PRIVATE INTERNATIONAL LAW

Origin, relevance and applicability:

In this era of globalisation, Private International Law (PIL) has become a necessity, as the consequences
of multistate legal problems are increasing. As such, it is inherently and historically complex. Its rules, as
common law rules supplemented with legislative provisions, are in flux. The need for PIL arises when
there is presence of some foreign geographical connection/element in the case, which can be a contract
between two parties of a different nationality to a tort committed with foreign influence. In such cases, the
court undertaking the case has to apply the principles of PIL along with the domestic laws. Almost all the
nations have well-codified laws and a system of conflict of laws. The world is divided into different
territorial units, with each unit governed by its specific laws of contracts, sales of goods, torts etc. A
person who belongs to one such territorial unit may travel to another unit and get engaged in the contract.
Later, some issues regarding contract arises, then the court with jurisdiction has to apply PIL laws along
with domestic laws. The PIL is not universal and differs from State to State. Degree of uniformity is
being achieved to some extent through international conventions in the recent past.

Definition & scope of Private International Law (PIL):

PIL means to find out the way to solve a dispute when any foreign element is involved. PIL is the body of
principles, rules, policies that indicate how a foreign element in a legal problem or dispute should be dealt
with. It is the legal framework composed of conventions, protocols, model laws, legal guides, uniform
documents, case law, customs/practices, and instruments etc. which regulate relationships between
individuals in an international context. PIL is a branch of national law, which is administered by the court
of the particular nation, the cases having a foreign element.

PIL is a merger of two concepts- Private Law and of International Law. Private law is the law that is
voluntarily invoked by individuals or States acting in the capacity of an individual by entering into a legal
relationship. International law is the law arising between different national (or municipal) systems of law.
PIL is administered between private citizens of different countries and aims at regulation, and
enforcement of rights in situations, when both the parties on whom the right is conferred and the person
upon whom the obligation rests. PIL provides rules of jurisdiction, choice of law and regulation and
enforcement of foreign judgments for cases where the existence of a foreign element is present in case of
the dispute. PIL has its historical origin from civil law. PIL is not just about a conflict of substantive laws,
but also about conflict of law rules between different States.

Principle of Conflict of Laws:

PIL, also known as Conflict of Laws, deals with those cases, where some foreign element or geographical
factor is present. This situation may arise when the parties are residents of a foreign country and any
dispute arises between them or there is a dispute between people belonging to two different countries. In
all the cases, where any foreign element is present, the Court applies the principle of ‘conflict of laws’. In
the present era, almost all countries have a system in place to deal with conflict of laws. This system is
required for the increased movement of people from one territory to the other due to various reasons. The
Courts in such cases voluntarily apply the ‘principle of conflict of laws’. While there are some laws which
are accepted in most of the countries, some rules might differ depending on the place. PIL determines
applicability of laws, when there is a dispute between the parties relating to their private rights and
obligation, with presence of a foreign element and the jurisdiction of the court to try the dispute.

The local law theory of private international law:

The Local Law Theory advocates that private international law is derived from what the judges have done
over the years, rather than on principles/opinions of jurists and philosophers. A case will be decided based
on past judicial approaches to similar matters. This method emphasizes on practice by the courts rather
than theoretical statements and described as ‘scientific empiricism’.
Functions of Private International Laws:
o Helps in determining the laws, foreign or domestic, to be used in the case, which arises out of private
legal relationship along with the presence of some foreign material.
o Also helps in determining the maintainability of case, clarifying jurisdiction of court to settle disputes

Application of Procedural Law & Substantive Law in PIL:

Whenever a foreign element is present and PIL applied to solve the case, both Procedural Law and
Substantive Law are to be determined. Procedural Laws are those laws which govern the procedure of the
court in civil, criminal and administrative matters. The Procedural Law ensures that the due process of the
law is being followed. Substantive law is that law which deals with the legal relationship between
different individuals of the state, or between individuals of the state and the state itself. Substantive laws
explain the rights and duties of the people, and Procedural Law lays down the procedure to enforce such
rights and duties/liabilities/obligations). Cases depend on how these laws applied.

Traditional Rules of PIL:

• The validity of marriage determined by the law of the place, where marriage was solemnized.
• Succession of immovable property governed by laws of land, where the property is situated.
• Law of contract decides the contractual liability between the parties.
• Law of Procedure is governed by the law of the Forum.
• Liability under Law of torts is governed by the law of the land, where the damage occurred.

