Conflict of Laws (Private International Law) Notes

Private International Law
Or Conflict of Laws
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
© KDR/IIT KGP/RGSOIPL-2010 1
Why you require Pvt.int.na.law
 Indian court is called upon to try the question of
succession to the property of a person who died in
India leaving property in India and abroad.
 Petition of divorce presented by an Indian domiciled
in India who had married an English woman in
England.
 Custody of children in India of Indian parents
domiciled abroad.
Why you require Pvt. Int.n.law
 Suits connected with foreign country
 Question of succession
 Question of validity of marriage
 Petition of divorce
 Custody of children
 Supply of goods
 Torts committed on short visits
 Enforceability of foreign judgment - can a foreign
judgment be executable in India.
Name
 Its three different names — conflict of laws, private
international law, and international private law — are
generally interchangeable, although none of them is wholly
accurate or properly descriptive.
 The term conflict of laws is primarily used in jurisdictions
of the Anglo-Saxon legal tradition (United States, England,
Canada, Australia, etc.);
 private international law is used in France (droit
international privé) as well as in Italy, the Spanish-speaking
and Portuguese-countries and Greece;
 international private law is used in Germany and the other
German-speaking countries (internationales Privatrecht)
Name
 Private International Law is used by Civil Law
countries.
 Name is first used by “Story” in 1834.
 Used by early authors like Westlake and Foote.
 Confusion between law of nations or public
international law.
 It governs the relation between sovereign states.
 Some principles like ‘proper law’ principles are
adopted in a private international law case when
deciding a case.
Conflict of laws
 Conflict of laws of two countries on the same subject.
 The very purpose of private international law is to
avoid conflict of laws.
History
 Back to Greek law – equal application to foreigners
also.
 More significant developments can be traced to
Roman law.
 Roman civil law (jus civile) being inapplicable to non-
citizens.
 Special tribunals "applied" the "jus gentium."
 The jus gentium was a flexible and loosely-defined
body of law based on international norms.
History
 Contribution of Islamic law and jurisprudence.
 Muslim conquests and maritime explorations.
 Islamic jurists developed elaborate rules for private
international law regarding issues such as contracts
and property, family relations and child custody, legal
procedure and jurisdiction, religious conversion, and
the return of aliens to an enemy country from the
Muslim world.
Modern laws
 The modern conflict of laws is generally considered to
have begun in Northern Italy during the late Middle
Ages and in particular at trading cities such as Genoa,
Piza and Venice.
 Maritime law was also a great driver of international
legal rules; providing for the enforcement of contracts,
the protection of shipwrecked sailors and property,
and the maintaining of harbours.
England
 King constituted special courts for foreigners, the
staple courts and pie-powder courts.
 Court of admiralty – dealt with trade disputes
happened outside the territory even in 14th century.
 Recognition of foreign judgments started in the
England in 1607.
 Robinson v. Bland – 1790 – whether a contract made in
France is valid even though it is void in England.
 J. Mansfield: the place where the contract is made, not
where the action is brought.
Two groups of thought
 1. Conflict of Laws as a part of international law.
 2. Domestic law
 Comity of nations
 Jurisdiction of courts
 Recognition and enforcement of foreign judgments
 The choice of law.
Two major areas
 Private international law "sensu stricto" comprising
conflict of laws rules which determine the law of which
country (state) is applicable to specific relations.
 Private international law "sensu lato" which comprises
private international law "sensu stricto" (conflict of laws
rules) and material legal norms which have direct
extraterritorial character and are imperatively applied
(material norms of law crossing the borders of State) -
usually regulations on real property, consumer law,
currency control regulations, insurance and banking
regulations.
Application
 The court must first decide whether it has jurisdiction
and, if so, whether it is the appropriate venue given the
problem of forum shopping.
 The next step is the characterisation of the cause of
action into its component legal categories which may
sometimes involve an incidental question (also note
the distinction between procedural and substantive
laws).
Choice of law
 Each legal category has one or more choice of law rules
to determine which of the competing laws should be
applied to each issue.
 A key element in this may be the rules on renvoi.
 Once it has been decided which laws to apply, those
laws must be proved before the forum court and
applied to reach a judgment.
 The successful party must then enforce the judgment
which will first involve the task of securing cross-
border recognition of the judgment.
Choice of law
 application of the lex fori or local law.
 the court will apply the law of the forum (lex fori) to all procedural
matters (including, self-evidently, the choice of law rules); and
 it counts the factors that connect or link the legal issues to the laws of
potentially relevant states and applies the laws that have the greatest
connection,
 e.g. the law of nationality (lex patriae) or domicile (lex domicilii) will
define legal status and capacity, the law of the state in which land is
situated (lex situs) will be applied to determine all questions of title,
the law of the place where a transaction physically takes place or of the
occurrence that gave rise to the litigation (lex loci actus) will often be
the controlling law selected when the matter is substantive, but the
proper law has become a more common choice.
Choice of Law
 Lex loci contractus: the law of the place where the contract was made;
 Lex loci solutionis: the law of the place where the contract is to be
performed;
 Lex loci celebrationis: the law of the place where the marriage was
celebrated;
 Lex loci delicti: place where the tort was committed;
 Lex loci domicilli: the law of the place where a person is domiciled;
 Lex patriae: the law of the nationality
 Lex situs: the law of the place where the property is situated.
 Lex fori: the law of the forum(internal Law).
Choice of law
 Which system of law must govern the case?
 Warsaw convention – 1929 amended in
 The Hague convention – 1893 - 1955.
 International sale of goods – 1964 - 1980
 Lugano Convention – 1988
Subject matter
1. Rules relating to jurisdiction of courts
2. Rules of choice of law
3. Rules relating to recognition and judgment of
foreign judgments and decrees.
Different jurisdictions
 Law of the place of tort
 Place of celebration of marriage
 Movables are subject to the law of the domicile of the
owner for the purpose of succession.
Different theories
 Theory of acquired right:
 Dutch jurist Huber and later Dicey and Beale in USA.
 Principle of territoriality
 Enforcement of right rather than foreign law.
 Dalrymple v. Dalrymple, (1811).
 No support today.
 No protection of right without the recognition of law.
Local law theory
 Walter Wheeler Cook
 The forum recognizes and enforces a local right.
 Total exclusion of all foreign laws.
 If a foreign element is there, it does not necessarily
apply law of the forum.
 Social expediency and practical convenience.
Rule selection or jurisdiction selection
 Forum policy – law of the forum
 Local law rules vs. international law
 Jurisdiction selection
 Rule selection
Factors
 Need of the interstate and international systems
 Relevant policies of the forum.
 Policies of the interested states.
 Protection of justified expectations.
 The basic policies underlying the particular field of
law.
 Certainty, predictability and uniformity of result
 Ease in the determination and application of the law to
be applied.
Classification of the cause of action
 Allocation of the question raised by the factual
situation to apply a correct legal category.
 Law of the forum
 Law of citus
 Law of marriage
 Law of domicile
Foreign element
 Ogden v. Ogden, 1908
 Simonin v.s Mallac
 Consent of marriage under French Law
 Bona vacantia – Re Maldonado’s Estate, 1954

Thank you
Or conflict of laws
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
©KDR/IIT KGP/RGSOIPL-2010 1
Classification or characterization
 The first step in any case where a foreign element
involved,
 Determination of jurisdiction is important.
 Classification of the cause of action
 Objective is to find out the court and correct legal
category.
 What choice of law to be applied?
 Whether the law of the forum?
 Law of the domicile?
Characterization
 As a breach of contract
 As a tort
 Reference to which law the court is going to
characterize the factual situation.
 Objective is to reach a socially and just result.
Characterization
 Indian court
 Inheritance to immovable property in India
 Married woman domiciled in Tibet.
 Polyandrous marriage
 2 husband and 3 children
 Valid marriage – no marriage.
Choice of law
 The question of what law applies is a question the
court answers by consulting the law of its own state;
that is, it is a question of forum choice-of-law doctrine.
 the court proceeds to apply the forum’s substantive or
internal law: the tort, contract, or other law that
determines the parties’ substantive rights.
 The forum’s choice-of-law rules might also direct the
application of another state’s law.
Choice of forum
 If foreign law can never apply within the forum state,
then obviously the forum cannot apply foreign choice-
of law rules.
Choice
 Capacity to marry: lex domicilli
 Formalities and validity: lex celebrationis or lex
contractus or lex situs.
 Marriage is void or voidable: lex fori or lex causae
 Marriage by proxi
Traditional approach
 The theory of territoriality.
 The traditional jurists are of the opinion that axiom of
territoriality, the principle that “the law of a state
prevails throughout its boundaries and, generally
speaking, not outside them.”
 only the law of the state where an event occurred can
attach legal consequences to that event, and choice of
law becomes largely a matter of determining the place
of occurrence.
Modern policy oriented approach
 Regarding this approach the experts have said that the
fundamental insight of modern theory is that the
applicability of a law is a pure question of
interpretation.
 As most legislation does not specify its territorial
scope, it hints at filling the gaps by reference to a law's
purpose.
 The solutions advanced by the policy-oriented
approaches are essentially the same as those offered by
the traditionalists,
Maltese marriage case
 Husband and wife domiciled in malta-time of
marriage acquired French domicil – land in France –
succession of law according to law lex loci citus –
 Matrimonial rights are according to law of domicile-
 Conflict of classification – Maltese or French?
 French court applied the matrimonial law of Malta.
 Classification of cause of action will decide every case.
Cases
 Ogden v. Ogden, 1908
 Frenchman domiciled in France
 Married an English woman in London without
knowledge of parents
 Frenchman below 25
 Father take him to France back and got annulled the
marriage from French Court – want of parental
consent
 French law.
 Frenchman married another girl in France.
Case
 English women approached High Court of England on
the ground of desertion and adultery.
 Petition dismissed on ground of want of jurisdiction
 1906 - she married another English man named
William Ogden
 Ogden filed a divorce petition on the ground that at
the time of marriage, she was already married.
 The court passed a decree annulling the marriage
 The court said the marriage with the Frenchman was
valid as the French Decree not recognized by English
court. ©KDR/IIT KGP/RGSOIPL-2010 12
Characterization
 Parental consent is a formality – lex loci celebrationis,
i.e. English Law
 Result – the women was married under English law
and not married under French Law.
 First Stage – assessing factual situation
 Second Stage – connecting factor is characterized
 Third stage – characterization of proper law is made.
Renvoi
Renvoi
 French term means – sending back
 When a forum court refers the case to anther
jurisdiction many questions arises:
 How much of other jurisdiction of law applies?
 Does it include choice of law principles?
 Does it include only the jurisdiction’s internal law?
 The question whether a forum should
consult the choice of law rules of other
jurisdictions is called renvoi.
Renvoi
 Jurisdiction
 The court must first decide whether it has the
jurisdiction to hear the case (which will involve
addressing the question of whether the plaintiff is
attempting to manipulate the judicial system by forum
shopping).
 Choice of law
 The court must analyse the case as pleaded and
allocate each component to its appropriate legal
classification, each of which will have one or more
choice of law rules attached to it.
Renvoi
 Objective is to attain a uniform judicial determinations
irrespective of foreign or domestic forum.
 By using the law of the forum more accurate decision.
 Applying the chosen law
 The court will then apply the choice of law rules.
 The system of renvoi, which literally means "send
back", is an attempt to prevent forum shopping.
 The next step is to see whether there is a reference
solely to the relevant substantive provisions, or to the
state's system of law as a whole which would include
its choice of law rules.
Renvoi
 Where the law of the forum provides that a juridical
event shall be governed by a certain foreign law, and
that foreign law in turn remits it to the law of the
forum to determine by its law, the situation arises
which has been termed as renvoi.
 Choice of law
 the forum court might in the process decide what it
means to apply the law of another state.
Law
 what is meant by ‘law’ when a reference is made to
 foreign law; for example, does a reference to ‘Indian
law’ mean Indian internal law, or the whole of Indian
law, including its conflict of laws rules?
 The word ‘law’ is ambiguous and a number of
approaches have been suggested in this regard.
Renvoi: jurists opinion
 Professor Schreiber: “When the Conflict of
Laws rule of the forum refers a jural matter
to a foreign law for decision, is the reference
to the corresponding rule of the Conflict of
Laws of that foreign law, or is the reference
to the purely internal rules of law of the
foreign system; i.e., to the totality of the
foreign law minus its Conflict-of-Laws rules.
Single renvoi
 A single renvoi forum always refers to the other law's
choice of law rules.
 If those rules would send the issue back to the forum
court, the forum court will accept the first remission
and applies its own laws.
 But, if both sets of laws operate with either no renvoi
system or single renvoi systems, forum shopping will
be a potential problem.
Single renvoi
 when the court of the forum has a choice to apply the
foreign choice of law rules, accept the remission to its
law by the foreign law and apply the law which it
would have applied had the case been entirely
domestic to the forum, or in the case of transmission,
the domestic law of the third country.
 This requires proof of the choice of law rules of the
foreign country but not of the foreign rules about
renvoi.
 This is single renvoi.
Single renvoi
 A single renvoi forum always refers to the other law's
choice of law rules.
 If those rules would send the issue back to the forum
court, the forum court will accept the first remission
and applies its own laws.
 But, if both sets of laws operate with either no renvoi
system or single renvoi systems, forum shopping will
be a potential problem.
Single renvoi
 If a Judge in country A is referred by his own rule of
the choice of a law to the ‘law’ of the country B, but the
rule of the choice of law in B refers such a case to the
‘law’ of A, then the Judge in A must apply the internal
law of his own country.
 Remission to its own law.
 Forgo’s case
 Bavarian national died intestate in France
 Whether his movable properties could be distributed
according to Bavarian law or French law?
Single renvoi
 when the court of the forum has a choice to apply the
foreign choice of law rules, accept the remission to its
law by the foreign law and apply the law which it
would have applied had the case been entirely
domestic to the forum, or in the case of transmission,
the domestic law of the third country.
 This requires proof of the choice of law rules of the
foreign country but not of the foreign rules about
renvoi.
 This is single renvoi or remission.
Lex Fori
Or Single Renvoi
Single renvoi
Transmission
 If 3 countries are involved.
 Indian national - A
 Domiciled in the US - B
 Dies intestate in UK leaving movables – C
 English law – law of the domicile – US law
 The US private international law refer the case to law
of nationality - Indian law.
 Reference from B to C is known as transmission.
Double renvoi or foreign court theory
 In this scenario, the forum court considers that it is
sitting as the foreign court and will decide the matter
in exactly the same way that the foreign court would.
 In this system, there can never be more than two
remissions, e.g. English forum refers to French law (a
single renvoi system) so English law is applied (1st
remission) and France accepts the remission (2nd and
final).
 At present, only English law uses this approach.
Double or multiple renvoi
 Double or Multiple renvoi is when the court of the
forum may resolve the issue in the same manner as
a court of the legal system selected by its choice of law
rules might resolve it had the foreign court exercised
jurisdiction in the same case on the same facts.
 This method requires proof not only of the choice of
law rules of the foreign country but also the foreign
rules about renvoi.
Application of renvoi
 Because the doctrine is considered difficult and its
results are sometimes unpredictable, its application
has generally been limited to:
 the validity of wills and intestate succession (the
validity of transfers of real property); and
 retrospective legitimation by the marriage of the
natural parents (validity of divorce decrees).
 Although there are indications in some states that it
might also apply to two issues in family law, namely
the capacity to marry and the formal validity of
marriage.
rules about renvoi.
English citizen dies intestate domiciled in Italy – English conflicts of law
refers it to law of domicile – ie. Law of Italy –Italian conflicts of law
refers it back to the national law-English law
 Because the doctrine is considered difficult and its
results are sometimes unpredictable, its application
has generally been limited to:
marriage.
Applicability
 formal and intrinsic validity of wills
 cases of intestate succession
 legitimation by subsequent marriage.
 formal validity of marriage
 Capacity to marry.
Limitations
 Does not ensure uniform results.
 One of the country should reject the renvoi then only
it will work properly.
 Renvoi works only in commonwealth countries.
 If the foreign country rule is unacceptable – no
application of renvoi.
 The judge referring the case must look into the foreign
law.
 It depends on whether the single renvoi is recognised
by the foreign country.
Re O’ Keefe
 Born in Calcutta – India
 Settled in Naples, Italy
 British nationality
 Father – domiciled in Ireland at the time of her berth-
lived and died in Calcutta
Collier vs. Rivaz, 1841
 British subject
 Domiciled in Belgium at the time of death
 Executed various instruments according to Belgian law.
 Some of the documents are not in accordance with Belgian law.
 The testator never acquired a domicile in Belgium – no
authorization.
 The question was whether the instruments could be probate in
England.
 Held: the formal validity of a will cannot be denied if it satisfies
either the internal law or the private international law.
cases
 In Re Ross, 1930
 Validity of a will – intestate succession to movables –
law of the foreign country.
 Immovable – private internationals of the country
where the immovable's are situated.
 Movables – law of the situs where the title of the
movables has been acquired.
Thank you
Or conflict of laws
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
Double Renvoi or foreign court theory
 Sir Herbert Jenner formulated the foreign court theory.
 The court sitting here decides from the persons skilled
in that law, and decides as it would if sitting in
Belgium.
 Collier v. Revaz (1841)
Double renvoi or foreign court theory
 In this scenario, the forum court considers that it is
sitting as the foreign court and will decide the matter
in exactly the same way that the foreign court would.
 In this system, there can never be more than two
remissions, e.g. English forum refers to French law (a
single renvoi system) so English law is applied (1st
remission) and France accepts the remission (2nd and
final).
 At present, only English law uses this approach.
rules about renvoi.
 Illustration
Lex Fori
Or Single Renvoi
rules about renvoi.
 Illustration
 the doctrine is considered difficult and its results are
sometimes unpredictable, its application has generally
been limited to:
marriage.
Applicability
 formal and intrinsic validity of wills
 cases of intestate succession
 legitimation by subsequent marriage.
 formal validity of marriage
 Capacity to marry.
Limitations
 Does not ensure uniform results.
 One of the country should reject the renvoi then only
it will work properly.
 Renvoi works only in commonwealth countries.
 If the foreign country rule is unacceptable – no
application of renvoi.
 The judge referring the case must look into the foreign
law.
 It depends on whether the single renvoi is recognised
by the foreign country.
 The foreign court theory suffers from ambiguity.
Re O’ Keefe
 Born in Calcutta – India
 Settled in Naples, Italy
 British nationality
 Father – domiciled in Ireland at the time of her berth-
lived and died in Calcutta
Collirt vs. Rivaz, 1841
 British subject
 Domiciled in Belgium at the time of death
 Executed various instruments according to Belgian law.
 Some of the documents are not in accordance with Belgian law.
 The testator never acquired a domicile in Belgium – no
authorization.
 The question was whether the instruments could be probate in
England.
 Held: the formal validity of a will cannot be denied if it satisfies
either the internal law or the private international law.
cases
 In Re Ross, 1930
 Validity of a will – intestate succession to movables –
law of the foreign country.
 Immovable – private internationals of the country
where the immovable's are situated.
 Movables – law of the situs where the title of the
movables has been acquired.
Thank you
Foreign Law Element
Application and Exclusion
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
Deciding case
 Question of fact – to be proved
 Question of law – not required to be proved
 Foreign element cases – same questions arises.
 Private international law differs.
 Foreign element – Courts apply foreign law – exclude
foreign law.
 Foreign law – question of law or question of fact?

