Baindail (otherwise Lawson) v Baindail

 

Baindail (otherwise Lawson) v Baindail

FAMILY; Divorce

COURT OF APPEAL

LORD GREENE MR, MORTON AND BUCKNILL LJJ

28, 29, 30 JANUARY 1946

Divorce – Nullity – Marriage in England with Indian already lawfully married in India according to Hindu law – Hindu law permitting polygamy – Hindu

marriage recognised as valid in English law – English ceremony of marriage a nullity.

The respondent, an Englishwoman, went through a ceremony of marriage with the appellant on 5 May 1939, at a London register office, the appellant being

described in the marriage certificate as a bachelor. On 1 May 1928, the appellant had lawfully married a Hindu woman according to Hindu rites at Muthra

United Provinces, India, and his Hindu wife was alive at the time of the appellant’s marriage with the respondent. It was established that the appellant’s Hindu

marriage would be recognised by the courts of British India. The question for the determination of the court was whether, having regard to the appellant’s

marriage in India, the subsequent English ceremony of marriage was valid:—

Held – The court was bound to recognise the Indian marriage as a valid marriage and an effective bar to any subsequent marriage in England.

Decision of Barnard J ([1945] 2 All ER 374) affirmed.

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Notes

The degree of recognition to be accorded by English courts to Hindu marriages was considered by Barnard J, in Srini Vasan v Srini Vasan, in Mehta v Mehta

([1945] 2 All ER 690), and in the case now reported on appeal. The Court of Appeal affirm the views expressed by Barnard J, holding that on principle the

courts are bound to recognise the Indian marriage as binding, for the purpose of proceedings for nullity of a subsequent English marriage. By marriage in

India a Hindu domiciled in India acquires the status of a married man, although the marriage is not one falling within the definition laid down by Lord

Penzance in Hyde v Hyde, but in that case Lord Penzance clearly limited his decision to the matter with which he was immediately concerned. Similarly, Lord

Greene MR, now limits the present decision to the circumstances involved, and refuses to express any opinion upon whether such a marriage can provide a

foundation for proceedings for bigamy.

As to Marriages Recognised by English Law, see Halsbury, Hailsham Edn, Vol 6, pp 283–285, para 340; and for Cases, see Digest, Vol 11, pp

413–515,Nos 800–811.

Cases referred to in judgments

Srini Vasan (otherwise Clayton) v Srini Vasan [1945] 2 All ER 21, [1946] P 67, 114 LJP 49, 173 LT 102.

Hyde v Hyde and Woodmansee (1866), LR 1 P & D 130, 11 Digest 413, 800, 35 LJP & M 57, 14 LT 188.

Sinha (Peerage) Case (1939), 171 Lords Journals, 350 [see p 348 post].

Re Bethell, Bethell v Hildyard (1888), 38 ChD 220, 11 Digest 413, 801, 57 LJCh 487, 58 LT 674.

Brinkley v A-G (1890), 15 PD 76, 11 Digest 414, 803, 59 LJP 51, 62 LT 911.

Harvey v Farnie (1882), 8 App Cas 43, 11 Digest 429, 932, 52 LJP 33, 48 LT 273.

R v Naguib [1917] 1 KB 359, 11 Digest 414, 802, 86 LJKB 709, 116 LT 640.

Chetti v Chetti [1909] P 67, 11 Digest 416, 827, sub nom Venugopal Chetti v Venugopal Chetti, 78 LJP 23, 99 LT 885.

Peal v Peal [1931] P 97, Digest Supp, 100 LJP 69, 143 LT 768.

Re Bozelli’s Settlement, Husey-Hunt v Bozzelli [1902] 1 Ch 751, 11 Digest 415, 807, 71 LJCh 505, 86 LT 445.

Sottomayer v De Barros (1879), 5 PD 94, 11 Digest 416, 829, 49 LJP 1, 41 LT 281.

Ogden v Ogden [1908] P 46, 11 Digest 334, 228, 77 LJP 34, 97 LT 827.

