Validity of Same Sex marriages in Private Intl law

Keywords: private international law, conflict of laws, same-sex marriage, gay, lesbian, sexual orientation/minority, domestic partnership, foreign marriages act.

VALIDITY OF SAME-SEX MARRIAGES & DOMESTIC PARTNERSHIP AGREEMENTS UNDER PRIVATE INTERNATIONAL LAW - TARUNABH KHAITAN TABLE OF CONTENTS

TABLE OF CASES 3 TABLE OF STATUTES 3 1. INTRODUCTION 4 2. RESEARCH METHODOLOGY 7 3. ENGLISH PIL PRINCIPLES ON VALIDITY OF A MARRIAGE 8 4. THE PUBLIC POLICY EXCEPTION 10 5. THE INDIAN PIL ON VALIDITY OF MARRIAGE – FOREIGN MARRIAGE ACT 14 6. CONCLUSION 18

TABLE OF CASES 1. Abdul Rahim v. Padma, AIR 1982 Bom 341. 2. Baehr v. Lewin, 852 P.2d 44. 3. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 at 1612. 4. Estate of Bir, 83 Cal. App. 2d 256 (1948). 5. Loucks v. Standard Oil Co., 224 N.Y. 99, 111. 6. Payal Sharma v. Superintendent, Nari Niketan, Agra, AIR 2001 All 254. 7. Vervaeke v. Smith, [1983] 1 A.C. 145.

TABLE OF STATUTES British Marriage Act, 1949. Defense of Marriage Act [U.S.], 1996. Foreign Marriage Act [England], 1891. Foreign Marriage Act [India], 1969. Indian Penal Code, 1860. Pacte Civil de Solidarite [France], 1999. Registered Partnership Act [Denmark], 1989. Registered Partnership Act [Iceland], 1996. Registered Partnership Act [Norway], 1993. Registered Partnership Act [Sweden], 1995. Special Marriage Act [India], 1954.

1. INTRODUCTION Early this year, Wendell Rodricks, India’s most prominent fashion designer got “married” to his French partner Jerome in the French consulate in Goa, which was touted by the media as India’s first gay marriage. The ‘marriage’ is legally speaking is a gay civil union under the Pacte Civil de Solidarite (PACS) of the French law which grants legal recognition to civil unions between same-sex couples and bestows on such unions certain rights and obligations available to couples in a conventional marriage.

The union, though governed by French law in this particular case, raises interesting issues under Private International Law for the simple reason that this is one area where laws of different countries are as different as is possible. They range from the public policy of certain countries mandating death penalty for people committing homosexual acts to ones which treat same-sex relationships at par with heterosexual marriages.

Marriage as a legal as well as social act, has huge implications as far as rights and duties of individuals are concerned. It is more than a civil act and enjoys a legal status because of state-created rights, obligations and duties. Of course the most important of these rights is the right to live together openly as a married couple, referred to as the "right to cohabitation". Other rights and obligations relate to a wide range of issues including divorce, property, inheritance, maintenance, adoption, employee benefits, pension, insurance, visitation rights when under medical or penal supervision, immunity under criminal law from testifying against the partner, restitution of conjugal rights etc.

A number of countries have moved towards granting some sort of legal recognition to same-sex relationships. Denmark was the first nation to enact the Registered Partnership Act in 1989. This Act applies only to same-sex couples, and they are given rights in areas of property, inheritance, immigration, tax, and social security. However, there are some restrictions: couples are not permitted to adopt children, they cannot have an official wedding in the state church, one person in the couple must be Danish, and the partnership is only recognized in Scandinavia. Norway followed suit in 1993 when their government enacted the Norwegian Registered Partnerships Act. This Act is similar in content to the Danish Act. Sweden, also, enacted a Registered Partnership Act in 1995 which is like the Denmark Act. However it does not allow adoption of children or producing them through artificial means. In 1995, Sweden, Norway and Denmark agreed to recognize same-sex partnerships among these three countries. In addition, Iceland enacted a Registered Partnership Act in 1996, which is similar to the Danish Act. It allows partners to adopt each other's children but prohibits the adoption of children not biologically related to one partner. In France, the National Assembly passed the Civil Solidarity Pact (PACS) on October 13, 1999. Unwed couples and even same-sex couples can register their union to enjoy some of the tax, legal and social welfare benefits that couples receive with marriage. Netherlands has granted same-sex couples the right to marry, and the legal incidents is almost exactly the same as it is for straight couples. Italy, Britain, Finland, Belgium, Italy, Portugal, Spain, Switzerland, the Czech Republic, and Brazil are also in the process of expanding rights to homosexuals.