Application of foreign law
 Italy - Same way as that of the internal law – duty of
the court to know foreign law.
 Germany - question of law - Secondary nature –not in
the same way as that of internal law – content of the
foreign law should be established.
 French Law - Question of Fact – it is the duty of the
court to ascertain it ex officio.
Practices
 Russia – East Europe - – simple fact – parties to prove-
Duty of the court to found objective truth on the
interest of the society.
 The court is obliged to strive to establish ex officio the
substance of the foreign rules of law.
 All common law countries including India – taken it as
a question of fact.
 Burden of proof is with the parties.
 By documentary evidence, oral, expert witnesses.
Other countries
 Common-law countries, Spain, Portugal, India and
some Latin American Countries take the view that the
question of foreign law is a question of fact in the same
manner as any other question of fact.
Proof of foreign law
 England: the foreign law must be pleaded and proved
as a fact, by expert evidence
 In the absence of foreign law the court will apply
English law.
 Bremer v. Freeman, (1857) PC 306
 Concha v. Murrieta, 40 Ch D 543
 ‘foreign law is to be ascertained by the evidence of
experts skilled in such a law.’
 Lawyers or academic Professors
Experts
 Evidence of roman Catholic Bishop was accepted to
prove the matrimonial law in Rome.
 Bank Director – any commercial matter.
 Diplomats –
 Notary –
 Non Lawyers
Law in other countries
 S.4(1) of the English Civil Evidence Act 1972 permits
expert evidence on foreign law of persons suitably
qualified to do so on account of their knowledge or
experience.
 Canada: foreign statutes and judicial proceedings are
admitted according to Article 2809 of the Civil Code in
the Province of Quebec.
India
 Indian evidence Act, 1872.
 S.38 of the Act provides that any official publication of
a foreign country containing its laws or law reports can
be admitted in evidence.
 S.45 – any person specially skilled can give expert
evidence on a subject.
 S.57 – Indian courts will take judicial notice of certain
laws.
 S.78 – includes ‘public documents’ – legislative acts of
any country.
India
 57(2) – all public Acts passed by the Parliament of the
UK to be judicially noticed…
 4. the course of proceedings of Parliament of the UK…
 S.84 – the court may presume the geniuses of every
such record.
 Appropriate books or documents of reference.
India
 Bombay High Court taken the view that judgment of the
highest court of the foreign country is best evidence as to
the law of that country.
 Sugan chand Bhinkimchand v. Mangibai Gulabchand, 1942
Bomb. 185.
 Indian law the burden of proof is on the party setting the
plea of foreign law.
 Palaniappa Chetty v. Nagappa chettiar, 1930 Mad. 146.
 Ceylon Civil Procedure Code – expert opinion – the court
itself interpret the provisions of foreign law.
 Under Indian law, foreign law may be proved by expert
evidence under S.45KGP/RGSOIPL-2010
©KDR/IIT of Indian Evidence Act. 11
Application of foreign law
 Technip SA v. SMS Holding (Pvt) Ltd. 2005, 5 SCC 465. - ‘it
is for the court to resolve the conflict by looking at the
admitted text of the French law and the material on record
to decide the proper application of the provisions.
 SEBI held that French law applied to the takeover of
Coflexip and consequently SEAMEC by Technip for the
purpose of determining when such takeover was effected. It
found that the Technip had obtained control of Coflexip in
July 2001 and had violated Regulations 10 and 12 of the
Regulations thereby acquiring 58.24% of the shares/voting
rights and control in SEAMEC in July 2001 without making
any public offer.
Exclusion of Foreign law
 It is the duty of the party pleading foreign law is to
prove what the foreign law is.
 If he fails to do the court will apply lex fori.
 Against public policy or Ordre Public
 Foreign law is penal in nature
 Foreign law revenue in nature
English court
 William and Humbert Ltd. v. W. & H Trade Marks
(Jersey) Ltd. (Dry Sack Sherry Trade mark case, (1085)
3 WLR 501.
 Class I – English courts will not recognize foreign
confiscatory laws which discriminates on the grounds
of race, religion or the like.
 Grave infringement to human right laws
 Class II – foreign laws confiscating property situated in
a foreign country if they are penal in nature.
Exclusion of foreign law
 If the system of law offends the domestic law notions
of public welfare by applying the doctrine of ordre
public.
 English courts won’t enforce foreign laws if it would be
inconsistent with the fundamental public policy of
English law.
 Indian courts also will not assist in the enforcement of
foreign penal and revenue laws: - Viswanathan v.
Rukn-ul-Mulk Syed Abdul Wajid AIR 1963 SC 1.
Exclusion of foreign law
 US – penal laws cannot be executed.
 Pecuniary penalties for any violations of statutes for
the protection of revenue or municipal laws.
 Recognised in the Hague Convention on the
Recognition and enforcement of Foreign Judgments in
Civil and Commercial Matters 1971.
 Contracting states have agreed to recognise and
enforce judgments of each other’s courts, but does not
apply to any payment of customs duty, tax or penalty.
Exclusion
 Government of India v. Taylor, [1955] AC 491.
 HL held that revenue law cannot be enforced in UK.
India
 A. 261 of the Indian constitution provides that full
faith and credit will be given throughout India to
public acts, records and judicial proceedings of the
Union and the states, and final judgments of civil
courts throughout India can be executed anywhere in
India.
Public policy
 Fundamental concern to the state and society at large.
 No definite definition
 Justice and morality are subjective and relative notions
 Vary from time to time and society to society
 Violative of natural justice will not be enforced or
given effect to.
 Foreign contacts violative of English ideas of morality
Public policy
 It should be narrowly construed.
 J. Cardozo: the courts are not free to refuse to enforce a
foreign right at the pleasure of the judges, to suit the
individual notion of expediency or fairness.
 They do not close their doors unless help would violate
some fundamental principle of justice, some prevalent
conceptions of good morals, some deep-rooted
tradition of the common weal.
 Loucks v. Standard Oil Co 224 NY 99.
Public policy
 Kuwait Airways Corporation v. Iraqi Airways, (2002) AC
883.
 ‘Power to disregard a provision of foreign law must be
exercised exceptionally and with the greatest
circumspection.’
 Foreign Awards (Recognition And Enforcement) Act 1961
refuse to enforce foreign awards violates Indian public
policy, justice or morality.
 Shahnaz v. Rizwan, (1965) 1 Q.B. 390. – polygamous
marriage - domiciled Indian Muslims – wife entitled to
entire dower on dissolution of marriage-contract can be
enforceable in India.
Summary
 The case concerned a polygamous marriage governed by Muslim law. The
couple hailed from India. The issue was whether the wife could ask the Court to
enforce a term of the marriage contract which stipulated the payment by the
husband to the wife of a deferred Mahr in the event of his divorcing her. This
clause was enforceable under Muslim law.
The Court treated this provision purely as a contractual term. The fact that the
contractual term owed its existence to the couple’s polygamous marriage was
not treated as a bar to enforcement.
The Court did not have jurisdiction to make post-divorce financial
arrangements at the time of the decision, given the polygamous nature of the
marriage. This followed from its jurisprudence on polygamy. It was important
not to classify the Mahr as some form of ancillary relief (say, in today’s practice,
the provision of a lump sum, which seems to be the Mahr’s approximate
function) although the case itself preceded the development of lump sum
awards by English courts. This was because the courts had established that it
was contrary to public policy to enforce rights under polygamous unions.
Public policy
 Matrimonial Proceedings (Polygamous Marriages) Act
1972 recognizes marriages in England.
 Recognition of Divorces and Legal Separation Act,
1972.
 Court refuse to enforce the Foreign Awards Act 1961, on
the ground that the award violated Indian public
policy.
 Renusagar Power Co. Ltd v. General Electric Co. AIR
1994, SC 860.
Other countries – public policy
 If money lent in a country where gambling was legal, it
can be recovered in an English court – Saxby v. Fulton
[1909] 2 KB 208.
 Foreign law which offends human rights would not be
accepted in England.
 Law which is disregard of international law will not be
recognised.
 Marriage by proxy – recognised in Argentina – lex loci
celebrationis – not opposed to English public policy.
India
 Foreign takeover regulations: French subsidiary-
Indian company – French law will apply. - Technip SA
v. SMS Holding (Pvt) Ltd.
 Disability from succession: - no person can benefit
from a crime committed by him.
 foreign revenue laws cannot be enforced in India.
Cases
 Chenni v. Chenni, (1965)
 Marriage between uncle and niece
 Contrary to public policy
 Prejudicial to international relations.
Foreign revenue laws
Income Tax, custom duty, stamp duty, municipal
contribution, capital gains tax etc.
Government of India v. Taylor, (1955) A.C. 491
Tax gathering is not a matter of contract but of authority
and administration as between the state and those
within its jurisdiction.
Foreign Penal Laws
 Criminal law
 Confiscatory law was considered as penal law
 Money claims are not penal, remedial in nature and
can be enforced
 Huntington v. Attrill, (1893) AC 150.
 It is the law of the forum to decide whether the law is
penal or remedial in nature.
Domicile
 In personal matters, lex patrie is the governing law in
the civil law countries.
 Lex domicilli is the governing law in common law
countries.
 Absurd results.
 Domicile and citizenship –
 Person’s civil rights – political status.
Domicile
 Root of the concept is the permanent home.
 Intend to make that place his permanent home is
important.
 If he is never stayed in that place – not domiciled.
 Dual citizenship but only one domicile.
 Domicile attaches to a place or a country or a part of a
country.
 Place of birth - If the person is born in India – Indian
personal law.
Domicile
 If a suit is filed in Italian court for the succession to the
property of an Indian who died domiciled in Italy.
 Italian Private International Law – Italian court
decides the case on the basis of nationality of the
deceased.
 If the suit is filed in the Indian court, the Indian court
will decide the case on the basis of Italian law – the law
of domicile of the deceased.
Cases
 Re Samara
 Re O’Keefe.
 Protagonist of nationality : P.S. Mansini – speech
delivered in the University of Turin – 1851.
 Marriage in India – domicile – Technip SA v. SMS
Holding (p) Ltd (2005) 5 SCC 465.
 There can be only one domicile in India – Pradeep Jain
v. UOI, AIR 1984 SC 1420.
 Indian Succession Act, 1925.
Indian Succession Act, 1925.
 5. Law regulating succession to deceased person's
immoveable and moveable property, respectively.
-(1) Succession to the immoveable property in
3*[India] of a person deceased shall be regulated by
the law of 3*[India], wherever such person may have
had his domicile at the time of his death.
 (2) Succession to the moveable property of a person
deceased is regulated by the law of the country in
which such person had his domicile at the time of his
death.
Illustration
 A, having his domicile in 1*[India], dies in France,
leaving moveable property in France, moveable
property in England, and property, both moveable and
immoveable, in 1*[India].
 The succession to the whole is regulated by the law of
1*[India].
Illustration
 A, an Englishman, having his domicile in France, dies
in 1*[India], and leaves property, both moveable and
 The succession to the moveable property is regulated
by the rules which govern, in France, the succession to
the moveable property of an Englishman dying
domiciled in France, and the succession to the
immoveable property is regulated by the law of
1*[India].
Indian Succession Act
 6. One domicile only affects succession to
moveables..-A person can have only one domicile
for the purpose of the succession to his moveable
property.
 Legitimate child - At the time of the birth of A, his
father was domiciled in England. A's domicile of origin
is in England, whatever may be the country in which
he was born.
 Illegitimate - The domicile of origin of an illegitimate
child is in the country in which, at the time of his
birth, his mother was domiciled.
 9. Continuance of domicile of origin.-The
domicile of origin prevails until a new domicile has
been acquired.
 10. A man acquires a new domicile by taking up his
 fixed habitation in a country which is not that of his
domicile of origin.
India
 Movables – his domicile
 Immovable's – law of India
 Indian Succession Act, 1925 – S.6 – 18
 Constitution of India – Article 5
 Whose parents are born in India.
 Who had been ordinarily resident in India for at least 5
years before the commencement of the constitution.
 Indian courts uses the Indian Succession Act for the
interpretation of the articles of Constitution.
Domicile of origin
 Common law – persons at birth.
 Father- legitimate
 Mother – illegitimate
 Domicile of origin remains the same until obtains a
domicile of choice.
India
 Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160.
 Child – domicile of father – legitimate – Mother – illegitimate.
 DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334.
 Central Bank of India v. Ram Narain, AIR 1955 SC 36 – intention to
reside for a long period.
 25 years residence in India did not suffice – Jopp v. Wood – intention to
return to Scotland.
 Yogesh Bharadwaj v. State of UP, AIR 1991 SC 356
 The domicile of origin can be transmitted through several generations
on member of which has ever resided for any length f time in the
country of the domicile of origin.
Wife
 Common law - Domicile of husband.
 Changed by law in 1973 in England
 India - Follows common law
 Widow – remains of her late husband unless she
changes it.
Domicile of choice
 Actual residence in pace with an intention to reside
permanently or indefinitely in that place.
 Inland Revenue Commissioner v. Bullock, [1976] 1 WLR
1178.
 Intention to make a place his permanent home.
 Length of residence is only a factor.
 Married a local woman or his wife and children with
him.
 Established a business in a place
 Matrimonial in a place is an important factor.
India
 Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764.
 Thomas Edmund Teighmouth Shore v. Hugh Carcy
Morgan (1935) ILR 62 Cal 869. – missionary who live
60 years in India and died in India – acquired domicile
of choice in India.
Thank you
Domicile
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
9/14/2010 KDR/IIT KGP/RGSOIPL-2010 1

