Somnath Iyer, J.
(1) This second appeal concerns the succession to the properties of a certain Siddalingiah who died in the year 1954. His wife Siddavva who survived him died in the year 1956 and the defendant is their daughter.
(2) The source of this appeal is a suit brought by Channavva the plaintiff, claiming to be he second wife of Siddalingiah. That she was married in the year 1951 to Siddalingiah in the State of Bombay was her case, and, she claimed Siddalingiah's properties as his widow to the exclusion of the defendant. She sought a decree for possession of those properties from the defendant.
(3) The defendant did not in the courts below admit that the plaintiff was the wife of Siddalingiah, and pleaded that she was only his concubine. But, both the courts below pronounced that there was a marriage between the plaintiff and Siddalingiah. But while the Munsiff who thought that that marriage was invalid dismissed the suit, the District Judge to whom the plaintiff appealed, found that marriage to be a good marriage and gave the plaintiff the decree she wanted.
(4) The defendant appeals to this Court and her appellant which involves a question of some importance has been referred to us under the provisions of Section 6 of the Mysore High Court Act.
(5) It is not controverted that Siddalingiah was a permanent resident of the erstwhile State of Hyderabad and that when he went through a form of marriage with the plaintiff at Nilgond in the then State of Bombay, his first wife was living. The courts below have both found that there was the celebration of a marriage with all the necessary solemnity between Siddalingiah and the plaintiff in the year 1951, and that after her marriage, the plaintiff lived with her husband in the State of Hyderabad until he died. These findings were not discussed in this court.
(6) It should be observed that the plaintiff instituted her suit in the Court of the Munsiff of Yelberga which was a Hyderabad Court before the reorganisation of the States but became a Court of the new Mysore State thereafter. The property claimed by her was originally in the State of Hyderabad and is now in the State. When that marriage ceremony was performed, there was a law instituted the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, operating in the State of Bombay forbidding bigamous marriages among Hindus. This law will be referred to as the Bombay Act. Section 4 of that Act declared that notwithstanding any law, custom or usage to the contrary, a bigamous marriage was void if it was contracted in the State of Bombay after the Act came into force.
(7)That section reads:
Bigamour marriages to be void.--
'4. Notwithstanding any law, custom or usage to the contrary, a bigamous marriage shall be void,--
(a) if it is contracted in this Province after the coming into force of this Act,
(b) if it is contracted beyond the limits of this Province after the coming into force of the Act and either or both the contracting parties to such marriage are domiciled in this province.'
(8) What, therefore, induced the finding of the Munsiff that the marriage between Siddalingiah and the plaintiff though performed with required ceremony was void, was the celebration of that marriage in the State of Bombay which was prohibited by the aforesaid law. But the District Judge dissented from that view principally on the ground that section 4 of the Bombay Act did not invalidate a marriage between spouses one of whom was not domiciled in the State of Bombay. Siddalingiah, according to the District Judge, had no Bombay domicile but was a person with a Hyderabad domicile, and, since there was no Hyderabad law prohibiting polygamy, the marriage, it was said, was not void although the plaintiff was domiciled in the State of Bombay.
(9) Which of these two views should commend itself to us is the question, the answer to which must depend upon the provisions of section 4 of the Bombay Act, and their scope.
(10) That both the plaintiff and Siddalingiah are Hindus governed by the Mitakshara school of Hindu Law is not in dispute. That when there was a marriage between the plaintiff and Siddalingiah there was no law operating in the State of Hyderabad as in the State of Bombay prohibiting a polygamous marriage is also not in controversy. So, it follows that under the personal law of Siddalingiah by which his marriage was governed, he had the capacity to contract a polygamous marriage, which under the Hindu Law is polygamous. But the plaintiff who was a permanent resident of the State of Bombay was governed by the Bombay Act which prohibited a marriage between persons one of whom had a living spouse. It is in this situation that the challenge to the validity of the marriage between them present itself for discussion.
(11) It would be convenient to first discuss the correctness of the postulate that the Bombay Act did not operate on Siddalingiah who, it was asserted, had a Hyderabad domicile. The first submission to be considered in that context is the proposition that after the commencement of the Constitution there was a fusion of the then existing multitude of domiciles and so it became impossible for a citizen of India to have any other domicile than the Indian domicile. It was said that Art. 5 of the Constitution which recognizes only the domicile in the territories of India which creates citizenship excludes the concept of a domicile in the various States comprising the Union Territory. Article 5 of the Constitution reads:
Citizenship at the commencement of the Constitution--
'5. At the commencement of the Constitution, every person who has his domicile in the territory of India and--
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India.
(12) This article of course makes it clear that after the emergence of the Union under the Constitution every person who has a domicile in the territory of India and who falls within one or more of the three clauses to that article acquires the citizenship of India.
(13) It is clear that this article mainly concerns itself with citizenship for the acquisition of which a domicile in the territory of India is by itself insufficient. But the question is whether the allusion in Art. 5 to a 'domicile' the territory of India' obliterates all distinctions between a citizen of India who is a permanent resident in one State and another who is a permanent resident of another. While it is true that a citizen of India has an Indian domicile, it should not be forgotten that the Union of India is a union of the States, and that, under the Constitution the legislature of a State has the competence to make laws for the whole or any part of that State. Those are the laws which could be made under Art. 245 of the Constitution which declares the extent of laws made by Parliament and those of the legislatures of States. It reads:
Extent of laws made by Parliament and by the Legislatures of States.
'245. (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra--territorial operation.'
(14) This article makes it clear that a law made by the Legislature of the State operates only within that part of the State for which it is made, and, that being so, if a law by one State conflicts with a law operating in another, there may be many occasions on which that conflict has to be solved by the application of well known principles and rules.
