PIL-

2024

PRIVATE INTERNATIONAL LAW

AZIZUR RAHAMAN
QUALITY NOTES

AZIZUR NOTES 10TH SEMESTER

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NOTES ON PRIVATE INTERNATIONAL LAW

MODULE - 1 & 2
SUBJECT MATTER, NATURE AND BASIS OF PRIVATE
INTERNATIONAL LAW
&
HISTORICAL DEVELOPMENT AND THEORIES

1. State briefly the origin of private international law, How it evolved in India?
Discuss.
2. What is Private International Law? What are the sources of Private
International Law? How is Private Intermational Law applicable in India?
3. What is the basis of Private international law ? Explain the various theories
of Private International Law.
4. Discuss the nature of Private international law ?
5. Dicuss the subject matter or scope of Private International Law ?

MODULE- 3
RELATIONSHIP OF PRIVATE INTERNATIONAL LAW AND MUNICIPAL
LAW
1. Discuss in brief the relationship of Private lnternational Law and Municipal
Law.

MODULE- 4
CHARACTARIZATION
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1. Define characterization. Discuss the Process of characterization in

practice ? Problems of characterization . State theories of
characterization.

MODULE-5
RENVOI

1. The Problem of 'Renvoi' arisen in those cases where the rules of Private
Intemational Law either refer to the law of forum or refer to law of a
Third Country." Comment and discuss in detail the Doctrine of Renvoi.
**

2. Briefly discuss the various theories relating to Renvoi.

MODULE-6
JURISDICTION,APPLICATION & EXCLUSION OF FOREIGN LAW-
FOREGIN JUDGEMENT

1. Under what circumstances the courts in India will recogníze and enforce
the foreign judgement? Discuss in the light of statutory provisions and
decided cases.
2. Write a note on exclusion of foreign law .

MODULE- 7
NATIONALITY & DOMICILE
1. What is the meaning of 'Domicile' and what are the general rules under
Indian and English Private International Law? What are the kinds of
Domicile ? Discuss the contrast of Domicile of Choice and Domicile of
Origin ? Difference between Domicile and Nationality ?
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MODULE- 8
LAW OF FAMILY- MARRIAGE, MATRIMONIAL CAUSES, LEGITIMACY,
AND LEGITIMATION,ADOPTION, GUARDIANSHIP,CUSTODY

1. Sate and explain the choice of jurisdiction and choice of law rules to be
applied in cases of Dissolution of Marriage under English and Indian laws.
2. What do you understand by the term Choice of Law? Elucidate.
3. What are matrimonial causes under Private International Law and briefly
discuss each.
4. Briefly discuss the adoption under private international law.
5. Write a note on marriage and validity of marriage .
6. Discuss the law of legitimacy and legitimation and their position in England
and in India .

MODULE- 10
PROPERTY
Charactarisation-Immovable-Property, Tangible&Intangible
Movables, Insolvency , Successsion

1. Write a note on Movable property ? ( Theorie of tangible moveables and

intangible moveables )

2. Write a note immoveable property ( Mocambique Rule , exception to

Mocambique Rule , choice of law and Capacity to transfer Immoveable
property )
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Module 11
LAW OF OBLIGATIONS- CONTRACTS & TORTS
1. Discuss commercial contracts under the Private International Law with
special reference to the theory of 'Proper Law of Contract'.

2. Discuss the English and Indian position regarding choice of law in case of
torts. Refer to judicial decisions.

PROBLEMATIC QUESTIONS

1. Meera and Rajesh after marriage went to New York. Wihin few months,
matrimonial fight broke out between them. Meera subsequently returns to
India. In the meantime, after waiting for 6 months Rajesh files a suit for divorce
there in California and gets an ex-parte decree, thus annulling the marriage.
Subsequently, Rajesh remarries with another woman. Upon hearing this Meera
files a case for bigamy in the Indian court. Can the decree granted by the US
court be recognized by court in India? Give reasons.

2. Mr. F and Mrs. M both parties after marriage were residing at Hyderabad,
where the husband also worked. The husband used to go to Meerut for official
visits, on some of which the wife also accompanied. Subsequently, he filed a
petition for judicial separation at a Meerut court on the ground of adultery.
Whether he can obtain a decree of judicial separation? Decide giving reasons.

3. An order of custody of child, who is an Amerícun citizen, obtained from

Superior Court of Washington in his favour. The mother has brought the child
to India before the pronouncement of order and the child is studying in India
for last two years. Whether the judgement can be recognized and enforced by
Indian courts? Decide.
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4. A testator, who was a French national, was habitually resident in England

but dies domiciled in Spain, leaving movable property in England. Lex Fori is
England. Should Lex Fori apply Renvoi? Elucidate.

5. Roy, a German National obtains both movable and immovable property in

India and dies domiciled in India. His legal representatives, Geman nationals
move Indian Court to dispose both movable and immovable property situated
in India. Can the legal representatives of do so? Elucidate.

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MODULE - 1 & 2
SUBJECT MATTER, NATURE AND BASIS OF PRIVATE
INTERNATIONAL LAW
&
HISTORICAL DEVELOPMENT AND THEORIES

1. State briefly the origin of private international law, How it evolved in

India? Discuss.
Ans:

Origin and Development of Private International Law

Private International Law, also known as Conflict of Laws, is a set of rules and
principles used to resolve legal disputes that have a foreign element. This can
involve cases where the parties are from different countries, where a legal
issue involves foreign laws, or where events have occurred in more than one
country. Here’s a detailed discussion on the origin and development of Private
International Law in simple language.

1. Early Beginnings
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Private International Law has its roots in ancient times when different regions
started trading and interacting with each other. As people from different areas
with different legal systems began to interact, the need arose to determine
which laws would apply to cross-border disputes.

Roman Law: The Romans were among the first to develop principles that
resemble modern Private International Law. They used a system called "jus
gentium," which means "law of nations." This system helped resolve disputes
between Roman citizens and foreigners.

Medieval Europe: During the Middle Ages, trade expanded across Europe. This
period saw the rise of merchant courts, which created their own rules (lex
mercatoria) to govern commercial disputes between merchants from different
countries.

2. Development in the Modern Era

As nations became more interconnected through trade, colonization, and

travel, the need for a more structured approach to resolving cross-border legal
issues grew.

17th and 18th Centuries: During this period, scholars like Ulrich Huber in the
Netherlands and others in Europe began to develop theories and principles to
handle conflicts between different legal systems. These scholars are
considered the fathers of modern Private International Law.

19th Century: The industrial revolution and the expansion of international

trade further highlighted the need for clear rules. This period saw the
establishment of more formal legal doctrines and the creation of the first
comprehensive texts on Private International Law.

Notable Contributions: Friedrich Carl von Savigny, a German jurist, made

significant contributions by proposing that the applicable law in cross-border
disputes should be the law of the place with the closest connection to the
issue.

3. Institutionalization and Codification

Hague Conference on Private International Law: Established in 1893, this

organization aims to harmonize Private International Law across countries. It
has created numerous treaties that standardize rules on issues like marriage,
divorce, child custody, and international business transactions.
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National Codifications: Many countries have developed their own codified

rules for Private International Law. For example:

 France: The French Civil Code, established in 1804, includes provisions

for resolving international legal disputes.
 United States: While the U.S. doesn't have a single code for Private
International Law, various laws and court decisions guide its application.
 European Union: The EU has developed regulations, such as the Rome I
and II Regulations, which standardize rules on contractual and non-
contractual obligations across member states.

4. Modern Developments and Challenges

Today, Private International Law continues to evolve to address new

challenges posed by globalization, technological advancements, and increased
mobility.

Globalization: With more people, goods, and services moving across borders,
there’s a greater need for consistent legal rules to manage international
disputes effectively.

Technology: The rise of the internet and digital commerce introduces new
complexities, such as determining the applicable law for online transactions
and protecting personal data across borders.

Human Rights: Modern Private International Law also increasingly considers

human rights implications, such as ensuring fair treatment in international
custody battles or safeguarding labor rights in multinational enterprises.

Conclusion

Private International Law is a dynamic field that has evolved from ancient
times to the modern era to address the complexities of cross-border legal
disputes. Its development has been driven by the need for fair and predictable
rules to manage the interactions between different legal systems. As the world
continues to become more interconnected, Private International Law will keep
adapting to new challenges and changing global dynamics.

Evolution of Private International Law in India

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Private International Law in India has evolved through a combination of

historical influences, legislative changes, and judicial interpretations. Here’s a
detailed discussion on its development, in simple language:

1. Colonial Influence

The roots of Private International Law in India can be traced back to the
colonial period when British rule introduced English common law principles
into the Indian legal system.

East India Company: In the early days of the East India Company, there were
no formal rules for dealing with international private disputes. However, as
British influence grew, the need for a structured legal system became
apparent.

British Rule: With the establishment of British courts in India, English legal
principles began to be applied, including those related to Private International
Law. The British introduced laws and procedures to handle conflicts involving
foreign elements.

2. Post-Independence Developments

After gaining independence in 1947, India retained many legal principles

inherited from the British but also began developing its own legal framework.

Indian Constitution: The Indian Constitution, adopted in 1950, provided the

foundation for India’s legal system. Although it did not specifically address
Private International Law, it laid down principles of justice, equity, and good
conscience that influence how foreign-related disputes are resolved.

Legislation: Over the years, several statutes have been enacted to address
specific issues related to Private International Law. For example:

 Indian Contract Act, 1872: Governs contractual obligations and can

apply to international contracts.
 Special Marriage Act, 1954: Allows for the registration of marriages
between Indians and foreigners.
 Hindu Marriage Act, 1955 and Muslim Personal Law (Shariat)
Application Act, 1937: Govern family law matters with potential
international implications.
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Judicial Interpretation: Indian courts have played a significant role in shaping

Private International Law by interpreting and applying statutes and common
law principles to international disputes.

3. Key Legal Principles and Case Law

Indian courts have developed several key principles and rules to address
Private International Law issues:

Choice of Law: Courts determine which country’s law applies to a dispute

based on factors like the location of the parties, the subject matter of the
dispute, and any agreements between the parties.

Jurisdiction: Indian courts decide whether they have the authority to hear a
case involving foreign elements. This involves considering the connection of
the dispute to India and whether an Indian court is the appropriate forum.

Recognition and Enforcement of Foreign Judgments: Indian courts may

recognize and enforce foreign judgments if certain conditions are met. For
example, the judgment must be from a competent court, be final and
conclusive, and not violate Indian public policy.

Notable Cases:

 Satya v. Teja Singh (1975): This case established that foreign divorce
decrees obtained without proper jurisdiction would not be recognized in
India.
 National Thermal Power Corporation v. The Singer Company (1992):
This case dealt with the choice of law in international contracts and
reinforced the principle that the law of the country most closely
connected to the contract should apply.

4. International Conventions and Treaties

India is a party to several international conventions that influence its Private

International Law:

Hague Convention: India is a signatory to some Hague Conventions, such as

the Convention on the Service Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters (1965), which facilitates cross-border service of
legal documents.
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Bilateral Agreements: India has entered into various bilateral agreements with
other countries to simplify the process of legal cooperation, including the
recognition and enforcement of judgments.

5. Modern Challenges and Future Directions

India faces several modern challenges in the realm of Private International

Law, including globalization, increased cross-border transactions, and
technological advancements.

Globalization: With the growth of international trade and investment, there is

a greater need for clear and efficient legal rules to resolve cross-border
commercial disputes.

Technology: The rise of e-commerce and digital transactions presents new

issues, such as determining the applicable law for online contracts and
protecting personal data across borders.

Human Rights: Issues related to international child custody, adoption, and

surrogacy involve complex questions of jurisdiction, applicable law, and the
protection of fundamental rights.

Future Directions: India continues to develop its Private International Law

framework through legislative reforms, judicial decisions, and international
cooperation. Efforts are being made to harmonize domestic laws with
international standards to better handle the complexities of cross-border legal
issues.

Conclusion

The evolution of Private International Law in India has been influenced by its
colonial past, post-independence legislative developments, judicial
interpretations, and international conventions. As India continues to integrate
with the global economy, its legal framework for addressing international
disputes will keep evolving to meet new challenges and ensure justice in an
increasingly interconnected world.

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2. What is Private International Law? What are the sources of Private

International Law? How is Private International Law applicable in
India?
Ans:
Definition of Private International Law :
Private International Law is a legal framework that governs cases
involving multiple jurisdictions and the interaction of different legal systems. It
deals with situations where individuals, businesses or entities from one country
are connected to legal issues that cross borders into other countries.
As Cheshire expressed, “Private international law, then, is that part of the
law which comes into play when the issue before the courts affects some
facts, events or transaction that is so closely connected with a foreign system
of law as to necessitate recourse to that system.”

The collection of regulations or laws that jurisdiction applies to a case,

transaction, or other occurrences that have ties to more than one jurisdiction
is known as ‘private international law’.

According to the 10th edition of Black’s Law Dictionary, it is also called the
‘conflict of laws’. This body of law addresses three major issues:

1. Choice of law, which addresses the issue of which substantive laws

will be applied in such a case;
2. Foreign judgments, which deal with the rules by which a court in one
jurisdiction requires adherence to a ruling of a court in another; and
3. Jurisdiction, which addresses when it is appropriate for a court to
hear such a case. These problems can occur in any private law setting,
but contract law and tort law are where they frequently occur.

Private international law has been defined as law directed to resolving

controversies between private persons, natural as well as juridical, primarily in
domestic litigation, arising out of situations having a significant relation to
more than one state.
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Sources of Private International Law

Private International Law (Conflict of Laws) determines which laws apply to

disputes involving foreign elements and how such disputes should be resolved.
Here’s a detailed description of the main sources, including specific
conventions, acts, sections, and relevant case laws:

1. Municipal Laws (Domestic Laws)

Municipal laws are the laws of individual countries that address cross-border
legal issues through various statutes, codes, and judicial decisions.

Examples in India:

 Indian Contract Act, 1872:

o Section 1: The Act applies to all contracts made in India. It can be
used to govern international contracts involving Indian parties.
o Section 10: Defines what agreements are contracts.
 Hindu Marriage Act, 1955:
o Section 1: Applies to Hindus within and outside India, thereby
including cross-border marriages and divorces.
o Section 13: Grounds for divorce, which can have international
implications.
 Indian Civil Procedure Code, 1908:
o Section 13: Deals with the recognition and enforcement of foreign
judgments. A foreign judgment is not conclusive if it is not given
on the merits of the case, among other conditions.
o Section 44A: Provides the procedure for executing foreign
judgments in India, subject to certain conditions.

Case Law Example:

 Satya v. Teja Singh (1975): The Supreme Court of India ruled that a
foreign divorce decree obtained without proper jurisdiction would not
be recognized in India.

2. Treaties and Conventions

Treaties and conventions are agreements between countries that establish

common legal standards for resolving international disputes.
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Key Conventions:

 Hague Conventions:
o Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents (1965):
 Simplifies and standardizes the process of serving legal
documents across borders.
 Relevant Sections: Articles 1-15 detail the process and
conditions.
o Hague Convention on the Civil Aspects of International Child
Abduction (1980):
 Provides a framework for the prompt return of abducted
children to their country of habitual residence.
 Relevant Sections: Articles 3-5 outline the wrongful removal
or retention of children and their return.
 United Nations Conventions:
o UNCITRAL Model Law on International Commercial Arbitration
(1985):
 Establishes a framework for resolving international
commercial disputes through arbitration.
 Relevant Sections: Articles 1-36 cover the arbitration
agreement, composition of the arbitral tribunal, and
recognition and enforcement of awards.

India’s Participation:

 India is a signatory to several Hague Conventions, which influence its

handling of international legal matters. For example, India has ratified
the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents.

3. International Organizations

International organizations facilitate cooperation between countries and

create international legal standards.

Key Organizations:

 Hague Conference on Private International Law (HCCH):

o An intergovernmental organization working to unify the rules of
Private International Law.
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o Develops conventions, protocols, and principles to harmonize

international legal standards.
 United Nations Commission on International Trade Law (UNCITRAL):
o Develops model laws and conventions to facilitate international
trade and resolve commercial disputes.
o Notable Contributions: UNCITRAL Model Law on International
Commercial Arbitration, which is widely adopted and provides a
uniform legal framework for arbitration.

4. Customs and Usages

Customs and usages refer to established practices that gain legal recognition
over time. These are often informal rules relied upon in cross-border
transactions.

Examples:

 Lex Mercatoria (Law Merchant):

o A body of commercial law used by merchants across Europe
during the medieval period, influencing modern commercial
practices.
 International Commercial Terms (Incoterms):
o Standard trade terms published by the International Chamber of
Commerce (ICC) that define the responsibilities of buyers and
sellers in international transactions.

5. Judicial Decisions (Case Law)

Judicial decisions from courts interpret and apply statutes, treaties, and
principles to resolve international disputes.

Influential Indian Case Law:

 National Thermal Power Corporation v. The Singer Company (1992):

o Dealt with the choice of law in international contracts and
reinforced the principle that the law of the country most closely
connected to the contract should apply.
 Maharani Rekha Rajya Lakshmi v. Maharaj Kumar Vibha Singh (1977):
o Addressed issues of jurisdiction and applicable law in divorce
cases involving foreign elements.

6. General Principles of Law

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General principles of law are fundamental rules recognized universally and

applied by courts to ensure fairness and justice in resolving cross-border
disputes.

Examples:

 Good Faith: Parties are expected to act honestly and fairly in

international transactions.
 Equity: Courts may apply principles of equity to ensure just outcomes in
complex international disputes.

Conclusion

The sources of Private International Law are diverse and interrelated.

Municipal laws, treaties and conventions, international organizations, customs,
judicial decisions, and general principles of law all contribute to a
comprehensive framework for resolving cross-border legal disputes. These
sources ensure that legal matters involving foreign elements are addressed
fairly and consistently, promoting cooperation and legal certainty in an
increasingly interconnected world.

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How Private International Law is Applicable in India

Private international law, also known as conflict of laws, deals with legal
disputes involving foreign elements. In India, private international law is
primarily governed by the Code of Civil Procedure, 1908 (CPC), the Indian
Contract Act, 1872, the Indian Evidence Act, 1872, and other relevant statutes.

Here's a breakdown of how private international law applies in various spheres

in India:

1. Jurisdiction: Private international law determines which court has the

authority to hear a particular case. Section 20 of the CPC provides
guidelines on where a suit can be filed based on the residence of the
defendant or the place where the cause of action arises. For example, in
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the case of "Satya v. Teja", the Supreme Court held that jurisdiction lies
where the cause of action arises.
2. Choice of Law: In cases involving parties from different jurisdictions, the
applicable law must be determined. Section 188 of the Indian Contract
Act, 1872, deals with contracts executed outside India but involving
performance in India. Courts may apply the law chosen by the parties, or
in the absence of choice, the law with the closest connection to the
contract. For instance, in "Mile End Vs. Chinhoyi", the court applied the
law of the place where the contract was performed.
3. Recognition and Enforcement of Foreign Judgments: Indian courts
recognize and enforce foreign judgments under certain conditions.
Section 13 of the CPC lays down the principles for the recognition of
foreign judgments, including judgments from countries notified by the
Indian government. In the case of "A vs. B", the Supreme Court
recognized and enforced a foreign judgment based on principles of
comity.
4. Arbitration: Private international law governs international arbitration
proceedings. The Arbitration and Conciliation Act, 1996, incorporates
the principles of the UNCITRAL Model Law, facilitating the enforcement
of foreign arbitral awards. Section 44A of the CPC allows for the
enforcement of foreign awards in the same manner as a decree of an
Indian court. In "X vs. Y", the court enforced a foreign arbitral award
under Section 44A.
5. Family Law: Private international law also applies to family matters such
as marriage, divorce, and child custody involving foreign elements. The
Indian courts apply the personal laws of the parties, or in the absence of
applicable personal laws, the law of the domicile or nationality. For
example, in "A vs. C", the court applied the law of the domicile of the
parties in a divorce case.
6. Torts and Civil Wrongs: When a tort occurs in one country but causes
harm in another, private international law determines which
jurisdiction's law applies. The courts may apply the "lex loci delicti" (law
of the place where the tort occurred) or the "lex loci damni" (law of the
place where the harm occurred). In "P vs. Q", the court applied the
principle of "lex loci delicti" to determine liability in a cross-border tort
case.

In summary, private international law in India encompasses jurisdictional

issues, choice of law, recognition and enforcement of foreign judgments,
arbitration, family matters, and torts. It involves the application of various
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statutory provisions and principles developed through judicial decisions to

resolve conflicts arising from the interaction of different legal systems.

3. What is the basis of Private international law ? Explain the various

theories of Private International Law.
Ans:
Basis of Private International Law :
The basis of private international law rests on three fundamental principles:
comity, convenience, and justice. Each principle serves as a guiding factor in
resolving conflicts arising from the interaction of different legal systems. This
area of law is guided by fundamental principles such as comity, convenience,
justice, and legal certainty. Comity emphasizes mutual respect and cooperation
among nations' legal systems, while convenience focuses on practical
considerations to ensure efficient and effective resolution of disputes. Justice
underscores the importance of fairness and equity in applying legal rules
across different jurisdictions, while legal certainty aims to provide
predictability and clarity in cross-border legal relations.

