ..,.

*To be entered.

'Herein give particulars of the parties. 'Strike off what is inapplicable.

281 L-3 ~_..

APPENDIX H Norms on CLAUSES Clause 1 Titlc.----The word "Indian" has been omitted in con- sonance with recent legislative practice. The words "and Matrimonial Causes" have been used, instead of the word "divorce", since "divorce" is a narrower expression than "matrimonial causes".

Extent.----The reasons for extending the new Act to Manipur and Travancore-Cochin have already been stat- ed} (1) Marriage Appltcation.--The Act will apply to all marriages solemnized within India. This result has been achieved by the extent claus'e, which applies the Act to the whole of India except the State of J ammu and Kashmir. As regards the extra--territoria1 operation of the Act, Indians domiciled in the territories to which the Act extends will, if Christians, be governed by the Act, wherever they are. (It is considered unnecessary to add the requirement that they must be citizens of India).

(ii) Matrimonial causes As regards matrimonial causes, the separate clause dealing with the jurisdiction of Indian courts may be seen."

The application of the Act to any person is, of course, subject to the provisions laying down certain restrictions5 on the powers of court--'--a proposition which, it is felt, need not be expressly enacted in this clause.

Commence-ment.--Tl1e provisions relating to recognition of churches should come into force at once, so that the necessary machinery may be set up and recognition grant- ed before thc substantive provision comes into force. Though the General Clauses Act may also ensure this, still, to avoid all doubts, a speciﬁc provision has been made.

1See the body of the Report, para. 3. 'See draft clause 35.

'Draft clauses 34 and 35.

84:

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'V, ..



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85

Clause 2 i

"C'hristian"----the singular "a person" has been preferred to the plural.

The following alternative deﬁnitions were considered, but have not been accepted:-----

"(i) 'Christian' means a person who has become a member of some Christian Church by an act custo-

mary in that Church for the admission of members.

and continues to be such unless and until the laws of his Church determine otherwise".

"{ii) 'Christian' means a person who has become a member of some Christian Church by an act recog- nized in that Church".

"(iii) 'Christian' means a person who has been baptised".

The emphasis in all these deﬁnitions is on certain ceremonies; but, since religion is a matter of persuasion, it is considered unnecessary to insist on overt ceremonies.

The Word "profess" is not likely to create any difficulty. Even the dictionary meaning of "Christian" is in harrnony with the deﬁnition adopted in the draft.

"Church building"

The expression "Church" is used in two senses--

{if} "Church" with the capital C--denoting the organisation;

(ii) "church" with the 'small c----denoting the place of worship.

To avoid confusion, the expression "church", in the second sense, has been replaced by "church building".

["Custo-rn" and "usage"--have been deﬁned in the Hindu Marriage Act. But it is considered that it is unnecessary to deﬁne either of these expressions].

Clause 2-w--"deser1:ion"--

(a) The existing deﬁnition of "desertion" in the Divorce Act says that desertion implies abandonment of one party by the other. This does not appear to indicate, in detail and speciﬁcally, the essential ingredients of desertion.

The deﬁnition. in the Hindu Marriage Act does not purport to analyse the concept of desertion; it merely stresses certain ingredients "Le-.,--"without reasonable cause" etc. The meaning of desertion as established by judicial decisions is this--that there must be a failure of the dis- charge of matrimonial ob1igations--what is called the total 86 forsaking of "'consortium". The sub--clause under discus- sion, therefore, attempts a fresh deﬁnition of desertion, bringing out the aspect of withdrawal from cohabitation while also mentioning the other ingredients.

{b} The deﬁnition in the Hindu Marriage Act has been discussed in a recent decision of the Bombay High Court} An analysis of that decision would show that desertion requires-

(i) separation in fact between the two spouses;

(ii) an intention, on the part of the deserting spouse, to forsake or abandon the other spouse;

(iii) absence of consent on the part of the deserted spouse; and

(iv) absence of conduct on the part of the deserted spouse giving reasonable cause to the spouse leaving the matrimonial home to form the necessary inten- tion.

Intention to forsake or abandon is thus an essential ingredient, and this has been sought to be brought out in the draft clause by the words "with the intention of bringing co--habitation permanently to an end". Factual separation has been brought out by the words "with- drawal" etc. As regards ingredients No. (iii) and (iv) above, the language of the Hindu Marriage Act has been followed.

(c) The inclusive part of the deﬁnition in the Hindu Marriage Act, which says that desertion includes "the wilful neglect" of one party by the other, has been omitted in the sub-clause under discussion, because it will be covered by the words "withdrawal from co-habitation". It may also be pointed out that it has been'held' that the conduct of the spouse, in order that it may amount to wilful iiegle-at must be "deliberate and intentional failure"

to pr=r'fu:'__m the obligations of married life, indicative of a total repudiation of the obligations of marriage." "The intention to desert is implicit in the concept of desertion and is implict in wilful neglect"."

(cl) The draft deﬁnition will also bring out one essen- tial ingredient of the concept of desertion--intention to desert permanently. "In its essence, desertion means the 1M.-zema vs. Lachman, (I959) 61 Bombay Law Reporter 1549 (Division Bench).

'See the judgment of Shah, J., in Macao vs. Lackmczn, (1959) 61 Bombay Law Reporter, 1549, 1552.

"Desai, I., in Mama vs. Lackmcm, (1959) Gr Bombay Law Reporter, 1549: I557- 37 intentional permanent forsaking and abandonment of one spouse by the other without the others consent, and with- out reasonable cause."

(e) For an elaborate deﬁnition, see the Royal Commis- sion's Report.' Clause 2----"di.plom.ot£c o_fﬁ.cer"----

Follows the language of the corresponding provision in the Special Marriage Act.

Clause 2--"district"----

Follows the language of the corresponding provision in the Special Marriage Act.

Clause 2--"Htgh Court" (omitted)---

The deﬁnition of the expression "High Court", occur-

ring in existing section 3(1) of the Indian Divorce Act, has been omitted, for the following reasons:------

ifi) So far as "States" proper are concerned, the respective High Courts for the States will exercise jurisdiction as at present. So far as "Union Territo- ries" are concerned, the High Court exercising juris- diction or the Judicial Commissioner concerned, can be regarded as the High Court by virtue of the deﬁni- tion in the General Clauses Act, which applies to all civil cases. -

(ii) The Judicial Commissioners now exercise jurisdiction to issue writs etc, and there is no harm if they are regarded as High Courts for this Act also.

(iii) There is no express deﬁnition of the expres- sion in the Hindu Marriage Act or in the Special Marriage Act.

~(iv) The expression occurs the Bill as drafted.' Clause 2----"India"--Needs no comments. Clause 2--"L*Lcensed Minister"----

This is new, and is intended to avoid the use of the lengthy expression "Minister of Church licensed by the State Government" in the substantive provisions.

Clause 2---"Marriage Registrar"---

at very few places in This is new. There is no corresponding provision in the Special Marriage Act, but it has been inserted here for the sake of precision.

sgslgge B;-pm Chander fazsanghbhat Shah vs. Prat-Imu-an'_. (1956), S.C.R 5 U-

Cmrilisgggf 'lUJ1;1f:\-I§_;3E3I}t!n'Comnﬁssion on Marriage and Divorce, (1955),

-''It occurs, for example, in the rule-making clause----Clause 73.

Clause 2*---"Mini.ster of recognised Church"-

This is new, and is intended to distinguish between---

(i) Ministersof recognised Churches;

(ii) Ministers licensed by the State Govern~ ments.' The use of the expression under discussion, and the expression "licensed Ministers" etc, will make it clear whether a particular substantive provision applies to all Ministers or only to Ministers of certain classes.

Clause 2»--"minor"-

The existing provision in the Christian Marriage Act deﬁnes a minor as a person who has not completed the age of 21 years and who is not a widower or widow. Two changes have been made in this deﬁnition,---

(a) instead of the age of 21 years, the age of 18 years has been substituted, in conformity with the general law as contained in the Indian Majority Act;

(b) the exception for widoweis and widows has been omitted, since it is felt that even widowers and widows (if minor), should be subject to the special provisions of the Act applicable to minors, The existing deﬁnition in the Divorce Act makes special provisions for "native" boys and girls. This restriction has been removed. For non-natives, the provi- sion in the Divorce Act treats as "rninors" all "un«mar7-fed children who have not completed the age of 13 years". This has been adopted in substance in the draft in so far as the age is concerned. But the change made is, that all children below 18, whether married or unmarried, will be "Ininor" for the purposes of the new Act.

The expression "completed" the age has been adopted here as well as elsewhere in the draft clauses.

[Section 73(1) of the (English) Matrimonial Causes Act, 1950, deﬁnes a minor as a "person under the age of twenty-one years".

Section 3 of _the Indian Majority Act, 1375, uses the word "attained".

Section 4(3) of the Hindu Minority and Guardianship Act uses the word "completed".

Section 4(1) of the Guardians and Wards Act says "attained majority":

Section -i(c), Special Marriage Act and section ﬁfiii), Hindu Marriage Act say, "completed the age"].

'Vila the body of the Repllt, pin. 19.

.iﬁ-

B9 Clause 2--"prescribed."--

Needs no comments.

Clause 2--"pro hibited relationship"--

The deﬁnition is new and follows the language of the Special Marriage Act. But one departure has been made. That Act deﬁnes "degrees" of prohibited relationship, but since some of the prohibited relationships do not repre- sent any "degrees", the word "degrees", has been omitted.

Clause 2--"recognised Church"----

This is new, and is consequential on the changes made in the provisions regarding Churches having the system of episcopal ordination} Clause 2-»-"Registrar-General"----

A provision has been added to cover the cases where the Central Act {the Eh-tlis, Deaths and Marriages Regis- tration Act, 1886) is not itself in force in the place con- cerned.

Clause 2----"ruIe"---

This is new. The lengthy formula "rule, custom, rite or CETEIHOHEF" occurs in existing section 5 of the Christian Marriage Act. The deﬁnition under discussion wﬂl shorten the formula. The deﬁnition will be useful for other draft clauses also, where a reference has been made to rules of Church.

Clause 3 The following changes have been made in the existing provision:--- '

(i) The provision is sought to be changed by limiting its scope to cases where both the parties are Christians."

(ii) The existing provision to the effect that a marriage solemnised otherwise than in accordance with the provisions under this Act shall be void, has been omitted as unnecessary.

(iii) Marriages solernnised under the Special Mar--

riage Act have been expressly' excluded from the scope of the section, Though there is also a general savings for such marriages,' it has been considered necessary, in the interests of clarity, to insert that saving provi- sion here also.

'See clause 7.

'For a detailed discussion, please no the body of the Report, para. 4. 'Sue clause 75.

(iv) The expression "persons both of whom are Christians" has been adopted, as more accurate. (The form "persons ....... ..Christians" has been adopted in other clauses also, except in lengthy sentences where it was found to be adding to the length.) Clause 4 The conditions for marriage have been put here on the lines of the corresponding provision in the Hindu Marriage Act and the Special Marriage Act.' .S'ub--clause (i) has been taken from the corres- ponding provision in the two Acts referred to above.

Sub-clause (it) has been taken from the corres- ponding provision in the two Acts referred to above. The exception for custom has been taken from the Hindu Marriage Act. It is considered unnecessary to refer to "usage" here.

Sub-clause {iii} has been taken from the corres- ponding provision in the two Acts referred to above.

Sub--cla-use (to) has been taken from the corres- ponding provision in the two Acts referred to above.

Sub-clause (12) has been taken from the corres- ponding provision in the Hindu Marriage Act. As to the powers of the district court, the relevant clause' may be seen.

Sub-clause (vt).--Since the new Act will apply to persons outside India," this has been inserted on the lines of the corresponding provision in the Special Marriage Act.

Clause 5 General.--It is considered that a comprehensive provi- sion relating to guardian in marriage would be desirable. The clause has been drafted generally on the basis of the corresponding provision in the Hindu Marriage Act. Im- portant departures from that Act are explained below.

Sub-clause (1).----The list of guardians given in the sub- clause is much longer than that in the existing Act. A full list has been given, in order to make the position clear. [The list given in the Hindu Marriage Act has been followed, with the omission of the paternal uncle by half blood. He has been omitted in view of the social conditions of Christians] 'Fora detailed discnssion, please see the body of the Report, para.22 etseq.

"Clause 5 (4).

'Sec clause I. 91 Sub-clause {2).--A slight verbal departure from the Hindu Marriage Act is the use of the formula "has . . . . . . -- completed" in relation to the guardian. This is in confor- mity with the word "completed" used in other clauses} Sub-clause (3}.--Needs no comments.

Su.b--cIa.use (4).-«This differs from "be Hindu Marriage Act, whereunder in such circumstances the guardian's consent is not necessary. In view of the social conditions of Christians, it is considered that such a provision would be useful.

The words "where no such person is living and willing etc. will make it clear that the sub-clause will apply not only where the persons entitled to act as natural guardians are dead, but also where, though living, they are not willing to act or able to act etc. Contrast the Hindu Marriage Act, where the words used are "In the absence of". It is considered that the wording adopted in the sub-clause will be more clear.

Existing section 45 of the Christian Marriage Act deals elaborately with the procedure to be followed in cases where a guardian refuses consent. This has been covered, in substance, in this sub--clause, but brieﬂy. Apart from this change in form, the following changes of substance have been made in the provision regarding the court's per» mission:-~

(o) The case where the guardian is insane has been omitted, since an insane guardian will be treated as incompetent to act, and the guardian next in order of preference will automatically take his place.

(In) The provision will apply to all marriages whether solemnized by ordained Ministers, licensed Ministers or Marriage Registrars.

(c) The provision has been made "applicable: to the father (as well as to any other guardian), since there is no reason why the case of the father's consent should be left uncovered.

(:1) The petition will lie in all cases to the "district court" as deﬁned in the deﬁnition clause.

(e) Unnecessary matter has been omitted.

Sub-clauses (5) and (6) need no further comments.

Sub-clause ('?).--It is considered that the decision of the district court granting or refusing permission should he ﬁnal and not subject to any appeal etc. Hence this sub-

clause. (There is no such provision in the Hindu Marriage Act).

'See notes to clausv: 2-" Minor".

Sub-clauses (8) and (9) need no further comments.

Clause 6 ' Gen_eml.--The various classes of marriages mentioned 11] section 5 of the existing Act have been dealt with here.

The category of marriage by certiﬁcate, applicable to Indian Christians under section 60 of the Indian Christian Marriage Act, has been omitted} Sub-clause (a).--The existing Act speciﬁes certain particular Churches whose Ministers are episcopally ordained. While preserving the separate category of per- sons so authorised to solemnize marriages, the sub-clause under discussion requires that they should be Ministers of "recognized Churches". The manner in which the recog- nition will be accorded is dealt with separately."

The manner of solemnization of marriages by such Ministers has been dealt with separately.' Sub-clause (b).----Instead of the formula "Minister of Religion" the formula "Minister of Church" has been adopt- ed as more appropriate, everywhere in the draft clauses.

Though the expression "licensed Minister" has been deﬁned, it is felt that in the sub-clause under discussion, the full expression "Minister . - . . . . ..licensed" etc. would be better, in View of the importance of the sub--clause.

Sub--cIause (e) need no comments Clause '1' This deals with recognition of Churches.' The criteria laid down in sub-clause (2) will ensure that recognition is granted to Clutches having an organisa- tion and standing.

Clause 8 Only verbal changes have been made in the existing section, as follc-ws:--

(i) It has been made clear that the licence may be granted either for the whole State or for any part thereof.

(ii) The mention of the power to revoke the licence has been omitted, since it is felt that this will be covered by the provisions of section 21 of the General Clauses Act, under which a power to issue an order includes a power to rescind it.

1F.)r a detailed discussion, see the body of the Report, para. 7. ' Sec clause 7.

'See clause 11.

'For a detailed discuuion, see the body of the Report, pm. 13.

(iii) The words ''so far as regards the territories under its administration etc." have been omitted, as unnecessary.

Clause 9 Sub--cla-uses (1) and {2).--Slight verbal changes have been made. They need no comments.

The requirement that the Marriage Registrars should be Christians has been omitted, since their functions are not sacramental.

Sub-clause (3) .--Under the existing section, when there is a temporary vacancy in the ofﬁce of the Marriage Regis- trar, the District Magistrate is directed to act as Marriage Registrar during the vacancy. The structure of the admi- nistrative and judicial machinery in the various States, however, (and particularly the nomenclature of the officer at the head of the District), may vary from State to State, and hence the sub-clause under discussion leaves the matter elastic, by providing that such person as the State Govern- ment may authorise will act as the Marriage Registrar during the vacancy. -

Clause 10 Since the new Act will be applicable (to persons domi- ciled in India) outside the territories to which the Act extendsl, it becomes necessary to provide for the appoint- ment of Marriage Registrars for those territories. Hence this clause, which is modelled on the corresponding section in the Special Marriage Act.

Clause 11 Sub-clause (V).---Existing section 5, of the Christian Marriage Act provides (in substance) that an episcopally ordained Minister may solemnize marriages according to the rules, rites, ceremonies and customs of that Church. This has been adopted here, using the short expression "rules" which has been deﬁned separately."

An additional requirement of the presence of at least two witnesses, has been inserted since it is felt that this should apply to all marriages under the Act.

Sub-clause (2).---The existing Act does not lay down any such obligation; but since the proposed conditions of marriage will now apply to marriages solemnized by any person under the Act,' it is felt that there should be a speciﬁc obligation on all persons solemnizing marriages under the Act to see that the conditions for marriage are 181:: oinuse 1: (2).