In U.S., in May of 1993, the Hawaii Supreme Court issued an historic ruling for advocates of same-sex marriage. In the case of Baehr v. Lewin , the court ruled that the failure to grant marriage licenses to same- sex couples was sex discrimination, subject to strict scrutiny. Vermont and Massachusetts have also legalized same-sex relationships and second-parent adoption of children. However, such liberal trends have not gone unopposed even in the U.S. Under conservative pressure, the U.S. Congress enacted the Defense of Marriage Act, 1996 which expressly enacts that the full faith and credit clause does not obligate the courts of one state to recognise a validly performed same-sex marriage in another state.

The move towards recognition of same-sex unions in some countries is matched with extreme homophobia in others. In a 1993 survey by the International Lesbian and Gay Association (IGLA), 144 out of 178 countries still have negative societal attitudes toward homosexuals. Seventy- four of these countries still hold homosexual behavior to be illegal with punishment ranging from fines, to imprisonment, or death. In India, s. 377 of the Indian Penal Code, 1860 criminalizes ‘carnal intercourse against the order of nature’, though it applies to all people irrespective of their sexual orientation. There is no law in India which grants recognition to same-sex relationships.

Given such diversity in laws, once such couples change their domicile, their status becomes uncertain. Also, when the couples are domiciled to different legal systems, which have a divergence of view on the issue of same-sex relationships, problems may crop up. Again, a couple might go for forum-shopping to get married at a convenient forum, while both their domiciles do not allow such unions.

Another problem is that given the half-way house approach most countries have adopted in recognising such unions (except Netherlands, all others allow some form of domestic partnership, which is different from a conventional marriage), it is doubtful whether PIL rules relating to marriage will apply or the ones relating to contract or both. However, in closer analysis, it is revealed that even though contractual euphemisms like ‘partnerships’ etc. are sometimes used to describe such arrangements, it has the trappings of a marriage as understood traditionally. It is certainly more akin to marriage than to a contract, and therefore principles of private international laws relating to marriage should apply to such relationships. Therefore, the analysis that will follow in the subsequent chapters will be under the marriage laws, and the term ‘same-sex marriages’ will be used to include domestic partnership arrangements and other civil unions as well.

1. RESEARCH METHODOLOGY

This project attempts to examine the interplay of private international law principles on the issue of same sex marriages, particularly given the great divergence in the laws of different jurisdictions over the issue. This paper is largely an analytical enterprise.

The following are the research questions in this project: 1. What are the traditional rules of private international law in relation to validity of marriage? 2. How will these rules apply to same-sex marriages? 3. How will the public policy exception to foreign law be dealt with by courts in the context of same sex marriages? 4. Does the Indian law as laid down under the Foreign Marriage Act differ from the English principles? 5.If yes, how will the issue be viewed within the parameters of the Act?

A major limitation of this paper has been the absence of any direct case-law on the point in any jurisdiction till date which the researcher could come across. This, obviously is due to the relative novelty of the concept of same-sex marriages.

A uniform mode of citation has been followed throughout.

1. ENGLISH PIL PRINCIPLES ON VALIDITY OF A MARRIAGE

In this Chapter, traditional common law rules of private international law governing the validity of marriage and capacity of parties are discussed in the context of same-sex marriages.