1. Comity:

 Comity refers to the recognition and respect that one sovereign state
extends to the laws, judicial decisions, and public acts of another state.
 In the context of private international law, comity emphasizes
cooperation and mutual respect among nations' legal systems.
 Courts often defer to foreign laws and judgments out of comity,
recognizing that each jurisdiction has its own laws and customs.
 Comity encourages harmonious relations between legal systems and
facilitates international cooperation in legal matters.
 For example, when a court recognizes and enforces a foreign judgment
based on principles of comity, it acknowledges the authority and validity
of the foreign legal system.
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2. Convenience:

 Convenience in private international law focuses on practical

considerations such as the ease of administration and the efficiency of
legal proceedings.
 Courts may consider factors like the location of evidence, witnesses, and
parties, as well as the availability of legal remedies.
 The principle of convenience aims to ensure that legal proceedings are
conducted in a manner that minimizes inconvenience and promotes the
effective resolution of disputes.
 For instance, a court may exercise jurisdiction based on convenience if it
is the most suitable forum for adjudicating the dispute, considering
factors like the location of evidence and witnesses.

3. Justice:

 Justice is a core principle of private international law, emphasizing

fairness and equity in the resolution of disputes involving foreign
elements.
 Courts strive to achieve substantive justice by applying laws that are just
and equitable to the parties involved.
 Justice in private international law entails balancing competing interests
and ensuring that legal outcomes are morally and ethically sound.
 Courts may refuse to enforce foreign laws or judgments if doing so
would result in injustice or violate public policy.
 For example, a court may decline to enforce a foreign judgment if it
conflicts with fundamental principles of justice or violates the public
policy of the forum state.

4. Legal Certainty:

 Legal certainty refers to the predictability and clarity of legal rules and
their application in cross-border situations.
 Private international law aims to provide clear guidelines and rules to
parties involved in international transactions or disputes.
 Clarity and predictability in legal rules help parties understand their
rights and obligations, reducing uncertainty and promoting confidence in
international transactions.
 Courts strive to apply consistent principles and rules to ensure legal
certainty in cross-border cases, enhancing the stability and reliability of
international legal relations.
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 For example, clear rules on jurisdiction, choice of law, and recognition of

foreign judgments contribute to legal certainty by providing parties with
a clear framework for resolving disputes across different legal systems.

Private international law is founded on the principles of comity, convenience,

and justice. These principles guide courts in resolving conflicts between
different legal systems while promoting cooperation, efficiency, and fairness in
the administration of justice on an international scale.

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Various Theories of Private international Law :

The five main schools of thought in private international law. These theories
include the Statute Theory, International Theory, Territorial Theory, Local Law
Theory and Theory of Justice. Each of these theories is further explored, along
with how it may be used in real life:

1. Statute theory

It can be argued that the statute theory is the most traditional theory of
private international law. Bartolus invented it in Italy in the 13th century. He is
frequently cited as this theory’s founder. In order to reconcile problems
between the city states’ laws and the then-existing Italian law, he created the
statute theory. Depending on the legal subject, the statutes were separated
into two sections called Statuta Personalia and Statuta Realia.

 Statutes pertaining to individuals (Statuta Personalia): These laws

dealt with people and were applicable to those who resided in a
certain region. Even when these domiciled individuals travelled to
other territories, the laws of that particular area nevertheless applied
to them.
 Statutes pertaining to things (Statuta Realia): These statutes dealt
with objects and were primarily territorial in scope.
 Mixed Statutes (Statuta Mixta): Bartolus added a third category to
the statutes, nevertheless. Rather than people or objects, this article
dealt with acts. This sub-head would cover things like the creation of
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contracts or agreements, for instance. These were applicable to all

actions taken in the area that passed the relevant legislation, even
when litigation over those actions took place in another jurisdiction.

Criticism of statute theory

The three maxims Ulric Huber, a Dutch jurist, established for the statute theory
during the 17th century as the law developed. He believed that these maxims
might be used to create an all-encompassing framework for settling legal
disputes.

They were as follows:

 The rules of a State are inviolable, but only inside the boundaries of
its sovereign territory.
 Everyone who enters a sovereign’s realm, whether temporarily or
permanently, is considered one of his subjects and is subject to his
laws as a result.
 Due to comity, however, each sovereign acknowledges that a law that
has already been implemented in the nation of its origin should
continue to be in effect elsewhere, provided that doing so would not
harm the subjects of the Sovereign by whom its recognition is sought.

While the first two maxims i.e. any rule of the nation has absolute authority
and that people must abide by it, can be accepted, several academics and legal
experts from throughout the world have criticised the last axiom. The Statute
Theory lacks a scientific foundation and provides no firm footing upon which a
sound and logical system can be built, according to Cheshire & North’s private
international law. One can’t expect every country’s legislation to fit him or his
means, according to the third maxim. While homosexual marriage is legal in
certain nations, it is not in others. The third maxim thus becomes nonsensical
and useless.

2. International theory

Another term for this hypothesis is the Von Savigny theory. The older statute
argument was categorically rejected by the German jurist in his work on
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Conflict of Laws, which was published in 1849. The statute theory, in his
opinion, is unfinished and unclear.

Savigny argued for a more scientific approach, stating that the challenge is to
identify the local law that, in its natural nature, each legal connection belongs
to rather than classifying laws according to their objects. Each legal
relationship has a natural seat in a specific local law, and when that law
diverges from Forum law, it is that local law that must be followed. In this
situation, the seat refers to the location of the object or, in the case of a
person, where he is domiciled. This theory’s most notable strength is its
attempt to resolve each disagreement in light of its unique circumstances and
the most pertinent body of law. It encourages adherence to the rules of the
legal system of which the parties or items in question are logically a part.

Application of international theory

Savigny has outlined the four main factors that influence the natural seat.
Which are:

 The place of residence of a party to a legal relationship.

 The location of an item that is the subject of a legal relationship.
 The location where a legal act is performed.
 The location of a Tribunal.
It is only normal for there to be some kind of contractual arrangement
between the parties engaged in every legal connection. Therefore, a legal
remedy must be sought if any party to such an agreement should suffer legal
injustice.

When determining the domicile of a person who is subject to a legal

relationship, one should place more emphasis on the residence of the parties
to the contract, the location of the contract’s performance, the location of the
breach, and the location of the court i.e. the place where the dispute will be
resolved. The lex situs controls the contract if real property is the issue of the
dispute, even if it differs from the domicile of either party or both parties.

Criticism of the international theory

22

 The fundamental argument against this idea was that Savigny

presupposed that the laws of all nations were uniform. This hypothesis is
less trustworthy since there isn’t as much homogeneity in the real world.
This is the case because it will be challenging to identify the natural seat
of the legal relationship in the absence of such consistency. For instance,
a breach of a marriage contract may fall under contract law in certain
nations while being regarded as a tort in others. It might be difficult to
determine the natural seat of the continuing legal relationship in such
circumstances.

 This approach also ignores the common law system and the influences
of ethnicity, religion, and culture on the laws of other nations. India, for
instance, is a nation rich in ethnic and cultural characteristics. Therefore,
a country with such a diverse population has laws that vary greatly from
region to region and even from village to village.

3. Territorial theory

The territorial theory, also called the theory of acquired rights, was established
when Dutch jurist Huber first proposed it in the 17th century since it is based
on the idea of territoriality. Common attorneys like Dicey and Beale in England
and the United States, respectively, developed it later.

In the simplest terms possible, the argument is that the courts of sovereign
nations do not implement foreign law but only acknowledge the effects of
foreign law’s operation. This implies that national courts only implement
foreign law to the degree that the sovereign has given them permission to do
so.

Application of territorial theory

In essence, it implies that a judge is not permitted to arbitrarily apply any

foreign law or ruling to any matter he is adjudicating. In all circumstances that
call for his judgement, he must fundamentally apply the law of his country.

The Acquired Rights or Territorial Theory seeks to balance the necessity for
private international law with the territoriality of the law. Sir William Scott
used it in the case of Dalrymple v. Dalrymple (1902). The Hon. Sir William
stated that he was to take into account Miss Gordon’s overseas rights,
23

regardless of whence they originated. The idea, in particular, does not permit
any court to consider any law other than the fundamental law of the nation.

The argument makes sense when seen from the perspective that no stranger is
permitted to enter your home and rule or direct you.

An analogy that illustrates this point is when a visitor to Mr X’s home instructs
Mr X on how to conduct himself. The principle prevents foreign laws from
dictating how Mr X should behave or conduct himself within his own country.
It shows respect for the nations where laws are being sought to be
implemented, and since it is the judge’s own nation, it is legitimate for him or
her to exercise that privilege there.

Criticism of the territorial theory

 Dr Cheshire has harshly criticised this specific notion, calling it

“unnecessary,” “untrue,” and “unhelpful.” Currently, it also doesn’t
receive much support that’s noteworthy. Even though different
countries’ laws tend to be distinct from one another, it becomes very
difficult to compare them. Many nations, like Nigeria, where the British
formerly held sway for a very long time, still adhere to English law,
making their legal system compatible with the British. However, this is
not feasible in every other country. Foreign rulings and their application
constitute a component of the legal system and cannot be disregarded.

 The territorial theory effectively contradicts the goal of private

international law as a field of study because if it were feasible to resolve
every dispute using solely territorial law, then this discussion would not
be necessary. However, it is generally known that territorial law does
not always suffice to resolve legal disputes.

4. Local law theory

The territorial idea has been expanded into the Local Law theory, which was
put out by Walter Wheeler Cook. Cook emphasised that governing laws should
not be developed from the logical arguments of philosophers or lawyers, but
rather by looking at prior court rulings. In essence, he emphasised the value of
precedents. Cook asserts that each court must effectively create its own set of
laws based on earlier rulings. Contrary to territorial theory, it considers the
24

laws of the relevant foreign nation out of social need and practical
convenience.

Application of local law theory

The local law states that there is absolutely no reason for any court to reverse
a decision made based on local law just because there is a difference with
foreign law. Even though the etymologies of all the overlapping rules are not
the same, they are all somewhat cohesive in their interpretation and
application, and this cannot be denied. Because a nation’s law serves as its
ultimate compass, relying on precedents might be considered a legitimate
basis for enforcing the law.

Criticism of local law theory

Cheshire, North, and Fawcett argue that the local law theory doesn't provide
a solid foundation for private international law because it fails to give clear
guidance to judges dealing with cases involving foreign elements. It doesn't
specify how much consideration should be given to foreign laws, leaving judges
without clear parameters.

Precedents, while helpful, shouldn't be the only basis for judgments. If a

precedent is unjust or outdated, courts should be willing to overturn it for the
sake of justice. The law needs to adapt to changing times and circumstances,
and higher courts often overturn lower court rulings when new information or
logical concerns arise.

5. Theory of Justice

 Dr. Graveson's theory aims to achieve genuine justice by considering

English statutes, judicial decisions, morality, and equality.
 It prioritizes fairness over strict adherence to rules, allowing flexibility in
applying the law to individual cases.
 according to Dr Graveson, his theory shouldn’t be applied as a rigid rule
in every situation. Rather, his major goal is to administer pure justice
while taking previous decisions, morality, and equality into consideration
25

Example:

 In a cross-border contract dispute, a British company enters into a

contract with a French company. According to the theory of justice, the
English court would consider not only English contract law but also
relevant principles of French contract law to ensure a fair resolution.
This approach allows the court to administer justice by considering the
interests of both parties and the principles of fairness and equality,
rather than rigidly applying only English law.

Application of the Theory:

1. The theory recognizes the necessity of applying foreign laws in private

international law cases to address conflicts of interest involving multiple
parties.
2. It balances sovereignty concerns by emphasizing that applying foreign
laws is a voluntary choice rather than coercion, essential for resolving
disputes effectively.

Criticism of the Theory:

1. Critics argue that no single theory can adequately address the

complexities of private international law, as it involves conflicting
interests and diverse legal systems.
2. Some critique the theory for potentially compromising sovereignty when
enforcing foreign laws, raising concerns about loss of autonomy in legal
matters.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

4. Discuss the nature of Private international law ?

Ans:
Nature of Private International Law :
Private international law, also known as conflict of laws, is a vital legal
framework that governs disputes involving foreign elements. It deals with
conflicts arising from the interaction of different legal systems across various
26

jurisdictions. This branch of law determines jurisdiction, applicable law, and

recognition of judgments in cases with international aspects. Private
international law ensures fairness, predictability, and efficiency in resolving
cross-border legal disputes, making it essential for international commerce,
diplomacy, and justice.

1. Includes Foreign Element:

o Description: Private international law deals with legal disputes
involving foreign elements, such as parties from different
jurisdictions, transactions across borders, or events occurring in
multiple countries.
o Relevant Sections: Section 20 of the Code of Civil Procedure, 1908,
deals with jurisdiction in suits where the defendant resides or the
cause of action arises.
o Relevant Convention: The Hague Convention on the Law
Applicable to Contractual Obligations (1980) provides rules for
determining the law applicable to international contracts.
o Example: A contract dispute arises between a French company
and an Indian company regarding the sale of goods. The contract
specifies French law governs disputes, but goods were delivered in
India, triggering private international law principles to determine
applicable law.
2. Application of Appropriate Legal System:
o Description: Private international law determines the appropriate
legal system or laws to apply when resolving disputes with foreign
elements, considering factors such as parties' nationality, place of
contract formation, and location of assets.
o Relevant Sections: Section 13 of the Code of Civil Procedure, 1908,
deals with the recognition of foreign judgments in Indian courts.
o Relevant Convention: The Rome I Regulation (EU) governs the law
applicable to contractual obligations within the European Union.
o Example: In a divorce case involving British and German citizens
residing in India, private international law principles determine
which country's laws govern issues like division of property and
child custody.
3. Branch of Municipal Law, Doesn't Deal with Other Branches:
o Description: Private international law is a branch of municipal law
focused on conflicts of laws between different jurisdictions within
a country and doesn't extend to other legal branches.
27

o Relevant Sections: Section 44A of the Code of Civil Procedure,

1908, deals with the enforcement of foreign judgments in India.
o Relevant Convention: The New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
facilitates the enforcement of foreign arbitral awards.
o Example: A tort case arises between U.S. and Canadian citizens in
India due to a car accident, prompting the application of Indian
tort laws rather than the laws of the countries of the parties
involved.
4. Branch of Internal Law of Every Country:
o Description: Private international law is a branch of internal law in
every country, with each nation applying its own rules and
principles to resolve conflicts of laws.
o Relevant Sections: Section 6 of the Indian Contract Act, 1872,
provides for the law applicable to agreements in the absence of
express or implied intention of the parties.
o Relevant Convention: The Vienna Convention on the International
Sale of Goods governs contracts for the international sale of goods
between parties from different countries.
o Example: In a contract dispute between Japanese and Australian
companies, each country's courts apply their respective private
international law principles to determine applicable law.
5. Indicates the Governing Law for a Case:
o Description: Private international law determines the governing
law under which a case is decided, considering various factors like
parties' intentions, place of performance, and public policy.
o Relevant Sections: Section 19 of the Indian Divorce Act, 1869,
deals with jurisdiction in divorce cases involving foreign elements.
o Relevant Convention: The Hague Convention on the Recognition
and Enforcement of Foreign Judgments facilitates recognition and
enforcement of foreign judgments.
o Example: In a cross-border inheritance dispute involving assets in
India, the UK, and Canada, private international law principles
determine the applicable law for distributing the deceased's
estate.
6. Jurists' Influence in Private International Law:
o Description: Legal scholars' interpretations of international
treaties and conventions significantly influence the development
and application of private international law principles in cross-
border disputes.
28

o Relevant Sections: Section 13B of the Code of Civil Procedure,

1908, empowers Indian courts to recognize and enforce foreign
awards.
o Relevant Convention: The Hague Convention on the Civil Aspects
of International Child Abduction governs international child
custody disputes.
o Example: Legal scholars' interpretations of the Hague Convention
on the Civil Aspects of International Child Abduction influence
Indian courts' decisions in international child custody cases.

In summary, private international law encompasses conflicts of laws involving

foreign elements and is guided by principles, sections, conventions, and
examples aimed at ensuring fairness and justice in cross-border disputes.

+++++++++++++++++++++++++++++++++++++++++++++++++

5.. Discuss the subject matter of Private International Law ?

Ans:
Subject-Matters Of Private International Law
•Jurisdiction of Courts.
* Choice of Law.
* Recognition & Enforcement of Foreign Judgment & Decree

 Jurisdiction of Courts :-

➤ Jurisdiction is the competency or we can say the power and authority of any court to deal
with that particular case. ➤ Jurisdiction is an important aspect even when all the elements
of a suit are internal or domestic still the question arise that whether the court has
jurisdiction to try that case or not.

➤ As under sec- (15-25) of "civil procedure code 1908" the place of suing are described.

(S-15) - Every suit shall be instituted in the lowest grade court which is competent to deal
with the case.
(S-16) - Suit to be filed in the court within the local limits of whose jurisdiction the property
is situated.
29

(S-17) - Suits for immovable Property situate within jurisdiction of different courts then all
countries have the cognizance to try the case, means in any court the case may file.
(S-18) - Place of institution of suit where the local limit of the jurisdiction of courts are
uncertain.
(S-19) - Suits for compensation for wrong to person or movable.

➤ (S-20) - Other suits to be instituted where the defendant reside or cause of action arises.

➤ In Private International law jurisdiction means competency of the domestic courts of any
country to try the suit having the foreign element.

➤The question of jurisdiction is the fundamental question in all suits and legal actions.

➤ Common law countries use the rule of "lex domicile" to determine the competency of
the court to try the suit of foreign element.

➤ Civil law countries use the rule of "lex patriae"to determine the competency of the court
to try the suit of foreign element.
Examples:-

➤ Most of the countries have the same view for the jurisdiction in case of the immovable
property. Means the court of the place where the Immovable is situated(lex situs) have the
jurisdiction to try that case.

➤ In case of movable "common law" countries follow the "lex domicile" and the "civil law"
countries follow the "lex patriae". ➤ In case of contract the court of that place, where the
contract was made, or where the contract was performed, or where the breach of contract
took place, the court of these places have the jurisdiction.

 Choice Of Law:-

➤ When court comes to the conclusion that it has jurisdiction to try that particular suit then
the next question arises is, the "choice of law".

➤ Choice of law is the procedural stage in the litigation where the presence of foreign
element.

➤ The question arises that under which country law the case should be decided? Whether
the law of forum or the foreign law should be applied. This is known as the question of
choice of law.

➤ The main purpose of choice of law is to choose the law which has the closest connection
with the cause of action, to provide the equity.
General Rules:-
30

➤ In case of question of formal validity of marriage, will be determine by the "lex loci
celebrationis" (Law of place where the marriage is solemnized)

➤ The question of capacity to marry is governed by the rule of "Lex domicile" and "law of
nationality".

➤ Succession of immovable property is governed by the law where the property is situated
means "lex situs"

➤ Succession of movable property is governed by the rule of "lex domicile" means the
domicile of the deceased person at the time of death. Proper law of contract decides by the
contractual liability of the parties.

➤ Capacity of the parties to contract will be determine by the "lex domicile" and " law of
nationality".

➤ In case of tort- it is governed by the law of the land where the damage is occurred.

➤ The choice of law decides as per the facts and circumstances.

➤ It is not necessary that the suit will be governed only by one system of law. It can be
happen that on different aspects of suit the different system of law is applied.

 Recognition & Enforcement of Foreign Judgment & Decree:-

➤ Recognition & Enforcement of foreign judgment and decree is also an important aspect
of the private international law.

➤ If the judgment is pronounce by the court have the jurisdiction then it will be
enforceable.

➤ It is a fundamental principle of law that the judgment by the court, which has no
jurisdiction will be consider as the null and void.

➤ In some countries including the India, civil procedure law lays down the rules regarding
the reorganization and enforcement of the foreign judgment & decree.
As per some sections of CPC

➤ S-2(5)- Definition of foreign court- Foreign court means the court situated outside the
India and not established by the centre govt.

➤ S-2(6)- Definition of foreign judgment- judgment pronounce by the foreign courts will be
consider as the foreign judgment.

➤ S-13- When foreign judgment is not conclusive in nature

• Where the court is not competent.
31

*Where the judgment is not pronounced on the merits of the case.

* Where an incorrect view of International law or a refusal to recognize the law of India in
cases in which such law is applicable.
* Where it oppose the Natural Justice.
*Where judgment obtained by the fraud.
*Where it sustain a claim founded on a breach of any law in force in India.

➤S-14- Presumption as to foreign Judgment.

➤S-44-Execution of decrees passed by revenue courts in places to which this code does not
extend.

➤ S-44A- Execution of decree passed by courts in reciprocating territory.

➤ S-45-Execution of decree outside the India.

➤ S-46- Precept- upon the decree holders application the court which passed the decree
may issue a precept to any other court which would be competent to execute the decree to
attach any property to the judgment debtor and specified in the precept.

++++++++++++++++++++++++++++++++++++++++++++++++

MODULE- 3
RELATIONSHIP OF PRIVATE INTERNATIONAL LAW AND MUNICIPAL
LAW

1. Discuss in brief the relationship of Private lnternational Law and Municipal

Law.
Ans:
Relationship of Private international law and Municipal Law :

2.. Difference Between Private international law and Public International Law
?
Ans:
32

Public International Law and Private International law

 As to consent: Public International law based on the consent of state. Private

International law is not based on the states.

 As to object: Public International law regulate relationship of states inter se and

determine rights and duties of the subject states at international sphere. Private
International law determines as to which law will apply of two conflicting in a
particular case having foreign element.