'See clause 2---"rulc ".

'Sec clause 4.

fulﬁlled, that there is no lawful impediment to the marriage and that the parties make a declaration to that effect. Compare sections 17, 18, 41 and 42 of the Christian Mar- riage Act, which are conﬁned at present to licensed Minis- ters and Marriage Registrars, _ As an example of other "lawful impediments", see sec- tion 5'? Divorce Act.

Clause 12 Provisions which are common to marriages solemnized by Ministers licensed by the State Government and mar- riages solemnized by or in the presence of Marriage Regis- trars have been put in this group, in order to avoid repeti- tion.

Sub-clause (1), opening pora.graph.----The provision has been simpliﬁed on the lines of the corresponding provision in the Special Marriage Act. Following that, it has been provided that the notice must be given by both the parties.

Sub-clause (1); paragraph (:1) .----Slight verbal changes have been made, which do not need any comments.

Sub-clause (1), paragraph (b}.----The existing provision is to the eﬁect that the notice may be given to the Marriage Registrar of--

(i) the district within which the parties have dwelt; or

(ii) the districts within which each of the parties has dwelt, the notice in the latter case being given to the Marriage Registrar for each district concerned, This is likely to create confusion, and hence the para- graph under discussion provides that it will suffice it at least one party has resided in the district of the Marriage Registrar to whom the notice is given.

The words "as the case may be" have not been inserted {at the end) as unnecessary.

Sub-clause (2).-----This is intended to make it clear that in the case of a minor bride, the notice must be signed by the guardian whose consent is required} Sub-clause (3).--Follows the language of the corres- ponding provision in the Special Marriage Act.

Clause 13 Gener-:1L----Since there is some difference between the action to be taken by a licensed Minister and that to be 'Compare clenscs II' (2) and I5 (z){b).

taken by a Marriage Registrar on the receipt of a notice, the subject has been dealt with in separate clauses.

Paragraph (a),--Sma11 verbal changes have (been made, which do not need any comments. The expression "church building", used here, has been deﬁned separately.' Paragraph (13) needs no comments, The verbal changes are very minor.

Paragraph (-2) needs no comments.

Paragraph (d).--It is sufficient to say that the notice must be sent "by post"'*'. This paragraph will apply to every minor _bride--that is, whether she is marrying with the guardian's consent or otherwise.

Other changes are verbal and minor, and hardly need any comments.

Clause 14 Paragraph (a) needs no comments. Small verbal »changes_ have been made which are se1f--explanatory.

Paragraph (b).---The verbal changes made are very minor and need no comments.

Paragraph (c).--This is new. The object is to give publicity to the notice of marriage in the district where the parties are permanently residing.

The corresponding provision in the Special Marriage Act may be compared.

Clause 15 This follows, in substance, the existing provisions on the subject in the two Chapters relating to Ministers of Church licensed by the State and Marriage Registrars. The expression "certiﬁcate of notice" has been preferred to the lengthy expression "certificate of receipt" etc. The minimum time limit of 4 days for the issue of the certiﬁcate, prescribed at present, is felt to be inadequate and has been increased to 7 days. For the same reason, the time--1imit of 14 days (where a party is a minor) has been increased to 21 days.

The time-limit has been expressed in a condensed form in paragraph (a), of sub-clause (2), while paragraph (b) of that sub-clause is intended to focus attention on the necessity of a declaration by the parties.

Section 1'3', proviso, clause (3), of the existing Christian Marriage Act has been omitted. That relates, in substance, to objection by a guardian. The reason for the o-mission 1See clause 2-" church--boilding '5-cc section 27, General Clauses Act, I397, as to service by post.

is, that under the draft clauses, the position of a guardian who wants to "forbid" a marriage will not diﬂer from the position of any other person making an objection to the marriage.

It has been made clear that in a case of a minor bride the declaration is to be signed by her guardian whose con- sent is required under the Act.

Clause 15 Sub-clause (I).--This is modelled on the lines of section 7 of the Special Marriage Act. Differing from section 7(3) of the Special Marriage Act, however, this sub-clause pro- vides that the objection must itself be in writing when submitted to the licensed Minister or the Marriage Regis- trar.

There is no corresponding provision in the existing Christian Marriage Act, authorising any person to ﬁle an objection; there are, of course, provisions relating to ob-

jections by guardians, vide sections 20 and 44 of the exist- ing Act.

The period of seven days mentioned here harmonises with that given in the earlier clause.' While in the case of minor brides the period mentioned in the preceding clausel is 21 days, it is not considered necessary to extend the maximum period for objections in the case of minor brides to 21 days. Whether the bride is a minor or a major, the period which will be allowed to the objector, will be 7 days in all cases. This course has been adopted in View of the over all time-limit of 30 days laid down by sub-clause (3).

Sub-clauses (2) and (3) follow the language of section 8(1), Special Marriage Act.

Clause 1'?' Genera.l.--Unnecessarjr matter has been omitted. The application will lie to the "district court", as deﬁned in the deﬁnition clause, in all cases. The provision will apply to marriages solemnised by licensed Ministers also, since it seems desirable to extend its scope to such marriages.

Sub-clause {1).--A time-limit of twenty-one days has been imposed for making the petition. (The Special Mar- riage Act allows thirtv days).

Sub-clause {2}.--The language of this sub-clause has been taken, in part, from existing section 48, third para- graph, of the Christian 'Marriage Act. To make matters clear, provision for opportunity being given to the parties has been inserted.

'See clause 15 (2) (a).

5--~.J .+-.v::di\1:i:.:.«1""¥

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Sub-clause (3).---Slight 'changes have been made on the lines of the corresponding provision in the Special Marriage Act.

Clause 13 This is intended to deal with a case where objection is made to a marriage outside India. The corresponding pro- vision in the Special Marriage Act has been followed; but, after the word "such statement as he thinks ﬁt", the words "to make" have been added, as a drafting improvement.

Clause 19 This does not differ, in substance, from the existing provision. Slight verbal changes have however been made which are consequential on the scheme of other clauses.

Clause 20 The following changes have been made in the existing provision:--

(*1) The existing section provides that the form or ceremony will be such as the Minister thinks ﬁt to adopt.. It is considered, however, that instead of leav- ing the choice to the Minister. he should be required to follow the rules of his Church. The provision has been altered accordingly.

(it) It is not necessary to say expressly that there must be two witnesses 'besides the Minister'. These words have, therefore. been omitted.

(iii) Other changes are verbal and consequential.

Clause 21 Sub--c1cuse (1).--The following changes have been made:--

(i) Instead of the words "form and ceremony", the words "form or ceremony" have been used. Com-

pare existing section 25, Christian Marriage Act.

(ii) Unnecessary matter has been omitted.

(iii) The existing section requires that the wit- nesses should be "credible". This has been omitted, as unnecessary. It is not contained in the section relat- ing to licensed Ministers (section 25, Christian Marriage Act).

(in) The words "besides the Marriage Registrar"

have been omitted as unnecessary.' (13) A proviso has been added to the effect that the marriage will not be complete and binding unless each party says to the other the prescribed formula.

This follows the corresponding provision in the Special Marriage Act.

'Compare clause 2o and the notes on that :1 illﬁe.

Sub-clause (2).---This is new and follows the corres- ponding provision in the Special Marriage Act.

It has been made clear that the place where the Mar- riage Registrar can be called should be situated in his district (that is, within his jurisdiction}.

Clause 22 The existing provision allows a period of two months, after which a fresh notice etc. is necessary. This period is regarded as slightly inadequate, and has, therefore, been increased to three months.

Other changes made are very minor and verbal and do not need any comments.

Clause 23 Gener-:1I.--The provisions regarding registration of mar- riages which occupy thirteen sections in the existing Act, have been put here in a simpliﬁed and brief form. A uni- form procedure has been applied to all marriages under the Act.

Sub-clause (1) is mainly modelled on the correspond- ing provision in the Special Marriage Act.

Sub-clause (2).--This follows the earlier part of section 13(2) of the Special Marriage Act. The latter part of that sub--section raising a conclusive presumption regarding signatures of witnesses----is considered unnecessary and has not therefore, been adopted.

Sub-clause (3) .--Fo1lows the language of the corres- ponding provision in the Special Marriage Act.

Clause 24 Generat.--Where either the husband or the wife with- draws from the society of the other, the other party can sue for restitution. This substantive proposition has been placed in sub-clause (1). The defences that are open have been put in sub-clause (2). The action to be taken by the court has been dealt with in sub--clause (3).

Sub-clause (1).--The wording used in the existing pro- vision is that "either the wife or the husband" may sue for restitution. The wording used in the Hindu Marriage Act and the Special Marriage Act is, that the "aggrieved party"

can sue. In the draft, the words "aggrieved party" have been used as more elegant.

Su.h--clou.<:c .".!).--The existing section provides that nothing shall be pleaded in answer to a petition for resti- tution, which would not be a ground for judicial separa- tion or nullity. To this, the draft makes an addition by providing that a ground for divorce can also he pleaded. On this point, the draft follows the provision in the Hindu Marriage Act.

--rnu-:13-raw 99 _ The negative language used here has been used in the ' other Acts also, and has therefore been retained.' J Sub-clause (3).----'I'he existing section (as well as the corresponding provision in the other Acts] says, that if there is tegof. g'round" why restitution should not be decreed, the court may decree it. This has been retained, after some consideration. (It was, at ﬁrst, considered that the words "no valid defence" would be better. But, later, it was feit that the existing words are more pr-ecise3.5).

:3 .-t 3 Clause 25 The language of the corresponding provision in the Special Marriage Act has been followed, with necessary modiﬁcations.

The reference to divorce a meme et toro has been

-omitted as not needed now.

Under the Hindu Marriage Act, failure to comply with a decree for restitution entitles the other party to divorce only and not to judicial separation. The Special Marriage Act entitles him to either of the two reliefs, and this has been followed, as more comprehensive, in the draft.

Clause 26 I; Sub-clause (1).--The provision that it shall not be obligatory for the petitioner to co--habit with the respon- dent, has been framed on the lines of the Hindu Marriage Act, and the Special Marriage Act. Though a subsequent clause' allows either party {after a decree for judicial separation) to apply for divorce, it is considered that the release from the obligation to co-habit should not extend to the respondent in the decree for separation.

Existing section 26, proviso, Indian Divorce Act refers to capacity to contract debts. This has been omitted as unnecessary.

Sub-clause (2) .--Under the existing Act, the court can rescind the decree on the ground that it was obtained in the absence of the party applying for rescission and that there was reasonable cause for the alleged desertion (where desertion was a ground for decree). There is, how- ; ever, some amount of confusion in the existing provision, 'because it mixes up the question of merits (reasonable cause} with the question of procedure (previous decree , obtained in absence). Morever, so far as absence is con- cerned, the normal proceedings for setting aside an 'Fara :'.i::us;ion ofthccffcctofthis p1'0\-'Islon, see I. D. M. Dcrrctt, = '"R.ccent Decisions and some Questions in Hindu Law", ([960) I52 . Born. L.R. ( Iournal'; I8, 2o.

,_ _ 'As to the meaning of " legal ground", see LR. (1913), p. 30 ,' (I948) I.ﬁL.B.R. I83 ; (1950), A.E.R. 832. - { 'Cf. Clause 39 (1).

'Clause 31.

281 L----9 100 experts decree should suﬁice; and so far as reasonable cause for desertion is concerned, that could have been in- vestigated 1n the earlier proceedings. The only justiﬁca- tion, it 15 felt, for setting 'aside a decree of judicial separa- tion, would be a 'change in the circumstances. Hence the- power has been limited to cases where---

(a} the parties desire to come together, or

(b) for any other reason the court considers it just.

and reasonable to rescind the decree.

Category (b) above will preserve the wide discretion of _e court, found in the corresponding provision in the- Hmdu Marriage and the Special Marriage Act.

Compare and contrast sections 14(2) and 14(3) of the {English} Matrimonial Causes Act, 1950.

Clause 27 This deals with the subject of void marriages.' The form of the clause follows that of the corresponding provision in the Hindu Marriage Act, with this diffeI'encr--- that while the Hindu Marriage Act conﬁnes the right to:

apply to the parties to the marriage (wide the words "on {:-

petition presented by either party thereto"), the draft. clause eliminates that requirement.

The reason for the omission is, that there may be occa- sions when a person who is not a party to the marriage has to sue for a decree of nullity of that marriage,----for example, when, after a marriage between A and B, A again enters into marriage with C and it therefore becomes necessary for B to sue for nullity of the second marriage. It may be noted that the provision in the Special Marriage Act does not require that the petition should be ﬁled by either party.

(Under section 11 of the Hindu Marriage Act, it has been he1d2,3 that the previously married wife cannot apply under that section to have the later marriage dec- lared null and void).

'As to the substance of the clause, please see the discussion in the 1 c ( 3 of the Report, para. 31 at seq.

*/lmarlal v. Vt'jaya5ar'{1959j, A.I.R. 1959 Madh}-'2 Pzsdcst. 4:0. ILak;h,m',«1mma:v, Ramsw.-Jmi {1g6o), A.I.R. 19-Eo Madras 6. f ' 101 The following chart will show the points of difference between void and voidable marriages:---

Void marriages Voidahle marriages I. Avoid marriage does notrequireaiucliciai I. A voitiablc marriage is valid unl-E88 3¢t declaration before it can be treated as aside by a court.

void.

2. A void marriage can be repudiated by either party. I _ , ﬂaw in the marriage.

3. A voidabie marriage Cam'.(:-'L

3. A void marriage can he impugned by _ ' by third parties.

third parties also.

4. A void marriage can be annulled after .4. the death of the parties. _ _ invalidated only during life

5. A void marriage does not ciiangc the <. domicile of the wife.

A voidable marriage confersﬁ uni_t domicile on the husband and the 'fa e.'-,=_

2. A voidablc marriage can be repudiated only by the party aggrieved; by the be impugned Certain void-able marriages, for example those voidable for impotence, can; bc time.

0! Ha I.-e.-9.ibi»'s'v',l E

6. A decree of nullity is always retrospective 6. _ _ riage, is properly uve.

Clause 28 Generai,--'I'his deals with voidable marriage'.

Sub-clause (I).-- In treating the marriage as voidabie in the circumstances dealt with here, the corresponding provision in the Hindu Marriage Act has been followed.

(It should be noted here that the Special Marriage Act treats a marriage as void in cases of idiocy or impotence).

The language of the various paragraphs is also modelled on the Hindu Marriage Act, except that (with respect to impotence) the positive "ti1l" has been preferred to the negative "until" used in the Hindu Marriage Act.

Sub-clause (2) .---This is new. It is considered that where parties below age marry or where the guardian's consent in not obtained, the marriage should be voidable. though not void. The Special Marriage Act makes the marriage of a person below the requisite age void. and the sub-clause therefore differs from that. The Hindu Marriage Act is silent on the subject, and the sub--clause differs from that also by making an express provision. The sub-clause will, however, be limited to marriages solemnized after the new Act. since there was no such provision in the old Act. It is, further considered desirable to specify the period within which the parties may set aside the marriage".

'As to the substance of the provision. please see also the discussion in the body of the Report, para. 31 21 reg.

'See clause 23 (4).

A decree of nullity in a voidable mar- spcnking, prosper-

102

It is considered that in the case of the want of the guardians consent, only the minor, that is the wife should have the right to avoid.

Su.b--cIouse {_3).~--This follows the language of the cor- responding provision in the Hindu Marriage Act and the Special Marriage Act.

As regards para. (:1) (ii) relating to the petitioner living with the other party to the marriage after the force has ceased etc.. the cli'-aft' uses the words "full consent" as in the Hindu 3.-Iarriage .-'-'i-ct, while the Special Marriage Act uses the words "free consent". In the qoiitext in which the words are used, it is presumed that both would carry the same meaning.

S'ub-clctttse (4).--Notes under sub-clause (2) above may be seen. The formula "unless the petition is pre- sented w-it!1.in- one §,'ee.1~"_, has been avoided, since it would create a slight uncoritsint}-' as to whether the petition can be presented before attaining majority.

Clause 29 Gen.e-rel..--~'l'lie qi:e:ti.on. of legitimacy of children of void and *-.'oidat;l-: marriages has been dealt with here. The eiiistivig provision, it is felt, too narrow, because it is confined oiiljr to two gt-ounct,--' of nullity, 1'lEiI'I1'3.l}'I--~--

(1) where the former spouse was living, and

(ii) insanity.

T-he clause under discussion seeks to extend it to certain other cases also, as will appear from a discussion below.

As to the stfostance of the provision, see the discussion in the Report.' S'uh--cl.ause (l).--The existing section deals only with the case where a spouse by a previous marriage was living.

The draft makes the following changes:--

(i) The provision has been widened so as to extend to all cases irrespective of good faith and belief of the parties etc. Further, it has been extended to cases of marriages void by reason of prohibited degrees also.

(ii) The provision will apply to any child begotten "or conceived". The corresponding provision in the Hindu Marriage Act may be compared.

It may be noticed that the protection given by this clause will apply irrespective of whether a decree is pass- ed or not. The other two Acts do not expressly deal with the case where a decree is not passed.

1 See the body of the Report. para. 35 If seq.

103

Sub-clause (2).---T'rris deals with voidable marriages annulled by the court and follows, in substance, the langu- age oi' the main paragraph of section 16 of the Hindu Marriage Act, with necessary modiﬁcations.

