CONCEPT OF MARRIAGE Practically all the countries of the world agree thatmarriage is a union between man and woman.
Beyond this there are difference. Inthe Western countries marriage is considered as a contract, and a monogamousunion, through Roman Catholic church (despite the recent Italian legislationconferring power of dissolving marriage on civil courts) still insists thatmarriage is a sacrament and an indissoluble union. The Muslim world has allalong considered marriage as a civil contract, through has, at the same time,recognized limited polygamy.1 At one time in the East-among Hindus andBuddhists- marriage was considered as a sacrament and indissoluble union; amongboth the people unlimited polygamy was recognized. Today the Buddhists andHindus no longer recognize polygamy. The Chinese Buddhists consider theirmarriage as a contract.2Among Hindus marriage is something in between asacrament and a contract.
3 English Law Under the English domestic law marriage isdefined as a voluntary union for life between one man and one woman to theexclusion of all others. English courts have adopted this very concept ofmarriage to the conflict of laws cases, and this has led to much hardship andinjustice in respect of polygamous marriages. In Hyde v. Hyde4 Lord Penzence observed : “I conceivethat marriage, as understood in Christianity, may for this purpose be definedas the voluntary union for life of one man and one woman to the exclusion ofall others.” Then, it seemed logical for him to express the following view:”Now, it is obvious that the matrimonial law of this country is adapted to theChristian marriage, and is wholly inapplicable to polygamy.
” In this case ahusband of a potentially polygamous Mormon marriage, performed at Utah,petitioned for divorce in an English Court. After renouncing his faith thehusband became a Minister of a dissenting chapel at Derby and the wife remarried.The petition was dismissed because the English courts were not prepared toaccord recognition to polygamous unions, and they considered that theirmatrimonial jurisdiction could not be made available to such marriages. In Harvey v.Farnie5 the court of Appeal took the extreme position that polygamous marriagescould not be recognized for any purpose.
Taking the view the nature andincidents of marriage are determined by the lex loci celebration and the characterization of marriage as towhether it is monogamous or polygamous is determined by the lex fori, theEnglish court held that even if therewas a possibility of converting a polygamous marriage into a monogamousmarriage, the potentially thus be recognized