 As to conflict of law: Public International law does not involve in conflict of laws.
Private International law involves conflict of law.

 As to Nature: Public International is same for all the states. Private International may
be different in various states.

 As to sources: Public International law has its sources in treaties, custom etc Private
International law has its sources in legislations of the individual state to which
litigant belongs.

 As to Application: Public International law is applicable to civil as well criminal cases.

Private International is applicable to civil cases only, which present themselves for
accession of courts of the state.

 As to subject: Public International law deals with states. Private International law
deals with individuals.

 As to Municipal law: Public International law is not part of Municipal law but Private
International law is a part of municipal law.

 As to Jurisdiction: Public International law does not involve question on the

determination. Private International law determines court which will have
jurisdiction to decided issue in question.
33

+++++++++++++++++++++++++++++++++++++++++++

MODULE- 4
CHARACTARIZATION
1. Define characterization. Discuss the Process of characterization in
practice ? Problems of characterization . State theories of
characterization.

Ans:
Characterization :
Characterization is also known as classification to English writers & known as Qualification
to French writers.
It is one of the important elements in the understanding and decision-making in a dispute
having a foreign element.
Once the court finds that it has jurisdiction, the next stage i.e. classification of cause of
action arises. In this stage, the court will find out the real character of the suit and it will be
put in the appropriate category.
In this stage, the court will decide whether the cause of action relates to tort, contract,
succession, matrimonial causes or guardianship of child etc. Unless this classification is
done, the judge will not be able to select the law to be applied to decide the case.
Sometimes, the cause of action may be classified by English law/ any foreign law into
different categories, and so arises conflict of classification.
The issue of classification was discovered_independently and almost simultaneously by the
German jurist "Franz Khan" & French jurist "Bartin", & later by "Prof. Niboyet " of Paris, by
the end of 19th century.

Process of Characterization in Practice : Concept in detail - with case laws

In ogden v. ogden (1908): a French man under the age of 21 marries an English woman in
England without obtaining the consent of his parent as required by French law. The French
and English conflict rules agree that the formalities of marriage are governed by the Lex Loci
Celebrationis (English law) and also that the husband must have capacity to marry by his
personal law (French).
34

But it is the issue in the case one of formalities (in which case the French rule will apply and
the marriage will be void for want of capacity)? Or is the French rule to be characterized as
one dealing with formalities (and so inapplicable) or with capacity.
A classic problem of characterization came before the Appeal court in Algiers:-

In Anton v. Bartolo (1891) also called Maltese Marriage Case

The husband and wife were domiciled in Malta at the time of their marriage. Subsequently,
they settled in France and the husband bought land there. On his death the wife claimed a
life interest in the French land.
French and Maltese law had the same choice of law rules- succession to immovables was
governed by Lex Situs (Law where the property situates), while matrimonial property rights
were matters for the Lex Domicili (law of the domicile) at the time of marriage.

However, French law classified the issue as one of succession where as Maltese law saw it as
matrimonial property. In the event court applied Maltese law.

Problems of characterization :-

(1) The 1st problem is Renvoi, determining whether the question falls naturally within this
or that judicial category.

(2) Second problem is the interpretation of what the connecting factor is. Connecting factor
could be given different meaning in different countries.
(3) Third problem is characterization itself. i.e. to identify the department of law under
which some particular legal question fail in order to determine the rule of law to apply.
Eg:- The Nigerian law and a foreign law holds diametrically opposed view upon the correct
classification of a particular legal issue.
For instance the applicable law to movables left by a deceased person could or may relate to
the question of administration of estates in Nigeria, while the foreign laws may relate it to
succession.

As a solution to this problem, characterization is dealt by three main theories:-

(1) Characterization by Lex Fori
(2) Characterization by Lex Causae
(3) Two-fold Characterization(Dual theory of Lex Fori & Lex Causae)

Other Theories in regard:-

35

Characterization by Analytical jurisprudence

Comparative Law theory
Autonomous theory

1. Characterization by the Lex Fori( Law of the Forum)

It was propounded in 1891 by the German Jurist, Franz Khan & later re-discovered by the
French writer Bartin.
They says, a Court dealing with the question of characterization, must invariably (subject to
a few exceptions) apply and decide the issue on the basis of internal law;
Provided there exists a corresponding rule, institution, legal relationship in the internal law,
when compared to the foreign law.
It means to apply Lex Fori, that is the nearest in equivalent to lex causae.

They assert that the forum should characterize rules of foreign law in accordance with the
nearest equivalent in its own domestic law.
In Ogdon v. Ogdon, the court characterized by the LexFori, the argument in favour of this
view is that if foreign law were to be applied, Lex Fori would lose control & will lose power.

2. Characterisation by the Lex Causae (Law governing the question)

Despagnet & Martin Wolff have propounded this theory of lex causae. Wolff & Despagnet
believe that characterization must be governed by the appropriate foreign law (lex causae).
This theory of lex causae, means that, where a judge is faced with a case, he should apply
the foreign law which governs the question.
In a case containing foreign element, Judge has to select the law to be applied for deciding
the dispute. In order to select the lex causae, there is choice of law rule.
The choice of law rule will depend upon some connecting factors such as domicile,
nationality, situation of property, place of celebration of marriage etc.
It is to be noted that even though the English Private International Law directs the judge to
apply foreign law, for all purposes foreign law will not be considered as relevant.

It is well established that procedural matters will be governed by Lex fori (law of
forum/court)

In Ogdon v. Ogdon, the English Court held that the judgement of the French Court was
based upon the principle that the husband has not obtained consent of parents. According
to English Judge, obtaining consent of parents is only a procedural matter. law. Procedural
matters will be governed by Lex Fori i.e English.
36

As per English law, for violation of a procedural rule, a marriage cannot be declared null &
void. Thus the English Judge has not recognized the French judgement & held the marriage
with the French man is still subsisting. The Court declared the Second marriage as null &
void.
3. Theory of Two Fold Characterisation (Dual theory of Lex fori & Lex Cause
Prof. Cheshire & Dr. Rebertson are the proponents of this theory.
They says, the problem of characterization can best solved by dividing the process of
characterization into primary characterization (for the lex fori) & Secondary characterization
( for the lex causae). Lex fori, here does not mean the domestic rules of the forum alone, but
it includes the rules of Private international law (of a nation).
This dual theory of Lexfori & Lex causae would make the allocation of the legal issue to its
correct legal category exlusively a function of the lexfori.
Having established this primary classification, the court could then, through the legal
principles of its own conflict of laws which connects the facts of the case with some foreign
legal system, determine the judicial nature of any legal rule, institution or transaction by
such foreign system, known as the lex causae.

4. Universal Analytical Theory:-

Sir Eric Beckett & Dr. Rabel are the main propounders of this theory. They said Classification
to be based on general, comparative & analytical jurisprudence.

This theory would result in the application neither the lawof the forum nor of "lex cause",
but of the law which is of neither.
5. Comparative Law Theory:-
Rebel & Beckett propounded this theory. Characterization should be governed by the
analytical jurisprudence on the basis of comparative study of law.

6. The Autonomous Theory

Wolff proposes the straightforward categorization of every legal norm following the legal
system to which it belongs. His idea holds that the entire foreign legal system should be
taken into consideration when the English Court classifies a foreign norm. The approval of
the foreign categorization is always subject to the supreme public policy and morality of
English law; nevertheless, there is little evidence to support this idea in court decisions.

+++++++++++++++++++++++++++++++++++++++++++++++
37

MODULE-5
RENVOI

1. The Problem of 'Renvoi' arisen in those cases where the rules of

Private Intemational Law either refer to the law of forum or refer to
law of a Third Country." Comment and discuss in detail the Doctrine of
Renvoi.

Ans:
RULE OF DOCTRINE OF RENVOI
The Doctrine of Renvoi is a legal doctrine which applies when a court is faced
with a conflict of law and must consider the law of another state, referred to as
private international law ("PIL") rules. This can apply when considering foreign
issues arising in succession planning and in administering estates.
The word "Renvoi" comes from the French "send back" or "return unopened".
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 (A party's
action of looking for a court or judge that is deemed likely to render a
favorable result) and the same law is applied to achieve the same outcome
regardless of where the case is actually dealt with. The system of Renvoi
attempts to achieve that end.

* Illustration: [SIMPLE RENVOI]

'X' a British national, domiciled in Italy, died intestate leaving movable
properties in England & English Court has to decide how that properties are to
be distributed.
38

Three connecting factors in this case:

(1) Nationality (2) Domicile (3) Place where movables are situated
 According to English private international law, the decisive connecting
factor is lex domicili i.e., Italian law
 Here the English judge has to find out how the Italian Court would have
analysed the connecting factors (it refers the matter to Italian Court as
English law uses lex domicili for succession matters). And in the Italian
Private International law, intestate succession to movable properties is
governed by the lex patriae(law of nationality) - English law.
 So the matter is referred back to English law. This reference back is
called Renvoi. If this remission back is accepted, or English law is applied
by the judge, it is called SIMPLE RENVOI or SINGLE RENVOI or PARTIAL
RENVOI.

IN THE CASE OF RENVOI, FOLLOWING POINTS NEED TO BE KEPT IN MIND: -

(1) Renvoi arises in the application of the lex causae.
(2) Renvoi arises bacause of different senses in which lex causae could be
interpreted.
(3) And Renvoi arises because of the existence of different systems of Private
International Law with different choices of law rules.

FORGO'S CASE [FRENCHCASE LAW ON SIMPLE RENVOI]

Forgo (Bavarian national) domiciled in France, died intestate in France leaving
movable properties. Question came about the succession.
Forgo was an illegitimate child. And under French law, collaterals (a person
having the same ancestor but through a different line) would not succeed to
his movable properties & so properties will pass on to French Govt. But under
Bavarian Law, collaterals could succeed to the properties.
Here the French court has to decide how the properties were to be
distributed. French law in such cases applies lex patriae (law f nationality) i.e.,
Bavarian law. But in Bavarian pvt. International law, succession to movables
was governed by lex domicili
39

So the Bavarian Law referred the question back to the French law. It was
accepted by the French Court, and the French Law of succession was applied.
And so, depriving the right of succession to Forgo's collateral relatives.

TWO METHODS OF SIMPLE RENVOI

(1) Renvoi by Remission

If in a case, laws of two countries are involved, and when Country "A" referring
the question to be decided to Country "B", and the Private International law of
the country referring the question back to the Country "A", it is a case of renvoi
by remission.
A refers to B
B refers to A
(2) Renvoi by Transmission If in a case Country "A" refers a matter to Country
"B". And if Country "B" refers the matter to a third Country "C", this is renvoi
by transmission.
A refers to B refers to C

DOCTRINE OF DOUBLE RENVOI / TOTAL RENVOI / FOREIGN COURT

THEORY/ENGLISH DOCTRINE OF RENVOΙ:
According to this theory, the English judge is required to make an imaginary
journey to the Foreign land and sit in the court of that country.
Illustration:
"X" a British national, domiciled in Belgium, dies intestate in Belgium leaving
assets in England, English Court has to decide about the distribution of assets.
As per English doctrine of renvoi, English judge has to imagine that he is sitting
in a Belgian Court and decide the case as would be decided by the Belgian
Court.
40

Succession in Belgian private international law is to be decided by lex patriae,

i.e. English law. But English private international law would refer the question
back to lex domicili.
Belgian law does not recognise does not recognise partial renvoi and the
reference back will not be accepted. So the Belgian law will apply the internal
law of England in distributing the assets. So the same thing should be applied
by the English judge.
DRAWBACKS OF THE FOREIGN COURT THEORY:
(1) Foreign court theory / double renvoi does not necessarily ensure uniform
results. Uniform result will be produced only if the theory is accepted by one
country and rejected by the other. In case of rejection by both countries, there
will be interminable reference forth 7 back, as Cheshire says "an international
game of lawn tennis".
(2) Foreign court theory is difficult to apply It requires the English judge to
ascertain what precisely will be done by the foreign judge. One difficulty is to
ascertain whether partial renvoi is accepted / repudiated by the foreign law.
Second difficulty is to ascertain the national law when a country have dual
citizenships. For e.g. In countries like America, where there are several
territorial systems of law within the same country, it is meaningless to speak of
national law.

CASE LAWS ON FOREIGN COURT THEORY:

Collier v. Rivaz (1841) 2 curt, 8550: "A" a British subject, died domiciled in
Belgium, made a will which was valid according to Belgian law. At that time the
validity of will should be tested by the law of the place where the testator was
domiciled at the date of his death.
If the case were to arise in a Belgian Court, and the Court would apply the
English law as the law of nationality. The validity of will was tested by English
law and the will was held valid.
Sir Herbert Jenner in the course of his judgement said: "the court sitting here
decides from the evidence of persons skilled in that law (i.e. Belgian law) and
besides as it would if sitting in Belgium"
41

* Similar case laws: In Re Annesley (1926 Ch.'692) English and French law,
validity of will, partial renvoi acceptance by French, will declared invalid.
In Re Ross (1930-1 Ce, 337) Janet Anne Ross, a British subject, domiciled in
Italy died in Italy leaving movable properties in England. In her will nothing was
mentioned for his only son. According to Italian law the son is entitled to
succeed her properties as the legitimo-portio (The birthright portion; that
portion of an inheritance to which a given heir is entitled, and of which he
cannot be deprived by the will of the decedent, without special cause, by
virtue merely of his relationship to the testator.)
As the case arised in England, they referred it to the Italian law (lex domicili).
As the foreign court theory is applied and checked the concern of Italian court;
found that they would have applied English law in the case of succession to the
properties.
As it was received by English Court, occurred the possibility of referring back to
Italian court. Italian Court rejects the Partial renvoi principle and the reference
back is not accepted. And so English law will be applied. So on applying English
law, the will was declared valid & the only son cannot inherit his mother's
property.
Consequences of Foreign Court theory :
The result in such cases would be a circulus intricabilis (A circular argument is
one that keeps returning to the same points) spectacle of "English judges and
foreign judges continuing to bow each other".
The foreign court theory is applicable only in the following exceptional cases:
(1) Validity of wills
(2) Title to foreign land
(3) certain cases of title to movable properties
(4) Validity of marriages

Solutions:
(1) Applying the internal law theory
(2) Accepting Partial Renvoi.
42

+++++++++++++++++++++++++++++++++++++++++++

2. Briefly discuss the various theories relating to Renvoi.

Ans:
Theories of Renvoi :
In private international law, the concept of renvoi has been the subject of
various theories and approaches. These theories aim to provide a framework
for dealing with the complexities that arise when determining the applicable
law in cases involving conflicts of laws. Here are some prominent theories on
renvoi:

1.Pure Renvoi Theory: According to this theory, the court follows the entire
reference made by the foreign jurisdiction, including its conflict of laws rules.
In other words, the court applies not only the substantive law of the foreign
jurisdiction but also its rules on determining the applicable law. This theory
advocates a complete acceptance of renvoi.

2. Partial Renvoi Theory: This theory takes a more limited approach to renvoi.
It suggests that the court should only consider the substantive law of the
foreign jurisdiction and disregard its rules on determining the applicable law.
Under this theory, the court applies the substantive rules of the foreign
jurisdiction without referring back to the forum court's conflict of laws rules.
3. Remission Theory: The remission theory focuses on determining the law
that the foreign jurisdiction would apply to the case, rather than applying the
foreign jurisdiction's conflict of laws rules. It looks at the substantive
connections between the case and the foreign jurisdiction and applies the law
that the foreign jurisdiction would consider as the applicable law.
4. Transmission Theory: This theory considers the conflict of laws rules of the
foreign jurisdiction but rejects any reference back to the forum court. It
assumes that the foreign jurisdiction intends to apply its own substantive law
43

without considering the forum court's rules) The court applies the law that the
foreign jurisdiction would apply according to its own conflict of laws rules.

5. Renvoi with Double Renvoi: In some cases, renvoi can lead to a situation
where multiple jurisdictions refer the matter back and forth. The theory of
renvoi with double renvoi deals with this situation by following a chain of
references and determining the applicable law based on the final destination
of the renvoi.
It's important to note that the acceptance or rejection of renvoi, as
well as the specific theory applied, can vary depending on the legal system and
the specific circumstances of the case. The theories mentioned above
represent different approaches and perspectives on renvoi in private
international law, and their application may depend on the jurisdiction and
legal framework involved.

++++++++++++++++++++++++++++++++++++++++++++++++

MODULE-6
JURISDICTION,APPLICATION & EXCLUSION OF FOREIGN LAW-
FOREGIN JUDGEMENT

1. What is Foreign Judgment ? What is Foreign Court ? What do you

mean by Enforcement of foreign judgment ? Under what circumstances
the courts in India will recogníze and enforce the foreign judgement
and when it will not recognize the enforcement of a foreign judgement
? Discuss in the light of statutory provisions and decided cases.
Ans:
Definition of foreign court and foreign judgement :
The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for enforcement of
foreign judgments and decrees in India. CPC, 1908 had defined the following as-
44

 Section 2(5) “foreign Court” means a Court situate outside India and not
established or continued by the authority of the Central Government[1].
 Section 2(6) “foreign judgment” means the judgment of a foreign Court.

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT

Section 13 of CPC embodies the principle of res judicata in foreign judgments. It embodies
the principle of Private International law that a judgement delivered by a foreign court of
competent jurisdiction can be executed and enforced in India.

The judgement of a foreign court is enforced on the principle that where a foreign court of
competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that
claim in the country where the judgement needed to be enforced.

Section 14 of Civil Procedure Code states the presumption that an Indian court takes when a
document supposing to be a certified copy of a foreign judgement is presented before it.

Foreign Judgments when cannot be Enforced in India

Under Section 13, there are six cases when a foreign judgement shall not be conclusive.

 Foreign Judgement not by a competent court

It is a basic fundamental principle of law that the judgement or order passed by the court
which has no jurisdiction is void. Thus, a judgement of a foreign court to be conclusive
between the parties must be a judgement pronounced by a court of competent jurisdiction.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar[9], it was alleged by the
respondent that since he was not a subject of the foreign country, and that he had not
submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be
executed in India. The Appellant, in defense of this argument, stated that the Respondent
was a partner of a firm which was doing business in Singapore and had instituted various
suits in the Singapore Courts.

Therefore, the Respondent had accepted the Singapore Courts jurisdiction. The
Court held that it was the firm which had accepted the jurisdiction of the foreign Court and
the Respondent, in an individual capacity, had not accepted the jurisdiction. Thus, High
Court held that the decree against the Respondent was not executable.
 Foreign Judgments against International or Indian Law

A Judgement which is contrary to the basic fundamental rules of International law or a

refusal to recognize the law of India where such law is applicable is not conclusive.
45

 Foreign judgement obtained by fraud

It is a well settled principle of Private International Law that if foreign judgments are
obtained by fraud, it will not operate as res judicata. It has been said "Fraud and Justice
never Dwell together" (fraus et jus nunquam cohabitant); or "Fraud and deceit ought to
benefit none" (fraus et dolus nemini patrocinari debent).
In the case of Satya v. Teja Singh the Supreme Court held that since the plaintiff had misled
the foreign court as to its having jurisdiction over the matter, although it could not have had
the jurisdiction, the judgment and decree was obtained by fraud and hence in conclusive.
 Foreign Judgments founded on breach of Indian Law
When a law in force in India is wrongly construed so as to form the reasoning behind a
judgement delivered by a foreign court, in such cases the enforceability of the foreign
judgement in Indian courts will be under question.
 Foreign Judgments not on Merits

In order a foreign judgement to operate as Res Judicata, it must have been given on merits
of the case. A judgement is said to have been given on merits when after taking evidence
and after applying his mind regarding the truth or falsity of case. The Actual test for deciding
whether the judgement has been given on merits or not is to see whether it was merely
passed as a matter of course, or by way of penalty of any conduct of the defendant, or is
based upon a consideration of the truth or falsity of the plaintiff's claim.

In the case of Gurdas Mann v. Mohinder Singh Brar, the Punjab & Harayana High Court held
that an exparte judgment and decree which did not show that the plaintiff had led evidence
to prove his claim before the Court, was not executable under Section 13(b) of the CPC since
it was not passed on the merits of the claim.

 Foreign Judgments opposed to the principle of Natural Justice

It is the essence of a judgement of court that it must be obtained after due observance of
the judicial procedure i.e the court rendering the judgement must observe the minimum
requirements of natural justice. It must be composed of impartial persons, who must act in
a fair and justified manner, without bias, and in good faith, it must give reasonable notice to
the parties to the dispute and each party should be given equal opportunity of presenting
their case.

Enforcement of Foreign Judgments

A foreign Judgement which is conclusive and does not fall within section 13 (a) to (f), may be
enforced in India in either of the following ways.
46

 By instituting execution proceedings

A foreign Judgement may be enforced by proceedings in execution in certain specified cases
mentioned in Section 44-A of the CPC.
Section 44A Execution of decrees passed by Courts in reciprocating territory
(1) Where a certified copy of a decree of any of the superior courts of any reciprocating
territory has been filed in a District Court, the decree may be executed in India as if it had
been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such
superior court stating the extent, if any, to which the decree has been satisfied or adjusted
and such certificate shall, for the purposes of proceedings under this section, be conclusive
proof of the extent of such satisfaction or adjustment.
(Reciprocating territory" means any country or territory outside India which the Central
Government may, by notification in the Official Gazette, declare to be a reciprocating
territory for the purposes of this section, and "Superior Courts", with reference to any such
territory, means such courts as may be specified in the said notification. for example U.A.E,
Fiji, U.K, Bangladesh, singapore)

Therefore Under Section 44A of the CPC, a decree or judgement of any of the Superior
Courts of any reciprocating territory are executable as a decree or judgement passed by the
domestic Court.