Domicile
 In personal matters, lex patrie is the governing law in
the civil law countries.
 Lex domicilli is the governing law in common law
countries.
 Absurd results.
 Domicile and citizenship –
 Person’s civil rights – political status.

Domicile
 Root of the concept is the permanent home.
 Intend to make that place his permanent home is
important.
 If he is never stayed in that place – not domiciled.
 Dual citizenship but only one domicile.
 Domicile attaches to a place or a country or a part of a
country.
 Place of birth - If the person is born in India – Indian
personal law.

Domicile
 If a suit is filed in Italian court for the succession to the
property of an Indian who died domiciled in Italy.
 Italian Private International Law – Italian court
decides the case on the basis of nationality of the
deceased.
 If the suit is filed in the Indian court, the Indian court
will decide the case on the basis of Italian law – the law
of domicile of the deceased.

Cases
 Re Samara
 Re O’Keefe.
 Protagonist of nationality : P.S. Mansini – speech
delivered in the University of Turin – 1851.
 Marriage in India – domicile – Technip SA v. SMS
Holding (p) Ltd (2005) 5 SCC 465.
 There can be only one domicile in India – Pradeep Jain
v. UOI, AIR 1984 SC 1420.
 Indian Succession Act, 1925.

Indian Succession Act, 1925.
 5. Law regulating succession to deceased person's
immoveable and moveable property, respectively.
-(1) Succession to the immoveable property in
3*[India] of a person deceased shall be regulated by
the law of [India], wherever such person may have had
his domicile at the time of his death.
 (2) Succession to the movable property of a person
death.

Illustration
 A, having his domicile in 1*[India], dies in France,
leaving movable property in France, moveable
property in England, and property, both moveable and
immoveable, in [India].
 The succession to the whole is regulated by the law of
1*[India].

Illustration
 A, an Englishman, having his domicile in France, dies
in 1*[India], and leaves property, both moveable and
 The succession to the movable property is regulated by
the rules which govern, in France
 succession to the immoveable property is regulated by
the law of 1*[India].

 6. One domicile only affects succession to
movables..-A person can have only one domicile for
the purpose of the succession to his moveable
property.
 Legitimate child - At the time of the birth of A, his
father was domiciled in England. A's domicile of origin
is in England, whatever may be the country in which
he was born.
 Illegitimate - The domicile of origin of an illegitimate
child is in the country in which, at the time of his
birth, his mother was domiciled.
Succession
 7. Domicile of origin of person of legitimate
birth.- The domicile of origin of every person of
legitimate birth is in the country in which at the time
of his birth his father was domiciled; or, if he is a
posthumous child, in the country in which his father
was domiciled at the time of the father's death.
 Illustration
 At the time of the birth of A, his father was domiciled
in England. A's domicile of origin is in England,
whatever may be the country in which he was born.

Succession
 8. Domicile of origin of illegitimate child.- The
domicile of origin of an illegitimate child is in the
country in which, at the time of his birth, his mother
was domiciled.

 9. Continuance of domicile of origin.-The
domicile of origin prevails until a new domicile has
been acquired.
 10. A man acquires a new domicile by taking up his
 fixed habitation in a country which is not that of his
domicile of origin.

Succession
 10. Acquisition of new domicile.- A man acquires a
new domicile by taking up his fixed habitation in a
country which is not that of his domicile of origin.
 Explanation.- A man is not to be deemed to have
taken up his fixed habitation in India merely by reason
of his residing there in the civil, military, naval or air
force service of Government, or in the exercise of any
profession or calling.

Succession
 11. Special mode of acquiring domicile in India.-
Any person may acquire a domicile in India by making
and depositing in some office in India, appointed in
this behalf by the State Government, a declaration in
writing under his hand of his desire to acquire such
domicile; provided that he has been resident in India
for one year immediately preceding the time of his
making such declaration.

India
 Movables – his domicile
 Immovable's – law of India
 Indian Succession Act, 1925 – S.6 – 18
 Whose parents are born in India.
 Indian courts uses the Indian Succession Act for the
interpretation of the articles of Constitution.

Domicile of origin
 Common law – persons at birth.
 Father- legitimate
 Mother – illegitimate
 Domicile of origin remains the same until obtains a
domicile of choice.

India
 Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160.
 Child – domicile of father – legitimate – Mother –
illegitimate.
 DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334.
 Central Bank of India v. Ram Narain, AIR 1955 SC 36 –
intention to reside for a long period.
 Yogesh Bharadwaj v. State of UP, AIR 1991 SC 356
 The domicile of origin can be transmitted through several
generations on member of which has ever resided for any
length f time in the country of the domicile of origin.

Wife
 Common law - Domicile of husband.
 Changed by law in 1973 in England
 India - Follows husband’s
 Widow – remains of her late husband unless she
changes it.

India
 Section 15 : Domicile Acquired by woman on marriage
- By marriage a woman acquired the domicile of her
husband, if she had not the same domicile before.
 Section 16: Wife's domicile during marriage - A wife's
domicile during her marriage follows the domicile of
her husband.
 Exception - The wife's domicile no longer follows that
of her husband if they are separated by the sentence of
a competent Court, or if the husband is undergoing a
sentence of transportation.

Domicile of choice
 Actual residence in pace with an intention to reside
permanently or indefinitely in that place.
 Inland Revenue Commissioner v. Bullock, [1976] 1 WLR
1178.
 Intention to make a place his permanent home.
 Length of residence is only a factor.
 Married a local woman or his wife and children with
him.
 Established a business in a place
 Matrimonial in a place is an important factor.
India
 Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764.
 Thomas Edmund Teighmouth Shore v. Hugh Carcy
Morgan (1935) ILR 62 Cal 869. – missionary who live
60 years in India and died in India – acquired domicile
of choice in India.

Indian SC
 Domicile is a mixed question of law and fact and there is
perhaps no chapter in the law that has from such extensive
discussion received less satisfactory settlement.
 There is no doubt attributable to the nature of the subject,
including as it does, inquiry into tie animus of persons who
have either died without leaving any clear record of their
intentions,
 but allowing them to be collected by inference from acts
often equivocal; or who, being alive and interested, have a
natural tendency to give their bygone feelings a tone and
colour suggested by their present inclinations. See Bell v.
Kennedy (1868) L.R. 1 Se & Div. 30",
Cheshire
 One has to consider the tastes, habits, conduct,
actions, ambitions, health, hopes and projects of a
person because they are all considered to be keys to his
intention to make a permanent home in a place
 See the Speech of Lord Atkinson in Winens v. A.G.
1904 A.C. 287.

General rule
 First, no person can be without a domicile. It is well
established that everyone must have a domicile.
 A person cannot choose to be without a domicile, even
though he can choose to change his domicile.
 Every independent person must have a domicile,
either of origin or of choice.
 Secondly, no person can at the same time for the same
purpose have more than one domicile.
 Thirdly, an existing domicile is presumed to continue
until it is proved that a new domicile has been
acquired.
Domicil
 The burden of proving a change of domicile rests with
the person asserting such a change.
 Fourthly, the courts in a specific country will apply
local law in determining a person's domicile.

Nationality and domicile
 Nationality represents a person’s political status
 Domicil represents his civil status
 Nationality yield a predictable law
 Domicile yields an appropriate but frequently an
unpredictable law.
 Habitual residence or ordinary residence
 Physical presence with some degree of continuity.
 R v. Barnet London Borough Council, ex p shah, 1983.
 Settled for his ordinary purposes.

O’Keefe case
 British national
 Lived in Naples for 37 years – domicile - Italy
 Died in Naples
 Domicile of origin was Eire
 Succession of movable property in England
 There was no law relating to succession – applied the
law of Eire – domicile of origin

1951 Hague conference
 In any suit, if there is any conflict between the laws of
two countries,
 One to nationality and on to domicile
 1. Then the court would apply the domestic law of the
domicile of the person concerned.
 2. if there is a conflict between the laws of two
countries both of which adhere to principle of
domicile, then the domestic law of the country of the
domicile of the person concerned would apply.

Hague principles
 3. if there is a conflict between two countries following
the principle of nationality then the law of the
nationality of the person concerned would apply.
 1960 – Hague conference – which the deceased had
closest contact.
 Accepted in 1960 Convention on guardianship and
 1964 convention on Adoption
 Intention to live permanently and indefinitely.

Indian and English law
 No person be without a domicile – Udny v. Udny, 1869.
 No person can have simultaneously two domiciles
 Domicile denoted the connection between a person
and a territorial system of law.
 The presumption is always in favour of continuance of
an existing system of law.

