Issues in Marriage and

Matrimonial Causes
 Introduction
• Marriage has, for long, sustained as an important
social institution. Be it perceived as a sacrosanct
institution created through religious
understandings or seen as a contractual
institution, the common thread running through
these perceptions is that marriage confers status
upon the parties to the relationship and has a
major role in the continuance of that status as
well as in the devolution of the inheritance of the
parties.
 Issues in Polygamous Marriages
• The English domestic as considers marriage to
be a voluntary union for life between a man
and a woman having the capacity to enter into
such relationship. The courts have extended
this understanding to the conflict of laws cases
also, and such extension resulted in much
hardship especially in cases of polygamous
marriages that have been permissible under
certain cultures.
 Sowa v. Sowa (1961)
• A marriage was celebrated in Ghana between parties
domiciled there. The marriage was potentially
polygamous as the law of Ghana allows plurality of
wives. The husband promised to go through another
ceremony later which according to the law of Ghana
will convert the marriage into a monogamous
marriage.
• He failed to carry out his promise. It was held that in
spite of the promise and in spite of the fact that the
husband has not taken an additional wife, the marriage
should be regarded as polygamous.
 Harvey v. Farnie (1880-1882)
• The court of Appeal took the extreme position that
polygamous marriages could not be recognized for any
purpose. The nature of marriage and incidents are
determined by the lex loci celebrationis and the
characterization of the marriage as to whether it is
monogamous or polygamous is determined by the lex
fori. The English Court maintained that even if there
was a possibility of converting a polygamous marriage
into a monogamous one, the potentially polygamous
marriage remained a polygamous union thus failing to
get recognition.
 Hyde v. Hyde (1866)
• The petitioner was an Englishman who embraced the
Mormon faith(Christ centered faith in Western New York).
He went to Utah in the United State and married a
Mormon lady according to Mormon faith.
• After cohabiting with her for three years and having
children by her, he renounced Mormon faith, came to
England and became the minister of a dissenting chapel.
• A sentence of excommunication from Mormon faith was
pronounced against him in Utah and his wife married
another man. He petitioned before an English Court for
divorce on the ground of adultery of his wife.
• According to Mormon faith, polygamy was
allowed. Court held the Mormon marriage
was potentially polygamous, and this country
is adapted to Christian marriages and is wholly
inapplicable to polygamy. The parties to a
polygamy marriage are not entitled to the
remedies, or adjudication / relief of English
Law.
 What law determines whether a marriage is
polygamous or Monogamous
• The relevant law to decide this question is law of the place
where the marriage was celebrated – Lex Loci Celebrationis (law
of the Place where the marriage was celebrated/ solemnized).
• E.g. If an English domiciled woman marries a Muslim in England
and they live together in Pakistan where the Husband is
domiciled, the marriage is monogamous, Because it was
celebrated in England.
• But if law of Matrimonial domicile is applied in the above
instance, the marriage would be polygamous as they were living
in Pakistan as husband and wife.
• i.e., the marriage, in accordance with English law would be
monogamous.
• So, according to lex loci celebrationis, If
woman domiciled in England marries a
Muslim in India, the marriage would be
polygamous although they may be living in
England as husband and wife.
 Can the Nature of Marriage Change?
• The nature of marriage may change due to a
variety of reasons-
1. Change of Religion
2. Change of Domicile
3. Subsequent ceremony in monogamous form
and
4. Subsequent events which alter the nature of
marriage according to Lex Loci Celebrationis.
 Cheni v Cheni (1962)
• The parties, who were uncle and niece, married in
Cairo in 1924 in accordance with Jewish rites. The
marriage was valid by Jewish and Egyptian law and,
although potentially polygamous as the husband can
take another wife if no child was born within ten years.
The wife petitioned an English court for a matrimonial
relief. The court held that at the inception of marriage,
it was polygamous but at the time of the proceedings
a child was already born, thus making monogamous.
The court recognized this change and assumed
jurisdiction.
 Recognition of Polygamous Unions-
Reasons
• What are the reasons for which polygamous
unions find recognition in English Courts?
Various reasons have been accorded in a
variety of judicial opinion. One such reason is
the rights of the children born of such
polygamous or potentially polygamous
relationships.
 Sinha Peerage Claim (1946)
• Marriage between two Hindus in India in 1880. The
Hindu law at that time allowed plurality of wives
for the husband and hence the marriage was
polygamous at its inception. But later the spouses
had joined Brahma Samaj, one of whose tenets
was monogamy. Since the husband had not taken a
second wife and since by their new religion they
have accepted monogamy, the marriage at the
time of the proceedings was recognised as
monogamous.