That the Constitution recognises only one domicile and that that domicile is the domicile within the 'territory of India' can be no solution an Indian domicile for every citizen of the Union, a cash of State laws as in the present case arises. An inevitable distinction must, therefore, be made between a resident of one State and the resident of another for this limited purpose although, both of them have an Indian domicile, since the question whether in a given case a matter relating for instance to minority, succession or marriage, is governed by a law made by one State or by that made by another does not depend upon the fact that both of them are persons of Indian domicile, but, upon the more relevant factor that each has his legal home or domicile' in his own State.
(15) The true position, therefore, is that every person belonging to a State forming part of the Union under the Constitution has a status distinct from although subsidiary to that flowing form his Indian domicile or his political status as an Indian citizen, that status having relevance only for certain purposes. For that purpose, it may be possible to say that while a person has the primary Indian domicile which contributes to the acquisition of citizenship he may have secondary domicile which is the domicile of the State to which he belongs, although the importance of such secondary domicile has relevance only in some spheres. The recognition of such domicile may become imperative where the higher Indian domicile does not and cannot regulate a matter governed by a State law.
(16) That that is the true position was what was elucidated by the Supreme Court in D.P. Joshi v. State of Madhya Bharat, : 1SCR1215 . What was explained in that case was that the concept of an Indian domicile does not do away with the concept of subsidiary domiciles such as the domicile of the States and that there may be a domicile of a State for certain purposes notwithstanding there being the larger and the more comprehensive Indian domicile. In that context, Venkatarama Iyyar J. said this:
'A more serious question is that as the law known only of domicile of a country as a whole and not of any particular place therein, whether there can be such a thing as Madhya Bharat domicile apart from Indian domicile. To answer this question, we must examine what the word 'domicile' in law imports. When we speak of a person as having a domicile of a particular country, we mean that in certain matters such as succession, minority and marriage he is governed by the law of that country.
'Domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. But it might well happen that laws relating to succession and marriages might not be the same all over the country, and that different areas in the State might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.
'The position is thus stated by Dicey at page 83:
The area contemplated throughout the Rules relating to domicile is a 'country' or 'territory subject to one system of law'. The reason for this is that the object of this treatise, in so far as it is concerned with domicile, is to show how far a person's rights are affected by his having his legal home or domicile within a territory governed by one system of law, i.e., within a given country, rather than within another.
If, indeed, it happened that one part of a country, governed generally by one system of law, was in many respects subject to special rules of law, then it would be essential to determine whether D was domiciled within such particular part, e.g., California in the United State: but in this case, such part would be 'pro tanto' a separate country, in the sense in which that term is employed in these 'Rules'.' (P. 338).
* * * * *
'Under the Constitution, the power to legislate on succession, marriage and minority has been conferred under Entry 5 in the Concurrent List on both the Union and the State Legislatures, and it is therefore quite conceivable that until the Centre intervenes and enacts a uniform Code for the whole of India, each State might have its own laws on those subjects, and thus there could be different domiciles for different States. We do not, therefore, see any force in the contention that there cannot be a domicile of Madhya Bharat under the Constitution.' (P. 339).
(17) This discussion is relevant for the selection of the principles by which a conflict between one State law and another can be resolved. If it is clear that such State within the Union is a separate country for certain purposes and has a law of its own which its legislature can make for the whole or a part of that State, and, if there is a conflict between those two laws on matters like minority, succession or marriage the principles by the application of which that conflict may be resolved are the principles of private international law. There can be no other basis for the determination of a question which may arise in that way.
(18) In this case, the plaintiff was a permanent resident of the State of Bombay and was therefore governed by the Bombay Act which forbade a bigamous marriage in the State of Bombay, Siddalingiah to whom she was married and who was admittedly a permanent resident of the Hyderabad State and whose domicile for the determination of his capacity to contract a polygamous marriage was the Hyderabad domicile, did not suffer from this disability since the Mitakshara School of Hindu Law by which he was governed permitted him to contract a polygamous marriage.
The marriage with which we are concerned was thus a marriage between the plaintiff who could not marry a person who had already an un divorced wife who was still living, and, Siddalingiah whose personal law bestowed on him the capacity to have a plurality of wives. Since Siddalingiah could marry more than one wife, if he had taken a second wife of a State where there was no law forbidding a polygamous marriage, that marriage would have been a good marriage. So, if the marriage between him and the plaintiff had been celebrated inside his own State which was the State of Hyderabad and the plaintiff was not domiciled in the State of Bombay, no one could have denounced that marriage as an invalid marriage. But what complicates as an invalid marriage. But what complicates the matter is the fact that Siddalingiah proceeded to the State of Bombay where the plaintiff resided and contracted the marriage within that State.
The submission for the defendant rested on section 4 which declares void every 'bigamous' marriage contracted within the State of Bombay after the Act came into force, and the argument advanced is that the law on marriage is the law operating in the place of its celebration, whatever may be the personal law of the spouses. The other submission was that the personal law of Siddalingiah had no relevance to his marriage with the plaintiff who had her domicile in the State of Bombay and that so long as the personal law of one of the spouses forbade a polygamous marriage, a polygamous marriage was impossible.
(19) Section 4 of the Bombay Act which declares every bigamous marriage within the State of Bombay void, takes within its sweep bigamous marriages celebrated within the State. But that section was enacted by the Legislature of the State of Bombay which could make a law only for the whole or part of its own State, and, if that is the limited extent of the law by it for its State, whether it has the consequence of invalidating every marriage celebrated within the State of Bombay is disregard of the personal law of the spouse which may be at variance with the provisions of the Bombay Act is the question, of importance.
The conflict in the case before us which stands accentuated by the State of Bombay being the place of celebration is between the Bombay law which prohibited polygamy and the personal law of Siddalingiah which permitted it. If it is impossible to eliminate altogether the law of Siddalingiah's domicile and if the matter depended entirely on the place of celebration. Section 4 of the Bombay Act would constitute a complete defendant to the plaintiff's suit.
(20) So it was for the appellant that the impugned marriage celebrated in the State of Bombay, depended entirely upon the law of the place of celebration and that since that law was the Bombay Act which prohibited a plurality of wives or a marriage with a man during the continuance of his first marriage, the marriage was void.