By instituting a suit on such foreign judgement

Where a judgement or decree is not of a superior court of a reciprocating territory, a suit
has to be filed in a court of competent jurisdiction in India on such foreign judgement. The
general principle of law is that any decision of a foreign court, tribunal or any other quasi-
judicial authority is not enforceable in a country unless such decision is embodied in a
decree of a court of that country.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating territories are
enforceable in India in the same manner as the decrees passed by Indian courts. The
Limitation Act, 1963 prescribes the time limit for execution of a foreign decree and for filing
of a suit in the case of judgement passed by foreign court.

* Three years, commencing from the date of the decree or where a date is fixed for
performance; in case of a decree granting a mandatory injunction; and
47

Twelve years for execution of any other decree commencing from the date when the decree
becomes enforceable or where the decree directs any payment of money or the delivery of
any property to be made at a certain date, when default in making the payment or delivery
in respect of which execution is sought, takes place.

A judgement obtained from a non-reciprocating territory can be enforced by filing a new

suit in an Indian court for which a limitation period of 3 years has been specified under the
Limitation Act, 1963 commencing from the date of the said judgement passed by foreign
court.
+++++++++++++++++++++++++++++++++++++++

2. Write a note on exclusion of foreign law ?

Ans:
Foreign Revenue Law, Foreign Penal Law and Other Foreign Public Laws
No court will lend its aid to the enforcement either directly or indirectly of foreign revenue,
penal or other public laws. The common thread that underlines this exclusionary rule is that
laws will not be enforced if they involve an assertion of a sovereign authority by one state
within the territory of another.
EFL arises in circumstances in which the lex fori must be preferred to the foreign law
E.g. Doctrine of ordre public where domestic rule is designed to protect the public welfare
which must prevail over an inconsistent foreign rule Three situations:
A) Foreign Revenue, Penal and Public Law
B) Foreign Expropriatory Legislation
C) Foreign Laws Repugnant to Public Policy

A)Foreign Revenue Law

Government of India v Taylor: A company registered in England and carrying out trading
operations in India. Company had gone into voluntary liquidation and the Indian
Commissioner of Income Taxes made a demand for taxes on the capital gains made from
the sale of the business.
Held that the claim was not maintainable as it was the claim of the Government of India to
recover tax. "...enforcement of a claim for taxes is but an extension of the sovereign power
which imposed the taxes, and that an assertion of sovereign authority by one State within
the territory of another...is contrary to the concept of independent sovereignties."
48

* Brokaw v Seatrain UK Ltd: The United States claimed title to goods shipped on a US
registered ship by persons (owners of the goods) alleged to owe tax to the US.
A notice of levy had been issued to the ship- owner demanding that the goods be
surrendered. But when the goods arrived in the United Kingdom was not surrendered to the
US government. Held it was a claim to enforce a revenue law and it failed as it amounted to
indirect enforcement of FRL. ((But if the US government had obtained an acknowledgement
of title from the master of the ship, or otherwise obtained possession prior to the export,
the claim would have been upheld as it would amount to a possessory title than a revenue
law))

Foreign Penal Law

Banco de Vizcaya v Don Alfonso, the former King of Spain had brought securities and
instructed that they should be held by a London bank according to his agents, BdV. Spanish
Republican Government later decreed that all his property should be confiscated and
deposited with the Spanish banks.
BdV claimed the delivery of the securities on the ground of contractual right of recovery by
virtue of the instructions of public by King Alfonso. Held the P's were asserting the rights of
the Spanish Republic and to admitting the claim would amount to enforce the penal law of
Republic.

Other Foreign Public Laws

* Camdex International Ltd v Bank of Zambia (No 2), the English court held that it would
not entertain a civil cause of action where the Bank of Zambia under the Zambian law
wanted to initiate a proceeding against a Zambian mining company to recover outstanding
foreign exchange. Held this would amount to enforcement of Zambian public law as the
bank was exercising its authority under Zambian statute which was a part of the public law
of Zambia.

B)Foreign Expropriatory Legislation

Expropriation is the act of a government taking over private property for public use or in
public interest. Expropriation takes as requisition, nationalization, compulsory acquisition
and confiscation. The main question is the extend to which a decree of foreign state
implementing expropriation affects the property belonging to nationals of that state or
aliens.
To determine this the judge at the forum will look in to three factors:
1) The interpretation of the foreign legislation
2) The situs of the property at the time of the legislation
49

3) The question whether the foreign sovereign was in actual possession or control of the
property outside his territory.
Territorial principle is that property situated in a country cannot be affected by a foreign
decree of appropriation and that the rights of the owner remains unchanged even if the
property is not in possession or control of the foreign state or outside the territorial
jurisdiction of the state at the time of the expropriation.

Luther v Sagor

A quantity of wood belonging to the plaintiffs at their saw-mills in Russia was declared to be
the property of the Russian State by a decree of "nationalization" passed in 1918. The wood
was then sold by the Russian Trade Delegation in London to the defendants, a London firm,
who imported it into England; whereupon the plaintiffs started an action here, claiming that
the wood was their property.

CoA decided that legislation of the Soviet Government, which had then been recognized by
UK Government, appropriating without compensation the property in Russia of a Russian
national must be recognized and given effect in UK.

* Lecouturier v Rey, where under the French Statute, the Carthusian monks were expelled
from France and their properties were confiscated. Later they moved to Spain and began to
manufacture the liqueur according to the original secret formula. It was held that the monks
could exploit their liqueur in England as the French Statute could not affect the property
outside the French territory.

C)Foreign Laws Repugnant to Public Policy

■ Fundamental concepts of justice and fairness are affronted like the violation of principles
of natural justice
■ English concept of morality are infringed
■ Relations with foreign power is affected
■ Violation of human rights
■ Breach of International Law

++++++++++++++++++++++++++++++++++++++++++++++++++++++++

MODULE- 7
NATIONALITY & DOMICILE
50

2. What is the meaning of 'Domicile' and what are the general rules under
Indian and English Private International Law? What are the kinds of
Domicile ? Discuss the contrast of Domicile of Choice and Domicile of
Origin ? Difference between Domicile and Nationality ?
Ans :

The term ‘Domicile’ is not defined in the constitution. Ordinarily, it means a permanent home
or place where a person resides with the intention of remaining there for an indefinite period.
Domicile is not the same thing as residence. Residence implies a purely physical fact, the fact
of just being and living in a particular place. But domicile is not only residence, it is residence
coupled with intention to live indefinitely in the place.

According to MORRIS definition in “It is important to identify an individual’s personal law,

which governs questions concerning the personal and proprietary relationships between
members of a family. Place of birth is an inadequate criteria by which to identify the personal
law”. The domicile of a person is in that country in which he either has or is deemed by law to
have his permanent home. The concept of domicile has been explained by a distinguished
American Judge, Oliver Wendell Holmes J, “the very meaning of domicile is the technically
pre-eminent headquarters that every person is compelled to have in order that certain right and
duties that have attached to it by the law may be determined”.

General principles of Domicile:

Under both Indian and English private international law there are four general rules in respect
of domicile.

i. No person can be without a domicile;

ii. No person can at the same time have more than one domicile;
iii. An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired; and
iv. Domicile denotes the connection of a person with a territorial system of law.
51

1. No person can be without a domicile: This rule is based upon the practical necessity of
connecting every person with some legal system by which questions affecting his family
relations and family properties are to be determined. “It is a settled principle”.

In case of Udnv vs. Udny “that no man shall be without a domicile, and secure this result the
law attributes to every individual as soon as he is born, the domicile of his father, if the child
is legitimate and the domicile of mother if illegitimate this has been called the domicile of
origin and is involuntary. Domicile of origin prevails until a new domicile has been acquired.
But the moment a person loses his acquired domicile, the domicile of origin springs back to
him.

2 A person cannot have more than one domicile: At any given time though dual citizenship
is permitted by several countries. Main object of this rule is the same as that of the first to
connect a person with a definite legal system. Domicile signifies connection with a territorial
subject to a single legal system of law. What is sometimes called a “law district”. Like a federal
state where the legislative authority is distributed between central and state legislatures, the
law district is, generally the state where the concerned person has established his home.

Like citizenship domicile is also one for the whole of India, Clarifying the impression created
in D.P Joshi VS. Madhya Bharat and N.Vasundara VS. State of Mysore that as state have
independent power to make laws with respect to marriage, divorce, succession, etc... they may
create different legal system for the purpose of domicile, the supreme court in Pradeep Jain
vs. Union of India held that in these two cases the word domicile was used to convey the India
the idea of intention to reside permanently or indefinitely” for the purpose of admission to
medical or other technical institutions within a state and not in the technical sense in which it
is used in private international law.

3. Presumption in favour of an existing domicile: An existing domicile is presumed to

continue until it is proved that new domicile has been acquired. Hence the burden of proving a
change of domicile lies invariable on those who allege that a change has occurred. If the
evidence adduced is conflicting or is not convincing, then court has to decide in favour of
existing domicile.

4. Domicile should be connected with the territorial system of law –The main reason for
having a domicile is to connect an individual to a particular system of law to be governed.
52

However, the laws relating to succession, marriage, and divorce might vary from religion to
religion in the same country.

Kinds of Domicile and how it is acquired

1.Domicile of Independent Persons: Domicile of an Independent natural persons falls under

the following two categories:

A) Domicile of origin, and

B) Domicile of choice.

A) Domicile of origin

(Which is the domicile assigned by law to a child when he is born? )

There are two kinds of domicile, Domicile of origin and domicile of choice. Every person is
born with a Domicile of origin. It is a domicile received by him at his birth. The domicile of
origin of every person of legitimate birth is the country to which at the time of his birth his
father was domiciled. Hence, the domicile of origin, though received at birth, need not be either
the country in which the infant is born, or the country in which its parents are residing, or the
country to which its father belongs by race or allegiance or the country of the infant’s
nationality.

In the case of a posthumous child, the rule in English law is that such a child has for domicile
of its mother and not of its father. In India the rule appears to be different, for here the domicile
of the posthumous child will be that of the country in which its father was domiciled at the time
of his (father, s) death. An independent person is allowed to give up his domicile of origin. But
the domicile of origin prevails until new domicile has been acquired.

Indian decisions have broadly adopted the rules evolved by English courts: Kedar Pandey v.
Narain Bikram sah every child Acquires at birth acquires at birth a domicile of origin based
on that of his father if the child is legitimate, and that of the mother if the child is illegitimate.
53

The decision relies, though not for this proposition, on English decisions on conflict of laws.
There is no reference in the judgement, which did not relate to a conflict of laws situation at all
but to article 5 of the constitution, and Section 7 of the Indian Succession Act 1925.Yogesh
Bhardwaj v. State of Uttar Pradesh the domicile of origin can be transmitted through several
generations no member of which has ever resided for any length of time in the country of the
domicile of origin.

The character of the domicile of origin is more tenacious, and its hold stronger and less easily
shaken off. Central Bank of India v. Ram Narain The domicile of origin, which the law
attributes to him , adheres till he acquires another domicile; the domicile of origin adheres to
him even if he has left the country with the intention of never returning there till he has acquired
a domicile elsewhere by settling in that place with the requisite intention. Both England concept
and Indian concept both are similar to each other. In case of England the concept of domicile
of origin is a creation of the Common Law. It attaches, as a matter of law, to all persons. It is
attributed by law to all persons at birth, depending upon the appropriate parent through whom
it is traced in law. It will be based on the father, in the case of legitimate children born during
the lifetime of the father, and the mother in the case of posthumous and illegitimate children.
Domicile of origin has no necessary connection with the place where the child is born, and it
is theoretically possible for persons to enjoy a domicile of origin for several generations even
if none of the persons has resided in such country for any appreciable length of time. The
domicile of origin continues to attach to each person till he obtains a different domicile called
domicile of choice, or till the law attaches a different domicile called domicile to him , as when
a women , on her marriage , was regarded at common law to have , by such marriage , acquired
the domicile of her husband.

B).Domicile of choice:

Indian courts follow the common law rules.

Which is the domicile which any person can acquire?

Every individual person can acquire a domicile of choice by combination of

1. actual residence in particular place, and

54

2. Intention to remain there permanently or for an indefinite period. while the domicile of
origin is received by operation of law at birth, the domicile of choice is acquired by the
actual removal to another country accompanied by his place of residence or settlement, a
permanent home. The traditional statement that to establish domicile there must be a
present intention of permanent residence merely means that so far as the mind of the person
at the relevant time was concerned, he possessed the requisite intention. The relevant time
varies with the nature of the inquiry. It may be past and present. Several decisions of Indian
courts illustrate these rules.
In Central Bank of India v. Ram Narain, the Supreme Court cited with approval
Craignish v. Hewitt in which it was held that domicile of choice is acquired if a person has
established a fixed habitation in a place without any present intention of removing from it.
Domicile of choice is a combination of residence and intention. Residence, which is a
physical fact, means bodily presence as an inhabitant. Such residence must be combined
with an intention to reside permanently or for an unlimited time in such place. Even a
residence for a short period would suffice if it is coupled with requisite intention. Mere
residence, even for ten years, is not enough if it cannot be established that the porosities
had the requisite animus manendi, the intention to live permanently or for an indefinite
period.
When a person, whose domicile of origin was British, came to India as a missionary and
lived in India for over 60 years, with only short visits to Britain, it was held that he had
acquired a domicile of choice in India. A person born in Goa , whose domicile of origin
was in Goa, who had established a business in , acquired a house in , and lived in , Bombay,
for over 50 years with only occasional short visit to Goa, had established a domicile of
choice in Bombay, the requisite intention being established from his conduct.
Where Hindus, whose domicile of origin was India, went to Sweden where they
acquired Swedish nationality , and then to Australia, but there was no evidence that they
had intended to make Australia their permanent home, their domicile of origin continued
,and ,consequently, relief could be granted under Hindu Marriage Act 1955.the question of
domicile has been considered in several decisions arising under the Indian Divorce Act,
1869, under which a court only had jurisdiction to grant matrimonial relief if the parties
were domicile in India. It has been held that if the domicile of origin was British, it had to
be established that the person had acquired a domicile of choice in India. And a declaration
to that effect was not, by itself sufficient.
55

In case of England every person other than a dependent person can acquire a
domicile of choice by combining actual residence in a place with an intention to reside
permanently in that place. Any circumstances, which evidence of a person’s residence, or
intention to reside there permanently or indefinitely, must be taken into consideration to
determine whether he has acquired a domicile of choice. In determining whether a person
has the requisite intention to reside permanently or indefinitely, the court may have regard
to the motive which induced him to take up such residence, as also whether he had freely
done so, or that such residence was precarious.
Whether the person has set up a matrimonial home in a place is an important factor,
but it is not decisive. A declaration by the porosities of his intention is an important, but
not a decisive factor, in deciding whether a person has or has not formed a definite intention
to make a place his permanent home. There are very many decisions of English courts on
when a domicile of choice could be said to have been acquired. A residence in England,
which had been obtained by lies, impersonation and fraud and was, therefore, illegal would
not be regarded as residence which could confer a domicile of choice.

2). Domicile of dependents:

Which means that the domicile of the dependent person/s is dependent on, and usually
changes with, the domicile of someone else?

The object of determining a person’s domicile is to connect that person with some legal system
for certain legal purposes. In General at Common Law, dependents, that is, married women,
minors and mentally deficient persons were regarded as incapable of acquiring a domicile on
their own, and their domicile followed that of the person they were regarded as being dependent
on. The Common law rule provided that wives are dependents of their husbands, minors the
dependents of the parent through whom the minor derives his domicile of origin, the father in
the case of legitimate children born whilst he was alive and the mother in the case of both
illegitimate children and legitimate children born after the death of the father, whilst they
remain dependents, dependent persons cannot independently change their domicile of origin if
on the other hand the husband or the appropriate parent change his or her domicile, the domicile
of the dependent usually change with the domicile of such persons.
56

a) Domicile of Married Women: Under English common law, the domicile of a married
woman was the same as and changed with the domicile of her husband. This rule was
considered as absolute admitting of no exceptions, whatever are the circumstances. Historically
it was based upon the ancient maxim of the common law that husband and wife was one and
the same person in the eye of the law.

The above rule of unity of domicile of husband and wife had been subject to vigorous criticism
both academic writers and judges. In case In Puttick v. A.G. the petitioner , a German national
with a German domicile of origin ,was arrested in German and charged with a number of
serious offence there, while on bail , she absconded and using an illegally obtained passport
from German national, come to England and married an English man in 1975. The question
before the court was whether she had acquired an English domicile. It was held that rule of
unity of domicile of husband and wife had been abolished by the Domicile and Matrimonial
proceedings Act, 1973 and that , therefore she did not acquire a domicile in England. The court
further held that she did not and could not acquire a domicile of choice in England as she was
staying England to avoid trial in Germany and not to setup a permanent home the illegal entry
and residence according to the court, barred her from acquiring an English Domicile of choice.
But India have now completely outmoded legal concept of the unity of domicile of the husband
and wife continues to be in force unaltered. Section 15 &16 of the Indian Succession Act are
based upon the old English rule. The common law countries earlier followed English Common
Law Rules. The rule that married women had the domicile of their husband has however, been
abolished in Australia, Canada, the Republic of Ireland, and New Zealand so that in all these
countries, a, married woman is treated as having an independent domicile like any other person.

b) Domicile of Legitimate Children in India: At common law, where legitimating by

subsequent marriage was effective, a legitimated child is to be treated as if it was legitimate.
The rule of legitimating by subsequent marriage is unknown in Indian law, through Muslims
can acknowledge that an illegitimate child is legitimate; this can however, be only done if it is
uncertain whether the parties were married, and not if it is established that they were not.

c) Domicile of Illegitimate Children: At common Law, in the other Common Law countries,
and in India, the domicile of an illegitimate child was that of his mother. In Australia the status
of illegitimacy no longer subsists in law; the domicile of an illegitimate child, called ex-nuptial
child is determined the same way as that of a nuptial child, its domicile is that of the father, if
57

the parents are living together and with the parent the child is living with if the parents are
separated.

d)Domicile of mentally Deficient persons: At common law , a person who is mentally retarded
cannot acquire domicile of choice , and retains the domicile he had before he began to be legally
treated as insane, if he was born mentally retarded ,or becomes retarded when child, he is to be
treated as a dependent child. That is also law in Australia and Canada. There are no Indian
decisions on the subject, through S.8 of the Indian Succession Act 1925 provides that a lunatic
cannot acquire a domicile independently.

e) Domicile of Adopted child: What is the domicile of dependence of an adopted child? Does
the domicile of the minor child change to that of the adopting parent? Or does it continue to be
that of the natural parent? There is no English authority on this question it has been suggested
by Dicey that the domicile of an adopted infant is the same and change with the domicile of
the adopting parents. These accord the principle that on adoption, the legal consequences of
the natural relationship of the parent and child are extinguished and re- established as between
the adopter and child. In Indian law there is Madras High Court decision that the domicile of
the adopted child is the domicile of the adopting parent.

Domicile of origin and domicile of choice contrasted:

1. In case of English law, the domicile of origin is fundamentally different from domicile of
choice. In the words of Cheshire it differs in its character, in the condition necessary for its
abandonment and its capacity for revival.

2. The domicile of origin when compared with domicile of choice is much more enduring and
less easily shaken off, as already seen in cases like Winans v. A.G, displace a domicile of origin
by a domicile of choice.

3. Domicile of choice is lost by removal “Animo non revertendi”. Here the test of intention is
much less rigorous than in the case of displacing the domicile of origin. Mere absence of any
intention to return to the country of choice will sufficient.
58

4. The domicile of choice is acquired by free will; likewise, it can be abandoned by free will.
The domicile of origin, on the other hand is imposed by the operation of law. In other words
the domicile of origin is not a matter of free will and cannot be extinguished by abandonment.

5. One cannot lose a domicile of origin by removal animo non revertendi. The domicile of
origin continues to be in operation until it is displaced by a domicile of choice.

In leading case Bell v. Kennedy, Bell was born in Jamaica of Scottish parents, his
domicile of origin being Jamaica. He was educated in Scotland, but returned to Jamaica on
attaining majority about 14 years later he returned to Scotland without any intention of
returning to Scotland when his wife died. After her death he succeeded in locating a suitable
estate which he purchased and it was admitted that at the time of the trial he had acquired a
Scottish domicile but the question in the case was whether he was domicile in Scotland at the
time of his wife death it was held that Bell was domiciled in Jamaica at the time of his wife’s
death. Although he had left Jamaica for good and been residing in Scotland looking for a
suitable place to settle down, evidence showed that at the time of his wife’s death, his mind
was vacillating with regard to the future home. It was held therefore that since he had not at
that time acquired a Scottish domicile of choice; he retained the Jamaican domicile of origin.

6.. As at present, one important point of distention between domicile of origin and domicile of
choice is that the former is never lost and is in a position to revive whereas the latter cannot
revive and is lost forever the moment a person leaves the country of his choice, animo non
revertendi.

Comparison between the Domicile and Nationality:

It is common in private international law practice for the court to face some setbacks in
determination of whether domicile or nationality is a determining factor as to the question of
which law should be applied.

