DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

SUBJECT- CONFLICT OF LAWS

ON

TOPIC- “VALIDITY OF MARRIAGE”

SUBMITTED TO: SUBMITTED BY :

Prof. Prem Kumar Gautam MANU PRATAP SINGH

Assistant Professor (Law) ROLL NO: 75

SECTION A, SEM- 8TH

ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my Assistant
Professor Dr. Prem Kumar Gautam for his exemplary guidance, monitoring and constant
encouragement to give shape to this project. The blessing, help and guidance given by him time
to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my respected seniors who
share their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

Lastly, I thank the almighty, my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not have been possible.
 I. INTRODUCTION
Despite the changes in society in recent decades, there remains much truth in the Lord
Westbury‟s dictum in Shaw v. Gould1 “Marriage is the very foundation of the civil society, and
no part of the laws and institutions of a country can be of more vital importance to its subject
than those which regulate the manner and condition of forming, and if necessary of dissolving,
the marriage contract.” In English law, a marriage though a contract, is a contract sui generis.
Each legal system determines the attributes of a marriage; at Common Law in England, it is in
essence a consensual union of a man and a woman. A marriage was a voluntary union for life of
one man with one woman to the exclusion of others.2 This decision was the foundation of the rule
that polygamous marriages were not recognized in England but the situation has been changed
and such marriages are now recognized in England.
The Hague Conference on Private International Law has drafted the Hague Convention on the
Celebration and Recognition of the Validity of Marriages 1978. Few Common Law States have
adopted it, Australia being the only exception, having amended the (Australian) Marriage Act
1961, in 1985 to give statutory force of convention relating to the recognition of marriage. The
Law commission in the United Kingdom recommended against its adoption. Indian has not
adopted it. The convention thus has little direct usefulness, some of its provisions are being
briefly indicated, however to show what can be called the international consensus of opinion on
the subject.
A contract to marriage differs fundamentally from a commercial contract,3 since it creates a
status that affects the parties themselves and the society to which they belong. It is sui generis. It
is fulfilled on the solemnization of the marriage ceremony, and thereafter there is a change in the
law that governs the relationship between the parties. As far as matrimonial causes are concern
they are now generally taken to include petition for divorce, nullity of marriage, judicial
separation and presumption of death and dissolution of marriage as well as similar foreign
proceedings, which may fall recognition here.

1
(1868) L.R, 3 H.L, 55 at 82
2
Hyde v. Hyde, (1866) LR 1 P & D 130.
3
Under the Law Reform (Miscellaneous Provision) Act 1970, s. 1, an agreement to marry does not have effect as a
contract.
 II. MEANING OF MARRIAGE
Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife. This contract, however, differs fundamentally from a
commercial contract in the following ways:
• As a general rule, it can only be concluded by a formal public act.
• It can only be dissolved by a formal public act.
• More importantly, it creates a status which is taken into account in relation to, for
example, succession, tax, legitimacy of children, and to some extent in relation to
immigration laws.4
In English law, a marriage though a contract, is a sui generis. Each legal system determines the
attributes of a marriage, at Common Law in England; it is in essence a consensual union of a
man and woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde5, it was held that a
marriage was voluntary union for life of one man with one woman to exclusion of others. This
decision was the foundation of the rule that polygamous marriages were not recognized in
England.6 Even when divorces became easier, the concept was maintained, as the dissolubility of
a marriage did not affect its legal character.7 This was also the position in Australia, and
Canada.8 In India, among Hindus marriage has always been regarded as sacrament, whilst in
Mohomedan Law, it is a contract.
The law of the country where the marriage is celebrated will govern the formal requirement of
the marriage. A marriage can be celebrated if the parties meet the substantive requirement of the
domestic law of the country where the marriage is celebrated, and one of the parties is a national
of that state, or habitually resides there; and each party satisfies the substantive requirements of
the law applicable to the parties in accordance with the conflict of law rules of the place where
the marriage is celebrated.9