In Rule 67, Dicey and Morris iterate the following on the formal validity of marriage: “A marriage is formally valid when (and only when) any one of the following conditions as to the form of celebration is complied with (that is to say): (1) if the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country where the marriage was celebrated; (2) if the marriage is celebrated in accordance with the requirements of the English common law in a country where the use of the local form is impossible; ………”

Traditionally, a distinction is drawn between the formal validity of marriage and the capacity of parties to marry. Capacity to marry is governed by the law of the domicile of the parties. Form however is governed by the lex loci celebrationis.

However, the issue with respect to same sex marriage is more to do with capacity of parties to enter into a relationship with each other than with the form of marriage. Dicey lays down Rule 68 with regard to the validity of marriage with respect to capacity of parties: (1) ……… a marriage is valid as regards capacity when each of the parties has, according to the law of his or her antenuptial domicile, the capacity to marry the other. (2) Subject to Exceptions 3, 4 and 5 below, a marriage is (normally) invalid when either of the parties lacks, according to the law of his or her antenuptial domicile, the capacity to marry the other.

So, according to the above rule, the spouses have to be domiciled in countries which allow same-sex marriages at the time of their marriage for the marriage to be valid. In the above rule, two exceptions provided by Dicey are relevant.

Exception 3 states that [t]he validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile is not affected by any incapacity which, though existing under the law of such foreign domicile, does not exist under the law of England. Thus there is a national bias in this exception which strengthens the presumption of validity of a marriage. The import of this rule is that if the forum country allowed same-sex marriage, then even if one of the spouses is domiciled in that country, the forum’s court will hold it to be a valid marriage. Exception 5 says that [a] marriage is not invalid on account of any incapacity which, though imposed by the law of the domicile of both or either of the parties, is penal, discriminatory or otherwise contrary to public policy .

For example, a prohibition on marriages between persons of different colours, religions or castes would not be tolerated by English courts. In other words, English law will not recognise a penal status affecting a particular class of persons although it may be recognised by the law of their domicile. Though there is no direct authority on the point, however, the public policy of some countries which allow same-sex marriages and even have anti-discrimination laws to protect gay and lesbian people, may be said to hold lex domicile not allowing same-sex marriages to be penal, and therefore within the scope of this exception. This case is particularly strong in case of countries like South Africa, Canada etc. whose Constitution expressly contain or have been interpreted to contain a non-discrimination clause protecting such population.

However, the issue with respect to both the above Exceptions is that they only validate the marriage for the purpose of the State where the parties got married, i.e. the Courts of the forum state are mandated to ignore the lex domicile in both these instances. But if the parties go to another country or return to their country of domicile, these exceptions are of no use to them. So, if two Indians get married say in Canada, by application of this rule (assuming that this is a private international law principle in Canada as well), the marriage will be valid for the Canadian courts and they will not look into the fact that Indian law does not allow such marriage.

Looking at the above rules in the context of India, given that Indian law does not recognise same-sex marriages, even if one of the parties was domiciled in India at the time of marriage, s/he lacked the capacity to marry, and therefore the marriage will be invalid under Indian law. However, if at the time of the marriage parties were domiciled in a country which allowed such marriages and the form of celebration was in accordance with lex loci celebrationis, Indian courts should recognise such marriage if occasion arises in the future. However, there is another general public policy exception to all rules of private international law, which may make it difficult for the courts to do so. The next chapter shall deal with this public policy exception.

1. THE PUBLIC POLICY EXCEPTION

Public policy of the forum State is a general exception devised by common law to refuse to recognise the law of a foreign country. In Dicey’s words expressed as Rule 2, English courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law. According to Story, the public policy exception specifies that a foreign law need not be applied by a court if: (1) the forum state has a "positive rule, affirming, or denying, or restraining the operation of foreign laws," or (2) the foreign law is "repugnant to . . . [the forum state's] policy, or prejudicial to its interests."

The courts of all countries insist on applying to a case otherwise governed by foreign law those principles of their own law which, in their own view, express basic ideas of public policy. But a mere difference between the laws or policies of the two fora is not sufficient to exclude the application of the foreign law on the ground of public policy. As Judge Cardozo put it, the courts will not refuse to enforce or recognise a foreign right unless it would “violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of common weal.” However, the exception must be exercised with care and the presumption of validity of marriage should also be kept in mind.

