LEGAL STUDIES; GAY MARRIAGES

Legal Studies; Gay Marriages

Legal Studies; Gay Marriages

Introduction

From time immemorial, men and women of different nationalities, race and religion have intermarried, and reports are full of rulings on various questions which have come up for determination in connection with such marriages (Tolstoy 1958). With few exceptions, cases relate to marriages between Christians, and very essence of the Christian marriage is voluntary union of one man to one woman to exclusion of all others, for term of their natural lives. There is, however, another class of marriage, viz. that between an English woman and the Hindu or Mohammedan man. As both Hindu and Mohammedan law allow polygamy, to such the marriage entirely different considerations apply and number of decided cases is very few. The increased facilities for travel have brought to England very large numbers of Indians; some are here as students, some for business, some for pleasure. Social intercourse has naturally led to many of them marrying English women, and I very much doubt whether either husband or wife has at time of marriage any adequate conception of their legal rights and liabilities or of incidents which result from such marriage (Bouscaren 1958). It is not possible to deal with all varied questions which may arise in connection with such marriages, and I shall, therefore, confine myself to case of most frequent and ordinary occurrence, i.e. case of the Hindu or Mohammedan domiciled in India going through the ceremony of marriage with an English woman in England. I propose to consider such the marriage in three aspects: (I) validity of marriage; (2) dissolution of marriage; and (3) rights of inheritance consequent on marriage.

The Validity of Marriage

The validity of all marriages is dependent on two factors. I take it to be settled law that where the ceremony of marriage is performed in any particular country, and that by law of that country such ceremony is effectual to constitute the valid marriage, every other country will recognize ceremony as the sufficient compliance with formal requirements (Tolstoy 1958). Applying this law to particular marriages I am discussing, the ceremony of marriage between the Hindu or Mohammedan and an English woman before the Registrar would be recognized as the valid and legal contract of marriage in India. I refer to the marriage before the Registrar because it is not conceivable that such the marriage could be celebrated in the place of Christian worship (Bouscaren 1958). This is, however, only beginning of inquiry, since it is essential to determine whether the Hindu or Mohammedan man can by law to which he is subject marry an English woman. Different considerations apply to Hindus and Mohammedans since they are subject to systems of law widely divergent, and I propose to deal with them separately. As stated by Lord Selborne : It is well settled that general rule, internationally recognized as to constitution of marriage, is, that when there is no personal incapacity attaching upon either party, or upon particular party who is to be ...