FROM VOWS TO VALIDITY: COMPARING MARRIAGE LAWS IN INDIA AND ENGLAND

AUTHOR: CHIRASHWINI SRINATH, UNIVERSITY LAW COLLEGE, BANGALORE UNIVERSITY.

“Marriage is the union of two souls, but its recognition is often the work of law and tradition”

Marriage is a vital social institution worldwide. It is an institution where two souls are involved, i.e. Male and Female. Around the world, whether considered as a sacrament or a contract, marriage gives rise to status. It confers the status of husband and wife, and it confers the status of the legitimacy of children born out of such union. A marriage contract is different from commercial contracts; commercial contracts don’t give rise to any status, whereas a marriage contract confers status.Practically all the countries in the world agree that marriage is a consensual union between a man and a woman. Beyond this, there are differences; every country has different rules, rites and cultures regarding a valid marriage. Western contracts considered marriage as a contract and a monogamous union, whereas Roman Catholic believes that marriage is a sacrament and an indissoluble union. In Muslim countries, it is considered a civil contract and recognizes polygamy. Once among Hindus and Buddhists, polygamy was recognized, but now both Buddhists and Hindus don’t recognize polygamy and consider marriage as a sacrament.

Let’s take an illustration: A and B are from one country, C gets married in country D, or A and B are from different countries and get married. Now, say if a dispute arises, there is an involvement of foreign elements; the question arises of which countries' laws must be applied to resolve the dispute. Marriage is a social institution and is different among different communities and chances are for conflicts to accrue. Hence in any system of law for the validity of marriage, the fulfilment of 2 conditions is essential: a) Parties to marriage must have the capacity to marry. This, in law, is called the question of the essential validity of marriage. b) Parties must have performed necessary ceremonies and rites of marriage. This, in law, is called the question of the formal validity of marriage.

The problem which arises when multiple states are involved is which law to apply. There are no clear and certain rules when choosing applicable laws in conflicts. This issue is so true for India, as the situation is very complex due to the existence of multiple different laws which differ from each other. The challenge here is to ascertain the validity of marriage in a manner that can be universally acceptable. 

When ascertaining Validity of marriage, Validity of marriage is divided into 2 categories i.e. Formal and Essential Validity of marriage. Formal validity deals with the nature and form of marriage and Essential validity of marriage deals with the capacity to marry.

Formal validity is basically the procedural requirement that has to be fulfilled for a marriage to be recognized in the eyes of the law. The general rule is the law of the cause of any issue relating to formal validity, which is governed by the law of the place of solemnization, i.e. the law of the place where marriage is celebrated, which is also called as the principle of Lex Loci Celebrationis.The case Apt v. Apt illustrates this principle, in this instance case, it dealt with marriage by proxy where one of the parties or individuals being united is not present, whether such a marriage is valid. In this case, a lady wanted to marry a person who was a soldier and who went to Argentina to fight the Second World War. The lady was from England, and she authorized ‘X’ to act as her representative in marriage; as such, marriage by proxy was valid in Argentina,; hence, when the issue came to court, the court considered the marriage by proxy as valid, applying the principle of Lex Loci Celebrationis. Let’s take another example: Party A is a Muslim from Pakistan, and Party B is from England; both of them got married in Pakistan, and now Party A married another person, so Party B cannot approach the courts on the grounds of Polygamy. As marriage is celebrated in Pakistan, and polygamous relationships are legal in Pakistan, hence Party A marrying another person is considered valid. Suppose, let’s take the above example, but the parties get married in England, as marriage was celebrated in England and England doesn’t recognize polygamy; hence, if Party A marries another person, he can be acquitted on the charges of polygamy.

The concept of Christian marriage was defined in the case of Hyde v. Hyde, where marriage is a voluntary union for life from one man and women to the exclusion of all others.

Requirements of English marriage are;

1. Union should be voluntary.

2. It should be a monogamous union.

3. It must not be for a limited period of time.

   
   

Among Hindus marriage is considered as a sacramental union, it is monogamous in nature, but among Muslims personal laws have permitted limited polygamy i.e. a Muslim can have up to 4 wives.

Section 494 of Indian Penal Code criminalizes Bigamy and is punishable for a tenure up to 7 years.

The essential validity of a marriage is the capacity of the parties to enter into a valid marriage. All factors such as age, consent, prohibited degree of relationship, and physical incapacity to marry come under this topic. Here, the principle of Lex Loci Domicile, i.e., the law of the place where parties are domiciled, is applied. Let us understand this principle with an example: A woman domiciled in England marries in Pakistan; applying this doctrine, the marriage would be polygamous, although they may live in England as husband and wife; this is because the law of the place where marriage is celebrated is applied.

In a lawsuit regarding the validity of marriage involving foreign elements the court should look into the material and formal validity.

1. UK Government, Polygamous Marriages and Immigration Rules, https://www.gov.uk/government/publications/polygamous-.

2. German Civil Code (Bürgerliches Gesetzbuch - BGB), https://www.gesetze-im-internet.de/englisch_bgb/.

3. France to Outlaw Polygamy, Free Republic (Mar. 29, 2004), http://www.freerepublic.com/focus/news/1108259/posts.

4. Paras Diwan and Peeyushi Diwan, Private International Law, 4th and updated edition.\

5. Cheshire & North, Private International law, 13th edition.

6. Castles & Walkers, Canadian conflict of law, 6th edition.

7. David McClean, the conflict of laws by Late J.H.C. Morris (2010)

8. Catherine Fairbarian, Briefing paper on polygamy, House of Common library, January 6th, 2016

9. Hague Marriage Convention of 1978