So, if a court considers same-sex marriages against the basic public policy of its forum State, it may refuse to recognise it. The next section is an inquiry into whether same-sex marriages are against the public policy of India.

Do same-sex marriages violate Indian public policy? While addressing this question, the first issue obviously is s. 377 of the Indian Penal Code, 1860 which criminalises unnatural carnal intercourse . Clearly, even though the provision does not specifically mention homosexual conduct, and the offence under it can be committed by a man and a woman as well, it covers all instances of intercourse between two men. Therefore, any validation of conjugality between two men will be against the policy behind this provision, since to "consummate" a same-sex marriage within India, a couple would have to commit the crime of sodomy. One commentator explains the significance of this point as follows: Criminalizing intimate contact between same-sex couples is not only a prohibition of the law but also the strongest possible expression that an act violates the public policy of a state, and a court may very well use the existence of a state sodomy law as a basis for ruling that same-sex marriages violate a strong public policy of the state.

However, s. 377 is under great criticism from human rights groups as well as certain State institutions. The Law Commission in its 172nd Report on the review of rape laws recommended the deletion of s. 377. A petition is pending before the Delhi High Court challenging the constitutionality of the provision as violative of right to equality and life and liberty. Certainly, the policy behind the section has come under serious questioning. Also, the great infrequency with which this provision is enforced suggests that prohibiting sodomy should not be viewed as a strong public policy; therefore, such laws are not a sufficient basis for denying recognition to a marriage validly contracted in another state. Whether it can still be construed as a basic public policy of India is dubious. This is particularly relevant in the light of the Supreme Court pronouncement that "[p]ublic policy connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time." Therefore the concept of public policy itself is not static but is capable of changing with time. However, as long as it does exist on the statute book, it is a powerful tool in the hands of the court to validly refuse to recognise a same-sex marriage solemnised under the law of another country.

However, s. 377 does not cover within its ambit sexual intercourse between two women. Does this mean that there is no public policy against same-sex relationships between women? The point is further underscored when in a recent case in Kerala when tow women decided to live together, a complaint was filed in the Magistrate’s Court in Thrissur by the brother of one of them. The Court said that there was nothing in the law to prevent them from exercising their freedom as adults to choose who they wanted to live with. The legal reasoning followed was the same as was done by the Allahabad High Court in Payal Sharma alias Kamla Sharma v. Superintendent, Nari Niketan, Agra , where the Court allowed a man and a woman to live together without getting married recognising their right as consenting adults who were not violating any law. So, it is clear that the idea of two adult women cohabiting conjugally cannot be against the public policy of the State. If under domestic law the Courts have allowed them to live together, surely it must allow two women validly married under a foreign law to do so, since the public policy component under private international law is much weaker than in domestic law. In Vervaeke v. Smith, it was held that courts are slower to invoke public policy in cases involving a foreign element than when a purely municipal legal issue is involved. So, there appears to be nothing in Indian public policy to prevent a same-sex marriage at least between two women.