Section 21 of the Divorce Act requires the court to specify the names of the children in the decree. This has been omitted, as unnecessary, Sub-clause (3).--The existing section conﬁnes the right of succession of the children "to the estate of the parent who at the time of the marriage was competent to contract". The sub-clause under discussion gives him the right to inherit to both the parents. The corresponding provision in the Hindu Marriage Act etc., has been followed As in the other two Acts, this will apply to voidable marriages also. ' Clause 30 The reasons for including the various grounds for divorce embodied in this clause, have already been given.' The actual wording of the various paragraphs of sub- clause {1} follows the word.ing of the corresponding pro- vision either in the Special Marriage Act or in the Hindu Marriage Act.

Wilful refusal to consummate the marriage has been treated as a ground for dissolving the marriage here, since it is a case of fault after the marriage and not of a flaw existing at the time of the marriage like impotence etc}, '*.

Artiﬁcial insemination has not been included, as the practice is not in vogue in India", 5.

Clause 3} This is new. A proceeding for judicial separation, it has been suggested in some quarters, is a waste of time, because a decree of separation neither ends the marriage nor encourages the parties to come together. On the other hand there are certain persons and bodies, who hold the opinion that the sanctity of marriage should be preserved at all costs, and that where the parties cannot stay' toge- ther, they may be allowed to remain separate by a decree of judicial separation without breaking the marriage by divorce.

'See the body of the Report, para. 43 at seq. 'CI. 3. 32 (.rr),'Pa1-si Marriage and Divorce -Act, 1936. 'See also the discussion in the body of the Report, para. 53.

'Cf. the Report of the Royal Commission on Marriage and Divorce, (I955), Cmd. 9678, page 31, paragraphs 88-89.

'Contrast the recommendation in the Report of the Royal Commission on Marriage and Divorce (1955), Cmd. 9573, page 31, pm-g_ 9.-_-._ 'See also the body of the Report, para. 62.

104

As a compromise between the two shades of opinion, the clause under discussion attempts to provide a proce- dure which, while mitigating the objection based on waste of time, will ensure that the marriage is not broken up in hastei. The difference between the clause under dis- cussion and the provisions in section 13 (1) (viii) of the Hindu Marriage Act and section 27(1) of the Special Marriage Act is two-fold:--

6) Under the clause under discussion, it will not be necessary for the parties to file a fresh petition for divorce. Under the other two Acts, a fresh petition is necessary.

(it) Under the clause under discussion, either party (that is, whether he is the petitioner or the respondent in the decree for judicial separation} can apply for divorce, while under the other two acts only the petitioner who obtained the decree can so apply.

It is felt that where A obtains a decree for judicial separation against E, the initiation of further pro- ceeding for divorce should be open to E also. The reason is, that in the absence of such a provision, B is always kept at the mercy of A and A can, after hav- ing obtained the decree for judicial separation, sit quiet and neither end nor mend the marriage".

{It may be of interest here to note that in South Aus- tralia, a decree of juidicial separation passed by any court in the British Commonwealth, is a ground for divorce'-.] It has been considered unnecessary to have an express provision as to whether divorce can be obtained on the very ground that led to the earlier decree for separation'.

It is also considered unnecessary to lay down any ela- borate procedure as to the passing of the ﬁrst decree (separation) and the second decree (divorce), and the inter-relation between the two.

Clause 32 General.---This is new and is based generally on the corresponding provision in the Hindu Marriage Act and the Special Marriage Act.

Sub-clause (1).--While the main paragraph of this sub-clause follows the Hindu Marriage Act and the Spe~ cial Marriage Act, the proviso has been worded in a Slightly different manner. Under the other two Acts, 'See also the body of the Report, para. 44. 'Cf. the Hindu Marriage (Amendment) Bill 1958, Bill No. V of 1958, as introduced by Dr. W. S. Barlingay in the Raiya Sabha.

'See the U. N. Survey of Legislation on marriage, divorce ctc., Publi- cation No. STfSOA(29, dated 9th March, I956, U. N. Bureau of Social Affairs, Population Branch.

'Contrast Section 7 (English) Matrimonial Causes Act, rod...

105

leave can be granted upon application made "in accordance with the rules" etc. This mention of rules etc., has been

-omitted, as it is considered unnecessary to make such an elaborate provision expressly. Secondly, while under the other two Acts, leave can be revoked only in case of mis- apprehension or concealment as to the nature of the case, under the clause under discussion, it can be revoked "in the interest of justice". Thirdly, instead of the compli- cated procedure provided in the other two Acts as to the

-order to be passed when leave is revoked, a simple provi- sion has been made that the court will dismiss the peti- tion without prejudice to any subsequent petition which may be brought after the expiry of three years.

The clause will not apply to a decree of divorce after judicial separation'.

Sub-clause (2) follows the corresponding provision in the other two Acts.

Clause 33 The provisions relating to remarriage of divorced 'per- sons, as contained in the various Acts, vary in form and substance. For example--

(i) As regards the period.----In section 57 of the Period _ for Divorce Act, the provision is that when six months after r-=-l113l'1'IIlB¢- the dissolution of the marriage have expired, or (when an appeal has been presented to the High Court in its appel- late jurisdiction) the appeal has been dismissed or the marriage is dissolved on appeal, the parties may re-marry, provided no further apeal has been presented. If there is any further appeal, the parties can re--marry after the further appeal is disposed of. ' Section 15 of the Hindu Marriage Act allows re- cmarriage where the marriage has been dissolved and either there is no right of appeal, or if there is a right of appeal, no appeal has been filed within the time or the appeal has been dismissed. The proviso, however, pres-

-cribes a minimum period of one year from the decree "in 'the court of the first instance".

Section 30 of the Special Marriage Act is to the same effect. but the period of one year has to be calculated, it would appear, from the date of the appellate decree {where there has been an appeal).

(ii) As regards the ri.ght.--The right of the parties to Right to re-marry has been expressed in different terms in the FC'H1a1'r3'- various statutes. Section 57 of the Divorce Act says, "it shall be lawful. . , . .to marry again as if the prior marriage had been dissolved by death".

Section 15 of the Hindu Marriage Act S]1'npl_y' previous that "it shall be lawful to marry again".

1 Under clause 31 Co BEE-

cos uolm' 'on.

Course adopted.

lﬂﬁ Section 3!] of the Special Marriage Act provides that "either party to the marriage may marry again".

(iii) As to the co-nseque-noes of the violation of the prohibit-ion.--«--Section 57 of the Divorce Act emphasises the mandatory character of the prohibition by adding the Words "but not sooner".

Section 15 of the Hindu Marriage Act does not contain these words, but the words in the proviso--"it shall not be lawful" appear to have the same force.

Section 30 of the Special Marriage Act contains the- words "but not sooner."

The clause under discussion takes away any minimum period for re--marriage after the ﬁnal decree. In case of appeal. of course, the party has to Wait until the appeal is dismissed. And in any case, the party has to wait until the time forappeal has expired. But once the proceed- ings ﬁnally end, there is no further waiting period.

The words "but not sooner" have been retained, to emphasise the mandatory character of the provision. The phraseology "either party may marry" etc, used in the Special Marriage Act, has been adopted as brief and simple.

Compare also section 13(1) of the (English) Matri- monial Causes Act, 1950.

Clause 34 Genei-aI.--The existing provision in the Divorce Act authorises the court to grant relief under the Act where either the petitioner or the respondent professes the Christian religion (at the time of the petition). It seems, however, more logical to provide that (as a rule) both the parties must be Christians at the time of marriage {or petition).

The result of this change is, that where a non--Christian is married to a Christian outside India (or-----though this can happen very rare1y,--even within India, where the personal law of the non-Christian allows that), the parties will not be able to get relief under the new Act. Similarly, where two non-Christians marry and one of them is subsequently converted to Christianity, the parties cannot claim relief under the new Act. In both these respects, the clause is narrower than the existing section.

Sub-clause (a).--This will include cases of two non- Christians marrying as non-Christians and subsequently getting themselves converted to Christianity.

Sub-clause (b).--See discussion under "General" above.

' The words "at least one of the parties is a Christian" etc., are intended to exclude cases where both the spouses have, after re-marriage, renounced Christianity.

107

Sub--cIttu.se {c).--«-To protect the rights of persons married under the existing Act, it has been made clear that such a marriage can be made the subject-matter of proceedings under the new Act, if at least one of the parties is a Christian at the time of the petition. This part of the clause follows the existing provision in the Divorce Act.

Plo.cing_---It is considered that the clause under discus- sion should be placed along with the clause dealing with the local jurisdiction of district courts. Hence it has been placed here.

Clause 35 This clause deals with the courts.' If, on applying this clause, an Indian court is found to have jurisdiction, then the question----"which Indian court has jurisdiction" will have to be decided under a separate clause.' , PIacing.--It is considered that the clause under discus- sion should be placed in the same Chapter as deals with the internal jurisdiction of district courts. Hence it has been placed here.

jurisdiction of Indian Clause 36 ' Sub-clauses (1) and (2) are new and are intended to deﬁne which district court will have jurisdiction in certain petitions relating to marriage. ' _ Sub-clause [3)----Ge1te1raI.--Assuming that Indian courts have jurisdiction to try a particular petition in the nature of rnatrimonial cause, this sub-clause seeks to lay down which district court shall exercise such 'jurisdiction.

The provisions of the sub-clause are thus subject to those of the clause relating to jurisdiction of Indian Courts'

--a proposition which need not he expressly enacted.

(at) This head of jurisdiction is new, and is not found either in the existing provision or in the Hjndu Marriage Act or the Special Marriage Act. It ioilows the principle behind section 20 of the Code of Civil Procedure, 1908, under which the defendant's residence confers jurisdiction on the court. Section 29(1) of the Parsi Marriage and Divorce Act, 1936, may also be compared.

See also Supplementary note (i) below.

Para (b).----This is not found in the existing Act, but has been adopted from section 19 of the Hindu Marriage Act and section 31 (1) of the Special Marriage Act.

'For a detailed discussion, please sec the body of the Report, pares' 69 to 73.

'Sec clause 36.

'Clause 35. See also clause 34.

108

Para. (c).~---This is found in section 3(1) and section 3(3) of the existing Divorce Act, and also in section 19 of the Hindu Marriage Act and section 31(1) of the Special Marriage Act.

Where the husband and wife are residing together. sub- clause (a) will sufﬁce.

Para. (d).--Whenever Indian courts have jurisdiction by virtue of the provisions inserted in the clause' relating to jurisdiction of Indian courts, it is necessary to provide which district court will exercise jurisdiction. While para- graphs (a) to (c) above will meet normal situations, there may be situations which are not covered by them, though covered by the clause' relating to jurisdiction of Indian courts. Hence the paragraph under discussion.

In most of the provisions incorporated in the clause relating to jurisdiction of Indian courts, jurisdiction is related to--- _

(i) domicile of the parties;

[ii] domicile of the petitioner;

(iii) residence of the petitioner.

In such cases, the question "which district court will exercise the jurisdiction" will be decided (in view of the paragraph under discussion) on the basis of the residence of the petitioner.

[It is conside ed that the petitioner should have some kind of residence and that more physical presence should not suﬂice. Cases where a petitioner is domiciled in India but has no residence here are, it is considered, not likely to arise].

[It may, of course, be noted that the paragraph under discussion is intended to deal with cases only where the respondent is residing outside India. If he is residing with- in India, the matter will be decided by draft paragraph (a), and the petitioner's residence or presence within a parti- cular jurisdiction will be irrelevant] The paragraph under discussion will, in short, ensure that whenever an Indian court has jurisdiction, the ques- tion-----"which district court will exercise the jurisdiction"

is answered for all situations.

[The sub-clause under discussion is, it need not be. men- tioned, not intended to have the effect of expanding the jurisdiction of Indian Courts. As already pointed out, it is subject to the provisions of the restrictions on jurisdiction of Indian courts] Supplementary Note-----

(i) It may be noted that where the marriage was solemnised within the jurisdiction of court 'A' and the 'Clause 35.

109

parties last resided together in the jurisdiction of court ' '. while the husband now resides in the jurisdiction of a court 'C' and the wife now resides in the jurisdiction of court 'D', the case would not be covered by the existing provision in the Indian Divorce Act or by the correspond- ing provision in the Special Marriage Act' or the Hindu Marriage Act. Such a case will be covered by draft para. (8) which authorises the ﬁling of a petition in the court within whose jurisdiction the respondent is residing. In the absence of such a provision, the parties have to go

-either to court A or to court B----even though neither of them is staying there now.

_ (ii) No special provision has been considered necessary in respect of a petition at the instance of a person who is not a party to the marriage.' Clause 37 This follows the language of the Hindu Marriage Act and the Special Marriage Act. An express statement that there is no connivance, though insisted upon by section 47, 1st paragraph of the Indian Divorce Act, is not found in the other two Acts and has been omitted.' Clause 38 'The language of the corresponding provisions in the Hindu Marriage Act and the Special Marriage Act has been followed.

Clause 39 GeneraL--This is a new provision.

Sub-clauses (1) and (2)_--These follow the correspond- ing provision in the Hindu Marriage Act and the Special Marriage Act, which seeks to lay down the principles that should guide the courts in matrimonial causes.

Sub-clause (3].----Fears have been expressed in certain quarters that if the task of reconciliation is done by the court, the parties may not co--operate with the court, and that it would be desirable if private persons are associated with the court for this purpose. A provision to that effect has accordingly been inserted in the sub-clause under discussion.' .[There is no such nrovision in the other two Acts referred to above J.

'Section 31 (2) of the Special Marriage Act need not be oonsidcrcd here.

"As to such petitions, see the notes on clause 2'}.

'Clause 39 (I)(b'J, of course, bars relief on' the ground of Muir: 1-y,i there has been connivancc.

' See also body of the Report. pan. 75.

110

Clause 40 hub-clause {l).----Th1s follows the existing provision in Indian Divorce Act. with the addition of the words "or adu1teress"; the added words will cover cases where 1.he wife sues the husband for divorce on the ground of adultery. On th"s point, the clause follows section 3 of the (English) Matriinonial Causes Act, 1950. The court has also been given discretion to excuse non-compliance AIi"h the section on any other ground; as in the English ct.

The scope of the provision has been extended to petitions for judicial separation, where the ground is adultery.

Sub-clause (2}--is entirely new, and has been modelled on the lines of section 3 of the (English) Matrimonial Causes Act, 1950.

Clause 41 The existing provision has been reproduced in substance, but in a simpliﬁed form. The corresponding provision in the Special Marriage Act has been followed, as far as possible.

It appears desirable to extend this clause to petitions for judicial separation.' That change has been made accordingly.

Clause 42 As to the substance of this clause the reasons have been already stated.' The language of section 12(1) and section 12(2) of the (English) Matrimonial Causes Act, 1950 has been followed in place of existing section 16 of the Indian Divorce Act, since the former is more precise and simple.

Sub-clause (3) is intended to deal with a case where a party, after having obtained decree nisi, does not take steps to get it made absolute. The respondent should not in such cases be allowed to remain at the mercy of the peti- tioner {decree-holder), and hence the sub-clause confers upon the respondent the right to apply to the court, which can deal with the case in such manner as it thinks rit.

Section 12(3) of the (English) Matrimonial Causes Act, 1950, may be compared.

Clause 43 The provisions regarding damages from adulterer or adulteress, at present contained in sections 34 and 39, 3rd para... of the Indian Divorce Act, have been placed here in 'Cameare clause 40. ' 'See the body oi the Report. paras. 77-73.

111

a simpliﬁed form. _'if'ne language of" section 30 of the (English) Matrimonial Causes Act, 1:150, has been £0110'-'-F- ed, as more precise and brief.

The changes of substance are:-- .

(:1) The right has been given to the wife also.

{b} The orovision tor a mere claim for deimages has been omitted as L'epLl.i5I13I1t to modern idea'-3 33751 likely to lead to black--mail.' Clause 44 The existing comoliceted provisions regarding interim alimonv have been replaced by a simple one, which fol- lows the corresponding provisions in the Hindu lVIarr1oge Act and the Special Marriage Act.

The elaborate provisions in section second and third paragraphs, of the Indian Divorce Act appear to be unnecessary and have been omitted.

Clause 45 The corresponding provisions in the Hindu Marriage Act and the Special Marriage Act have been followed.

C l{I'!t.S'.3 46 GeneroI.----The provisions of section 3!}, first para, Divorce Act, authorising the court to order settlement. of the wife 5 property for the beneﬁt of the husband and the children, have been omitted. It is felt that as the power to award maintenance is proposed to be widened. the ' power of the court to' order settlement of the spouse's pro-

perty or to vary settlements, is not needed?

Sub-clause (I).--~'1'his is new and has been inserted on the lines of the corresponding provision in the Hindu Marriage Act.

Sub-clause (2].--Where there is already in existence a settlement, there is no harm if the power of the court to direct the application of the property, contained in section 40 of the Indian Divorce Act, is retained. It has been embodied here, with slight verbal changes made for clarity. -

Sub-clause (3) does not need any comments.

Clause 4?

_ This follows the language of the corresponding provi- 510115 in the Hindu Marriage Act and the Special Marriage 'For a detailed discussion, see the body of the Report, para. 66. 'For a detailed discussion, see the body of the Report, paras. 67-68.

Contrast s. 14, M.C.A. and the Royal C.om.1:nission'I Report on Marriage and Divorce, (I955), paragraph: 512 er-seq.

112

Jtct, which are simpler, briefer and yet more comprehen- sive than the language in the existing section.

' As to the question whether an order under such a provi- sion can be made after the parties have remarried each other, see the discussion in a recent English case.' Clause 48 The following changes have been made on the lines of the corresponding provision in the Hindu Marriage Act and Special Marriage Act:----

(i) It has been provided that if either party desires, then the proceedings must he held in camera.

