Bare Acts Live

Law Commission of India Report No. 15

Report on the Law of Christian Marriage and Divorce

Forward to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by T.L. Venkatarama Aiyar, Chairman, Law Commission of India, on Augest 19, 1960.

Report on the Law of Christian Marriage and Divorce

(i) Pattern followed by other countries.—It may be stated, at the very outset, that in providing that it is to apply to all marriages solemnised in India, the proposed legislation follows the pattern adopted in other countries. The Marriage Act, 1949, applies to all marriages solemnised in England, even though the parties thereto are not British by domicile, and its provisions¹ prescribe not merely the form to be 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 Marriage Act, 1954, and the Hindu Marriage Act, 1955, apply to all marriages solemnised 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 private international law that the validity of a marriage should, in case of conflict, be decided according to the law of domicile, and not the law of 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 will now be explained.

(ii) Rule of private international law.—The rule of private international law generally accepted, no doubt, is that where there is conflict of personal laws the validity of a marriage should be determined as regards forms and ceremonies according to lex loci celebrationis and as regards capacity of the parties according to lex 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 acceptance. 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 celebrated. That is on the principle that the validity of a contract must be judged by the lex loci contractus and that marriage is a contract which in concluded where it is solemnised. On this ground, it was held in Dalrymple v. Dalrymple, (1811) 2 Hagg Cons 54 that the validity of a marriage solemnised in Scotland between an English domiciled husband, and a Scottish domiciled wife was to be determined in accordance with Scottish law. In 1861, came the decision in Brook v. Brook, (1861) 9 HL Cas 193. 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 prohibitions wherever the marriage might be celebrated. Thus the rule in Dalrymple v. Dalrymple was departed from. Then came the decision in Sottomayor v. De Burros (No. 1), (1877) 3 PD 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 lex domicilii that is determinative and not the lex loci celebrationis. This statement of the law has generally been accepted as correct¹ though its correctness has been assailed in subsequent decisions².

(iii) Doctrine Matrimonial home.—It should however be mentioned that there is also another view, which has the support of a large body of opinion in England. It is that the validity of a marriage, 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 they intend to set up their marriage home. That is the view taken by Cheshire in his 'Private International Law¹ and that is also the recommendation made by the Royal Commission on Marriage and Divorces². The trend of the recent authorities in England has been in favour of this view³. The result of the authorities is thus summed up in Graveson on 'Conflict of Laws'⁴:

"The essentials of a marriage are governed by the law of the domicile of each party at the time of marriage (or just possibly by that of the intended matrimonial residence of the parties), while the formalities are governed exclusively 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.

(iv) Position where one party domiciled in the country.—But it is sufficient for our purpose that even accepting the law as laid down in Sottomayor v. De Barros (No. 1), (1877) 3 PD 1, an exception to it has been recognised when one of the parties to the marriage is domiciled in the country, where the marriage is solemnised. In Sottomayor v. De Barros (No. 2), 1879 LR 5 PD 94, which represents a later stage of the litigation in 3 P.D. 1, 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 according 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 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 Sottomayor v. De Barros (No. 1), Vide exception 1, p. 264 of Dicey's Conflict of Laws, 7th Edn.; Halsbury's Laws of England, Vol. 7, p. 915, para. 165. On the rule enunciated therein, 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 thereto 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 marriage 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.

(v) Competence of a sovereign legislature.—Even as regards the area wherein there might be a conflict of laws, the question is whether the State legislature should withdraw when it comes into conflict with rules of private international law. Now the law is settled 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 be questioned on the ground that it is not in accordance with rules of private international law. In enacting that law, the sovereign legislature 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 Barros, 1879 LR 5 PD 94 (106); See also Schmitthoff The English Conflict of Laws, 1954 Edn., pp. 6-7

"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 weighty language of Lord Mansfield, 'the law and legislative government of every dominion equally affects all persons and all property within the limits thereof, and is the rule of decision for all questions which arise there:' Campbell v. Hall, Cowp. 208."

What, then, is the effect, it may be asked, of the rule that in case of conflict, 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 lex loci celebrationis; for that would be to encroach on the domain of a sovereign legislature, but to render void marriages prohibited by lex domicilii, notwithstanding that they may be valid according to lex loci celebrationis. In others words, lex domicilii operates not in supersession of lex celebrationis, but in conjunction with it, with the result that such marriages, in order to be valid, must comply with both the lex celebrationis, and lex domicilii.

(vi) Dicey's view.—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 accordance with their respective domicile, the learned Editors state an exception to it in the following terms¹:—

"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 Westlake, Dicey and Chesire. Then we have the following observations:—

"Accordingly, it is conceived that no marriage celebrated 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.

(vii) Graveson's view.—Discussing the inter-relation in case of conflict between lex loci celebrationis and lex domicilii, with reference to a marriage solemnised in England, Graveson states the position thus¹:

"The overriding effect of English law in this respect is to maintain minimum, not maximum, English standards of essentials of marriage, so that provided the English standard is satisfied, reference will still be made to the lex domicilii 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 consider essential, and then lex domicilii may be left to operate on it.

It will be material for the purpose of the present discussion to note that according to rules of private international law, the question whether a marriage is void or voidable is to be determined in accordance with lex loci celebrationis²;' 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 previous marriage and the parties being within certain prohibited relationship, and as the list of prohibited relations has been framed with due regard to other systems of law and is not stringent, a conflict based on those grounds, though theoretically possible, is practically speaking unlikely.

(viii) Section 88 of the Christian Marriage Act, 1872.—It remains to consider whether there is anything in section 88 of the Indian Christian Marriage Act, 1872, which militates against this view. That section provides that nothing in the Act renders valid a marriage which is forbidden 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 lex loci celebrationis, but by lex domicilii. But this is to ignore alike the object and the true scope of section 68. 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 Committee¹ on the Native Converts' 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 part of the Established Church of England. It is to give effect to this that section 88 was enacted. Now that the proposed legislation is to be comprehensive and to deal both with conditions of a valid marriage and modes of solemnisation thereof, we must abandon section 88 and fall back on the pattern of the English statutes, and on the latest of them, 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 conflict between lex loci celebrationis and lex 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 not between the lex loci celebrationis and the lex domcilii, but between one system of personal law and another, applicable to persons having the same domicile.

