John Beaumont, Kt., C.J.
1. In this case the wife-petitioner is suing for a divorce, and the husband-respondent has taken the preliminary point that at the date of the marriage, which was April 24, 1923, the petitioner was already married, so that the marriage in suit was a nullity, and cannot be dissolved. I agreed to try as preliminary issue the question whether the first marriage of the petitioner was legally dissolved before the marriage in suit took place.
2. The relevant facts have been admitted for the purpose of the preliminary issue, and are as follows:
On December 4, 1906, the petitioner, who was a Scotch National, married one Gulam Ibrahim by civil marriage in Scotland according to the requirements of Scotch law. At the time of the marriage the husband was a Muhammadan domiciled in British India, and the wife was a Christian domiciled in Scotland. In the year 1912 the wife embraced the Muhammadan faith, both husband and wife being at that time domiciled in British India, and she remained in that faith until April 1923. On June 27, 1922, the husband Gulam Ibrahim pronounced talak, that is to say, he purported to divorce his wife by declaration of his intention to that effect; which is a form of divorce valid according to Muhammadan law. In February 1923, a few months before the marriage in suit took place, the petitioner obtained a declaration from the District Court, Secunderabad, to the effect that she was no longer married to Gulam Ibrahim. It has been argued by Mr. Carden Noad on behalf of the petitioner that this declaration operates as a judgment in rem, and concludes the question. But, in my opinion, having regard to the terms of Section 43 of the Specific Relief Act, the declaration does not operate in rem, and is not binding upon the respondent. I must, therefore, consider the question whether the petitioner was validly divorced from her first husband by talak without regard to this declaration.
3. Certain principles of law relevant to the determination of this question are, in my opinion, firmly established in the realm of private international law: (1) the forms necessary to constitute a valid marriage and the construction of the marriage contract depend on the lex loci contractus, that is, the law of the place where the marriage ceremony is performed; (2) on marriage the wife automatically acquires the domicile of her husband; (3) the status of spouses and their rights and obligations arising under the marriage contract are governed by the lex domicilli, that is, by the law of the country in which for the time being they are domiciled (see Harvey v. Farnie (1882) 8 App. Cas. 43 and Nachimson v. Nachimson  p. 217 (4) the rights and obligations of the parties relating to the dissolution of the marriage do not form part of the marriage contract, but arise out of, and are incidental to, such contract, and are governed by the lex domicilli (see Nachimson v. Nachim son).
4. It would appear, however, from the authorities that the English Courts (and I assume the Scotch Courts) apply these principles only to marriages which conform to the Christian view of marriage as being the lifelong union of one man to one woman to the exclusion of all others (see the above cases, Hyde v. Hyde and Woodmansee (1866) L.R. 1 P. & D. 130 Dicey's Conflict of Laws, 4th Edn., p. 286), and do not recognise any polygamous union as being within the institution of marriage. On the other hand, the law as administered in the Courts of British India and the Privy Council certainly recognises Hindu and Muhammadan marriages which are always in theory, and sometimes in practice, polygamous.
5. On behalf of the petitioner Mr. Garden Noad contends that the marriage having been duly solemnised, the claim of the husband to dissolve the marriage by talak must be determined by the lex domicilli, and that such law admits divorce by such a method. On the other hand, Mr. O'Gorman, for the respondent, contends that the marriage having been solemnized in Scotland, according to the law of Scotland, with a Scotch woman, must be recognised and treated as a Scotch marriage, and that such a marriage cannot be terminated by the mere will of the husband, and he relies on Rex v. Hammer smith Superintendent Registrar of Marriages : Mir-Anwaruddin, Ex parte 1 K.B. 634 a case which arose under English law. I have assumed for the purposes of my judgment that Scotch law is the same as English law upon the question in dispute. In that case Dr. Mir-Anwaruddin was a Muhammadan domiciled in British India, and he had entered into a civil marriage in England, according to the forms required by English law, with an English girl. Subsequently the wife deserted him, and he thereupon purported to divorce her by talak, and then applied to the Registrar of Marriages, Hammersmith, England, for a licence authorising him to marry another English woman. The Registrar refused to issue such licence, and thereupon Dr. Mir-Anwaruddin applied to the King's Bench Division of the High Court of Justice for a mandamus compelling the Registrar to issue a licence, and it was upon that application that the question as to the validity of the talak was argued. All that the Court actually decided was that a marriage contracted in England with an English woman could not be dissolved, so far as English law was concerned, by a mere declaration of the husband. With that proposition of English law I am not concerned, but Mr. O'Gorman contends that the decision goes further, and establishes that a marriage contracted in England with an English woman must be construed as an English marriage, that is to say, as the voluntary union between one man with one woman to the exclusion of all others, and that such a marriage cannot be terminated by talak in British India. It appears from the judgment of Lord Reading that Dr. Mir-Anwaruddin did not dispute the validity of his first marriage, and admitted that so long as the marriage subsisted he could not marry again in England according to English law, and the case was, I take it, argued on the basis of that admission. But there are undoubtedly some passages in the judgments, particularly those of Mr. Justice Darling (as he then was) and of Lord Justice Swinfen Eady which lend support to Mr. O'Gorman's contention. Mr. Justice Darling says (p. 647 ):
It seems to me unreasonable to hold that Ruby Hudd (the wife) intended to make such a contract as that for which Dr. Mir-Anwaruddin contends, and to acquire for herself she being a Christian, a status far below that of any Christian wife
6. And at p. 657 Lord Justice Swinfen Eady says this:
What the appellant has done is this: he has contracted in England with an English woman, according to the forms prescribed by law, an English marriage. In doing so the obvious Intention of both parties to the contract was to confer upon the lady whom he took to wife the status and position of a married woman. Such a position, the position of a wife, as known to the English law, is the voluntary union of one man with one woman to the exclusion of all others.