(ii) An express provision, that it will not be law-

ful to publish or print such roceedings without the court's permission, has been aided.

As regards the penalty for non-publication, a separate clause' has been inserted in another Chapter.

Clause 49

1. This deals with that part of section 5-1 of the Indian Divorce Act which deals with appeal. The following ver- bal defects in the existing Act may be noted:--~

(a) The words "may be appealed from" occur in jarring repetition.

(b) The expression "laws and orders" is lengthy and not precise also.

(c) The reference to "orders'.', occurring for the second time in the existing section of the Divorce Act is not accurate. Orders of a court are not appealable in all cases (that is, unless mentioned in Order XLIII, rule 1 of the Code of Civil Procedure). Hence it would not be accurate to say that the decrees and orders will be appealable as decrees and orders in original civil jurisdiction. The diﬂiculty has been felt under section 28 of the Hindu Marriage Act in a recent case where it was held'? that an order refusing interim maintenance is not appealable, because it is not listed as an appeal- able order in the Code of Civil Procedure.

(cl) It is not clear whether the right of appeal should be sought in any other statute. See the discus- sion on the subject in a case which arose under the Hindu Marriage Act.' 'Granger vs. Groiizger stud Clark: (195933 W.L.R. 642, 6.19, 650 Court of Appeal).

'Sec clause 59.

'.S'ara.swao' v. Kn's}mamu:-thy, A.I.R. 1960 Andhra Pradcsh 30. 'Shobhana Sen': case, .A.I.R. 1959 Cal. 455.

an.

.---r..-.--

113

2. To make the matter clear, a short and straight PTO' vision giving a right of appeal against all decrees anti orders has been made.

3. A provision that the decrees etc. may be Ieppealﬂd from "under the law for the time being in force ---Wh1Ch would cover such points as limitation, form of appeal etc..

has been regarded as unnecessary'- Clause 50 Existing section 54 of the Indian Divorce Act deals with- two topics--- (i) appeal; (it) enforcement. For the sake of convenience, it has been broken up into two clauses. The clause under discussion deals with enforcement.

Clause 51 A person married under the Christian Marriage Act may marry again--

(11) under the Christian Marriage Act; or (it) under any other system of law.

So far as the situation at No. {i} above is concerned, the second marriage will be void by reason of breach of the condition providing that there should be no "spouse living at the time of the marriage", and will be punishable as bigamy under the Penal Code.

So far, however, as the situation at (iii above is con- cerned, it is not clear if the Christian Marriage Act will apply, and it is better to make a speciﬁc provision for such a situation.

Hence the necessity of the clause uiider discussion, which follows section 44 of the Special l'vIarriage Act.

[So far as the situation at No. {i} above is concerned, the clause under discussion will be +1 repetition of the clause which provides that such marriages shall be void. Compare section 44 of the Specie Marriage Act, which similarly repeats the provision in section 2-§(l}(i) read with section 4(a) of that Act] It is not considered necessary to incorporate any provi- sion similar to section 43 of the Special Marriage Act.

C louse 52 This imposes punishment for contravention of certain conditions of marriage, and follows section 18 of the Hindu Marriage Act.

As to breach of the condition regarding "spouse living", see a separate clause.' 'Clause 5!.

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It is considered unnecessary to punish breach oi the condition regarding idiocy or lunacy or regarding domicile of parties where the n1.z;i-riagc is solemnisecl outside India.

Clause 53 The following coznirients may be rnade:~--

(i) The reference to various classes of Churches have been omitted.

(ii) The formula "shall be deemed to have com- mitted the offence punishable" has been replaced by the words "punishable with". Existing section 6'?' of the Christian Marriage Act links up the offence with section 1'-"'3 I.P.C. (false evidence etc.), while section 45, Special Marriage Act, links it up with section 199 I.P.C. To make the clause self contained, the punish- ment has been reproduced in the clause.

(iii) Section 45 of the Special Marriage Act runs on different lines, in other respects. It has not been considered necessary to follow the language of that section, wliich punishes every person making, signing or attesting any notice, declaration or certiﬁcate, irres- pective of the motive of the offender.

(iv) As a deﬁnition of "rule" in relation to rules of Church has been inserted', consequential changes have been made in the clause under cliscussioei.

Clause 54 The ciause has been made wider by including; false personation before' a licensed Minister also. Instead of reference to "forbidding issue" of certiﬁcate, the mention of "making an objection" has been made. This is conse- quential.

It appears that there is no corresponding provision in the Hindu Marriage Act or the Special Marriage Act.

Clause 55 The following changes have been made in the existing provision:--

(i) The condition that the unauthorised so1ernniza-

tion should he "in the absence of a Marriage Registrar of the district in which the ceremony takes place" has been omitted, as unnecessary.

(ii) Transportation has been omitted, and the ﬁne has been limited to two thousand rupees.

(iii) The words "under this Act" have been added for the sake of clarity.

(in) Other changes are consequential.

'See clause 2---" rule ".

""' '-_-.-:\'-_r_.v--- '--*~ Q» T L-qallut-q.

115

Clause 56 Sub-clause (l).----This is new and is intended to expedite the disposal of objections to a proposed marriage.

Sub-clause (2):---This is also new. Complaints received show that very often the Ministers licensed by the State Government refuse to solemnize a particular marriage without reasonable cause. It seems desirable to make a provision that such refusal shall be punishable. Hence the sub-clause.

The sub-clause has been made applicable to Marriage Registrars also, for the sake of comprehensiveness.

Clause 5?

The provisions regarding penalty for wrongful actions of various types taken by a Marriage Registrar or Minister of Church are at present contained in several sections of the Christian Marriage Act. These have all been consolidated in this one clause, which is framed on the lines of the Special Marriage Act.

On a study of sections 69 to 73 of the existing Act, it has been found that all the offences concerned would be covered by the residuary words "in contravention of any other provision contained in this Act" in paragraph {e)(iiJ and the similar Words used in paragraph (in) in the clause under discussion.

Most of the existing sections provide for imprisonment of three years to ﬁve years and unlimited ﬁne. This has been replaced by imprisonment up to one year and ﬁne up to ﬁve hundred rupees, as in the Special Marriage Act.

Clause 58 The following changes have been made (in the existing section):----

(5) Instead of reference to "register, book or coun-

ter-foil certiﬁcate" reference to "the marriage certi- ﬁcate book" has been made. This is consequential.

{ii} The fine has been limited to two thousand rupees.

Clause 59 This is new and imposes a penalty for publication oi proceedings without permission of the court, where pro- ceedings are held in camera. The corresponding provision in the Hindu Marriage Act may be compared.

The existing section--section 53 of the Indian Divorce Act-----does not impose any penalty in such cases.

281 L--1{l ' 116 Clause 60, The substance of the existing provision has been retain- ed; but the positive form has been changed into a negative one, in order to emphasise the mandatory character of the provision.

The offence of bigamy' has been excluded from this clause, as it is a serious one.

Clause 61 Sub-clause {I).--It has been made clear that the order awarding cost should be passed after giving the parties an opportunity of hearing.

Following the language of the corresponding provision in the Special Marriage Act, a maximum compensation of one thousand rupees has been imposed.

The Special Marriage Act requires that the objection must not be reasonable and must not have been made in good faith. This wording has beenppreferred to the exist- ing wording "frivolous and such as not to obstruct" etc., as the former brings out the real ingredients.

Sub-clause (2).-It is felt that the order should be appeal- able, and hence this sub-clause. [The corresponding provi- sion in the Special Marriage Act does not provide for appeal from the decision of the Marriage Ofﬁce-r.] Sub-clause (3).--This will bar any second appeal.

Sub-clause (4).--Departing from the existing provision, it has been provided that a separate suit will not be neces- sary. and the order will be executable as a decree of the district court. Compare the corresponding provision in the Special Marriage Act. .

C louse 62 The following changes have been made: --

(i) Existing section 'E'i'(1) of the Christian Marriage Act saves any irregularity regarding 'any statement in regard to the consent of any person" whose consent is required by law. This has been o1"ii':t"e:i, because the substantive provision" regarding effect of want of guar- dian's consent makes the marriage vtidable, and not void. Therefore, no saving for false statement regard- ing consent is necessary.

(ii) Existing section 'i'7{4) saves irregularity as to time and place of marriage. Thishas been omitted. because the substantive provisions regarding time and' place (sections 10 and 11 of the Christian Marriage Act} have been omitted?

'Clause 51.

'Clause 2B[2}(EI).

'Clauses 21 (2) and 64 are merely enabling provisions.

117

(iii) The words "solemnized in accordance with the provisions of sections 4 and 5" have been replaced by "solemnized between two Christians under this Act 1n accordance with the provisions of section 6". The re- ference to existing section 4 is thus replaced by the gist thereof, namely--"between two Christians". It E also made clear that the marriage must be under the ct.

Clause 63 The words "and such person shall make the like margi- nal entry in the certiﬁcate thereof" have been omitted. Under existing section 54 of the Christian Marriage Act, when a marriage is registered, an entry has to be made at two places-

(i} in the marriage register book, and

(ii) also in the counterfoil.

But in the scheme proposed, there is no separate certiﬁcate. The only entry is in the marriage register book.' Hence this omission in the draft.

Section 49 of the Special Marriage Act does contain the omitted words. But even in that Act the words appear to be out of place, in view of the provisions of section 13 of the Special Marriage Act.

Clause 64 This is new. Since it appears that in practice marriages are solemnised at places other than churches, it seems -

desirable that such practice should be given statutory re- cognition, provided, of course, it is sanctioned by custom or usage. The clause under discussion is intended to make this clear.

Such customs or usages should be prevalent in community to which the parties belong. That has made clear.

the been Ciouse 65- This is new. Though there is no such provision in the Hindu Marriage Act or the Special Marriage Act or in the ﬁnglish Act, still it will prove a useful one for the present ct.

Clause 66 Only a slight verbal change has been made.

"all persons" has been replaced by the person".

The plural singular "any 'Sc: clause 23(1).

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Clause 6'?

It is considered that inspection of the Marriage Certi- ﬁcate Book and the supply of certiﬁed extracts therefrom should be free if the inspection or extracts are required by the parties to the marriage [at or about the time of mar- riage). In other cases, fees should be charged. This prin- ciple has been incorporated in the clause under discussion.

In other respects, the corresponding provision in the Special Marriage Act has been followed. ' By allowing inspection free in the cases mentioned above, the clause departs from existing section 79 of the Christian Marriage Act. Further, unlike the existing Act, the clause will apply to Ministers of Churches (or other persons hav- ing the custody of the Marriage Certiﬁcate Book) also.

Clause 68 The changes made are consequential and intended to improve the language.

Clause 69 The existing provisions regarding making the parties understand the substance of notices and declarations have been embodied here, with certain additions and alterations. It has been provided in sub--clause (1) that the notice etc.. may be given in the language commonly used in the State or in English.

Clause 70 The clause under discussion is merely intended to protect Ministers of Church in cases where, by the rules of their Church, they are prohibited from solernnizing a particular marriage.

It will take the place of section 53 of the Indian Divorce Act, and widen the scope of that section, by--

(i) applying it to Ministers of all recognised Churches, and (ti) allowing the protection not only where the Minister's objection to solemnizing the marriage is based on the parties being divorced (as at present}, but also in any case where the rules of his Church do not allow it.

It is considered unnecessary to embody the protection against suits etc. contained in existing section 58, latter part, Divorce Act.

Section 59 of the Divorce Act, which requires that in such cases any other Minister should be allowed to solemnise the marriage in that church building, has been omitted as unnecessary. Parties can, in such cases, go to- any other church building.

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Clause 7] The language of the corresponding provision in the Special Marriage Act has been followed.

Clause 73 The language of the corresponding provision in the Special Marriage Act has been followed with the addition of certain matters relating to licensing of Ministers and the Advisory Committees for recognition of Churches.

The provision regarding the procedure for laying the rules before the Parliament and modiﬁcations etc. by Parliament is in conformity with the latest legislative practice.' Clause 73

1. The language oi! the corresponding provision in the Special Marriage Act has been followed; but sub-section (2) of section 41 of that Act, which enumerates the matters in respect of which rules may be made, has been omitted as unnecessary. '

2. Section 41(1) of the Special Marriage Act contains the restriction that the rules should be consistent with the Civil Procedure Code. But the clause applying the Act'. is itself subject to rules made by the High Court. Hence this restriction is unnecessary.

3. Petitions under the clauses3 relating to marriage. have also been covered for comprehensiveness.

Clause '74 This is new. Since the grounds which render a marriage void under the new Act are not coextensive with those given in section 19 of the Indian Divorce Act, it is consi- dered pro er to ensure that a marriage performed before the new ct will not be rendered void by the new provi- sion. (For example, the existing Indian Divorce Act does not contain a list of prohibited degrees, though s. 19 men- tions it as a ground of nullity.) [So far as voidahle marriages are concerned, the matter has been dealt with in the very clause' dealing with void- able marriag]. -- l 'The language ofthc sub-clause will clear such doubts as arise from the observations of the Supreme Court in re. Kerafa Education: Bill, A.I.R. 1959, S.C. 956, 957- (1959)--45o, 459. 2 S.C.A. " Afier the rules are laid before the I_.cgis1:ttiVe Assembly they may be altered or amended and it in then that the rules, as amended, become effective. If no amendments are made, the rules come into operation after the period of 14 days expires ". Egg:-alsosﬁxprm Nuupapm (Prwars) Ltd. vs. Union of India, A.I.R. I953.

57 -

'Clause 38.

'Clauses 5(5) and 17.

'Clause zi.

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It may be noted, that the clause under discussion will apply also to marriages solemnized outside India, i.e., marriages solemnized not under the existing Christian Marriage Act but under the law of the foreign country where they are solemnized.

Pl-acing.--It is considered that this savings should ap- pear at the end, and not in the main clausel dealing with void marriages. Hence it has been placed here.

Clause 75 This is new. The corresponding provision in. Hindu Marriage Act may be compared.

Clause 76 General.--This is a repeal clause.

Sub-clause (1).---Repeal of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, and the Indian Divorce Act, 1945 (all UK Acts have also been provided for. For reasons, see the note below, entitled "Colonial jurisdiction".

Sub-clause (2), paragraph '(a).--This follows the language of section 51(2) of the Special Marriage Act.

So far as matrimonial relief under the Act is concerned, the substantive provisions relating to decree of nullity, restitution, judicial separation, divorce etc., themselves make it clear how far the new Act is to apply to marriages solemnized before its commencement. Therefore, the saving provision under discussion may not be of much use in respect of matrimonial relief.

But it may be desirable to make it clear that the pre- Act marriages will be deemed to have been solemnized under the new Act, for other purposes. Apart from the general utility of such a provision. there may be speciﬁc cases where it will come handy--for example, in relation to punishment of bigamyﬁ The paragraph under discussion will not, have the effect . of attracting the nullity provisions of the new Act so as to affect the validity oi any pre-Act marriagesi'.

Sub-clause (2), paragraph (bl.--It is felt that pending suits and proceedings under the existing Acts regarding marriage and divorce should continue to be dealt with by the respective courts, notwithstanding the repeal of those Acts. A provision has been made accordingly. This is a departure from the course adopted in s. 51(2) (b) S. M. A. This provision will be "without prejudice to the general provisions of s. 6 of the General Clauses Act, 189'i'."--See 'Clause 27.

'See clause 31.

'Sec clause 74.

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sub-clause (3). The provisions of section 6 of the General Clauses Act save previously acquired rights, liabilities etc., and it is considered that there would be no conﬂict between the speciﬁc provisions embodied in the sub-paragraph under discussion and those of the General Clauses Act.

Proceedings other than judicial proceedings e.g. notices of marriage etc. already given, do not, it is considered, need any savings provision. Parties can give fresh notices in such cases. This course had to be adopted in view of the fact that the continuance of such proceedings would create complications, particularly because the scheme in the proposed Act is, in some respects, different from that in the existing Act--e.g. (i) both parties must be Chris- tians, (ii) both parties must sign the notice, and so on.

Sub-Clause (3).----This follows the language of section 51(3), Special Marriage Act. Though a speciﬁc saving provision has been inserted in sub--clause (2), paragraph {:1}, regarding pre-Act marriages (following the Specal Marriage Act), the words "without prejudice" in the sub- clause under discussion have been used, again following the Special Marriage Act.

The words "without prejudice" etc. are not likely to create any complications when contrasted with sub-clause (2), paragraphs (a) and (b). The position relating to sub- clause (2), paragraph (a) has been discussed above in the Notes thereto. The position relating to sub-clause (2), paragraph (b) has also been discussed above in the Notes thereto, which may be seen.

[As to the Converts' Marriage Dissolution Act, the sub- ject has already been dealt with_1] Colonial jurisdict'io_11.

(1) The Indian and Colonial Divorce Jurisdiction Act, 19263 (as amended by the Indian and Colonial Divorce Jurisdiction Act, 1940)?' confers jurisdiction on Indian Courts to make decrees for dissolution of marriages where the parties to, the marriage are British subjects domiciled in England or Scotland, in any case where a court in India would have such jurisdiction if the parties to the marriage were domiciled in India.

{2} The 1926 Act was passed in consequence of the deci- sion in Keyes v. Keyes} holding that Indian courts could not grant a divorce where the parties were not domiciled in India {even though the marriage was celebrated in India, the parties were resident in India and the acts of adultery were committed within the jurisdiction of Indian 'See the body of the Depart, para. 63. '16 and 17 Geo. 5. c. 40.