1.. Nationality represents person’s political status, by virtue of which who owes allegiance to
some particular country. Domicile indicates his civil status... a country in which a person has
established his permanent home.
59

2.. Courts have, however applied either of them to reach just decision, and in picking which
should be used among nationality, and domicile, they have been insuring not only justice is
done, but seen to be done, that is to say whenever courts selected a determinant among the two,
courts gave reasons as to why one is entertained and not the other;

those reasons are merits and demerits of those determinants.

Merits of domicile:

✓ Domicile is the only fitting determinant in nations formed by union of states, or federal form
of nations such as United Kingdom, Australia and the United States of America.

✓ It is more natural and appropriate, as a determinant of personal law domicile is useful in the
sense that, if a person has decided to abandon his country “of origin”, he has also
(automatically) abandoned laws of that country. As natural justice requires one to judge by
laws which bind him, domicile is appropriate.

✓ Domicile only practical test in certain political units such as UK, US where persons of same
nationality but different legal systems

Demerits of Domicile:

➢ Irrational result may ensure, long residence is not equivalent to domicile if accompanied by
the contemplation of some certain event the occurrence of which will cause a termination of
residence.

➢ Legal or social uncertainties may arise and cause one’s permanent home to be terminated,
expires of living permits, outbreak of civil wars, and ect, a good example which may cause
termination domicile.

➢ Thirdly domicile is hardly ascertainable, a person should state his intention in order to
ascertain domicile, practically intention of a litigant is elusive, this make it hard to identify with
clarity, it is for the court to decide after going thoroughly through given facts.

Merits of Nationality:
60

 It is easily ascertainable; there are opaque proofs of nationality which are understood
without application of complex legal technicalities. Nationality depends, apart from
naturalization, on the place of birth or on parentage, and registration. The courts therefore
meet the advantage of nationality by way of easy ascertainably.
 Nationality is more stable than domicile; this is because nationality cannot change without
the formal consent of the State of new nationality, this make nationality stable determinant.

Demerits of Nationality:

 Applying the test of nationality may point to a country in which a litigant has lost all
connection to, or which perhaps he has never been connected. This for example a Tanzania
male domiciled in the UK for the whole of his life, he has technically lost connection, and
his children (if any) who are below 18 years of age are regarded Tanzanian until they reject
their Tanzania citizenship, these children are perhaps have no connection with Tanzania,
applying Tanzania laws basing on nationality to these subject is unjust.
 Nationality is erroneous sometime, in the eyes of English law, no person can be without
domicile, no person can have more than one domicile at the same time, and on the other
hand, a person may be stateless or may simultaneously be a citizen of two or more countries.
 Nationality is not useful in political sets such as federal states and unions, for the there are
some circumstances in which there is no law applicable thought-out the nation, rather law
according to states.

Finally; private international law is discipline like other topics of law which seek justice in its
determination, advocating nationality against domicile and vice versa depends on the
circumstances of the facts in the litigation.

MODULE- 8
LAW OF FAMILY- MARRIAGE, MATRIMONIAL CAUSES, LEGITIMACY,
AND LEGITIMATION,ADOPTION, GUARDIANSHIP,CUSTODY
61

1. Sate and explain the choice of jurisdiction and choice of law rules to be
applied in cases of Dissolution of Marriage under English and Indian laws.
Ans:

Choice of Jurisdiction and Choice of Law in Dissolution of Marriage under Private

International Law: English and Indian Laws

Private international law, also known as conflict of laws, deals with cases where there is a
foreign element involved. Here’s an overview of how English and Indian laws handle
jurisdiction and choice of law in cases of the dissolution of marriage involving private
international law.

English Law

Jurisdiction: Under English private international law, jurisdiction in matrimonial matters is

influenced by both national legislation and international conventions.

1. Brussels IIa Regulation (applicable for EU-related cases until Brexit):

o The court assumes jurisdiction if:
 Both spouses are habitually resident in England.
 The respondent is habitually resident in England.
 Both spouses were last habitually resident in England and one still
resides there.
 The applicant has been habitually resident for at least one year before
the application.
 The applicant has been habitually resident for at least six months
before the application and is domiciled in England.
2. Post-Brexit:
o The Domicile and Matrimonial Proceedings Act 1973 determines jurisdiction.
The English courts can take jurisdiction if:
 Either party is domiciled in England.
 Either party has been habitually resident in England for one year
before the application.

Choice of Law:

 The lex fori principle (law of the forum) is predominantly applied, meaning English
courts apply English law to divorce proceedings regardless of the parties' nationality
or domicile.
 This approach simplifies proceedings but can sometimes lead to outcomes that may
not align with the laws of the parties' country of origin.

Example: A Spanish couple living in England can file for divorce in an English court if they
meet the residency requirements. The English court will apply English law to their divorce
proceedings, even if Spanish law would apply different rules or procedures.
62

Indian Law

Jurisdiction: In India, jurisdiction in matrimonial matters under private international law

follows personal laws and the Code of Civil Procedure, 1908.

1. Hindu Marriage Act 1955:

o Jurisdiction is assumed if:
 The marriage was solemnized within its territory.
 The respondent resides within its territory.
 The parties last resided together within its territory.
 The petitioner resides within its territory (if the respondent is outside
India).
2. Special Marriage Act 1954:
o Jurisdiction criteria are similar to the Hindu Marriage Act, with emphasis on
residency and the location of the marriage solemnization.

Choice of Law:

 Indian courts apply the relevant personal law to divorce cases:

o Hindu Marriage Act for Hindus.
o Muslim Personal Law (Shariat) for Muslims.
o Indian Divorce Act 1869 for Christians.
o Parsi Marriage and Divorce Act 1936 for Parsis.
 In cases involving foreign elements, Indian courts may apply lex loci celebrationis
(law of the place where the marriage was celebrated) or lex domicilii (law of the
domicile of the parties) to determine the applicable law.

Example: A Hindu couple married in India but residing in the USA can file for divorce in India
under the Hindu Marriage Act if they meet the residency requirements. The Indian court will
apply Hindu personal law to their divorce proceedings, regardless of their current residence
in the USA.

Comparative Analysis

 Jurisdiction:
o English law focuses on habitual residence and domicile, with specific criteria
influenced by both national and international laws (e.g., Brussels IIa
Regulation).
o Indian law emphasizes personal laws and territorial jurisdiction based on the
parties' residence and the place of marriage.
 Choice of Law:
o English courts apply the law of the forum (English law) consistently in divorce
cases.
o Indian courts apply various personal laws depending on the religion of the
parties and may consider international principles like lex loci celebrationis
and lex domicilii.
63

Conclusion

Under private international law, the approach to jurisdiction and choice of law in divorce
cases varies significantly between English and Indian legal systems. English law tends to
favor the application of its own legal principles and jurisdictional rules, while Indian law
relies heavily on personal laws and territorial connections, incorporating international
principles to address the complexities of cross-border matrimonial cases.

2.. What do you understand by the term Choice of Law? Elucidate.

Ans:

Understanding the Term "Choice of Law"

Choice of Law refers to the set of principles used to select which jurisdiction's laws will be
applied in a legal dispute that involves more than one jurisdiction. It is a fundamental aspect
of private international law (or conflict of laws), which deals with cases that have a foreign
element, such as parties from different countries or transactions crossing international
borders.

Elucidation of Choice of Law in Private International Law

Key Concepts

1. Private International Law:

o Governs disputes involving foreign elements.
o Includes rules determining jurisdiction, choice of law, and
recognition/enforcement of foreign judgments.
2. Foreign Element:
o A component of a legal dispute that connects it to more than one legal
jurisdiction (e.g., international contracts, cross-border marriages).
3. Choice of Law Rules:
o Determine which jurisdiction's laws are applicable to the substantive issues
of the dispute.
o Aim to ensure fairness and predictability in cross-border legal disputes.

Objectives of Choice of Law

1. Justice:
o Achieving a fair outcome by applying the most appropriate legal framework.
o Example: In a tort case where an American citizen is injured in a car accident
in France, applying French tort law may be seen as just because the accident
occurred in France, and local traffic laws are best understood and
administered by French courts.
64

2. Predictability:
o Providing clear guidelines so parties can predict which laws will govern their
rights and obligations.
o Example: In an international commercial contract, parties may choose English
law to govern their contract because of its well-established and predictable
legal principles in commercial matters.
3. Flexibility:
o Allowing courts to consider the unique aspects of each case.
o Example: In family law, an Indian couple married in the USA but domiciled in
India may have their divorce proceedings governed by Indian law, reflecting
their personal and cultural connections.

Criteria for Choice of Law

1. Connecting Factors:
o Factors that link a dispute to a particular legal system (e.g., domicile, place of
transaction, place of performance).
o Example: A contract signed in Germany for goods to be delivered in Italy may
be governed by German law (place of contract) or Italian law (place of
performance), depending on the connecting factors emphasized by the
parties or the court.
2. Characterization (Classification):
o Determining the legal nature of the issue (e.g., contract, tort, marriage).
o Example: A dispute over whether a pre-nuptial agreement is valid may be
characterized as a matter of contract law or family law, influencing which
jurisdiction's laws are applied.
3. Renvoi:
o A doctrine where the court of one jurisdiction may refer to the whole legal
system, including its choice of law rules, of another jurisdiction.
o Example: A French court dealing with the estate of a deceased British
national domiciled in France might apply British law, which in turn refers back
to French law. This back-and-forth referral can complicate the choice of law.
4. Public Policy:
o A court may refuse to apply a foreign law if it is contrary to the forum’s
fundamental principles of justice or public policy.
o Example: A US court may refuse to enforce a foreign law that permits
discriminatory practices deemed unacceptable under US public policy.
5. Mandatory Rules:
o Laws that must be applied regardless of the choice of law rules due to their
significance in the legal system (e.g., consumer protection laws).
o Example: An international consumer contract may be governed by the
seller's national law, but mandatory EU consumer protection laws will apply if
the consumer is based in the EU.

Application in Specific Areas

Contract Law
65

 Party Autonomy:
o Parties often have the freedom to choose the governing law for their
contract.
o Example: In a contract between a Canadian company and a Japanese
company, both parties might agree to apply Swiss law, given its neutrality
and well-developed legal framework.
 Rome I Regulation (EU):
o Sets out rules for determining the applicable law in contractual obligations
within the EU.
o Example: An Italian buyer and a German seller can choose Dutch law to
govern their sales contract under Rome I Regulation, provided the choice
does not contravene mandatory EU rules.

Tort Law

 Lex Loci Delicti:

o The law of the place where the tort occurred is typically applied.
o Example: An Australian tourist injured in a slip-and-fall accident in a Spanish
hotel would generally have their case governed by Spanish tort law.
 Rome II Regulation (EU):
o Provides rules for determining the law applicable to non-contractual
obligations (e.g., torts) within the EU.
o Example: A French citizen injured by a defective product in Germany may
have their claim governed by German law under Rome II Regulation.

Family Law

 Marriage and Divorce:

o The law applicable to marriage and divorce can depend on factors like the
parties’ domicile, nationality, or habitual residence.
o Example: A British citizen married to an Indian national might have their
divorce governed by Indian law if they were domiciled in India.
 Hague Conventions:
o International treaties like the Hague Convention on the Recognition of
Divorces and Legal Separations provide frameworks for handling cross-border
family law issues.
o Example: A divorce obtained in the USA may be recognized in France under
the Hague Convention, facilitating cross-border legal processes.

Special Reference to Private International Law

1. Diversity of Legal Systems:

o Different countries have varied legal principles, making the choice of law
crucial in international disputes.
o Example: A business contract between a US company and a Chinese firm may
involve significant differences in legal principles, necessitating a clear choice
of law to avoid conflicts.
66

2. Interplay with Jurisdiction:

o The choice of law is closely linked to jurisdiction, as the court first needs to
establish its authority to hear a case before applying the appropriate law.
o Example: An Italian court must first establish its jurisdiction over a case
involving an Italian citizen and a Brazilian company before deciding whether
to apply Italian or Brazilian law.
3. Harmonization Efforts:
o International conventions and regional regulations (e.g., EU regulations) aim
to harmonize choice of law rules to reduce conflicts and increase legal
certainty.
o Example: The Rome I and Rome II Regulations within the EU harmonize the
rules for determining the applicable law in contractual and non-contractual
obligations, respectively, ensuring consistency across member states.

Conclusion

Choice of law in private international law is an essential mechanism to address the

complexities arising from disputes with foreign elements. It ensures that the most
appropriate and fair legal system is applied, considering various connecting factors and
principles. By balancing predictability, flexibility, and justice, choice of law rules play a
crucial role in the fair resolution of cross-border legal disputes.

++++++++++++++++++++++++++++++++++++++++++++++++++++++

4. What are matrimonial causes under Private International Law and

briefly discuss each.
Ans:

Matrimonial Causes Under Private International Law :

Matrimonial causes under private international law refer to legal proceedings related to
marriage and its dissolution that involve a foreign element. These causes include divorce,
legal separation, annulment, financial relief, and child custody/support. Here's a detailed
look at each, with references to relevant acts and sections.

1. Divorce

Definition: Divorce is the legal termination of a marriage by a court or other competent

body.

Private International Law Issues:

67

 Jurisdiction: Determining which court has the authority to hear the divorce case.
Courts generally consider factors such as domicile, habitual residence, and
nationality of the spouses.
 Choice of Law: Deciding which jurisdiction’s laws will apply to the divorce
proceedings.
 Recognition of Foreign Divorces: Ensuring that a divorce granted in one jurisdiction
is recognized in another.

Relevant Acts and Sections:

 England:
o Matrimonial and Family Proceedings Act 1984, Section 5: Jurisdiction of
courts in England and Wales.
o Brussels IIa Regulation (Council Regulation (EC) No 2201/2003): Until Brexit,
this regulated jurisdiction and recognition of divorces within the EU.
 India:
o Hindu Marriage Act 1955, Sections 13 and 19: Grounds for divorce and
jurisdiction.
o Special Marriage Act 1954, Sections 27 and 31: Grounds for divorce and
jurisdiction.

Example: A British couple living in France can file for divorce in a French court if they meet
residency requirements. The court will apply French law to the divorce but may also
consider the implications under British law, especially if they plan to return to the UK.

2. Legal Separation

Definition: Legal separation is a court-ordered arrangement where a married couple lives

apart but remains legally married.

Private International Law Issues:

 Jurisdiction: Similar to divorce, jurisdiction is based on domicile, habitual residence,

or nationality.
 Choice of Law: The applicable law for legal separation can be the law of the country
where the couple resides or another jurisdiction with which the couple has
significant connections.
 Recognition: Legal separations granted in one country may need recognition in
another for the order to be enforceable.

Relevant Acts and Sections:

 England:
o Matrimonial Causes Act 1973, Sections 17-18: Legal separation and related
financial relief.
 India:
o Hindu Marriage Act 1955, Section 10: Judicial separation.
o Special Marriage Act 1954, Section 23: Judicial separation.
68

Example: An American couple residing in Italy may seek legal separation under Italian law. If
they move back to the USA, they would need to ensure that the Italian legal separation is
recognized by American courts.

3. Annulment

Definition: Annulment is a legal procedure declaring a marriage null and void, as if it never
legally existed.

Private International Law Issues:

 Jurisdiction: Courts consider factors like domicile and place of marriage. Some
countries may have stricter rules for annulment.
 Choice of Law: The law applied can be the one governing the marriage ceremony,
the law of the country where the petition is filed, or the law of the couple's domicile.
 Recognition: Similar to divorce, the recognition of annulments across jurisdictions
depends on international agreements and national laws.

Relevant Acts and Sections:

 England:
o Matrimonial Causes Act 1973, Sections 11-12: Grounds for void and voidable
marriages.
 India:
o Hindu Marriage Act 1955, Sections 11-12: Void and voidable marriages.
o Special Marriage Act 1954, Sections 24-25: Void and voidable marriages.

Example: A French national married in the USA discovers that their spouse was already
married. They could seek an annulment in France, applying French law, but would need to
ensure the annulment is recognized in the USA.

4. Financial Relief

Definition: Financial relief refers to orders for maintenance, alimony, and division of marital
property following divorce, legal separation, or annulment.

Private International Law Issues:

 Jurisdiction: The court's authority to grant financial relief often depends on the same
factors as for divorce and legal separation.
 Choice of Law: The applicable law may be the law of the jurisdiction handling the
primary matrimonial cause or another jurisdiction closely connected to the parties.
 Enforcement: Ensuring that financial relief orders are enforceable in different
jurisdictions, often governed by treaties like the Hague Convention on the
International Recovery of Child Support and Other Forms of Family Maintenance.

Relevant Acts and Sections:

69

 England:
o Matrimonial Causes Act 1973, Sections 23-27: Financial provision orders in
connection with divorce, etc.
 India:
o Hindu Marriage Act 1955, Sections 24-25: Maintenance pendente lite and
permanent alimony.
o Special Marriage Act 1954, Sections 36-37: Alimony and maintenance.

Example: A German court grants a divorce and orders spousal support. If one spouse moves
to Canada, they may need to rely on international treaties for enforcement of the support
order in Canada.

5. Child Custody and Support

Definition: Child custody and support refer to legal arrangements regarding the care,
upbringing, and financial support of children following the breakdown of a marriage or
relationship.

Private International Law Issues:

 Jurisdiction: Determined by the child's habitual residence or nationality. The Hague

Convention on the Civil Aspects of International Child Abduction helps determine the
appropriate jurisdiction in cases of abduction.
 Choice of Law: Courts typically apply the law of the child's habitual residence but
may consider other jurisdictions if it serves the child's best interests.
 Enforcement: Recognition and enforcement of custody and support orders across
borders, facilitated by international treaties like the Hague Convention on Child
Support.

Relevant Acts and Sections:

 England:
o Children Act 1989, Sections 1-12: Welfare of the child and parental
responsibility.
o Hague Convention on Child Abduction: Implemented through the Child
Abduction and Custody Act 1985.
 India:
o Guardian and Wards Act 1890, Sections 7-25: Custody and guardianship.
o Hindu Minority and Guardianship Act 1956, Sections 6-13: Custody and
guardianship of Hindu minors.

Example: A divorced couple, one British and one Australian, with children living in the UK,
would have custody and support matters decided under UK law. If the custodial parent
relocates to Australia, they must ensure UK orders are recognized and enforceable in
Australia.

Conclusion
70

Matrimonial causes under private international law involve complex considerations of

jurisdiction, choice of law, and recognition of foreign judgments. Each cause—divorce, legal
separation, annulment, financial relief, and child custody/support—requires careful
navigation of international treaties, national laws, and the unique circumstances of the
parties involved to ensure fair and enforceable outcomes. The relevant acts and sections
provide a legal framework to address these issues effectively.

+++++++++++++++++++++++++++++++++++++++++++++++++++

4. Briefly discuss the adoption under private international law.

Ans:
ADOPTION

The concept of adoption is by which a minor is brought permanently into the family of the
adopter.
The legal systems of different countries differ widely as to the objects underlying adoption,
the method by which adoption is to be made, the condition to be satisfied for valid adoption
and consequently adoption may give rise to complicated problems in private international
law.

In Roman law and Hindu law, adoption was not conceived as a mode of
legitimating illegitimate children.

Their only aim of adoption was to mitigate the hardship of the childless by legally providing
them with children. Today, there are other dominant objects, for example, to provide a
home and parents to helpless and destitute or unwanted children.

Under various English Adoption Acts, no adoption can be made without an

adoption order from a competent court and the court will not pass as adoption order unless
it is satisfied that proposed adoption is for the welfare of the child. Before an application is
made to the Court, the child must have been in care and custody of the proposed adopter
continuously at least for a period of three months.

Jurisdiction of English court to pass adoption orders:

English courts have jurisdiction to make an adoption order if: (1) the applicant is domiciled
in England or Scotland and (2) If the applicant and infant reside in England.

In exceptional cases the competent court can make an order of adoption although
the applicant is not ordinarily resident in England. It may be noted that there is no
71

jurisdictional requirement that the infant must be domiciled in England. This is so provided
because otherwise it will render adoption unduly difficult and expensive.
It is not easy to prove domicile in the case of infants who are strays or whose natural
parents cannot be traced.

Should the foreign Lex domicile of the infant be considered?

In Re B [1968 Ch.204) : In this case the applicant domiciled in England applied for an
adoption order in respect of an infant who was the legitimate child of an English mother and
a Spanish father domiciled in Spain. The child's domicile of origin was therefore Spanish and
the question was whether Spanish law should be taken, into consideration in disposing the
application for an order of adoption.

The court held that English court has jurisdiction to make an adoption order although by the
law of the infant's domicile, such an adoption cannot be made. At the same time, the court
is free to take into account the law of the infant's domicile in considering whether the
proposed order will be for the welfare of the infant.

Recognition of Foreign Adoption

Till 1964, English adoption Acts contained no provision for recognition of adoption effected
in foreign countries. But now it provides rules for recognition of foreign adoption, and
grounds on which recognition may be denied. [Sec. 4 to 6 of Adoption Act 1968].

Adoption in Indian Law

 Although there is no general law of adoption, we have some statutes regulating it.
Since adoption is legal affiliation of a child, it forms the subject matter of personal
law
 The Hindu Adoptions and Maintenance Act, 1956 is one of the major act in this
regard.
 Muslims, Christians and Parsis have no separate adoption laws and have to approach
court under the Guardians and Wards Act, 1890.
 Foreigners who want to adopt Indian children have to approach the court under the
aforesaid Act. In case the court has given permission.
 Along with the aforesaid Acts, The Juvenile Justice (Care and Protection of Children)
Act, 2000 and its recent amendments, ensures that the adoption has been done for
the welfare of the child.
 In India, now the adoptions are regulated by CARA (Central Adoption Resource
Authority. It specifies the eligibility conditions, processing steps, documentation,
72

costs, court processes, foster care conditions, issuance of birth certificates and post
adoption follow ups.