Board v Board [1919] AC 956, 16 Digest 102, 30, 88 LJPC 165, 121 LT 620.

Salvesen (or Von Lorang) v Administrator of Austrian Property [1927] AC 641, Digest Supp, 96 LJPC 105, 137 LT 571.

Re Goodman’s Trusts (1881), 17 ChD 266, 3 Digest 372, 135, 50 LJCh 425, 44 LT 527.

Nachimson v Nachimson [1930] P 217, Digest Supp, 99 LJP 104, 143 LT 254.

Birtwhistle v Vardill (1840), 7 Cl & Fin 895, 18 Digest 6, 24, previous proceedings, sub nom, Doe d Birtwhistle v Vardill (1835), 2 Cl & Fin 571.

Fenton v Livingstone (1859), 33 LTOS 335, 11 Digest 414, 804.

Appeal

Appeal by the respondent from a decision of Barnard J dated 5 July 1945, and reported ([1945] 2 All ER 374). The facts are fully set out in the judgment of

Lord Greene MR.

D N Pritt KC and F M Landau for the appellant.

G O Slade KC and Colin Duncan for the respondent.

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Cur adv vult

Pritt KC: The appellant is still domiciled in India. A polygamous marriage is not recognised in England as a marriage so as to render invalid an English

marriage entered into in England in valid form

[Counsel referred to Srini Vasan v Srini Vasan, Hyde v Hyde and Woodmansee, Sinha Peerage Case, Re Re Bethell, Bethell v Hildyard, Brinkley v A-G,

Harvey v Farnie, and R v Naguib.]

Slade KC: By the law of England the validity of a monogamous marriage contracted here between a man domiciled abroad and a woman domiciled here

is determined by (a) status and (b) capacity to marry of each of the two parties. Generally speaking status is determined by the personal law, ie, in England the

lex domicilii.

[Counsel referred to Chetti v Chetti, Peal v Peal, Re Bozelli’s Settlement, Sottomayer v De Barros, Ogden v Odgen, Board v Board, Salvesen (or Von

Lorang) v Administrator of Austrian Property, Harvey v 􀂭 343􀀉 Farnie, Re Goodman’s Trusts, Sinha Peerage Case, and Nachimson v Nachimson.]

30 January 1946. The following judgments were delivered.

LORD GREENE MR. A good deal of ground has been traversed and a number of authorities have been cited which have, in greater or lesser degree, an

indirect bearing on the precise question which we have to decide, a question which is not covered by authority. Barnard J pronounced in favour of the present

respondent (who was the petitioner in the proceedings) a decree of nullity. In holding that he had jurisdiction to pronounce such a decree, and that in law the

petitioner was entitled to it, the judge followed a previous decision of his own in Srini Vasan (orse Clayton) v Srini Vasan.

The appellant is a Hindu who, while resident in this country, went through a ceremony of marriage with the present respondent, an English lady. That

ceremony took place on 5 May 1939, at the Holborn Registry Office. Some question was raised as to the domicil of the appellant at the time, and it is

necessary to consider that question. It is clear that his domicil of origin was Indian and that there was no evidence that he had acquired a domicil of choice in

this country or elsewhere. The petition contained the usual assertion that he was domiciled here at the date of the petition; that is in accordance with the rules.

That, of course, has no bearing on the question what his domicil was at the date of the ceremony on 5 May 1939, and is required by the rules, no doubt, in

connection with jurisdiction. On 22 February 1940, a child was born to the appellant and the respondent.

It appears that this Hindu, on 1 May 1928, went through a ceremony of marriage according to his personal law—Hindu law—in India with a Hindu lady;

a fact in his personal history which he did not think it necessary to reveal to the respondent. She, however, in later years discovered it and presented a petition

for a decree of nullity of her marriage to the appellant on the ground that he was a married man at the time when she went through the ceremony of marriage

with him. Barnard J took the view, both in Srini Vasan v Srini Vasan and in this case, that those facts were sufficient to entitle her to a decree. I should

perhaps read his actual language with regard to the Hindu marriage. He says this ([1945] 2 All ER 374, at p 375):

‘I have heard the evidence in this case and I am quite satisfied, from the evidence I have had put before me, that the respondent did go through a

ceremony of marriage on or about May 1, 1928, with a Hindu woman, that that marriage was according to Hindu rites and usages, and that that marriage

would be regarded as a valid marriage by the courts of British India. In fact, counsel for the respondent quite frankly admitted that.’