Doctrine of Comity:
PIL arises out of the need of internationally compatible legislations. PIL is based on the ‘Doctrine of
Comity’, which refers to mutual understanding between countries. Comity is the accepted rules which are
mutually acceptable by different states and apply the same with cooperation, giving ease to each other.
The basic principle behind applying PIL is to ensure justice. The Conflict of laws indicate the areas of
jurisdiction. It is injustice to parties, if cases are decided using local laws of nations, when a foreign
element is involved. For this, International laws and mutual agreements between nations to be honored.
Section 11 of the Foreign Marriages Act, 1969 permits the Indian diplomatic officers/consular officers to
conduct marriages of persons, involving an Indian citizen, in a foreign land. A marriage prohibited in a
country, cannot be conducted. This rule was enacted to remove any problem of incoherence with
International laws and comity of nations. Marriages under this Act are more internationally acceptable.
Eg1: A Spanish element is decided by Indian Court using the rule of law which is prevalent in India just
because it is an Indian Court. Final decision could be different, if a Spanish Court decides the matter.
Eg.2: Suppose X and Y come into a contract of sale of clothes from India. X is an Indian and Y is an
Italian. A dispute arises between X and Y, and the matter comes before the court. The Court will have to
decide, which country’s law should be followed. In such cases, general rules of PIL are followed.

Principles of Private International Laws:

1. It is a branch of national or local laws of the country.
2. The cases must involve a foreign element.
3. The local Courts govern the cases.
4. The law is administered in the cases involving individuals.

Traditional Rules of Private International Law:

1. Lex Loci Celebrationis:
Governs validity of marriage. = ‘Law of place, where marriage takes place’
2. Lex Domicili:
Governs the capacity and validity of the marriage of two parties. It means the law of the domicile, at
the time of death of a person forms the basis for succession of movable property.
3. Lex Situs:
Governs transfer of movable property. It means the law of the place, not only helps in the succession
of the movable property but also helps in transfer of immovable property.
4. Lex Fori (‘Law of forum’):
Deals with governance of legal procedure.
5. Lex Loci Deliciti:
A traditional rule involving a Tort, which means the law of the place, where the damage occurred.
6. Proper Law of Contract:
The contracts between different parties (contractibility) are dealt with applicable law.

Basic conceptsof Private International Law:

PIL forms part of municipal laws of a state, for the purpose of deciding whether a given case involving
“foreign’ element (i) shall be adjudicated upon by its own domestic laws or by laws of some other state;
and (ii) shall be subject of its courts of other state. It is distinct from the law of tort/law of contract,
dealing with three issues- jurisdiction, choice of law and recognition of foreign judgment. Comity,
convenience and the desire of courts to do justice form the basis of PIL. It does not possess the basic
feature of law and distinct from law. Hence PIL is not a full-fledged law; but applied in pursuit of justice.
PIL decides the rule of choice to be applied- choice of jurisdiction, choice of law and rules for
recognition and enforcement of foreign judgement of a foreign court. The very purpose of PIL is to
avoid conflicts of law. States legislative action is essential for the evolution of PIL.

Characteristics / nature of PIL

PIL is a system of indicating choice with regard to jurisdiction, choice of law and recognition of a foreign
judgment. It is a branch of municipal law, which is concerned with all legal relationships between private
entities. It is ‘Private’, as it deals with the legal relations of private individuals and not of States. It is
‘International’, as its rules are enforced by the courts of different nations. The principles of PIL are not
universal and vary from State to State. What may be applicable in one State may not be applicable in
another State. Eg. Family law and law of contract differ from country to country. PIL deals with only the
subject matter having a foreign element. Its prime nature is application of the appropriate legal system.
PIL is not the law governing relations between States. It is simply a branch of the Civil Law of the State,
evolved to do justice between litigating parties in respect of transactions/personal issues involving a
foreign element. But by the ‘comity of nations’, certain rules have been recognised as common to
civilized jurisdictions.

Role / benefits of Private International Law:

1. PIL explores cross-border legal relationships, resulting in stability.
2. Addresses core legal issues to resolve conflicts of law arising from international contracts.
3. Covers various international laws relating to obligations, family/inheritance, property, civil procedure
4. Plays a vital role to develop the existing legal systems of the different states.
5. Helps to understand various legal orders all over the world.
6. It broadens the legal domain of states by proper recognition and enforcement of foreign judgement.
7. It helps to develop international legislation and international law association.
8. Develops international harmony.