'3 and 4 Geo. 6 c. 35.

'Kaye: v. Keyu, (1921) .p. 204.

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courts). The 1926 Act achieved, through an act of British Parliament, 3. result which, in View of the political subordi-

nation of India, could not be achieved then by Indian legislation.

{3} There are, of course, certain conditions which are applicable to a decree under the 1926 Act. The important conditions, stated brieﬂy arel.

(a) The grounds on which the decree may be granted should be such as those on which a decree may be granted by the High Court in to the law for the time being in force in England.

(b) Relief will be given on principles and rules as nearly as may be conformable to those on which the High Court in England acts.

(c) The court cannot grant relief under the Act except in cases where the petitioner resided in India at the time of presenting the petition and the place where the parties last resided together was in India. Nor can the court dissolve a marriage on a ground of adultery, cruelty or any crime except where the mar- riage was solemnised in India or the adultery, cruelty or crime was committed in India.

(d) The court may refuse to entertain the petition unless it is desirable in the interests of justice that the suit should be determined in India.

(4) There are certain other minor provisions which are not material for the present purpose.

(5) The 1926 Act was amended by the 1940 Act, which was enacted to remove certain doubts, and make certain modiﬁcations. Section 1 of the 1940 Act made it clear that the substantive amendments made in the English Law on divorce by the Matrimonial Causes Act, 1937 were to be taken into account by the Indian courts also while acting under the 1926 Act. Section 3 of the 1940 Act made it clear that where the wife is deserted by a husband and the pre-desertion domicile of the husband was in England or Scotland, then any change in the domicile of the husband after desertion could be disregarded for the purposes of jurisdiction under the Act. Other amendments are not material.

(6) The 1926 and 1940 Acts have not, in 'terms, been repealed so far. But it would seem from section _1'i'(_1)_of the Indian' Independence Act, 19479 that the Jurlsclmtlon under the 1926 Act can now be exercised only in respect of proceedings instituted before the "appointed day" {Le-y Iscction 1 (1), Prcwito. of the 1926 Act- '1o and Irj_Goo. 6. c. 30.

England, according' 123' before the 15th August, 1947). Sections 1'? {1} and 1'? (2) of the Indian Independence Act are as fo1lows:--

"1'i'(1). No court in either of the new Dominions shall, by virtue of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, have jurisdiction in or in relation to any proceedings for a decree for the dissolution of a marriage, unless those proceedings were instituted before the appointed day, but, save as afore- said and subject to any provision to the contrary which may hereafter be made by any Act of the Parliament of the United Kingdom or by any law of the Legisla- ture of the new Dominion concerned, all courts in the new Dominions shall have the same jurisdiction under the said Acts as they would have bad if this Act had not been passed.

(2) Any rules made on or after the appointed day under sub-section [4] of section one of the Indian and Colonial Divorce Jurisdiction Act, 1926, for a court in either of the new Dominions shall, instead of being made by the Secretary of State with the concurrence of the Lord Chancellor, be made by such authority as may be determined by the law of the Dominion con-

cerned, and so much of the said sub-section and of any rules in force thereunder immediately before the appointed day as require the approval of the Lord Chancellor to the nomination for any purpose of any judges of any such court shall cease to have eﬁect."

[s. 17(3) (4) are not material] (7) It may be of interest to note here that the 1925 ' and 1940 Acts were considered by the Law Commission in it: Report relating to British Statutes applicable to India. The observations made are as £ol1ows:--

"(3[]1) 1.926 Indian & Colonial Divorce Jurisdiction Act (16 3.: 17 Geo. 5, c. 40).

19=i|.'J Indian 3: Colonial Divorce Jurisdiction Act (3 and 4 Geo. 6. c. 35)."

This statute (as amended in 19-it!) gives jurisdiction to the High Courts in India to try matrimonial causes where parties thereto are British subjects domiciled i.n England or Scotland.

Apparently, this jurisdiction is still beneﬁcial to those British subjects who are coming to India for business and the like. But it is striking that this jurisdiction of our High Courts is to be governed by rules made by the Secretary of State, with the concurrence of the Lord Chancellor [s. 1(4)].

If this jurisdiction is to be maintained, it should be settled with the Government of the U.K. that the jurisdic-

tion should be governed solely by our laws, and then we -

124

may adopt the provisions of this statute with necessary modifications''.1 (8) As these two Acts are now applicable only to pro-

. ceedings pending in August 1947, they can be taken as repealed, for all practical purposes. However, a formal repeal is necessary, and the clause therefore seeks-

(a) to incorporate a saving provision in the new Act to the effect that the two Acts mentionedabove shall continue to apply to pending proceedings, and

(b) to provide for a formal repeal of the two Acts.

For future, the cases of British subjects domiciled in England or Scotland and coming to India will be governed by the provisions of the new Act relevant to any other non-Indians. No special provisions will be necessary.

(9) With theproposed repeal of these two Acts, the repeal of a later Act----'the Indian Divorce Act, 1945--a British Act? also becomes necessary. The Act was passed to validate certain proceedings for dissolution entertained by the High Court of Bombay (in relation to parties from the State of Hyderabad}. It is essentially linked up with the Indian and Colonial Divorce Jurisdiction Act, 1940, and has no independent object of its own?

First Schedule The list of prohibited relationships has been framed miinly on the basis of (English) Marriage Act, 1949 and the Special Marriage Act. Only items which are common to both the Acts have been retained'. And even from the items so common, the following have been omitted:-----

Sist_er's son; sister's daughter; brother's son:

brothers daughter; mother's brother; mother's sister; father's brother; father's sister.

These have been omitted in view of the fact that in some communities, it is usual to arrange su_ch marriages."

The items in the list could be reduced in number by adopting some drafting devices. For example, the expres- sions "any lineal ascendant or descendant", "widow of any lineal ascendant or descendant of the wife" and so on could be used. But that would make the list less concrete and has been avoided.

1Fif'th Report of the Law Commission, page 74, item (301).

=9 Geo. 6 Ch. 5.

"Cf. Fifth Report of the Law Commission (British Statutes Applicable to India), page 83. item (393).

'See also the discussion in the body of the Report, paras. 23-25. 'See also the discussion in the body of the Report. para. 23.

125

The items have been treated both from the _bride's angle and from the bridegroom's angle. Each Item in Part I of the Schedule (that is, the item as seen from the angle of the bridegroom), has its converse (that is, the item as seen from the angle of the bride), in Part II, as shown below:--

Item in Part I Corresponding item in Part II 1 -=- 26 2 = 34 3 -_-. 30' 4 = 36 5 = 23 6 = 35 7 = 20 8 =- 33 9 = 24 ID a 33 I 1: n 22.

I2 = 37 I 3 = 32 '14 = 21 IS = 27 I6 = 23 I7 = 25 I8 = 29 I9 = 3I Second Schedule The form of notice contained in the First Schedule to the Christian Marriage Act mentions the period of "three" calendar months. Under the form, parties give notice that

-the marriage is intended to be solemnised "between us within three calendar months from the date hereof". It must be noted, however, that under the provision in the body of the Actl, as it exists at present, if a marriage is notlsolemnised within two months of the date of the certi- ﬁcate, a fresh notice is required. The existing Act seems to have given an extra one month on supposition that about a month might be taken up between the notice and the actual issue of the certiﬁcate, and the parties would get two months more after the date of the certiﬁcate, thus making a total period of three months. It is, however, better to mention in the Schedule the same period as is mentioned in the body of the Act. For this reason, while the period in the body of the draft" is increased to three months, the period in the Schedule has been retained with-

-out any increase.

For verbal changes, see the corresponding provision in the Special Marriage Act.

'See sections 26 and 52 of the Christian Marriage Act. 'Clause 22.

123

As to the note regarding minor bride, the substantive provisions may be seen} The column regarding "age" has been replaced by "date of birth" which is more convenient.

Third Schedule The verbal changes made are consequential.

Fourth. Schedule This is new and, follows the corresponding Schedule in the Special Marriage Act, As to the note regarding minor bride. the substantive -"~ provision' may be seen.

Fifth Schedule The form of "certificate of marriage" contained in the existing Act, has been replaced by a simpliﬁed form which follows the corresponding provision in the Special Marri- age Act.

The declaration to be filed regarding absence of impe- diment etc.~" would be much earlier than the actual so1ernnisation--at least in the case of licensed Ministers and Marriage Regis1:rars"---, and hence the witnesses who signed the declaration may not necessarily be the same as those who attend the marriage. In View of this, the refer- ence to those witnesses, though found in the Special Marriage Act, has not been adopted Omitted Sections . """

The reasons for omitting the following sections of the existing Acts have been given below:----

Indian Christian Marriage Act, 1872 Section Section 3--Dcﬁnitions of various Churches, Omitted, an unnecessary. and of "Indian Christian" and " Roman Catholic ".

Suits! 9; Io and II . . . . Omitted, an unnecessary.

'See Clnuse 12(2).

ichuse 15(2)(b)(:'0.

'See the Fourth Schedule, as proposed. -* 'See clinic :5 (:J(bJ, etc. 127 'Section: 20, 21 and 22 . . . . Omitted, as unnecesury. Section 37 . . . . . . Omitted, as unnecessary in the pruilt day conditions Section 43 . . . . . . Omitted, an unnecessary. Section 44, 2nd and 3rd paragraphs . Omitted, us unnecessary. Section 48 . . . . . . Omitted, as unnecessary. Section: Go to 65 . . . . . Omitted, consequent on the proposed gho- lition of marriage by certiﬁcate.

Section 74 . . . . . . Omitted, as unnecessary. Section 81 . . . . . . Omitted, as unnecessary. Section 35 . . . . . . Omitted. as unnecessary. Section 831' . . . . . . Omitted, as unnecessary.

Indian Divorce Act, 1860 Section 3 (1) part, "High Court" . Omitted for reasons given ll'.'t'eId]' Suction 3 (2) . . . . . Omitted, an unnecessary. Section 3 (4) . . . . . Omitted, Is unnecessary. Section 3 (6) and 3 (7) . . . Omitted, is unnecessary. Section 3 (3) . . . . . Omitted, as urmecessary. Section 3 (10) . . . . . Omitted, as unnecessu-y. Sutton: 4, to 6 . . . . . Omitted, as unnecessary.

Section 7.--Section 7 provides that in all suits and proceedings under the Act, relief should be granted as nearly as may be on principles and rules followed by the Court for Divorce and Matrimonial Causes in England. The opinion is generally against the retention of such I provision, and hence it has been omitted. It is true that

-decisions of English courts might aﬁord valuable assis- tance, as the branch of law is one with which English courts had to deal with for a considerable length of time. But that is not a ground for laying down that the Indian courts should act in conformity with the rules laid down in the English Divorce Courts. Courts in India might refer to them for guidance as indeed they do in respect

-of other subjects as well.

Sections 8 and 9.---Under the proposed scheme, there will be a regular appeal to the High Court against deci-

sions given by the district court in proceedings under the 1See note: to clause 2.

128

Act, and that will assimilate these proceedings to other civil proceedings. There is no need, therefore, to confer 'an extraordinary jurisdiction on the High Courts to trans-~ fer proceedings duly taken in the mufassil courts.

As regards section 9, it should be noted that under existing section 45, Indian Divorce Act, the provisions of the Civil Procedure Code are generally to apply to the trial of proceedings under the Act. There is_ therefore, no need for a special provision such as is contained in section 9.

Section 12, port {re-countercharge).----0in.itted, as un- necessary.

Section 13, _po1't.---Section 13 in part states certain grounds on which relief could be refused. All such grounds have already been provided in a single compre- hensive clause. There is, however, a further provision in section 13 that when a petition is dismissed by a district court, the petitioner may nevertheless present a similar petition to the High Court. This is not necessary. Once a petitioner has moved the district court and a decision has been pronounced, the only remedy which should be open to the petitioner is to take the matter in appeal. This part of the section has, therefore, been omitted.

Section 14, part (condonation}.-----Oniitted as unneces- sary.

Section 1'i'.------There is, considerable opposition to the retention of section 17. There are no special reasons why decrees for dissolution should be put on a different footing from decrees passed by civil courts in other civil proceed- ings. Hence there is no need for a provision requiring that decrees for dissolution of marriage passed by a dis- trict court should be conﬁrmed by the High Court. Section 17 has therefore been omitted.

Section l'i'A.----Section 17A was introduced in the Indian Divorce Act, 1869, by an amendment of 1927 and' is based upon a similar provision in England. The section has not in practice been availed of to any extent. No useful purpose will be served by providing for the appoint- ment of a (State) Proctor. It has, therefore, been omitted.

Section 2D.--Omitted, as unnecessary. Sections 24 and 25.--Omitted, as unnecessaryl.

Sections 2'?' to 31.---These sections confer certain rights on a wife to whom the Indian Succession Act, 1865, does not apply. The relevant provision is section 4 of the Indian Succession Act, 1865 and that has been repealed by the Indian Succession Act, 1925 and re--enacted as section

20. Under this section, two classes of persons are exempt-

'For a detailed discussion, see the body of the Report, para. 46.

I29 ed from its operation: (a) persons married before the 1st January, 1366. This sub-clause would have worked itself out and need not now be repeated. of a marriage where either bride or bridegroom was at the time of the marriage a Hindu, a Mohammadan, a Sikh or a Jain by religion. This might have been necessary in View of the fact that the Indian Divorce Act, 1869 and the Indian Christian Marriage Act, 1872, apply to marriages where one of the parties thereto is not a Christian. But.

under the scheme as proposed, the Act will apply only when both the parties thereto are Christians. In View of this, sections 2'? to 31 are unnecessary and have been Omitted.

Section 35.--This deals with costs. It is not necessary to enact any special provision in that behalf. The provi-

-sions of t-he Code of Civil Procedure are ample and confer on the court a discretion in the matter of awarding costs, and that must be sufficient to cover cases arising under this Act also. The section has therefore been omitted.

Section 38.---This provides that payments of alimony {granted to the wife) might be made either to her or to the trustees. There is no need for such a provision.

Section 39, first pcrag1r'aph.--Ornitted, for reasons already given.'-

Section 39, second pcn'agra.ph.--Om.itted, as unneces- sary.

Section 46.-----Section 46 provides' for the forms men- tioned in the Appendix being used. There is no such. provision in the Special Marriage Act or the Hindu Marriage Act. This can be left to be dealt with by the ru1e--making authority of the High Courts. The section has, therefore, been omitted.

Sections 48, 49 and 50.---Provisions of the Code of Civil Procedure relating to the matters mentioned in these sections will be attracted by the force of existing section 45, Indian Divorce Act. Hence the sections are unneces- 53113'-

Sections 51-52.----These sections lay down certain special rules in the matter of taking evidence in proceedings under the Act. Subsequent to this enactment, the Indian Evidence Act was passed in 1872 and it contains general provisions applicable to all proceedings. In view of those provisions, these sections have become unnecessary. They have been omitted and the matter left to be determined in accord- ance with the provisions of the Evidence Act. [As to competence, see sections 118, 137 and 138 of that Act.

1'39, I.P.C.].

'Soc notes to clause 46.

(h) The wife' As.

to compellability, see section 118 of that Act and section-

130

Section 54.--There is no need for this section as the provisions of the Code of Civil Procedure will be ample for that purpose.

Section 5E3.----Omitted, as unnecessary. Section 59.--Omitted for reasons already given.' Sections 60 and 61.-----Omitted, as unnecessary.

Schedule of _fo?'ms.--Omitto-:1, as unnecessary (see «under section 48, above).

'See notes on clause 70.

"'-I--w'-:'---v-~ - -- *- *---..:...u-

---'-1\..' APPENDIX III Maanmee Indian Christian Marriage Act, 1372 Table showing the p1'o-vision in the existing Acts and the Existing provision corresponding pT0b'i$iOTL, if any, in Appendix I Corresponding clause, if any, i.n._App. I Section 1, Is: para.

znd para.

Section 2 (Repealed) Section. 3 "Church of England '* and "A.r1gIic=Ln "

" Church of Scotland "

"Church of Rome" and " Roman Catholic".

" Church " . . . .

" India "

" Minor "

" Christian "

" Indian Chriutieu " .

" Registrar--Gen-era] " .

Section 4 Sc-ction 5, part Section 5, part .

Section 6 Section 7 . . .

Section 8 (Omitted by the Adaptation of Laws Order, 1950).

Section 9 Section IO Section I I - .

[Clause] I (I). Part-

I (23; PEN-

Omitted.

2, part.

Omitted.

131

281 L--11 Section 12 . .

Section 13 . .

Section 14 Section I5 .

Section 16 . .

Section 17, part Section 17, part .

Section 18 .

Section 19 Section 20 . .

Section 21 Section 22 . .

Seﬁion 23 . .

Section 24 .

Section 25 .

Section 26 . .

Sections 27 to 36 .

Section 37 . .

Section 33 .

Section 39, Ist para.

2nd para.

Section 40, part .

Section 41, part .

Section 41, part Section 42, part Section 42, part Section 43 .

Section 44, Ist para.

Section 44, 2nd para.

Section 44, 3rd para.

o a 12 (1), part.

13 (ct) and (b), pert I3 (a), part 13 (d), earlier part 13 (:27), latter part 19, part 15 (1), part Is (2), part 5 (I), part Omitted.

Omitted.

159 (2), part Is (1). part 20 22, part 23, part Omitted.

I2 (1), part.

14 (:1).

I4 Eb).

12 (33.

19, part 15 (I), part 15 (2). part.

19, part Omitted.

5 (IL part Omitted.