(21) If this is a correct statement of the law and an adjudication on the validity of the marriage could rest exclusively on the provisions of the Bombay Act, there would be little difficulty in pronouncing it as void, since, section 4 of that Act declares a marriage between two persons one of whom has a living spouse to be void.
(22)That the validity of a marriage was completely governed by the law of the place of celebration, or the lex loci celebrations, was once the dictum of the Courts in England. But a study of judicial precedents in that country reveals striking contrarieties between the enunciations made from time to time. An analysis of those pronouncements manifests at least three different views which have been suggested at various stages. The law of the place of celebration the law of the country in which each of the parties was domiciled at the time of the marriage and the law of the husband's domicile which should be presumed to be the intended matrimonial home are, it is suggested, the three different legal systems one or the other of which decides the validity of the marriage.
(23) Until the decision of the House of Lords in Brook v. Brook (1861) 9 HLC 193, earlier cases proceeded on the unreserved assumption that the answer to the question whether a marriage was or was not valid should be found in the law of the pace of celebration. The general rule that a foreign marriage according to the law of the country where it is celebrated is good anywhere and that one which was not according to that law, was not, was the rule to which a successful appeal was made in those decisions.
(24) In Simonin v. Mallac, (1860) 2 SW and TR 67: 164 ER 917, it was explained that a marriage good by the law of the country where solemnized should be held good in all other countries and that the converse was equally strongly maintained as a general rule by nearly all writers on International Law although it was not overlooked that those writers recognised also marriages involving polygamy and incest positively prohibited by a public law of a country for reasons of policy, as falling outside the rule.
(25) Support for this enunciation was derived from Scrimshire v. Scrimshire, (1752) 2 Hag Con.395,which was a case in which the parties were British subjects domiciled in England. The respondent pleaded that the marriage celebrated in France was by the laws of France null and void.
Sir E. Simpson before whom that plea succeeded observed:
'The only question before me is, whether this is a good or bad marriage by the laws of England, and I am inclined to think that it is not good. On this point I apprehend that it is the law of this country to take notice of the laws of France, or of any foreign country, in determining upon marriages of this kind. The question being in substance this whether, by the law of the country, marriage contracts are not to be deemed good or bad according to the laws of the country in which they are formed, and whether they are not to be construed by that law.'
After a further discussion of the question, he summed up:
'These authority fully shew that all contracts arbitration to be considered according to the laws of the country where they are made, and the practice of civilized countries has been conformable to this doctrined, and by the common consent of nations has been so received.'
(26) For the first time of distinction between forms and essential which are two distinct matters to be considered when pronouncing upon the validity of a marriage was thrown into prominence in (1861) 9 HLC 193. The Lord Chancellor emphasised the importance of the distinction between the forms of entering into the contract of marriage which are to be regulated by the lex loci contract's or the law of the country in which it is celebrated and the essentials of the contract which depended upon the lex domicillii, 'the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.'
(27) The testator in that case married his first wife in England, and, after her death, her sister in Denmark. That marriage was valid by Danish law but void for consanguinity by English law. The contention of the Attorney General that the son by the second wife was a bastard and that his share of the testator's property passed to the Crown succeeded on the principle that if a contract of marriage is such in essentials as to be contrary to the law of domicile and it is declared void by that law, it is to be regarded as void in the country of domicile though not contrary to the law of the country in which it was celebrated. The Lord Chancellor observed:
'That the Parliament of England in framing the prohibited decrees within which marriages were forbidden, believed and intimated the opinion, that all such marriages were incestuous and contrary to God's word I cannot doubt.'
(28)The rule stated in (1861) 9 HLC 193, that the rule that the law of the place of celebration does not always decide the validity of a marriage and that, as to essentials, as distinguished from forms, the law of domicile is what operates, is what now holds that field.
(29) In Berthiaume v. Dastous, 1930 Act79, Viscount Dunedin reiterated the rule in the following way:
'If there is one question better settled than any other in international law, it is that as regards 'marriage--putting aside the question of capacity--locus regit actum.'
The maxim 'locus regit actum' (the place governs the act) means that the validity of an act depends on the law of the place where it is done. The noble Lord thus made it clear that capacity did not depend upon the law of the place where the marriage was celebrated. This rule which has for its source the pronouncement in (1861) 9 HLC 193 has received recognition from writers on Private International Law to two of whom it would be sufficient to refer.
(29A) Rule 31 as formulated by Dicey in his book on Conflict of Laws (Seventh edition) reads:
'Rule 31--Subject to the Exceptions hereinafter mentioned, a marriage is valid as regards capacity when each of the parties, 'has, according to the law of his or her respective domicile, the capacity to marry the other.'
(30) Dr. Cheshire who stated this rule in a slightly different form did not doubt in his book on Private International Law that an essential matter such as the capacity to marry is not governed by the law of the place of celebration but was manifestly governed by the law of the domicile of the parties although in his opinion the dual domicile doctrine insisting on capacity in both the parties accordingly to their own law of domicile, had relevance only to a purely domestic case not involving a 'foreign element'. In his view.
'The doctrine would be comparatively innocuous if the expression 'the law of the domicile of each party' were construed to mean, not the rule that would be applied in that domicile 'to a purely domestic case, but the rule applicable to the particular marriage in question, i.e. to one containing a foreign element.' (Page 305 fifth edition).
(31) Now, there is no question that as to the form of the impugned marriage, there was no transgression of the law of the place of celebration. The Bombay Act to which an appeal was made for the appellant did not prescribe any special form of marriage since its aim was no more than to invalidate a polygamous marriage. But the question before us touches and essential matter and not a mere form and the Bombay Act in the sense that it is the law of the place of celebration, cannot assist the challenge to the legality of the marriage.
(32) But it was maintained that even if what governs the validity of a marriage is the law of the domicile of the parties as explained in (1861) 9 HLC 193 and by the books on international Law, the impugned marriage was not a good marriage since this was not a case in which each of the two parties to the marriage had the capacity for a polygamous marriage.