Summarising PIL:
PIL has become a necessity in this era of globalisation, where countries are connected with one another
for economic prosperity through economic cooperation. As such, clashes between parties to the contract
bound to happen, for which PIL is very much essential. Various statutes of Indian Laws considered for
the comity of the nations, which forms the foundation of PIL. Law-makers and legislators focus on
rectifying the discrepancies and the incoherency within domestic law to pave the way for a much larger
system of the Unified Private International Laws.
Distinction between Public International Law & Private International Law:

Issue Public International Law Private International Law

1. Consent Based on the consent of the state Not based on consent of states.
2. Object Regulates relationship among states Determines as to which law will apply of
and determine rights and duties of the two conflicting in a particular case having
subject states at international sphere. foreign element.
3. Conflict of Does not involve in conflicts of laws Involves in the conflicts of laws.
laws
4. Nature same for all the states may be different in various states
5. Sources treaties, custom etc legislations of the individual state to which
the litigant belongs
6. Application applicable to criminal as well as civil applicable to civil cases only, for accessing
cases courts of state
7. Subject deals with the states deals with the individuals
8. Municipal law not part of municipal law part of municipal law
9. Jurisdiction does not determine determines court having the jurisdiction to
decided issues
10. Scope wider scope lesser scope.

➔CHARACTERISATION:

Characterisation or ‘classification’ is the process to resolve a law suit that involves foreign law and to
determine the correct choice of law to reconcile differences between laws of different legal jurisdictions.
The objective of characterisation is to determine the nature of the action brought by the defendant in order
to determine, what relevant rules of applicable law, apply to it. The role of characterisation in PIL is
important in adjudication process. A simple example for this is the sale of a bicycle by A to B, involving
different countries. The transaction has both contractual and proprietary elements. Different jurisdictions
will characterise the matter in different ways depending on their own laws. It is the responsibility of the
adjudicating court to determine the proper law and subsequently apply it. ***Characterisation is one of
the key elements in demarcating the choice of law and jurisdiction issues. The first stage is for the court to
determine, if it has jurisdiction, if appropriate, to avoid forum shopping. Then, it must characterise or
classify the cause(s) of action, which relates to choice of law, which is the most important/difficult part,
as trade and travel between states has become common. The effects of broken promises, defective goods,
traffic accidents and marital squabbles are no longer confined to the sovereign territory of one particular
state or nation. This is especially complicated because domestic laws usually operate to satisfy domestic
interest. The choice of law applies to situations where the party is domiciled in a Member State.

Methods of characterization:
There are two separate methods for characterising the cause of action. (1) Commercial and civil matters
relating to contractual and non-contractual obligations. (2) The common law rules, applying to matters of
property, marriage, and matters. In both cases, characterisation depends on the set of facts in order to
determine the applicability/choice of law.

Doctrine/theory of Single Renvoi:

The “Doctrine of Renvoi” is the process by which the court adopts the rules of a foreign jurisdiction with
respect to any conflict of law that arises. The idea behind the Doctrine is that it prevents forum shopping
and same law is applied to achieve the same outcome regardless of where the case is actually dealt with.
Under Single Renvoi, a judge of a country is faced with conflicting rules of his country and sends the case
to the foreign country but according to the law of that country, the case is referred back to his country and
his country accepts sub-reference and applies the law of his country.

➔UNIFICATION OF PRIVATE INTERNATIONAL LAW:

The legal formalities are more or less common across the globe, and policy/laws of every country finally
converge at the end. The need for PIL arises for two reasons: (1) Each country has its own/different
international law. (2) Each country is not having uniform internal laws.
Differences exist in internal laws as well as in PIL, which each nation chooses to follow, due to which
conflict between law arises. Hence, the unification of law is vital.

Challenges to Unification:
1. Internal laws of each country are different, as per the requirement of the country.
2. Even Private International Laws are different and not uniform in all countries, at present.
3. To make different nations agree to the same set of Rules (Unification)
4. Every nation wants the rules to suit their conditions and the specific needs of some countries may get
neglected even in case of uniform rules.
5. To enforce the Rules in all the countries of the world.