(ix) Conclusion.—We, therefore, recommend that the proposed legislation should apply to all marriages solemnised within the territory 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 similar legislation in England, which, being general, binds, as observed in Sottomayor v. De Barros (No. 2), LR 5 PD 94, all persons within the kingdom. And in this we are no more disregarding rules of private international law than the very countries where they have been developed.

(1) Persons who have joined the sacred order cannot marry. But it appears that this is an impediment which is capable of being removed by a dispensation 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 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 prescribed as conditions the breach of which will render the marriage void. This does not preclude the Church from refusing to solemnise such marriages as are repugnant to Canon law, and that is what has been provided¹.

(3) In general, it is said that incapacity which is a bar to the solemnisation 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 accept this.

"In England, if a marriage is void ab initio, 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 unknown 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 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 void. The Scots 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 is shown that one or both of the parents was or were ignorant of the impediment to the marriage."

(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 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 legislation. This criticism is also well-founded. Section 10 is thus of little assistance to us in formulating the grounds for divorce.

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

(2) Another question which arises under this section, is, whether the grounds set out in section 11 of the Indian Divorce Act, 1869, for dispensing with the joinder of an adulterer, require to be enlarged. While we think that those grounds must prima facie, be taken as exhaustive, the courts should, nevertheless, have a discretion in particular cases to excuse the non pleading 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 legislation 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 be made a co-respondent as in an action for divorce. We have agreed with this suggestion, and given effect to it.

Appendix I

Proposal as Shown in The Form of a Draft Bill

The Christian Marriage and Matrimonial Causes Bill, 1960

A

Bill

to amend and codify the law relating to marriage and
matrimonial causes among Christians.

CHAPTER I

Preliminary

(Section 1, 1st para., Christian Marriage Act, and section 1, Divorce Act.)

(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Christians domiciled in the territories to which this Act extends who are outside the said territories.

(Section 1, 2nd para. Christian Marriage Act and section 2, 1st para, Divorce Act.)

(3) Section 7 shall come into force at once, and the remaining provisions of this Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

[(New) Cf. section 1 (2), S.M.A. section 1 (2), H.M.A.]

(a) "Christian" means a person professing the Christian religion;

(Section 3, part, Christian Marriage Act)

(b) "church building" includes any chapel or other building generally used for public Christian worship;

(Section 3, part, Christian Marriage Act)

(c) "desertion" means the withdrawal by one spouse, without reasonable cause and without the consent or against the wish of the other spouse, from cohabitation with the other spouse with the intention of bringing cohabitation permanently to an end; and its grammatical variations and cognate expressions shall be construed accordingly;

[Section 3(9) Divorce Act (Contrast section 10(1), Expl., H.M.A.]

(d) "diplomatic officer'" means an ambassador, envoy, minister, charge d' affairs, High Commissioner, Commissioner or other diplomatic representative, or a counsellor or secretary of an embassy, legation or High Commission;

[(New) Cf. section 2(d), S.M.A.J]

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

[(New) Cf. section 2(d), S.M.A.]

(f) "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 specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

[Section 3(3) part, Divorce Act]
[Cf. section 3 (b), H.M.A. Contrast section 2(e), S.M.A.]

(g) "India" means the territories to which this Act extends;

[Section 3, part, Christian Marriage Act.]

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

[New]

(i) "Marriage Registrar" means the Marriage Registrar appointed under section 9 or section 10;

[New]

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

(k) "minor" means a person who has not completed the age of eighteen years;

[Section 3, part, Christian Marriages Act and
section 3(5), Divorce Act]

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

[New]

(m) "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;

(a) relationship by half or uterine blood as well as by full blood;

(b) illegitimate blood relationship as well as legitimate, and all term of relationship in this Act shall be construed accordingly;

[New] [Cf. section 2(b), S.M.A]

(n) "recognised Church" means a Church declared to be a recognised Church under section 7;

[New]

(o) "Registrar-General" means

(i) a Registrar-General of Births, Deaths and Marriages appointed under the Births, Deaths and Marriages Registration Act, 1886 (6 of 1886), and

(ii) in relation to any territories to which that Act does not extend, an officer performing the functions of a Registrar-General of Births, Deaths and Marriages under any corresponding law in force in those territories;

[Section 3, part, Christian Marriage Act]

(p) "rule", in any expression denoting rules of any Church, includes a rite, ceremony or custom of that Church.

[New]

CHAPTER II

Conditions for Christian Marriages

[Section 4, Christian Marriage Act]

(i) neither party has a spouse living at the time of the marriage;

[New] [Cf. section 60(2), Christian Marriage Act, section 5(i),
H.M.A., section 4(a), S.M.A.]

(ii) the parties are not within prohibited relationship, unless the custom governing each of them permits of a marriage between the two;

[Section 88, Christian Marriage Act]
[Cf. section 5(iv), H.M.A., section 4(d), S.M.A.]

(iii) neither party is an idiot or a lunatic at the time of the marriage; [New] (Cf. section 5(ii), H.M.A., section 4(b), S.M.A.]

(iv) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage;

[New] [Cf. section 60(1) Christian Marriage Act, section 5(iii),
H.M.A., section 4(c), S.M.A.]

(v) where the bride has not completed the age of eighteen years, the consent in writing of her guardian in marriage or the permission of the district court under sub-section (4) of section 5, has been obtained for the marriage; and

[New] [Cf. Section 5(iv), H.M.A.,]

(vi) where the marriage is solemnised outside India, both parties are domiciled in India.

[New] [Cf. section 4(3), S.M.A.]

(a) the father;

(b) the mother;

(c) the paternal grandfather;

(d) the paternal grandmother;

(e) the brother by full blood;

(f) the brother may half blood;

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

(h) the maternal grandfather;

(i) the maternal grandmother;

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

[Section 19 and section 44 1st para., Christian Marriage Act]
[Cf. section 6, H.M.A.]

(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 twenty-one years.

[New]

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

[New]

(4) Where no such person as is referred to in sub-section (1) is living and willing and able and fit to act as guardian in marriage, or where any guardian in marriage, without just cause, withholds his consent to the marriage, the permission of the district court shall be necessary for the marriage of the bride.

[Section 45, part, Christian Marriage Act, extended.]

(5) The permission of the district court for the marriage of the bride under sub-section (4) may be applied for by a petition made by the parties to the intended marriage.

[Section 45, part, Christian Marriage Act.]

(6) Where such a petition is made, the district court shall examine the allegations of the petition in a summary manner and shall decide the matter after giving a reasonable opportunity to the parties to be heard.

