Abstract
Excerpted From: Priyasha Saksena, Limping Marriages: Race, Class, and the Rise of Domicile-based Divorce Jurisdiction in the British Empire, 63 American Journal of Legal History 36 (March, 2023) (153 Footnotes) (Full Document)
In June 1919, Reginald Keyes filed a petition before the Probate, Divorce, and Admiralty Division of the High Court in London seeking to dissolve his marriage with Annie Keyes on the ground of her adultery. This was not any ordinary petition since Reginald and Annie already had a divorce decree in hand. They had been married in Calcutta in November 1916 and had spent their entire married life in various corners of British India where Reginald was posted as a British army officer. In October 1917, Reginald petitioned for divorce before the Punjab Chief Court in Lahore, which granted a decree nisi in February 1918, made absolute in November of the same year.
If Reginald and Annie Keyes were already divorced, why did Reginald file another petition in London? The main purpose, it appears, was ‘to determine the validity, at any rate in England, of the decree made at his instance in India’. As per the Indian Divorce Act 1869 (the Act or the IDA), Indian courts could exercise matrimonial jurisdiction ‘in cases where the petitioner professes the Christian religion and resides in India at the time of presenting the petition’, both conditions that Reginald Keyes satisfied. The key sticking point was Reginald's domicile, a concept that is usually ‘regarded as the equivalent of a person's permanent home’ at common law; changing one's domicile requires both the fact of residence and an intention ‘to remain there permanently’. Despite Reginald's long residence in British India, he did not intend to stay there permanently and therefore retained his English domicile. The presiding judge of the Probate Division, Henry Duke, was dismayed at the thought of British Indian legislators making laws ‘to interfere with the status of subjects not domiciled in India’ and concluded that the IDA could not ‘empower Courts in India to decree dissolution of the marriage of persons not domiciled within their jurisdiction’. The Indian divorce decree was, therefore, invalid and Reginald and Annie Keyes remained married in the eyes of English law.
Since the decree continued to be binding in India, Reginald and Annie Keyes had a classic ‘limping marriage’, that is ‘a marriage which is valid in one country but not in another’. In the contemporary context, limping marriages often arise because of the uneven international landscape on the legality of same-sex marriage or the lack of recognition of extrajudicial religious divorces such as the Islamic talaq. As the Keyes decision demonstrates, this phenomenon has a long history, with states refusing to recognize overseas divorce decrees granted by courts exercising matrimonial jurisdiction on a different basis to the one used by courts in the state in question. Since conflicts of law may be linked to conflicts of state authority and sovereignty, cases involving overseas divorces raise questions about how and why states adopt specific rules relating to the exercise of jurisdiction and the recognition of foreign decrees. In his Keyes opinion, Henry Duke insisted on associating matrimonial jurisdiction with domicile, implying that it was, perhaps, a universally accepted rule. However, courts in other European countries at the time usually relied on nationality to exercise matrimonial jurisdiction. So how and when did English law decide to adopt the domicile rule when it came to the exercise of divorce jurisdiction? How did ideas about race and class contribute to or challenge the framing of domicile as the basis of matrimonial jurisdiction? What were the consequences of relying solely on domicile for the ability of people to marry and divorce across the British Empire? What can debates about limping marriages in British India tell us about the nature of legal concepts such as domicile more broadly?
Focusing on the position of foreign-domiciled persons in British India, I trace the development of the domicile rule in English private international law. As I will elucidate later in this article, permitting colonial officials who travelled to the far reaches of the British Empire to retain their ability to be governed by English law formed the background for cementing domicile as the basis of divorce jurisdiction. The choice of domicile was, therefore, a political one, and it was made at the expense of other bases of jurisdiction such as residence or nationality. As Henry Duke's decision in Keyes hints, alleged racial distinctions between ‘white’ Europeans and Indians structured the rationale for limiting divorce jurisdiction to courts of the domicile. Colonial concerns about race, religion, and class thus played a key role in choices made by English courts relating to doctrines of private international law. However, the adoption of the domicile rule also had unwelcome consequences for the European community in British India, forcing them to travel to the metropole for relief in matrimonial matters, and thereby restricting such remedies to the most well-off. The concept of domicile was, therefore, a useful legal tool in colonial efforts to arbitrarily relegate those who were unable to return to Britain to being ‘less white’ in some way. Although the element of intention in the definition of domicile enabled the creation of sprawling networks of British communities across the world by allowing the maintenance of a legal link with Britain, it also destabilized colonial classifications by deliberately introducing an element of class into the construction of racial distinctions.