Omitted.

133

Section 45, part, extended Section 45, part Section 45, part Section 46, extended Section 47 (Omitted by the Adapta- tion of Laws Order, 1950).

Section 48 Section 49 Section 5o .

Section 51 .

Section 52 .

Section 53 Section 54 Section 55 .

Section 56 (Omitted by the Adapta- tion of Laws Order, I95o].

Section 57 Section 58 Section 59 .

Section ISO to 65 Section 66 Section 67 .

Section 63 .

Section 69 .

Section 70 Section 71 Section '_',I'2 Section 73 Section 74 Section 75 Section 76 Section 7-;

o o o 1 o 5 (4) 5 (5)-

5 (6) Omitted.

I5 (1), part.

21 £1) 22, part 71

23., part 23, part 69, part.

69, part 23, part Omitted.

S4 55 57: Part 57: P311 57: P61'! 57; P511 57; P311 Omitted.

58 60 134

1 2' Scction 78 . . . . . 63 Section 79 . . . . . 67, part Section 30, part . . . . 67, part Section 80, part . . . . 68 Section 81 . . . . . Omittcd.

Section 32 . . . . . 72, part Section 83 . . . . . 72, part Section 84 (Omitted by the Adapta-

tion of Laws Order, 1950).

Section B5 . . . . . Omitted.

Section 86 (Omitted by the Adaptation . . of Laws Order, 1950).

Section 31 . . . - - Omitted.

Section 88 . . . . . 40?) Sch:-du1:: I . . . . . Secondischedule. Schedule II . . . . . Third Schedule.

Schedule III . . . . . Fifth Schedule, part Schedule IV . . . . . Fifth Schedulefpart Schedule V (Repealed) DIVORCE Indian Divorce Act, 1869 Existing provision Cc-rrcsponding provision, if any. in App. I 1 2 [Clause] Section I . . . . . 1 (1), part Section 1, 1.5: para. . . . 1 (2), part Section 2, and para. . . . 34 Section 2, 3rd para. . . . 35 (a).

Section 2., 4th para . . . 35 (b) 135 Section 2, 5th para.

Section 3 (1), part Section 3 (1), part .

Saction 3 (2) .

Section 3 (3), part .

Section 3 (3), part Section 3 (4) . .

-Section 3 (5) . .

section; (5) . .

Section 3 (7) -

Section 3 cs) . .

.Scction 3 (9) .

Section 3 (to) Section 4 - .

Section 5 Section 6 Section 7 Section B Section 9

o a Section to, 1st para. part.

Section to, rat para. part.

Section 10, 3rd para.

Section II . .

Scction 12, part .

Staction to, 2nd para. part ..Scction to, 2nd para. part c a Section I2, part (relating to counter-

charge).

Section 13, part Section 13, part .

35 (c) Omitted 36 (3). part Omitted.

2 , part 36 (3): part Omitted.

2, part Omitted.

Ornittcd.

Clmittcd.

2, part Omitted.

Omitrad.

Omirtcd.

Omitted.

30. part 36 (3), part 30, part 36 (3). pm 37 (I). part 40 (I) 39 (I): part Omittcd .

39 (1): Put Ornittcd.

136

Section :4 . . . . . 39 (1), part Section 14, part (relating to comiona- Omitted. tron).

Section 15 . . . . . 4:

Section 16 . . . . . 4;

Section 17 . . . . . Omitted.

Section 17A . . . . . Omitted.

Section 18 . . . . . 27, part Section 19 (I) . . . . 23, part Section 19 (2) . . . . 27, part Section I9 (3) - - . . 23, part Seciion I9 (4) . . . . 27, part Section 19, last para. . . . 28, part, Section 20 . . . . . Omitted.

Section 21 . . . . . 29 Section 22, earlier part . . . 25 Section 22, latter part . . . 2.6, part Section 23, earlier part . . . 36 (3), part Section 23, latter part . . . 39 (1), part Section 24 . . . . . Omitted.

Section 25 . . . . . Omitted.

Section 26 . . . . . 26, part Sections 27 to 3! . . . . Omitted.

Section 32,'part . . . . 24 (1) Section 32, part . . . . 24. (3) Section 33 . . . . . 24 (2) Section 34 - . . . . 43 Section 35 . . . . . Omitted.

Section 36 . . . . . 44 Section 37 . . . . . 45 Section 38 . . . . . Omitted.

Section 39. Ist para. . . . Omitted.

13'?

, I Section 39, 2nd para. . . . Omitlcil Section 39. 3rd para. . . - 43 (2) ' Section 4o, main para . . . 46(2) .Sct.-tion 40, Proviso . . . . 46(3) .Secr:Eon 41 . . . . . 47, part Section 42 . . . . . 47: Part '- Section 43 . . . . . 47, part Section 44 . . . . . 47, part Section 45 . . . . . 38 ;Section 46 . . . . . Omitted.

section 47, lst para . . . . 37(1), part .Section 47, 2nd para . . . 37(2) Section 43 . . . . . Omitted.

Section 49 . . . . . Omitted.

Section 50 . . . . . Omitted.

- Section 51 . . . . . Omitted.

Section 52 . . . . . Omitted.

_ Section 53 . . . . . 48

- Section 54 . . . . . Omitted.

Section 55, part . . . . 49 Section 55, part . . . . ' so .Sc_ction 56 . . . . . Omitted.

Section 57 . . . . . 33 Section 58, extended . . . 70 ' :Section 59 . . . . . Omitted.

'.Section 60 . . . . . Omitted.

:Section 61 . . . . . Ornitted.

Section 62 . . . . . 73 Schedule of form . . . . Omitted.

APPENDIX IV LIST of wrrmrssrs EXALHNEIJ Witness Name of witncss Page No. in th:

No. record of cvidcu-on I Z 3 BOMBAY (nth, Izth, r4t11 and 15:11 September, 1959) I Dr. J. S. Wilh'a.o'1s{Iudian National Church, Bombay) .

1 Shri D. Suryawanshi, President, Indian Christian Association . . . . . . .

3 Shri James I. John, General Secretary of the All India Federation of National Churches, Bombay . 4 Shri Dgﬁd F. Shaw, M.L.A., Bombay . . . 5 The Catholic Union of India, Bombay (A. Scares- Prcaidem and Alfred T. O. Pinto, Secretary) . , 6 Shroﬂ'& Co., Bombay Solicitors (Shri S. K. I. Modi} . 7 The Methodist Church, Bombay (Rev. I. B. Sltyarvnrn ; ' and Shri V. Uzagarc) . . . . .

8 Shri C. 5. Kirby Rcélrcsenting thv: Centenary Shri C. S. Dcodhar hristian ﬁssociatiou, Hubli, Shri G. S. Dcodha: J Dharwar District, Mysorc State . . . .

IO 11 I2 14 17 Shri D. N. Tilak, Rcprcscntativ: of the National Chris- tian Council ' . . . . . .

MADRAS (13th to 15th October, 19-59) Shri R. S8d8;'Ii'i"8ﬂ, Chicf Presidcncy Magistrate, Shri Balasiugharn Surya Nadar, Advocate, representing the National Christian Council . . . .

Shri C. K. Nair . . . . . .

Shri A. Dorairai Shri P. T. Mathew Shri L. V. l'\«'I'.atl1cw3, reprcocnting the National Ch.rE;..

-tim Council . . . . . . .

Sim' C. V. Naidu .

Shri E. B. Dcvadasoo. . . . . . .

133 139

ha 20 2! 32 .23 24 25 26 NEW DELHI (2nd to 4th November, I959) Rev. John Justin Levi,'Chie.' Priest, Indian National Church, Delhi . . . . . . .

Shri Gyan Chand, Editor, " Masihe Duniya "

Cardinal Gracias, ](Representing the Catholic Bishop Raymond, .r Bishops' Conference of India) Father Sanders Sc Father Nazareth.

Shri E. A. N. Mukerji, representing the National Chris- tian Council . . . . . . . .

Prof. Eric H. Banerji, Iultundur Shri B. S. Darbari, Advocate, Agra Shri A. B. Shinde, Iubbulpur, representing rhc National Christian Council . . . . . .

Rtv. W. D. Maddan Rev. W'il.lia.m Glad, representing the Northern Evangeli- cal Lutheran Church of India . . . .

APPENDIX V Recommnnmrrons IN answer or orrren Acrs

1. Converts' Marriage Dissolution Act, 1866---As the existing Act is limited to cases of conversion from Hindu- ism to Christianity, the question whether a law generally applicable to all cases of conversion from one religion to another is needed, is under consideration. When such legislation is undertaken, the repeal of the Converts' Mar- riage Dissolution Act can be taken up.' _.-._ --_...

/'See the body of the Report. para. 63. 1-10 ..n..n--i-_ NOTE OF SI-IRI P. SATYANARAYANA RAD I am unable to subscribe to the View implicit in the provisions of the proposed Bill that no distinction ought to he made in the matter of capacity and essential validity between persons domiciled in India and persons not so domiciled, in the case of marriages solemnised under the proposed Bﬂl in India. The proposed Bill proceeds on the assumption that the provisions as to capacity and essential validity embodied in clause 4 should apply inexorably even where one or both the parties to the marriage is or are of foreign domicile in all cases in which the marriage is solemnised in India under the Act. Be it noted in this connection that apart from the Special Marriage Act which suffers from a similar defect and which even otherwise is bound to be objectionable to the vast majority of Chris- tians who would prefer a religious form of marriage, this is the only Act under which Christians may marry in India} The relevant provisions of the Bill are clauses 1(2), 3, 4, 11, and 19.

Clause 1(2) provides that the Act extends to the whole of India except the State of Jammu and Kashmir and also to persons domiciled in India who are outside the said territories. This means that the Act will apply, irrespective of the domicile oi the parties, -to all marriages solemnised under it in India. This clause purports to follow section 1, ﬁrst para. of the Indian Christian Marriage Act, 1872, and section 2, first para. o-f the Indian Divorce Act, 1869. It is so as regards the wording but not as regards the sub- stance. The former, as will be pointed o-ut later, purported to deal only with forms of marriage. The latter dealt with matrimonial causes and in the very section relied on embodied signiﬁcant qualiﬁcations. These are really no precedents. The draft clause proceeds on exaggerated notions of sovereignty and the earlier part of the clause is not in harmony with the latter part of the clause import- ing the domicile qualiﬁcations as to marriages solemnized under the Act outside India.

_ Clause 3 which provides that marriages between Chris- tians in India shall be solemnised under the proposed Act unless the same is solemnised under the provisions of the Special Marriage Act, has been adverted to earlier.

'See clause 3.

141 142

Clause 4 deals with capacity and essential validity and it provides that a marriage may be solemnised in India between any two Christians if the conditions laid down by it are fulﬁlled. Clauses 11 and I9 deal with the duty of

-different persons entitled to solemnise a marriage under the Act to ensure that the requirements of clause 4 are com- plied with. Clause 11 applies to marriages before a minister

-of recognised church and it imposes a duty on the minister to refuse to solemnise a marriage if the minister has reason "to believe that the solemnisation of the marriage will, inter alto, be contrary to the provisions of clause 4. Clause 19 deals with marriages before a iicensed Minister or a Marriage Registrar and imposes on them a duty similar to that imposed on Ministers of recognised church by sec- tion I1, with this diﬁerence that clause 19 provides expres- sly for an enquiry into the matter and for an appeal from the decision.

It would be seen from the foregoing survey that the Bill makes lex loci celeb7'rztiom's govern not only the formal validity of the marriage but also its essential validity. Fur- ther it excludes altogether the personal laws of the foreign party or parties to the marriage, at any rate, so far as the validity of the marriage in India is concerned. There is no provision in the Bill corresponding to section 88 of the "Christian Marriage Act, 18'i'2, saving the application of the personal laws to the parties. The elaborate provisions in "the Bill giving effect to rules of private international law as to jurisdiction in matrimonial causes would naturally lend support to the view that the Bill should be construed to be exhaustive on the subject of the applicability of its provisions. The very fact that a qualiﬁcation is introduced

-on the basis of domicile in the case of marriages solem- nised under the Act outside India may be construed as [leading to the inference that no such qualiﬁcation be intro- duced in the case of marriages solemnised in India. It has been asserted that the effect of the provisions of the Bill would be to make the tea: domicilii operate cumulatively with the tea: loci. Whatever may be the merits of the solution it is obvious that the provisions of the Bill do not give effect even to this solution.

I am of the opinion that this extreme lack of solicitude for foreign laws displayed by the Bill is (i) insular and (ii) not in keeping with the liberal approach in the matter of jurisdiction in matrimonial causes adopted in the Bill (iii) inconsistent with the policy adopted in the case of Christian marriages for nearly a century (iv) inconsistent with the practice followed in England from whose legal system we have drawn considerably, and an injudicious break with which is bound to be out of harmony with settled legis- lative and judicial approach, though it may satisfy pseudo- notions of sovereignty (v) contrary to the consensus of 143 juristic opinion as to the proper principles of Private Inter-

national Lawapplicable to the subject.

I will consider these objections seriatim.

(i) Insular approac}1.--The recognition of the foreign laws by all civilised countries for the purpose of doing justice between the parties has been well-established and all the writers on Private International Law have emphasis-

ed the necessity of such recognition. To quote only one authority--Cheshire on Private International Law' sums ' up the position in the following words:----

"Private International Law owes its existence to the fact that there are in the world a number of sepa- rate territorial systems of law that differ greatly from each other in the rules by which they regulate the various legal relations arising in daily life. The occa- sions are frequent when the courts in one jurisdiction must take account of some rule of law that obtains in another territorial system. A sovereign is supreme with- in his own territory, and, according to the universal maxim of jurisprudence, he has exclusive jurisdiction over every transaction that is there effected. He can, if he chooses, refuse to consider any law but his own. The adoption, however, of this policy of indifference, though common enough in other ages, is impracticable-

in the modern civilised world, and nations have long found that they cannot, by sheltering behind the prin- ciple of territorial sovereignty, aﬁord to disregard foreign rules of law merely because they happen to be at variance with their own territorial or internal system of law. Moreover, as will be shown 'later, it is no derogation of sovereignty to take account of foreign law.'_' In this connection it may be noted that Indian courts:

and legislation' have, by following English precedents, impliedly given preference to thetheory so ably expound- ed by Savigny' that the general principle in cases involv- ing a foreign element should be that full eﬁect should be huh :d., p. I. _'See in the sphere ofinarrisge, 54 Bom. 288 and 59 Born. 273. In other spheres see the collection of cases in the article by T. S. Rama Rao on " Pri- vate International Law in India" in the Indian Year Book of International Affairs. 1955.

_'E;;. S. I3_ GP. (3.; S. 41 Evidence Act; S. 2 Indian Divorce Act ; S. 5 Indian Succession Act ; S. 88 Indian Christian Marriage Act ; S. I34 to I37 Negotiable Instrtuncnts Act, etc. 'For _ an exposition o Saw.-igng,-'a theory and its merits, sec Wolff: Private International Law, and ed. pp. 34-38 and p. 39.

. ...__............._ . -.......... . .-.__.... ..._ 144 given to foreign laws unless there are overriding principles of public policy to the contrary. It is thus clear that in disregarding altogether the personal laws of the foreign parties the Bill is unduly insular in character.

It must also be remembered that the followers of Christian religion in our country are a comparatively small minority; but there is an overwhelming adherence to this religion in the countries abroad. When considering a legislation for such a community it may not be justified to do so merely from the domestic angle. We should also take note of the principles of Private International Law. Domestic consideration in the legislative policy of a country which has one religious concept may be justiﬁed but it would be inadequate legislation if such principle is rigor- ously applied in a country like India.

It is not suggested that our legislature is not competent to legislate for marriages when one or both parties thereto have a foreign domicile. No one can dispute the com- petency of our legislature to legislate on the subject, nor is it maintained that we should not legislate on the sub- ject. All that is said is that when we legislate we should take into account the peculiar feature of such marriages, namely, a party or parties being of foreign domicile and formulate rules suited to the situation. Private Interna- tional Law is not super--State Law. It is only part of the law of a State. If foreign laws are allowed to be taken note of in cases involving a foreign element it is because the sovereign permits it, So there is no point in entertain- ing the fear of 'encroachments' of Private International Law into Municipal Law.

(ii) Not in keeping with the liberal approach adopted in the matter of jurisdiction:

In this connection reference may be made to clause 35 of the draft Bill. If in the matter of jurisdiction we are prepared to set a limit to the jurisdiction of our courts it is diﬂicult to understand why we should not be actuated by the same spirit in the matter of capacity and essential vali- dity of marriage. We must be logical.

(iii) Inconsistent with the policy adopted in the case of Christian Marriages for nearly a century:

The law relating to solemnisation of Christian marriages was consolidated and amended by the Indian Christian Marriage Act, IST2. An examination of the provisions of the Act of 1372 reveals that the main object of the Act was to provide the machinery for the solemnisation in India of marriages among Christians while leaving the question of essential validity to the personal laws of the parties. Part I of the Act deals with persons by whom marriages may be solemnised; Part II deals with the time and place at which marriages may be solemnised; Part III relates to __.----

-..g§_..'.r,, 145 marriages solemnised by Ministers of Religion licensed under the Act; Part IV relates to registration of marriages solemnised by Ministry of Religion; Part V relates to mar- riages solemnised by or in the presence of marriage regis- trar; Part VI relates to marriages of Native Christians; Part VII deals with penalties and Part WII deals with mis: cellaneous matters. This Act chan ed the law as it stood then under which the Registrar _or inister had to satisfy himself that there was no lawful impediment according to the law of England and by section 88 left the question of capacity and essential validity to the personal laws of the parties..1 Section 38 of the Indian Christian Marriage Act, 1372, expressly provides "nothing in this Act shall be- deemed to validate any marriage which the personal law applicable to either of the parties forbids him or her to enter into."