It was said that even if Siddalingiah who had a Hyderabad domicile and who was governed by the Mitakshara School of Hindu Law in force in that State which did not prohibit polygamy, possessed that capacity, the plaintiff whose law of domicile was the Bombay Act which forbade a polygamous marriage could not marry Siddalingiah whose first wife was then not marry Siddalingiah whose first wife was then living. That it was not enough for Siddalingiah who was only one of the parties to the marriage to possess the capacity for a polygamous marriage if the plaintiff who was the other party marriage if the plaintiff who was the other party to the marriage did not have it, and, that the requirement of Rule 31 in Dicey's Conflict of Laws was the existence of capacity in 'each of the parties,' was the assertion made before us.
(33) It is however clear that the postulate that the capacity of each of spouses according to the law of his or her domicile is a condition precedent to the validity of the marriage, does not take notice of the law of the place of celebration, which may not be the place of domicile of either of the spouses. The question is whether the impugned polygamous marriage between the plaintiff and Siddalingiah can be denounced as an invalid marriage on the ground that the capacity for that marriage was inexistent in the plaintiff although Siddalingiah's personal law which was the law of his domicile bestowed on him that capacity.
(34) The insistence on the capacity in each of the parties to the marriage to marry the other according to his or her respective law of domicile which finds recognition in some of the English cases, rests on the principle that a marriage is a contractual relationship. So it was explained in Mette v. Mette, (1859)1 SW & TR 416: 164 ER 792; that there could be no valid marriage 'unless each was competent to contract with the other' and that the question rested upon the effect of domicile and naturalisation.
(35) In Sottomayor v. De Barros, (1877) 3 P.D. 1, the Court of Appeal observed:
'But it is a well recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of domicile. It is, however, urged that this does not apply to the contract of marriage, and that a marriage valid according to the law of the country where it is solemnised is valid everywhere. This, in our opinion, is not a correct statement of the law. The law of a country statement of the law. The law of a country where a marriage is solemnised must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged to have been constituted; but as in other contracts, so in that of marriage, personal capacity must depend on the law of domicile....................'
(36) That was a case in which the petitioner and the respondent who were first cousins came to reside in England in 1858. In 1866, they went through a form of marriage before a registrar's office in London. In 1873, they returned in Portugal and continued to reside there. By the law of Portugal, a marriage of Portuguese subject between first cousins without dispensation wheresoever contracted was invalid.
(37) In that situation, the petitioner applied to the Court in England for a declaration that her marriage with the respondent was null and void. In Sottomayor v. Defence Barros, (1877) 2 PD 81, Sir R. Phillimore who heard the petition declined to make the declaration observing the although the decided cases established the doctrine that the Court of domicile recognises certain incapacities affixed by the law of domicile and could declare invalid, a marriage between the parties belonging to that domicile in a foreign state in which such marriage is lawful, they did not establish the converse view that the Court of the place of the contract of marriage is bound to recognise the incapacities affixed by the law of the domicile on the parties to the contract.
(38) The wife's appeal to the Court of Appeal was allowed in (1877) 3 PD 1. Cotton L.J. in the course of his judgment said this:
'It is proved that the Courts of Portugal, where the petitioner and respondent are domiciled and resident, would hold the marriage void, as solemnised between parties incapable of marrying, and incestuous. How can the Courts of this country hold the contrary, and if appealed to, say the marriage is valid?'
(39) But there was a further consideration of this matter when the case was remitted to the Divorce Division when it appeared that the husband's domicile at the date of the marriage was not Portuguese but English. In Sottomayer v. De Barros. (1879) 5 PD 94, Sir James Hannen P. pronounced the marriage valid. The pronouncement in favour of the marriage rested on the husband's domicile being English, which the declaration to the contrary made by the Court of Appeal was founded on the assumption that both the husband and the wife had a Portuguese domicile.
What persuaded the view of Sir James Hannen P. was the observation extracted below made by the Court of Appeal that its decision was restricted to the case before it where the law of domicile of both the spouses prohibited the marriage:
'Our opinion on this appeal is confined to the case where both the contracting parties are, at the time of their marriage, domiciled in a country the laws of which prohibit their marriage.'
(40) But, when it turned out during the further investigations that the husband had and English domicile which did not prohibit the marriage. Sir James Hannen P. pronounced the marriage valid. That pronouncement weakened the decision in, (1859) 1 SW and TR 416: 164 ER 792, in which the husband was a domicile Englishman who married his deceased wife's sister who was domiciled in Frankfurt. The marriage was celebrated in Frankfurt and while by the law of Frankfurt it was a valid marriage, it was void for consanguinity by the English law. Sir Cresswell Cresswell declared the marriage void on the ground that 'there could be no valid contract unless each was competent to contract with the other.'
(41) It is clear that the reasoning of Sir James Hannen P. in the third Sottomayer's case, (1879) 5 PD 94, cannot be reconciled with that of Sir Cresswell Cresswell in, (1859) 1 Sw and TR 416: 164 ER 792. In the third Sottomayer's case, (1879) 5 PD 94, the President of the Court did not consider the incapacity of the wife impressed by the law of her own domicile as a relevant factor which could have the effect of invalidating marriage which according to the law of the husband's domicile was a good marriage.
(42) In regarded: Paine, 1910 Ch 46 the husband who was a domiciled German married his first wife's sister at Frankfurt. That marriage was valid by German law but was void by the English law. Bennett J. was of the view that the marriage was invalid since the English law did not bestow upon the lady the capacity to contract. The dictum which influenced that view was that stated by Sir Cresswell Cresswell in (1859) 1 Sw and TR 416: 164 ER 792, that there could be no valid contract unless each was competent to contract with the other.