Scholars of empire have long focused on the complications surrounding the creation of colonial categories. Based on research on the Dutch Empire in Sumatra, Ann Laura Stoler argues that ‘competing colonial agendas, based on distinct class and gender interests, shaped the politics of race and tensions of rule’. Controlling the sexuality of white women and regulating the behaviour of poor whites were both critical to the project of maintaining European prestige and political control. A similar argument can be made for British India, where Elizabeth Kolsky shows how the privileges enjoyed by white Britons in criminal law were enshrined through official efforts to contain the everyday violence unleashed by allegedly lower-class nonofficial Britons (ie those who did not work for the colonial state) on the Indian population.
Defining who was eligible for the prerogatives of Britishness was essential to the exercise of policing racial boundaries since ‘whiteness was always unstable’ with ‘poor whites across the Empire .... provid[ing] the clearest examples of those who were in danger of not being quite white enough’. Scholars have described how maintaining a link with the metropole became key to white British identity. In the South Asian context, for instance, Elizabeth Buettner argues that sending children to Britain for their education allowed people to maintain ‘a white bourgeois identity’ since it implied a family's ‘comfortable socio-economic standing and status as temporary sojourners in the subcontinent who maintained a secure foothold in the metropole’. As Satoshi Mizutani contends, ‘[s]ocial status, cultural refinement, and level of education’ all became important for defining ‘whiteness', with those who were financially unable to return to Britain contradicting the ‘almost axiomatic notion that white people resided in India only temporarily’. In the words of Nurfadzilah Yahaya, therefore, class often ‘tended to unsettle notions of “whiteness”’.
These problems relating to the creation of clear racial categories were particularly complex when it came to the enactment of matrimonial law. By the middle of the nineteenth century, colonial thought had narrowed the application of religious laws in British India to issues relating to the family; people of different faiths were therefore governed by their personal laws when it came to marriage, divorce, adoption, and succession. Such personal laws were deeply influenced by the choices of the colonial state; for instance, on account of the heavy reliance on scripture and the influence of the upper castes, colonial Hindu law did not recognize the right of divorce at all even though divorce had been acceptable among many castes and tribes in the precolonial period.
In the case of the law applicable to the Christian community, the government of India enacted statutes, but this was a complicated and fraught process. Nandini Chatterjee discusses how British Indian legislation on Christian marriage originally dealt with concerns about the marital relations of white British subjects who resided in India; however, distinctions between the British and the ‘natives' gave way after Indian Christians lobbied for changes, with the government being ‘forced to repeatedly legislate in order to “fix” problems which were of its own creation’. In this article, I focus on the lesser-studied British side of this constantly shifting racial binary to make a parallel argument in relation to the exercise of divorce jurisdiction for Christians in British India. Initial attempts to enact a divorce law for Christians in British India were framed entirely by British concerns but these later proved inadequate even for white British subjects, with the government having to continually amend the law to deal with difficulties arising out of the conflicting bases of divorce jurisdiction adopted in England and India. By the 1920s, the government of India decided to enact separate laws for Christians who were domiciled in England or Scotland and Christians who were domiciled in India, whatever their racial status. Consequently, white British subjects who were financially incapable of following the specialized regime for English- or Scottish-domiciled couples had to either remain trapped in unhappy marriages or declare themselves to be domiciled in India and thereby lose their ‘whiteness'. By focusing on the concept of domicile in historical context, I aim to provide fresh perspectives on the critical role of law in the creation of the mutually constitutive but unstable categories of class and race as well as the significance of colonial networks for the development of legal doctrines in Britain.