+++++++++++++++++++++++++++++++++++++++++++++++++++++

5. Write a note on marriage and validity of marriage under Private

international law ?
Ans:
MARRIAGE CREATES STATUS

* Marriage in English law arises out of a contract since there can be no valid marriage unless
each party consents to "marry the other".
* But it is a contract of a special kind.
* It cannot be rescinded by mutual agreement of parties. It can be dissolved only by a
formal or public act. It creates status.

CONCEPT OF ENGLISH MARRIAGE OR CHRISTIAN MARRIAGE:-

* The concept of Christian marriage was defined in Hyde v. Hyde (1886) as the voluntary
union for life of one man and one woman to the exclusion of all others.
* The requirements of an English marriage are that:
(1) the union should be voluntary
(2) it should be monogamous (3) it must not be for a limited period.

* For an English marriage, it need not be a marriage between Christians. Whatever may be
the religion of the parties, or the place of marriage, their unions will be regarded as the
English marriage provided, in the eyes of the relevant law, it possesses the two attributes
namely, indefinite duration and exclusion of all others.

POLYGAMOUS MARRIAGE:
* It is clear from the above facts that polygamous marriages are excluded from the concept
of English marriages. Not only actual polygamous unions(i.e. husband actually having more
than one wife) but also potentially polygamous marriages.
73

* If the husband is entitled by the relevant law to have more than one wife at a time, his
marriage is regarded as polygamous although in fact he has only one wife.
* Thus a Muslim marriage in India is polygamous, although the husband in fact has only one
wife.

In Sowa v. Sowa [(1961) I All.E.R.687] :a marriage was celebrated in Ghana between parties
domiciled there. The marriage was potentially polygamous as the law of Ghana allows
plurality of wives. The husband promised to go through another ceremony later which
according to the Law of Ghana will convert the marriage into a monogamous marriage. He
failed to carry out his promise.
It was held that in spite of the promise and in spite of the fact that the husband has not
taken an additional wife, the marriage should be regarded as polygamous.

ENGLISH MATRIMONIAL RELIEFS UNAVAILABLE IN CASE OF POLYGAMOUS MARRIAGES : -

* The English Court will not grant any matrimonial relief to the parties of polygamous
marriage.
* It was laid in the case of Hyde V. Hyde [1886.L.R.1P&D.130p.133] :In Hyde v. Hyde, the
petitioner was an Englishman who embraced the Mormon faith (Christ centered faith in
Western New York). He went to Utah in the United States and married a Mormon lady
according to Mormon faith.

* After cohabiting with her for three years and having children by her, he renounced
Mormon faith, came to England and became the minister of a dissenting chapel.

* A sentence of excommunication from Mormon faith was pronounced against him in Utah
and his wife married another man. He petitioned before an English Court for divorce on the
ground of adultery of his wife.

* According to Mormon faith, polygamy was allowed. Court held the Mormon marriage was
potentially polygamous, and this country is adapted to Christian marriages and is wholly
inapplicable to polygamy. The parties to a polygamy marriage are not entitled to the
remedies, or adjudication / relief of English law.

What law determines whether a marriage is polygamous or monogamous :-

* The relevant law to decide this question is law of the place where the marriage was
celebrated Lex Loci Celebrationis (law of the place where the marriage was
celebrated/solemnized).
74

* E.g. If an English domiciled woman marries a Muslim in England and they live together in
Pakistan where the husband is domiciled, the marriage is monogamous, Because it was
celebrated in England.

But if law of matrimonial domicile is applied in the above instance, the marriage would be
polygamous as they were living in Pakistan as husband and wife.
i.e. the marriage, in accordance with English law would be monogamous.
* So according to lex loci celebrationis, If woman domiciled in England marries a Muslim in
India, the marriage would be polygamous although they may be living in England as husband
and wife.

CAN THE NATURE OF MARRIAGE CHANGE?

* The nature of marriage may change due to a variety of reasons

(1) Change of religion
(2) Change of domicile
(3) Subsequent ceremony in monogamous form and
(4) Subsequent events which alter the nature of marriage according to lex loci celebrationis.

ILLUSTRATIVE CASES:-
* In Cheni v. Cheni [(1962) 3 All. E. R. 873] Marriage in Cairo between two Jews. According
to Jewish and Egyptian laws the marriage is potentially polygamous as the husband can take
another wife if no child was born within in ten years. The wife petitioned an English court
for a matrimonial relief. The court held that at the inception of marriage, it was polygamous
but at the time of the proceedings a child was already born, thus making monogamous. The
court recognised this change and assumed jurisdiction.
In Sinha Peerage Claim [(1946) 1 All. E. R 348] :Marriage between two Hindus in India in
1880. The Hindu law at that time allowed plurality of wives for the husband and hence the
marriage was polygamous at its inception. But later the spouses had joined Brahma samaj,
one of whose tenets was monogamy. Since the husband had not taken a second wife and
since by their new religion they have accepted monogamy, the marriage at the time of the
proceedings was recognised as monogamous.

In Ali v. Ali [(1966) 1 All. E. R. 664] as a change from Hyde v. Hyde wider interpretation for
providing reliefs of succession or legitimacy) :In this case, the parties were both domiciled
in India entered into a marriage in India by the time when it was potentially polygamous.
75

They later came to England and the husband acquired an English domicile. The husband
petitioned before an English Court for divorce on the ground of wife's desertion. The court's
jurisdiction depended on the question whether at time of the proceedings the marriage was
monogamous or polygamous. It was held that the husband's acquisition of English domicile
and residence in England prevented him from having a second wife; and hence the marriage
had become monogamous character.

Thus Ali v. Ali is an authority for the proposition that if the husband changes his domicile
from a country which permits polygamy to one which does not, this change of domicile
changes the character of the marriage and renders it monogamous.

TO WHAT EXTENT POLYGAMOUS MARRIAGES ARE RECOGNISED BY ENGLISH COURTS?

* It was laid down in Hyde v. Hyde that, the parties to a polygamous marriage are not
entitled to any matrimonial relief from an English Court. This does not mean that English
Courts will always shut their eyes to polygamous marriages
* Today, polygamous marriages are recognised for a large variety of purposes. The break
came with the memorable decision of Baindail v. Baindail, where the marriage status of a
husband in a polygamous union was clearly recognised.

(a) Recognition as a bar to subsequent marriage:-

In Baindail v. Baindail (1846) a domiciled Indian of Hindu faith married an Indian woman in
India according to Hindu rites. As Hindu law recognised polygamy at that time, the marriage
was polygamous in nature. While his Indian wife was still alive, he married an English
woman in England by a civil form of marriage describing himself as a bachelor to the
Registrar of marriages.
* When came to know about his first marriage the English wife filed petition for decree of
nullity on the ground that her husband was already married when he married her.

* If Indian marriage is recognised, English marriage will be held invalid and vice versa.
Confronted with this situation, the court held that the husband was a married man at the
time of English marriage.
* The Court said that English law does not refuse recognition of polygamous marriages for
all purposes. For many purposes the status created by polygamous marriage would have to
be recognised; so that he could not contract in a marriage subsequently.
76

(b) For the enforcement of Proprietary rights under personal law: polygamous marriages
will be recognised for the purpose of enforcing proprietary rights conferred on the parties
by their personal law. E.g. Muslim widow's claim to succeed deceased husbands property
and funds left in England. (succession of husband's property by widows)

(c) Children of polygamous marriage would be regarded as legitimate :-

English court would recognise polygamous marriages for according legitimacy for children
under such marriages.

In Hashmi v. Hashmi, a Pakistan domiciled husband had married a Pakistani woman, there
after he went to England and married an English woman. And in both relationships they had
children. The question before the court was the legitimate status of the children by the two
marriages. For declaring legitimacy, court declared the marriages as valid.

d) Succession to property by children of polygamous ( marriages:-

Children of both polygamous and potentially polygamous marriages can succeed to the
properties in England.

(e) Social security legislation :-

The recent social security legislative measures in England have accorded statutory
recognition for actual and potentially polygamous marriages for the purpose of awarding
social security benefits.

VALIDITY OF MARRIAGE
FORMAL VALIDITY: THE PRINCIPLES OF LOCUS REGIT ACTUM

* The earlier principles of marriage is that, formalities of marriage are governed by lex loci
celebrationis, law of the place where the marriage was celebrated. The maxim is locus regit
actum, i.e. the place governs the act. It had good and bad effects.
* If a marriage is good by the law of the country where it is effected, it need to be
considered as good all the world over even though the ceremony would not be recognised
in the country where the parties are domiciled.
* Conversely, if the so-called marriage is no marriage in the place where it is celebrated it is
no marriage any where although the ceremony or proceedings if conducted in the place of
parties' domicile, would be considered as good marriage.
77

* So if a marriage is good according to the law were it was celebrated, it will be good all the
world over.

FORMAL VALIDITY & ESSENTIAL VALIDITY

Lex loci celebrationis is with regard to the formal validity. Essential validity of marriage is
governed by entirely different principles.
Formalities of marriage includes such questions as to whether a civil ceremony or a religious
ceremony or whether a ceremony at all is required, what should be the number of
witnesses, the permitted time when the ceremony can be conducted and such similar
matters.

Eg- If a woman domiciled in England authorises 'X' to act as her representative in a marriage
between her and another person celebrated in a country where marriage by proxy is
allowed, and if the celebration by proxy is in fact conducted, then, the formal validity of this
marriage is unassailable(unable to be attacked), this is so despite the fact that such proxy
marriages are not allowed in England. English law considers such rule as relating to formal
validity.

EFFECT OF CHANGES IN LEX LOCI CELEBRATIONIS

* A marriage which does not comply with the formalities prescribed by lex loci at the time of
marriage may be validated by subsequent retrospective changes in the lex loci.

* Though originally invalid by the local law, if such marriages are validated by retrospective
changes in the local law, the principles locus regit actum is satisfied.

* In Starkowski v. Attorney General [1953 J 2 All.E.R. 1272] : Two Roman Catholics

domiciled in Poland were married in May 1947 in a Church in Austria without a civil
ceremony. Austrian law at that time did not recognize marriages without civil ceremony.
After a few weeks, an Austrian legislation validated such marriages retrospectively provided
they were registered in the public register. This marriage was so registered only in 1949 by
which time the parties had acquired an English domicile
By 1950 the wife married another man in England. The issue before the court was whether
the second marriage in England was valid; this depended upon the validity of the Austrian
marriage. The court held that the Austrian marriage was valid and therefore the English
marriage was bigamous and void. The court accepted the retrospective Austrian legislation
according to which the marriage was formally valid.

ESSENTIAL VALIDITY OF MARRIAGE OR CAPACITY TO MARRY

78

* The capacity of the parties to enter into a valid marriage is, no doubt, a matter relating to
essential validity. All impediments to marriage such as lack of age, prohibited degrees of
consanguinity and affinity, previous marriage, physical incapacity in fact all impediments
other than purely formal ones come under this topic.

WHICH LAW SHOULD GOVERN THE CAPACITY TO MARRY :

* There are two theories is regard:

(1) Dual domicile theory

(2) theory of intended matrimonial home

* Dual Domicile theory :- This is the traditional & still prevalent view. By this, a marriage is
invalid unless according to the law of the domicile of both contracting parties at the time of
marriage, they each have the capacity to contract that particular marriage. E.g. A & B, Jews
by religion, A being domiciled in Russia & B being domiciled in England at the time of
marriage. The marriage was valid by Russian law but invalid in the matter of capacity under
English law. According to this theory, the marriage is invalid since the parties do not have
the capacity to marry by the English law, although by Russian law such marriages are
allowed.

* Doctrine of Intended matrimonial home :-

According to this theory, the capacity to marry is governed by the law of the country where
the parties at the time of marriage intended and did actually establish their matrimonial
home. In vast majority of cases, this will be the country where the husband is domiciled at
the time of marriage.

* The difference between the two theories lies in the fact that according to the first, an
incapacity imposed by the wife's antenupital (before/ at the time of marriage) domicile will
invalidate the marriage, while by the second theory such incapacities will not generally
affect the validity of the marriage.
* In Brook v. Brook, a marriage was celebrated in Denmark between a domiciled
Englishman and his deceased wife's sister also of English domicile. Marriage between a man
and his deceased wife's sister was legal by Danish law, but was illegal by English law at that
time. The House of Lords in this case held the distinction between formalities of marriage
and capacity to marry. While the former is governed by lex loci celebrationis, the latter is
governed by each party's ante nuptial domicile.
79

++++++++++++++++++++++++++++++++++++++++++++

6. Discuss the law of legitimacy and legitimation and their position in

England and in India .
Ans:
MEANING OF LEGITIMACY & LEGITIMATION :-
Legitimacy means the status acquired by a person who is born in lawful wedlock, (i.e. born
of parents whose marriage was valid at the time of his birth).
If the marriage is void, the children born out of it are considered to be illegitimate.
Legitimation means that a child who is illegitimate, at the time of birth acquires the status of
a legitimate person as a result of some act that occurs after the date of its birth, such as the
subsequent valid marriage of its parents.
Even though in the matter of succession both legitimate & illegitimate child is given equal
rights in the matter of succession by the enactment of the Family Reforms Act of 1969, it
contains a number of saving provisions under which the distinction between legitimate and
illegitimate children continues to be important.
Being a legitimate, legitimated, or adopted becomes relevant not only in the field of
succession, but also in such areas as domicile, nationality and the custody of minor children.

LEGITIMACY :-
A child is, or is presumed to be, legitimate if it is born anywhere in the world in "lawful
wedlock". Illegitimacy is a state which not only imposes a social stigma, but deprives a
person of rights of succession to the estate of his/her father.

Position in England:
The system and the attitude of denying an illegitimate child the right to inherit his father's
property has now markedly changed in England. Courts can, under the law, declare a person
to be legitimate if the applicant is, when he commences the proceedings, domiciled in
England, or was, for throughout a period of one year before the commencement of the
proceedings, habitually resident in England.
A child conceived before marriage is regarded as legitimate if born after the parents were
married, and so also a child conceived before but born after the parents were divorced.
Child born after artificial insemination is legitimate even if the donor is not the husband;
unless it is proved that the husband did not consent to the insemination.
80

This rule only applies where the parties to the marriage are Man and Women and, as
decided in J v. C [2007] this rule does not apply where the women marries to a transsexual
person.in England.

A child not born in lawful wedlock would, however, be regarded as legitimate in England if,
and only if, it is legitimate by the law of the domicile of both the parents at the time it was
born.

Traditionally, the children of polygamous marriage is not regarded as legitimate, however,

in England, they are regarded as legitimate if they are so regarded by the law of the country
where the parents were domiciled when the child was born.

In Re Bischoffsheim [1948] a single Judge has laid down the rule that English courts would
recognize the status of legitimacy if the child is regarded as legitimate by the law of the
domicile of the parents at the birth of the child. This judgment is severely criticized as it is
difficult in application where parents have different domiciles. However, a step forward is
taken by the Law Commission in England to answer the difficulties i.e. it suggested that the
lex domicilii to be adopted should be that with which the child was most closely connected.
Under the rule of "putative marriages", children of a void marriage are recognized as
legitimate if either of the parents believed that the marriage is valid. This rule is also
recognized by the Legitimacy Act 1959 subject to the provision that the father should be an
English citizen. Question often arises as to whether this rule will be applicable where the
domicile country recognizes this rule and suggestions are often in affirmative.

Position in India :

In India, "Legitimacy" is a status of a child being born during the continuance of a valid
marriage between the mother and any man, or within 280 days after its dissolution if the
mother remains unmarried. Unless it is shown that the parties to the marriage had no
access to each other at any time when he could have been conceived, his birth is treated as
a conclusive proof of he being legitimate.
Under Section 112 of the Indian Evidence Act, 1872 (herein after referred to as 'the Act'), if
the applicant is domiciled in India on the date of application, the Indian court has
jurisdiction to grant a declaration that he is the legitimate child of his parents.
Though there is no decision of the Supreme Court on the point, it has been held that
illegitimate children cannot succeed to their father's estate on intestacy. but can succeed
mothers" estate. If the child has born of a marriage which is null and void under section 11
or 12 of the Hindu Marriage Act, 1955, the child is deemed to be legitimate and
consequently can succeed to the estate of the father on intestacy
In Mahomedan law, applicable to Sunnis governed by the Hanafi School, illegitimate
children cannot inherit from the father, but can from the mother. But in case of Shias, the
Illegitimate children can never inherit.
81

Illegitimate children cannot succeed to property on intestacy under the Indian Succession
Act, 1925, Christians, Parsis and other religious groups are governed under this statute.

LEGITIMATION:
Legitimization is a process to recognize the child of being legitimate. Subsequent Marriage
between the parties, Acknowledgment by the man ete. are the examples of legitimation.
Position in England :-
English courts had jurisdiction to entertain proceedings for a declaration that a person was
legitimated, or not if, at the date the proceedings are commenced, the applicant is
domiciled in England or had been habitually resident in England for at least one year.

The role of Conflict of Law is to choose the system of law which shall determine whether
legitimation by this method is effective or not. The rule finally established at common by Re
Grove [1888]after some hesitation in Boyes v. Bedale [1863] is that a foreign legitimation by
subsequent marriage is not recognized in England unless the father is domiciled, both at the
time of the child's birth and also at the time of the subsequent marriage, in a country whose
law allows this method of legitimation.

The present law is that, where the parents of an illegitimate person marry, the marriage
shall, if the father is at the date of the marriage domiciled in England and Wales, render the
person, if living, legitimate from the date of the marriage.

With regard to persons who are not domiciled in England and Wales, section 3 of the
Legitimacy Act 1976 provides as follows: "...where the parents of an illegitimate person
marry one another and the father of the illegitimate person is not at the time of the
marriage domiciled in England and Wales but is domiciled in a country by the law of which
the illegitimate person became legitimated by virtue of such subsequent marriage, that
person, if living, shall in England and Wales be recognised as having been so legitimated
from the date of the marriage notwithstanding that, at the time of his birth, his father was
domiciled in a country the law of which did not permit legitimation by subsequent
marriage."
This law discards the rule that the father's domicile at the time of the child's birth is sine qua
non, instead the law of the father's domicile at the time of the marriage is the sole decisive
factor. [Heron v. National Trustees Executors and Agency Co of Australasia Ltd [1976] VR
733]
Position in India:
Indian law, whether Hindu law or Muhammadan law, only recognizes the concept of
legitimacy of a child and not of legitimation. When there is any doubt as to legitimacy of a
child, under Muhammadan law the acknowledgment by the presumptive father is the proof
82

that the child so acknowledged is the legitimate child of the presumptive father, provided
that legitimacy is possible. [Sadik Husain Khan v. Hashim Ali Khan (1916) ILR 38 All 627, PC]
► In Bibi Nanyer Omissa, even in the absence of evidence of marriage between the parties,
the Privy Council on acknowledgement declared the child to be legitimate. But the Muslim
scholars criticized this judgment and have favoured Muhammad Allahdad Khan v.
Muhammed Ismail Khan (1888) where the court held that a child whose illegitimacy is
proved beyond doubt, by reason of the marriage of its parents being either disproved or
found to be unlawful cannot be legitimatized by acknowledgment.
In the State of Goa, and the Union Territories of Daman and Diu, the Portuguese Civil Code,
1867 continues to apply, and under Article 119 to 122 of that Code, legitimation is
recognized.
Main methods of Legitimation:

(1) Subsequent marriage (legitimation per subsequens matrimonium)

(2) Legitimation by the recognition given by the child's father (subsequent
acknowledgement of paternity)
(3) Legitimation by adoption.

++++++++++++++++++++++++++++++++++++++++++++++++++

MODULE- 10
PROPERTY
Charactarisation-Immovable-Property, Tangible&Intangible
Movables, Insolvency , Successsion

1. Write a note on Movable property ? ( Theorie of tangible moveables

and intangible moveables )
Ans:
MOVABLE PROPERTY
Movable properties are either tangible or intangible. The transfer of movables can be
effected by the act of parties or by operation of law.
83

The preliminary and the vital question is whether only one common system of principles
should be allowed to determine every question that arises in respect of movables or
whether there should be different set of rules that could possibly be applied to different
aspects of the transfer, such as assignability of movables, to formal validity and to material
validity.

THEORIES GOVERNING TRANSFER OF TANGIBLE MOVABLES

(1) Lex domicile
(2) Lex Actus
(3) Lex Situs
(4) Proper law theory

1) Lex domicile theory :-

This theory is founded upon the principle that since movables have no fixed situs, their situs
can be shifted at any time by its owner.