Domicile of origin
 Acquired by operation of law
 Legitimate son-father
 Illegitimate – mother
 Married – Matrimonial Proceedings Act, 1973
 Sankaran Govindan Case
 Re O’ Keefe

Domicile of choice
 Acquisition of a fresh domicile are residence and
intention.
 Residence in the country of domicile of choice.
 Intention to live permanently.
 Physical presence in that country as an inhabitant of it.
 Intention can be inferred

India
 In India, a person's domicile of origin prevails until he
acquires a new domicile.
 If a person is not insane, on reaching eighteen years of
age he may acquire a domicile of choice in a country by
fulfilling two conditions: residence in the country
concerned and intention to live there permanently.
 Section 10 of the Indian Succession Act 1925 provides
that a person acquires a new domicile by taking up his
fixed habitation in a country which is not his domicile
of origin.

Choice
 Jopp v. Wood, (1865) – it was held that a residence of
25 years in India did not suffice to give an Indian
domicil
 His intention was to return to Scotland, his birth
place.
 If there is more than one residence – chief residence –
Plummer v. IRC, (1988) 1 All ER 97.

India
 It was held by the Supreme Court of India in Central
Bank of India v Ram Narayan, 1955 SC 36.
 even though the defendant had the intention to move
to India, he was still domiciled in Pakistan before he
actually come to India.
 The period of residence need not be long, and brief
residence will not necessarily negative the possibility
of acquiring a domicile.

India
 Michael Anthony Rodrigues v. State of Bombay, 1956.
Bom. 729.
 1918 – Goan nationality came to Bombay in 1927.
 Tailoring business – 40 years.
 Michael never visited Goa.
 Joined Royal Indian Armed Forces in 1946
 He acquired the domicile of choice in Bombay and
abandoned the Goan domicile or origin.

Intention
 The required intention is to reside in a country
permanently or for an unlimited time.
 The intention must be fixed but not fickle, and must
also be directed towards one particular country.
 A person's intention can be gathered from all the
events and circumstances of his life.

Intention
 Kedar Pande v Narayan Bikram Shah 1966 SC 160.
 Whether Shah domiciled in India in 1949
 Father – Nepal
 Born in Banaras – educated in India
 Mansions built by his father in 1938
 1949 – Indian passport issued
 Partition suit in 1982
 Contested 1957 elections to Ram Nagar Grama
Panchayat – acquired the domicile of India

Employment
 The intention to reside permanently or for an
unlimited time in a country must be made voluntarily.
 A person is not deemed to have taken up his fixed
habitation in India merely because of residing there in
the civil, military, naval or air force service or in the
exercise of any profession or calling.
 Explanation to Section 10 of the Indian Succession Act
1925.

Abandoning
 Where a person stops residing in the country of the
domicile of choice and has no intention to reside there
indefinitely, he abandons his domicile of choice.
 Mere intention to abandon, or mere residence in
another country, will not suffice.
 The concept of revival of domicile of origin does not
apply in India since a person's domicile continues until
he acquires another one or his former domicile
resumes.

Jurisdiction of Courts

Who can file suits?
 England - Subjects as well as foreigners, and body
corporate in England or outside?
 Enemy aliens – cannot file suit
 A foreigner can file a suit in India – Nizamuddin v
Husseini AIR 1960 MP 212.
 A Pakistani can file a suit once the war is over –
Gyasuddin v Allah Tala Wakf Mausuma AIR 1986 All.
39.
 An enemy alien permitted by the government to stay in
India can file a suit.
Immunity
 Sovereigns
 Theory of absolute immunity –
 The Cristina, [1938] AC 485 – damages cannot be
recovered from a foreign sovereign.
 Governmental corporations are also immune.
 Modern theory – Restricted immunity
 Acta jure imperri – acts of a sovereign state
 Acta jure gestionis – acts of a commercial nature.

Jurisdiction
 Nationality – civil law countries
 Domicile – common law countries
 Against whom an action can be filed
 Who can file an action.
 What type of action may be filed.

Actions against whom?
 Actions inter partes – action in personam.
 Payment of damages, breach of contract, tort, action
for recovery of debt.
 If the defendant is present within the jurisdiction.
 When the court assumes jurisdiction against an
absentee defendant.
 When the defendant submits to the jurisdiction.

Civil Procedure Code 1907
 S.15 - Every suit shall be instituted in the Court of the
lowest grade competent to try it.
 16. Suits shall be instituted in the Court within the local
limits of whose jurisdiction the property is situate.
 Suit can be filed either in the court within whose
jurisdiction the property situated or the defendant actually
and voluntarily resides or carries on business.

 17. Suits for immovable property situate within
jurisdiction of different Courts.
Where a suit is to obtain relief respecting, or
compensation for wrong to, immovable property
situate within the jurisdiction of different Court,
the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of
the property is situate

CPC
 18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain.
Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable
property is situate, any one of those Courts may,
 if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to
entertain and dispose of any suit relating to that property,
 and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction

CPC
 19. Suits for compensation for wrongs to person or
movables.
 Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and
the defendant resides,
 or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court,
 the suit may be instituted at the option of the plaintiff in
either of the said Courts.

S.20
 Other suits to be instituted where defendants
reside or cause of action arises.
 the defendant, or each of the defendants where there
are more than one, at the time of the commencement
of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain.
 the cause of action, wholly or in part, arises.

S.83
 Alien - Every person residing in a foreign country,
 the Government of any country which is at war with
India and carrying on business in that country without
a licence in that behalf granted by the Central
Government,
 shall, for the purpose of this section, be deemed to be
an alien enemy residing in a foreign country.

S.84 foreign state – Immunity
 A foreign State may sue in any competent Court:
Provided that the object of the suit is to enforce a

private right vested in the Ruler of such State or in any
officer of such State in his public capacity.

S.86
 86. Suits against foreign Rulers, Ambassadors and
Envoys.
No foreign State may be sued in any Court otherwise
competent to try the suit except with consent of the
Central Government certified in writing by a Secretary
to that Government:
 Provided that a person may, as a tenant of immovable
property sue without such consent as aforesaid 2[a
foreign State] from whom he holds or claims to hold
the property.

Immunity
 No foreign state head or ambassadors or high
commissioners or diplomatic personnel can be
arrested under the CPC.
 Immunity did not extend to insolvency proceedings.
 It does not applicable to probate proceedings.
 Immunity extends to trading activities.
 Rent suit is not immune from CPC.
 Foreign states and diplomats enjoy exemption from
taxation.

Thank you

Jurisdiction of courts
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
Jurisdiction
 Territorial jurisdictions
 National law
 Principle of allegiance – all citizens owe allegiance to
their state and it is their duty to obey its laws and
orders wherever they might be.
 Nationality is the basis of jurisdiction in civil law
countries.
 Domicile – commonwealth countries
 Foreign sovereigns, personnel of the diplomatic
missions and international organizations.
English law
 English court have jurisdiction if the defendant is
served with process.
 Irrespective of he is a foreigner or was casually present
in England.
 Even a tourist in transit
 - when the defendant is present within the jurisdiction
 - when the court assumes jurisdiction against an
absentee defendant.
 - when the defendant submits to the jurisdiction.
Early case
 Gurdial Singh v. Raja of Faridkot, (1894) 22 Cal. 222.
 The Privy Council held that: ‘being properly territorial and
attaching, with certain restrictions, upon every person
permanently or temporarily resident within the territory,
does not follow a foreigner, after his withdrawal thence,
and living in another state.
 Nor to the courts of state in which the cause of action has
arisen, nor in cases of contract to those of the locus
solutionis, should resort be hard by the plaintiff, but to the
courts of the state in which the defendant resides, the
courts of the latter state having jurisdiction in all personal
actions.
In that case, A filed a suit against B in the court of the Native State of
Faridkot, claiming Rs. 60,000 alleged to have been misappropriated by B,
while he was in A's service at Faridkot. B did not appear at the hearing, and
an ex parte decree was passed against him. B was a native of another
Native State Jhind. In 1869, he left Jhind and went to Faridkot to take up
service under A. But in 1874, he left A's service and returned to Jhind. The
present suit was filed against him in 1879; when he neither resided at
Faridkot nor was he domiciled there. On these facts, on general principles
of International Law, the Faridkot court had no jurisdiction to entertain a suit
against B based on a mere personal claim against him. The decree passed
by the Faridkot court in these circumstances was an absolute nullity. When
A sued B in a court in British India, against B on the judgment of the
Faridkot court, the suit was dismissed on the ground that Faridkot court has
no jurisdiction to entertain the suit. The mere fact that the embezzlement
took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot
court would have had complete jurisdiction to entertain the suit and to pass
a decree against him.
Jurisdiction
 Action lies in the court within whose jurisdiction the
defendant resides and if the defendant has left the
jurisdiction the court cannot try the suit even if the
cause of action arose within the jurisdiction.
Rule of territoriality
 Private International Law same as that of in England.
 Kasinath v. Anant, (1899) Bom. 407
 Recovery of share on the profits from a property
outside its jurisdiction.
 Defendant also residing outside the jurisdiction.
 No jurisdiction to entertain the suit according to CPC.
.
Early positions
 239. Srinivas v. Venkata Varda Ayyangar, (1906) 29
Mad.
 Defendant was in Madras to practice as an apprentice
to a Vakil of the High Court.
 At the time of suit he was within the jurisdiction of the
court.
 ‘resident or present in the country’ at the time of suit.
 Mere presence of the defendant is sufficient.
Pvt. Int.n. law
 Patna High Court observed that ‘the court has no
jurisdiction to entertain a suit against a foreigner who
did not permanently or temporarily reside within its
jurisdiction or who had not submitted to its
jurisdiction.
 Suresh Narayan Sinha v. Akhauri Balbhadra Prasa, 1957
Pat. 256.
 Indian courts have jurisdiction if the cause of action
partly or wholly arises in India.
Who can file suits?
 England - Subjects as well as foreigners, and body
corporate in England or outside?
 Enemy aliens – cannot file suit
 A foreigner can file a suit in India – Nizamuddin v
Husseini AIR 1960 MP 212.
 A Pakistani can file a suit once the war is over –
Gyasuddin v Allah Tala Wakf Mausuma AIR 1986 All.
39.
 An enemy alien permitted by the government to stay in
India can file a suit.
Jurisdiction
 Nationality – civil law countries
 Domicile – common law countries
 Against whom an action can be filed
 Who can file an action.
 What type of action may be filed.
Submission to jurisdiction
 Express agreement or by conduct
 Conduct: voluntarily appears as a defendant.
 Foreigner defendant files an affidavit and appears
through counsel to argue the case on merit.
 When the foreigner-defendant moves to set aside a
default judgment.
 Carrying on business in England is amount to
submission of jurisdiction.
 Submission by contract – express not implied.
Indian law
 If the person is outside its territories, the court will
have jurisdiction only when if he submits to the
jurisdiction of the court.
 If the judgment delivered in his absence would be null
and void.
 Appearing in the court and pleading the case is
sufficient – Ramanathan chetiar v. Kali Muthu Pillai,
(1914) 37 mad.
 Bahrein Petroleum Co. Ltd. v. P.J. Pappu, 1966 SC 634 –
continued participation in litigation.
Jurisdiction
 Fernandes v. Ray, 21 Bom. 373. –
 Political agent of Kolhapur State
 On the way to London – stayed in Bombay for 5 days
 Whether 5 days stay confer jurisdiction on the court.
 If the process is served on him – court have the
jurisdiction.
Actions against whom?
 Actions inter parties – action in personam.
 Payment of damages, breach of contract, tort, action
for recovery of debt.
 If the defendant is present within the jurisdiction.
 When the court assumes jurisdiction against an
absentee defendant.
 When the defendant submits to the jurisdiction.
Common law
 If the cause of action, fully or partly within the
jurisdiction of the court.
 Jurisdiction in personam – even the court can exercise
jurisdiction in the absence of defendant.
Civil Procedure Code 1908
 S.15 - Every suit shall be instituted in the Court of the
lowest grade competent to try it.
 16. Suits shall be instituted in the Court within the local
limits of whose jurisdiction the property is situate.
 Suit can be filed either in the court within whose
jurisdiction the property situated or the defendant actually
and voluntarily resides or carries on business.
 Wrong done to person or movables – whose jurisdiction
the wrong was done, or the defendant actually and
voluntarily resides or carries on business or personally
works for gain.
 17. Suits for immovable property situate within
jurisdiction of different Courts.
Where a suit is to obtain relief respecting, or
situate within the jurisdiction of different Court,
the suit may be instituted in any Court within the
local limits of whose jurisdiction any portion of
the property is situate
CPC
 18. Place of institution of suit where local limits of
jurisdiction of Courts are uncertain.
Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable
property is situate, any one of those Courts may,
 if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to
entertain and dispose of any suit relating to that property,
 and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction
CPC
 19. Suits for compensation for wrongs to person or
movables.
 Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and
the defendant resides,
 or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court,
 the suit may be instituted at the option of the plaintiff in
either of the said Courts.
S.20
 Other suits to be instituted where defendants
reside or cause of action arises.
 the defendant, or each of the defendants where there
are more than one, at the time of the commencement
of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain.
 the cause of action, wholly or in part, arises.
 Rule 20 – substituted service.
 Rule 26 – service of summons through political agents.
S.20
1. When the permanent or temporary residence of the
defendant is within the jurisdiction,
2. If the defendant is engaged in some business within
the jurisdiction,
3. If the defendant is working for gain within the
jurisdiction,
4. If the cause of action, wholly or in part, arises within
the jurisdiction.
Carries on business
 Frontier Bank v. Smt. Prakash Wati Bahl, ILR 1950
Punjab.
 Deposited money at Dera Ismail Khan, headquarters –
Pakistan.
 Transfer to Delhi Branch failed.
 Explanation II to S. 20 C.P.C.
 H. Ahmed & Co. v. Kohinoor Glass Factory Ltd. 1961
A.P. 470 (F.B).
 If the defendant carry on business, jurisdiction to
entertain the suit.
Cause of action
 Gurudayal Singh v. Raja of Faridkot, (1894) 22 cal. 222.
 Action lies in the court within whose jurisdiction the
defendant resides and if the defendant has left the
jurisdiction the court cannot try the suit even if the
cause of action arose within the jurisdiction.
 Patna High Court held that the court has no
jurisdiction to entertain a suit against a foreigner who
did not permanently or temporarily reside within its
jurisdiction or who had not submitted to its
jurisdiction.
Contract
 ABC Laminart Pvt Ltd v. AP Agencies, Salem AIR 1989
SC 1239.
 Contract was made
 Was to be performed
 Money under it was payable
 Where the breach occurred
 If a defendant not resident in India had submitted to
the jurisdiction of the court.
 Admiralty jurisdiction
S.83
 Except alien enemy, all others ca file suit or
proceedings in an Indian Court.
 An alien friend may sue in any Indian court.
 An alien enemy residing in a foreign country cannot
sue in Indian courts.
 An alien enemy residing in India with the permission
of the Government of India can sue – Angelina v.
Joseph George Reittsteck, 1917 All. 374.
S.84 foreign state – Immunity
 A foreign State may sue in any competent Court:
Provided that the object of the suit is to enforce a

private right vested in the Ruler of such State or in any
officer of such State in his public capacity.
 Rahimatoola v. Nizame of Hyderabad, (1958) A.C. 379.