This article is divided into four parts. First, I discuss the drafting process of the Indian Divorce Act within the broader context of the development of private international law in the nineteenth century and the specific struggles of British jurists to come up with a coherent understanding of the exercise of matrimonial jurisdiction. I then explore how and why domicile was cemented as the rule for divorce jurisdiction in English private international law in the last decade of the nineteenth century. I then move to analyse the Keyes decision and its effect on the exercise of divorce jurisdiction by British Indian courts, as well as the British government's legislative response for the validation of British Indian divorce decrees. Finally, I review the complications resulting from these colonial attempts at validation to delve into the use of the legal concept of domicile to create clear racial categories in British India. In the conclusion, I reflect on how this history of limping marriages in the imperial context can inform our understanding of modern parallels.
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Although individuals can now petition English courts for divorce based on ‘habitual residence’, English law continues to provide for domicile as one of the bases of divorce jurisdiction. As I have argued in in this article, contemporary definitions of private international law concepts such as domicile date to the late nineteenth century, a time of imperial expansion when colonial officials attempted to deal with the mass movement of peoples through the creation of clear racial categories. Both Lord Watson in Le Mesurier and Henry Duke in Keyes implied that domicile was the only acceptable basis for the exercise of divorce jurisdiction under both English and international law. However, English courts had provided contradictory answers while dealing with the question of divorce jurisdiction, often alternating between the bases of residence and domicile. The practice of other countries, particularly in continental Europe, also did not support the centrality of domicile.
Even after Le Mesurier was decided in 1892, English courts remained hesitant to recognize overseas divorces that were based on religious laws (such as Islamic personal law on talaq) although the petitioner was domiciled in a place where such divorces were recognized. The alleged universality of the domicile rule was, therefore, suspect even in English law. Requiring domicile-based matrimonial jurisdiction for couples domiciled in England but residing in the colonies was a conscious political choice that stemmed from the desire to ensure that only English judges could adjudicate such matters, reinforcing racial distinctions between white and non-white British subjects.
I have argued in this article that the legal concept of domicile was used to create clear racial distinctions but also had contradictory effects on members of the white European populace in British India. Limiting jurisdiction to courts of the domicile forced them to return to their ‘home’ countries to obtain matrimonial relief, resulting in both administrative inconvenience and financial burden. However, they also ruled out adopting an Indian domicile since it would effectively result in a loss of their racial identity, which was closely linked to the ability to travel to the metropole and to claims of the temporariness of their residence in British India. Given the depth of feeling on the issue, colonial officials were forced to legislate to create an exception to the domicile rule for what were termed to be the ‘special conditions' of British India, where Englishmen resided but rarely obtained domicile, unlike the settler colonies of Australia or Canada. The solution created two separate legal orders for Christians in British India: district courts exercised jurisdiction over persons domiciled in India, following the substance and procedure laid down in the IDA, while nominated judges of the High Courts exercised jurisdiction over those domiciled in England and Scotland, with decrees being made in accordance with English law, and only effective if they were registered in either England or Scotland. While aimed at maintaining racial divisions, these legislative changes also reinforced class distinctions within the white British community by leaving those who were financially unable to travel to the High Courts without any form of remedy.
While imperial networks made it possible for these individuals to meet, move, and marry in places across the world, imperial hierarchies also made it nearly impossible for them to leave their spouses. Allegedly dry jurisdictional questions placed additional burdens on the ability of people to marry who they loved, to live where they wanted, and to escape bad marriages. Such impediments continue even today, albeit in a different form. Individuals often struggle to ensure that their marriages with partners of the same sex are recognized in countries that do not permit such marriages or that their religious divorces are recognized by judicial systems to enable them to remarry. Class continues to play a significant role, with the ability to approach certain courts being dictated by finances. In the colonial context, however, even those who were deliberately excluded from approaching Indian courts, for instance because they were domiciled abroad but not in England or Scotland, tried to obtain relief both through the law and by other means. As this article has demonstrated, people strove to resolve their complicated marital situations by protesting, lobbying against, or simply ignoring the law, even if they could not escape its consequences entirely. This history of the many ways in which people interacted with the concept of domicile continues to remain relevant to inform more contemporary efforts of individuals traversing borders while attempting to manage their marital relationships.
Priyasha Saksena, Lecturer, School of Law, University of Leeds, Woodhouse Lane, Leeds LS2 9JT. Email:
