Quo Vadis Article 141

 

(By Siby Chenappady, Advocate, Kottayam)

 

This is with reference to the Article authored by a senior advocate of the Kerala High Court, Shri. T.P. Kelu Nambiar published in the Kerala Law Times (2002 (2) Journal 33) titled "QUO VADIS ART. 141". He questioned the correctness of the decision rendered by a two Judge Bench of the Supreme Court in Suganthi (2002 (1) KLT 581 - SC) in which Apex Court of India did not approve certain observations made by a single Judge (T.M. Hassan Piilai, J.) of the Kerala High Court in Rajendran v. Jose, 2001 (1) KLT 431.

 

More than a decade ago the Supreme Court has held in Hari Kishan v. Sukhir Singh (AIR 1988 SC 2127) that an order directing the accused to pay compensation could be enforced by imposing a sentence in default. This was followed by all the High Courts in India thereafter. When a Sessions Judge in Kerala has followed the above course laid down by the Supreme Court, learned Single Judge of the High Court of Kerala has held that the Sessions Judge was wrong in adopting the said course. Learned Single Judge has put forward S.431 of the Cr.P.C. as the statutory provision forbidding the said course adopted by the Supreme Court. It may be pointed out that the said section does not inhibit the court from enforcing the order for payment of compensation by providing a default sentence.

 

The core of S.431 Cr.P.C. is that so far as recovery of any amount covered by an order of the Court is concerned, such recovery shall be made 'as if it were a fine'.

 

S.421 of the Cr.P.C, no doubt, provides two modes of recovery of fine. But that Section does not inhibit the court from providing a default sentence of imprisonment when fine is imposed by the Court as part of the sentence. The Supreme Court, in all probabilities would have adopted the said parity of reasoning when it held in Hari Kishan (AIR 1988 SC 2127) that the Court may enforce the order by imposing a sentence in default. The mere fact that the Supreme Court did not specifically provide in Balraj v. State (AIR 1995 SC 1935) a default sentence does not mean that it has overruled or even dissented from Hari Kishan. Evidently Hari Kishan's case was not considered by the Supreme Court in the subsequent decision.

 

The question is not whether the Supreme Court was correct (in Hari Kishan, AIR 1988 SC 2127) in holding that the Court may enforce the order (to pay compensation) by imposing a sentence in default. Perhaps a larger Bench may or may not overrule that position laid down in Hari Kishan's case. The question is whether the Supreme Court was correct in pointing out that the learned Single Judge of the High Court had gone wrong in faulting the Sessions Judge for following the legal principle laid down in Hari Kishan's case.

 

I have absolutely no doubt that the Bench of the Supreme Court (K.T. Thomas and Pukhan, JJ.) was right in pointing out the error committed by the learned Single Judge in Rajendran v. Jose. I have also no doubt that Shri. T.P. Kelu Nambiar was obviously wrong in saying that the Supreme Court was not right in Suganthi.

 

Both Will Prevail

 

(By E P. Abu, Advocate, Mannarkkad)

 

In doubting contradictions in the decisions reported in 2001 (1) KLT 517 SC and 2001 (3) KLT 950 SC, as is deemed to be contradictory in nature, the author of article published in 2002 (1) KLT page 65, is infact not correct and the answer to the question is "Both will prevail".

 

Both Hon'ble Supreme Court decisions are based on the cases agitated under Negotiable Instruments Act, 1881 as amended by Act 66 of 1988.

 

The decision reported in 2001 (1) KLT 517SC is with regard to the jurisdiction of Judicial First Class Magistrate in imposing sentences. Upon deciding the case Their Lordships was in the considered opinion that S.29(2) of Criminal Procedure Code cannot be by-passed to S.142 of Negotiable Instruments Act, inorder to widen the power of Judicial First Class Magistrate, since there is no absente clause in the Negotiable Instruments Act.

 

What was discussed in that decision by Their Lordships is that the Magistrate of First Class has no jurisdiction to impose a fine exceeding Rs.5000/- and a sentence of imprisonment exceeding three years, which is the mandate of the statute, that constitute the very position of the Magistrate.