4
Cheshire & North, Private International Law, thirteenth edn, p. 741.
5
(1866) LR 1 P & D 130
6
Today the situation has been changed under this and now they are recognized for many purposes.
7
Nachimson v. Nachimson [1930] P 217 (CA), a marriage in the USSR at a time when a unilateral divorce was
available to either party was recognized as a valid marriage in England.
8
Marriages celebrated according to Chinese, Japanese, Eskimo and Jewish rites were also recognized on proof that
such marriages were monogamous. Castels & Walkers, Canadian Conflict of Laws, sixth edn, para 16.6
9
Art. 3 of the Hague Convention on the Celebration & Recognition of the Validity of Marriages, 1978.
III. FORMAL VALIDITY OF MARRIAGE
The term ‘formalities’ includes such questions such as whether a civil ceremony, or any
ceremony at all is required, the number of witnesses necessary, the permitted hours during which
the marriage can be celebrated, whether publication of marriage is necessary, and so on.15 Now
as a general principle, the formal validity of a marriage is determined under the municipal lex
loci celebrationis on the date of the ceremony (the principle of renvoi does not apply unless it
will refer to a law that will validate the marriage), and the lex domicilii of either party will be
irrelevant. This rule is simple and easy to apply. It should be obvious to parties wishing to marry
that they should comply with the local formalities.10 English Private International system, the
requirement that a marriage may be formally valid by the principle of lex loci celebrationis is
imperative, which admits no alternative test. In the continental Europe, however, the test is
facultative: the requirement is that the marriage should be formally valid either by the lex loci
celebrationis or by the personal laws of the parties. Under the French law a marriage which is
solemnized outside France should be formally valid either under the law of the place where it is
celebrated or by the personal law of the parties. The same is the position under the German Law.
Countries like Greece and Malta lay down that compliance with the personal law is necessary
and obligatory, if the parties belong to the Orthodox Church, in the former case, and to Roman
Catholic Church in the latter case. In Poland and Czech Republic, however, if marriage is
formally valid under the personal law of the parties, then the marriage is valid, irrespective of the
fact whether it complies with the lex loci celebrationis.11 In China too, for the substantive
conditions of marriage, the applicable laws relate to the law of the place where the marriage
takes place or the personal law of the parties (or both).12 Likewise in Scotland, a marriage, which
is solemnized outside Scotland, should be formally valid under the law of the place where it is
celebrated.13 Thus, it means that if the marriage is formally valid in accordance with the law of
the place where it took place then the marriage would be valid everywhere. If the law of the
place where the marriage is solemnized lays down that a marriage which complies with the

10
Nullity (conflict), available at: http://en.wikipedia.org/wiki/Nullity(conflict) (last visited on April 20,
2010).
11
Paras Diwan & Peeyushi Diwan, at 266.
12
Wang Hui, A Review of China’s Private International Law During the 30-year Period of Reform and
Opening-Up (May 2009) (ASLI Working Paper Series No. 002).
13
The Law Commission and The Scottish Law Commission, Private International Law Choice of law rules
in Marriage, Law Com. No. 165 & Scot. Law Com. No. 105, 3 (July 01, 1987).
requirements of personal law of parties (such is position under the Italian Law) is valid, then a
marriage performed accordingly will be valid.

A. Position in England
In recent years, the Common Law rules have been considerably varied by statute; such changes
are not discussed, as the statutes would have no application outside England or United Kingdom.
A marriage is formally valid when any one of the following conditions as to the form of
celebration is complied with (that is to say):14
I. If the marriage is celebrated in accordance with the form required or recognized as
sufficient by the law of the country where the marriage was celebrated.15
II. If the marriage was celebrated in accordance with the English common law in a country
where the use of the local form is impossible.16
III. If the marriage, between parties of whom at least one is United Kingdom national is
celebrated outside the Commonwealth in accordance with the provisions of, and the form
required by, the Foreign Marriage Acts, 1892.17
The leading more modern authority in England on the point is Sottomayor, otherwise De Barros
v. De Barros,18 where the Court of Appeal held that „the law of a country where the marriage is
solemnized must alone decide all questions relating to the ceremony by which the marriage is
alleged to have been constituted; but, as in other contracts, so in that marriage, personal capacity
must depends on the law of the domicile; and if the laws of any country prohibits its subject
within certain degree of consanguinity from contracting marriage, and stamp a marriage between
persons within the prohibited degree as incestuous.‟ In Berthiaume v. Dastous,19 a decision of
the Privy Council in an appeal from Canada, held that a marriage would be regarded as valid if
the form adopted by the parties was in conformity with the law of the country where the
marriage took place, even if it was not a proper form of law of the domicile of the parties.
In English Law, two rebuttable presumptions are drawn presuming the validity of marriage:
a) That if the parties go through a ceremony of marriage and live together, they were
validly married.