Two modes of unification of laws:

1. Unification of Internal laws of different countries:
Several attempts have been made to unify the internal laws of different nations such as-
(a) Bern Convention in 1886, under which an International Union was formed to protect the interests of
authors and writers over their literary works. (b) After World War I, the Institute for Unification of
Private Laws was established. (c) The Warsaw Convention of 1929, later amended by the Hague
Convention of 1955, is a landmark in this regard, which laid down uniform laws for regulation of carriage
of goods and persons by air.
But this method of unification has not been significant/successful in long run because every nation differs
from other, with regard to culture, religion, upbringing of people, public policy etc.

2. Unification of Rules of Private International Law(PIL):

Due to basic differences in the legal system of every country, it is impossible to unify all the laws.
Therefore, another solution is to avoid conflicts in the unification of Rules of Private International Law.
(a) Prior to 1951, an attempt was made to unify all those European countries, which followed the Civil
Law. But nothing could be done towards unification of laws of the Commonwealth countries and the
United States because there was a huge fundamental difference in the laws of these countries. (b) After
1951, some intense attempt was made to unify the rules of PIL. (c) In 1951, a permanent bureau of
Hague Convention (HccH) was established with the objective of more focussed work towards broader
Unification of PIL. (d) At present, the Institute for Unification of Private Law (UNIDROIT), Rome, an
inter-governmental body, established to coordinate and harmonize pvt commercial laws between nations.
Benefits of Unification: (1) Reduces the number of conflicts, which arise when a foreign element is
involved. (2)Makes proceedings less time-consuming.(3) Results in expeditious and efficient proceedings,
as courts apply the appropriate law. (4) Brings entire world on same platform in this era of globalization.

FOREIGN LAW:
Foreign laws are those laws enacted and in force in a foreign state or country. It is the law of any other
country apart from the law of the country, where an issue is for consideration. It is the law of any
jurisdiction having a different system of law from that of considering the issue. It comes from another
country, other than the home country of the court. Hence, it is not binding on the court and citation to
foreign law can be controversial; the courts do not judicially take notice of foreign laws and so they must
be proved as facts. However, in some circumstances, a court may be called upon to determine the
meaning of a foreign statute. The legal principles of jurisprudence are part of the laws of any other state,
in conflict of laws. Foreign laws are additions to our own laws, called as ‘jus receptum’.

Foreign law is applicable by virtue of the conflict of laws/rules of the forum, by several methods (a)
judicial notice (b) pleading and proof (c) presumption. These methods are governed by ‘lex fori’. (the law
of a country in which an action is brought) The knowledge of foreign law is not to be imputed to a judge
and hence the judge can only apply local law, as per custom. A foreign law, when relevant, operates not
as law but as fact. Courts will not take judicial notice of foreign law/statutes, unless authorized by statute.

Foreign law, theoretically, is treated like a fact by courts. Therefore, the requirements are:
(1) Foreign law must be pleaded like a fact. (2) FL must be proved like a fact. (3) FL questions go to the
jury in appropriate cases. (4) If facts are not considered on appeal, foreign law cannot be considered in
appeal. (5) The questions of foreign law in one case cannot be an evidence in other cases involving the
similar issues of foreign law. (6) Holdings of appellate courts on foreign law do not have legal binding.

Witness to prove foreign law:

Unwritten foreign law may be proved by oral testimony of expert witnesses as under:
1. Oral testimony of witnesses acquainted with such laws.
2. Written law copies of the statutes, proclamations/decrees, codes etc, duly authenticated.
3. The testimony of a witness, who had examined the original, or by the certification of a judicial officer
of the foreign jurisdiction.
4. Printed and published books of reports of decisions of the courts of foreign countries.
5. Experience as a judge/advocate in foreign jurisdiction or held an office/position, which familiarized
him with the foreign law, to which he testifies.

Grounds for application of foreign laws:

(1) International trade/creation/dissolution of states (2) Use of force by a State against another state (3)
Armed conflict (4) Human rights (5) Jurisdiction of the foreign parties/transactions/ elements in the case.
Grotian theory - 3 grounds: (a) Laws of reason (b) Customs (c) Treaties.

➔Grounds for exclusion of Foreign Law:

1. Indian statutes: Sec 23 of the Contract Act, 1872 forbids an Indian court from recognizing/enforcing
a contract where such recognition/enforcement is opposed to Indian public policy.
2. Contract obtained by fraudulent means:
3. As a matter of principle: A court, normally, will not enforce public law of another country.
4. Different municipal laws across the globe: Municipal/internal laws differ from country to country;
every nation made its own legislations/laws, as per need/requirement/circumstances of their society.
5. Jurisdiction: National court has no jurisdiction to decide cases, where international orgnisn is a party

Judgment of a foreign Court:

Foreign Judgment means a judgment given by a foreign court. It means adjudication by a foreign court
upon a matter before it. Thus, judgments delivered by courts in England, France, Germany, USA, etc. are
foreign judgments. Foreign judgement means a decree, judgement/order of a court in a
state/country/judicial system different from that where the judgement or its effect is at issue.