 

The decision reported in 2001 (1) KLT 517 SC and 2001 (3) KLT 950 SC are not way contradictory in nature as is presumed by the author of the article.

 

Under the Criminal Procedure Code the Judicial Magistrate of First Class has got jurisdiction to impose a sentence of imprisonment not exceeding three years and a fine not exceeding Rs. 5000/- or both, unless a special statute confess a jurisdiction in specific terms with an obstante clause, which according to their Lordships lacks in the Negotiable Instruments Act.

 

But, the matter is different when the Magistrate chooses to resort S. 357 of Cr.P.C, wherein there is no limitation prescribed if the Magistrate thinks that the complainant must be compensated with his loss, that is what is seen in the decision reported in 2001 (3) KLT 950 SC.

 

The decision is reported in 2001 Cri.L.J. 950 SC, wherein para.17 says that "in our view this question does not pose any practical difficulty. Whenever a Magistrate of First Class feels that the complainant should be compensated he can after imposing a term of imprisonment award compensation to the complainant for which no limit is prescribed in S.357 of Cr.P.C."

 

What the decisions in both the cases prescribe that, when imposing a fine the Magistrate must strictly adhere to S. 29(2) of the Code, but it does not bar the Magistrate to resort to S. 357 of the Code, if he feels that the complainant has to be compensated for his loss.

 

In nutshell, there is no room for ambiguity in both decisions.

   

 

Adultery - Is it A Male Partner Offence?

 

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

 

Indian women are enjoying a position of high esteem in society, since time immemorial. In ancient days they were subjected to certain injunctions to protect their respectability and reputation. A duty was imposed on husbands to protect their young and youthful wives. It was believed in the ancient texts that women should be protected from the slightest of corrupting influence especially since an unprotected woman aggrieves both families (those of her father and husband) on account of her sexual proclivity. Women though well protected make transgressions at times if things are favourable for them. This transgression was called in the old texts Sangrahana or adultery which we call at now. Severe punishment was also prescribed for woman engaging in adulterous activities. "Unlawful coming together of a man and woman for sexual enjoyment constitutes the offence of Sangrahana (adultery)" - Mitakshara on Yajnavalkya-11-283. Both man and woman indulging in adultery are liable to be punished, so is told Brihaspati- P: 367-15. Manu Samhitha provided that, "For acts of infidelity to her lord, a wife becomes condemnable in society and she will be reborn as a she jackal afflicted with many a foul disease. She shall be punished by the King to be devoured by ferocious dogs in a well crowded locality. The male partner of adultery shall be laid down on a hot bed of iron and the public executioners shall cast logs of wood in the fire bed till his body is consumed to ashes".

 

In the above background the offence of adultery if visualised with a comparison to the definition comes under S.497 of Indian Penal Code, 1860, it becomes apparent that the scope of the offence and its punishment is drastically diluted. S.497 defines adultery as follows: "Whoever has sexual inter course with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual inter course not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such case the wife shall not be punishable as an abetor". The cognizance of this Section is limited to adultery committed with a married woman and the male offender alone has been made punishable. Thus under the Code, adultery is an offence committed by a third person against a husband in respect of his wife. It is not committed by a married man who has sexual intercourse with an unmarried woman.

 

By the reason of S.198(1) CRPC no Court can take cognizance of the offence of adultery except upon a complaint by some person aggrieved by the offence. Sub-s.2 of S.198 provides that for the purpose of sub-s.(1) "No person other than husband of the woman shall be deemed to be aggrieved by an offence punishable under S.497. A combined reading of S.497 IPC with S.198 Cr.P.C. tells the following tale.

 

(a)    S.497 prescribes punishment on the adulterer male only. It does not punish the adulterous wife.

 

(b)    S.497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

 

(c)    S.497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

 

(d)    It does not cover cases where the husband, has sexual relations with an unmarried woman with the result that husbands have, as it were, a free licence under the law to have extra marital relationships with unmarried women.

