R. v. Hammersmith Revisited: The View From India
| Author | Lucy Carroll |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00850.x |
| Date | 01 July 1985 |
| Published date | 01 July 1985 |
R.
v.
HAMMERSMITH REVISITED: THE VIEW FROM INDIA
IN
R.
v.
Registrar
of
Marriages, Hammersmith,’
the English court
declined to recognise a
falaq
pronounced by a Muslim domiciled in
India as effectively dissolving a marriage solemnised in an English
registry office. Although many of the apparent grounds on which
this decision was reached would no longer convince an English
court, and although the decision has been adversely remarked
upon by both judges and commentators,
I
would suggest that, were
a similar factual situation to come before the English court today,
the actual decision could be
no
different from that reached nearly
seven decades ago, even were the
taluq
pronounced in India rather
than in London.2
Conveniently, Indian authority on the point is available from a
case recently decided by the High Court of Bombay,
Dr. Abdur
Rahim
v.
Smt. P~dma.~
The parties, both Indian citizens and
domiciliaries, were married in an English registry office in
1966.
In
1969
the spouses and their two children returned to India; two
more children were born in India. The marriage subsequently
broke down and the husband alleged that he had dissolved the
matrimonial tie by a
faluq
pronounced in
1978.
He prayed,
infer
alia,
for a declaration that the marriage had been legally terminated
by his pronouncement of the formula of divorce. The central issue
raised by the litigation was what law of divorce was applicable to a
civil marriage solemnised in England. The husband contended that
the law which applied was Muslim law,
i.e.
his personal law.
Two statutes of Independent India were considered by the
Bombay High Court in reaching its decision. The (Indian) Special
Marriage Act
1954
established a secular matrimonial regime which
may be utilised by any couple regardless of caste or communal
identification, and irrespective of whether or not the marriage is
inter-communal, or inter-religious. This Act provides for the
solemnisation of a marriage between any two adults, provided
neither has a spouse living and both are sane and are not related
within the specified prohibited degrees. It also provides for the
registration of marriages validly solemnised,
e.g.
according to
Muslim rites; after such registration the matrimonial relief provisions
’
[1917] 1 K.B. 634.
Under s.16(1) of the Domicile and Matrimonial Proceedings Act 1973, a
ralaq
pronounced in the United Kingdom, the Channel Islands,
or
the Isle
of
Man cannot be
recognised. See Lucy Carroll, “The Pakistani
Talaq
in English Law:
Ex
Parre
Minhar
and
Quazi
v.
Quazi”
[1982] 2
Islamic
and
Comparative
Law
Quarterly
17-37. See also
Chaudhary
v.
Chaudhary
[1984]
3
All
E.R.
1017, in which the High Court held that a
“bare”
talaq
pronounced in England was caught by s.16(1)
of
the 1973 Act; and
R.
v.
Sec.
of
State,
ex
p.
Farima
[1984] 2
All E.R.
458, in which the Court of Appeal (without
reference to
s.
16(1)) refused recognition to a Muslim Family Laws Ordinance
(“procedural”)
ralaq
in circumstances where the pronouncement had taken place in
England.
A.I.R.
1982 Bombay 341.
434
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