Sustenance for this view was also derived from the rule formulated by Diccy in his book on Conflict of Laws and the statement of the law found in Westlake's Private International Law and Halsbury's Laws of English (second edition volume VI, page 286). Bennett J. in his brief judgment did not notice the dissonance between the reasoning in Mette's case. (1859) 1 SW and TR 416: 164 ER 792, and that employed by Sir James Hannen P. in the third Sottomayer's case, (1879) 5 PD 94.
(43)The discussion so far made yields the following tow rules:
(a) Where the parties at the time of their marriage are domiciled in a country the laws of which prohibit their marriage, the marriage is void whether they are domiciled in the same country or in different countries.
(b) Where the laws of the country in which they are domiciled bestow on both the parties capacity for the marriage, the marriage is a good marriage.
(44) But the difficulty presented is by a case in which the law of the country in which one party is domiciled bestows the capacity and the law of the other does not. In such a case, the pronouncement should be in favour of the validity of the marriage if the law of the husband's domicile bestows capacity on the husband for the marriage as Sir James Hannen P. did in the third Sottomayer's case. (1879) 5 PD 94 but adverse to its validity according to the decision in Mette's case. (1859) 1 SW and TR 416: 164 ER 792, and the case of in 1940 Act 46. The marriage in the third Sottomayer's case, (1879) 5 PD 94, was, it is true, celebrated in England which was also the country of the husband's domicile, but the decision did not it appears respondent on that factor which had no relevance.
(45) The doctrine against incapacity in either of the two parties to the marriage is influenced by the theory that a marriage is a contract and so both parties to it must have the capacity to marry one another. I doubt even if the insistence on capacity in both the parties to the marriage rests upon a sound principle of private international law, whether such insistence is possible in the case of a marriage between Hindus which is an institution not sharing all its attributes with a marriage under other laws or in other countries. A marriage among Hindus which is a holy union for the performance of religious duties was described by Sir Gooroodass Banerjee in the Hindu Law of Marriage and Stridhana (Lahore Law Lectures) thus:
Marriage in Hindu Law a sacrament.
'The important of the institution of marriage is too well recognised to require any comment. It is the source of every domestic comfort from infancy to old age; it is necessary for the preservation and the well being of our species; it awakes and develops the best feelings of our nature; it is the source of important legal rights and obligations; and, in its higher forms, it has tended to raise the weaker half of the human race from a stage of humiliating servitude. To the Hindu, the importance of marriage is heightened by the sanctions of religion. 'By no people', says Sir T. Strange. 'is greater importance attached to marriage than by the Hindus.' In Hindu Law it is regarded as one of the ten sanskars, or sacraments, necessary for regeneration of men of the twice-born classes, and the only sacrament for women and Sudras. It being a settled doctrine of the Hindu religion that one must have a son to save him from a place of torment called 'put', marriage, as the primary means to that end, becomes a religious necessity.' (Page 31).
(46) Opinions have differed on the question whether a Hindu marriage is only a sacrament and not a contract. Sir Gooroodass Banerjee explained it as both a sacrament and a contract (page 3) while the decided cases reveal divergence of authority, some taking the view that it is a sacrament and not a contract and some that it is both. But if the sacramental aspect of a Hindu marriage is its principal feature and unlike the husband, the wife could not marry again during his lifetime, a rule which emanates from the concept that a marriage is essentially a contract, when applied to a Hindu marriage, may produce results of doubtful accuracy.
(47) Now, the Hindu Law by which Siddalingiah was governed did not prohibit a polygamous marriage although the ancient texts required a just cause for a second marriage. He therefore possessed the capacity to marry the plaintiff in whom there was no incapacity to marry a person who had another living wife until the Bombay Act came into force declaring such marriage void and in effect prohibited it.
Assuming that the Bombay Act when it came into force divested the plaintiff of that capacity to marry a person who had his first wife living and, in consequence, there was incapacity in the plaintiff to marry Siddalingiah and, on that question, I do not express any opinion in this case the question is whether the plaintiff who married Siddalingiah in whom there was no incapacity, with the intention of following him to the place of his domicile, where the spouses desired to establish their matrimonial home--and of the existence of such intention which is fully established by their subsequent conduct there can scarcely be any doubt--did not there by acquire the status of a wife by reason of her own incapacity.
(48) If the basis for the requirement of capacity in both the parties is the contractual character of the marriage and that basis is no safe foundation in the case of a marriage between Hindus, the incapacity, of the plaintiff if any should not in my opinion, affect the validity of the marriage.
(49) Dr. Cheshire alluding obviously to the rule formulated by Dicey prescribing capacity in each of the parties to the marriage, doubted the correctness of that rule as one of universal application. He did not doubt about its applicability to a 'domestic' case as he calls it, between two spouses of the same domicile, but did not concede its operation on a case involving a 'foreign element'. Dr. Cheshire did not restrict his theory to a marriage like a Hindu marriage with its own peculiar attributes involving the performance of religious duties. He was discussing the applicability of the rule to a case where each of the parties to the marriage had his or her own domicile, the law of one of which bestowed capacity and the other did not, and deduced what he termed as the law of the intended matrimonial home which he enunciated thus:
'It is submitted that the correct doctrine is that which submits the question of capacity to what may
briefly be termed the law of the intended matrimonial home. More fully stated, the doctrine is this. The basic presumption is that capacity to marry is governed by the law of the husband's domicile at the time of the marriage, for normally it is in the country of that domicile that the parties intend to establish their permanent home. This presumption, however, is rebutted if it is found beyond reasonable doubt that the parties intended to establish their home in a certain country and that they did in fact establish it there. Rival view based on matrimonial home.
At first sight, it may seem paradoxical that the governing law should depend upon a subsequent
event the place where the conjugal home is set up. It must be stressed, however, that the question whether a marriage is void for incapacity arises, after, generally long after, its solemnization, so that it will be known whether the pre-marriage intention of the parties will regard to their future domicil has in fact been fulfilled.' (Dr. Cheshire on Private International Law Page 307, 5th edition). Lex loci celebrations cannot be disregarded.