 Ali v Ali (1966)
• As a change from Hyde v Hyde- wider interpretation- for providing
reliefs of succession or legitimacy.
• In this case, the parties were both domiciled in India entered into
marriage in India by the time when it was potentially polygamous.
They later came to England and the husband acquired an English
domicile. The husband petitioned before an English Court for
divorce on the ground of wife’s desertion.
• The court’s jurisdiction depended on the question whether at the
time of the proceedings the marriage was monogamous or
polygamous. It was held that the husband’s acquisition of English
domicile and residence in England prevented him from having a
second wife; and hence the marriage had become monogamous
character.
• Thus Ali v. Ali is an authority for the
proposition that if the husband changes his
domicile from a country which permits
polygamy to one which does not, this change
of domicile changes the character of the
marriage and renders it monogamous.
• This decision is to be welcomed from the
practical aspect as it narrows the scope of
Hyde v. Hyde.
 Quraishi v. Quraishi
• H and W1 were married in Bangladesh (then East
Pakistan), but subsequently came to live in
England. H decided to take second wife W2,
which was permissible under the Islamic law of
Bangladesh, but continued living in England with
W1. H then went to Bangladesh to consummate
the marriage , but when he returned to England
W1 refused to live with him. H petitioned for
divorce on the grounds of W1s desertion, but his
petition was denied.
• H knew he was endangering his first marriage by taking
a second wife, and W1 had reasonable grounds for
leaving him. The law also recognizes the concept of
“constructive desertion”, where the behavior of one
spouse is such as to leave the other no real alternative
but to move out: in those circumstances, the spouse
who moves out can still claim to have been deserted by
the other. The Introduction of non-molestation orders
an d other remedies for domestic violence has made
this less important than it used to be, but it is still of
some significance.
 Indian Law
• There is a possibility of conflict of inter-communal
laws arising indirectly. One situation where such
conflict may arise is when one of the spouse
converted. In the latter case is it the law of the
spouse who converted or the law of the spouse
who did not convert to another religion. Question
arises whether it is law at the time of marriage that
is the applicable law of the spouse who converted
or the law of the spouse who did not convert to
another religion.
 Khambatta v. Khambatta (1935)
• An India domiciled male married a Scot woman domiciled in
Scotland before he marriage registrar. The wife came to
India and also converted to Islam, In 1922 the husband
pronounced divorce and the wife also obtained a
declaration on the dissolution of the marriage from the civil
court. Subsequently she underwent with a ceremony of
marriage with a Parsi, Khambatta, under the Special
Marriage Act, 1872. After 10 years of marriage, the wife
petitioned for a declaration of nullity of her marriage with
khambatta on the averment that since her scotish marriage
has not been dissolved by any court of law, her second
marriage being bigamous was void.
• The main question was whether her first marriage was
validly dissolved. Here the question before the court was,
should the first marriage’s validly be decided by the law
applicable at the time of the marriage or law applicable
at the time of the marriage or law applicable after
conversion.
• The Court held that questions of validly of marriage
would be governed by the law after conversion.
Therefore the court came to the conclusion that the first
marriage was validly dissolved.
• If the change of domicile could affect a change in the
status of the parties, then it would also be possible that
change of religion could affect similar changes in the
status of the parties.
 Statutory Provisions
• It is also pertinent that the provisions of the
Foreign Marriages Act, 1969 be discussed
here. The Act recognizes marriage of an Indian
national in the following circumstances.
• Marry another Indian national abroad
• Or a national of another country
• Or with a personal domiciled in another
country.
 Validity of Marriage
• In any system of law for the validity of
marriage the fulfillment of two conditions is
essentially required. They are:
1. Parties to the marriage must have the
capacity to marry (material validity of the
marriage)
2. Parties must have performed necessary
ceremonies and rites of marriage (Formal
validity of marriage)
 Divorce
• Two major theoretical construct have been
developed to explain the legal standard t for
the dissolution of marriage. They are the
consent theory and the breakdown theory.
English law accords recognition to the consent
theory and the breakdown theory as well. The
law on matrimonial causes is contained in the
Matrimonial Causes Act, 1973 and the Domicile
and the Matrimonial Proceedings Act, 1973.