[Section 45, part, Christian Marriage Act.]

(7) The decision of the court granting or refusing permission under sub-section (4) shall be final.

[New]

(8) Notwithstanding anything contained in sub-section (1), where any person has been appointed or declared by a court to be the guardian of the person of the bride, he alone shall be entitled to act as guardian in marriage.

[New] [See section 7, Guardians and Wards Act, 1890.]

(9) Nothing in this section shall affect the jurisdiction of a 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 necessary to do so.

[New]

CHAPTER III

Solemnisation of Christian Marriages

A.—Persons authorised to solemnise marriages

(a) by any Minister of a recognised Church;

(b) by any Minister of Church licensed under section 8 to solemnise marriages;

(c) by, or in the -presence of, a Marriage Registrar appointed under section 9 or section 10.

[Section 5, part, Christian Marriage Act.]

(2) In making any recommendation to the Slate Government under sub-section (1), the Committee shall have regard to the following, among other matters, namely:—

(i) whether the Church is properly organised;

(ii) whether the Church is registered under any law for the time being in force relating to the registration of societies in general or religious societies in particular;

(iii) whether the Church has well-established rules for the solemnisation of marriages;

(iv) whether the Church has proper places of worship;

(v) whether, according to the rules of the Church, clergymen are ordinarily ordained to solemnise marriages;

(vi) whether the strength or standing of the Church is such as to justify recognition being accorded thereto,

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

[New]

[Section 6, Christian Marriage Act.]

(2) Where there are more Marriage Registrars than one in any district, the State Government shall appoint one of them to be the Senior Marriage Registrar.

(3) Where there is only one Marriage Registrar in a district, and such Registrar is absent from the district or is ill or his office is temporarily vacant, any person authorized in this behalf by the State Government, by general or special order, shall act as, and be, the Marriage Registrar of the district during such absence, illness or temporary vacancy.

[Section 7, Christian Marriage Act.] [Cf. section 3 (1), S.M.A.]

(a) in the case of the State of Jammu and Kashmir, appoint such officers of the Central Government as it may think fit to be the Marriage Registrars for the State or any part thereof; and

(b) in the case of any other country, place or area, appoint such diplomatic or consular officers as it may think fit to be the Marriage Registrars for the country, place or area.

[New] [Cf. section 3(2), S.M.A.]

B.—Marriages before Ministers of recognised Churches

[Section 5, part, Christian Marriage Act.]

(2) No such marriage shall be solemnised—

(a) if the Minister has reason to believe that the solemnisation of the intended marriage would be contrary to the provisions of section 4; or

(b) if any other lawful impediment be shown to the satisfaction of the Minister why such marriage should not be solemnised; or

(c) unless a solemn declaration has been made before the Minister in the form specified in the Fourth Schedule

(i) by the bridegroom, 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.

[New]

C.—Marriages before licensed Ministers and Marriage Registrars

(a) to the licensed Minister whom they desire to solemnise the marriage, or

(b) to the Marriage Registrar of the district in which at least one of the parties to the marriage has resided for a period of thirty days immediately preceding the date on which such notice is given.

[Section 12 and section 38, Christian Marriage Act] (Cf. section 5, S.M.A.]

(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.

[New]

(3) The licensed Minister or the Marriage Registrar, as the case may be, 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.

[Section 40, part, Christian Marriage Act]
[Cf. section 6, S.M.A.]

(a) if the parties intending marriage desire it to be solemnised 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;

[Section 13, Christian Marriage Act.]

(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 officiate therein, who shall there upon act as if the notice were given by the parties to him under section 12;

[Cf. section 6(2), S.M.A.]

(c) if it is intended that the marriage shall be solemnised 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 affixing it to some conspicuous place in his own office;

[Section 14, Christian Marriage Act.]

(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 (b), 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 affix it to some conspicuous place in his own office, and the latter shall further cause a copy of the said notice to be sent to each of the other Marriage Registrars in the same district, who shall likewise publish the same in the manner above directed.

[Section 15, Christian Marriage Act.]
[Cf. also section 39, para 2, Christian Marriage Act.]
[Section 16, Christian Marriage Act.]

(a) the Marriage Registrar shall cause the notice to be published by affixing a copy thereof to some conspicuous place in his own office;

[Section 39, 1st para., Christian Marriage Act.] [Cf. section 6(2), S.M.A.]

(b) if the bride is a minor, the Marriage Registrar shall, within twenty-four hours after receiving the notice under section 12, send, by post or otherwise, a copy of the notice to each of the other Marriage Registrars, if any, in the same district, who shall affix the copy to some conspicuous place in his own office;

[Section 39 2nd para., Christian Marriage Act.]
[Cf. also section 15, Christian Marriage Act.]

(c) if either of the parties intending marriage is not permanently residing within the local limits of the district of the Marriage Registrar, the Marriage Registrar 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 residing, and that Marriage Registrar shall thereupon cause a copy thereof to be affixed to some conspicuous place in his own office.

[New] [Cf. section 6(3), S.M.A.]

[Section 17, part, sections 24, 41, part and 50, Christian Marriage Act.]

(2) No such certificate shall be issued—

(a) until the expiration of seven days from the date of publication of the notice or, where the bride 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

(i) by the bridegroom, 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.

[Section 18 and section 42 part, Christian Marriage Act.]

[New] [Cf. section 7(1), and section 7(3), S.M.A.]

(2) If an objection is made under sub-section (1), the licensed Minister or the Marriage Registrar shall not issue the certificate under section 15 unless he has inquired into the matter of the objection and is satisfied that it ought not to prevent the issue of the certificate or the objection is withdrawn by the person making it.

[Cf. section 8(1), earlier part, S.M.A.]

(3) The licensed Minister or the Marriage Registrar shall not take more than thirty days from the date of the objection for the purpose of inquiring into the matter of the objection and arriving at a decision.

[Cf. section 8(1), latter part, S.M.A.]

(2) The district court may examine the allegations of the petition in a summary manner, and shall decide the matter after giving a reasonable opportunity to the parties to be heard.

(3) The decision of the district court on such petition shall be final, and the licensed Minister or the Marriage Registrar shall act in conformity with the decision.

(Section 46, Christian Marriage Act, extended.)
[Cf. section 8(2), S.M.A.]

[New] [Cf. section 10, S.M.A.]