 

The framers of Indian Penal Code who were English People found the following reasons to exclude the woman partner of adultery from punishment. "We cannot but feel that there are some peculiarities in the State of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of woman of this country is that they are married while children they are often neglected for other wives while still young. They share the attentions of a husband with several rivals. To make laws for punishing the inconstancy of the wife, while the law admits the privilege of the husband to fill his Zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law as evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow but we trust the certain operation of education and of time. But while it exists, while it continues to produce is never failing effects on the happiness and respectability of woman, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law".

 

The above reasoning has many pitfalls. The framers on their anxiety to save women from the spell of punishment under S.497 IPC though used some ideological jinks, yet made the offence of adultery as an offence committed unilaterally by male by prescribing punishment on him alone. Everyone knows the fact that adultery is a bilateral act in which both man and woman are equal partners. The other fallacy of the reasoning is that Indian Women are given concession under law to satisfy their sexual need outside matrimonial home. It is an assault on the virtue of Indian women. Equally the same framers have forgotten the fact that they had made marriage during the life time of the other spouse an offence under S. 494 IPC in which both the man, woman and all the abetors are punishable. In India except Muslim community no other community is practising polygamy. No more is child marriage permitted under law in India. So looking at the offence of adultery in Indian context, it should be. seen an offence committed both by man and woman and both should be adequately punished.

 

S.497 was challenged before the Supreme Court two times. The first one was way back in 1954. The decision is reported in AIR 1954 SC 321 in Yusuf Abdul Aziz v. Bombay. It was challenged on the ground that it discriminates woman on the ground of Sex. However, Supreme Court let loose the protective umbrella around S.497 referring to Art.15(3) of Constitution. After about 30 years again S.497 was Subjected to the touch stone of judicial scrutiny. The decision is reported in 1985 Criminal Journal 1302 in Smt. Sowmitri Vishnu v. Union of India. The Supreme Court dubbed the contention in the appeal as emotional appeals and dismissed it with the following observation. "It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some changes over the years but it is for the Legislature to consider whether S.497 should be amended appropriately so as to take note of the transformation which the society has undergone". The Law Commission in its 42nd report recommended the retention of S.497 with the modification that the wife who has sexual inter course with a person other than her husband should be punished also *However the suggested modification was not considered by the Legislature. Thus the offence of adultery goes on with its onslaught on the male partner and gives a feather touch and go on the female partner. It shows that adulterous sexual inter course is a unilateral act in which the man is vim and vigorous whereas the woman is only timid and livid. It makes a big question mark, "Is the woman a chattel to own or a love statue to woo upon"?

 

The Choice of Law Rule in Matrimonial Reliefs Issues

Involving Private International Law

 

(By Sathyashree Priya, Advocate, High Court of Kerala)

 

Marriage is a commitment involving two individuals and the incidence of marriage is often complex involving various legal issues. According to some personal laws marriage is a 'sacrament' while others deem it as a contract. Whatever be its nature, the issues involved are multifarious since marriage confers a special 'status' upon the individuals concerned. Sometimes marriage results in change of domicile as well.

 

The preliminary issue involved in a marriage is regarding the capacity of the parties to enter into a marriage. The 'capacity to marry' varies with the legal norms as laid out by various countries and also according to the personal laws. All legal impediments to a marriage such as lack of age, prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity etc. etc. are questions of 'essential validity* for the performance of a valid marriage.

 

Foreign Marriage Act (1969):

 

Let us, for a moment presume that a marriage is contracted between two Indian Citizens. Then they are governed either by their Personal Laws or under the Special Marriage Act under which they many. If one of the parties to the intended marriage is a foreigner then complexity arises. If such marriage is performed in India, then also the parties will be governed by the 'Special Marriage Act' or the personal laws of the parties under which they choose to marry. The Special Marriage Act does not impose any restriction on the parties to a marriage based on their nationality1. However the personal laws do impose certain restriction upon the parties to a marriage. These restrictions are not based on nationality but are purely based on religion. For example, a marriage between a foreigner following Christian faith and Indian citizen following Hindu faith cannot be solemnized under Hindu Marriage Act.2 Whereas under the Christian Marriage Act 1872 if one of the parties to a marriage is a Christian by faith then the marriage can be registered under the Indian Christian Marriage Act.3 Thus, the safest recourse for the parties to a proposed marriage of one of whom is a foreigner, is to get the Marriage solemnized under the Special Marriage Act under which the parties can contract a valid marriage irrespective of their nationalities or religion. There is no prohibition under the Special Marriage Act, 1954 read with Foreign Marriage Act, 1969 of a marriage between an Indian with a foreign national.4

