Private

International Law
UNIFICATION OF PRIVATE INTERNATIONAL LAW
CLASS 7
► Different countries have different rules for Private International Law, which many a time
contributes to conflicting judgments. Thus there is a need to unify private international rules
across the globe.

► Some of the key cases that point out to these conflicting scenarios are

Narashima Rao v Venkatalakshmi 1991

Ogden V Ogden 1908

► From these two cases we can pretty well see how there is a miscarriage of justice due to
conflicts between laws of nations, thus there is an overwhelming need to unify the private
international laws to ensure uniform justice no matter where a case is filed.
Narashima Rao v VenkataLakshmi 1991

Couple got married in Tirupati on Feb 27 1975 and separated in 1978. The couple resided
together in India for a duration of 4 to 5 months after that she had left to her parents home, while
her husband had gone to USA and finally got placed in Charity Hospital in Louisiana, New
Orleans.
After he settled there, wife also joined him in New Orleans. Later on husband alone moved to
Chicago, while wife left back to India. Thus last place for matrimonial home was New Orleans.
Later on husband moved to Missouri and resided there for 90 days, obtained domicile and finally
filed for divorce in Missouri. Wife promptly filed a reply petition stating that she was not submitting
to the jurisdiction of Missouri Court.
In spite of that, Missouri Court granted an exparte decree on grounds of ‘irretrievable breakdown
of marriage.’
After the grant of divorce Narashima Rao underwent a second marriage, which left the first wife
filing for both restitution of marriage as well as a case for bigamy, in India. The same was
dismissed by magistrate court based on the foreign decree.
An appeal was made before High Court which reversed the judgment of the trial court.
► Supreme Court upheld the judgment of High Court and observed as
follows:

► No Jurisdiction as judgment not delivered from a court having

jurisdiction based on place of last matrimonial residence nor had
the wife submitted to the jurisdiction of Missouri Court which
granted the divorce decree.
► Decree obtained by fraud as the husband resided for mere 90
days in Missouri just to obtain domicile certificate and apply for
divorce. He had no intention to reside there permanently.
► Under Hindu Law ‘irretrievable breakdown of marriage’ is not a
ground for divorce and thus this foreign decree is a breach of
matrimonial laws of India.
► A mere Photostat instead of a certified copy as laid down in S.86
of Indian Evidence Act does not make a valid documentary
evidence of the foreign divorce decree.

► Thus, in this case, the second marriage was valid in the eyes of law
of United States but an instance of Bigamy in the eyes of Indian
Law!
Ogden V Ogden 1908

A Englishwoman married a Frenchman P. P was a

minor under French Laws, he was only 19 years old.
Under French Laws he must get his parents consent to
be married upto the age of 25 years, beyond which he
is deemed a major.
P got married in England without reading the banns and
without getting his parents’ consent. Thus, the French
Court held the marriage to be void.
Later on, the Englishwoman got married to another man
Ogden. Only after the marriage Ogden came to know
that his wife was already married to P. Thus, Ogden went
to court and filed a suit for nullity of marriage on grounds
of bigamy.
England Court held that the first to P was a valid
marriage in the eyes of English law, thereby rendering
the second marriage to Ogden bigamous making it null
and void.
Unification of Private International Law can be done in two ways:

Unification of Unification of
Rules of Private
Private Laws
International
Laws
Unification of Private Laws
► The UN Commission on International Trade Law (UNICITRAL) observed that
Convention on International Sale of Goods 1988 based on the Vienna Convention
will avoid recourse to Private International Law for international contracts and thus
bring in predictability.
► Dogauchi: Uniform Law is best option while uniform Private International Law is
second best.
► Some conventions that have attempted to unify Private Law includes:
► Berne Convention for Copyright in 1886
► Warsaw Convention 1929: uniform rules for carriage of goods and persons by AIR.
► Brussels Convention 1956: uniform rules for carriage of goods and persons by SEA.
► Geneva Convention 1956: uniform rules for carriage of goods and persons by Road.
► Geneva Conference 1930: Uniform Law of Bill of Exchange.
► As far as Regional level conventions to unify private laws are concered, these
would make great examples:

► Finland, Denmark, Norway and Sweden have laws to unify branches of

bankruptcy laws, laws relating to resjudicata as well as recognition and
enforcement of foreign laws.

► In USA each province has its own laws, thus they have Restatement of Private
International Law, but it is not codified or binding in nature.

► Then above all we have the European Union, which stands as a very best
example for regional cooperation.
Unification of Rules of Private International Laws

► Kramer : It is rather unfair if a party can not know what law will govern his/her
conduct.
► Even before 1950s, unification of Private International Law was tried but it failed since
European and Continental countries have two different legal system i.e. Civil Law
System and the Common Law System.
► In 1951 Permanent Bureau of Hague Conference [HCCH] was constituted to look into
unification of Private International Law. Some of its main functions are:
► To keep in touch with official and unofficial bodies that work to unify Private International
Law.
► Study and prepare proposal to unify Private International Law.
► Works under the direction of the standing commission of Netherlands 1897 to promote
codification of Private International Law.
► HCCH has brought about unification in areas of divorce, legal separation,
guardianship, international validity of marriage and adoptions.

► 1957 – Maintenance

► 1964 – Adoption

► 1965 – Recognition of decree related to divorce

► 1967 – Recognition of decree related to adoption