Overview: LINKING LAW AND MATRIMONY

Profile of the Author: Bhawna Pawar, student of Dr. B. R. Ambedkar National Law University, Sonipat pursuing B.A. LL.B (Hons.) 2nd year having areas of interest in constitutional law, civil law and criminal law.

Marriage, being a personal matter, is governed by the personal law of the parties. In conflict of laws, a person's capacity to marry is governed by the law of domicile, which in the Indian context has reference to personal laws owing their allegiance to various religions, which differ from one another in many aspects. This has resulted in interpersonal conflict of laws, whenever there is interaction. The situation involved mainly conversions from one religion to another. Indeed the question of capacity to take a second wife, though in law is based on the above-mentioned conflicts principle, in reality had a negative effect on the Indian society, putting the women to manifold hardships. Sarla Mudgal [1] was directly concerned with the validity of the second marriage of a Hindu husband after conversion to Islam, which permits polygamy. The Supreme Court held the second marriage 'invalid' and 'would be void', 'in terms of section 494, IPC4 6. It is submitted that, in terms of conflict principles, the issue squarely fell within the realm of interpersonal conflict of laws. The apex court, however, pointed out the existence of inherent right to change one's religion and the marriage being governed by the personal laws[2].

The conflict of laws in the field of marriage has been taking place since time immemorial in India, like conflicts between Shia and Sunni sectarian laws in Muslim society. Though law and matrimony are two different fields but they are in one or other way interlinked with each. Prior to 1857, ecclesiastical courts enjoyed their authority related to marital issues in India. As the power of these ecclesiastical courts extends to all Christians, law-abiding issues did not arise. It could be enjoyed by the courts as long as the parties lived within their area of jurisdiction. This meant that living or the ethnicity of the parties was not a matter of concern for the church[3].

Niboyet v. Niboyet, AIR 1878

In this case, the marriage was solemnized in Gibraltar between a French man and an English woman. The husband lived for several years in England, but as an ambassador to France he retained his place of residence. The wife filed for divorce, alleging adultery in England, and desertion. The husband appeared under protest and prayed for his release. It was held that the Court had the power to grant divorce to a foreigner [4].

In Lafahmi Sanyal v S.K. Dhar[5], the Supreme Court applied the personal law (Canon Law) to uphold the validity of the marriage between two converts to Christianity, following the rule that husband's capacity renders the marriage valid in law. This rule, though the apex court did not identify it, is 'the intended matrimonial home doctrine' test concerning the capacity of the parties to the marriage. The court observed: 'The question of capacity to marry and impediments in the way of marriage would have to be resolved by referring to their personal law.'

Marital relationships are one of the things that can affect our society in its economic and social content in relation to its relationships and social existence, which were required under the constant control of the law. Marriage is one of the most important stages in one's life, and we all obey the law in its literal sense in terms of a set of laws that a country or society accepts as a control of the actions of its members and which can be enforced with sanctions, while marriage means a state of marriage.

Regarding capacity to marry, the court has followed the rule of personal law, i.e. the law of domicile. Despite the problematic, sensitive and intricate issues involved, the Supreme Court's trend in these cases evinces concern for society.

Conflict of laws relating to marriage is related to the status, events and events of marriage as different religions have different customs and traditions. In matters relating to marriage, maintaining equality between different social policies laws including: State and power, marital authenticity, religion, common law, culture, age of marriage, consent etc. is important and necessary.

The will of one of the parties was full of genuine and tangible fears that emerged as the cause of the conflict. The conflict between the two fields has also existed in other countries including India. Managing all cases such as, cases involving incidents, care of rights and duties, can be said to be a way of resolving conflict at the first level.