The judge was also satisfied that the Hindu wife was alive on 5 May 1939.

The point raised by the appeal is a very short one. It was said that for the purposes of a claim to a decree of nullity the existence of the Hindu marriage

must be disregarded by the courts of this country on the ground that, according to our law, such a marriage is not to be regarded as a marriage at all with the

consequence that on 5 May 1939, the appellant was an unmarried man and was, therefore, not debarred by any existing union from marrying the respondent.

In support of that proposition a number of observations in decided cases have been cited to us. But it is to be observed that in no one of those cases was the

question to which the court was addressing its observations in any way similar to the present question; it is not, in my opinion, legitimate to take those

observations from their context and apply them to what is essentially a different question.

I do not propose to go through all the cases cited to us but I will take what I think has been properly described as the high-water mark, the well known

decision of Lord Penzance in Hyde v Hyde. The headnote starts with this general proposition:

‘Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others.’

But that, of course, does not enable any general answer to be given to the question: “What it to be understood by ‘marriage’ for the purpose of the various

branches of English law in which the question of marriage is relevant?” For the purpose of enforcing the rights of marriage, or for the purpose of dissolving a

marriage, it is no doubt the case (at any rate, it has always been accepted 􀂭 344􀀉 as the case following Lord Penzance’s decision) that the courts of this

country exercising jurisdiction in matrimonial affairs do not and cannot give effect to, or dissolve, marriages which are not monogamous marriages.

If one looks at the Matrimonial Causes Act one finds the word “marriage”, and one has to construe that word for the purpose of ascertaining what the

jurisdiction of the English courts is in these matters. The reasons are, I should have thought, manifest to common sense, namely, that the powers conferred on

the courts for enforcing or dissolving a marriage tie, are not adapted to any form of union between a man and woman save a monogamous union. If a man by

the law of his domicil is entitled to have four wives and then becomes domiciled in this country and wishes to be divorced here, nice questions would

necessarily arise as to whether in consorting with the other wives he had been guilty of adultery and various questions of that kind. At any rate, rightly or

wrongly, the courts have asserted that proposition and have refused to regard a polygamous marriage as one which entitles the parties to come for matrimonial

relief to the courts of this country.

Hyde v Hyde was a case where two parties were Mormons and had married at a time when polygamy was recognised by the Mormon State, and the

question arose whether the husband was entitled to obtain a decree of divorce here. It was held that the Mormon marriage could not be regarded as a marriage

for the purpose of asking the court to grant a decree of dissolution. Lord Penzance says this (LR 1 P & D 130, at p 133):

‘But I expressed at the hearing a strong doubt whether the union of man and woman as practised and adopted among the Mormons was really a

marriage in the sense understood in this, the Matrimonial Court of England, and whether persons so united could be considered “husband” and “wife” in

the sense in which these words must be interpreted in the Divorce Act. Further reflection has confirmed this doubt, and has satisfied me that this court

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cannot properly exercise any jurisdiction over such unions.’

It is to be noted that Lord Penzance was there posing the question as a question arising on the construction of the Divorce Act. At the end of his judgment he

says (ibid, at p 138):

‘In conformity with these views the court must reject the prayer of this petition, but I may take the occasion of here observing that this decision is

confined to that object. This court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue

of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have

created for themselves. All that is intended to be here decided, is that as between each other they are not entitled to the remedies, the adjudication or the

relief of the matrimonial law of England.’