S.86
 86. Suits against foreign Rulers, Ambassadors and
Envoys.
No foreign State may be sued in any Court otherwise
competent to try the suit except with consent of the
Central Government certified in writing by a Secretary
to that Government:
 Provided that a person may, as a tenant of immovable
property sue without such consent as aforesaid 2[a
foreign State] from whom he holds or claims to hold
the property.
Consent of Central Government
 Consent of the Central Government is mandatory –
S.86(3).
 Such consent can only be granted according to S.86(2).
 No consent can be refused without giving a reasonable
opportunity to the applicant.
 The Government should show cogent reason for
refusing permission.
 Consent must be obtained before the institution of the
suit.
Exceptions
 Immunity does not extend to
 award under Arbitration,
 proceedings under labour laws
 insolvency proceedings
 Probate proceedings
 Recovery of rent
 Rulers of Indian states are not exempted from income
tax.
Immunity
 No foreign state head or ambassadors or high
commissioners or diplomatic personnel can be
arrested under the CPC.
 Diplomatic persons.
 Immunity not extends to trading activities.
 Rent suit is not immune from CPC.
 Foreign states and diplomats enjoy exemption from
taxation.
Immunity
 Sovereigns
 Theory of absolute immunity –
 The Cristina, [1938] AC 485 – damages cannot be
recovered from a foreign sovereign.
 Governmental corporations are also immune.
 Modern theory – Restricted immunity
 Acta jure imperri – acts of a sovereign state
 Acta jure gestionis – acts of a commercial nature.
Cases
 Rahimtoola v. Nizam of Hyderabad, (1958) AC 397.
 The principle of sovereign immunity is not founded on
any technical rules of law. It is founded on broad
considerations of public policy, international law and
comity.
 The Christina, (1938) AC 485 – The courts of the
country will not impeach a foreign sovereign.
 Immunity is not granted if the state is not recognised.
Foreign sovereign
 Person and property.
 Mighell v. The Sultan of Johore, (1894)
 Indian provisions 84-87A.
 Recognition de facto or de jure has the same effect,
German Democratic Republic v. Dynamic Industrial
Undertaking Ltd., 1972 Bom. 27.
 Prior permission under S.86 is mandatory for filing a
suit against an immune person under S.86.
Indian law
 Diplomatic Relations (Vienna Convention) Act, 1972.
 Act made on the basis of Vienna Convention on
Diplomatic Intercourse and Immunities of 1961.
 Vienna Convention of 1967 was included as an annex.
England
 State Immunity Act, 1978
 Act of commercial nature - no immunity
Hague Convention on Choice of
Court, 1965
Hague Convention, 1965
 Convention applies to agreements on the choice of a
court in civil and commercial matters.
 Nationality of the parties are irrelevant.
 Designated courts according to domestic law.
 Decisions of the chosen court must be recognised and
enforced in all contracting states.
 None of the common law countries are implemented
the Convention but follows the same principles.
 Members of the Convention - 0
Brussels Convention
Brussels Convention, 1968.
 EC Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters.
 Labour, torts and contract of employment are excluded.
 Maintenance cases are fell within the Convention.
 with the goal of increasing economic efficiency and
promoting the single market by harmonizing the rules on
jurisdiction and preventing parallel litigation.
 It does not include revenues, customs or administrative
matters.
Objective
 It set out uniform rules for the assumption of
jurisdiction by Member States in civil and
commercial cases.
 In addition, the Convention laid down uniform
rules relating to the recognition and enforcement
of civil and commercial judgments among the
Member States.
 Free circulation of judgments throughout the
Community.
Regulations
 Regulation 1346/200018 relating to insolvency proceedings;
 • Regulation 1347/200019 (commonly referred to as Brussels II) which
deals with jurisdiction over and the recognition and enforcement of
judgments in matrimonial matters and in matters of parental
responsibility for children of both spouses;
 Regulation 44/200120 which is concerned with jurisdiction over, and
the recognition and enforcement of judgments in civil and commercial
matters.
 This is a revised and updated version of the Brussels Convention that
replaces the 1968 original.
Applicability
 The Brussels Regime covers legal disputes of a civil or
commercial nature (article 1).
 Article 4 preserves the traditional rules for defendants who
are not domiciled in a member state.
 That is, if a defendant is domiciled elsewhere, then the
Regime does not apply and the national court hearing the
case is left to determine jurisdiction based on the
traditional rules otherwise governing such questions in
their legal system.
Domicile
 In general, it is the domicile of the defendant that
determines which of these instruments applies in a given
case.
 Article 52 of the Convention – courts of the
contracting parties have the jurisdiction to decide the
question of domicile.
 Mere presence of the defendant is not sufficient -
domicile.
 The Convention will apply only when a foreign
element is involved.
Sue in any Member country
 A Member can sue in another court of the Member.
 If the parties are brought case in different
jurisdictions, the first court will ceased of the matter.
 The Tatry Case – EU Court of Justice – ‘the second
court must decline jurisdiction only to the extent of
the proceedings and parties before it.’

Jurisdiction under Lugano Convention, 1988
 Lugano Convention on Jurisdiction and Enforcement
of Judgments.
 6 members of the EC trading partners of European
Free Trade Association (EFTA).
 Members: UK, Denmark, Iceland, Norway,
Liechtenstein , Sweitzerland,
 Civil and commercial matters.
 Defendant is domiciled in EC.
 Lugano Convention is parallel to the Brussels
Convention.
Convention
 It is a parallel and amended version of the Brussels
Convention.
 If the defendant is domiciled on any contracting state,
have the jurisdiction.
 Any EC Member state is a party to Brussels
Convention, it will apply in matters of jurisdiction.
 If the defendant is domiciled in an EFTA Contracting
State, Lugano Convention will apply.
Convention on choice of court
agreements, 2005
Application
 Parties – Singed – EU, US
 Ratified – Mexico
 Convention shall apply in international cases to
exclusive choice of court agreements concluded in civil
or commercial matters.
 Recognition and enforcement of foreign judgments
India
 Hague Conference eon Private International Law since
2008.
1. Convention of 5 October 1961 Abolishing the
Requirement of Legalisation for Foreign Public
Documents [12]
2. Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or
Commercial Matters [14]
3. Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters [20]
4. Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption [33]
Thank you
Foreign Judgments
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2010 1
Theories of recognition of J.
 Theory of comity
 No foreign judgment can be recognised unless there is
reciprocity.
 Lot of practical problems.
 Obligation theory - adjudication by a foreign court
becomes a legal obligation, which can be enforced in
any country.
 Doctrine of obligation – no problem of reciprocity.
Other theories
 Grounds of judicial reason or ideas of social value or
both.
 Every judgment must be recognised in the interest of
justice.
 Theory of acquired rights – since the foreign judgment
implies an acquisition of a right, it should be enforced.
Enforcement
 English courts have been enforcing foreign judgments
from the seventeenth century.
 Early decisions have favoured the theory of comity.
 Later the court supported the theory of obligation.
 Early cases a foreign judgment was treated as a
primary evidence of rights and liabilities of the parties.
 Bur in 1870 – HL – held that a foreign judgment of a
court of competent jurisdiction was conclusive and
could not be re-examined on merits.
England
 A plaintiff who had obtained a judgment from a
foreign court has the option either to bring an action
on the foreign judgment or to sue on the original cause
of action.
 First judgment will be merely treated as a primary
evidence of tights and liabilities of the parties.
 Godard v. Grey (1870) 6 QB 139. - foreign judgment of a
court of competent jurisdiction was conclusive and
could not be re-examined on merits.
Foreign judgment
Recognition in India
 S.13 of CPC
 Indian courts absorbed the comity theory and
obligation theories to be the basis of the enforcement
of foreign judgments.
 J. Shah in Viswanathan v. Abdul Wazid, 1963 SC 1 –
held that ‘though the rules of private international law
are different in different countries, yet on the basis of
comity certain rules are applied practically by all the
countries.’
India
 Foreign judgments are recognized and enforced under
the statutory provision contained in the CPC.
 S.13 – ‘A foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between the
same parties or between parties under whom they or
any of them claim litigating under the same title.’
Exceptions
 a) where it has not been pronounced by a Court of
competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of 1[India] in cases in which
such law is applicable;
Exceptions
 (d) where the proceedings in which the judgment
was obtained are opposed to natural justice;
 (e) where it has been obtained by fraud;
 (f) where it sustains a claim founded on a breach

of any law in force in 1[India].
S.14 – presumption
 The Court shall presume upon the production of any
document purporting to be a certified copy of a foreign
judgment that such judgment was pronounced by a
Court of competent jurisdiction,
 unless the contrary appears on the record;
 but such presumption may be displaced by proving

want of jurisdiction.
s.44 A
 ‘the decrees of foreign courts which can be executed
are the decrees of superior courts of a reciprocating
territory as if it is the decree of the court executing the
decree.
Indian law
 A foreign judgment creditor can bring an action on a
foreign judgment.
 Res – judicata can be applied in foreign judgments.
 Indian court cannot impeach a foreign judgment on
the ground of error on internal law or an error of fact
or procedural error.
 The foreign judgment should operate as res judicata in
the country where it has been delivered.
Competent jurisdiction
 The court must have the jurisdiction to deal the case.
 Gurdayal Singh v. Raja of Faridkote, (1894) AC 670.
 The PC held that ‘in a personal action… a decree
passed in absentem by a foreign court, to the
jurisdiction of which the defendant has not in any way
submitted himself is by international law an absolute
nullity.’
Judgments in personam
 Personal jurisdiction depends upon the right of the
court to summon the defendant.
 Jurisdiction of personal action depend upon the
presence of the defendant within the jurisdiction.
 Mallappa Yellappa v. Raghavendra Sham Rao, ILR
(1938) Bom. 16.
 6 cases in which foreign court may have jurisdiction:
 1. if the defendant is subject of the foreign country.
 2. if the defendant is served with the process while
temporary present within the foreign country.
Factors
 3. if the defendant is a resident in the foreign country
when action has begun against him.
 4. if the defendant in his character as plaintiff in the
foreign action has selected the forum where the
judgment was given against him.
 5. if the defendant voluntarily appeared before the
foreign court;
 6. If the defendant has contracted to submit to the
jurisdiction of the foreign court.
Action in rem
 A proceeding against a ship or other chattel in which
the plaintiff seeks either to have the res judicata to him
in property or possession, or to have it sold under the
authority of the court, and the proceeds, or part
thereof, adjudicated to him, in satisfaction of his
pecuniary claims.
 Taylor v. Judge of the Court of Registration.
Action in rem
 Judgments in rem are conclusive.
 Judgment in rem against tangibles – ship – admiralty
jurisdiction.
 Judgment of divorce is a judgment in rem –
controversial?
 A res is a tangible thing within the jurisdiction of the
court.
 A judgment in rem is a judgment under (a) possession
or property in a thing is adjudicated to a person,
 (b) the sale of a thing is decreed in satisfaction of a
claim againstKDR/IIT
the KGP/RGSOIPL-2010
thing itself. 18
In -Rem
 (c) the status is adjudicated upon, such as a decree of
nullity or divorce;
 (d) property is ordered to be sold by way of
administration in bankruptcy or on death.
 Difference: res – binds all persons claiming an interest
in the property inconsistent with the judgment even
though pronounced in their absence.
 In personam – merely determines the rights of
litigants inter se.
Rem
 Jurisdiction in rem accorded universal recognition,
even if the defendant is neither a resident of the
foreign country nor has submitted to the jurisdiction
of its courts.
Immovable property
Ex-parte decree
 Exparte decree of the foreign Court cannot be presumed to
be on merit by the aid of Section 114(e) of Evidence Act.
 Where ex parte judgment passed granting decree for
money but nothing indicated whether any documents were
looked into or whether merits of the case considered. Such
judgements will not be enforceable in India.
 For more details kindly visit:
 M/s International Woollen Mills Vs.M/s Standard Wool
(U.K.) Ltd. AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3)
Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 –
2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44)
All LR 354 – 2001 (3) All Mah LR 554
conclusiveness
 Where the judgment was not on merit and the
judgment was given ex parte only on the basis of
pleadings and documents of the plaintiff – Defense
filed before Hongkong Court not taken into
consideration –
 Held the judgment being not on merit did not have
force of law-
 For execution of such decree prior permission of
Central Govt. was necessary. AIR 1990 Bom.170 –
Algemene Bank Nederland NV Vs. Satish Dayalal
Choksi.
Merits
 A foreign judgment cannot be re-opened on merit to
its logical conclusion.
 S.13(b) of CPC – a foreign judgment shall not be
conclusive if it has not been given on the merits of the
case.
 Court cannot sit in appeal over a foreign judgment.
 Judgment must be on merit.
 A compromise judgment is not on merit –
GuidmetlaChnia v. Kota venkata Subba Rao, 1946 Mad.
296.
Judgment opposed to natural Justice
 A foreign judgment cannot be implemented if it is
contrary to natural justice.
 Defendant is not served with notice –
 Procedural irregularities
 Audi alteram partem
 Judge personally interested in the case
Divorce decree
 Foreign divorce decree where husband and wife were
Hindus and governed by Hindu Marriage Act.
 When suit for judicial separation and maintenance
was pending in Indian Court, husband obtained
decree of divorce from the Court in USA though wife
did not submit to the jurisdiction of USA, held, such
decree obtained by husband was not enforceable in
India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas
Aggarwal and Others]
Judgment opposed to Public Policy
 The court will decline to enforce a foreign judgment if
it is opposed to public policy.
 Foreign judgment awarding perpetual maintenance to
illegitimate child would not be enforced – Re
Macartney [1921] 1 Ch 522.
 Agreement obtained by undue influence.
 Judgment vitiated by fraud
Against Indian Law
 Acceptance of foreign judgement when not
contradictory to principle of law laid down by Indian
legislature.
 If such foreign judgement is contrary to Indian law it
will not be acceptable AIR 2003 Cal.105 Murari
Ganguly and others Vs.Kanailal Garai and others.
Indian constitution
 Article 261 – final judgments or orders delivered or
passed by the civil courts in any part of the territory of
India shall be capable of execution anywhere within
that territory according to law.
 Reciprocal enforcement of foreign judgments
(S.44A(1)]
 Foreign judgments can be executed only in District
courts.
Hague Convention
 The Hague Convention on the Recognition and
Enforcement of Judgments in Civil and Commercial
Matters, 1971.
Thank you
KD Raju
Direct execution of foreign decrees
 Ordinarily foreign decrees cannot be executed directly.
 To fie a suit for enforcement.
 Executed directly on the basis of reciprocity.
 Direct execution in certain cases
Indian courts
 From April 1, 1951 – CPC is applicable to all states of
the Indian Union.
 (A. 261 – 3) of the Indian Constitution provides “ Final
judgments or orders delivered or passed by civil courts
in any part of the territory of India shall be capable of
execution anywhere within that territory according to
law.”
 S.43 and 44 of CPC – (CPC Amendment, 1951) –
execution of decrees and orders of civil and revenue
courts.
S. 43, 44, and 45
 1. execution of decrees by Indian court.
 2. execution of decrees in any court formed by the
Indian court outside India.
 3. S.44-A - reciprocal enforcement of foreign decrees –
 Decrees of the superior courts of the United Kingdom
and other foreign countries with which India has
reciprocal arrangement.
 certified copy to be produced to the Indian court.
Foreign decrees
 Such a certificate will be conclusive proof .
 Can be executed in District Courts only S.44 A-1
Draft convention on the recognition and enforcement of foreign judgments in
civil and commercial matters
 Concluded 1 February 1971