In which cases can the public policy exception be exercised: What is usually in question is not the foreign law in the abstract, but the results of its enforcement or recognition in the forum State in the concrete case. Thus, for example, the English courts may well regard a foreign law which permits polygamy immoral. But, if such a marriage has taken place under a foreign law according to which it is valid, and especially if children have been born, it may be better to recognise it than to disturb settled family relationships by holding the marriage invalid and the children illegitimate on the grounds of public policy. Thus, no polygamously married spouse could obtain divorce from the court (until 1972 in England); but the spouses would be treated as married persons and thus incapable of contracting valid marriage in England, the children would be treated as legitimate, and the wife would be entitled to assert rights of succession and other rights on the footing that she was a wife. On another hypothetical case, say a foreign law allows a fifty year old bachelor to adopt a seventeen year old spinster, the courts might refuse to grant custody on the basis of public policy, but there is no reason for not allowing her to succeed to his property as his ‘child’ on his death intestate. Thus, as Dicey says, ‘[p]ublic policy in such cases is not absolute but relative’. A case to illustrate the point is Estate of Bir , where the Court of Appeals was called upon to settle a dispute between the two surviving spouses to an Indian polygamous marriage. In Estate of Bir, Dalip Singh Bir legally married two women in India and then relocated himself and his two wives to California. Mr. Bir later died intestate, and his two wives petitioned the court to determine their respective inheritance rights, claiming that each should get an equal share of his estate. The trial court had concluded that it would violate California's public policy to recognize both marriages as valid. The Bir court reversed on this point, declaring: “The decision of the trial court was influenced by the rule of "public policy"; but that rule, it would seem, would apply only if decedent had attempted to cohabit with his two wives in California. Where only the question of descent of property is involved, "public policy" is not affected. . . . "Public policy" would not be affected by dividing the money equally between the two wives, particularly since there is no contest between them and they are the only interested parties.” Thus, though it is not necessary for a court to give effect to the results or incidents attributed to it by the foreign law including the capacities and incapacities of the people affected, the problem is to determine what incidents should be accepted and what should be rejected.

Thus, even if it is conceded that, to whatever extent, Indian public policy is against same-sex marriage, the public policy exception cannot be applied in a blanket fashion in all disputes concerning a same-sex marriage. Drawing analogy from the Bir Estate case, succession as an incident of a same-sex marriage should be recognised by the courts in India. The analogy is strong, because like the s. 377, IPC, California also had penal legislation against polygamous marriages, still it did not prevent the court from doing what it did.

A case can be made out for analogising the treatment of polygamous marriages by British Courts which considers them to be against the public policy of the State, with same-sex marriages. English polygamy law today treats certain potentially polygamous marriages as de facto monogamous marriages. English courts will recognize an actually polygamous marriage for most purposes. A similar treatment must be accorded to same-sex marriages.

In the United States, such a conclusion would be justified on an interest analysis of the States in recognising a same-sex marriage for a particular purpose or refusing to do so. So, for example, a same-sex couple, validly married in Hawaii, travels to Illinois to visit friends. While vacationing, the couple is in an accident, and one of the spouses is killed/injured. Afterwards, the other spouse seeks damages for wrongful death/loss of consortium. In such a case, the right of the surviving spouse to bring this action is an incident of marriage. It can be argued that Illinois has virtually no interest in the couple's marital status because they were never residents of the state. Under the law of Hawaii, the couple had every reason to assume that they were lawfully married, and Hawaii has an interest in ensuring that wrongs against its citizens are compensated. Moreover, because the couple is domiciled in Hawaii, allowing the surviving spouse to sue would not directly undermine any Illinois policy regarding same-sex marriages, but it would advance Illinois' policy of providing a special remedy for the surviving spouse of a party who is killed or injured. Thus, the Illinois court should apply Hawaii law to determine the marital status of the couple.

Thus, even when a public policy exception is exercised, it can be only in the context of validating the conjugal relationship, and should not affect the incidental rights and obligations totally unrelated to the State’s interest in pursuing its public policy. In such cases, courts should recognise the marriage and grant the benefits.

1. THE INDIAN PIL ON VALIDITY OF MARRIAGE – FOREIGN MARRIAGE ACT

The Foreign Marriage Act, 1969 [hereafter, the Act] is very relevant to the issue of validity of foreign marriages. The Act was passed to effectuate a Law Commission recommendation , which stated its purpose to ‘provide a form of marriage to citizens marrying abroad which will ensure beyond doubt the validity of the marriage so far as India is concerned’.

