Parwatawwa v. Channawwa

Essential validity of a marriage turns on capacity, and there are two competing theories: the dual domicile theory, requiring capacity by the antenuptial domiciliary law of each party, and the intended matrimonial home theory. English authority is divided and, as this case shows, irreconcilable. Parwatawwa is the Indian answer, and it goes the other way from Dicey's rule.

It matters for a second, structural reason: it is not an international case at all. Hyderabad and Bombay were both in India. This is the inter-territorial conflict of laws, which is why the Indian material on this paper behaves differently from the English.

Siddalingiah was a permanent resident of the erstwhile State of Hyderabad, governed by the Mitakshara school, which did not prohibit polygamy. In 1951 he went through a marriage in the then State of Bombay with the plaintiff, whose law — the Bombay Act — forbade a polygamous marriage. His first wife was living.

After the marriage the plaintiff lived with him in Hyderabad. On his death the question was whether she was a widow entitled to succeed.

For the defendant it was argued that Rule 31 in Dicey required capacity in "each of the parties," so that the wife's incapacity by her own law of domicile invalidated the marriage.

Only one law should govern capacity, and "that law is the law of the husband's domicile if not the law of the intended matrimonial home".

On the facts both pointed the same way — Hyderabad — so the marriage was good and the plaintiff succeeded as widow.

Step one: work through the English authority and find it self-contradictory. Mette v. Mette: "there could be no valid contract unless each was competent to contract with the other." Sottomayor v. De Barros in the Court of Appeal: "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." But the Court of Appeal had expressly confined itself — "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." — and on remittal, when the husband's domicile turned out to be English and not Portuguese, Sir James Hannen P. pronounced the marriage valid. The Mysore High Court said so in terms: "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&TR 416: 164 ER 792."

Step two: reject dual domicile on workability. "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." Two laws in conflict give no answer at all: if each party must be capable by his or her own law, then wherever the two laws differ the marriage fails, whatever either system thinks of it.

Step three: choose a single governing law, and say why. "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".

Step four: name the law. The husband's domicile, with the intended matrimonial home as the alternative. Note the order — the husband's domicile is primary. On these facts they coincided, so the choice between them was not forced.

Two independent supports, both examinable.

• The personal law travels with the person. Lord Brougham's illustration: "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". The Court applied this in reverse — a man whose personal law permits polygamy carries that capacity into a territory whose local law does not.
• The presumption of validity from cohabitation. "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".

It opens: Which law governs capacity to marry? and any problem where the parties' antenuptial domiciliary laws differ on a prohibition — polygamy, prohibited degrees, age, parental consent treated as capacity.

Do not overstate it. Its primary rule is the husband's domicile; the intended matrimonial home is an alternative that happened to coincide. An answer that presents it as simply adopting the intended-matrimonial-home theory is wrong.

Criticise it honestly. The husband's-domicile rule prefers one spouse's law for no reason but sex, which is the same objection that lies against the domicile-of-dependence rule in the Indian succession legislation. But acknowledge that the Court's stated reason — the elimination of uncertainty — is real, and that dual domicile cannot meet it.

Keep form and capacity apart. Formal validity is for the lex loci celebrationis, on Simonin v. Mallac, where a French domiciled couple married in England without the consent French law required and the marriage stood, evasion being irrelevant to formal validity; and a marriage invalid when celebrated may be validated retrospectively by the lex loci, on Starkowski v. Attorney General. Capacity is the separate question this case answers. Ogden v. Ogden is the warning of what happens when the line between form and capacity is drawn badly — a limping marriage.

Add Brook v. Brook for the dual domicile position at its clearest: two English-domiciled parties married in Denmark, where the marriage was lawful and English law forbade it; held invalid. And Mette for the case where both theories coincide — which shows that the choice of theory matters only when the antenuptial domiciles differ and differ from the home the parties intend.

It does not decide: the timing question in general — though note that capacity here was tested at the time of the marriage; nor anything about recognition of a foreign divorce, nor about legitimacy, for which Mira Devi supplies the principle that personal status accompanies a man everywhere while the lex situs governs succession to immovables, taking the claimant's status as it finds it.