Recognition:
In PIL, recognition means the acceptance or confirmation of foreign laws to avoid conflicts in different
legal matters and also means that an act done by another person was authorized. It is one of the most
important criteria to solve domicile problems, contractual obligation problems, legitimacy, jurisdiction
problems etc. under the ambit of PIL.
Theories of foreign judgements recognition:
Recognition and enforcement of foreign judgments is one of the 3 parts of conflict of laws, jurisdiction
and choice of law. It is confined to judgments of foreign States. It excludes the recognition and
enforcement of foreign arbitral awards and recognition of foreign legislative and administrative acts as
well as the role of international judgments in national law, although there are some parallels in treatment.

Recognition and Enforcement of Foreign Judgements:

Civil Procedure Code (CPC) 1908, recognizes foreign judgments. Section 13 and Section 44A are
notable, besides Article 101 of the Limitation Act, 1963 which lays down that foreign judgment can be
contested within 3 years from the date of judgment.

Section 13 of Civil Procedure Code:

Deals with foreign judgements and mentions the instances, where foreign judgments will NOT be
conclusive/maintainable in the following instances:
1. When the judgement given by a court, not having competent jurisdiction over the matter.
2. If the decision of the court was not based on the merits of the case.
3. If decision is taken based on the misinterpretation/incorrect view of international law.
4. If the proceedings did not consider the Indian laws applicable for the particular case.
5. If the judgment goes against the spirit of ‘natural justice’.
6. If the judgment has been obtained by fraud.
7. If the judgment resulted in breach of any Indian laws.

Section 44A:
Section 44A deals with the execution of judicial decrees of courts of reciprocating territories.
Reciprocating territories are those countries or territories outside India, which have been considered
officially by a gazette as reciprocating territories for the purpose of this section 44A. The courts of these
territories, whose decrees would be admissible are called Superior Courts.
The key points of Section 44A:
1. Whenever a certified copy of a decree from superior courtsestablished in the reciprocating territory, is
filed in the district court, then the decree should be executedby the district court.
2. Along with a certified copy of the decree, a certificate mentioning the extent to which
satisfaction/adjustment of the decree, has been given. The certificate is the conclusive proof.
3. While executing decrees, court must not violate clauses mentioned under Section 13 of CPC.

Arbitration and Conciliation Act, 1986:

It is based on the UNCITRAL model. Facilitates various nations, to enable the law-makers for legislation
of various laws regarding arbitration. Due to the steep increase of FDI, international commercial
arbitration has shifted its focus to India-focused arbitration. With this change, providing foreign awards in
the cases have become the subject of judgments of the Supreme Court. The law-makers in India have well
drafted the Act by including the New York Convention Awards and the Geneva Convention Awards.

Immunity from the jurisdiction of English and Indian courts:

The following parties get absolute judicial immunity from liability:
(a) Judges, prosecutors, legislators, and Govt. officials, when they act within their judicial
capacity/authority (b)Medical peer review participants (c) When a judge exceeds jurisdiction.

Factors in assignment of intangible movables:

The liability under a contract cannot be assigned. The promisor has the right to insist that performance
shall be the responsibility of the promisee and the promisor can object to the contract being performed by
any other person, more particularly of personal nature. Eg. the engagement to sing or to paint. In such
cases there is no question of vicarious performance.
Steps in requisition of immovable property:
Govt has power to acquire any property for public purpose by publishing in Official Gazette.
(1) Requisition of immovable property by the Govt. for any public purpose. (2) The owner of the property
should surrender / deliver the possession within 30 days of the notice. (3) Otherwise, Govt. has power to
take possession of requisitioned property by serving a notice. (4) The property used for such purposes as
per notice of requisition. (5) Govt. may release and restore any property requisitioned at any time.

Theories of law governing the assignment of tangible movables:

Assignment means transfer of rights/property/other benefits by an individual/the assignor to
another/assignee. Tangible movables are goods that have a material existence and that can be moved. Eg.
TV, car etc. The civil procedures for assignment of tangible movables are governed by legal statutes. A
creditor, having an enforceable title, wants to recover the debt from his debtor may take steps for
attachment of the debtor's tangible movable property. The property attached may be sold by the creditor
to recover the debt amount from the sale proceeds.