 

"The Foreign Marriage Act, 19695 is primarily to provide for solemnization of marriages abroad between citizens of India or where the parties to a marriage is an Indian citizen. S.4 of the said Act imposes the following conditions for solemnization of foreign marriages:

 

(a)    neither party to the marriage should have a spouse living

 

(b)   neither party is an idiot or a lunatic

 

(c)   the bridegroom should have completed the age of twenty-one and the bride the age of eighteen at the time of the marriage, and

 

(d)   the parties should not be within the degree of prohibited relationship provided the custom of either one of the parties permit it.

 

The said Act provides for an enabling form of marriage more or less on the same lines as the Special Marriage Act which can be availed outside India, where one of the parties to the marriage is an Indian citizen6. Marriages can be registered under the said Act, provided the parties have the capacity to marry under S.4 of the Act quoted supra. The form of marriage thus provided is in addition to any other forms that may be permissible to the parties. Also, S.18 7 of the said Act provides for matrimonial relieves in respect of foreign marriages. It is pertinent to note here that for any marriage solemnized in a foreign country8 to which a citizen of India is a party whether registered under the Foreign Marriage Act or not, the provisions of the Special Marriage Act is applicable with regard to matrimonial relieves. Where a marriage solemnized under the British Marriage Act (1948) between a Hindu wife in 1966 the marriage was deemed to be governed by the Special Marriage Act (1954) and not by the personal law of the husband i.e. Muslim law. Husband cannot put an end to the marriage by pronouncing Talaq9.

 

A Critical Analysis of the Act:

 

A closer look at CI.(a) of S.4 of the Act clearly prohibits potentially polygamous marriages which means that a Muslim of any other nationality is prohibited from contracting a second marriage with an Indian citizen eventhough his personal law permits such a marriage! He/she may be punished for bigamy which is specifically provided for under S.19 of the Act 10 . While, certain countries like France permit the performance of marriage between individuals though under the age prescribed in S.4(c) of the Act, provided a parental consent is obtained. But, according to the Indian Act a French lady below the age of 18 years is prohibited from contracting a valid marriage with an Indian even if she had obtained the parental consent according to French law.

 

Also, the 'Prohibited Degree of Relationship' varies with countries and religious beliefs. Jurists often differ in deciding which law should govern the capacity to marry. While some favour the 'dual domicile' theory11. Some others favour the theory of 'intended matrimonial home' 12.

 

As far as the parties to the marriage wish to keep the marriage intact problems do not arise. However, when there is a martial discord and proceedings for divorce are initiated in a court of law then complexities arise. Though extra-judicial divorces are allowed under certain religious laws (for eg. under Islamic and Jewish laws) in India the tendency is to recognize divorces validly pronounced by a court of law.

 

The first problem for the parties to the dispute would be the choice of Forum 'Lex Fori' to initiate Legal Proceedings for Divorce. Laws relating to divorce varies between countries and in some countries the procedure is very minimal and more convenient. But the problem arises only when recognition has to be granted to such divorce decrees!

 

Normally, in Private International Law two theories are put forward regarding the laws that govern the Matrimonial Proceedings

 

(1)   Lex domicilii13

 

(2)   Lex loci celebrationis14

 

If a marriage is performed in a foreign country, it may be refused to be registered under the Foreign Marriage Act if it is in contravention of the local laws15. The Foreign Marriage Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law16.

 

The position is not yet settled in the sphere of Private International Law as to which theory is to be applied in problems of such nature.

