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TMI Blog1957 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... (S) AIR 1953 Bom 439)(A), had been correctly decided, and therefore, they referred the question as to the validity of the Act to the extent that it applies to marriages contracted outside the State of Bombay to a Full Bench. 2. Now, turning to the provisions of the Act, with which we are concerned, Section 3 defines a bigamous marriage and the definition is the ordinary definition of what a bigamous marriage is. Section 4 provides : Notwithstanding any law, custom or usage to the contrary, a bigamous marriage shall be void, (a) if it is contracted in this State after the coming into force of this Act, (b) if it is contracted beyond the limits of this State after the coming into force of this Act and either or both the contracting parties to such marriage are domiciled in this State , and Section 5 which is the penal section provides : Notwithstanding any law, custom or usage to the contrary, whoever not being a minor contracts a bigamous marriage which is void under Section 4 shall, on conviction, be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. And Section 8 which has also a bearing in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that a provincial legislature may make laws for the province or any part thereof. In order to decide what laws a provincial Legislature could make, one had to turn to the 7th Schedule of the Act and the topics on which a provincial Legislature could legislate were set out in List 2 which was the provincial Legislative list and in List 3 which was the concurrent list. List III contained subjects which could be legislated upon both by the Central and the Provincial Legislature. Now, the subjects with which we are concerned in this piece of legislation are criminal law and marriage. Criminal law is Entry No. 1 in the Concurrent List and Marriage is Entry No. 6 in the same list. Therefore, with regard to Criminal Law and Marriage, both the Provincial and the Central Legislature had concurrent power to legislate. But what is important to note and which is underlying the scheme of the Constitution is that the Central Legislature had overriding powers with regard to subjects in the concurrent list. It may also be pointed out what is well-known to any student of constitutional law, that the device of the concurrent list was peculiar to our constitution and it was incorporated in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there must be a territorial nexus between the subject matter and the State. If the Legislature is dealing with a subject matter, that subject matter must have some connection or relation to the territory with regard to which the legislature can legislate. In the absence of such a territorial nexus, a legislation dealing with a subject matter which is outside the boundaries of the province would be ultra vires the legislature. Now, in this case the subject matter of the legislation is firstly marriage and secondly crime. With regard to marriage, the legislature has attempted to legislate with regard to marriages contracted beyond the limits of the province or the State. If, therefore, the subject matter is marriage, it can only legislate with regard to that marriage which is contracted within the limits of the province or the Slate. If it legislates with regard to marriages contracted beyond those limits, a territorial nexus has got to be discovered between the State and the marriage contracted outside the limits with regard to which the legislature is attempting to legislate. Now, it is difficult to understand what territorial connection there is between a marriage contracted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enship and a State citizenship. Therefore, in India we have one citizenship, the citizenship of India. We have one domicile -- the domicile in India and we have one legal system -- the system that prevails in the whole country. The most that one can say about a person in a State is that he is permanently resident in a particular State. But as Halsbury points out, to which we have just made reference, the mere fact that a man's home may be fixed at a particular spot within the country does not make him domiciled in that spot but makes him domiciled in the whole country, and therefore, whether a man permanently resides in Bombay or Madras or Bengal or anywhere does not make him domiciled in Bombay, Madras or Bengal but makes him domiciled in India; Bombay, Madras and Bengal being particular spots in India as a country. 5. It has been suggested by the Government Pleader that every state can have its own laws and people in the State are subject to those laws, and therefore just as in the United State of America, it can be said in India that a person is domiciled in a particular State because he is governed by the laws of that State. Now, that argument is based upon a complete fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring has now been repealed by the Central Act. Therefore, fortunately today there is no law on the Statute book of the Bombay Legislature which has this expression which seems to suggest that the various States in India are independent countries where people may settle down and acquire a domicile. If we are right in what we have just said, then it is clear that the mere fact that the Legislature should seek to apply its law to those whom it chose to call domiciled in the State but which means permanently residents in the State, cannot enlarge the jurisdiction of the Legislature. If the Legislature could bring within its ambit marriages contracted outside the State of Bombay, then there is no reason why it should have confined its application merely to permanent residents. It could equally have applied that law to every person in Bombay who contracted a bigamous marriage outside the State of Bombay. It is said that Section 4(b) applies the Act to persons domiciled in the State who have contracted marriages outside the State in order to constitute a nexus between the State and the person domiciled. Now, it is difficult to understand how when the Legislature is dealing with the subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s domicile in an independent country confers upon its Legislature. 8. At p. 833 (of Bom LR): (at p. 443 of AIR), Mr. Justice Chainani, who delivered the Judgment of the Court points out: The Provincial Legislature had power to enact a law with respect of marriage for the whole Province. It could make such laws applicable to all persons residing within its jurisdiction. It could prohibit them from performing a bigamous marriage within the Province. It could also say that no Court or authority in the Province shall recognise such marriage, whether performed within or outside the Province. So far we might say so, with respect, the propositions enunciated are unexceptional. Then the learned Judge goes on to say: It is difficult to see why it could not also require persons domiciled, i.e., having a permanent home in the Province, to obey the law even when they went outside the Province temporarily for the consequences of their actions were likely to arise within the Province. The question that has to be considered is what is the law which the residents of the Province are called upon to obey. If it is a law, the subject-matter of which is constituted outside the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested, is that although marriage is the subject-matter of the legislation and although marriage is contracted outside the State, the Provincial Legislature can legislate with regard to marriage merely because those who contract the marriages are residents of the State of Bombay. This is a proposition to which we find it very difficult to subscribe. 10. Then the learned Judge refers to the case of Macleod v. Attorney-General for New South Wales, 1891 AC 455 (B). In our opinion that is the only decision referred to in the judgment which is practically on all fours with, the case that we are considering and which has correctly enunciated the proposition of law which should find acceptance at our hands. In that case Macleod had been convicted in the colony of New South Wales for bigamy for having married in the United States while his first wife by legal marriage was living and his conviction was challenged, and in construing the Act, the learned Law Lords pointed out: Their Lordships do not desire to attribute to the Colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, incons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat have to be considered when dealing with a ease of marriage or crime. Therefore, in our opinion, with very great respect, this judgment was erroneously decided because it came to the conclusion that the impugned Act was valid when in Section 4(b) it dealt with marriages contracted beyond the limits of the Province or the State. 12. The other case to which our attention has been called by the Government Pleader is the decision of House of Lords, Brook v. Brook, (1861) 9 HLC 193 (F). In that case A and B British subjects inter-married; B died; A and C being both at the time lawfully domiciled British subjects, went abroad to Denmark, where, by the law, the marriage of a man with the sister of his deceased wife is valid, and were there duly, according to the laws of Denmark, married and the English Court held that the marriage in Denmark was void. Now, under the English law as obtaining at that time, no valid marriage could be contracted between a man and the sister of his deceased wife. This decision is nothing more than an enunciation of the well-known principle of international law that as far as the validity of the marriage is concerned, the law that must be applied is the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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