As divorce is also a concept that always seems to be against the rules. The authority to try for the causes of divorce and divorce admits that it is related to local law .The causes of divorce do not go away by nature. It is a matter in which the state in which it occurs, has a very important interest in the private sector, and that the state can liberate it without the consent of the parties. It would seem absurd to deny the authenticity of the concept of marriage and the concept of divorce and divorce on the basis of mere maintenance, keeping the main cause of the action is very necessary. Every married couple in the province, must comply with the current law, without reference to the law that existed at the time of the creation of the relationship and should be sent regularly to help prevent and end this conflict between the law and the marital aspect.

The law governing divorce, in choice of law situation generally, is the law of domicile. This coincides with the law of the forum, as the court of domicile alone has the jurisdiction to pronounce a divorce decree. The personal laws in India in matters of matrimonial jurisdiction vary. There have not been any choice-of-law situations before the Supreme Court. Nevertheless, the apex court in Narasimha Rao[6], while dealing with the issue concerning recognition of foreign divorce decrees in India, observed that the jurisdiction assumed by the foreign court as well as the “rounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married”.

The rapid development of English society in the eighteenth and ninth centuries made the recognition of divorce important. This came in the form of the Matrimonial Causes Act, which not only discriminated against marital infidelity, but also devolved power to national courts. The Supreme Court of Judges, 1925, explained the causes of marital infidelity, including marital infidelity, divorce, legal separation, and restitution of marital rights. These causes were introduced in India by the Hindu Marriage Act, 1955 for all citizens except Muslims. For Muslims, wives are allowed to seek a divorce on the grounds set out under the Islamic Divorce Act, 1939.

In India, the right to marry is believed to exist in the institution of marriage and not just to create a law. However, in cases where a foreign matter is involved, namely Private International Law, then for the purpose of resolving a conflict of law, the courts use the Principles of Comity or Courtesy and in some cases, the courts also use the Principle of reciprocity. To date, there is no direct and indirect law in India regarding NRI marriages and there is an urgent need for legal intervention in this matter as bringing justice to all in the legal system is the most satisfying way to bring Justice, rather than bring Justice to trial.

In England, views on the acceptance and deterioration of divorce were partially accepted. However, the Matrimonial Causes Act, 1973 does not accept any other grounds for divorce other than an irrevocable divorce. Circumstances in which such deterioration will appear are legally defined by Section 1 (2), and include matters such as the referral of adultery, divorce or separation which continues immediately before the trial[7].

CONCLUSION

Matrimony and law are directly or indirectly interlinked with each other. Matrimony is one of the important part of one’s life, whereas we all are abide by Law in its literal sense means the system of rules which a particular country or community recognizes as to regulate and control the actions of its members and which may be enforced by the imposition of penalties, fines or punishments, whereas matrimony means the state of being married. Matrimony has its own rules for maintaining the relationship and conducting it throughout and protecting rights of every member.

[1] Sarla Mudgal v Union of India AIR 1995 SC 153

[2] Lakshmi Jambholkar, “CONFLICT OF LAWS”, P 660

[3] Niboyet v. Niboyet, (1878) 4 P.D. 1

[4] Niboyet v. Niboyet, (1878) 4 P.D. 1

[5] Lafahmi Sanyal v S.K. Dhar AIR 1972 SC 2667

[6] Narasimha Rao v Venkatalakshmi, (1991) 3 SCC 451

[7] Matrimonial Causes Act, 1973, Section 1(2)

FREQUENTLY ASKED QUESTIONS:

Q 1: What are matrimonial laws?

Matrimony law is that branch of jurisprudence that studies the laws governing matrimony. Matrimonial law of India at the present-day is its diversity. There is no uniform single code of law applying to the marital relations of all the Indians alike irrespective of their religious affiliations. There is the uncodified Muslim Law governing the Muslims, the Hindu Marriage Act, 1955, applies to the Hindus and there are separate Acts applying to the Christians 3 and the Parsis. Apart from these communal pieces of legislation, there is the Special Marriage Act, 1954, a permissive piece of legislation of general application, which can be used by any one irrespective of religious beliefs. The Act provides a form of civil marriage.

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