(a) if he has reason to believe that the solemnisation of the intended marriage would be contrary to the provisions of section 4; or

(b) if any other lawful impediment be shown to his satisfaction why such certificate should not be issued or such marriage should not be solemnised.

[Section 17, part, section 41, part and section 42, part,
Christian Marriage Act.]

[Section 25, Christian Marriage Act]

"I, (A.B.) take the (C.D.) to be my lawful wife (or husband)".

[Section 51, Christian Marriage Act.]
[Cf. section 12(2), proviso S.M.A.]

(2) The marriage may be solemnised—

(a) at the office of the Marriage Registrar; or

(b) at such other place in his district and within a reasonable distance from his office, as the parties may desire, and upon such conditions and the payment of such additional fees as may be prescribed.

[New] [Cf. section 12(1), S.M.A.]

[Sections 26 and 52, Christian Marriage Act.]
[Cf. section 14, S.M.A.]

D.—Registration of marriages

[Sections 27 to 36, sections 54, 55 and 59, Christian Marriage Act.]
[Cf. section 13(1), S.M.A.]

(2) On a certificate being entered in the Marriage Certificate Book by the Minister of a recognised Church or the licensed Minister or the Marriage Registrar, the certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnised.

[Cf. section 13(2), S.M.A.]

(3) Every Minister of a recognised Church, licensed 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.

[Cf. section 48, S.M.A.]

CHAPTER IV

Restitution or Conjugal Rights

[Section 32, part, Divorce Act] [Cf. section 9, H.M.A., section 22, S.M.A.]

(2) Nothing shall be pleaded in answer 4o such petition which would not be a ground for judicial separation or for nullity of marriage or for divorce.

[Section 33, Divorce Act,]

(3) The court, on being satisfied of the truth of the 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.

[Section 32, part, Divorce Act.]

CHAPTER V

Judicial Separation

[Section 22, earlier part, Divorce Act.]
[Cf. section 10(1), H.M.A.] [Cf. section 23(1), S.M.A.]

[Section 22, latter part, and section 26, Divorce Act.]

(2) The court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree where the parties have expressed a desire to come together and to resume cohabitation or where for any other reason the court considers it just and reasonable to rescind the decree.

[Cf. section 10 (2), S.M.A.]
[Cf. section 3 (2), S.M.A.]
[Cf. section (14)(2) and 14(3), M.C.A.]

CHAPTER VI

Nullity of Marriage

[Section 18, Divorce Act and section 19(2) and 19(4), Divorce Act.]
[Cf. section 11, opening lines H.M.A.] [Cf. section 24(1)(i), S.M.A.]

(a) that the marriage is in contravention of the condition specified in clause (iii) of section 4; or

[Section 19(3) Divorce Act. Cf. section 12(1)(b), H.M.A.
Contrast section 24(1)(i), S.M.A.]

(b) that the respondent was impotent at the time of the marriage and continued to be so till the institution of the proceeding; or

[Section 19(1) Divorce Act. Cf. section 12(1)(a), H.M.A.
Contrast section 24 (1)(ii), S.M.A.]

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner is required under clause (v) of section 4, the consent of such guardian, was obtained by force or fraud; or

[Cf. section 12(1)(c), H.M.A.] [Cf. section 25(iii), S.M.A.]
[Section 19, last para, Divorce Act]

(d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

[New] [Cf. section 12(1)(d), H.M.A. Cf. section 25 (ii), S.M.A.]

(2) Any marriage solemnised after the commencement of this Act shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:—

(a) that the marriage is in contravention of the condition specified in clause (iv) of section 4; or

(b) that the marriage of the petitioner, being the wife, is in contravention of the condition specified in clause (u) of section 4.

[New] [Contrast, section 24(1)(i), S.M.A.]

(3) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage—

(a) on the ground specified in clause (c) of sub-section (1) shall be entertained, if

(i) the petition is presented 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;

[New] [Cf. section 12(2), H.M.A.] [Cf. section 25, 2nd proviso, S.M.A.]

(b) on the ground specified in clause (d) 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) that the proceedings have been instituted, in the case of a marriage solemnised before the commencement of this Act, within one year of such commencement and, in the case of a marriage solemnised after such commencement, within one year from the date of the marriage; and

(iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

[Cf. section 12(2), H.M.A. and section 25, 1st proviso, S.M.A.]

(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.

[New]

[S. 21, Divorce Act.] [Cf. section 16, H.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.

[Cf. section 26, S.M.A.]

(3) Nothing contained in this section shall be construed as conferring upon any child of a marriage which is void or which is annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

[Cf. section 16, proviso, H.M.A. and
Cf. section 26, proviso, S.M.A.]

CHAPTER VII

Divorce

A.—Grounds of divorce

[Section 10, 1st para, part and 2nd para. Divorce Act]

(i) has, since the solemnisation of the marriage, committed adultery; or

[Cf. section 27(a), S.M.A.] [Cf. section 13(1)(i), H.M.A]

(ii) has ceased to be a Christian by conversion to another religion; or

[Cf. section 13 (1) (ii), H.M.A.]

(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

[Cf. section 13(1)(iii), H.M.A.] [Cf. section 27 (e), S.M.A.]

(iv) has, for a period of not less than three years immediately proceeding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

[Cf. section 13(1)(iv), H.M.A.] [Cf. section 27(g), S.M.A]

(v) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

[Cf. section 13(1)(v), H.M.A. and Cf. section 27(f), S.M.A]

(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

[Cf. section 27(h), S.M.A.1 (Cf. section 13(1)(viii), H.M.A.]

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

[Contrast section 25(i), S.M.A.] [Cf. section 32(a), P.M.D.A.]

(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or

[Cf. section 27(f), S.M.A.] [Cf. section 13(1)(ix), H.M.A.]

(ix) has deserted the petitioner for a period of at least three years immediately preceding the presentation of the petition; or

[Cf section 27(h), S.M.A. and see the definition of 'desertion']

(x) has, since the solemnisation of the marriage treated the petitioner with cruelty.

[Cf. section 27(d), S.M.A. and contrast section 10(1)(b)
Judicial Separation, H.M.A.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality.

[Cf. section 13(2)(ii), H.M.A., section 27, last sentence, S.M.A.]

[New]

"Either the husband or the wife may also present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of two years or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties".

[New] [Cf. section 14, H.M.A., section 29, S.M.A.]

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of three years from the date of the marriage, the court shall have regard to the interests of any children 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.