Lord Penzance quite clearly saw how undesirable it would be to attempt to lay down any comprehensive rule as to the manner in which a polygamous

marriage ought to be regarded by the courts of this country for purposes different from that with which he was immediately concerned. I do not feel myself

bound by anything said in Hyde v Hyde, or any of the other cases on which reliance was placed in this connection, to hold that, for the purposes of the present

petition, the court is bound, or ought, to disregard the existence of the Hindu marriage. The problem, as it seems to me, requires to be approached de novo and

from quite a different angle; that was the view which the judge took and, if I may respectfully say so, I entirely agree with the decision to which he came. The

question as it presents itself to my mind is simply this: On 5 May 1939, when the appellant took the respondent to the registry office was he, or was he not, a

married man so as to be incapable of entering into another legitimate union?

The proposition would not be disputed that in general the status of a person depends upon his personal law, which is the law of his domicil. By the law of

the appellant’s domicil at the time of his Hindu marriage he unquestionably acquired the status of a married man according to Hindu law; he was married for

all the purposes of Hindu law, and he had imposed upon him the rights and obligations which that status confers under that law. That status he never lost.

Nothing that happened afterwards, save the dissolution of the marriage if it be possible according to Hindu law, could deprive him of the status of a married

man which he acquired under Hindu law at the time of his Hindu marriage; he was, therefore, a married man on 5 May 1939, according to Hindu 􀂭 345􀀉 law.

Did that circumstances prevent him from entering into a valid marriage in this country? It is said that it did not because, whatever Hindu law may say and

whatever his position may be in India, this country will not recognise the validity of the Hindu marriage.

We are not considering in this case the question of construction of any words such as “marriage,” “husband,” “wife,” and so forth in the Divorce Acts.

We are considering whether, according to what would have been the old ecclesiastical law, the existence of the Hindu marriage formed a bar. For the purpose

of that consideration, what was his status on 5 May 1939? Unquestionably it was that of a married man. Will that status be recognised in this country?

English law certainly does not refuse all recognition of that status. For many purposes, quite obviously, the status would have to be recognised. If a Hindu

domiciled in India died intestate in England leaving personal property in this country, the succession to the personal property would be governed by the law of

his domicil, and in applying the law of his domicil effect would have to be given to the rights of any children of the Hindu marriage, to the rights of his Hindu

widow, and for that purpose the courts of this country would be bound to recognise the validity of Hindu marriage so far as it bears on the title to personal

property left by an intestate here; one can think of other cases.

Lord Maugham LC, who delivered the leading opinion of the Committee of Privileges in the Sinha (Peerage) Case, said this:

‘On the other hand, it cannot, I think, be doubted now (notwithstanding some earlier dicta by eminent judges) that a Hindu marriage between

persons domiciled in India is recognised in our courts, that the issue are regarded as legitimate, and that such issue can succeed to property in this

country, with a possible exception which will be referred to later … ’

That was the well known exception of real estate. We have not been referred to the cases, if any, to which Lord Maugham LC was referring, and, in fact I do

not know of any English cases; there are cases no doubt in the Privy Council, but whether there are any purely English cases I do not know. But I do get

assistance from that paragraph, quite apart from the question of authorities, as showing the way in which these problems were striking a great master of the

law—if I may say so—and one particularly familiar with problems of private international law. At any rate, if he was not asserting what the law had been

settled to be by decisions of the English courts he was at least expressing his own opinion and to that I would give the greatest respect. But, quite apart from

that, it seems to me that the matter rests in this way: the courts of this country do for some purposes give effect to the law of the domicil as affixing or

imposing a particular status on a given person. It would be wrong to say that for all purposes the law of the domicil is necessarily conclusive as to capacity

arising from status. There are some things which the court of this country will not allow a person in this country to do whatever status with its consequential

capacity or incapacity the law of his domicil may give him. The status of slavery would not be recognised here, nor would a variety of other things involved

in status. In the case of infants where different countries have different laws, it certainly is the view of high authority here that capacity to enter in England

into an ordinary commercial contract is determined not by the law of the domicil but by the lex loci. Those are merely illustrations: I do not stop to cite

authority about them. I refer to them in order to show that there cannot be any hard and fast rule relating to the application of the law of the domicil as

determining status and capacity for the purpose of transactions in this country.