Scope of the Act: The Act covers foreign marriages between parties one of whom at least is a citizen of India. It provides for solemnisation of marriage under the Act (Chapter II), or registration of a marriage solemnised under foreign law [which is deemed to have been solemnised under the Act by s. 17(6)]. S. 4 insists that for the application of the Act, at least one party must be a citizen of India. So, the basis of application is citizenship and not domicile. Also, by use of the terms at least, the Act clarifies that even both the parties can be Indian citizens. This point was further strengthened in the case of Abdul Rahim v. Padma where the couple were Indian citizens domiciled in India, and yet the Foreign Marriage Act was construed to cover their marriage which was solemnised under the British Marriage Act, 1949. The court insisted that s. 18(1) covers within its ambit all the instances of all marriages solemnised in a foreign country, whether solemnised under the Act or not, where at least one party is the citizen of India. Given such wide import, the only marriages that are not covered by the Act are marriages which are solemnised within the territory of India or marriages solemnised between two foreigners outside the territory of India . Therefore, for example, if two Indian citizens go to the Netherlands to get married, the Act will be applicable to them.

In the same case of Abdul Rahim, the court went on to say that the Act was intended to be ‘a piece of comprehensive legislation’ on the subject relating to foreign marriages. Hence it is a complete code in itself. What this will also imply is that all rules of private international law relating to aspects covered by the Act have been superseded by the Act, and therefore have no application to that extent. Such conclusion is further strengthened by the fact that the Preamble of the Act calls it an ‘Act to make provision relating to marriages of citizens of India outside India’. Such categorical statement of the scope of the Act is further augmented by the ‘Statement of Objects and Reasons’ which said the one of the reasons for bringing the legislation was that there was ‘considerable uncertainty as to the law on the subject, as the existing legislation touches only the fringes of the subject and the matter is governed by principles of private international law which are by no means well settled, and which cannot readily be applied to a country such as ours in which different marriage laws apply to different communities’. So, clearly, the Act being a complete code and brought about due to the uncertainties of the rules of the private international law clearly supersedes all such rules to the extent of its applicability. This leaves us with the conclusion that in the India context, common law rules of private international law govern only those marriages which are solemnised in a foreign country and between two foreigners, i.e. the category excluded by s. 27 from the ambit of the Act.

Validity of a foreign marriage and capacity of parties: S. 17 of the Act provides that a marriage solemnised under a foreign law can be registered under the Act if the following conditions are met: 1. The marriage has been ‘duly solemnised in a foreign country in accordance with the law of that country between parties of whom one at least was a citizen of India’ [s. 17(1)(a)]. 2. The conditions under s. 4 of the Act have been fulfilled [s. 17(2)]. The conditions in s. 4 are – • At least one party is a citizen of India • Neither party has a spouse living • Neither party is an idiot or a lunatic • The bridegroom has completed the age of twenty-one years and bride the age of eighteen years at the time of the marriage 3. The marriage is not ‘inconsistent with international law or comity of nations’ [s. 17(3)].

So, in the first instance, the above rules are a clear departure from the common law rule of private international law that the capacity of the parties to marry is governed by the lex domicile. The Act makes no apparent distinction between formal validity of marriage and capacity of parties to marry. The Law Commission in its report which formed the basis of the Act clearly spells out that the Act is a departure from the (English) Foreign Marriage Act, 1891 inasmuch as it deals with capacity of parties and validity of marriage as well, whereas the English statute confined itself to formal validity of marriage alone. The Act clearly lays down that the only lex domicile requirements that need to be fulfilled are the ones spelt out in s. 4. Apart from that, all that is required is that the marriage was solemnised in accordance with lex loci celebrationis, and is not inconsistent with international law or comity of nations.

Also, as can be noticed in the grounds mentioned above, public policy as a general ground for non-recognition of foreign marriages is not available. Applying the maxim of expressio unis, exclusio alteris, the conclusion can be safely drawn that public policy as a general ground for non-recognition of foreign marriages is not available under the Act, unlike under the principles of private international law in common law.

This argument is further strengthened by the fact that the Law Commission Report expressly asserts in this regard that ‘……public policy demands that capacity of any of our citizens to marry abroad should be determined by our law on the basis of the social and moral standards prevailing in our country. But, in order to avoid, as far as possible, conflict with other laws we propose to restrict the provisions regarding capacity and essential validity to the basic and fundamental requirements’ . So, whatever grounds of public policy the legislature wanted to be available for non-recognition of foreign marriages have been expressly stated in s. 4 of the Act – these are the basic and fundamental requirements, to tread beyond which was not the intention.