[Cf. section 14(2), H.M.A., section 29(2), S.M.A.]

B.—Re-marriage after divorce

[Section. 57, Divorce Act]
[Cf. section 13(1), M.C.A., Contrast section 15, H.M.A. and section 30, S.M.A.]

CHAPTER VIII

Jurisdiction and Procedure

(a) both the parties to the marriage are Christians at the time of the presentation of the petition; or

(b) both the parties to the marriage were Christians at the time of the marriage, and at least one of the parties is a Christian at the time of the presentation of the petition; or

(c) the marriage was solemnised under any enactment repealed hereby, and at least one of the parties is a Christian at the time of the presentation of the petition.¹

[Section 2, 2nd para, Divorce Act.]

It is narrower than the existing section, by requiring that one party should have been a Christian at the time of the marriage also.

(a) to make any decree of dissolution of marriage, except where-

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

(ii) the petitioner, being the wife, was domiciled 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;

[Section 2, 3rd para, Divorce Act.]

(b) to make any decree of nullity of marriage, except where-

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

(ii) the marriage was solemnised 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;

[Sections 2, 4th para, Divorce Act.]

(c) to grant any other relief under Chapters IV to VII, except where the petitioner is residing in India at the time of the presentation of the petition.

[Section 2, 5th para, Divorce Act.]

[New]

(2) Every petition under section 7 shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the licensed Minister discharges his functions or the office of the Marriage Registrar is situate, as the case may be.

[New]

(3) Every petition under Chapters IV to VII shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

[Section 3(1), part and section 3(3) part, Divorce Act,
section 10 first para, part, and second para, part,
Divorce Act, and section 23, earlier part, Divorce Act.]

(a) the respondent is residing at the time of the presentation of the petition, or

[Cf. section 29(1), P.M.D.A.]

(b) the marriage was solemnised, or

[Cf. section 19, H.M.A.]

(c) the husband and wife last resided together, or

[Section 31(1), S.M.A.]

(d) the petitioner is residing at the time of the presentation of the petition, provided the respondent is, at that time, residing outside India.

[Cf. section 29(3), P.M.D.A.]

[Section 47, 1st para, and section 10, third para, Divorce Act.]
[Cf. section 20, H.M.A., section 32, S.M.A.]

(2) The statements contained in every petition under Chapters IV to VII shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints and may, at the hearing, be referred to as evidence.

[Section 47, 2nd para, Divorce Act.]

[Section 45, Divorce Act.]
[Cf. section 21, H.M.A., Cf. section 40, S.M.A.]

(a) any of the grounds for granting relief exists and the petitioner is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is 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

(c) the petition is not presented or prosecuted in collusion with the respondent, and

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

(e) 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.

[Section 12, part, section 13, part, section 14, part,
and section 23, latter part, Divorce Act.]
[Cf. section 24, H.M.A., section 33, S.M.A.].

(2) Before proceeding to grant any relief under Chapters IV to VII, it shall be 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 reconciliation between the parties.

[New]

(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 reconciliation can be, and has been, effected, and shall, in disposing of the proceeding, have due regard to the report.

[New]

(a) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person 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;

(c) that the alleged adulterer or adulteress is dead;

[Section 11, Divorce Act.]
[Cf. section 3, M.C.A. 1950.] [Cf. section 41 (2) (a), S.M.A.]

(d) any other ground which the court may regard as sufficient in the circumstances of the case.

[Cf. section 3, M.C.A.]

(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to the answer of a respondent praying for divorce or judicial separation on the ground of adultery, as they apply in relation to a petition for divorce or judicial separation presented on that ground.

[New] [Cf. section 3, M.C.A.]

[Section 15, Divorce Act.]

[Section 16, Divorce Act.]

(2) After the pronouncing of the decree nisi and before the decree is made absolute, any person may, by an application made in accordance with such rules as 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 inquiry or otherwise deal with the case as the court thinks fit.

[Cf. sections 12(1), 12(2), M.C.A.]

(3) Where a decree nisi has been obtained and no application for the decree to be made absolute has been made 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.

[Cf. section 12(3), M.C.A.]

[Section 34, Divorce Act.]

(2) The court may direct in what manner the damages recovered on any such petition are to be paid or applied, and may direct the whole or any part of the damages to be settled for the benefit of the children, if any, of the marriage, or as a provision for the maintenance of the wife, or husband.

[Section 39, 3rd yam, Divorce Act.]
[Cf. section 30, M.C.A., section 41(2)(b), S.M.A.]

[Section 36, Divorce Act.]
[Cf. section 24, H.M.A.] [Cf. section 36, S.M.A.]

(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 just.

(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 remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it shall rescind the order.

[Section 32, Divorce Act.]
[Cf. section 25, H.M.A.] [Cf. section 37, S.M.A.]

[New]

(2) In any case in which the court pronounces a decree for divorce or nullity of marriage, the court may inquire into the existence of ante-nuptial or post-nuptial settlements made on the parties whose marriage is the subject 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.

[Section 40, main pars, Divorce Act]
[Cf. section 25, M.C.A.]

(3) The court shall not make any order under sub-section (2) for the benefit of the parents or either of them at the expense of the children.

[Section 40, proviso, Divorce Act.]

[Sections 41, 42, 43 and 44, Divorce Act.]
[Cf. section 26, H.M.A., section 38, S.M.A.]

[Section 53, Divorce Act.]
[Cf. section 22(1), H.M.A. section 33, S.M.A.]

[Section 55, part, Divorce Act.]
[Contrast section 28, H.M.A., section 39, S.M.A.
Cf. section 96, Code of Civil Procedure.]

[Section 55, part, Divorce Act] [Cf section 28, H.M.A. section 39, S.M.A.]

CHAPTER IX

Penalties

[New] [Cf. section 44, S.M.A.]

(a) in the case of a contravention of the condition specified in clause (ii) of section 4, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both;

(b) in the case of a contravention of the condition specified in clause (iv) of section 4, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both; and

(c) in the case of a contravention of the condition specified in clause (v) of section 4, with fine which may extend to one thousand rupees.

[New] [Cf. section 18, H.M.A.]

(a) where an oath or declaration is required by this Act or by any Church according to the rules of which a marriage is intended to be sloemnised, makes a false oath or declaration, or

(b) where a notice or certificate is required by this Act, signs a false notice or certificate,

[Section 66, Christian Marriage Act] [Contrast section 45, S.M.A.]