Thus the determination of the capacity of the parties and the essential validity of the marriage was expressly left to the personal law or laws of the parties. Under this scheme, foreigners could take advantage of the provisions of the Act and have their marriages solemnise-d in one or other of the forms provided by it while being governed by the personal law in the matter of capacity and essential validity. This system ensured the international validity of their marriages without at the same time imposing restric-- tions alien to their personal laws and minimised in no small measure limping marriages or marriages valid in one country and invalid in another country. This state of law has obtained since 1372 at least. No hardship has been experienced; no objection has been expressed; no qualms: of sovereignty were felt. Eminent judges of an age when judicial side-comments on the propriety of the principles underlying a legislative provision were considered both. proper and necessary, have had occasion to apply section: 38 but none felt the need for criticising the principle. What then is the justiﬁcation for the radical departure from the liberal principle in the proposed Bill'? Why should we now revert to a system similar to that abandoned in 13'i'2..

It is hard to understand.

(iv) Inconsistent with the practice in England:

Firstly, the statutory provisions may be considered' The domestic law of marriage in England was ﬁnally con-- solidated with some amendments by the Marriage Act, 1949. This Act provides for two categories of absolute prohibitions or prohibitions which may be classiﬁed as pertaining to capacity and essential validity. These are (i) as to age and (u) as to Xrﬂhlblted degrees. Section 2 of the Act taken:

ffom the ge of Marriage Act, 1929, provides that a ma- nage between persons either of whom is under the age of 16 shall be void. Section 1 deals with prohibited degrees 1For a sfafcmﬁnt of the lay prior to 1372 see Lop: z 1.1. e2 12 Cal 706 at p.729. 5 Lop ' ' 146 and provides that marriages within prohibited degrees of consanguinity or afﬁnity as stated in Parts I and II of the First Schedule to the Act shall be void. It may be noted that the Schedule reproduces with some modiﬁcations the prohibitions of the Prayer Book as conﬁrmed and modiﬁed by statuzes commencing from Lord Lyndhurst's Act of 1335 (526 Will. 4. c. 54).

It is signiﬁcant that the Act is silent on the question whether its provisions on the subject under consideration are conﬁned only to persons domiciled in England or whether they apply to all persons marrying in England. It is this legislative silence that enables Courts to import principles of private international law. It cannot be claim- ed that our Bill follows the pattern of the English Mar- riage Act. There is nothing in the Act corresponding to clause 11(2) of our proposed Bill. Nor can an inference be drawn from the provisions of the Act that compliance with sections 1 and 2 is condition precedent to the solem- nisation of marriage under it. In contrast to the provi- sions of our Bill the Act does not empower any of the authorities authorised to solemnise marriages to sue moth refuse to register marriages on the ground of any prohi- bitions falling under section 1 or 2. Thus in the case of marriage by banns, no doubt, publicity is given and it is open to raise objections. In the case of marriage by com- mon license provision is made in section 16 whereby one of the persons to be married should swear before a person granting such licence that he or she believes that there is no impediment of kindred or alliance of any other law- ful cause nor any suit commenced in any court, to bar or hinder the solemnisation of marriage in accordance with the licence. That sworn statement is accepted and, if it is false penal consequences will follow. Section 29 provides for the entering of a caveat and that caveat is to be enquir- ed into by the Superintendent and an appeal is provided for to the Registrar-General from the decision of the Supe- rintendent. Thus it is clear that the Act does not insist as does the present Bill, that whatever may be the law of the domicile of the parties they are bound to satisfy the solem- nising authority that there are no impediments under sec- tions 1 and 2 of the Act.

Considerable light is thrown on the question as to what is the meaning of the expression "impediments" in rela- tion to the declaration that there are no impediments, by other statutory provisions and judicial decisions and the views of writers of authority. We may consider first Mar- riage with Foreigners Act, 1906 (6 Edw. 7, c. 40) which is still on the statute book. Section 2 of the Act deals with marriages of foreigners with British subjects in the United Kingdom and deals with issue of certiﬁcates that there are no impediments according to the foreign law. Though the Act applies only in the case of subjects of reciprocating territories, it is clear that it proceeds on the assumption that impediments in the case of a foreigner' would mean 147 impediments under the foreign lawi. Secondly, reference may be made to section 19 of the Foreign Marriages Act, 1892, which provides that the Marriage Ofﬁcer under the Act should refuse to solemnise a marriage which would be inconsistent with the principles of international law or cornity of nations. As will be pointed out later, the prin- ciple referred to is the principle that capacity and essential validity are governed by [ex domicilii. of the parties.

It may also be noted that leading authorities like Hals- bury and Dice}; support the view that the law relating to prohibited degrees of consanguinity and afflnit laid down by the En lish Act affects only persons omiciled in England. ee 19 Halsbury's Laws of England {llrd ed.n.), page '?'85 and Dicejﬂs Conflict of Laws (7th edn.), page 258. The decisions relied on by these writers in so port of the propositionmlte De Wilton. Re Bozzelli's ttlement-- Sottomayor v. De Barros (No. 1}--bear it out".

In the sphere of English conflict of laws, since the deci- sion of House of Lords in 1861 in Brooks v. Brook" it is well established that a distinction has to be made between for- malities and essentials of marriage and that the latter which includes capacity is governed by the law of domi- cile of the parties. In Brook v. Brook, the marriage was aolemnised in Denmark between a man and his deceased wife's sister, both of English domicile. According to the law of Denmark, the marriage was valid. According to the law of England, as it stood then, the parties were with- in prohibited degrees of relationship and hence the mar riage was void. The question in issue was whether the 'See Halsbury Laws of England (3rd cdn.), Vol. 19, pp. 778, 779 where this Act is referred to.

'In Re De Wilton [(1900) 2 C11. 431] the question arose with rcfcrcnce to the persons professing the Jewish religion who were domiciled British subjects. The marriage was solemnised outside England according to Jewish rites between a niece and a maternal uncle. The marriage was valid according to Jewish Law but was void according to English law. It was held, notwiLh- standing the fa-:.t that the marriage was valid according to Jewish law, as the persons were domiciled in England they were governed by the impediments laid down by the English Law (Lord Lyndhursfs Act) and so the marriage was void.

In Re Baez-el'h"s Settlement [(19c-2) I Ch. 751] the question arose about the validity of the marriage between a naturalised Italian domiciled in Italy who married her deceased husband's brother, on Italian domiciled in Italy. The marriage was solemnised in Italy after the necessary dispensation has been obtained. It was valid according to the Italian law and the question arose whether it is a marriage which should be recognised as valid in the United Kingdom. It was held that notwithstanding Lord I_}'11Cll':ul'SI's Act, the marriage was valid in England. Swinfein Eady L. applied the principle of Brook 12:. Brook [(1861) 9 I-l.L. Cas. 193] which established the principle that the law of domicile of the parties will govern the essential validity of mar- riage. A passage from the iudgcrnent of the Court of Appeal in Sottomayor 1:. De Barros {(1877) 3 P. D. I] was also quoted with approval. It repeats the well~recogniscd principle of private international law that a question of personal capacity to enter into a contract is to be decided by the law of do- micile of the parties.

K1861), 9 H.I... Cos. I93.

281 L--13 1&8 lea: loci cetebruttonis would prevail over the doomiciliary prohibition as to capacity. The point was debated before it eminent Law Lords and in an exhaustive jud ement it was held that the marriage was void, as under t e law of England such a marriage was void. Lord Camgbell, L.C. at p. 207 in that case stated: "There can be no oubt of the general rule that a foreign marriage, valid accord- ing to the law of a country where it is celebrated, is good everywhere. But, while the forms of entering into the contract of marriage are to be regulated by the lab: loci. contractits, the law of the country in which it is celebrated, the essentials of the contract depend upon the lam domicilii, the law of the country in which the parties are domiciled at the time of marriage, and in which the matrimonial residence is contemplated. Although the forms of celebr- ating the foreign marriage may be different from those required by the law of the country of domicile, the marriage may be good everywhere. But if the contract of marriage is such, in essentials, as to be contrary to the law of t e country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated", and at p. 212 the Lord Chancellor further observed: "It is quite obvious that no civilised State can allow its domiciled subjects or citizens, by making a tem- porary visit to a foreign country to enter into a contract, to be performed in the place of domicile, if the contract is forbidden by the law of the place of domicile as con-' trary to religion, or morality or to any of its fundamental itmtitutions." The other Lords, Lord Cranworth and Lord St. Leonards also enunciated the same principles. Ever since that decision the principle has been applied in England to varying situations.

The application of the principle laid down by the House of Lords in Brook V. Brook may be considered with refe- rence to the following situations'.

(1) Both parties domiciled in England and the marriage celebrated abroad.

(2) Both parties domiciled abroad and the mar- riage celebrated in England.

(3) One pa domiciled in England and other party abroad an the marriage celebrated abroad.

(4) One tgarty domiciled in En land and the other abroad and e marriage celebrat in England.

The first of the aforementioned situations was the one directly in issue in Brook 14'. Brook and does not require further consideration. It is clear that lea: domicilii of the parties is decisive in such a situation'. The second 'The situation where both parties are domiciled in England and the marriage is celebrated in England is clearly a problem governed exclusively by municipal law. _ 'See also Re De Wilton (moo) 2 Ch. 48:. Facts given earlier, see p. 146 , footnote 2.

we-.------_......._i.__ I49 r situation arose in Sottomayor v. De Barres (No. 1)1. In 'this case the marriage was between two ﬁrst cousins, both assumed to be of Portuguese domicile. By the law oi Portugal the marriage was void as being within prohibited degrees, but by the Law of England the marriage was valid. The court held that the domiciliary prohibition as bind-

ing and accordingly declared the marriage void. e third' asituation--one party domiciled in England, the other abroad and the marriage celebrated abroad--arose in Metro v. Metteﬂ Re Paine' and more recently in Pugh v. Pugh'. In all these cases the principle of domicile gov- erning capacity was applied and by virtue of the prohibi- ition under one or other of the laws of domicile applicable, 'the marriages were held void although the marria es in «each case was valid by the tea: Ioci celebrotionis and t e lea:

~domicilii of one of the parties. It is signiﬁcant that both in Re Paine and Pugh v. Pugh, the "decision in Brook v. .-Brook was followed and applied. In Re Paine, Bennet .--J., expressly dorsed the views of Dicey, Westlake and ,Halshury viz, that capacity is governed by the law of domi-

-cile of each of the parties.

It is only with regard to the fourth situation--that is, where the marriage is celebrated in England and one party is domiciled in England and the other domiciled abroad---- E that there is confusion and difficulty. The only authorities are Sottomoyor v. De Barres (N. 2) 5, and dicta in Ogden v. Ogden' and Chettt v. Chetti'. The dicta in Ogden':

case are of not much weight as the decision proceeded, rightly or wrongly, on the assumption that matters of con-

-sent pertain to form. The decision in Chetti's case can be explained with reference to the ultimate reservation in «favour of public policy of law fort. It is enough, therefore, «to consider Sottomcyo'r's (No. 2) case in detail. Strong

-reliance has been placed on this case in support of the pro- visions of the proposed bill and it is therefore necessary to consider it in detail and show what criticism it has evoked.

The case originally started before Phillimore J .9 and the question raised was about the validity of a marriage "in England between first cousins one of whom was admit- tedly of Portuguese domicile. Such a marriage was valid according to the law of England. The marriage itself was

-celebrated in England. Phillimore J., directed the Queen'; Proctor to intervene as the respondent, the husband merely

-entered a pearance and did not ﬁle an answer. He dis- rposed of e case without trial holding that as the marriage 1(rSy7),'-3 P.D. I. '(1859) I Sw. 3: Tr. 4:6.

"(I94D) Ch. 46.

'(1951) P. 482.

"{I379) 5 ED. 94.

'(i9oS) P. 45.

"(19o9)§P. 67.

4: PD. 81.

151] was contracted in England and being valid under English law, the fact that the parties, were incapacitated from entering into a marriage by the law of Portugal did not aﬁect the validity.

The matter was taken in appeali. In the Court of Ap- peal, the facts not having been tried by the ﬁrst court, the matter was argued on the assumption that both the parties, the husband and the wife, had Portuguese domicile. On this footing, as the marriage was invalid accordingto the law of Portugal, the Court of Appeal reversed the deci- sion of Phillimore J., and remanded the case for further disposal on the other questions, particularly questions of fact. Cotton L..l'., delivered the judgement of the court consisting of James, Baggalay and Cotton L.J.I. He applied the principle laid down by the House of Lords in Brook 1:. Brook viz., that the capacity to enter into marriage must be determined according to the domicile of both the parties.

After it was sent back, the case was disposed of by Sir James I-Iannen P.'-'. He found as a fact that the husband's domicile was English while that of the wife was Portu-

guese. The President held the marriage valid. Though the judgement is not a well--reasoned one, it is clear that the

-learned Judge relied upon the English domicile of one of the parties and the place of celebration of marriage for testing the validity of marriage with reference to English Law and for disregarding the prohibition of the law of foreign domicile.

This decision has created a stir in England and was severely criticised. It is, however, treated by Dicey and others as an exemption to the general rule relating to dual domicile as they could not get over the decision until it was reversed by high authority. The-

decision, however, is opposed to principle and authority and is not in keeping with all other decisions commenc- ing from Brook v. Brook. It has been criticised by a num- ber of writers of authority.

Westlclces, in effect, refused to recognise the decision; for, notwithstanding it, he laid down in section 21 the rule- as follows: ---

"It is indispensable to the validity of a marriage that the personal law of each party he satisﬁed so far as regards his capacity to contract it, whether abso- lute, in respect of age, or relative, in respect of the prohibited degrees of consanguinity or aﬂinity."

Referring to the case, the learned author observed thus:

"....but this authority is weakened, (1) by the learned Judge's pronouncement in favour of the Eco:

loci contmctus as governing competency, (2) by his.

13 RD. I. '(IS79) 5 P.D. 94.

"Private International Law, 4th ed. p. 59.

'-'os¢- _...,...

I51 taking Creswe1l's opinion in favour of the lea: loci contractus from Simo-n"'m. v. Malice', without refer- ence to that learned J udge's saying in Matte v. Matte"

"there could be no valid contract unless each was competent to contract with other", (3) by his refer- ence to the statutes on the marriage of ﬁrst cousins. which seems to imply that the rules of private inter- national law are less applicable where the English law is contained in statutes than where it is the common law. In Re De Wilton", .. . .the dependence of capacity for marriage on domicile was held not to be subject to an exception for the marriages of Jews.

And conversely, a marriage in which the personal law of each party as regards his capacity is satisﬁed is valid in England so far as regards such capacity, notwithstanding that by English law it would be incestuous: Re Bozzelli's Settlement' . . . . . . ..and the judgements of Lord Campbell and Cranworth in Brook v. Brook there quoted."

The eminent Canadian authority, Falcon]:-ridge dis-

cussed six different methods of reconciling Matte v. Metteﬁ and Re Paine" with Sottomoy-or No. 2 all of which he rejects as untenable'.

Referring to this Morris" observes:

"The decision in the latter is based upon the grounds (1) that capacity to marry is governed by the law of the place of celebration, and (2) that an incapa- city imposed by foreign law is less important than a capacity imposed by English law and can therefore be disregarded. The former ground is clearly untenable since Brook v. Brook. The latter ground is unworthy of a place in a respectable system of conflict of laws' "

Babel", a leading authority of international reputation, examines the decision very critically and states his conclu- sion as follows:

"On the basis of this latter case, many writers have believed that English courts would always apply domestic law, if the marriage is celebrated in England and one party, or at least the bridegroom, is domiciled there, irrespective of any incapacity by which the other party may have been affected under his own domiciliary law. Thus, whereas a domiciled English- man marrying abroad would remain subject to the English rules on capacity, the foreign grounds of incapacity, of a person domiciled abroad would be 1{186o) 2 Sw. & Tr. 67.

= I s 8: T 4.23.

'(I-goo) 2 Ch. 481.

'{19o2) I Ch. 75:.

50559} I Sw 8: TI. 416.

'U94:-} Ch. 46.

'Falconb1-idgc : Essays on Conﬂict of Laws (131: ed.}, pp. 649-643. ''Morris 1 _Cases on Private International Law (Third ed-11.), p. 79. *'I'hc Conﬁict of Laws, A Compare-ive Study, V6]. 1, 1945, p, 25-;

152

disregarded. This alleged rule has acquired world- wide notoriety; it has been labelled a badge of "insular pride and complacency". In fact, apart from the unclear grounds of the court in the second Sono- moyor' decision and the entirely discredited case of Ogden v. Ogden' there is no reasonable support for such unilateral English doctrine."

Referring to the decision, Dicey" remarks as follows:

'I application of the doctrine under consideration was, as we shall see, established by the decision of Sir James Hannel P., on the second hearing of the case of Santo- mayor v. De Ban-osi. Although it may have been justiﬁed by some remarks of the Court of Appeal on the previous hearing of the case', the decision was largely based on the judgment in earlier cases which stressed the predominance of the tea: loci celebrattonis in all matters affecting the validity of marriage. The learned judge appears to have failed to appreciate the signiﬁcance of the first decision which diﬁerentiated questions of capacity from those of formal validity, and his judgment in favour of the validity of the marriage celebrated in England between parties one of whom was domiciled there, and the other of whom was incapable of intermarrying with him by the law of her domicile, gives a national bios to English Prin-

vate Interrmtional Law which is logically indefensible.