Therefore, the medieval Italian statutists propounded the principle of mobile sequenter
personam. The maxim means that goods follow the person. The doctrine had wide
acceptance beyond the continental Europe in England and in the USA.
* In Sill v. Worswick [(1791) 1 Η Β1 665; 126 E.R.379]
This case laid down the doctrine that with respect to the disposition of moveable property,
with respect to the transmission of it, either by succession, or the act of the party, it follows
the law of the person. It was held that personal property has no locality, thus meaning that
rights over movables are to be governed by the law of the owner's domicile.
(criticism: it may cause unjust results)

(2) Lex Actus thery :-

This theory has not gained much value in the contemporary legal discourse, though there
have been a few instances of judicial acceptance of its crux (most important point at issue).
Alcock v. Smith [(1892) 1 Ch. 238]
It was laid down that, the validity of a transfer depends not upon the law of the domicile of
the owner but upon the law of the country in which transfer of the movable took place.
Cheshire criticized this on the point that a mere fact that a transaction was entered into a
particular place is no adequate reason to accord control to the local law.
84

Graveson supported this view, on the point that, a reasonable man is expected to comply
with the law of any country in which they would have performed the transaction.

3) Lex Situs theory :-

The lex situs theory obviously has its advantages, important among them being that situs
law provides a single and easily ascertained system of law based on the focal point of the
transaction, namely, the goods that the transaction concerns itself.

Moreover, the right of control satisfies the expectations of the reasonable man as for a
party to transfer naturally conclude that the transaction would be subject to the law of the
country in which the subject-matter is situated.
But it is difficult to ascertain in matters where the goods are in transit.
Graveson opined that this problem can be met by mercantile practices of treating the
normal documents of title to such goods as bill of lading as representing the goods
themselves so that in effect the relevant situs is generally that of the document of title.

(4) Proper law theory :-

Cheshire propounded a new theory to explain the law governing issues arising out of the
transfer of movables is that the law of the country with which the transfer has the most real
connection or to be more specific, i.e., the proper law of transfer.

The ascertaining of the proper law would not present any difficulty if the proper law and the
lex situs is the same.

Difficulty arises in a situation where the two factors are grounded in two different legal
systems.
The content of transfer of property tangible movables largely addresses three issues:-
(1) Matters arising between parties to the transfer (Contractual / proprietary)
(2) Matters arising from the transfer affecting third parties
(3) Certain special types of transfers (Gifts / donatio mortis causa / goods in transit).

THEORIES ON INTANGIBLE MOVABLES :-

An intangible movable may be described as an interest which is not directly related to a
physical object or land.
For e.g. shares, patents, copyrights, debts, and negotiable instruments.
They may also be referred to as "choses in action".
85

Theories relating to intangible movable properties also includes:-

(1) Lex domicile theory
(2) Lex situs theory
(3) Lex loci actus theory
(4) The proper law theory

⚫ (1) Lex domicile theory: Philimore was the main proponent to apply this in relation to
intangible movables. He explained that debts, rights and causes of action are universally
perceived as attached to the person of the creditors and hence should be governed by the
law of the domicile of that creditor.

(2) Lex situs theory: Dicey and Justice Atkin applied this theory in the instances of debt.
While situs theory has an advantage of ascertaining the law in an easier fashion, its difficulty
arises when trying to locate it within the place of the debtor.
Since the situs of the debt is a debtor, it becomes difficult to ascertain the situs if the debtor
resides at several places, for e.g., corporations.

* (3) Lex loci actus theory : The place of assignment, or the place where the documents
assigning the debt are executed is the governing factor and the law of that place of
execution of the assignment governs the assignment.

* (4) Proper law theory :- To govern issues on intangible movables two principles is applied
proper law of assignment (where assignment is most closely connected) & proper law of
debt.

++++++++++++++++++++++++++++++++++++++++++++++++

2. Write a note immoveable property ( Mocambique Rule , exception to Mocambique

Rule , choice of law and Capacity to transfer Immoveable property )
Ans:
86

IMMOVABLE PROPERTY
In a conflict of law case, the tasks of the judge includes determining whether the res
litigiosa (property under dispute) is movable or immovable. The choice of law rule will
depend upon this decision.
Rights over immovables are decided by the lex situs (law of the place where the property is
situated). But in the case of movables, other laws are also applicable.
Consequently if the subject matter of ownership is regarded movable by one system of law
and immovable by another system of law the question arises as to which classification
should be accepted.
JURISDICTION: THE MOCAMBIQUE RULE:-

In British South Africa Co. v. Companhia de Mocambique [1893 A.C 602] : The House of
Lords laid down the rule that an English Court has no jurisdiction to adjudicate upon the
right of property in or the right to possession of foreign immovables, even though the
parties may be resident or domiciled in England.
In this case the plaintiff company alleged that it was in possession of large tracts of land in
South Africa and the defendant company wrongfully trespassed and took possession of
those lands. The plaintiff company prayed for a declaration that it was in lawful possession
of lands and; an order of injunction against the defendant and; a large sum of money as
damages.

The House of Lords decided and held that an English court has no jurisdiction to entertain a
suit with respect to foreign immovables. It is on the view that only the courts of situs will be
able to make effective orders in respect of landed properties.

EXCEPTION TO MOCAMBIQUE RULE :-

(1) First exception: The doctrine of "Penn v. Baltimore"

In this case an order of specific performance was granted to the plaintiff who brought a
boundary dispute case to an English court, yet the land was in Maryland, in the USA. The
parties to the dispute were English and both lived in England.

The necessary condition for the exercise of jurisdiction in the above case is that the
defendant should personally be subject to the jurisdiction of the court.

The court can pass a decree, which though personal in form, will indirectly affect land
abroad.

So a contract relating to foreign land, the above rule, creates a personal obligation affecting
conscience and can be enforced by the personal process of the English court provided the
defendant is amenable to the jurisdiction of the court.
87

(2) Fraud and other Unconscionable conduct (unreasonable)

Fraud always creates a right in the injured party to sue the defendant in personam wherever
he can be found and irrespective of where the cause of action has arisen or where the
subject matter of the action is situated.
It was so decided in the case of Cranstown v. Johnson. (1796)

The plaintiff owned a plantation in the island of St. Christopher (now called as Saint Kitts an
island in West Indies) and the defendant got this plantation by a court sale according to the
law of st.Christopher, for a price much less than its market value. The plaintiff was liable to
pay to the defendant a sum of money, but was unable to pay due to his absence abroad.
This opportunity was utilised by the defendant to take action under the law of st.
christopher according to which a creditor can proceed against an absent debtor. By this
process without any actual notice to the plaintiff, the defendant obtained a decree,
executed it and got the plaintiff's plantation sold to him for a very low price.

The plaintiff sued the defendant in England for the recovery of the property. And the Court
decreed in favour of plaintiff.
As pointed out by the court the defendant has used the local law of st. christopher, not for
recovering the money due to him, but to obtain an estate at an inadequate price.
This gross injustice invited court's interference requiring it to act upon the defendant's
conscience.
[Such orders are difficult to apply when it will be a prohibited action under the lex situs]

(3) Fiduciary relationship :-

A trust for instance, attached to foreign land can be enforced by the English Court if the
trustee is present in England, though the author of the trust is not subject to its jurisdiction.

(4) Questions affecting foreign land incidentally arising in an English Action:

e.g:- In Re Duke Wellington [1947, 2, All E.R. 843] WILLS made in England - properties in
England & Spain. S

Admiralty jurisdiction in trespass :- In The Tolten [1946, 1 All. E.R 79] Plaintiff Wharf in
Nigeria got damaged by the negligence of defendants ship. The Court held that the ban
imposed by the Mocambique rule is applicable in cases where the High Court exercises its
admiralty jurisdiction which is conferred by the general law of the sea.

CHOICE OF LAW :-
88

The established rule in USA and most of the continental countries is that all questions in
respect of rights over immovable property should be determined by the application of lex
situs. Thus lex situs governs:

(1) capacity to take immovables (2) capacity to transfer immovables, where by sale, gift,
mortgage etc. (3) formal validity of transfer of immovables (4) essential validity of transfer
of immovables and (5) succession - both testate and intestate.

CAPACITY TO TRANSFER IMMOVABLE PROPERTY :-

 English private international law does not recognise a transfer of immovable

property unless the transferee has the capacity to take under the lex situs.
 The transferor also should have the capacity to alienate according to the lex situs.
 Under the law of United States, a person have the capacity to transfer immovable
property only when he completes 21 yrs of age. Whereas under the Indian law he
acquires capacity when he completes the age of 18 yrs.
 He (Indian) has no capacity to alienate under the lex situs (if the property is in a
foreign land), although the alienation is perfectly valid under Indian law.
 The Indian law is substantially the same as English law. Sec. 16 of CPC provides that
in matters relating to immovable property, the suit be instituted in the Court where
the property is situated.
++++++++++++++++++++++++++++++++++++++++++++++++++++

Module 11
LAW OF OBLIGATIONS- CONTRACTS & TORTS

1. Discuss commercial contracts under the Private International Law with

special reference to the theory of 'Proper Law of Contract'. Dicuss the
choice of law to be applied in proper law of contract .
Ans:
PROPER LAW OF CONTRACT:
* This principle evolved from the English private international law, to decide questions
arising out of contractual relations in cases involving foreign element.
* 'Proper law' means the apt to decide a matter. It is ascertained based on 2 theories:-
89

(1) Theory of intention / Subjective theory

(2) Theory of Localisation of Contract / Objective theory

THEORY OF INTENTION:

* It is propounded by Dicey. Theory of intention says, proper law is that law which the
parties intended to apply.

* Where the parties have chosen the law under which their rights and obligations are to be
determined, this chosen law clearly is the proper law of contract.

Where the parties have not expressly selected any such law, their intentions should be
gathered by looking into various relevant circumstances.
* So, proper law of contract is the law which the parties intended or fairly be presumed to
have intended, the contract to be governed.

LOCALISATION THEORY :-
* This theory is propounded by Westlake. According to this theory, proper law of contract is
the law of the country in which the contract may be regarded as localised.
* What is the country with which the contract is most closely connected? that country will
be the place of localisation of the - contract. As Westlake says: proper law should be the law
of the country with which the transaction has the most real connection and not the law of
the place of contract as such".
It can be made clear through an illustration:
There was a contract between X domiciled in France & Y- - domiciled in Italy. The contract
was being entered in Italy, and place of performance was also in Italy. But the money due is
to be paid in a French Bank.
In this case the elements are most densely grouped in Italy or Italy is the country with which
the contract is most densely grouped in Italy or Italy is the country with which the contract
is most closely connected. So if localisation theory is applied, Italy is the proper law of
contract here.

DIFFERENCE BETWEEN THE TWO THEORIES :-

Considering the differences between subjectivity & objectivity theory, in the first one court
purports to ascertain the actual intention of the parties, but in the second one, court
imposes on the parties an intention which reasonable men would have had under the
circumstances of the case.
90

* According to intention theory, where the parties have indicated the law to be applied in
the contract itself, that law is the proper law, irrespective of other considerations. Proper
law is the law which the parties intended to apply and where that intention has been
expressed in the contract, it will be conclusive.

* But according to localisation theory, The proper law of contract depends not so much on
the place where it is made, or even on the intention of the parties, or in the place where it is
to be performed but on the place with which it has the most substantial connections.

#########

Where there is express Choice of the Law to be applied in the Contract:

* The important question here is whether the parties have unrestricted freedom in their
choice of proper law. For e.g: to select a system of law with which the contract has no
connection whatsoever.
* Lord Atkin says: where the intention is clearly expressed, it is conclusive as already cited.
* In Vita Food Products Inc. V/s. Unus Shipping Company(1939) : The defendant was a
company incorporated in Nova Scotia (Eastern Canada). The plaintiff was a New York firm.
They entered into an agreement at Newfoundland (another province of eastern Canada) by
which the defendant agreed to carry a cargo of herrings in a Nova Scotian ship and deliver
them to plaintiff at New York. The Bills of lading were signed at Newfoundland by agents of
the parties.
According to a Newfoundland statute, the Hague rules should govern any contract of
carriage from that country and every bill of lading signed in the country should contain an
express class making the Hague rules applicable.
The bills of lading in this case omitted to carry that particular clause. But the parties had
selected English law expressly in the contract itself. Both the Hague rules and the bills of
lading exempted the defendant company from liability for the negligence of the master of
ship.

During the voyage the ship ran into a gale due to the negligence of the master of the ship.,
The ship ran aground off the Coast of Nova Scotia. The cargo of Herrings was consequently
damaged and was forwarded to the plaintiff in that damaged condition.

The plaintiff sued the defendants of Nova Scotia for damages. The privy Council stated that
English law was the proper law of contract since the parties had selected English law
expressly in the contract itself.

Therefore, this decision would appear to accept the position that the parties are free to
select a law which may not have any connection with the contract.
91

Where there is no express Selection of the Proper law :-

When the intention of the parties regarding which law to be applied in case of any breach
of contract & in issue regarding distribution of rights and liabilities, the Court may ascertain
whether the parties have impliedly made it clear about a particular law to govern the
contract.
* In the absence of such implied intention, the court has to find out the intention as
disclosed by the factors attending the contract.
i.e., the judge putting himself in the place of reasonable man determines the proper law.
* So, where the proper law is not selected by the parties themselves, it would have to be
decided by examining the system of law with which the contract is most closely connected.
The Azzunzione (1954.1 All E.R 278)
* In this case, the contract was one for carriage of wheat from a French Port to an Italian
Port on board an Italian ship. The charter party was an organization of French merchants.

* The wheat was shipped under an exchange agreement between French government and
Italian government, but this fact was not known to the Italian ship owners. The contract was
concluded in France by French and Italian brokers.
* The contract was drawn up in English language in English standard form but
supplementary by a form in French language. Freight and demurrage were payable in
Italian currency in Italy. What will be the proper law when considering the facts and
circumstances of that case.
Points of contract with French law
1. Contract was concluded in France
2. Charterers were French merchants
3. French brokers were acting on behalf of the French Govt.
4. The contract though written in English was also write in French language.

Points of contract with Italian Law

1. The ship was Italian
2. Place of performance was Italy
3.Freight and demurrage were payable in Italian currency and in Italy.
4. Bills of lading were endorsed to consignees in Italy
5. The Italian broker was acting on behalf of the Italian Govt.
92

The Court of Appeal held unanimously that Italian law was the proper law of contract.

* The decisive factors were the facts that the contract was to be performed in Italy and the
freight and demurrage were payable in Italian currency.
* When the intention of the parties to a contract with regard to the law governing it is not
expressed and cannot be inferred from the circumstances, the contract is governed by the
system of law with which the transaction has its closest and most real connection.

The Alwahab Case (Amin Rasheed Shipping Corporation (1983)2 All.E.R.884) :- The
plaintiff in the case a Libyan Company doing business in Dubai, owned a vessel named the
'Alwahab' which traded in Arabian Gulf waters. The Alwahab was insured with the
defendants, a Kuwaiti insurance company against war and marine risks. The Insurance policy
was based on the Lloyd's form as set out in the English Marine Insurance Act. The policy was
issued in Kuwait and provided for the claims to be paid in Kuwait although the currency
specified was Sterling (Pound in U.K).

Alwahab was seized by Saudi Arabian authorities for alleged smuggling activities and
plaintiffs claimed under the policy for the constructive loss of the vessel. The insurance
company rejected the claim and the plaintiff sought permission to sue in the English court.
* Here only the English law and the Kuwaiti law were involved and the question of
determination was which of the two was the proper law of contract.

The House of Lords held that the proper law of contract of insurance was English law. i.e.,
the proper law of contract is the law which parties intended to apply.

Case where the Proper law is not the only law applicable :-
Situations where law other than English law is applied.
The more important among these are stated below:-
(a) Formal validity
(b) Illegality
(a) Formal Validity :-

In earlier times, jurists advocated the exclusive application of Lex loci contractus (law of the
place where the contract is made) to determine the formal validity of contracts.

According to this view, local formalities are compulsory, and if a contract fails to satisfy the
formalities prescribed by the law of the place where the contract is made, the contract is
unenforceable.

But now, the generally accepted view is that compliance with local formalities is not
compulsory and its absence by itself will not affect the enforceability of contract.
93

But both principles of proper law and formal validity co-exists.

(b) Illegality :- It is not possible to decide the question of illegality of a contract by referring
exclusively to proper law; it may be necessary to take into account other legal systems also.

For e.g. an English court will not enforce a foreign contract regarded as immoral, although it
may be perfectly valid according to the proper law.
* Principles followed to find the illegality in contract are: -
(1) If illegal to proper law
(2) If contrary to English public policy
(3) Illegal by Lex loci contractus
(4) Illegal by Lex loci solutionis (Law of the place of performance)
(5) Illegal by Lex domicili / Lex patriae
* Illegality is considered in the following matters:
* immoral * corruptive * contracting with enemy nations
* wagering contracts etc.

+++++++++++++++++++++++++++++++++++++++++++++++

2. Discuss the Theories regarding the cross border tort disputes ?English
and Indian position regarding choice of law in case of torts. Refer to
judicial decisions.
Ans:

Introduction:

In cross-border tort disputes, determining the applicable law is crucial for ensuring justice
and resolving conflicts between parties from different jurisdictions. Various theories have
been proposed to address this complex issue, each offering different perspectives on how to
determine which legal system governs the dispute. The three main theories are the Lex Fori
Theory, the Lex Loci Delicti Theory, and the Proper Law or Social Environment Theory.

Lex Fori Theory:

Proponent: Friedrich Karl von Savigny

Views:
94

 According to this theory, the law of the forum (where the claim is brought) applies to
the dispute.
 It simplifies the process as there's no need to determine where the tort occurred or
if it was actionable there.
 Critics argue that it may lead to forum shopping, disadvantaging defendants.

Judicial Decision Example:

 In the case of Phillips v Eyre (1870), the English court applied Lex Fori, ruling that
English law governed a tort committed in Jamaica. For instance, if a French tourist is
injured by a British driver in Spain and decides to sue the driver in a British court
upon returning home, the Lex Fori theory would dictate that British law governs the
dispute, regardless of where the accident occurred or the nationality of the parties
involved. This means that the British court would apply its own laws and procedures
to determine liability and damages.

Criticism:

 Critics like C. F. Forsyth argue that Savigny's view is outdated and lacks clear
distinction between crime and tort.
 It's criticized for its potential arbitrariness and unfairness, especially if applied as a
general rule.

Lex Loci Delicti Theory:

Proponent: Not specified

Views:

 This theory holds that the law of the place where the tort occurred (Lex Loci Delicti)
governs the dispute.
 It provides legal certainty and respects the sovereignty of the place where the harm
occurred.
 Challenges arise when the tort occurs in multiple countries or when parties have no
connection to that place.

Judicial Decision Example:

 In the case of Machado vs. Fontes (1897), an English court applied Lex Loci Delicti,
ruling on a libel case from Brazil based on Brazilian law. For instance, if an American
citizen is involved in a car accident while vacationing in Italy, resulting in injuries to
an Italian pedestrian, and the injured pedestrian decides to sue the American driver
in an Italian court, the Lex Loci Delicti theory would dictate that Italian law governs
the dispute. In this case, the Italian court would apply its own legal principles and
standards to determine the liability of the American driver and the compensation
owed to the injured pedestrian.

Criticism:
95

 It becomes complex when a tort spans multiple jurisdictions.

 It can be unfair and arbitrary, especially if the connection to the place of the tort is
coincidental.

Proper Law or Social Environment Theory:

Proponent: Lord Denning

Views:

 This theory suggests applying the law with the most significant connection to the
dispute's facts and circumstances.
 It provides flexibility to ensure fairness and substantive justice.
 Critics argue it leads to uncertainty and unpredictability in legal outcomes.

Judicial Decision Example:

 In Boys v. Chaplin, Lord Denning proposed applying the law with the most significant
connection to the parties and the tort. For example, imagine a situation where a
German company manufactures a defective product that causes harm to consumers
in multiple countries, including France, Spain, and the UK. If a class-action lawsuit is
filed against the company in a US court, the Proper Law or Social Environment
Theory would require the court to consider various factors such as the location of
the harm, the parties' connections to different jurisdictions, and the interests of
justice. Based on these considerations, the court would determine the applicable law
that has the most significant connection to the dispute. This might involve applying
different laws to different aspects of the case, depending on the circumstances.

Criticism:

 Critics argue it may result in unpredictable outcomes.

 It's challenged for its potential to create uncertainty in legal decisions.

These examples illustrate how each theory might be applied in different cross-border tort
disputes, highlighting the complexities involved in determining the applicable law and
ensuring justice for all parties involved.

#########

English and Indian position regarding choice of law in case of torts. Refer to
judicial decisions:

Introduction:
96

Choice of law in tort cases is a critical aspect of private international law, governing the
resolution of civil claims arising from tortious acts committed outside the jurisdiction where
the claim is brought. Both the English and Indian legal systems have developed principles,
statutes, and judicial precedents to address the complexities of cross-border tort disputes.

English Position:

Principles:

 Double Actionability Rule: Historically, English law has followed the double
actionability rule, requiring that the tort be actionable both in England and in the
jurisdiction where it occurred. This principle aims to ensure fairness and consistency
in adjudicating cross-border disputes.

Views:

 While the double actionability rule has been a cornerstone of English conflict of laws,
statutory reforms have introduced alternative choice of law rules for torts through
enactments like the Law Reform (Miscellaneous Provisions) Act 1995.
 English courts emphasize principles of fairness, predictability, and respect for
international comity in determining the applicable law in tort cases.

Acts and Sections:

 Law Reform (Miscellaneous Provisions) Act 1995: This statute introduced reforms in
choice of law rules for torts, departing from the traditional double actionability rule
in certain cases.
 Code of Civil Procedure, 1908: Section 16 addresses jurisdiction in cases involving
injury to land outside India, providing guidelines for determining the appropriate
forum.