Theories in assignment of intangible movables:

Intangible property is property that does not derive its value from physical attributes. Patents, software,
trademarks and license are intangible property. (furniture, equipment etc. are tangibles)
Assignment of Intangible Property means assigning to the buyer, all seller's rights, title and interest in the
property, including guarantees/warranties, with respect to the property.

➔MARRIAGE:
Marriage is the act of uniting a man and woman for life. It is the highest recognized valid legal union.
Marriage is a contract both civil and religious, by which the parties engage to live together in mutual
affection and fidelity, till death. Marriage was instituted by God himself for the purpose of preventing the
immoral intercourse of the sexes, for promoting domestic happiness, and for securing
maintenance/education of children. It is also legal union of a couple as spouses.
As per the English common law tradition, from which our legal doctrines and concepts have developed, a
marriage was a contract based upon a voluntary private agreement by a man and a woman to become
husband and wife. A marriage is a contract made in due form of law, by which a free man and a free
woman reciprocally engage to live with each other during their joint lives in the union, which ought to
exist between husband and wife. Free man and free woman mean that they are free and not slaves; free
from limitations to a lawful marriage.
The basic elements of a marriage:
1. Mutual consent (willingness) of the parties to marry
2. Legal ability / intellect of the parties to marry each other
3. Fulfillment of legal requirements.

Hague Marriage Convention

A Convention on the Celebration & Recognition of the Validity of Marriages was conducted at the Hague
in 1978 and came into force in 1991. It is known as “The Hague Marriage Convention” that harmonizes
different marriage laws.
Article 9 of the Convention:
One contracting state/nation must recognize a marriage legally performed in another contracting state.
Currently 3 states (Australia, Luxembourg, the Netherlands) have ratified the Convention. Another three
nations- Egypt, Finland, and Portugal have signed it.

Marriage and Divorce:

Marriage gives rise to obligations, conjugal relations and certain rights between the spouses and law seeks
the discharge of the marital obligations. Withdrawal from state of things is considered as violation of
marital obligations and duties. Marital obligations are safeguarded and protected because they are the
foundation of a family. In India, conjugal right is inherent in the institution of marriage and not a mere
creation of statute. But where foreign element (PIL) is involved, then for resolution of Conflict of laws,
the Courts resort to the Principles of Comity or Courtesy and Courts also use the Principle of Reciprocity.

The basic belief relating to marriage is that it is a sanctified union which joins two individuals for life.
Divorce is a serious issue which devastates the interest of the parties involved and therefore the courts
should make every attempt to save the marriage and should insist on the performance of marital
obligations. Sharing of common life, including all the happiness and misery associated with it, is the
essence of marriage. Living together is a symbol of sharing such aspects of marriage, while living apart
indicates disruption of the essence of marriage and if this disruption goes on, then it has the tendency of
causing breakdown of marriage. In every family system, divorce is discouraged to a large extent and is
permitted only in grave circumstances and that too in a manner specified by law.

For desertion to be a ground of Divorce under Section 13(1) of the Hindu Marriage Act, 1955, two
conditions need to be fulfilled as under:
o There has to be intention to bring the cohabitation to an end permanently.
o There must be factum of separation.

With regard to deserted spouse, another 2 essential conditions to be fulfilled as under:

o Absence of consent
o Absence of conduct giving reasonable cause to the other spouse to form intention to desert the
matrimonial home, has to be proved by the complainant.

The court has to take into consideration the particular couple that has approached the court for the
resolution of differences between them. While dealing with cases involving the issue of divorce, there
should be strict enquiry conducted and the marriage bond should not be left aside lightly as it involves the
status of parties. It is still relevant in Indian context and therefore every possible effort should be made, to
save marriage and bring about reconciliation between parties.

Matrimonial problems in NRI Marriages:

NRI marriages now gaining substantial importance by assuming alarming dimensions due to fraudulent
traps of Indian Women by the People of Indian Origin (PIOs) and Non-Resident Indians (NRIs).
Matrimonial disputes and legal intervention become more complex, when one of the parties of the
marriage is from outside India. Such marriages then result in a conflict of laws of different nations. Since
there is no specific/cogent legislation with regard to NRI marriages in India, there is an urgent need of
legislative intervention.

