MARRIAGE UNDER CONFLICT OF LAWS

All over the world, marriage is an important institution. Whether marriage is considered as a sacrament or a contract, marriage gives rise to status. The counties agree that marriage is a union between man & woman. Under Hindu law, marriage is considered as a sacrament which has the implication that is permanent, indissoluble and eternal. The Muslims all over the world as well as in India consider marriage as a civil contract. Even the Chinese Buddhists consider their marriage as a contract. In India, each religious or quasi-religious community has its own personal law. In personal matters or matters pertaining to family, India has no national or regional law.

For the marriage to be valid, two basic conditions have to be fulfilled; the parties to the marriage must have the capacity to marry and the parties must perform necessary ceremonies & rites. The former is the most essential thing in Private International Law. But, the most difficult problem arises with the characterization. The problem gets complicated when the courts of one country consider a matter relating to marriage as a matter of formal validity while the courts in another country consider the same matter as material validity. The consent of the parties is also to be considered while performing marriage. In the case of H vs H, a Hungarian domiciled girl underwent a ceremony of marriage with her cousin who domiciled in France with the sole purpose of getting out of Hungry. However, the parties never lived together.

The husband eventually left for France and the wife for England. When the wife filed the case in English court for a decree of nullity of marriage on the ground for being on lack of consent, the court passed the decree on her favour on the basis of lack of consent.

Under the English domestic law, marriage is defined as a voluntary union of life between one man & one woman to the exclusion of all others. In the case of Hyde vs Hyde, a husband of a potentially polygamous Mormon marriage performed at Utah petitioned for divorce in an English court. The husband had renounced his faith and became a Minister of a dissenting chapel at Derby and his wife remarried. The petition was that time dismissed the petition because the English court was not prepared to accord recognition to polygamous unions. In the case of Sowa vs Sowa, a Ghanian man before the solemnization of his marriage, promised his wife that he would after his marriage undergo another ceremony converting his potentially polygamous marriage into monogamous. He did not however fulfill his promise and the wife filed the case. The English court held the marriage to be a polygamous union.

In all those cases, where a person had actually married more than one wife, the English courts have refused to recognize any ‘wife’ of such marriage. In the case of Ali vs Ali, the court said that a person whose personal law permits polygamy cannot validly take a second wife if he changes his domicile to England. According to the Matrimonial proceedings Act, 1972, it lays down that a polygamous marriage entered into outside England & Wales entered between the parties either of which domiciled in England will be void. The Matrimonial proceedings Act, 1972, empowers courts not only in England & Wales, but also in Northern Ireland and Scotland to grand relief to parties of marriage whose legal system permits polygamy, irrespective of the fact whether the marriage is polygamous. Thus, a Pakistani domiciled Muslim married in England at a Registry office he contracts a monogamous marriage. The converse is also true. In the case of Khambatta vs Khambatta, an Indian domiciled Muslim male married a Scot domiciled woman in Scotland before a Marriage Registry. The parties came to India and the wife embraced Islam. The husband pronounced ‘talak’ before his wife and the wife also obtained a declaration from civil court that the marriage stood divorced. Thereafter, the wife underwent a ceremony of civil marriage with Khambatta under the Special Marriage Act, 1872. After ten years of marriage, the wife filed a case stating nullity of her marriage on her averment that since her Scottish marriage was not dissolved, so the second marriage was void. The big question before the court was that whether the marriage was governed by the law applicable at the time of marriage or governed by the law applicable post conversion. The court held that the law post conversion was applicable and the first marriage was dissolved. In the case of Aiyasabibi vs Subodh Chandra, the parties at the time of marriage were Hindus. But, the wife converted to Islam and offered the same to her husband thrice. On his refusal to do so, she filed the case for dissolution of marriage. The wife also accused the husband for cruelty. The court passed the decree in the wife’s favour but the decision of the court was based on cruelty.

In conclusion, the position in India is that except Muslims, polygamy is not allowed. It should be kept in mind that whatever form the marriage may be performed, the status & obligation arising out of it should be accorded recognition all over the world unless it is against public policy.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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