14
Dicey & Morris, Conflict of Law, thirteenth edn. P651.
15
Rule 67(1) of Common Law Rules
16
Ibid, Rule 67(2)
17
Ibid, Rule 67(5)
18
(1877) 3 PD 1, p 5.
19
[1930] AC 79, p 83
 b) If the parties cohabit and are reputed to be married, they regarded as validly married;
there must, however, be some evidence that the marriage complied with local form.20

B. Position in Common Law Countries

i. Position in Australia
a) Marriage by proxy will be recognized as valid if they are valid under the lex loci
celebrationis.21
b) Where the marriage is performed without the presence of an ordained priest, it had been
held that the marriage would not be recognized in Australia.22
c) Australian Court also recognize as a valid marriage performed according to religious
ceremonies of the parties even if the formalities prescribed by law of the place where the
marriage took place were not complied with in conditions prevailing at the time, whether
the parties were British subject or not.23

ii. Position in Canada

The formal validity of a marriage is generally determined by the lex loci celebrationis.24 The
lack of parental consent, when required by the lex domicilii is treated in the Canadian Common
Law Province, as in England, as a question of formal validity, and, therefore governed by the law
of the place where the marriage is celebrated.25 If the lex loci recoginses as valid a marriage by
cohabitation and repute, such marriage will be accepted as a valid marriage in Canada.
If a marriage, though invalid by the lex loci when considered, is retrospectively validated in the
foreign country the marriage will recognized as valid in Canada even if , by then, both the parties
were domiciled in Canada.

IV. CAPACITY TO MARRY

Essential validity covers all questions of validity other than formal validity. “Capacity to marry”
is a category within essential validity. Capacity to marry ought strictly to be confined to rules
which lay down that a particular class of person lacks a power to marry which other people
20
Cristofaro v. Cristofaro (1948) VLR 163.
21
Supra, no. 10
22
Nygh v. Davies, Conflict of Law in Australia, seventh edn, para 24.14
23
Savenis v. Sevenis, (1950) SASR 309.
24
Castel & Walkers, Canadian Conflict of Laws, sixth edn, para 16.2; Forbes v. Forbes (1912) 3 DLR 324.
25
Hunt v. Hunt 14 DLR (2d) 243
possess (for instance, rule that a person below a certain age may not marry). In practice,
however, capacity to marry also includes cases where the reason for the invalidity, is that such a
marriage relationship is objectionable in the eyes of law (for instance, rules prohibited marriages
between relatives of certain degrees). Capacity to marry does not, however, cover the whole field
of essential validity; it does not include the consent of the parties or the non consummation of the
marriage.
There is general agreement that this terminology includes matters of legal capacity such as
consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to
govern matters of consent and physical incapacity. The fact that capacity as a term encompasses
a wide range of matters does not necessitate the conclusion that all matters of capacity should be
subject to the same choice of law rule- a matter to which we shall return. A further preliminary
point which ought to be borne in mind is that, provided that a person has capacity under the
relevant law, the fact that he is, for example, under age according to English law will not
invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage
is not in England.
There are two main views as to the law which should govern capacity to marry- the dual
domicile doctrine, and the intended matrimonial home doctrine.