(50) This statement of the law is more than opposite to a Hindu wife whose place is the home of her husband by whom, as pointed out by Mukerjea J., as he then was, in Ratneshwari Nandan Singh v. Bhagwati Saran Singh, AIR 1950 FC 142, at p. 178, the acceptance of the bride is a necessary and indispensable part of a Hindu marriage ceremony even considering the Hindu marriage to be entirely a sacrament.
(51) So, in the case of a marriage between Hindus the basic presumption which according to Dr. Cheshire is that it is the country of the husband's domicile at the time of the marriage that the parties intended to establish their permanent home, has the strongest foundation,. The structure of that foundation is best explained by Sir Goroodass Banerjee thus:
'Marriage according to the Vedas is a union of flesh with flesh and bone with bone. Accordingly Brihaspati says: 'In scripture and in the Code of law, as well as in population practice a wife is declared sharing the fruit of pure and impure acts.' (Page 150).
(52) The law of the intended matrimonial home stated by Dr. Cheshire has its origin in one of the earlier English cases. In Warrender v. Warrender (1835) 2 Clause and Fin 488: 6 ER 1239. Sir George Warrender, born and domiciled in Scotland married an English woman in England according to the rites and ceremonies of the Church of England. He did not charges his domicile but intended that his matrimonial residence should be in Scotland. After the husband and wife lived together for a short time in Scotland, they separated. Sir George continuing his domicile in Scotland instituted a suit for dissolution of the marriage on the grounds of adultery.
This suit was resisted on the ground that the Scotch Court had no jurisdiction to dissolve a marriage celebrated in England according to whose laws the marriage was indissoluble. The unanimous opinion of the House of Lords was that as Sir George Warrender at the time of his marriage was a domiciled Scotchman and Scotland was to be the residence of the marriage couple, although the ceremonials of entering into the contract of marriage were restricted by the law of England where the marriage was celebrated, the essentials of the contract was regulated by the law of Scotland in which the husband was domiciled. The Court of Session in Scotland it was held, had therefore, the authority to dissolve the marriage.
(53)The elucidation that the essentials of the contract were to be regulated by the law of Scotland in which the husband was domicile is an elucidation of considerable importance since it was made in a case where the wife has an English domicile. The capacity for marriage being one concerning an essential matter is therefore, according to this statement of the principle, to be regulated by the law of the husband's domicile. That is precisely Dr. Cheshire's law of the intended matrimonial home.
(54) An affirmation of this principle is again to be found in (1861) 9 H.L.C. 193. The husband in that case married the sister of his deceased wife in Denmark. Both of them were domiciled British subjects and their marriage was valid by the laws of Denmark but void according to the laws of England. The Lord Chancellor said that the question to be considered was whether the marriage between two British subjects whose domicile was in England and who contemplated England as the place of their matrimonial residence was valid in England though permitted by the law of Denmark.
The Lord Chancellor proceeded to observe:
'The doctrine being established that the incidents of the contract of marriage celebrated in a foreign country are to be determined according to the law of the country in which the parties are domiciled and mean to reside, the consequence seems to follow that by this law must its validity or invalidity be determined.' (Page 212).
(55) In Ogden v. Ogden, 1908 P. 46, Sir Gorell Barnes P, after referring to the second Sottomayor's case (1877) 2 P.D. 81 and to what the Court of Appeal stated therein, made certain observations which reinforce the view resting on the law of the intended matrimonial home.
He said this:
'............ and it may, perhaps, not be unreasonable for one country to refuse to recognise a marriage contracted in it between two persons by the laws of whose domicil a marriage between them is illegal, and yet it may be quite proper and reasonable for a country, in which a marriage takes place between persons domiciled in another country, to recognise it as a valid marriage when it would be legal in such other country if contracted after compliance with all formalities required in such other country, and, further, to protect its citizens in all cases of marriage where one of the contracting, parties is domiciled in the country first referred to that is to say, where the marriage takes place and the other is domiciled in a foreign country, and there is a conflict between the laws of the two countries as o the validity of the marriage.' (p. 74).
(56) If this principle is sound, in the case before us in which the Court in which the suit was instituted was the Court exercising jurisdiction in the area of the husband's domicile, the plaintiff could, it seems, appeal to the protection to which Sir Gorell Barnes, P., refers.
(57) There is more modern recognition of the law of the intended matrimonial home. In Defence Reneville v. Defence Reneville, 1948 P. 100, the marriage was celebrated in Paris between a domiciled English woman and a domiciled Frenchman who was the respondent. They lived together at various places in France and French possessions. After some years, the wife left her husband and returned to England and presented a petition for nullity on the ground of incapacity or wilful refusal of the respondent. The Court of Appeal came to the conclusion that the law applicable to the marriage was French law being that of the 'matrimonial domicile.'
In the course of his judgment, Lord Greene, M.R. observed:
'In my opinion, the question whether the marriage is void or merely voidable is for French law to answer. My reasons are as follows: The validity of a marriage so far as regards the observance of formalities is a matter for the lex loci celebrations. But this is not a case of forms. It is a case of essential validity. What law is that to be decided? In my opinion by the law of French, either because that is the law of the husband's domicile at the date of the marriage or (preferably, in my view) because at that date it was the law of the matrimonial domicile in reference to which the parties may have been supposed to enter into the bonds of marriage. In (1861) 9 HLC 193 a case in which the marriage in Denmark (by the law of which country, assuming it applied, it was valid) of two persons domiciled in England was held to be void on the ground that although the lex loci governed the forms of marriage its essential validity depended on the lex domicile of the parties. Lord Campbell L.C. said this: 'But while the forms of entering into the contract of marriage are to be regulated by the lex loci contract's, the law of the country in which it is celebrated, the essentials of the contract depend upon the lex domicile, the law of the country in which the parties are domiciled at the time of the marriage, and in which the matrimonial residence is contemplated.' In the case of a void marriage, the matrimonial domicile contemplated will clearly be the same as that conveyable marriage, since the parties presumably intend to live together. In the present case, the matrimonial domicile was clearly French, and it is, in my opinion, to French law that the question whether the marriage was void or violable on the grounds alleged must be referred.' (Page 114).
