The petition was presented on 2 December 1936, His Majesty was graciously pleased to refer the said petition to the House of Peers, the Attorney General having reported to His Majesty that he was in doubt whether the evidence produced to him, if accepted, would establish a marriage entitling the petitioner to make pedigree and to establish his descent in peerage law from the first Lord Sinha. It is the duty of this Committee to determine the question whether, upon certain facts set out in the petition being proved to the satisfaction of your Lordships, the petitioner has established his descent in peerage law from the first Baron Sinha under the Letters Patent.
There is now no dispute in relation of any of the facts stated in the petition. The late Baron Sinha on 15 May 1880, intermarried with Gobinda Mohini Sinha according to the formalities prescribed by Hindu law and usage. He and his wife were at all times domiciled in the Presidency of Bengal and were members of the Hindu community at the date of the celebration of the marriage, which took place in the said Presidency. Hindu law, as your Lordships are well aware, does not forbid a plurality of wives, but the marriage in fact remained a union between the late Lord Sinha and his said wife to the exclusion of any other spouses. In other words, it was throughout, so far as actual fact is concerned, a monogamous marriage.
In 1881, Lord Sinha came to Lincoln's Inn to study law and he remained in England until 1886 when he returned to India. In that year and before the birth of the petitioner, he and his wife joined the religious sect known as the Sadharan Brahmo Samaj, and they remained members of that religious sect during the whole of their married life. One of the main tenets of the sect is monogamy and so long as the late Lord Sinha continued to be a member of the sect he could not contract a second marriage while his first wife was alive which the courts in India would recognise as valid. It is no doubt true to say that Lord Sinha could have left the Sadharan Brahmo Samaj at any time, and would then have been at liberty to contract a second marriage during the lifetime of his first wife, but it remains true that he never did leave the sect.
The petitioner was born at Calcutta on 22 August 1887, and is the eldest son of the marriage. The late Lord Sinha died on 5 March 1928.
The facts being so established, the only question which remains for determination is the question whether the petitioner within the meaning of the Patent is the heir male of the body of the late Lord Sinha lawfully begotten.
My Lords, it may be useful to clear the ground by some preliminary observations. We have nothing to do in this case with the jurisdiction of the Divorce Court, which for reasons not difficult to understand has adopted the view that in that court the term "marriage" means the voluntary union for life of one man and one woman to the exclusion of all others. We are not, therefore, concerned with such cases as Hyde v Hyde and Brinkley v Attorney General. Nor are we affected by such a decision as that in Doe d Birtwhistle v Vardill, when at the date of the birth in question there was no marriage at all. The remarks of James LJ, in Re Goodman's Trusts (17 Ch D 266, at pp 298, 299) are a very clear and well expressed exposition of the result of that case, and I could not venture to improve upon it. Nor is Fenton v Livingstone
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of much assistance, for in the result it was only a decision that Scottish land could not descend to the child of a marriage deemed to be incestuous and criminal in Scots law. There are other decisions which deal with the question whether the alleged marriages in those cases could be deemed to be marriages at all according to English ideas. On the other hand, it cannot, I think, be doubted now (notwithstanding some earlier dicta by eminent judges) that a Hindu marriage between persons domiciled in India is recognised in our court, that the issue are regarded as legitimate, and that such issue can succeed to property in this country with a possible exception which will be referred to later.
It seems desirable also clearly to state that nothing in our decision of this petition is intended to apply to a case where the petitioner is claiming as a son of a parent who has in fact married two wives, eg, a Hindu or a Mohammedan who has had a plurality of wives. It is apparent that great difficulties may arise in questions relating to the descent of a dignity where the marriage from which heirship is alleged to result is one of a polygamous character, using the word polygamous as meaning a marriage which did not forbid a plurality of wives, and where there has been in fact a plurality of wives. If sons were born of more than one of them, it might be difficult to reconcile one of these sons with English ideas of "heirship," which must be involved in the words contained in a Patent granted by the King in a well known form and dealing with a British dignity which, it will be remembered, entitles the holder to sit and vote in the House of Lords. If there were several wives, the son of a second or third wife might be the claimant to a dignity to the exclusion of a later-born son of the first wife. Our law as to heirship has provided no means for settling such questions as these. These difficulties, however, do not arise in the present case, since the late Lord Sinha not only never purports to marry any woman except Gobinda Mohini, but, after joining the Sadhasan Brahmo Samaj long before the date of the Patent, put it out of his power so to do provided that he adhered to that religion. The petitioner is, beyond doubt, the eldest son of the late Lord Sinha by his only wife, and equally beyond doubt he was lawfully begotten according to the laws of India applicable to Hindu parents. Having regard to the domicil of the parties to the marriage at the date when it was solemnised, the marriage would properly be treated as valid in this country for all purposes, except it may be the inheritance of real estate before the Law of Property Act, 1925, or the devolution of entailed interests as equitable interests before or since that date, and some other exceptional cases. The possible exception as to real estate raises a matter as to which I think your Lordships are of opinion that it would neither be right nor prudent to express an opinion. As I have said, the present question relates to the descent of a dignity conferred by the Crown on a subject resident and domiciled in India, who, according to his religion at the date of the Patent, was prohibited from forming a polygamous union. The case is without precedent in peerage law and in the absence of authority must be decided in the light of its special facts.
In the circumstances of this case, and without any pretension to decide anything but the matter in hand, I have formed the opinion, in which I believe your Lordships concur, that the petitioner, on the facts stated, has established that he is the "heir male of the body of the late Lord Sinha lawfully begotten" upon the true construction of the words contained in the Patent.