V. CONSENT OF PARTIES
The rule states that „no marriage is valid if by the law of either party‟s domicile he or she does
not consent to marry the other‟.26 There appears to be no specific authority in England on the
subject though observation by the Court of Appeal, in a case where the issue was whether
amarriage by proxy was valid, observed that the mode of giving consent, as opposed to the fact
of consent would be governed by the lex loci celebrationis. It was also held that the law of the
domicile of the parties governs the consent.27 The question that arises is as to which lex domicilii
has to be considered, of both parties, or of the party whose consent is in question. The consensus
seems to be, though there is no decision on the subject, that is should be domiciled of the person

26
Re Howe v. Louis (1970) 14 DLR (3d) 49, cited in Dicey & Morris, Conflict of Law, thirteenth edn para 14-010.
27
Way v. Way [1949] All ER 959.
who is alleged to have lacked consent. In Davison v. Sweeney,28 it was held that alleged absence
of consent was a matter for a domicile of the party concerned.
In Canada, consent is regarded as a part of essential validity of a marriage and depends on the
ante nuptial domicile of the parties.

VI. THE CHOICE OF LAW RULE

Formal validity is governed by the law of the country where the marriage is celebrated, that law
is not generally thought appropriate in the English conflict of laws to govern the essential
validity. This is because the marriage may be celebrated in a country which in other respect has
no connection with the marriage or the parties. Neither of the parties may be domiciled there
before the ceremony and they may not establish their home there after it. The choice of law rule
doctrines are as under:

A. Dual Domicile Doctrine

According to the dual domicile doctrine rule is that a person‟s domicile at the date of the
marriage has to be considered. For marriage to be valid, each party must have capacity by the
law of his or her domicile to contract the marriage. This rule commands most in English law, has
several advantages. In terms of principle, it is appropriate that people be governed by the law of
their existing domicile. The main rationale of this rule is that a person‟s status is a matter of
public concern to the country to which he belongs at the time of marriage; and therefore the
domiciliary law of each party has an equal right to be heard. Another advantage of this doctrine
is that it is easy to apply in prospective situation.

B. Intended Matrimonial Home Doctrine

An alternative approach is that the law of the intended matrimonial homes governs the essential
validity of a marriage.29 This provides a basic presumption in favour of the law of the country in
which the husband is domiciled at the date of the marriage. This presumption can be rebutted if
at the time of the marriage the parties intended to establish a matrimonial home in a different
country and if they implemented that intention within a reasonable time.30

28
(2005) 255 D.L.R. (4th) 757 (BC)
29
Cheshire & North, Private International Law, seventh edn, p 276.
30
Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p 448.
 C. Real and Substantive Connection
Another possibility is that the law of the country with which the marriage has its most and real
and substantial connection should govern the essential validity of marriage. As with the intended
matrimonial home doctrine this rule is trying to connect the marriage with the country to which it
belong. Normally, the country with which a marriage is most closely connected will be the
country where the matrimonial home is situated.31 Further, while the real and substantial
connection test has its supporters, it is, in reality, a question- begging test. The question in which,
choice of law rule will best lead to the application of the law to which the parties and marriages
belong. This test does not answer the question, but rather simply restates the problem.32

D. Validity of either Party’s Domiciliary Law

Under this test a marriage would be regarded as essentially valid if it were valid under either
party’s ante nuptial domiciliary law. This proposal has the advantage that it would promote the
policy in favour of validity of marriage, but has little else to commend it.33

E. A Variable Rule
In order to determine the most appropriate choice of law rule, one should examine why a
particular impediment exists and which law has the most interest in the validity of the marriage.
On this basis, the modified intended matrimonial home rule proposed above seems the more
appropriate to govern incapabilities which are imposed to protect the public interest of countries,
rather than the interest of the parties to the marriage.34

VII. MATRIMONIAL CAUSES

Matrimonial causes are now generally taken to include petition for divorce, nullity of marriage,
judicial separation and presumption of death and dissolution of marriage as well as similar
foreign proceedings which may fall recognition here. The rules relating to the jurisdiction of the
courts and to the recognition of the foreign divorces, annulments and judicial separations are, in
essence, the same for all three matrimonial causes, and therefore be examined together,
identifying where appropriate any rule which do not apply to all three. It will be seen that the one

31
Lawrence v. Lawrence [1985] 1 All ER 506.
32
Davie, „The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of Laws’
33
Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.
34
Jaffey, Topics in Choice of Law (1996) pp 3-7.
major area of difference remaining concerns the determination of the law to be applied by the
English Court. It is also necessary to discuss a further preliminary issue, namely whether an
English court will assume jurisdiction to grant matrimonial relief in the case of an actually or
potential polygamous marriage.

A. Polygamous Marriages and Matrimonial Relief

i. At Common Law
Until 1972, the rule of English Law was that the parties to a polygamous marriage were “not
entitled to the remedies, the adjudication, or relief of the matrimonial law of England.”35 It meant
that, in the case of a polygamous marriage, the court would grant a divorce, a decree of nullity
even where the petitioner claimed lack of capacity to enter a polygamous marriage,36 or a decree
of judicial separation. It can be realized, however, that fundamental reform was called for a view
of the number of immigrants from jurisdictional where they had contracted valid marriages in
polygamous form. A substantial number of people, permanently residents through not domiciled
in England, were denied all matrimonial relief.

ii. Matrimonial Causes Act, 1973

The entire above rule have been changed now and Section 47 37 of the Matrimonial Causes Act,
1973 makes it available to the parties to an actually polygamous marriage a wide range of
matrimonial relief,38 namely decrees of divorce, nullity, judicial separation, presumption of death
and dissolution of marriage, order for financial provisions in the cases of neglect to maintain,
variations of maintenance agreement, orders for financial relief or relating to children which are
ancillary to any of the preceding decree39 or order, order made under Part I of the Domestic
Proceedings and Magistrates Court Act 1978, order for financial relief after a foreign divorce,
annulment or legal separation40 and any declaration under Part III of the Family Law Act 1986
involving a determination as to validity of a marriage. Indeed it has been said that the effect of

35
Supra no. 5.
36
Risk v. Risk [1950] 2 All ER 973.
37
A Court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration
concerning the validity of a marriage by reason only that either party to the marriage is, or has during the substance
of the marriage been, married to more than one person.
38
Matrimonial Causes Act 1973, Section 47(2).
39
Chaudhary v. Chaudhary, [1976] Fam 148 at 151.
40
Matrimonial and Family Proceedings Act, 1984, Schedule 1 para 15. 39Matrimonial Causes Act 1973, Section
47(3).
section 47 of the 1973 Act is to abolish entirely the old rule, so that all forms of relief, which can
be classed as matrimonial, are now available in the case of polygamous marriages.

iii. Remaining Problems

Where the party to an actually polygamous marriage brings proceeding for divorce alleged
irretrievable breakdown of the marriage,41difficulties may arise over adultery, unreasonable
behavior or desertion as proof of breakdown.42 If a wife alleges that her husband has committed
adultery with another wife, such a claim will usually fail because, “it is an essential element of
adultery that intercourse has taken place outside the marriage relationship i.e. between persons
not married to each other. This being so, intercourse with a wife could not be adultery.”43 In
terms of policy this conclusion seems right if both the marriages were entered into in
polygamous form. It has been said44 that in such a case there has been no breach of the obligation
of fidelity imposed by the law governing the marriage, followed by a valid polygamous one. If a
wife divorces petition is based on the husband’s unreasonable behavior,45 the court will have to
examine all the circumstances of the marriage46 and it been also held that the taking by the
husband of a second wife is unreasonable behavior towards the first.47
Similarly, if a husband’s petition is based on desertion by the first wife, the fact that he was the
validity married a second wife has been held to give the first wife reasonable ground for leaving
him.48

B. Jurisdiction
• Divorce and Judicial Separation
It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that „according to international
law, the domicile for the time being of the married pair affords the only jurisdiction and only true
test of jurisdiction to dissolve their marriage.‟ The essence of the rule in this case was that there
should be only one test of jurisdiction and only one court capable of dissolving a particular
marriage, the court of the parties domicile. The Matrimonial Causes Act, 1937, provided that the
41
Ibid, Section 1.
42
Ibid, Section 1(2) (a), (b) and (c). These grounds for divorce will no longer be relevant if and when Part II of the
Family Law Act, 1996 is bought into force.
43
Onobrauche v. Onobrauche (1978) 8 Fam Law 107
44
Clive, The Law of Husband and Wife in Scotland, 4th edn. (1997), pp 109-110
45
Matrimonial Causes Act 1973 Section 1 (2) (b)
46
Gollins v. Gollins [1964] AC 644.
47
Poon v Tan (1973) 4 Family Law 161.
48
Quoraishi v. Quoraishi [1985] FLR 780 CA
Court should have jurisdiction to grant a divorce, in proceeding by a wife, notwithstanding that
the husband was not domiciled in England, if she had been deserted by her husband, or the
husband had been deported from United Kingdom, and the husband was immediately before the
desertion or deportion domiciled in England.49 These enactments were confined to proceeding by
a wife. They did not extend to cross-petition by a respondent husband.50 The exercise of the
English Courts jurisdiction in proceeding for divorce is subject to rules requiring or enabling the
court to stay those proceedings in certain circumstances.51
• Nullity of marriage
Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of marriages
was one of the most vexed and difficult question in the whole of the English conflict of laws. An
enormous simplification of the law was effected by section 5(3) of the Domicile and Matrimonial
Proceeding Act 1973. This provides that the English Court have such jurisdiction to entertain
such petition if (and, subject to section 5(5), on if) either party to the marriage:
(a) Is domiciled in England on the date when the proceedings are begun
(b) Was habitually resident in England throughout the period of one year ending with the
date, or
(c) Dies before that date and either was at death domiciled in England, had been
habitually resident in England throughout the period of one year ending with the date
of the death.
Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now the
same as in divorce and judicial separation. A voidable marriage no longer confers the husband‟s
domicile at the date of the marriage.52 The bases for jurisdiction are now same whether the
marriage is alleged to be void or voidable. It is therefore no longer necessary to consult foreign
law i.e. the law of the husband‟s domicile at the date of the marriage.53
Choice of Law
A. Divorce
The question of choice of law has never been prominent in the English rules of the conflict of
laws relating to divorce, which has always been treated as primarily a jurisdictional question.

49
Section 13, but now repealed.
50
Levett v. Levett and Smith [1957] P. 156
51
Family Proceeding Rules, 1991
52
Section 1 of Domicile and Matrimonial Proceedings Act, 1973.
53
De Reneville v. De Reneville, [1948] P. 100.
English Court when deciding whether to recognize foreign divorce have never examined the
ground on which the decree was granted in order to hand, when English Court have themselves
assumed jurisdiction, they have never applied any other law than that of England. In English law
the only possible alternative to the lex fori would be the law of the domicile. No difference
between them could exist before 1938, because English courts did not exercise jurisdiction
unless the parties were domiciled in England. The Court of Appeal determined the question of
divorce by the law which would be applicable thereto if both the parties were domiciled in
England at the time of the proceeding, i.e. English law.54
The rule may be justified on the ground that it would be highly inconvenient and undesirable
from the practical point of view to apply foreign law in English divorce suit. Again, to require
English Court to dissolve marriage an exotic foreign ground would be distasteful to judge and
unacceptable to public opinion.

C. Judicial Separation
Unlike divorce a vinculo matrimonii, judicial separation was a remedy granted by the
ecclesiastical court before 1858. There it was called divorce a mensa et thoro( divorce from bed
and board). The principle effect of a decree was (and is) entitle the petitioner to live a apart from
the respondent, but not to dissolve their marriage nor enable either party to remarry. The remedy
is sought chiefly by person who have religious scruples about divorce. It has never been doubted
that the English court will apply English domestic law and no other, even if the parties are
domiciled abroad.

D. Nullity of Marriage55
A nullity decree is concern with the validity of the creation of a marriage, unlike divorce which
dissolves a marriage which is admittedly validly created. This means that the choice of law
issues in nullity is essentially the same as those already examined in context of marriage. The
reason why the choice of law for nullity is more difficult area than divorce is that the effect of
annulment varies according to the particular ground in issue and they vary in relation to the same
ground even within United Kingdom. Some defect avoids a marriage ab initio, i.e. render it void,

54
Zenelli v. Zenelli (1948) 64 T.L.R 556.
55
Ireland also has decided not to opt on to Rome III: Press Release 10 October 2006,
available at http://www.justice.ie/en/JELR/Page/GovernmentrejectsEUdivorceproposals.
last visited on 10th August, 2015
 whilst other merely renders it voidable. If one party is below minimum age of marriage or is
already married, English Law regards the marriage as void. 56 In Scotland, on the other hand, lack
of consent also renders the marriage void ab initio.57
There are further differences in relation to the effect of an annulment. The annulment of a void
marriage has retrospective effect; it declares the marriage never to have existed. However the
position is different in England in case of a voidable marriage. It has been suggested that, as
annulment of a voidable marriage and divorce decree both only have prospective effect, the law
of the forum should be applied to the former as to the latter.

VIII. POSITION IN INDIA

There seems to be only one decision of an Indian court on the subject, where the question did not
directly arise, and it was observed by a learned single judge that formal validity would be
governed by the lex loci celebrationis.58

The Foreign Marriage Act 1969, provides that a marriage performed outside India would be
regarded as valid if it was performed in accordance with the law of the country where the
marriage was performed, thus implying that the test for such validity was the lex loci
celebrationis.59

As Indian courts tend to follow the rules of English law on most issues in conflict of laws, it is
probable that Indian courts would hold, as at Common Law in England, that the formal validity
of a marriage would be governed by the lex loci celebrationis.

A. Case Laws in India

In Y. Narasimha Rao v. Y. Venkata Lakshmi,60 the Supreme Court of India observed, “In matters
of status or legal capacity of natural persons, matrimonial disputes, custody of children,
adoption, testamentary and interstate succession etc. the problem in this country is complicated
by the fact that there exist different personal laws and no uniform rule can be laid down for all

56
Matrimonial Causes Act 1973, Section 11.
57
Family Law (Scotland) Act, 2006, Section 2 inserting section 20A into the Marriage (Scotland) Act 1977.
58
Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal 582.
59
The Foreign Marriage Act 1969 (Act no. 33 of 1969), Section 23
60
1991 3 SCC 451, at 458.
citizens … The law … tends to be primarily determined and influenced by social, moral or
religious considerations, and public policy plays a special and important role in shaping it.”61

Statutes enacted in India also recognise the principle that the law of the domicile governs
questions of capacity. The conditions for a valid marriage are set out in section 5 of the Hindu
Marriage Act 1955, which applies to Hindus domiciled in India, even if they are outside India.
This is clear statutory recognition of the rule that the law of a person’s domicile governs all
questions of capacity.

In India, under the Hindu Marriage Act, 1955, ‘any two Hindus’ can perform their marriage,
provided that the conditions laid down under the Act are fulfilled. The Indian Courts would
accord recognition to such marriages even if one of the parties or both the parties to the marriage
have no capacity to enter into marriage under there ante-nuptial domicile or law of their
matrimonial home. This is also true in case of Muslims, Christians, Parsi or Jew marriages
performed in India under the law of there respective communities. This is because in India, law
of marriage is essentially a personal law, in the sense that the governing law of marriage is not
the Indian Law or the state law but the law of the community to which the parties belong.

In a case of Parwatawwa v. Channawwa,62 where a man domiciled in Hyderabad married a

second wife, who was domiciled in Bombay, at a time when a Hindu could contract a bigamous
marriage in Hyderabad but not in Bombay, it was held that the question related to capacity which
was dependent on the husband's domicile, and as he was not prohibited from contracting a
second marriage by the law of his domicile, the marriage was valid.

In the case of Bhagwan Ghamshamdas v Charlotte Zingg,63 a Hindu man, whose marriage had
been dissolved under the Hindu Marriage Act 1955, married another woman in Sri Lanka within
a few months of the dissolution, it was held that under section 15 of the Hindu Marriage Act
1955, as it stood then, a person could not remarry within a year of the dissolution; the man,
therefore, lacked a capacity to marry which was governed by the law of his domicile.