 Entered into force 20 August 1979
 (1) the status or capacity of persons or questions of
family law, including personal or financial rights and
 obligations between parents and children or between
spouses;
 (2) the existence or constitution of legal persons or the
powers of their officers;
 (3) maintenance obligations, so far as not included in
sub-paragraph (1) of this Article;
Exceptions
 (4) questions of succession;
 (5) questions of bankruptcy, compositions or
analogous proceedings, including decisions which may
result therefrom and which relate to the validity of the
acts of the debtor;
 (6) questions of social security;
 (7) questions relating to damage or injury in nuclear
matters.
 This Convention does not apply to decisions for the
payment of any customs duty, tax or penalty.
Application
 A.3 - This Convention shall apply irrespective of the
nationality of the parties.
 A decision rendered in one of the Contracting States
shall be entitled to recognition and enforcement in
another Contracting State under the terms of this
Convention –
 (1) if the decision was given by a court considered to
have jurisdiction within the meaning of this
Convention, and
 (2) if it is no longer subject to ordinary forms of review
in the State of origin.
A.5
 Recognition refused in following cases:
 (1) if recognition or enforcement of the decision is
manifestly incompatible with the public policy of the
State of enforcement.
 (2) if the decision was obtained by fraud in the
procedural sense;
Res-judicata
 (3) if proceedings between the same parties, based on
the same facts and having the same purpose –
 a) are pending before a court of the State addressed
and those proceedings were the first to be instituted,
or
 b) have resulted in a decision by a court of the State
addressed, or
 c) have resulted in a decision by a court of another
State which would be entitled to recognition and
enforcement under the law of the State addressed.
A. 7
 Recognition or enforcement may not be refused for the
sole reason that the court of the State of origin has
applied a law other than that which would have been
applicable according to the rules of private
international law of the State addressed.
 Nevertheless, recognition or enforcement may be
refused if, to reach its decision, the court of the State
of origin had to decide a question relating either to the
status or the capacity of a party or to his rights in other
matters excluded from this Convention.
A.8
 there shall be no review of the merits of the decision
rendered by the court of origin.
 Jurisdiction A.9- In questions relating to the
jurisdiction of the court of the State of origin, the
authority addressed shall be bound by the findings of
fact on which that court based its jurisdiction, unless
the decision was rendered by default.
Jurisdiction – A.10
 The court of the State of origin shall be considered to
have jurisdiction:
 (1) if the defendant had, at the time when the
proceedings were instituted, his habitual residence in
the State of origin, or, if the defendant is not a natural
person, its seat, its place of incorporation or its
principal place of business in that State;
 a commercial, industrial or other business
establishment, or a branch office, and was cited there
in proceedings arising from business transacted by
such establishment or branch office;
Jurisdiction
 (3) if the action had as its object the determination of
an issue relating to immovable property situated in the
State of origin;
 (4) in the case of injuries to the person or damage to
tangible property, if the facts which occasioned the
damage occurred in the territory of the State of origin,
and if the author of the injury or damage was present
in that territory at the time when those facts occurred;
Jurisdiction
 (5) if, by a written agreement or by an oral agreement
confirmed in writing within a reasonable time, the
parties agreed to submit to the jurisdiction of the court
of origin disputes which have arisen or which may
arise in respect of a specific legal relationship, unless
the law of the State addressed would not permit such
an agreement because of the subject-matter of the
dispute;
Recognition and enforcement
 The party seeking recognition or applying for
enforcement shall furnish –
 (1) a complete and authenticated copy of the decision;
 (2) if the decision was rendered by default, the
originals or certified true copies of the documents
required to establish that the summons was duly
served on the defaulting party;
 (3) all documents required to establish that the
decision fulfills the conditions of sub-paragraph (2) of
the first paragraph of Article 4, and, where
appropriate, of the second paragraph of Article 4;
Procedure
 (4) unless the authority addressed otherwise requires,
translations of the documents referred to above,
certified as correct either by a diplomatic or consular
agent or by a sworn translator or by any other person
so authorized in either State.
A.14.
 The procedure for the recognition or enforcement of
foreign judgments is governed by the law of the State
addressed so far as this Convention does not provide
otherwise.
Resjudicata A.20
 If two States have concluded a Supplementary Agreement
pursuant to Article 21, the judicial authorities of either
State may dismiss an action brought before them
 or may stay such an action when other proceedings
between the same parties,
 based on the same facts and having the same purpose,
 are pending in a court of another State and these
proceedings may result in a decision which the authorities
of the State in which the first mentioned action was
brought would be bound to recognize under the terms of
this Convention.
Ratification
 Article 27
 This Convention shall be open for signature by the
States represented at the Tenth Session of the Hague
Conference on Private International Law and Cyprus,
Iceland and Malta.
 It shall be ratified and the instruments of ratification
shall be deposited with the Ministry of Foreign Affairs
of the Netherlands.
India is a party
 Statute of the Hague Conference on Private International
Law [01]
 Convention of 5 October 1961 Abolishing the Requirement
of Legalization for Foreign Public Documents [12]
 Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or
Commercial Matters [14]
 Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters [20]
 Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption [33]
Arbitration
 Arbitration proceedings are governed by the law of the
seat of the arbitration.
 Indian Arbitration Act 1899 – Bombay, Calcutta and
Madras.
 Arbitration Act of 1940.
 1961 – Foreign Awards (Recognition and Enforcement)
Act 1961.
 New York Convention on the Enforcement of Foreign
Arbitral Awards.
Legislations
 1996 – Arbitration and Conciliation Act
 Based on the UNCITRAL Model Law on Arbitration
Enforcement of foreign awards
 Part – II of Act. – New York Convention
 S.44 - "foreign award" means an arbitral award on
differences between persons arising out of legal
relationships, whether contractual or not, considered
as commercial under the law in force hi India.
 S.46 – binding nature - Any foreign award which
would be enforceable under this Chapter shall be
treated as binding for all purposes on the persons as
between whom it was made.
Evidence
 S.47 - (a) the original award or a copy thereof, duly
authenticated in the manner required by the law of
the country in which it was made;
 (b) the original agreement for arbitration or a duly
certified thereof; and
 (c) such evidence as may he necessary to prove that
the award is a foreign award.
Non-enforcement
 (2) Enforcement of an arbitral award may also be
refused if the Court finds that –
 (a) the subject-matter of the difference is not capable
of settlement by arbitration under the law of India; or
 (b) the enforcement of the award would be contrary
to the public policy of India.
 Explanation.- Without prejudice to the generality of
clause (b), it is hereby declared, for the avoidance of
any doubt, that an award is in conflict with the public
policy of India if the making of the award was
induced or affected by fraud or corruption.
Family Law -Pvt. Int.na.Law
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
Summary
 Marriage
 Matrimonial causes
 Legitimacy and legitimation
 Adoption
 Guardianship and custody of minor children
Marriage
 Concept of marriage
 Contract
 Sacrament
 Hyde v. Hyde, (1866) LR 1 P&D 130 – marriage through
a contract is a contract sui generis.
 Held that a marriage was a voluntary union for life of
one man with one woman to the exclusion of others.
 Polygamous marriage
 Harvey v. Farnie, 1880 – cannot be recognized.
 Ali v. Ali, 1966
Hague Convention
 The Hague Convention on the Celebration and
Recognition of the Validity of Marriage 1978.
 India not adopted it.
 Celebration of marriages
 Christians – contract
 Roman Catholics church– sacrament
 Muslims – contract
 Hindus - sacrament
 Chinese Buddhist - contract
Validity
 English courts against polygamous marriages.
 Harvey v. Farnie, 1880. – AC recognised that
polygamous marriages could not be recognised.
 Validity is determined by lex celebrationis and
characterization of monogamous or polygamous by lex
fori.
 Lendrum v. Chakravarti, 1929 S.L.T 96 – marriage
solemnized in Glasgow church between Hindu
belonging to monogamous sect in India with a scot
woman domiciled in Scotland was held valid.
Polygamy
 Ali v. Ali, (1966) 2 W.L.R 620. – personal law permits
polygamy – he cannot validly take a second wife if he
changes his domicile to England.
 Nachimson v. Nachimson, (1930) – Mutta marriages
among shia Muslims is governed by the lex loci
celebrationis.
 The crucial question is which law will decide it is
monogamous or polygamous.
Which law?
 Matrimonial domicile?
 A monogamous marriage at the inception cannot join a
polygamous sect . – Mehta v. Mehta (1945) 2 All E.R. 690.
 Sofia v. Shive Prasad, (1946) Cal. 484. – Indian hindu
already married - married second wife in Paris – French law
not recognised polygamy – came to India-wife filed a
petition for nullity of marriage - marriage at the time not
valid.
 Baindail v. baindail, Indian domiciled Hindu already
having a wife in India, married an English girl.
 English girl filed an application for nullity – granted.
England
 Matrimonial Proceedings (Polygamous Marriages)
Act, 1972 – permits to give matrimonial relief to parties
of marriage whose system allow polygamous
marriages.
 Alhaji Mohammed v. Knott, (1968) 2 W.L.R 1446.
 Polygamous married persons would be recognized in
English Law.
 entitled to maternity benefit and widow is entitled to
benefits under the national insurance schemes.
S.494 IPC
 Whoever, having a husband or wife living, marries in
any case in which such marriage is void by reason of its
taking place during the life of such husband or wife,
shall be punished with imprisonment of either
description for a term which may extend to seven
years, and shall also be liable to fine.
Hindu
 Hindu law
 Dayabhaga
 Mitakshara
 Polygamy – Muslims
 Polyandry – Lahaul Valley bordering Tibet.
 Some communities in South India.
 Hindu Marriage Act, 1955
 Christian Marriage Act, 1872.
Other systems
 Parsi Marriage and Divorce Act, 1936 prohibits
polygamous marriage after changing his domicile.
 Parsis - monogamous
 Special Marriage Act, 1954 – contract.
 Jews – monogamous – contract – Katuba
Conversion
 Khambatta v. Khambatta, - Muslim married to Scot
women – 1905 in Scotland.
 Came to India and the wife embraced Islam.
 1922 – husband pronounced divorced in India
 Wife Married under special marriage act, 1872.
 After 10 years – wife petitioned for nullity of marriage –
Scottish marriage was not dissolved by any law.
 Second marriage is bigamous and void.
 Law after conversion – first marriage validly dissolved.
Conversion
 Nurjahan v. Tisanco, 45 CWN 1047.
 Two Russian Christians married in Berlin.
 Lived together many years in Europe.
 1938 wife came to India and the husband went to
Scotland.
 1940 – wife converted to Islam.
 Thrice offered the husband to become Muslim.
 Refused the acceptance by husband.
 Wife initiated dissolution of marriage in Indian court.
Conversion
 Indian court held that parties were not domiciled in India – dismissed
the suit.
 No spouse can, on converting to another religion, impose his new
religion on the other.
 Aiyasaabibi v. Subodh Chandra, (1945) 2 Cal. 405 – allowed wife’s
petition. – law after conversion.
 Saeeda Khatun v. Ovedia, (1945) 49 CWN 754.
 Jews domiciled in India
 No matrimonial relief to a convert – spouse under new personal law.
 No law under which a marriage performed under one personal law can
be dissolved under another personal law.
Dissolution of marriage
 Both parties change their religion, then they will be
governed by new personal law
 Khambatta v. Khambatta, 1935 Bom. 5
 One of the spouse changes religion – no matrimonial
relief under new law
 S.13(1)(ii) – one of the spouses ceased to be Hindu by
converting to another religion.
 Muslim - Apostasy – complete and immediate
dissolution of marriage.
Special Marriage Act
 Conditions relating to solemnization of special marriages. - Notwithstanding
anything contained in any other law for the time being in force relating to the
solemnization of marriages, a marriage between any two persons may be solemnized
under this Act, if at the time of the marriage the following conditions are fulfilled,
namely:-
(a) neither party has a spouse living;
(b) neither party is an idiot or a lunatic;
(c) the male has completed the age of twenty-one years and the female the age of
eighteen years;
(d) the parties are not within the degrees of prohibited relationship; and
(e) where the marriage is solemnized outside the territories to which this Act extends,
both parties are citizens of India domiciled in the said territories.
Foreign marriages
 Foreign Marriages Act, 1969
 Facility for Indian national to marry abroad with
another Indian national or a national of another
country.
 Or domiciled in another country.
 Monogamous
 Civil marriage
 Marriage is valid under lex loci celebrationis – S.17
Validity of marriages
 Validity must be formal and material
 1. capacity to marry
 2. performed necessary ceremonies
 Problem of characterization:
 Which law will be applied for judging material
validity?
 Material validity
 Formal validity
Material validity
 If the courts of two countries consider the validity of a
marriage at the same time.
 Odgen v. Odgen, (1908) – parental consent.
 French law – marriage not valid
 English Law – valid
 Functional test – what is the purpose of putting any
requirement.
 To test whether the requirement is only a formality or
integral part of public or social interest.
Validity
 Domicile of parties?
 Matrimonial home?
 England – under English law
 One of the parties is domiciled in England – English law
 Both parties are domiciled abroad – lex loci celebrationis.
 Apt v. Apt, (1947) – Argentinean domiciled in Germany
married a Jew resident in England through proxy.
 Not valid according to English law – lex loci celebrationis –
valid.
Materiality
 English law – no such differentiation between material
validity and formal validity.
 According to lex loci celebrationis.
 Material validity according to the law of the domicile
of each party at the time of marriage.
 Pre-marriage domicile and lex loci celebrationis will
determine the formal validity.
English law
 Capacity to marry – domicile of each party
 Brook v. Brook, (1877) – prohibited degrees of
relationship – valid in Denmark – HL said the
marriage is void because the parties lacked capacity to
marry under ante-nuptial marriage.
 Sottomayor v. De Barros, 1877 – Portugal – prohibited
degrees of relationship – valid in England - void.
Consent of parties
 Essential validity
 H v. H, (1954) – Hungarian domiciled girl married her
cousin in Hungary who domiciled in France.
 Parties never lived together.
 Husband – France
 Wife – England
 English court for nullity of marriage
 Void for lack of consent.
 Lacked consent under pre-nuptial domicile.
Indian law
 Capacity is determined by personal laws.
 Lex loci celebrationis
 Hindu Marriage Act – any two Hindus can perform
marriage.
 All communities – personal laws
 Foreign Marriage Act, 1969
Formal validity
 Personal laws
 Ceremonies according to local laws
 Special marriage act
 Civil marriage
Thank you
Matrimonial
Reliefs in
Pvt. Int.Law