The practical question in this case appears to be: Will the courts of this country, in deciding upon the question of the validity of this English marriage,

give effect to what was undoubtedly the status possessed by the appellant? That question we have to decide with due regard to common sense and some

attention to reasonable policy. We are not fettered by any concluded decision on the matter. The judge set out in a striking manner some of the consequences

which would flow from disregarding the Hindu marriage for present purposes. I think it is certainly a matter which we must bear in mind that the prospect of

an English court saying that it will not regard the status of marriage conferred by a Hindu ceremony would be a curious one when the Privy Council might

come to a precisely opposite conclusion as to the validity of such a marriage on an 􀂭 346􀀉 Indian appeal. I do not think we can disregard that circumstance.

We have to apply the law in a state of affairs in which this question of the validity of Hindu marriages is necessarily of very great practical importance in the

everyday running of our Commonwealth and Empire.

I should like to add one example to those given by the judge, which appears to me to lead conclusively to the result that in this case we are bound to say

that on 5 May 1939, the status of the appellant was that of a married man such as to preclude him from entering into a valid contract of marriage in this

country. The consideration which weighs with me very heavily is this: If the marriage with the respondent was a valid marriage it would have this

consequence, that she is entitled to the consortium of her husband to the exclusion of any other woman, that he is entitled to the consortium of his wife, and

that she is bound according to our notions of law to live with him provided he gives her a suitable home. If he decided to go back to India it would be her duty

as a wife to follow him to the home that he would provide. Now assume that takes place. Directly they land in India by the law of India he is a man married

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to the Indian lady, and assuming that Hindu law would be the same in this respect as English law, that Hindu lady is his lawful wife in India and as such would

be entitled to his consortium, and he would be entitled to insist that she should live with him and she would be entitled to insist that he should provide a home

for her. The position, therefore, would be this, that this English lady would find herself compelled in India either to leave her husband or to share him with his

Indian wife. What the position would be with regard to divorce in India I do not know, but if he had an Indian domicil she apparently could not divorce him in

England. Whether or not she could divorce him in India because in India he was associating with a woman who under Indian law was his lawful wife I do not

know and I do not stop to enquire.

Is it right that the courts of this country should give effect to a ceremony of marriage, the result of which would be to put the respondent into such a

position? It seems to me that effect must be given to common sense and decency. On a question which is not covered by authority considerations of that kind

must carry very great weight. On principle it seems to me that the courts are for this purpose bound to recognise the Indian marriage as a valid marriage and

an effective bar to any subsequent marriage in this country. Those are the short grounds on which I think appeal should be decided.

I may perhaps conclude by saying this, that the opinion which I have formed relates solely to the facts of the present case which are simply and solely the

validity of the English marriage in the circumstances of this case. I must not be taken as suggesting that for every purpose and in every context an Indian

marriage such as this would be regarded as a valid marriage in this country. Counsel for the appellant in his reply drew an alarming picture of the effect of our

decision on the law of bigamy if we were to decide against him. He having said that, I think it right to say that nothing that I have said must be taken as

having the slightest bearing on the question of the law of bigamy which says under the statute “Whosoever, being married, shall marry any other person during

the life of the former husband or wife … ” On the question of whether a person is “married” within the meaning of that statute (which is a criminal statute)

when he has entered into a Hindu marriage in India I am not going to express any opinion whatever. It seems to me a different question in which other

considerations may well come into play. I hope sincerely that nobody will endeavour to spell out of what I have said anything to cover such a question. In the

result the appeal must be dismissed.

MORTON LJ. Agreeing as I do with the view of Lord Greene MR that this appeal must be dismissed on the short ground that he has stated, I do not think

that I can usefully add anything.

BUCKNILL LJ. I agree that the appeal should be dismissed.

Appeal dismissed.

Solicitors: Henry S L Polak & Co (for the appellant); Haslewood, Hare & Co agents for W H Hadfield, Farnham, Surrey (for the respondent).

F Guttman Esq Barrister.

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[1946] 1 All ER 348