The above explanation given by the Law Commission on the issue of public policy under the Act also clarifies that use of the phrase ‘inconsistent with international law or comity of nations’ has no public policy element to it – it has to be given its natural meaning and cannot be read to include a public policy dimension, unless that aspect is clearly inconsistent with international law as well.

Also, the use of the gender terms bridegroom and bride in s. 4, on a liberal interpretation should mean that any man getting married should be at least 21 years of age and any woman getting married should be at least 18 years of age. However, even if given the conservative interpretation to mean that in all cases a bridegroom and a bride have been contemplated, it can at best imply only an assumption of opposite-sex couples. Such terms were used at a time when same-sex marriages even as a concept was unthinkable, and therefore courts should not assume that these laws contemplated or addressed themselves to the concern of public policy about such marriages. Moreover, these terms sometimes appear in incidental provisions--those not defining matrimony or its requirements. In such instances, courts should view them as merely descriptive. It will be stretching interpretation too far to read it to be laying down a strong public policy proscription of same-sex marriages. This is also strengthened by fact that courts have narrowly construed public policy. The fact that the forum state's laws are different from the laws of the place of celebration, or that the forum has simply not legislated on the matter, does not alone justify invocation of the exception.

Being a complete code in itself and having exhausted the grounds for non-recognition of foreign marriages involving at least one Indian citizen, the Act clearly leaves no scope for a construction which will allow the non-recognition of same-sex marriages validly solemnised under the law of the place where they took place.

Matrimonial Relief: Under the marriages covered by the Act, there are three possible categories: 1) The marriage has been directly solemnised under s. 4 of the Act, 2) The marriage, solemnised under a foreign law, was registered under the Act, and therefore deemed to be solemnised under it (s. 17), or 3) The marriage, solemnised under a foreign law, was not registered/solemnised under the Act.

1. 18, which grants matrimonial relief to foreign marriages, covers all the above situations, as long as one of the parties is a citizen of India. On a combined reading of s. 18 (1) and (4) of the Act, read with the provisions of the Special Marriage Act, 1954, the following points emerge with respect to the above-mentioned three categories: • With respect to category 1) above, Chapters IV, V, VI and VII of the Special Marriage Act dealing respectively with consequences of marriage under this act, restitution of conjugal rights and judicial separation, nullity of marriage and divorce, and jurisdiction and procedure are available as matrimonial relief. • If the parties fall under category 2) above, they can claim all the rights available for category 1) except the claim that the marriage was void [s. 18(1), Explanation (ii)(b)]. • With respect to category 3), none of the above relief can be claimed if the grant of such relief is provided for under any other law for the time being in force [s. 18(4)]. In the absence of such law, the relief as in the case of category 2) can be claimed here as well. Since, there is no Indian law providing relief for same-sex marriages, such provisions should be applicable in this case.

So, at least on a reasonable construction of the provisions of the Foreign Marriage Act, a safe conclusion seems to be that same-sex marriages validly contracted between parties at least one of whom is Indian, in a foreign country, are not only valid and recognisable in India but also give rise to certain statutorily mandated rights.

However, when it comes to the situation not covered by the Act, i.e. a case where no Indian citizen is involved, the position is different. Say, two Dutch nationals of the same sex get married validly in the Netherlands, then come to reside in India and acquire and Indian domicile. Their marriage is not covered by the Foreign Marriage Act since none of them was an Indian citizen at the time of the solemnisation of the marriage. Therefore the traditional common law rules of private international law concerning validity of marriage and the public policy exception, as has been discussed in the previous chapters, will apply in their case .

This certainly leads to an anomalous situation where parties which have a stronger connection with the forum State (i.e. where at least one party is an Indian citizen) escape the wrath of the public policy of the forum, but parties whose marriage was absolutely valid at the time it was contracted and who had no connection with the forum State at such time may have the validity of their marriage questioned on the basis of the public policy of a State they have later come to be domiciled in. But this seems to be the only reasonable interpretation possible, and it is for the legislature to look into the matter.