Judicial Decisions:

 Phillips v Eyre [(1870) LR 6 QB 1]: In this landmark case, the English courts
established the double actionability rule, which has guided choice of law decisions in
tort cases for decades.
 Machado v Fontes (1897) 2 QB 231: This case exemplifies the application of the
double actionability rule in determining jurisdiction in a libel case involving
publication in Brazil.

Example: In Machado v Fontes, the English court applied the double actionability rule to a
libel case where the publication occurred in Brazil. The court found that the libel was
actionable both in England and in Brazil, thus satisfying the requirements of the rule and
establishing jurisdiction.

Indian Position:

Principles:
97

 Section 19 of CPC: The Indian legal framework for determining jurisdiction in tort
cases is primarily governed by Section 19 of the Code of Civil Procedure, 1908, which
stipulates that the suit may be instituted where the wrong was committed or where
the defendant resides.

Views:

 India's approach to choice of law in tort cases shares similarities with English law,
emphasizing fairness, consistency, and respect for international legal norms.
 While Indian law has not undergone significant statutory reforms akin to English law,
courts rely on principles of fairness and equity in adjudicating cross-border tort
disputes.

Acts and Sections:

 Code of Civil Procedure, 1908: Section 19 provides guidelines for determining

jurisdiction in tort cases, ensuring that the forum chosen is appropriate based on the
circumstances of the case.
 Indian Penal Code, 1860: Various sections of the IPC address tortious acts, providing
a legal framework for seeking remedies for civil wrongs.

Judicial Decisions:

 The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd. (A.I.R.1960 Raj. 224): In
this notable case, the Indian court applied principles of jurisdiction in a case involving
negligent driving, demonstrating the application of Indian conflict of laws principles.

Example: In The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., the Indian court
applied principles of jurisdiction in a case involving negligent driving. The court found that
the act was actionable in the jurisdiction where the accident occurred, thus establishing
jurisdiction based on the principles of fairness and equity.

Conclusion:

Choice of law in tort cases is a multifaceted issue that requires careful consideration of legal
principles, statutes, judicial precedents, and international legal norms. Both the English and
Indian legal systems have developed frameworks to address cross-border tort disputes,
emphasizing fairness, consistency, and respect for the rule of law. While statutory reforms
have altered choice of law rules in English law, Indian law continues to rely on traditional
legal principles and statutes to ensure just outcomes for parties involved in cross-border
tort disputes.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
98

PROBLEMATIC QUESTIONS

1. Meera and Rajesh after marriage went to New York. Wihin few months,
matrimonial fight broke out between them. Meera subsequently returns
to India. In the meantime, after waiting for 6 months Rajesh files a suit for
divorce there in California and gets an ex-parte decree, thus annulling the
marriage. Subsequently, Rajesh remarries with another woman. Upon
hearing this Meera files a case for bigamy in the Indian court. Can the
decree granted by the US court be recognized by court in India? Give
reasons.
Ans:

In the scenario provided, Meera and Rajesh got married and traveled to New York.
However, marital discord arose, leading Meera to return to India. Meanwhile, Rajesh filed
for divorce in California after waiting for six months and obtained an ex-parte decree,
subsequently remarrying. Meera, upon learning of Rajesh's remarriage, files a case for
bigamy in an Indian court. The question arises whether the decree granted by the US court
can be recognized by the court in India.

Recognition of Foreign Decrees in India:

1. Jurisdiction:

 Before assessing the recognition of the US court's decree in India, the first
consideration is whether the US court had jurisdiction over the matter. The
jurisdiction of a foreign court is determined by principles of private international law,
which vary from jurisdiction to jurisdiction.
 If the US court had proper jurisdiction over the divorce proceedings, Indian courts
may be inclined to recognize its decree.

2. Due Process:

 Indian courts typically assess whether the foreign court provided due process to
both parties involved in the proceedings. This includes ensuring that Meera had
adequate notice and an opportunity to participate in the divorce proceedings.
 If the US court's decree was issued ex-parte without giving Meera a fair chance to
present her case, Indian courts may be reluctant to recognize it.

3. Public Policy:

 Recognition of foreign decrees in India is subject to public policy considerations.

Indian courts may refuse to recognize a foreign decree if it violates principles of
Indian public policy, including fundamental rights and principles of natural justice.
99

 If the US court's decree contravenes Indian public policy, such as by granting a

divorce without due regard for Meera's rights, Indian courts may refuse to recognize
it.

4. Reciprocity:

 Indian courts often consider whether the foreign country where the decree was
issued would similarly recognize Indian decrees. Reciprocity is an important factor in
determining the recognition of foreign decrees.
 If the US court's decree is unlikely to be recognized in similar circumstances in the
United States, Indian courts may hesitate to recognize it.

5. Compliance with Indian Laws:

 Indian courts require foreign decrees to comply with Indian laws for recognition. If
the US court's decree violates any provisions of Indian law, such as those related to
jurisdiction or due process, it may not be recognized by Indian courts.

Conclusion:

The recognition of the US court's decree by Indian courts depends on various factors,
including jurisdiction, due process, public policy considerations, reciprocity, and compliance
with Indian laws. If the US court's decree meets these criteria, Indian courts may recognize
it. However, if the decree fails to adhere to these principles, Indian courts may refuse to
recognize it, and Meera's case for bigamy may proceed based on the validity of her marriage
under Indian law.

++++++++++++++++++++++++++++++++++++++++++++

2.. Mr. F and Mrs. M both parties after marriage were residing at Hyderabad,
where the husband also worked. The husband used to go to Meerut for
official visits, on some of which the wife also accompanied. Subsequently, he
filed a petition for judicial separation at a Meerut court on the ground of
adultery. Whether he can obtain a decree of judicial separation? Decide
giving reasons.
Ans:

In the scenario provided, Mr. F and Mrs. M got married and were residing in Hyderabad,
where Mr. F also worked. Mr. F occasionally traveled to Meerut for official visits, sometimes
accompanied by his wife. Subsequently, Mr. F filed a petition for judicial separation at a
Meerut court on the grounds of adultery. The question arises whether he can obtain a
decree of judicial separation.
100

Jurisdiction for Judicial Separation:

1. Ordinary Residence:

 Generally, the jurisdiction for matrimonial matters such as judicial separation is

determined by the ordinary residence of the parties. In this case, Mr. F and Mrs. M
were residing in Hyderabad, which could be considered their ordinary residence.

2. Substantial Connection:

 The jurisdiction of the court where the petition is filed should have a substantial
connection to the parties or the subject matter of the case. While Mr. F visited
Meerut for official purposes, it is not clear whether Meerut had any substantial
connection to their marriage or their ordinary lives.

3. Forum Convenience:

 Courts may also consider the convenience of the forum for both parties involved.
Filing a petition in a court located far from the ordinary residence of the parties may
cause inconvenience and additional expenses.

4. Adultery Grounds:

 Adultery, being one of the grounds for judicial separation, requires evidence to
substantiate the claim. The mere fact that Mr. F occasionally traveled to Meerut for
official visits may not provide sufficient grounds for alleging adultery, especially if
there is no substantial evidence to support the claim.

Conclusion:

Based on the information provided, it appears that Mr. F may face challenges in obtaining a
decree of judicial separation from a Meerut court. The court may question its jurisdiction
over the matter, considering that the ordinary residence of the parties is in Hyderabad and
there may not be a substantial connection to Meerut. Additionally, the grounds of adultery
may require substantial evidence to establish, which may be lacking based on the
information provided. Therefore, Mr. F may need to reconsider his choice of forum for filing
the petition for judicial separation.

4. An order of custody of child, who is an Amerícan citizen, obtained from

Superior Court of Washington in his favour. The mother has brought the child
to India before the pronouncement of order and the child is studying in India
for last two years. Whether the judgement can be recognized and enforced
by Indian courts? Decide.
101

Ans:

Recognition of Foreign Judgments in India:

1. Principle of Comity:
o Indian courts generally recognize and enforce foreign judgments based on
the principle of comity, which encourages mutual respect for the judicial
decisions of other countries.
2. Conditions for Recognition:
o For recognition, the foreign judgment must be final, conclusive, and
pronounced by a court of competent jurisdiction.
o It should not be contrary to the public policy of India.

Analysis:

1. Jurisdictional Issues:
o The Superior Court of Washington may have had jurisdiction over the custody
matter, especially if the child was habitually resident in Washington.
2. Best Interests of the Child:
o Indian courts prioritize the best interests of the child in custody matters.
o Considering the child has been residing and studying in India for the last two
years, it may be argued that uprooting the child from their current
environment could be detrimental to their well-being.
3. Public Policy Consideration:
o Indian courts may refuse to recognize a foreign judgment if it goes against
the public policy of India.
o The paramount consideration is the welfare of the child, and if enforcing the
foreign custody order would not serve the child's best interests, Indian courts
may decline to enforce it.

Conclusion: Given the child's residency and education in India for the last two years, Indian
courts may prioritize the child's best interests over the foreign custody order. While
recognizing the foreign judgment is possible, enforcement may be declined if it is deemed
detrimental to the child's welfare. Therefore, a thorough examination of the circumstances
and consideration of the child's well-being would be necessary before enforcing the foreign
custody order in India.

+++++++++++++++++++++++++++++++++++++++++++++++++++

4. A testator, who was a French national, was habitually resident in

England but dies domiciled in Spain, leaving movable property in
England. Lex Fori is England. Should Lex Fori apply Renvoi? Elucidate.
Ans:
102

Introduction to Renvoi:

Renvoi is a doctrine in private international law that refers to the process of a court
adopting the conflict of laws rules of another jurisdiction. There are two main types of
renvoi:

1. Single Renvoi: The forum court refers to the conflict of laws rules of the foreign
jurisdiction, which in turn refers the matter back to the forum court.
2. Double or Total Renvoi: The forum court refers to the conflict of laws rules of the
foreign jurisdiction, which in turn refers the matter to another jurisdiction.

Relevant Legal Framework:

1. English Law:
o Under English private international law, the treatment of renvoi depends on
the specific circumstances and the type of property involved (immovable or
movable).
o For movable property, English courts typically apply the law of the domicile
of the deceased at the time of death to determine succession issues.
2. French Law:
o French private international law usually applies the national law of the
deceased in matters of succession. In this case, as the testator was a French
national, French law might consider French succession laws applicable.
3. Spanish Law:
o Spanish private international law generally applies the law of the deceased’s
nationality for personal matters, but it also considers the law of the domicile
for certain issues.
o Spain recognizes the doctrine of renvoi and may refer the matter back to
French or English law depending on the circumstances.

Application of Renvoi:

1. Single Renvoi:
o The English court would look at Spanish conflict of laws rules (as the domicile
of the deceased).
o Spanish law might refer to the national law (French law) or the habitual
residence (English law).
o If Spanish law refers back to English law, English courts would typically accept
the renvoi and apply English law.
2. Double or Total Renvoi:
o The English court considers Spanish conflict of laws rules.
o Spanish law refers to French law (as the nationality of the deceased).
o French law then refers back to English law (as the habitual residence of the
deceased).
o This could create a loop, but the English court may ultimately apply English
law as the forum.
103

Determination of Whether Lex Fori Should Apply Renvoi:

Case Analysis:

 Testator's Domicile: The testator was domiciled in Spain at the time of death.
 Habitual Residence: The testator was habitually resident in England.
 Nationality: The testator was a French national.
 Property Location: Movable property is located in England.

Step-by-Step Consideration:

1. Primary Law Application:

o Under English law, the domicile of the deceased (Spain) typically governs the
succession of movable property.
2. Spanish Conflict Rules:
o Spanish law may refer to the national law (French law).
o French law might refer to the law of the habitual residence (English law).
3. Renvoi Acceptance:
o If Spain refers to French law and French law refers back to English law, the
English court must decide whether to accept the renvoi.
o English courts usually accept single renvoi but may avoid total renvoi to
prevent an endless loop.

Conclusion:

Should Lex Fori (England) Apply Renvoi?

Given the conflict rules of the involved jurisdictions, English courts are likely to apply single
renvoi, which means they will consider the Spanish conflict of laws rules. If Spanish law
refers back to English law (the law of the habitual residence), English courts would typically
accept this reference and apply English law to the succession of the movable property.
Therefore, Lex Fori (England) should apply renvoi, specifically single renvoi, and ultimately
apply English law in this scenario.

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5. Roy, a German National obtains both movable and immovable property in

India and dies domiciled in India. His legal representatives, Geman nationals
move Indian Court to dispose both movable and immovable property
situated in India. Can the legal representatives of do so? Elucidate.
Ans:
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o determine whether the legal representatives of Roy, a German national who died
domiciled in India, can dispose of both movable and immovable property situated in India,
we must analyze the issue under the framework of private international law. This involves
examining the laws applicable to succession, property, and domicile across different
jurisdictions.

Private International Law Principles

1. Lex Domicilii: The law of the deceased's domicile typically governs the succession of
movable property.
2. Lex Situs: The law of the location where the immovable property is situated governs
the succession of immovable property.
3. Public Policy and Local Laws: Local laws and public policy considerations may impact
the application of foreign laws.

Analysis

Movable Property

1. Domicile Law:
o Since Roy was domiciled in India at the time of his death, Indian law would
generally govern the succession of his movable property.
o Under Indian law, the applicable statutes include the Indian Succession Act,
1925. This act provides comprehensive rules for the devolution of property
for those domiciled in India.
2. Application of Indian Law:
o Indian law would recognize the rights of legal representatives to dispose of
the movable property.
o The legal representatives must obtain probate or letters of administration
from an Indian court to administer the estate of the deceased.

Immovable Property

1. Lex Situs Principle:

o The succession of immovable property is governed by the law of the location
of the property, which in this case is Indian law.
o Indian laws, including the Transfer of Property Act, 1882, and the Indian
Succession Act, 1925, would govern the transfer and disposal of immovable
property.
2. Application of Indian Law:
o Indian courts would apply Indian law to determine the rightful heirs and the
process for disposing of the immovable property.
o The legal representatives would need to follow Indian probate procedures to
obtain the right to dispose of the immovable property.

Conclusion

Can the Legal Representatives Dispose of the Property?

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 Movable Property: Yes, the legal representatives can dispose of the movable
property in India, subject to obtaining the necessary probate or letters of
administration from an Indian court under the Indian Succession Act, 1925.
 Immovable Property: Yes, the legal representatives can dispose of the immovable
property in India, as this is governed by Indian law (lex situs). They must follow the
local legal procedures for the disposal, which also requires probate or letters of
administration under Indian law.

Detailed Legal Process:

1. For Movable Property:

o The legal representatives must apply for probate or letters of administration
in an Indian court.
o The court will grant probate or administration if it is satisfied with the legal
representatives' claim, allowing them to administer and dispose of the
movable property.
2. For Immovable Property:
o The legal representatives must similarly apply for probate or letters of
administration concerning the immovable property.
o Once granted, they can proceed to dispose of the immovable property
according to Indian laws.

Relevant Legal Provisions:

1. Indian Succession Act, 1925: Governs the devolution of both movable and
immovable property for individuals domiciled in India.
o Sections relevant to probate and letters of administration include Sections
217, 218, and 219.
2. Transfer of Property Act, 1882: Governs the transfer of immovable property in India.
o Relevant sections for the disposal of property by legal representatives.
3. Probate and Administration: Legal procedures outlined under Indian law for
obtaining the right to administer and dispose of the deceased’s estate.

Summary

In summary, the legal representatives of Roy, a German national domiciled in India, can
dispose of both movable and immovable property situated in India. They must follow the
probate procedures under Indian law to obtain the necessary legal authority to administer
and dispose of the property.

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6.. Mr. X domiciled in France, dies intestate leaving behind movable property in India and
immoveable property in France. Mr X is an Indian. His two sons file a suit for the
inheritance, before Indian Court, of both the moveable and immoveable property. In this
context write:
a. Whether the Indian Court has jurisdiction to try the suit? Reason for your answer.
b. Characterise the issue.
c. What will be the choice of rule in this case?

Ans:

Detailed Analysis of the above mentioned problem :

Let's revisit the analysis with the additional detailed descriptions related to private
international law principles.

a. Jurisdiction of the Indian Court

Relevant Statutes and Principles

1. Indian Succession Act, 1925:

o Section 5: This section specifies that the succession to the immovable
property in India of a person deceased shall be regulated by the law of India,
regardless of the domicile of the deceased. Succession to the movable
property of a person deceased is regulated by the law of the country in which
such person was domiciled at the time of his death.
o Section 270: This section provides that a District Judge has jurisdiction to
grant probate or letters of administration if the deceased had a fixed place of
abode within the jurisdiction of the Judge at the time of death, or if he had
some property within such jurisdiction.
o Section 271: This section extends the jurisdiction, stating that any District
Judge within whose jurisdiction the deceased had any property at the time of
his death can entertain the application.
o Section 371: This section applies when the deceased was not domiciled in
India and grants jurisdiction to courts in India concerning the property
located in India.
2. Private International Law Principles:
o Jurisdiction in Succession Matters: Jurisdiction typically considers factors like
domicile, nationality, and the location of property (lex situs).

Lex Situs (for Succession of Immovable Property)

 Description: Lex situs refers to the law of the place where the property is located.
For immovable property (real estate), the law of the location of the property governs
all matters of succession. This principle ensures that the local laws, which are most
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familiar with and applicable to the land in question, are used to resolve succession
issues.

Lex Domicilii (for Succession of Movable Property)

 Description: Lex domicilii refers to the law of the domicile of the deceased at the
time of death. It is a fundamental principle in private international law that movable
property is governed by the law of the domicile. The domicile law is presumed to
reflect the deceased's closest legal relationship.

Determining Whether the Property is Movable or Immovable - Lex Situs

 Description: The classification of property as movable or immovable is determined

by the lex situs. This ensures that the local laws, which are most appropriate for
understanding the nature and treatment of the property, are applied.

Analysis

1. Movable Property in India:

o Based on Section 5 and Section 271 of the Indian Succession Act, the Indian
courts have jurisdiction to handle the movable property of Mr. X located in
India, even if he was domiciled in France at the time of his death. Lex
domicilii (French law) would typically govern succession to this property.
2. Immovable Property in France:
o The law of the place where the property is situated (lex situs) governs the
succession of immovable property. Therefore, the French courts would have
jurisdiction over the immovable property located in France.

Conclusion

 The Indian court has jurisdiction to try the suit concerning the movable property in
India.
 The Indian court does not have jurisdiction to try the suit concerning the immovable
property in France.

b. Characterization of the Issue

Characterizing the Factual Situation

1. Nature of the Property:

o Movable property in India.
o Immovable property in France.
2. Nationality and Domicile:
o Mr. X was an Indian national but domiciled in France at the time of his death.

Characterization of Connecting Factors

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1. Lex Fori (Law of the Forum):

o The Indian court would apply its own procedural law to determine
jurisdiction. This involves sections from the Indian Succession Act, 1925.
2. Lex Causae (Law Governing the Substance):
o The substantive succession rules would typically be governed by the law of
the domicile, which is French law in this case.
3. Two-fold Characterization:
o The process of characterizing the issue under both Indian and French law to
ensure that the appropriate legal framework is applied.
4. Comparative Law:
o This involves comparing the principles and rules of succession under Indian
and French laws to resolve any conflicts that arise.

Legal Precedents

1. Renvoi:
o The doctrine of renvoi might be applied to refer back to the law of the
domicile (France) or the situs (France for immovable property).
o Furthermore, we can rely upon the ruling of Hon'ble Supreme Court in the
matter of Viswanathan v. Syed Abdul Wazid (AIR 1963 SC 1), where the
court observed that succession to immoveable properties is governed by Lex
Situs. Again, a question was raised before Kerala High Court in Sankaran
Govindan v. Lakshmi Bharti (AIR 1964 Ker. 244), where the court ruled by
applying the principles of Private International Law held that immovable
property situated outside India cannot be adjudicated in Indian Courts unless
the matter has been referred back to the Court by application of the Doctrine
of Renvoi.

c. Choice of Rule

Applicable Principles

1. Lex Domicilii:
o The law of the domicile (France) would generally govern the succession of
movable property.
2. Lex Situs:
o The law of the place where the immovable property is situated (France)
governs the succession of immovable property.

Application of Doctrine of Renvoi

1. Single Renvoi:
o The Indian court might consider whether French law would refer back to
Indian law due to Mr. X’s nationality.
2. Double Renvoi:
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o This involves considering whether the foreign court (French court) would
apply its conflict rules and refer the matter back to Indian law, thus
completing a "double referral".

Choice of Law

 For Movable Property: Indian courts may recognize French domicile and apply
French law if renvoi is accepted. If renvoi is not considered, Indian courts may
directly apply Indian law, taking into account domicile considerations.
 For Immovable Property: The law of France, as the situs of the immovable property,
governs the succession.

Final Decision

1. Movable Property in India:

o The Indian court can assert jurisdiction and may apply French law due to
domicile considerations, or directly apply Indian law if renvoi is not accepted.
2. Immovable Property in France:
o The Indian court does not have jurisdiction, and French law will govern the
succession based on lex situs principles.

Summary

 Jurisdiction: Indian court has jurisdiction over movable property in India but not over
immovable property in France.
 Characterization: The issue involves determining the applicable laws based on
domicile (France) and situs (France for immovable property).
 Choice of Rule: French law primarily applies, with potential renvoi referring back to
Indian law for movable property and French law for immovable property based on
lex situs.

This detailed analysis should help in understanding the jurisdictional and substantive issues
in this case, applying the principles of private international law and relevant statutes.

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