 

Jurisdiction

 

Whenever a matrimonial proceeding is initiated in a court of law the initial issue would be of 'jurisdiction' and subsequently the case will be decided on merits. S.18(2) of the Foreign Marriage Act provides that every petition seeking matrimonial relief for marriages performed under this Act shall be presented to the District Court within the local limits of whose ordinary civil jurisdiction the respondent is residing at the time of the presentation of the petition or the husband and wife last resided together or the petitioner is residing at the time of presentation of the petition, provided that the respondent is at that time residing outside India. Thus to invoke jurisdiction, either one of the parties to a case must be a national of the state or ordinarily residing in the place where the case is filed or the parties must have intended to domicile there together i.e. to establish their matrimonial home in that country concerned (lex domicilii) or the marriage must have been performed in the soil of the country where the case is filed (lex loci celebrationis).

 

Two elements are necessary for the existence of domicile,

 

(i) a residence of a particular kind

 

(ii) an intention of a particular kind

 

The residence need not be continuous but it must be indefinite, not purely fleeing. The intention must be a permanent one to reside forever in the country where the residence has been taken up. Mere residence in a place is not sufficient to constitute domicile. It must be accompanied by the intention to make it his permanent home. Thus, there must be both the 'factum' and 'animus' to constitute the existence of domicile. The grounds on which Indian courts assume jurisdiction in 'nullity' proceedings are the same on which they entertain petitions for divorce i.e. mainly based on residence. However a petitioner may not lose his right to sue merely on the basis of temporary change of residence17. Continuous residence for three years immediately preceeding presentation of petition is not necessary. It is enough if the petitioner had resided in India for three years prior to presentation of petition18 . Where the respondent was residing outside India at the time of commencement of the proceedings, the court within whose territorial jurisdiction the petitioner was residing at the relevant time would have jurisdiction to entertain the proceeding and foreign nationality of a respondent, by itself, cannot prevent an Indian court from proceeding against such foreign national,19.

 

Thus, applying the above principles, once the issue of jurisdiction is settled, the court proceeds to hear the matter on merits of the case. The court may pronounce a marriage void, or it may render it voidable. When it is found that the parties to a marriage had no capacity to marry the marriage is declared void. But the capacity to marry is often a very complex question and differs from country to country and also is different in different personal laws.

 

Available Remedies

 

Once a matrimonial dispute is filed in a foreign court of whom at least one of the parties is an Indian, or the marriage had been celebrated in Indian soil the following remedies can be availed by the parties to the dispute.

 

Stay of Action under Indian Law

 

In the case of simultaneous proceedings in a foreign court, the explanation to S.10 of the Civil Procedure Code provides,

 

"The Pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action."

 

This explanation does not empower the Indian court to grant a stay of proceedings; it only lays down that the Indian courts can proceed with a suit although a foreign proceeding is pending with regard to the same cause of action.

 

In granting stay of action the Indian Courts would be guided by the principles enunciated in English cases. This jurisdiction, as in the case of jurisdiction exercised by English courts is discretionary and will be exercised with extreme caution.

 

The Indian courts have granted stay of actions pending Foreign Proceedings under the inherent jurisdiction by virtue of S.151 of the Code of Civil Procedure. The above Procedure can be invoked if a case is pending in a Foreign Court where the dispute involves Indian Nationals or where the marriage between the parties had been celebrated here. The choice of law rule will depend upon some 'connecting factor' such as domicile, place of celebration of marriage etc. for the Indian courts to exercise jurisdiction and for the parties to a dispute to choose a forum (lex fori).

 

Recognition and Enforcement

 

Once the case is heard and the judgment pronounced the next difficulty that arises is in the recognition and enforceability of such judgments. Indian courts are competent not to enforce a foreign judgment20, if it is not given on merits. According to S.13 of the Civil Procedure Code. The following defences are available against the enforcement of a foreign judgment in India.

 

(i)    That the judgment has not been pronounced by a court of competent jurisdiction.

 

(ii)   That it has not been on the merits of the case.

 

(iii) That it appears on the face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of India in cases where it is applicable.