(58) That the case before us in which the marriage was celebrated in the State of Bombay does not fall outside the principle propounded by the Master of Rolls in De Reneville's case, 1948 P. 100, is what emerges from the fact that the plaintiff and Siddalingiah intended to live and did not live together in the husband's home in the Hyderabad State, which was the country of their matrimonial domicile.
(59) Again, in Ponticelli v. Ponticelli, (1958) 2 WLR 439, the marriage was a marriage by proxy between a husband of an Italian domicile but resident in England and a girl who was then resident and domiciled in Itlay. The marriage was celebrated in accordance with the Italian law and the country of the intended matrimonial home was England. The husband presented a petition for nullity of marriage on the ground that the wife had wifely refused to consummate it. Sachs J. pronounced in favour of validity proceeded to consider what the law was by the application of which the plea of nullity could be decided and had no hesitation in concluding that the law was not the lex loci celebrations but the English law which was the lex domicile and also the law of the intended matrimonial home.
It is true that the case before Sachs J. presented the question in a form slightly different from that in which it arises in the case before us since the ground on which the petition was presented for nullity was wilful refusal on the part of the wife to consummate the marriage. Although it may be said that a post-nuptial fact was the foundation of the application, it is manifest that the decision did not rest on any such ground. Sachs J. was clearly of the view that the principle of De Reneville's case, 1948 P.100, that the validity of a marriage depends upon the law of the husband's domicile at the date of the marriage which was the law of the matrimonial domicile had the suffrage of reason. He said that it was a matter of some importance that the initial validity of a marriage should, in relation to all matters except form and ceremony (to which a uniform general rule already applies), be consistently decided according to the law of one country alone, a point of view which, be pointed out, was supported by the judgment of Bucknill L.J., in De Reneville's case, 1948 P. 100, and that consistency could not be attained if any other test was accepted.
Discussing the submission made before him that there was a third alternative as to the law to be applied in a case like the one before him, namely, the law of the intended matrimonial domicile, Sachs J. observed that no difference would be involved since both the spouses intended to live and settle in England after the marriage.
(60) Those observations of Bucknill L.J., who concurred in the opinion of the Master of Rolls in Defence Reneville's case, 1948 P.100, read:
'True, the wife's domicile before marriage was English, but on the other hand, her husband's domicile was French; and, the two parties to the marriage having different domiciles, it seems to me that the law of France should prevail. To hold that the law of the country where each spouse is domiciled before marriage must decide as to the validity of the marriage in this case might led to the deplorable result, if the laws happened to differ, that the marriage in this case might lead to the deplorable result, if the laws happened to differ, that the marriage would be held valid in one country and void in the other country. For this reason I think it essential that the law of one country should prevail and that it is reasonable that the law of the country where the ceremony a of marriage took place and where the parties intended to live together and where the parties intended to live together and where in fact lived together, should be regarded as the law which controls the validity of their marriage.'(page 122).
It is clear that in the opinion of the Lord justice while the law of the place of celebration controlled the form of the marriage, the law of the intended matrimonial home regulated essentials.
(61) This principle acquired prominence again in Casey v. Casey, 1949 P.420, in which a woman domiciled and ordinarily resident in England married in England a man domiciled and ordinarily resident in Canada. When the wife mad an application for a decree of nullity, the point was whether the England law or the Canadian law decided the validity of the marriage. Becknill L.J. pointed out that the passage in Lord Greene's judgment in De Reneville's case, 1948 P. 100, which I have already extracted, indicated that the law applicable was the law of Canada because the husband was domiciled in Canada and because at the date of the marriage, it was the intended matrimonial domicile in reference to which the parties were supposed to have entered into the bonds of marriage.
The Lord Justice repelled the contention that the fact that the marriage took place in England while the husband was in active service raised an inference that the parties intended to make England their permanent matrimonial domicile.
(62) As long as in the third Sottomayer's case, (1879) 5 P.D. 94, Sir James Hannen P. refused to accept the view pressed on him that a marriage forbidden by the law of domicile of one of the parties was an invalid marriage. He cited numerous examples which could suggest the injustice which might be caused to the spouses of his own country if a marriage was declared invalid on that ground. In the view of the President, there was no principle on which a Court should refuse recognition of a marriage on the basis of its own laws and that it was unreasonable for a judge to indulge in his own feelings as to what prohibitions of foreign countries on the capacity to contract a marriage were reasonable.
(63) What emerges from this discussion in that on the question was to what law should govern capacity for marriage, there are at least three streams of thought. One view is that it is the law of the place of celebration which overlooks the distinction between formality and capacity. The second is that it is the law of the domicile of each party before the marriage which is demonstrated by the later pronouncements to be a conservative and orthodox view. The third is that the law of the intended matrimonial home is what governs capacity which has been explained as the best.
(64) I am not unaware of the denunciation of this third view commended by Dr. Cheshire. It is said that it has little practical foundation and it is argued by its detractors that by allowing everything to hinge on intention, it open the door to the evasion of the law. That the validity of the marriage cannot remain in suspense until the parties implemented their intention, that the assumption that the woman domicile becomes that of the man on marriage rests on no conceivable principle and that the incapacities emanating from the law of her antenuptial domicile could not be disregarded is what is said against the theory.
(65) The criticism that the doctrine depends entirely upon expressed intention is unconvincing since it overlooks the requirement of the implementation and the basic factor that nearly always the parties to the marriage would have planned every detail about their matrimonial home including its location. It is also clear that the acceptance of the theory that the law of domicile of each party before the marriage govern capacity produces difficulties of such great enormity that it may not be sound. The view accepted in many cases that only one law should govern capacity and not the laws of both the spouses when they are in conflict with one another accords with reason and justice. Its chief virtue is that it eliminates uncertainty and to think that the law should be the law of the husband's domicile which has the support of the 'basic presumption' that normally it is in the country of that domicile that the parties intend to establish their permanent home.