[Section 67, Christian marriage Act]

[Section 68, Christian Marriage Act] [Cf. section 75(1)(a), M.C.A.]

(2) Whoever, being a licensed Minister or a Marriage Registrar, refuses, without just cause, to solemnise 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.

[New]

(a) solemnizes such marriage

(i) without publishing a notice regarding such marriage as required by any provision of this Act, or

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

(b) issues any certificate in contravention of any provision contained in this Act,

[Sections. 69, 70, 71, 72 and 73, Christian Marriage Act.I
[Cf. section 46, S.M.A.]

[Section 75, Christian Marriage Act.]

[New] [Cf. section 22(2), H.M.A.]

[Section 76, Christian Marriage Act]

CHAPTER X

Miscellaneous

(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 (1) may 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.

[Section 49, Christian Marriage Act.] [Cf. section 9(2), S.M.A.]

(i) any statement made in regard to the dwelling place of the persons married;

(ii) the notice of the marriage;

(iii) the certificate of the notice of the marriage or translation thereof;

(iv) the registration of the marriage.

[Section 77, Christian Marriage Act.]

(2) Every correction made under this section shall be 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.

[Section 78, Christian Marriage Act.] [Cf. section 49, S.M.A.]

(a) in a church building, or

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

[New]

[New]

[Section 40, part, Christian Marriage Act]

(2) Certified extracts from the Marriage Certificate Book shall, on application, be given by the person who solemnised the marriage or other person having the custody for the time being of the Marriage Certificate Book, to any person who applies for the same.

(3) Inspection of the Marriage Certificate Book under sub-section (1) and the grant of certified extracts therefrom under sub-section (2) shall be—

(a) 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.

[Section 79 and section 80, part, Christian Marriage Act]
[Cf. section 47, S.M.A. and section 8(3), H.M.A.]

[Section 80, part, Christian Marriage Act.]

[New]

(2) Every person solemnizing a marriage under this Act shall satisfy himself that the parties to the marriage have understood the contents of the notice given and the declaration made by each of them, and (where a certificate of notice of marriage is required to be issued under this Act) of the certificate of notice of marriage issued for the marriage.

[Sections 23, 57 and 58, Christian Marriage Act.]

[Section 58, Divorce Act, extended]

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and inspection;

(c) compelling the production of documents;

(d) reception of evidence on affidavits; and

(e) issuing commissions for the examination of witnesses;

Explanation.—For the purpose of enforcing the attendance of any person to give evidence, the local limits of the jurisdiction of the Marriage Registrar shall be the local limits of his district.

[Section 53, Christian Marriage Act] [Cf. section 9(i), S.M.A.]

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) 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 be maintained;

(d) the fees that may be levied for the performance of any duty imposed upon any person under this Act;

(e) the conditions under which licences to solemnise 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;

(g) 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;

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

(3) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

[Section 82 and 83, Christian Marriage Act.] [Cf. section 50, S.M.A.]

[Section 62, Divorce Act.] [Cf. section 41(1), S.M.A.]

[New] [Cf. the wording of section 29(1), H.M.A.]

But the word "affect the validity" would extend the protection, it can be argued to voidable marriages also (which a not the intention). The phraseology used is the English Act has not, therefore, been adopted.

[Cf. section 29(4) H.M.A.] [New]

(2) Notwithstanding such repeal,—

(a) all marriages duly solemnised under the Indian Christian Marriage Act, 1872, (15 of 1872) or any such corresponding enactment, shall be deemed to have been solemnised under this Act;

[Cf. section 51(2)(a), S.M.A.]

(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 (4 of 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, 1872 (15 of 1872), or any such corresponding enactment, shall be dealt with and decided by such court as if this Act had not been passed.

[Contrast, section 29(3), H.M.A. and section 51 (2)(b), S.M.A.]

(3) The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897 (10 of 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.

[Cf. section 51(3), S.M.A.]

The First Schedule

Prohibited Relationship

[See section 2(m)1

Part I

1. Mother
2. Father's widow (step-mother)
3. Mother's mother
4. Mother's father's widow (step-grand-mother)
5. Father's mother
6. Father's father's widow (step-grand-mother)
7. Daughter
8. Son's widow
9. Daughter's daughter
10. Daughter's son's widow
11. Son's daughter
12. Son's son's widow
13. Sister
14. Wife's daughter (step-daughter)
15. Wife's mother
16. Wife's son's daughter (step-son's daughter)
17. Wife's daughter's daughter (step-daughter's daughter)
18. Wife's father's mother
19. Wife's mother's mother.

Part II

20. Father
21. Mother's husband (step-father)
22. Father's father
23. Father's mother's husband (step-grand-father)
24. Mother's father
25. Mother's mother's husband (step-grand-father)
26. Son
27. Daughter's husband
28. Son's son
29. Son's daughter's husband
30. Daughter's son
31. Daughter's daughter's husband
32. Brother
33. Husband's father
34. Husband's son (step-son)
35. Husband's son's son (step-son's son)
36. Husband's daughter's son (step-daughter's son)
37. Husband's father's father
38. Husband's mother's father.

[New] [Cf. First Schedule, S.M.A.]

The Second Schedule

[See section 12(i)]

Form of Notice of Intended Marriage

The [licensed Minister]* [Marriage Registrar]* for........................... ......................................
We hereby give you notice that a marriage under the Christian Marriage and Matrimonial Causes Act is intended to be solemnised between us within three calendar months from the date hereof.

Witness our hands, this .................................................. day of.................................. 19....................

[Sch I, Christian Marriage Act] [Cf. Second Sch., S.M.A.]

The Third Schedule

[See section 15(1)]

Form of Certificate of Notice

(Sd.)

Licensed Minister**
Marriage Registrar***

[Sch II, Christian Marriage Act]

The Fourth Schedule

[See sections 11(2)(c) and 15(2)(b)]

Declaration to be Made by The Bridegroom

1. I am at the present time unmarried (or a widower or a divorcee, as the case may be).

2. I have completed years of age.

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).

Declaration to be Made by The Bride

1. I am at the present time unmarried (or a widower 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 A. B.***

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

(Sd.) G. H.

Two witnesses.

(Sd.) I.J.

(Countersigned) E. F.
Minister of a recognised Church*
Licensed Minister* Marriage Registrar*

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

[New] [Cf. Third Sch., S.M.A.]