 

(iv) That the proceedings in which it was obtained are opposed to natural justice

 

(v)   That it has been obtained by fraud

 

(vi) That it sustains a claim founded on a breach of any law in force in India.

 

Except in certain specified cases (Ss.44 and 44A of the CPC) foreign judgment cannot be enforced by direct execution in India. It can be enforced only by the institution of a suit upon the judgment, as in England.

 

Under S.44A decrees of the superior courts of the United Kingdom and other foreign countries with which India has reciprocal arrangements are enforceable in India as if they are decrees of Indian Courts. The foreign countries with which India has reciprocal arrangements for direct execution of decrees is called reciprocating territory. Foreign decrees can be directly executed under S.44A only in District Courts.

 

The defences to S.13 is available only when a case has not been heard on merits for it is a settled principle that foreign judgments cannot be re-opened on merits.

 

Marriage conferring Citizenship

 

As stated above the incidence of marriage is multifarious. It can confer citizenship alter the domicile and so on and so forth. As per S.5 of the Indian Citizenship Act 'Persons who are, or have been, married to citizens of India and are ordinarily resident in India and have been so resident for five years immediately before making an application for registration' can apply for citizenship by registration.

 

Thus an Indian Citizenship can be acquired by a foreigner married to an Indian citizen if the conditions cited supra are fulfilled, (either it be a male or female).

 

Though there is no gender discrimination in the Indian Citizenship Act, the Indian Succession Act is still outmoded. Ss.15 and 16 of the Indian Succession Act are based upon the old English rule. S.15 provides that "by marriage a woman acquires the domicile of her husband if she had not the same domicile before". Also S.16 lays down that "a wife's domicile during her marriage follows the domicile of her husband." But the Indian rule in S.16 is subject to two exceptions where the wife can acquire her own domicile.

 

They are

 

(1)  where the wife is living separate under a decree of a competent court and

 

(2) where the husband is undergoing a sentence of transportation.

 

This old English law rule is outmoded and has been abolished in England by the Domicil and Matrimonial Proceedings Act (1973). Also these provisions of the Indian Succession Act are contrary to the 'Convention on the Nationality of Married Women' (1957). It is high time that the Legislature strikes down such provisions of the statute as unconstitutional as contrary to the 'Equality Clause' guaranteed by our Constitution.

______________________________________________________________________

 

Foot Note:

 

1. Section 4 of the Special Marriage Act.

 

 2. Section 5 of the Hindu Marriage Act.  

            

3. Section 4 of the Indian Christian Act.

 

4. (1992) 24 Delhi Rep. J. 294.

 

5. The Act is modeled on the English and Australian legislations on the subject of Foreign marriages and is modified to suit the peculiar situations prevailing in our country as Foreign marriages are governed by principles of Private International law which are by no means well settled.

 

6. AIR 1994 Bom.120.

 

7. Sub-clause (1) of the Section 18 applies the provisions of Chapter IV to VII of the Special marriage Act so as to –

 

(i)    define the consequences of a marriage under the Act.

 

(ii) Provide for matrimonial relief.

 

 Read with sub-clause (4), it covers also foreign marriages under other laws for which matrimonial relief is not available in India under any other law. Sub-clause (2) is intended to define the District Court which will have jurisdiction for granting relief and sub-clause (3) embodied the recognized principles of private international law as to jurisdiction of Indian Courts to grant matrimonial relief.

 

While providing for matrimonial relief in respect of foreign marriage under other laws, has been taken to ensure that –

 

(a)    the validity of such marriages is not affected by the provisions of the Act; and

 

(b)   even where such marriage is registered under this law, its validity is not affected by the said provisions, the only relief available in such a case being cancellation of registration.

 

8. Foreign Country :- means a country or place outside India, and includes a ship which is for the time being in the territorial waters of such a country or place (as defined in the Act).

 

9. AIR 1982 Bom. 341(DB).

 

10. This follows Section 44 of the Special Marriage Act and in its application to a second

marriage taking place outside India, it is confined to citizens of India, following the principle

underline Section 4 of the Indian Penal Code.