 Grounds for Divorce
1. That the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent;
2. That the respondent has behaved in such a way that the petitioner
cannot reasonably be expected to live with the respondent;
3. That the respondent has deserted the petitioner for a continuous
period of at least two years immediately preceding the petition:
4. That the parties to the marriage have lived apart for a continuous
period of at least two years immediately preceding the petition
and the respondent consents to the grant of the decree:
5. That the parties to the marriage have lived apart for a continuous
period of at least five years immediately preceding the petition:
• These grounds appear to be a fair blend of the
traditionally accepted grounds of divorce-
adultery, cruelty and desertion, and they have
found theorized into the account and the
break-down theories.
1. Parsi Marriage and Divorce Act, 1936
2. Special Marriage Act, 1954
3. Hindu Marriage Act, 1955
 Jurisdiction
• English court’s jurisdiction has been addressed
in the Domicile and Matrimonial Proceedings
Act, 1973. The courts’ jurisdiction is based on
two grounds-
1. Domicile
2. Habitual Residence
 Domicile
• English Law- After the Indyka v. Indyka decision of the
House of Lords it has become a settled proposition that
English courts have jurisdiction to entertain a petition for
divorce if parties are domiciled in England at the time of
the commencement of the proceedings.
• This opinion has been formalized into a legislative
provision in the Domicile and Matrimonial Proceedings
Act, 1973 that states that the court would have
jurisdiction to entertain a petition for divorce if either of
the parties to the marriage is domiciled in England on the
date of the commencement of the proceedings.
 Habitual Residence
• With the Hague Convention adopting habitual residence
as a basis of jurisdiction, there has been much legislative
activity incorporating that provision. Some examples of
the legislative activity are the Administration of Justice
Act, 1956, Adoptions Act, 1968, Recognition of Divorces
and Legal Separation Act, 1971.
• The domicile and matrimonial proceedings act 1973
adopted the habitual residence clause as the second basis
of jurisdiction of either party to the marriage was
habitually resident in England for a period of one year
ending on date of commencement of the proceedings
before the English Court. In that case the English courts
have the Jurisdiction to entertain the petition of divorce.
 Indian Law
• Much of the jurisdiction rules, varying between
communities, have now been formalized in
statutory form, except for the Muslim and the
Jewish communities.
• The Indian divorce Act specifies that the
jurisdiction of a court can be invoked by the
residence within its territory, and for a petition of
divorce the requirement is that the parties are
domiciled at the time of the presenting the
petition.
 Murphy v. Murphy
• After the marriage was solemnized the parties
lived in a Bombay hotel for the greater portion of a
month; the husband then left for the Mesopotamia
to join active service there. Parties having not
established a matrimonial home, and the living at
the Bombay hotel was all that they has of
common living after the marriage, it was held that
by the Bombay High Court that their stay in
Bombay, howsoever temporary, could still be
considered as residence.
 Tara v. Jaipal Singh
• The parties did not set up any permanent
residence and lived at various places for short
period, and in this manner when they were
living at Darjeeling for a week the marriage
broke down. It was held by the Court that they
last resided together in Darjeeling and hence
the jurisdiction of the court in Darjeeling
existed.
 Choice of Law
• Once the English Court decides that it has
jurisdiction in the case, there is not much difficulty
with regard to the choice of law. They have
invariably applied the English domestic law. This is a
typical corollary of the English Courts’ attitude
towards divorce decrees granted by foreign courts.
• Once the English court has found that the foreign
court has jurisdiction it has never concerned it to
look at the grounds for pronouncement of the
decree of divorce by the foreign court.
• Thus it is immaterial that the ground on the basis
of which the matrimonial relief is being claim and
granted was committed abroad in the country
where the parties were domiciled or resident.
• The question whether the marriage would be
dissolved or not touches the fundamental English
concept of morality, religion and public policy
therefore is a matter that should be decided by
the English law.
 Zanelli v. Zanelli
• An Italian national domiciled in England married an
Englishman. Subsequently he was deported from
England, and he assumed his Italian domicile once
again. The English court assumed jurisdiction on the
basis of special statutory provision and granted the
divorce to the wife by applying the English domestic
law.
• While special statutory jurisdictions have since been
abolished, the choice of law rule that in all cases where
the English courts have jurisdiction, they shall apply the
English law remains valid.
 Indian Law
• While there is not much known authority on this
subject, it appears clear that the Indian court
having assumed jurisdiction in a divorce petition,
would apply the personal law of the parties, on
the understanding of the principle of lex fori.
• In respect of marriages solemnized under the
Foreign Marriages Act, 1969, the legislation
contains a provision that the provisions of the
Special Marriage Act, 1954 shall apply.