Sejalsri Mukkavilli, Alliance University, School of Law, Bangalore
Abstract
The traditional choice of law rules extrapolated from the First Restatement on Marriage are usually followed in India. The Courts in India have been largely reliant on the English common law principles on choice of law. Moreover, there hasn’t been much jurisprudence where the courts have had to adjudicate on foreign marriages and their recognition in India even within the confines of heteronormative relationships. The rules of domiciliaries are also couched in heteronormative understanding, given that a wife’s domicile is that of her husband’s. Where domestic laws do not permit same-sex marriages, the overriding doctrine of public policy takes precedence over the accepted principles of foreign marriage recognition of dual domicile and lex loci rule. No laws recognize same sex marriages, either expressly or tacitly, however, the transformative Constitution of this land contemplates same sex marriages. It is unclear where public policy should be located- in the constitutional imagination or the existing laws. In this paper, the public policy exception is intepreted to accomodate the recognition of foreign same sex marriages according to the marriage equality evolved by the judiciary as the ‘new public policy’ and placing a narrow application on the public policy doctrine in recognzing foreign same sex marriages in India.
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