Indian Institute of Technology, Kharagpur
[email protected]
KDR/IIT KGP/RGSOIPL/-2010 1
Matrimonial Causes
 English law – 1857 – matrimonial causes – jurisdiction
– ecclesiastical courts.
 Divorce was unknown
 Jurisdiction extend to all Christians
 Church was not concerned with domicile or
nationality of parties.
 Jurisdiction based on residence of parties.
Matrimonial causes Act
 Matrimonial Causes Act, 1857
 Indissolubility of marriage was repudiated.
 Jurisdiction shifted to civil courts.
 Matrimonial Causes Act, 1973
 Matrimonial Proceedings Act,1973
Indian law
 Indian Divorce Act, 1869.
 Parsi Marriage and Divorce Act, 1865.
 Parsi Marriage and Divorce Act, 1936.
 Special Marriage Act, 1872, 1923, 1954
 The Hindu Marriage Act, 1955
 Dissolution of Muslim Marriage Act, 1939.
 Foreign Marriage Act, 1969.
Jurisdiction
 English Law
 Domicile or habitual residence
 Abolishes wife’s dependent domicile
 Domiciled in England at the time of proceedings–
Indyka v. Indyka, (1969) 1 AC 33.
 Habitually resident in England for 1 year.
 Substantial link between his residence and country.
Validity
 De Barros v. De Barros (No 1), (1877) 3 PD 1.
 The law of the country where the marriage is
solemnized.
 Personal capacity to marry according to domicile
 Valid in accordance with the country where the
marriage took place.
Lex loci celebrationis
 Marriage where it is performed
 Where the poxy was appointed
 Man domiciled in Ireland – woman domiciled in
Ghana – married according to the tribe ceremonies in
Ghana – both parties in England –
 English court held: consent of parties needed
according to the lex loci celebrationis.
Foreign marriages
 Ogden v. Ogden, [1908] p46 (CA)
 Woman domiciled in England
 Married a French man in England
 Annulled the marriage in France for want of parental
consent.
 Husband married another woman
 Petition for dissolution in English Court.
 English woman married another man
 Second marriage of English woman annulled on the
ground of bigamy.
India
 Domicile of origin or nationality is not relevant
for jurisdiction.
 Last resided together
 Domiciled in India at the time of filing the
petition.
 Nullity of marriage - Only if the marriage was
solemnized in India.
 Restitution or judicial separation – the petitioner
must be resident of India at the time of
presentation of petition.
India
 Main basis is residence
 It is also not necessary that they should be Indian
nationals.
 Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal
582.
 Foreign Marriage Act 1969, S.23 – lex loci celebrationis.
Foreign Marriage Act 1969
 Marriage between two persons outside India - one
Indian citizen .
 If its prohibited by law of the country where it is
performed or it is inconsistent with international law
or the comity of nations.
 The matrimonial proceedings in India should be
according to the Special Marriage Act 1954.
Foreign marriage- relief
 Cannot be granted:
 Parties not domiciled in India before marriage
 Domiciled in India when the wife presented the
petition
 Ordinarily residing in India for the last 3 years before
the petition was presented.
Hindu
 Where the marriage was solemnized
 Parties last resided together
 Respondent at the time of presentation of petition
resides
 The petitioner is residing at the time of presentation of
petition.
Special marriage Act
 S.31.2
 the District Court may, by virtue of this sub-section,
entertain a petition by a wife domiciled in the
territories to which this Act extends for nullity of
marriage or for divorce if she is resident in the said
territories and has been ordinarily resident , therein
for a period of three years immediately preceding
the presentation of the petition and the husband is
not resident in the said territories.
 Husband and wife are in two countries
Temporary living
 Suit can be filed in a court within whose jurisdiction the
defendant resides at the time of filing of the suit –
Muslims.
 Jagir Kaur v. Jaswant Singh, - residence includes both
permanent dwelling and temporary living at a place, but it
does not include ‘ a casual stay in or a flying visit to a
particular place.
 Murphy v. Murphy, 1921 Bom 211.
 Tara v. Jaspal Singh, (1946) 1 Cal. 604. – stayed in Darjeeling
for a week.
 Clarance v. Raicheal, 1964 Mys. 67.
Choice of law
 Once decided the jurisdiction – personal law of the
parties.
 Lex fori
 Special marriage Act will apply in case if some foreign
element is involved.
 Christopher Neelkantam v. Annie Neelkantam, 1959
Raj. 133.
Foreign marriages Act 1969
 S.18 – provisions of Special Marriage Act, 1954.
 S.23 – lex loci celebrationis.
 Perumal Nadar v. Ponnuswami, AIR 1971 SC 2352
 Capacity to marry depend on law of a person’s
domicile.
 Bhagwan Ghamshamdas v. Charlotte Zingg (1959) ILR
1 Cal 4.
 Indian married a Srilankan, within 1 year of
dissolution of marriage in violation of S15 then.
Recognition of foreign divorce
 English Law- Recognition of Divorces and Legal
Separations Act, 1971.
 Joao Gloria Pires v. Ana Joaquina Pires, 1967 Goa 113.
 Marriage in Goa – husband got divorce decree from
Ugandan Court –
 Whether the decree can be implemented in Goan
court.
 Opposed to public policy?
cases
 Teja Singh v. Satya, 1970.
 Divorce decree pronounced by court of domicile will
be accorded recognition universally and should be
recognised in India.
 Husband was not domiciled in Nevada.
 Hogan Bhai v. Hariben, 1985 Guj 187.
 Not recognized.
Law commission – 65th report
 Recognition of decrees granted in the
country of domicile of the parties should
continue.
 The country of domicile recognises the
decree, India will recognize.
 Will not recognize if other party don’t have
notice of proceedings.
 No opportunity of hearing.
 Contrary to public policy.
 Obtained by fraud.
Nullity of marriage
 Void and voidable
 Age rule
 Voidable – valid marriage
 Void – no legal consequences flow from it
 Destructive impediment.
 Validity of marriage – legitimacy of children.
Nullity
 Can be granted if the marriage solomnised in India
 The petitioner was resident in India when the petition
was presented
 Restitution – petitioner in in India at the time of filing
the petition
Void marriages
 Impotency
 Lunatic or idiot
 Prohibited degrees of relationship
 Former husband or wife living – marriage in force
 Muslims – lack of proper ceremonies
 Marrying sisters – neither void nor valid –irregular.
Voidable marriages
 Marriage not consummated
 Pregnant at the time of marriage
 Coercion or fraud
 Incapable of giving valid consent
 Recurrent attack of insanity or epilepsy
 Domicile as well as residence were considered as the
basis of jurisdiction.
Validity of marriage
 Ecclesiastical courts applied the law of
celebrations.
 De Renevile v. De Reneville, (1948) p. 100
 Domiciled French man with woman domiciled in
England
 Court held: if she is domiciled in England.
 It will depend on the question whether the
marriage was void or voidable.
 Void – court have jurisdiction
 Voidable – no jurisdiction.
India
 Formal validity of marriage will be determined by
lex loci celebrationis.
 Material validity by personal law of parties.
 There is no case in India on the recognition of
foreign nullity decrees.
 Recognition of Divorces and Legal Separations
Act, 1971.
 13 of CPC.
 Satya v. Teja Singh
Polygamous marriages
 The Matrimonial Proceedings (Polygamous
Marriages) Act, 1972.
 Declaration of marriage valid or void
 Legitimacy of children
 Nullity of marriage
 Judicial separation
 Maintenance
Custody
 Kuldeep Sidhu v. Charan Singh, AIR 1989 (P&H)
103.
 Indians married in India but settled in Canada
 Father came to India with two children
 Mother came to India with an order of custody of
children from a Canadian Court.
 Indian court allowed custody.
Thank you
Adoption, custody and
guardianship
Dr. Raju KD
Assistant Professor
IIT Kharagpur
West Bengal
Adoption
 "Adoption" means the process through which the
adopted child is permanently separated from his
biological parents and become the legitimate child of
his adoptive parents with all the rights, privileges and
responsibilities that are attached to the relationship
(Juvenile Justice Act, 2000 amended in 2006)
 Guardians and Wards Act, 1860
 Children’s Act, 1960
 Juvenile Justice Act, 1986
Adoption
 Hindu Adoption and Maintenance Act, 1956 – Hindu
male or female has the capacity to make an adoption,
major and of sound mind.
 Marred male can adopt only with consent of wife.
 married woman cannot adopt even with the consent of
husband.
 It is the right of the husband to exercise the right of
adoption.
 Married woman can adopt a child if the other spouse
ceased to be a Hindu.
Female
 S. 8 - Capacity of a female Hindu to take in
adoption.- Any female Hindu-
 (a) who is sound mind,
 (b) who is not a minor, and
 (c) who is not married, or if married, whose marriage
has been dissolved or whose husband is dead or has
completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.
 Has the capacity to take a son or daughter in adoption.
Adoption
 ``There cannot be a valid adoption (under the Hindu
Adoption and Maintenance Act 1956) unless the
adopted child is transferred from one family to
another.
Indian law
 Only Hindu law recognised adoption.
 Adopter as well as child should be Hindu.
 The Act does not lay down any requirement of
residence, domicile or nationality.
 Nobody can adopt without the permission of the
court.
 Jurisdiction – child ordinarily resides (s.9)
 Re Sister Gemma, 1970 Mad. 263 – court held that
French lady can adopt a destitute child – welfare of the
child is most important.
Personal law
 No statute dealing with other than Hindus on
adoption.
 Adoption is not known to Mahomedan law.
 If a custom permits adopts in a particular area, it is
recognised. (j&K).
Christians
 There is no specific statute enabling or regulating
adoption among Christians in India.
 In the past persons who wished to adopt a minor child
usually approached the Court under the provisions of
the Guardians and Wards Act of 1890 and an order of
guardianship in respect of the minor child is obtained.
 Customary law was reconised by courts.
 Sohan Lal V. A.Z. Makuin (AIR 1929 Lahore 230)
Christians
 Philip Alfred Malvin V. Gonsalvis, (see 1999 (1) KLT
292 = AIR 1999 Ker. 187) wherein a Single Bench of the
High Court of Kerala held that it is an admitted fact
that Christian Law does not prohibit adoption.
 Maxin George v. Indian Oil Corporation Ltd [2005 (3)
K.L.T 57]. – foster son is not adopted son unless the
formalities of adoption takes place.
Foreign adoptions
 Rights of Child Resolution adopted by the United
Nations General Assembly on November 20, 1959 and
Guidelines formulated by Expert group and adopted
by the Economic and Social Council of the United
Nations its 20th session and also through adoption of
Children Bill, 1980 relating to Inter-Country adoption
legislation.
 Under the Adoption of Children Bill, 1980 giving in
and taking in child for adoption was made unlawful.
Clauses 23 and 24 of the said bill were most relevant in
this respect.
Recognition of foreign adoptions
 English practice is that it will recognize the adoption if
the adopter and the child is from the same country
which recognised the adoption.
 Personal status is determined by lex domicilii.
 Re Valentine’s Settlement, (1965) Ch. 831 (C.A).
 South Rhodesian adopted a girl child and a boy
domiciled in south Africa.
 Adoption not valid in Rhodesia.
 The court held that the adoption must be recognized
in adopter’s country.
India
 The law is yet to develop
 C.S. Natraja v. C.S. Subbaraya, (1949) 54 PC.
 PC held that widow had no capacity to adopt at that
point of time according to Madras law.
 PC held that the matter of adoption to be determined
according to the law of domicile of both child and
adopter.
 They were in Pondicherry – according to French Law.
 Adoption valid according to lex domicilii.
1995 guidelines - 2006
 Lakshmikant Pandey v. Union of India, 1984, 1986 and 1987 – SC
formulated guidelines for inter-country adoption.
 Laxmikant Pandey Vs. Union of India [AIR1984 SC469].
 para 8 of the judgment that, " while supporting Inter-Country
adoption, it is necessary to bear in mind that the primary object of
giving the child in adoption being the welfare of the people, great care
has to be exercised in permitting the child to be given in adoption to
foreign parents, lest the child may be neglected or abandoned by the
adoptive parents in the foreign country or the adoptive parents may not
be able provide to the child a life of moral and material security or the
child may be subjected to moral and sexual abuse or forced labour or
experimentation for medical or other research and may be placed in
worse situation than that in his own country .”
SC on adoption
 " if a child is to be given in Inter-Country adoption, it
would be desirable that it is given in such adoption
before it completes the age of 3 years.“
 The Bombay High Court in Re Jay Kevin Salerno
[AIR1988 BOM139] iterated that " where the custody of