7. With great respect to those learned Judges, it seems to me that there is no justification for the inference which they seek to draw. Once it be established that a man and woman have entered into a valid marriage contract, that is, have contracted to become husband and wife, it is for the Courts of the country in which they elect to make their home, and not for the Courts of the country in which they may chance to have been married, to determine the status which attaches to the marriage, and the rights which flow therefrom. If the Courts of the domicile allow to the husband more than one wife, and the right to divorce any wife at his pleasure, and if the Courts of the country where the contract was made do not recognise as marriage any union but that of one man to one woman to the exclusion of all others, then the logical result must be that the contract has conferred upon the parties the status of marriage in their own country, but not in the country where the marriage took place: not that the parties have acquired the status of marriage and the rights incidental thereto under the law of the latter country, to which as married persons they have never been subject. To hold from the mere fact that a marriage has taken place in the country of the wife, and according to the forms required by the law of that country, that an inference arises that the parties intended that the marriage should be of the character recognised by the law of the wife's country, irrespective of the domicile of the husband, seems to me to amount to a substitution of the lex loci contractus for the lex domicilli as the law which is to regulate the status and rights of the parties in such a case.
8. It is, I think, a possible view that in the case of a marriage between a husband and wife to whose respective communities marriage does not denote the same thing, a case of ambiguity arises. The parties may intend marriage according to the law applicable to the husband, or marriage according to the law applicable to the wife, or the husband may mean one thing and the wife another, so that there is no consensus ad idem. Any such ambiguity, being latent, discoverable only when the religious views of the spouses on marriage are ascertained, extrinsic evidence as to the true intention of the parties would be admissible. In the present case the petitioner has given evidence before me to the effect that she intended the marriage to be governed by the law applicable to her husband, which she understood to be Muhammadan Law, and under which she realised that the husband could divorce her at will. If, therefore, the question depends upon evidence as to the actual intention of the parties, I must hold that the intention was that the marriage should be regulated by Muhammadan Law. But, in my opinion, no ambiguity arises, and such evidence is really irrelevant. In the absence of any express contract, the intention of the parties to a marriage must, in my view, be taken to be that their rights under the marriage contract are to be governed by the law of their domicile. The parties in this case being domiciled in British India, I have to ascertain what is the law of British India applicable to the case.
8. There is no matrimonial law in British India applicable to the inhabitants generally. The Courts apply different laws to the several religious communities. In the case of Hindus, marriage is regarded as a sacrament, and there is no right of divorce, although amongst low caste Hindus, divorce, usually of a most informal character, is recognised by custom. In the case of Muhammadans (apart from any question between different sects, which does not arise in this case ) marriage is a contract, and divorce is allowed at the will of the husband by talak., In the case of Christians, and also in the case of Parsis, the right to divorce is regulated by Acts of the legislature.
9. So long as the petitioner remained a Christian, the position was, in my view, not free from doubt. A Muhammadan husband may claim that by the law applicable to him he is entitled to divorce his wife by talak ; the wife, being a Christian, may affirm that, though by marriage she acquired the domicile of her husband, she did not acquire his religion, and that by the law of his domicile applicable to Christians, she is not liable to be divorced by talak. It is, however, not necessary for me in this case to determine what the position was whilst the wife remained a Christian, because at the time when the talak was given she had embraced the Muhammadan faith. As soon as she took that step, the law applicable to Christians ceased to be applicable to her, and she became subject to the law applicable to Muhammadans, and that law entitled the husband to divorce her by talak. Mr. O'Gorman has contended strenuously that the right to divorce by talak arises only in the case of a marriage between two Muhammadans celebrated in Muhammadan form. He has cited no authority for the proposition, though it is fair to say that no authority to the contrary has been cited. In my opinion the proposition is not maintainable. Marriage in the view of Muhammadan law is a pure contract, and no particular form is essential to the validity of a Muhammadan marriage. Certain formalities, such as the presence of witnesses, are imposed, but the absence of those formalities does not invalidate the marriage. In my opinion the spouses, being at the date of the talak of the Muhammadan faith and domiciled in British India, this Court is bound to recognise that the husband had the right to divorce his wife by talak.
10. That being so, I must answer the preliminary issue by declaring that the first marriage of the wife had been legally dissolved before the solemnization of the marriage to which the present suit relates.
11. It has been suggested in the course of the argument that an unfortunate result of this decision will be that a marriage held by this Court to have been dissolved will be regarded as still existing by the English Courts. That may possibly be so. It is always deplorable when a conflict between different systems of law results in two persons being regarded as husband and wife in one country, and as strangers in another. But so long as English law refuses to the law of the domicile the right to determine what manner of union is to be regarded as falling within the institution of marriage, such conflicts would seem to be inevitable.