MacDougall v Chitnavis
| Jurisdiction | Scotland |
| Judgment Date | 09 February 1937 |
| Docket Number | No. 33. |
| Date | 09 February 1937 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Jamieson.
JurisdictionDeclarator of nullity of marriage by womanMarriage entered into in Scotland by Scots woman and IndianHusband domiciled and resident in India at date of action.
A Scots woman married an Indian in Scotland. There was one child of the marriage. After the parties had lived together for several years, latterly in India, the woman returned to Scotland and brought an action of declarator of nullity of marriage. At the date of the action the man was domiciled and resident in India.
The summons was served personally on him, and he did not defend the action.
Held that the Court had jurisdiction to try the action.
Observed that the question of jurisdiction was not free from difficulty, and that the general question whether the Court of the man's domicile had not exclusive jurisdiction in actions of nullity might require to be reconsidered.
Administrator of Austrian Property v. Von LorangELR, 1927 S. C. (H. L.) 80, [1927] A. C. 641, commented on.
International LawBritish Law Ascertainment Act, 1859 (22 and 23 Vict. cap. 63)Marriage entered into in Scotland by Scots woman and HinduHusband domiciled in IndiaAction of nullity in Court of Session based on invalidity of marriage under Hindu lawWhether necessary or expedient to ascertain opinion of Indian Court regarding validity of marriage.
A Scots woman, who had married a domiciled Indian, brought an action of declarator of nullity of marriage in the Court of Session as theforum loci celebrationis. She maintained, inter alia,that the defender, being of the Hindu religion, was not capable by the law of his domicile of contracting a valid marriage outside Hinduism. The Lord Ordinary having, on evidence, rejected this contention and dismissed the action, the pursuer reclaimed, and, after the Court had made avizandum, moved the Court to direct the preparation of a case under the British Law Ascertainment Act, 1859, for the purpose of ascertaining the opinion of the Indian Court on the question whether the marriage was valid according to Indian law.
Held that it was neither necessary nor expedient to ascertain the opinion of the Indian Court; and motion refused.
Husband and WifeValidity of marriageMarriage entered into in Scotland by Scots woman and HinduHusband's capacity for marriage outside HinduismErrorConsensus in idem.
A Scots woman, who had married a Hindu in Scotland, brought an action of declarator of nullity of marriage, in which she maintained (1) that there had been no consensus in idem, in respect that she had contracted on the basis that the marriage would give her the status in India of a lawful wife, whereas the defender had known that it would not do so, and (2) that the defender, by the law of his Indian domicile, had not been capable of contracting a valid marriage outside Hinduism. The evidence established that the defender was under a religious disability whereby he was prohibited from marrying outside Hinduism while he remained a Hindu himself.
Held that there had been a deliberate exchange of consent to marriage, and that the religious disability imposed on the defender was not of a kind which rendered the marriage invalid; and actiondismissed.
Chetti v. Chetti, [1909] P. 67,followed.
Lendrum v. ChakravartiUNK, 1929 S. L. T. 96, 1928 S. N. 161, overruled.
On 5th February 1936 Agnes Isobel MacDougall, 1 Upper Gilmore Place, Edinburgh, brought an action against Anand Shanker Rao Chitnavis, resident in India, concluding for declarator of the nullity of their pretended marriage at Edinburgh on 4th August 1927. The summons was served personally on the defender, but he did not defend the action.
A proof was allowed and led. The following narrative of the facts established at the proof is taken from the opinion of the Lord Ordinary (Jamieson):
"The pursuer is a Scots woman. In 1922 she met the defender, a Hindu, who was then a student at the University of Edinburgh. About two years later they became engaged to be married, and on 4th August 1927 they went through a form of marriage by declaration before witnesses in Edinburgh, and the marriage was registered under warrant of the Sheriff. At the time of the marriage the pursuer was twenty years of age and the defender twenty four. One of the witnesses was the pursuer's mother. After the marriage they lived together in a house in Blenheim Place, Edinburgh, which was furnished with some assistance from the pursuer's mother. On 16th February 1928 a son of the marriage was born, prematurely because of an accident the pursuer had sustained, but the child lived and is now believed to be in India with the defender. The parties continued to live in Edinburgh as man and wife until September 1929, when, the defender having taken his degree of B.Sc. in the spring of that year, he decided to return to India, taking his wife and child with him. Until shortly before their return the marriage had been kept a secret from the defender's father, who was a district or stipendiary judge in the Central Provinces.
"On arrival in India they were given apartments in the house of the defender's father, living in the English style apart from the rest of the household, and the pursuer was not recognised by the defender's relations as his wife. In the beginning of 1930 the defender obtained temporary employment in Assam, living in a hut in the jungle. The pursuer remained in the house of the defender's father till five or six months later, when she went to stay in Assam with a friend, a Scottish woman, who had married an Assamese. Shortly afterwards the defender lost his employment, and the parties returned to the house to which the defender's father had moved at Warda in the Central Provinces, living again for a time in rooms separate from the rest of the household. An attempt was then made to induce the pursuer to become a convert to Hinduism and go through the ceremony of a Hindu marriage. On her refusal early in 1932 the defender went to live in the Indian quarters of the house, and marital relations ceased. Finally, the pursuer, finding her life unbearable, was able through the help of a missionary to get away, and returned to Scotland, in September 1932. She now seeks to have the marriage declared null in this Court. The summons was served personally on the defender in India, and he has not appeared to defend."
The pursuer deponed in evidence that, before marrying the defender, she had known that he would eventually return to India, and she had intended to live there; but she had understood that in India her position as a wife would be just the same as in Scotland, and, if she had thought that she would not be recognised in law as his wife in India, she would not have gone through the ceremony of marriage.
Evidence was also led regarding the capacity of the defender, as a Hindu, for marriage with the pursuer. This evidence, which is more fully referred to in the opinions of the judges, established that the defender was under a religious disability, whereby he was prohibited from marrying outside Hinduism so long as he remained a Hindu himself; but it did not satisfy the Court that the marriage was invalid by the law of India.
The pursuer pleaded, inter alia:"(1) In respect that the only consent given by the pursuer was to a marriage which would confer on her the status of a lawful wife, and as the said pretended marriage did not do so, there was no consensus in idem between the parties, et separatim no real consent by the pursuer, and, accordingly, decree of nullity should be pronounced as concluded for." "(3) In respect that by the defender's domicile regulating his status and capacity he was not legally capable of contracting a valid marriage with the pursuer, et separatim the said pretended marriage does not confer on the pursuer the status of a lawful wife, decree of declarator of nullity should be pronounced."
On 11th December 1936 the Lord Ordinary, after considering the proof, dismissed the action.
LORD PRESIDENT (Normand).The pursuer, after avizandum was made in this case, asked that the Court should take steps under the British Law Ascertainment Act, 1859,1 to ascertain the opinion of the Indian Court on the question whether the marriage is valid according to Indian law. Before we can remit this question to the Indian Court we have to be reasonably satisfied that a remit is necessary or expedient for the proper disposal of the present action. The...
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