Although on some occasions a doubt has been expressed whether Lord Campbell's dictum in (1861) 9 HLC 193 enunciates the principle in that way, there can be little doubt that he did. Lord Campbell's reference to the 'law of the country in which the parties are domiciled and mean to reside' cannot be mistaken for any other law then the law of the intended matrimonial home as understood in more than one case in recent time.
(66) The discussion made so far is about the law which governs capacity and, in my opinion, that law is the law of the husband's domicile if not the law of the intended matrimonial home which was in the case before us the Mitakshara School of Hindu Law in force in the erstwhile State of Hyderabad which bestowed capacity on both the spouses to marry one another. That it is so would be the end of the defendant's contention that the plaintiff was not the wife of Siddalingiah. The marriage between the plaintiff and Siddalingiah was a good and legal marriage since the law of Siddalingiah's domicile which was also the law of the intended matrimonial home did not prohibit polygamy, and, so, Siddalingiah could take a second wife and the plaintiff could be that wife.
(67) The endeavour so far has been focussed on the identification of the law by which the capacity of the parties to marry one another should be determined. That identification becomes necessary since the existence or otherwise of such capacity at the time of marriage is what determines its validity. It is in other words, the capacity antecedent to the solemnization of the marriage which becomes a relevant factor in that way.
(68) But there appears to be another principle by the application of which the validity of a marriage between a husband whose personal law does not prohibit polygamy and a woman whose personal law does, can be judged. It is an accepted principle that a person domiciled in one country carries with him sufficient personal law of his own when he is temporarily in another country and that it is that personal law which has to be referred to on many questions such as minority, marriage and succession. If that personal law so accompanies a person temporarily present in another country, it should be possible to say that that personal law enables him to contract a marriage in the manner recognised by it. An illustration of this principle was made by Lord Brougham in (1835) 2 Clause and Fin. 488: 6 ER 1239, which reads:
'An Englishman, marrying in Turkey, contracts a marriage of an English kind, that is, excluding plurality of wives, because he is an Englishman and only residing in Turkey and under the Mahomedan law accidentally and temporarily, and because he marries with a view of being a married man and having a wife in England, and for English purposes; consequently the incidents and effects, nay, the very nature and essence (to use the language of the Appellant's argument) must be ascertained by the English, and not by the Turkish law.' (P. 535)
(69) This principle was applied by Chitty J., in In re: Ullee, (1885) 53 LT (N.S.) 711. To arrive at the result that the issues of a Mahomedan marriage celebrated in England between a Mahomedan of English domicile and an English woman are not illegitimate. In an erudite article by Mr. Beckett published in (1932) 48 LQR 341 on the recognition of Polygamous Marriages under English Law, he observed:
'Such authority as there is upon this point (and there appears certainly to be very little) points to the conclusion that persons, whose personal law which sanctions polygamy, should be deemed, when temporarily in a country whose marriage law is based upon the Christian conception of marriage, to carry with them sufficient of their personal law to regulate and govern their marriages and family relations, subject always of course to the limitation that their matrimonial rights and duties cannot be enforced in the local Courts, even though their existence may be recognized. If this view is accepted, the following further rules might be formulated.
Where a polygamous marriage is celebrated in a country where the lex loci provides no form of polygamous marriage which it is possible for the parties to use, such a marriage should be deemed to be valid under the lex loci contract'sprovided that it is valid by the personal law of the husband. (Page 367).
* * * *
(70) It seems to me that if the personal law for the purposes for which it is relevant travels with a person who makes a transient sojourn in another country, it is logical to say that a polygamous marriage permitted by the personal law of the husband would be a valid marriage even if celebrated in a country where the law of that country does not permit it.
(71) Mr. Beckett expressed predilection in favour of the availability of another principle. He depended upon a Scottish decision in Lendrum v. Chakrvati, (1929) Scottish LT 96, to deduce the principle that there may be in a given case acquisition of a polygamous personal law by a woman by the act of going through the ceremony of marriage and living with her husband which renders her capable of contract the law of her new domicile.
Mr. Beckett pointed out that Lord Morison's judgment in Lendrum's case 1929 Scottish LT 96 supported that possibility. The principle according to Mr. Beckett could be worded thus:
'A woman who enters into a polygamous marriage and resides with the spouse of such marriage, is deemed to acquire his domicile and his personal law and to possess the capacity to contract such a marriage (whatever her personal law before the marriage) provided that her husband possesses such capacity under his personal law.' (Page 361).
(72) Although about the correctness of this principle it may be unnecessary for us to express any opinion, I feel disposed to say that the principle stated by Mr. Beckett is in substance not different from that which the law of the intended matrimonial home incorporates. If the law of the intended matrimonial home which is sometimes referred to as the law of the matrimonial home incorporates. If the law of the intended matrimonial home which is sometimes referred to as the law of the matrimonial domicile incorporates a sound principle, pronouncement in Lendrum's case, 1929 Scottish LT 96 should be equally sound.
(73) There is another unexceptional rule which has consistently elicited recognition. That rule is that where a ceremony of marriage is proved and is followed up by cohabitation as man and wife, the presumption in case of doubt or in the absence of evidence to the contrary is always in favour of validity and legitimacy. The most recent enunciation of that principle by Sir Jocelyn Simon, P., is to be found in Mahadervan v. Mahadervan, (1962) 2 All E.R. 1108.
(74) It is on the foundation of this principle that Mr. Beckett considered it possible to say that that principle applies as much to polygamous marriages and their children as it does to other marriages and their issues, and I would say that the extension of the rule in this way may not be illegitimate.
(75) In my opinion, we should not dissent from the finding of the District Judge that the marriage between the plaintiff and Siddalingiah was a valid marriage. The affirmance of that finding, it is not disputed, must result in the dismissal of this appeal. This appellant should therefore be dismissed. No costs.
Gopivallabha Iyengar, J.
(76) I agree
(77) Appeal dismissed.