 

11. This is the traditional and still prevalent view - According to this doctrine, a marriage is invalid unless according to the law of domicile of both contracting parties at the time of the marriage they each have the capacity to contract that particular marriage.

 

12. The basic presumption is that the capacity to marry is governed by the law of the husband's domicile at the time of marriage. This theory is outmoded. According to the current theory the capacity to marry is governed by the law of the country where the parties at the time of marriage intended and did actually establish their matrimonial home.

 

13. Law of the country is which the parties are domiciled at the time of marriage and in which the matrimonial residence is contemplated law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e. the place governs the act.

 

14. Law of the place where the marriage was celebrated. The maxim is Locus Regii Actum i.e., the place governs the act.

 

15. Section 11 of the Foreign Marriage Act is indented to ensure that marriage prohibited by any law inforce in the foreign country or marriages appearing to be in contravention of international law or the comity of nations are not solemnized under the Act so that marriages solemnized thereunder have a high degree international validity.

 

16. Section 23 of the Act provides for recognition in India of marriages solemnized under a law in force outside India, if that law provides for recognition of marriages solemnized under Indian law and is based upon a similar provision in Australian Marriage (Overseas) Act, 1955.

 

17. 1980 KLT 530.

 

18. AIR 1993 Bom. 110 (DB).

 

19. (1990) 1 Cal.HN (HC).

 

20. Smt. Satya v. Teja Singh, AIR 1975 SC 105-A Hindu wife filed a petition for maintenance under the old section 488 of the Cr. P.C. against her husband. The husband contested the petition on the ground that the marriage had been validly dissolved by a court in Nevada where he was domiciled at the time of the decree of divorce. The Punjab High Court held the husband had acquired a domicile of choice at Nevada and since the divorce was given by the court of the husband's domicile, it would be recognized in India. The judgment was reversed by the Supreme Court on the factual finding that the husband did not acquire a domicile of choice in Nevada.

 

Title Without Title Deed

 

(By Gigi P. V., Advocate, Kotlayam)

 

Mortgage by depositing the title deed as security in notified areas is a common practice adopted in granting loans. This is a very simple and convenient form of creating mortgage. Unfortunately the decree holders of a partition deed are practically deprived of this facility due to the lapses in the existing law and procedure related to the issuance of the final decree.

 

S.237(1) of the Kerala Civil Rules of Practice states that "Decrees to be engrossed on stamp paper:- The decree in a partition deed shall be prepared on non-judicial stamp paper for requisite value and shall be retained by the court and shall form part of the record and copies of the same shall be furnished to the parties in case of other decrees". Here law provides the litigants the certified copies of the final decree, which is the only document to prove their title to the property. Usually the loan applications which relies on certified copies of the final decree as the title deeds are rejected on the ground that the certified copies cannot be treated as title deeds.

 

The Banks are of the view that any number of the certified copies can be obtained by the concerned parties and such certificates cannot be relied on. A person with intention to cheat the bank can create any number of mortgages by depositing the certified copies of the final decree to several banks at a time. Moreover the equitable mortgage by depositing the title deeds needs no registration. Hence a prior mortgage by the same party by depositing another certified copy may not be found out on the examination of the certificate of encumbrance. Naturally such loan amounts issued by several banks at a time may exceed the actual market value of the mortgaged property and the banks are unable to realise the debts on non-repayment. Moreover in Syndicate Bank v. Modern Tiles and Clay Works (1980 KLT 550) it is held that "A copy is not a document of title and its deposit cannot be an equitable title. It is only an evidence of title". Thus the apprehension of the Bank is justifiable.

 

In order to find a solution to this situation two methods can be adopted. First one is that issue duplicates of the final decree on stamp paper to the parties. The second is, make an endorsement over the certified copies of the final decree that the copy shall be considered as original and such copy with such endorsement shall not be issued to the parties subsequently.

 

To meet the end of justice necessary provisions of the procedural law should be amended. Otherwise the unfortunate litigants of a partition suit may be deprived of getting financial assistance from the Banks and it may affect their right to enjoy the property. It may cause enormous hardship to the parties and initiation should be taken to redress their grievances.