Editorial Committee of the Cambridge Law Journal

Muslim Marriages in English LawAuthor(s): David PearlSource: The Cambridge Law Journal, Vol. 30, No. 1, 1972(A) (Apr., 1972), pp. 120-143Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505530 .

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132 The Cambridge Law Journal [1972A]

subject of a decision of the Pakistan courts, recognition of the validity of such a union should be refused. It is possible, however, that the

public policy of the Islamic state would ensure that regard would not

be given to the rules of the place of celebration.53 The Pakistan

Supreme Court had cause recently to discuss the validity according to Pakistan law of a marriage celebrated in a register office in London

between a Muslim male domiciled in Pakistan and a Spanish girl.54 The Supreme Court tested the formal validity of this marriage in the

light of the personal law of the husband: " It is, therefore, correct to

say that the marriage of the parties in this case solemnised before a

Registrar in England, according to the procedure laid down in the

Marriage Act 1949, conforming as it does to the above requirements, would be recognised as valid, under Muslim law." 55

The personal law of the husband, therefore, plays no small part in Pakistan law in the determination of the validity of a marriage celebrated outside Pakistan. The possibilities of limping marriages are, unfortunately, only too apparent.56

(b) Essential validity of the marriage

Essential validity, according to the rules of private international law generally recognised as correct, is governed by the law of the

pre-marital domicile of the parties, subject to the well-established yet highly criticised exception in favour of the forum, highlighted in the case of Sottomeyer v. de Barros (No. 2).57 This exception to the rule is summarised in Dicey and Morris as follows: "The 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."58

The application of this rule may be illustrated by considering the

following set of facts. A Muslim girl, domiciled in Pakistan, marries in this country in a civil ceremony an English man domiciled in

England. According to the personal law of the girl, this marriage would be a Batil (void) marriage, because a Muslim girl lacks the

53 See Haque v. Haqu* [1963] W.A.R. 15; on appeal 108 C.L.R. 230; Hashmi v. Hashmi [1971] 3 W.L.R. 918.

54 See below, footnote 73. 55 [1967] P.L.D. 580 ai p. 602. 56 For a recent example, see Hashmi v. Hashmi [1971] 3 W.L.R. 918, where Mr.

Commissioner Stabb Q.C. accepted the submission that a marriage celebrated in a register office in England between a Pakistan domiciliary and an English girl which was actually polygamous would be accepted by Pakistan as a valid marriage. The Commissioner, therefore, made a declaration that the children to this union were legitimate.

57 [1879] 5 P.D. 94. 5 8 Dicey and Morris, r. 31.

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CLJ. Muslim Marriages in English Law 143

were 119,700 Pakistanis97 resident in England and Wales at the

Census date 1966. To this number must be added Muslims from

India, East Africa and the Middle East. Rose estimated that there would be 1,228,000 coloured migrants in England and Wales by 1971. It is thought that some 250,000 followers of the Islamic religion are included in this number.

The settlement of this community into England and Wales, whether the immigrants assume an English domicile of choice or retain their domicile of origin, has involved the English courts in

unique and intriguing problems. It is to be hoped that the English courts will not ignore the peculiarities of their laws.

97 Excluding white Pakistanis.

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