Typical issues in NRI marriages in different nations:

➢ Abandonment of women by her husband after being taken to the foreign country.
➢ Brutal assault/battering/abuse of women, mentally/physically, by husband/his family membrs
➢ Capturing and holding of the women in the foreign nation demanding huge sum as dowry.
➢ Giving false information relating to the job, salary and property to the family members of the women
before marriage, and later conning the women into marriage.
➢ Hiding of the status of pre-existing marriage by the husband.
➢ Husband who has already obtained divorce from women through an ex-parte decree by making false
representations without her knowledge.
➢ Women encountering jurisdictional obstacles in Indian Courts due to unavailability of cogent
legislation in this regard.
Current legal status on disputes arising out of NRI marriages:
Indian legislations such as Special Marriage Act, Foreign Marriage Act or court orders are not proved
adequate to deal with the issues that arise in an NRI marriage, as they are based on the English Rule of
PIL. It is imperative for the legislature to enact a law that seeks to prevent the injustices that are caused to
the Indian wives of those NRIs, who obtain an ex-parte decree of divorce without the knowledge of their
wives, from courts of foreign jurisdiction. In order to deal with the foreign decrees of matrimonial
matters, it is required to have a well-developed PIL body, having powers of recognition, reorganization
and solemnization of foreign marriages, besides checking the legitimacy of a foreign decree of divorce.
The SC held that the jurisdiction and the grounds for decision made by the foreign court should be in
consonance with the matrimonial laws, under which the parties are married. India should also enter into
bilateral/multilateral agreements with other nations for the purpose of recognition of matrimonial decrees
given in courts of foreign jurisdiction.

The Foreign Marriage Act of 1969:

In order to comply with the legal necessities for foreign marriages (one party is a foreigner), the Foreign
Marriage Act has been enacted in 1969, by drawing most of the provisions from the Foreign Marriage
Act, 1892 of Britain and Marriage Act, 1961 of Australia, with provisions for marriages of Indians, who
are outside India, or one of the parties to the marriage is a foreigner. Although the Foreign Marriage Act
is an improvement in this area, but it has some inadequacies regarding divorce, nullity of marriage and
other matrimonial reliefs. Such deficiencies as under:

1. No overriding effect over existing laws:

Solemnization of the marriage under this Act still depends upon the discretion of the person, who
marries a foreigner or is marrying in a foreign nation.

2. Incomplete Act:
The Act deals with only 3 factors relating to foreign marriages: (1) Solemnization of marriage (2)
Process of solemnization (3) Registration of marriage. Issues of divorce, nullity of marriage,
maintenance, citizenship of child born out of such marriages etc not addressed.

3. Inadequate provisions for penalty:

Sec. 19, 20, 21 of the Act prescribes punishments and penalties, that apply only to the Indian party of
such foreign marriages. When one party files a suit for desertion and the other challenges it on the
ground that the marriage was not as per Indian law, then the foreign party can evade punishment and
only Indian party is subjected to the penalty under the Act.

4. Use of ‘may’ in Section 4 and 17 of the Act:

This act does not make the solemnization and registration of marriage, a compulsion. To make it
mandatory, the act should have contained words as ‘shall’/‘must’ in place of ‘may’.

Strategies for improvement:

➢ The registration of NRI marriages should be made compulsory under this Act.
➢ An affidavit must be filed by the NRI party that he is not already married or divorced, prior to the
solemnization of marriage.
➢ The Indian Passport Act must be suitably amended to provide a separate page in the passport
containing details regarding the marital status, photograph of spouse, etc.
➢ It should be provided that the marriage between an Indian and an NRI will be legitimate within India,
if the marriage takes place under this Act.
➢ It should be provided that an ex-parte decree that is obtained without the knowledge or consent of the
wife shall not be enforceable in India, to obviate such situations.
➢ It must be provided for adoption and custody of child, born out of such NRI marriages.
➢ The property of the married couple should be recognized as joint property by law and it should be
divided between both of them, as per provisions of law (not as per foreign courts)
➢ It should be provided for bilateral co-operation between the Indian Govt. and the overseas authority,
in respect of the aggrieved women abroad.