1. CONCLUSION

The problem of divergence views on the issue of alternative sexuality between various countries in the world may in the near future lead to acute problems in the area of private international law. National courts might find themselves in the awkward situation of having to recognise a same-sex marriage validly solemnised abroad when their own states criminalise homosexual conduct. This can be particularly true in the case of India, where the legislative intervention through the Foreign Marriage Act has done away with the common law discretion with courts to refuse to recognise on the ground of public policy.

As has been seen before, the private international law on marriage as laid down by Dicey insist on the determination of formal validity according to lex loci celebrationis and the capacity of parties according to lex domicile. However, even if both these criteria are satisfied, the public policy exception is still available for the courts of another jurisdiction to refuse to recognise such a marriage.

Of course, what constitutes public policy and how it is to be determined is itself a contentious issue and it is difficult to give a definitive answer.

However, the Foreign Marriage Act makes the law in India in this regard much more liberal. First, it does not insist on conformity with lex domicile, and circumscribes the public policy exception to extremely narrow and expressly determined limits. Thus, there is more likelihood of a foreign same-sex marriage to be recognised in India.

Of course, in the ultimate analysis, the only final solution to the problem can come around when national jurisdiction stop discriminating against people whose sexual orientation do not conform to that of the majority. Once most jurisdictions recognise the rights of gay and lesbian people, and accord them the rights available to heterosexual couples, this debate will become irrelevant. But till such time, same-sex couples have to continue to go through the paraphernalia of national legal systems each and every time they migrate to another country.

1. BIBLIOGRAPHY

Books: 1. Cheshire and North’s Private International Law (P.M. North & J.J. Fawcett ed., 12th edn., London: Butterworths, 1992).

1. Dicey and Morris on the Conflict of Laws Vol. 2 (Lawrence Collins ed., 13th edn., London: Sweet & Maxwell, 2000).
2. Joseph Story, Commentaries on the Conflict of Laws § 38 (Boston, Charles C. Little & James Brown eds., 4th ed. 1852).

Journals: 1. Anthony Dominic D'Amato, “Conflict Of Laws Rules And The Interstate Recognition Of Same-Sex Marriages” University of Illinois Law Review (1995) at 911.

1. Cynthia J. Sgalla McClure, “A Case for Same-Sex Marriage: A look at changes around the Globe and in the United States, Including Baker V. Vermont”, Capital University Law Review (2002) at 783.
2. Jes Kraus, “Monkey See, Monkey Do: On Baker, Goodridge, and the need for consistency in Same-Sex Alternatives to Marriage”, Vermont Law Review (Summer, 2002) at 959.
3. Jorge Martin, “English Polygamy Law and the Danish Registered Partnership Act: A Case For the Consistent Treatment of Foreign Polygamous Marriages and Danish Same-Sex Marriages in England” Cornell International Law Journal (Spring 1994) at 419.
4. Rebecca S. Paige, “Wagging The Dog--If The State Of Hawaii Accepts Same-Sex Marriage Will Other States Have To?: An Examination Of Conflict Of Laws And Escape Devices” American University Law Review (October, 1997) at 165.
5. Sandra Cavazos, “Harmful To None: Why California Should Recognize Out-Of-State Same-Sex Marriages Under Its Current Marital Choice Of Law Rule” UCLA Women's Law Journal (Fall-Winter, 1998) at 133.

Newspaper/Magazine/Internet 1. “Court Permits Young Women To Live Together”, Mathrubhumi (Sunday, October 27, 2002) at 1.

1. “Gay Wedding Puts Spotlight on Indian Laws”, (visited on 09.08.2003).
2. Leela Menon, “In A Sex Warp”, Outlook (Nov. 18, 2002).

Law Commission Reports 1. 23rd Report of the Law Commission of India on the law of foreign marriages, Aug. 1962.

1. 172nd Report of the Law Commission of India on the review of rape laws, March 2000.