61
Sujata Manohar, Inter-personal Laws in India, available at:
http://wwwsoc.nii.ac.jp/jsil/annual_documents/2003/autumn/houkokuabstr/Panel%20E4%20Manohar%20revised.pd
f.
(last visited on August 10 2015).
62
AIR 1966 Mys 100
63
(1959) ILR 1 Cal 4
IX. HAGUE CONVENTION: A WORKABLE SOLUTION OR A MYTH IN ITSELF
Hague Convention on the Celebration and Recognition of the Validity of Marriage 64 to a larger
extent solves the problem of conflict of laws, and brings forth the law which is to. The Hague
Convention in its article 270 quite clearly recognizes the principle of Lexi Loci Celebrationis,
which will determine the formal validity of marriages in Private International Law. Further, it
also removes the ambiguity on the point that whether a state can deny to enforce and recognize a
marriage contracted outside on the ground of being opposed to its public policy, article 571 and
Article 1472 quite clearly lays down that a state, party to this convention, may refuse to enforce
and recognize a marriage if it is opposed to public policy of that state.

But one of the limitation of this convention is that it does not contain any provision on essential
validity of marriage, which seems to be the most ambiguous point in Private International Law in
relation to validity of marriages, which seriously undermines the importance of this convention,
as its position with regard to formal validity is more or less same in almost all countries, with
certain exceptions, but in case of essential or material validity of marriage it is very unclear and
underdeveloped.

Another limitation to this convention is the number of parties to it, which are only three in
number.65 Since a Conventions’ credibility and applicability can be judged only on the basis of
number of countries party to it, thus, in the case of Hague Convention, less number of parties
seriously undervalues the applicability and enforceability of this Convention

X. CONCLUSION
A contract to marry fundamentally from a commercial contract, since creates a status that affects
both the parties themselves and the society to which they belong. It is fulfilled on the
solemnization of the marriage ceremony, and therefore there is a change in the law that governed
the relationship between the parties.
There are many different situations in which the existence of a marriage must be established as a
preliminary to legal proceedings. The matter may concern many different parts of the law. Thus
the institution of matrimonial causes, such as a petitioner for divorce and judicial separation,

64
Article 14 - A Contracting State may refuse to recognise the validity of a marriage where such
recognition is manifestly incompatible with its public policy (“ordre public”).
65
Uptill 2009 there were only three parties.
implies that the parties are related to each other as husband and wife. Each legal system must
determine the attributes of the consensual union between man and woman, the common factor, in
eyes of the English law, of every marriage, which are necessary to create the relationship of
husband and wife. The above project concludes that the case law just illustrates the incidental
question does not attract a mechanical rule. Therefore each case is decided on its own facts and
circumstances.
As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if either
party was habitual resident for one year or domiciled in England, or if either of the parties died
before that date and either was at domiciled in England or had been habitually resident foe one
year ending with the date of the death. A nullity decree may declare a marriage either void or
voidable.
As in the case of contract, there is proper law of contract, so also in the case of validity of
marriage, there should be a concept of Proper Law of Marriage, under which firstly, the law to be
applicable will be that law which is specified by the parties in the marriage deed or at the time of
the registration; secondly, it should be the law which can be inferred by the conduct of the parties
or according to the particulars filled by the parties during the registration of the marriage; thirdly,
since in many countries the registration of marriages is not compulsory, so many people do not
go for registration of there marriages, in such a case it will be the law with which the parties had
the most real and substantial connection. This may end many of the problems and will also give
judiciary wide powers to decide the matter, on the basis notions of justice which they follow.
BIBLIOGRAPHY

A. Books

1. Atul M Setalvad, Conflict of Laws, 2nd Ed. Lexis Nexis Butterworts Wadhwa: Nagpur,
2009.
2. Cheshire, North & Fawcett, Private International Law¸ 14th Ed., Oxford University Press:
New York, 2008
3. V.C. Govindaraj, The Conflict of Laws in India, Oxford University Press: New Delhi,
2013.

B. Articles

Rajat Joshi, Validity of Marriage And Conflict Of Laws, ILI Law Review, 2010