There is a need for bilateral agreements / legislations for recognition of foreign marriages between nations
on matrimonial issues on the lines of Britain. There must be single legislation dealing with all such issues
arising out of NRI marriages

➔DOMICILE:

a) Domicile of origin means the home of an individual's parents. It comes into existence as soon as the
child becomes an independent person by birth. If the child is born in a lawful wedlock, then the child
takes father's domicile. Nobody shall be without a domicile, by operation of law. A domicile of origin is
assigned to every person at the time of his birth. To a legitimate child, the domicile of the father is
assigned, to an illegitimate child, the domicile of the mother is assigned. This domicile of origin continues
until a new- domicile of choice is acquired by the person.

b) Domicile of choice:
To acquire a domicile of choice in a country, a person must intend to reside there permanently or
indefinitely. A man fixes voluntarily his sole/chief residence in a particular place with the intention of
continuing to reside there for an unlimited time. Two requirements for an individual to acquire a domicile
of choice: (1) there must be residence in the territory, with his physical presence (2) there must be an
intention to reside in that territory permanently or indefinitely.
Eg. Domicile of a business man in England and his family lives in India:

The basic principles of domicile:

• No person can be without a domicile.
• No person can at the same time for the same purposes have more than one domicile.
• Existing domicile is presumed to continue, until it is proved that a new domicile is acquired.
• Children below the age of 16 years cannot acquire independent domiciles.

Domicile of a married woman:

Matrimonial Domicile refers to a place where husband and wife have established their ‘matrimonial
home’. However, a wife need not take a husband's domicile as matrimonial domicile at the time of
marriage, if the husband intends to acquire a new domicile. A Domicile/Residence Certificate is issued to
prove that the person bearing the Certificate is a Domicile/Resident of the State, by which the Certificate
is being issued. After marriage, the wife acquires the domicile of her husband, if the domicile was not
same before marriage.

Domicile of minor:
Domicile is the place of permanent home, the place to which one intends to return back from another state
of temporary residence. The domicile of a minor including an adopted child is by the provision of
Sections 14 and 17 of the Succession Act, 1925 dependent on the domicile of the parents and domicile by
origin. According to Child Custody Act, when parents have joint legal custody, one parent cannot move
the child’s legal residence (domicile) more than 100 miles, without the Court’s prior approval. When one
parent requests to move the child’s domicile, there is a four-step approach to give permissions.
Domicile of dependent persons:
The domicile of a dependent person is the same and changes with the domicile of the person on whom
he/she is legally dependent. It follows that the domicile of a child who has no parents cannot be changed.
When the child is under the age of 16, he or she has domicile of dependency. This means that the child's
domicile is dependent on his parents, who got married, the child's domicile will be that of his father. A
domicile of dependency is a domicile of choice, but the two kinds of domicile differ, as under:
a) A domicile of choice can be abandoned; a domicile of dependency cannot be abandoned.
b) A domicile of dependency is imposed, whereas a domicile of choice is always acquired.
c) It is easier to prove that a formerly dependent person has abandoned his last domicile of dependency
than to prove the abandonment of a domicile of choice.

Domicile of independent persons:

Domicile of an independent natural person falls under two categories as under:
(1) Domicile of origin: It is received by operation of law at birth.
(2) Domicile of choice:
The Domicile of Choice is acquired by the actual moving to another country accompanied by his place of
residence or settlement, a permanent home. It is fixing voluntarily his sole/chief residence in a particular
place with an intention to continue to reside there for an unlimited time. Every individual can acquire a
domicile of choice by combination of actual residence in particular place, and intention to remain there
permanently or for an indefinite period. Any independent person may acquire a domicile of choice.

➔LEGITIMATION & ADOPTION:

Adoption refers to persons, who are strangers in blood, whereas Legitimation refers to persons of the
same blood. When one acknowledges his illegitimate child and takes it into his family and treats it, as if it
were legitimate, it is not an ‘adoption’ but a ‘legitimation’. Marriage is essential pre-condition for a valid
legitimation, but marriage tie is not obligatory to take adoption. A woman/man can take adoption by
completing judicial formalities without marriage relationship.

a) Adoption:
A process, whereby a person assumes parenting for another and permanently transfers all rights/
responsibilities with ancestries/background from biological parent(s). Adoption involves the extinction of
the parental links between the child and the biological parents and the creation of similar links between
the child and the adoptive parents. Parent only recognizes their child, without marrying actual parent.

b) Legitimation:
It is a legal process by means of which a child born illegitimate is made legitimate. A person who has not
been born to married parents acquires the status of legitimacy, as a result of some act. Here, the parent(s)
will complete their marriage and recognize their child.

***ALL THE BEST FOR THE EXAM FRIENDS***

(compiled by G.E.V. Prasada Rao, SBI)