The Fifth Schedule

[See section 23(1)]

Form of Certificate of Marriage

I, E. F., hereby certify that on the ........................ day ................... 19 A.B. and C.D.*** appeared before me and that the declaration required by section ................... ** ............................ of the Christian Marriage and Matrimonial Cause Act, 19 ............... was duly made, and that a marriage under that Act was solemnised between them in my presence and in the presence of two witnesses who have signed hereunder.

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

[Schs. III and IV, Christian Marriage Act]
[Cf. Fourth Sch., S.M.A.]

Appendix II

Notes on Clauses

Clause 1

(i) Marriage

(ii) Matrimonial causes

Clause 2

"(i) 'Christian means a person who has become a member of some Christian Church by an act customary 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 recognised in that Church".

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

(i) "Church" with the capital C—denoting the organisation;

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

Clause 2—"desertion"

(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 intention.

Clause 2—"diplomatic officer"—

Clause 2—"district"

Clause 2—"High Court" (omitted)—

(i) So far as "States" proper are concerned, the respective High Courts for the States will exercise jurisdiction as at present. So far as "Union Territories" are concerned, the High Court exercising jurisdiction or the Judicial Commissioner concerned, can be regarded as the High Court by virtue of the definition 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 expression in the Hindu Marriage Act or in the Special Marriage Act.

(iv) The expression occurs at very few places in the Bill as drafted.¹

Clause 2—"India"—

Clause 2—"Licensed Minister"—

Clause 2—"Marriage Registrar"—

Clause 2—"Minister of recognised Church,"—

(i) Ministers of recognised Churches;

(ii) Ministers licensed by the State Governments.¹

Clause 2—"minor"

(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 widower 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.

[Section 78(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, 1875, uses the word "attained".

Section 4 (a) of the Hindu Minority and Guardianship Act uses the word "completed". Section 4(1) of the Guardians and Wards Act says "attained majority".'

Section 4(c), Special Marriage Act and section 5(iii), Hindu Marriage Act say, "completed the age".

Clause 2—"prescribed"—

Clause 2—"prohibited relationship"—

Clause 2—"recognised Church"—

Clause 2—".Registrar-General"—

Clause 2—"rule"

Clause 3

(i) The provision is sought to be changed by limiting its scope to cases where both the parties are Christians.¹

(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 solemnised under the Special Marriage Act have been expressly excluded from the scope of the section. Though there is also a general savings for such marriages,² it has been considered necessary, in the interests of clarity, to insert that saving provision here also.

(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

Clause 5

(a) 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.

(b) 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), sinee there is no reason why the case of the father's consent should be left uncovered.

(d) The petition will lie in all cases to the "district court" as defined in the definition clause.

(e) Unnecessary matter,has been omitted.

Clause 6

Clause 7

Clause 8

(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.

(iii) The words "so far as regards the territories under its administration etc." have been omitted, as unnecessary.

Clause 9

Clause 10

Clause 11

Clause 12

(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 paragraph under discussion provides that it will suffice if at least one party has resided in the district of the Marriage Registrar to whom the notice is given.

Clause 13

Clause 14

Clause 15

Clause 16

Clause 17

Clause 18

Clause 19

Clause 20

(i) 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 leaving the choice to the Minister, he should be required to follow the rules of his Church. The provision has been altered accordingly.

(ii) 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

(i) Instead of the words "form and ceremony", the words "form or ceremony" have been used. Compare existing section 25, Christian Marriage Act.

(ii) Unnecessary matter has been omitted.

(iii) The existing section requires that the witnesses should be "credible". This has been omitted, as unnecessary. It is not contained in the section relating to licensed Ministers (section 25, Christian Marriage Act).

(iv) The words "besides the Marriage Registrar" have been omitted as unnecessary.¹

(v) 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.

Clause 22

Clause 23

Clause 24

Clause 25

Clause 26

(a) the parties desire to come together, or

(b) for any other reason the court considers it just and reasonable to rescind the decree.

Clause 27

Clause 28

Clause 29

(i) where the former spouse was living, and

(ii) insanity.

(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.

Clause 30

Clause 31

(i) 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.

(ii) 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 B, the initiation of further proceeding for divorce should be open to B 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 having obtained the decree for judicial separation, sit quiet and neither end nor mend the marriage².

Clause 32

Clause 33

(1) As regards the period.—In section 57 of the Divorce Act, the provision is that when six months after the dissolution of the marriage have expired, or (when an appeal has been presented to the High Court in its appellate jurisdiction) the appeal has been dismissed or the marriage is dissolved on appeal, the parties may re-marry, provided no further appeal 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 remarriage 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, prescribes 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 right.—The right of the parties to re-marry has been expressed in different terms in the 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 simply provides that "it shall be lawful to marry again".

Section 30 of the Special Marriage Act provides that "either party to the marriage may marry again".

(iii) As to the consequences of the violation of the prohibition.—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."

Clause 34

Clause 35

Clause 36

(a) This head of jurisdiction is new, and is not found either in the existing provision or in the Hindu Marriage Act or the Special Marriage Act. It follows 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.

(i) domicile of the parties;

(ii) domicile of the petitioner;

(iii) residence of the petitioner.

(i) It may be noted that where the marriage was solemnised within the jurisdiction of court 'A' and the parties last resided together in the jurisdiction of court 'B', 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 corresponding provision in the Special Marriage Act³ or the Hindu Marriage Act. Such a case will be covered by draft para. (a) 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 marriage⁴

Clause 37

Clause 38

Clause 39

Clause 40

Clause 41

Clause 42

Clause 43

(a) The right has been given to the wife also.

(b) The provision for a mere claim for damages has been omitted as repugnant to modern ideas and likely to lead to black-mail.¹

Clause 44

Clause 45

Clause 46

Clause 47

Clause 48

(i) It has been provided that if either party desires, then the proceedings must be held in camera.

(ii) An express provision, that it will not be lawful to publish or print such proceedings without the court's permission, has been added.

Clause 49

(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 difficulty has been felt under section 28 of the Hindu Marriage Act in a recent case where it was held¹ that an order refusing interim maintenance is not appealable, because it is not listed as an appealable order in the Code of Civil Procedure.

(d) It is not clear whether the right of appeal should be sought in any other statute. See the discussion on the subject in a case which arose under the Hindu Marriage Act.²

Clause 50

Clause 51

(i) under the Christian Marriage Act; or

(ii) under any other system of law.

Clause 52

Clause 53

(i) The reference to various classes of Churches have been omitted.

(ii) The formula "shall be deemed to have committed the offence punishable" has been replaced by the words "punishable with". Existing section 67 of the Christian Marriage Act links up the offence with section 193 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 punishment 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, which punishes every person making, signing or attesting any notice, declaration or certificate, irrespective of the motive of the offender.

(iv) As a definition of "rule" in relation to rules of Church has been inserted¹, consequential changes have been made in the clause under discussion.

Clause 54

Clause 55

(i) The condition that the unauthorised solemnisation should be "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.

(iv) Other changes are consequential.

Clause 56

Clause 57

Clause 58

(i) Instead of reference to "register, book or counter-foil certificate" reference to "the

(ii) The fine has been limited to two thousand rupees.

Clause 59

Clause 60

Clause 61

Clause 62

(i) Existing section 77(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 omitted, because the substantive provision¹ regarding effect of want of guardian's consent makes the marriage voidable, and not void. Therefore, no saving for false statement regarding consent is necessary.

(ii) Existing section 77(4) saves irregularity as to time and place of marriage. This has been omitted, because the substantive provisions regarding time and place (sections 10 and 11 of the Christian Marriage Act) have been omitted.²

(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 in accordance with the provisions of section 6". The reference to existing section 4 is thus replaced by the gist thereof, namely—"between two Christians". It is also made clear that the marriage must be under the Act.

Clause 63

(i) in the marriage register book, and

(ii) also in the counterfoil.

Clause 64

Clause 65

Clause 66

Clause 67

Clause 68

Clause 69

Clause 70

(i) applying it to Ministers of all recognised Churches, and

(ii) 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.

Clause 71

Clause 72

Clause 73

Clause 74

Clause 75

Clause 76

Colonial jurisdiction

(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 England, according 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 marriage 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.

"17 (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 aforesaid 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 Legislature of the new Dominion concerned, all courts in the new Dominions shall have the same jurisdiction under the said Acts as they would have had 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 concerned, 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 effect."

[Section 17(3) (4) are not material]

"(301) 1926 Indian & Colonial Divorce Jurisdiction Act (16 & 17 Geo. 5, c. 40).
1940 Indian & Colonial Divorce Jurisdiction Act (3 and 4 Geo. 6, c. 35)."

(a) to incorporate a saving provision in the new Act to the effect that the two Acts mentioned above shall continue to apply to pending proceedings, and

(b) to provide for a formal repeal of the two Acts.

First Schedule

Sister's son; sister's daughter; brother's son; brother's daughter; mother's brother; mother's sister; father's brother; father's sister.

Second Schedule

Third Schedule

Fourth Schedule

Fifth Schedule

Omitted sections

Appendix III

Marriage

Indian Christian Marriage Act, 1872

Table Showing The Provision in The Existing Acts and The Corresponding Provision, If any, in Appendix I

Divorce

Indian Divorce Act, 1869

Appendix IV

List of Witnesses Examined

Appendix V

Recommendations in Respect of other Acts

Note Of Shri P. Satyanarayana Rao

"Private International Law owes its existence to the fact that there are in the world a number of separate 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 occasions 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 within 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 principle of territorial sovereignty, afford 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."

(1) Both parties domiciled in England and the marriage celebrated abroad.

(2) Both parties domiciled abroad and the marriage celebrated in England.

(3) One party domiciled in England and other party abroad and the marriage celebrated abroad.

(4) One party domiciled in England and the other abroad and the marriage celebrated in England.

It is indispensable to the validity of a marriage that the personal law of each party be satisfied so far as regards his capacity to contract it, whether absolute, in respect of age, or relative, in respect of the prohibited degrees of consanguinity or affinity."

"....but this authority is weakened, (1) by the learned Judge's pronouncement in favour of the lex loci contractus as governing competency, (2) by his taking Creswell's opinion in favour of the lex loci contractus from Simonin v. Mallac, (1860) 2 Sw & Tr 67, without reference to that learned Judge's saying in Mette v. Mette, 1 S&T 423, "there could be no valid contract unless each was competent to contract with other", (3) by his reference to the statutes on the marriage of first cousins, which seems to imply that the rules of private international law are less applicable where the English law is contained in statutes than where it is the common law. De Wilton (in re:),(1900) 2 Ch 481. ............... 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, (1902) 1 Ch 751, and the judgments of Lord Campbell and Cranworth in Brook v. Brook there quoted."

"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 incapacity 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."

"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 Englishman marrying abroad would remain subject to the English rules on capacity, the foreign grounds of incapacity, of a person domiciled abroad would be disregarded. This alleged rule has acquired worldwide 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 Sottomayor² decision and the entirely discredited case of Ogden v. Ogden, (1908), p. 4. there is no reasonable support for such unilateral English doctrine."

" ......... an anomalous exception to the negative 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 Sottomayor v. De Burros, (1879) 5 PD 94, Although it may have been justified by some remarks of the Court of Appeal on the previous hearing of the case², the decision was largely based on the judgment in earlier cases which stressed the predominance of the lex loci celebrationis in all matters affecting the validity of marriage. The learned judge appears to have failed to appreciate the significance of the first decision which differentiated 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 bias to English Private International 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 is consistent with sound principle, because a person's status is, as a general rule, determined by the law of his domicile, questions of status cannot be affected by the intention of the parties, and a person's capacity to marry is a matter of public concern to the country of his domicile."

"It may be objected with force that one of these decisions is conclusive in favour of the law of matrimonial home.... Nevertheless there remains one decision which, on the facts though not on the reasoning is a more convincing authority for the view now being advocated. This is Sottomayor v. De Barros (No. 2), (1879) 5 PD 94. ........ "¹.

"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 far 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 essential validity. But what law is that to be decided?

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 view) because at that date it was the law of the matrimonial-domicile 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 lex loci governed the form of marriage, its essential validity depended on the lex domicilii of the parties".

P. Satyanarayana Rao.

30-5-1960

Supplement to the Minute of Dissent

"No one can dispute the competency of our legislature 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 formulate rules suited to the situation".

"If the marriage is alleged to be void on a ground other than that of lack of formalities, that issue shall 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 be 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 out¹."

P. Satyanarayana Rao,

5.8.1960

Note by Member Shri Sachin Chaudhuri

S. Chaudhuri.

19.8.1960