Subject to the above anomalies, the rule that capacity to marry depends upon the law of the ante-

nuptial domicile of each of the parties is borne out to-

the full by the authorities; and it is submitted that it ' consistent with sound principle, because a person's ﬁatus is, as a general rule, determined by the law of his domicile, questions of status cannot be affected by ' e intention of the parties, and a person's capacity Eldmarry is a matter of public concern to the country if his domicile."

Schmitthoﬁ" thinks that the decision, however, could be sustained on other grounds than those on which it was decided and he also points out that the decision of Willmer J. in Chapelle v. Chap-elle° indicates clearly that the alleged exception does not exist. In that case, it may be stated, the marriage was celebrated in England while the husband was domiciled in Malta where the wife went after the-

marriage and where she lived with him for about ten (1379) 5 PI). 94-

31:1908) P. 46.

'Dicey on Private Intcmaiionll Law, 7th ed. pp. 250-51.

'($77) PD. 1, 6-7.

'Clive M. Schmitthoﬂ, The English Conflict of Lawn, 3rd ed, p. 3.52- |(195o) P. 134.

. an anomalous exception to the negative-

153

years; the marriage was valid by English law but void by the law of Malta. Willmer J. disregarded the domicile of the wife at the date of the marriage--_if the alleged ex-

of a common domicile of both parties in Malta at the date of the commencement of the nullity suit.

Even Gravesonl, who has been relied on in support of the approach of the Bill concedes that the doctrine laid down by the case is 'inelegant' though he has some- thing to say in favour of it by way of apology. He observes: " . . - . .. it exists to protect domiciled English- men and English women on entering into marriages with persons domiciled abroad, the English marriage ceremony it only applied to marriages celebrated in England." It is uimecessary in the present contest to examine how far Bill is applicable to Christians only and as it embodies different types of generally recognised marriage cere-

monies. In short, if there is any force in Prof. Graveson's gratiﬁcation that does not hold good in the context of our ill.

It is needless to multiply other authorities in so port. of the criticisms levelled against the decision in §otto- mayor v. De Barres. Though text-book writers who have obviously no power to over-rule decisions have to explain it away as an exception so long as it is not over-

commend itself to us as a precedent worthy of being followed in the proposed Bill. To follow it would be orig to swing back the pendulum to the situation whi existed prior to the decision of the House of Lords in Brook v. Brook'.

The foregoing survey of English Law represents the position as can be deduced from statutory provisions and judicial decisions. It does not take note of theories of what individual writers regard as ought to be the law. Private International Law is indeed a fertile ﬁeld for the free play of imagination and a ﬁne arena for the display 'G:-aveoon I Conﬂict of Laws (Third Edn.) p. 136. K1961) 9 I-LL. Cu. 193.

154

of fanciful theories. Views of writers are not lacking which are far away from what can legitimately be deduced on the basis of doctrine of precedent and the established canons of interpretation. Judicial dicta swung out of their context can conveniently be made to buttress these theories. In the present context it is enough to consider two theories. Firstly, the so called matrimonial domicile governing capacity and essential val.idity--a theory pro- pounded by Prof. Cheshire. Prof. Cheshire has found respectable ancestry for this 'pet child' of hisin Savigny and has managed to get it 'adopted' in the Royal Commis- sion Report, by virtue of his position as the expert mem- ber. It is true, in recent years, a few judges have ﬂirted with the theory though no one has wedded it much less wedded it to English Law! How truly it represents English law may be judged by the learned professor's own confession in the third edition of his book after a heroic struggle with a crusader's zeal to support it. After exa- mining all the English cases excepting the second Sott-o- mayor case he observed:

"It may be objected with force that one of these decisions is conclusive in favour of the law of matri- monial home....Neverthe1ess there remains one deci- sion which, on the facts though not on the reasoning is a more convincing authority for the View now being advocated. This is Sotto-mayor V. De Barres (No. 2) 1 . . . . . ."5'.

This is what the learned Doctor had to confess as late as 1947.

While the importance of the theory consists in focuse- ing attention on the seat of the status in issue, it suiters from a serious drawback in that it makes everything hinge an intention and thus introduces confounding uncertain- ty as to the validity of the marriage. And if this defect is sought to be remedied by presumption such as that the matrimonial domicile will be the husband's domicile, its chief merit is pro tcmto sacriﬁced.

In De Reneoille V. De Renevilte' while dealing with the question of jurisdiction in nullity 'Quits, Lord Greene M.P.., observed at p. 61 as follows:

"In my opinion the question whether the marriage is void or merely voidable is for French law to answer. My reasons are as follows: The validity of a. marriage so for as regards the observance of formalities is a. matter for the lex loci celebrationis.

' But this is not a case of forms. It is a case of essen-

. tial validity. But what law is that to be decided?

' '(I8?9) 5 P-D- 94- 'Cheshire : Private International Law, Third cdn., 19470949 reprint), p. 284.

' (1943) I All E.'R.. 56.

In my opinion, by the law of France either because that is the law of the husband's_ domicile on the date of the marriage or (preferably in my v'.reW}_ because at that date it was the law of the matrimonial-dome cile in reference to which the parties may have been supposed to enter into the bonds of marriage. In Brook v. Brook the marriage in Denmark (by the law of which country, assuming it applied, it was valid) of two persons domiciled in England was held to be void on the ground that, although the lean loci govern- ed the form of marriage, its essential validity depend- ed on the lea: domicilii of the parties".

Then the learned Lord quoted the passage from Lord Camphell's judgment in Brook v. Brook which has already been referred to. Let it be noted, and the relevant pas- sage is italicised, that this case does not support the application of Item loci to determine essential validity: It lends countenance to the matrimonial domicile theory. But as Morris1 has pertinently pointed out something more tangible is necessary to hold that a case dealing with jurisdiction has given the go by to the law obtain- ing for nearly a century, a law stated in crystal clear terms only seven years earlier in Re Paine'. In fact, Re Paine was not considered in De ReneviIle's case.

Assuming that the matrimonial domicile theory repre- sents the true position in English law how does it support the stand taken in the Bill of governing essential validity exclusively by Zen loci'? How can it be assumed that those who marry in India necessarily make India their matrimonial home?

I now pass on to consider the second theory, the theory of what may be termed public policy. Passages from Dicey and Graveson have been quoted that some or all the English requirements apply to marriages solemnised in England. In Dicey" there is a frank confession that there is no reported decision in support of the proposition and that the only available case is a Victoria Court deci- sion--Wi11 of Swan which is against his view. It was held in that case that the invalidity by the lex loci celebrationis did not invalidate the marriage. Besides a suggestion is made that the lea: loci celehrationis prohibitions may be overcome and the marriage saved by applying the Renvoi doctrine. It is clear from this that the statement is made in a half--hearted manner. Graveson observes that the municipal rule as to age would apply in all cases though he cites no authority but he cautions strongly against the 'Morris : Cases on Private International Law, Note G, p. 174 at p. :77. '(I94o) Ch. 46.

'Conflict of Laws (7th ed.) pp. 256-25}.

156

full application of municipal law requirements. He observes:

"The overriding eﬁect of English law in this respect is to maintain minimum not maximum stand- ards of essentials of marriage, so that provided the English standard is satisﬁed, reference will still be made to {ex domiciiii to ascertain the existence of capacity."

A passage from Sottomayor v. De Bcrros (No. 2} has been relied on in support of the application of the lea: loci. It will indeed be edifying for the editors of Dicey and Graveson who have been ﬂoundering for authority for the proposition.

Enough has been said to show that English law howso- ever construed would not support the extreme approach adopted in the Bill.

(v) Contrary to the consensus of authority as to the pro- per principles of Private International Law applicable to the subject:

That personal law plays a decisive part in determining the capacity of parties to a marriage is Well established in practically all the systems of Private International Law of the world', though there is divergence of opinion as to the criterion of personal law. Even in the United States of America with its emphasis on ten: loci, statutory provi- sions have been made to ensure compliance with lea! domicilii'.

In conclusion, we would like to emphasise that deviations from generally accepted principles of Private Interna- tional Law in the sphere of capacity and essential validity of marriage will only lead to the increase of the number of limping marriages. The real solution for avoiding this is to follow principles generally accepted so that the requirements would be the same whether the marriage is celebrated in one country or the other and secondly to restrict so far as may be the application of, on grounds of public policy, local requirements. In a composite legal system such as ours under which widely divergent. institutions ranging from polyandry to polygamy coexist, it is not justifiable to insist on special requirements on grounds of public policy. If for hundred years no consi- deration of public policy were felt and capacity and essen- tial validity could be exclusively left to personal laws of mm . 'For I survey of the various systems, see Rnbel: Conilict of Laws, A uimpsrative suidy, VOL I. See also 'Wolff : Print: International Law (and ed), 326 as no the position in continents] llws.

'See for em, Uniform Marriage Evasion Act of 1912. Sol also Reame- InuonGonﬂictofI.nn,s. 140.

r\o¥1la:.'A-.l.K:.5o-_-SLXA-a.éL_'_'.I--.a--_4u-.7e 15?

parties' what justification is there now for deviating from that course?

The ideal solution would be to maintain the status quo by restricting the provisions of the Bill to persons domi- ciled in India and little consolation can be derived by claiming that we are creating a sort of "jus ge-n.tium"

paying due regard to the requirements under diifereni municipal laws. If it is intended to engraft an exception recognised in England in Sottomayor (No. 2) case, that may also be embodied. If, on the other hand, it is intended to adopt Cheshire's matrimonial domicile theory, that may be stated clearly. As pointed out there are other types of cases, which are not covered by the principle in Sottcrmayor (No. 2) case, and provision has to be made for such cases. If on the other hand it is intended to tighten the provisions still further and to adopt the prin- ciple of cumulative impediments, that is, to insist that the conditions laid down in section 4 should be satisﬁed in addition to the conditions laid down by the law of domi- cile it may be so stated in the Bill instead of leaving it uncertain. It is, of course, for the sovereign legislature of India which has undoubtedly the power to enact any law as it pleases to decide whether it should or should not take cognizance of the well-accepted principles of private- international law which in some respects have been adopted in Indian legislation. The precedents of the Special Marriage Act and the Hindu Marriage Act need not be taken seriously. In the case of the former, the question was not debated fully, possibly because of Law Minister': assurance on an allied subject that the question of conflict of laws would be examined and that a suitable bill would be introduced later. In the case of the Hindu Marriage Act diﬁerent considerations apply. In any case, two wrongs cannot make a right! P. SATYANARAYANA RAG, 30-5-GD.

'See above discussion as to 3. B3 of the Indian Christian Marriage Act, PP- 143: 14-4- SUPPLEMENT TO THE MINUTE OF DISSENT In view of the revision of the original paragraph 5 of the report subsequent to my sending the minute of dissent I feel it necessary to clarify certain. points.

Firstly, it is assumed that what was urged was that the proposed legislation should be limited to marriages between persons of Indian domicile' and that a 'vacuum' should be left in the law as to marriages of persons not domiciled in India". I would only emphasise that there is nothing in my minute to justify such an assumption. The follow- ing passage in my minute sets in clear terms the stand I have taken:

"No one can dispute the competency of our legisla- ture to legislate on the subject, nor is it maintained that we should not legislate on the subject. All that is said is that when we legislate we should take into account the peculiar feature of such marriages, namely, a party or parties being of foreign domicile and for- mulate rules suited to the situation".

It is enough to point out that this liberal plea for giving persons domiciled abroad the elementary facility of hav- ing the essential validity of their marriages regulated by their personal laws cannot by any means be construed as a plea for not legislating on the subject of marriages of persons domiciled abroad.

Secondly it has been added that the decision in Sutto-

-mayor V. De Bari-as (No. 2)3 "has stood". To one fami- lier with the methods of legislative reform in England it will be no revelation to be told that other anomalies "stood" or have been "standing" for long periods without being slashed by the legislative axe. An instance in point is the law as to the deserted wife's right to petition for dissolution of her marriage. This was reformed par- tially in 1937 and almost completely in 1949. In short.

"standing" of a rule in English law is not necessarily a safe test.

In this connection reference may be made to the passage in the Royal Commission Report on Marriage and Divorce which has been relied upon in support of the 'matrimonial home' or the so called 'matrimonial domicile theory'. The passage reads thus:

"If the marriage is alleged to be void on a ground other than that of lack of formalities, that issue shall 'Sec opening para. entitled 'question on domicile' in paragraph 5 as revised.

'Sec concluding para. entitled '(Q Conclusi-:m' in paragraph 5 as revised.

I181; L.R. 5 RD. 94.

158

.;-.u.....-..a.-,.4..,»,s~, a... c-s_-_ V 159 be determined in accordance with the personal law or laws of the parties at the time of the marriage (so that the marriage shall be declared null and void if it is invalid by the personal law of one or other or both of the parties); provided that a marriage which was celebrated elsewhere than in England or Scotland shall not he declared void if it is valid according to the law of the country in which the parties intended at the time of the marriage to make their matrimonial home and such intention has in fact been carried out'."

It is clear from the first part of this passage that the principle of determining the validity of the marriage according to the dual domicile of the parties applies to- the marriages celebrated in England. It would seem that the rule in Sottomeyor (No. 2] has not found favour.

Thirdly, I shall consider the inte retation placed on section 88 of the Indian Christian arriage Act. It will perhaps be conceded that statement of objects and rea~ sons. proceedings in the legislature in respect of even the very Act under consideration do not constitute an aid to construction of that Act in courts. It is no doubt true that one of the objects accomplished by section 88 is to save to Roman Catholics their personal law as to capacity. If that had been its only object it is strange that it has not been so stated. It cannot be denied that the section would apply to all persons marrying under the Act.

The next question is as to what is the meaning of the expression 'personal law'. The expression has to be cons- trued in the light of the context in which it is used. In the context in which it occurs it is used to denote the law governing the person marrying under the Act, particu- larly the status of the person for purpose of marriage. This leads us on to the question as to what is the criterion by which to determine the law governing personal status. The criterion may be with reference to the concept of a territorial system of law or to use the language of Dicey a "Law District" or it may be with reference to member-- ship of a religious or tribal group. Where the criterion is with reference to a territorial system of law it is either Domicile or Nationality. Where on the other hand, it is with reference to membership of a grou it may be reli- gion or tribe membership. In India we ave side by side the teri'i1;orial criterion of domicile and also the criterion of religion. ';?'he latter concept is used as regards persons domiciled in India. The former criterion is employed as regards cases involving a foreign element. Either would lead to the same result in the case of persons domiciled in India._ Thus, for example, if a Hindu and a Christian, both domiciled in India, marry under the Christian Marriage Act and the criterion of personal law is said to be the law of domicile, then it will be Indian law. Now Indian law 'R-'=P?!'t Of the Regal Commission on Marriage and Divot-c=, Cmd. 96 73 p. 395 cited in Cheshire, Private International Law (5th cdn.), p. 312.

130

will say that if the party is a Hindu, Hindu law would apply, etc. In other words, it is an instance of the criterion religion coming into opration through the criterion of domicile'. It is for this reason that the expression 'domi-

-cile' is used as synonymous with 'personal' law.

It has been observed that the contrast in section 83 is between one system of personal law and another applica- ble to persons having the same domicile. It is cliﬁicult to justify this view. Firstly section 38 does not occur in Part VI but in Part VIII of the Act. Secondl the langu- age of the section is very wide and it clearly as in view 'any marriage' solemnised under the Act. It cannot be denied that persons domiciled abroad, in the same country or in different countries, can marry under the Act. In such cases section 83 of the Act would come into opera- tion to conﬁrm the effect of the prohibitions under the lea: tlomictlii of the parties. An authority on the point is

-the decision of Gentle J ., in William Hudson v. Mr. Weh- xter'. At p. 568 the learned judge observed:

"A bigamous marriage in England is a marriage which is not a valid marriage and section 88 of the Christian Marriage Act clearly to my mind contem- plates and prevents a marriage which would be invalid in places elsewhere, including England, not becoming a valid marriage because it is celebrated in this coun- try".

It has been claimed that section 88 is merely "one other lpplicati-on of the doctrine that the conditions as to the validity of a marriage prescribed Iex loci celebrationis and 'lean domicilii to operate both cumulatively". This cumu- lative operation is not in the sense that the requirements

-as to capacity and essential validity under two systems Ire to be complied with for, as conceded in the Report the Act deals with forms only.

P. SATYANARAYANF. RAD, 5-8-1960.

1 Fora proper appreciation of this point, see the judgment of Bceutnont C. L, in Klurmbhatta v.Khan-tbhatta, 59 Born. 273 wherein he pointed out that the lax danticilif of a Muslim domiciled in India would be Indian law applicable to Muslims (at pp. 284-285). Delivering his judgment it; the appeal from the decision of Beaumont C. I., Broomlield I. observed at p. 308 thus. :1 " It rcoogniscd that the law of the religion is 3 part of the law of domici e. . . .

'A.I.R. 1937 Mad. 565.

._,,_ NOTE BY MEMBER SI-IRI SACHIN CHAUDHURI While I generally subscribe to the views on Private International Law as expressed by Shri Satyanarayuna Ram in his note, my agreement is not such as to impel me to dissent from the majority view.

S. CHAUDHURI, 19-B-60.

I 6 I Glr1GIPHD--TSS--28I M of I..aw--19-1 I-60-3000

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Law Relating To Marriage And Divorce Amongst Christians In India