a child is with an institution, the child is kept in a
private nursing home or with a private party for better
individual care of the child, it does not mean that the
institution ceases to have the custody of the child."
1995 Guidelines
 The object of the guideline is to implement the
judgments in L.K. Pandey vs. Union of India and
Others between 1984 and 1991 and various other court
orders from time to time and to take all other
measures necessary for the promotion of in-country
adoption of children as well as welfare of children in
general.
Guidelines
 The goal is to find a family for as many orphan
children as possible and to safeguard their interests as
visualized in the UN Convention on Child Rights and
Hague Convention on Inter-country Adoption (both
ratified by India).
 Ministry of Social Justice & Empowerment – Ministry
 The Central Adoption Resource Authority (hereinafter
called CARA) functions as a nodal body and the
Central Authority for adoption matters.
Procedure
 The Supreme Court of India has laid down that every
application from a foreigner/NRI/PIO (as applicable)
desiring to adopt a child must be sponsored by a social
or child welfare agency recognised or licensed by the
Government or a Department of the Foreign Govt. to
sponsor such cases in the country in which the
foreigner is resident.
Criteria for Foreign Prospective Adoptive Parents (FPAP)
 Married couple with 5 years of a stable relationship, age, financial and
health status with reasonable income to support the child should be
evident in the Home Study Report.
 Prospective adoptive parents having composite age of 90 years or less
can adopt infants and young children. These provisions may be suitably
relaxed in exceptional cases, such as older children and children with
special needs, for reasons clearly stated in the Home Study Report.
However, in no case should the age of any one of the prospective
adoptive parents exceed 55 years.
 Single persons (never married, widowed, divorced) up to 45 years can
also adopt.
Criteria for FPAP
 Age difference of the single adoptive parent and child
should be 21 years or more.
 A FPAP in no case should be less than 30 years and
more than 55 years.
 A second adoption from India will be considered only
when the legal adoption of the first child is completed.
 Same sex couples are not eligible to adopt
Procedure
 The applicants will have to contact or register with an
Enlisted Foreign Adoption Agency (EFAA)/ in their
country.
 Home study report (HSR).
 Adoption application dossier
 On receipt of the documents, Recognised Indian
Placement Agency (RIPA) will make efforts to match a
child who is legally free for inter-country adoption
with the applicant.
Procedure
 If a child is declared as free for inter country adoption
– clearance from ACA is required.
 Non objection certificate from CARA.
 Filing of petition in court - RIPA shall file a petition for
adoption/guardianship in the competent court
(district court).
 RIPA – has to apply for passport and visa.
Hague convention
 CONVENTION ON PROTECTION OF
CHILDREN AND CO-OPERATION IN RESPECT
OF INTERCOUNTRY ADOPTION – 1993 – in force
– 1995.
 A. 14 - Persons habitually resident in a Contracting
State, who wish to adopt a child habitually resident
in another Contracting State, shall apply to the
Central Authority in the State of their habitual
residence.
Recognition
 A.23 - An adoption certified by the competent
authority of the State of the adoption as having been
made in accordance with the Convention shall be
recognized by operation of law in the other
Contracting States.
 Article 24
 The recognition of an adoption may be refused in a
Contracting State only if the adoption is manifestly
contrary to its public policy, taking into account the
best interests of the child.
Hague provisions
 Adoption will takes place only after the competent
authorities of the ‘state of origin’ have determined that
the child is adoptable.
 Consent of the parents, if the child is mature enough,
to be consulted.
 Competent authorities of the receiving state to give
consent.
 Adoption will take place only before the age of 18.
 It should not be contrary to public policy or at the
interest of the child.
Recognition
 Adoption includes recognition of the legal parent-
child relationship.
 Parental responsibility
 Termination of the pre-existing legal relationship
between child, mother and father.
Child
 Indian Law – natural person below the age of eighteen
years is known as minor – Indian Majority Act, 1875.
 Guardianship and custody together –
 A foreign patent desiring to exercise his parental
control over the child in India can do so only in
accordance with Indian law.
 If an English parent domiciled outside can exercise the
guardianship and custody of children in England
under English law.
Jurisdiction
 Basis: Nationality is the basis of family law matters.
 Clause 37 of the Charter of the SC at Bombay and
Clause 25 of the Charter of the SC at Calcutta
authorized the court to appoint guardians.
 Courts where the ordinary residence of children have
jurisdiction.
 Lalita v. Paramatma Prasad, 1940.
 Chimallal v. Rajaram, 1937 Bom.
Jurisdiction
 Surinder Kaur /sandhu v. Harbux Singh Sandhu, 1984
SC 1224.
 Welfare of children is of paramount importance.
 The state which was intimate contact with the issues
have the jurisdiction.
 The mere presence of the child in India would not give
jurisdiction of Indian court.
 English courts apply the English domestic law rather
than apply the law of domicile or nationality.
 India apply Guardians and Wards Act, 1890.
Recognition of foreign Orders
 English courts taken the view that if the child is in
England the interest of child is important and even the
court can change the foreign orders according to
circumstances.
 Staurt v. Bute, (1861) 9 HLC 440.
 English courts will scrutinize the foreign guardianship
orders strictly.
 In Re H, 1966
 English court given custody of child to Father in New
York.
India
 Margrett v. Chakoo, 1970 Ker. 1.
 Indian married German lady and later on he flew back
to India with two children.
 Kerala High Court recognized the order of German
court and given custody of the children to the German
mother.
 Elizabeth Dinshow v. Arvind, ILR (1984) SC also taken
the same view.
Guardianship
 application by foreign Nationals to be appointed
 as Guardian of Indian Children the Karnatak High
Court held that the Court is bound to exercise the
jurisdiction in favour of the child once it is satisfied
that the order. it is likely to make. is for the welfare of
the child.
 Society of Sisters of Charity St. Gerosa Convent and
others vs, Karnataka State Council for child Welfare
A.I.R. 1992 Kant 263 Para19-20.
Personal laws: Guardianship
 Hindu Minority and Guardianship Act, 1956
 Guardians and Wards Act, 1890
 Father is the natural guardian of Hindu child.
 If father is not taking care of the child – mother
 Customary mohammadan law applied in India.
 Minor boy – up to 7 – mother
 Girl – up to the age of puberty
Foreign orders
 Usually Indian courts will give effect to foreign orders
if it is not prejudicially affect the interest of the child.
Thank you
Dr. KD Raju
[email protected]
Property
 Movables – lex domicilii
 Immovable – lex situs
 Movables – tangibles and intangibles
 Movables – choses in possession & choses in action.
 choses in possession – car, horse, tv etc.
 choses in action – stock and shares, patents, right to
recover a debt…..
Movable or immovable
 According to the law of the place where the property
is.
 If there is a conflict between the lex fori and lex situs
on whether th property is movable immovable, lex
situs will determine.
 Re Berchtold, (1923) 1 Ch.192.
 Freehold interest in England was declared as
immovable property.
 Hungarial law – movable property
Movable or immovable
 Re Cutliffe,(1940) Ch. 565.
 Stock of a British Company.
 Dex domicilii – ontario
 Lex situs – England
 Stock was characterized as immovable
property according to lex situs.
Movable v. Immovable
 Exhibition building – US and Germany considered as
interest in movable property.
 English law consider it as an interest in land.
 Tangible and intangible things
India
 General Clauses Act,1897 – S.3(26) - "Immovable
property" shall include land, benefits to arise out of
land, and things attached to the earth, or permanently
fastened to anything attached to the earth.
 S.3(36) "Movable property" shall mean property of
every description, except immovable property.
 S.3 (TP Act) : " immovable property" does not
include standing timber, growing crops or grass;
India
 Nachiyappa Chettiyar v. Muthu Karuppan Chettiyar,
1946.
 Capacity to alienate immovable property is to be
determined by applying the law of the place where the
property is situated.
 Indian courts don’t have jurisdiction over immovable
property situated outside india, but an action in
personam against the defendant within the
jurisdiction on contractual right is possible.
Immovable property
 India, England, US and most of the European
countries – law of the situs.
 Italy, spain, Sweden, Finland and Germany –
nationality.
 Convenience and expediency
 Nelson v. Bridport, (1845) 8 547
 “the incidence of real estate, the right of
alienating or limiting it, and the course of
succession to it, depends entirely on the law of
the country where the estate is situated.”
Lex situs
 Entire law of the country?
 Only private international law
 Indian dies leaving behind immovables in
Spain.
 Under internal law of Spain A is the heir.
 Under Hindu law B is the heir.
 Spanish court will apply the law of nationality,
i.e – Hindu law – B is the heir.
 Indian court – lex situs – law of Spain – A is the
heir.
 Such situation Renvoi applies.
Jurisdiction
 British south Africa Co. v. Companhia de
Mocambique, 1893.
 Action of trespass was brought against the
defendants in English court on land and mines in
South Africa.
 English court has no jurisdiction to entertain an
action on immovable properties in foreign land.
 Neelkant v. Vidya, 1930 AC 188.
 British Indian courts don’t have jurisdiction to
entertain an action in respect of a mortgage of
immovable property situated in foreign court.
Capacity
 Governed by the lex situs. – Bank of Africa Ltd.
v. Cohen, (1909) 2 Ch. 129.
 Any restriction on foreigners – conveyance in
foreign country is not valid.
 US – age – 21
 India – age – 18
 Indian domiciled in US cannot convey any
property in US at 18 – invalid.
Contracts
 If two Indians enter into a contract in India for
conveyance of a house in London.
 Formaly valid if it is in accordance with – lex loci
contractus.
 Contractual rights can be determined in the place of
courts of proper law of contract for breach of contract.
Exceptions to lex situs
 The court of equity have exercised the jurisdiction of
ordering specific performance of contracts relating to
foreign land whenever the defendant has been present
within the jurisdiction.
 Archer v. Preston.
 Visit to England he was asked to specific perform the
contract – land in Ireland.
 The British court of equity always act in personam.
 Fraud
 Fiduciary relation – land situated outside – trust – trustee
is within the jurisdiction of the court.
India
 Proviso to - S. 16 of CPC
 Provided that a suit to obtain relief respecting, or
held by or on behalf of the defendant, may where
the relief sought can be entirely obtained through
his personal obedience be instituted either in the
Court within the local limits of whose jurisdiction
the property is situate, or in the Court within the
local limits of whose jurisdiction the defendant
actually and voluntarily resides, or carries on
business, or personally works for gain.
India
 Mahadev v. Ramchandra, 1922 Bom.
 Even if the land is situated outside India, if the relief
can be obtained in Indian through the personal
obedience of the defendant, court have jurisdiction.
 The court will not pass a decree if it cannot be
effectively enforced in India by personal obedience.
Assignment of tangible movables
 Transfer inter vivos – sale, gift, pledge etc.
 Lex domicilii – oldest theory
 Situs can be shifted any time. – abandoned.
 Sale of a ship in voyage
 Domicile of the assignor or Lex actus (actual situs) of
the assignment.
Lex situs
 Most favoured theory
 In Re Anzinani, (1930) 1 Ch. 407
 The law of the country were the movable is situate.
 Supporters – Savigny, Westlake, Dicey, Foote, Schminthoff and
Wolf.
 Pledges or lien – lex situs
 Theory breaks down only when the goods are in transit.
Proper law theory
 lex actus – transfer of movables – transfer has the
most real connection.
 Apply to goods in transit.
Transfer
 Contractual questions – proper law of contract.
 Proprietary questions – if there is a dispute between parties
as to the title of the property, which law should govern the
matter?
 Inglish v. Usherwood, (1801)
 English merchant purchased goods from Russia and
shipped to England – goods in transit – Merchant became
bankrupt – Russian asked the Captain of the ship to return
the goods – valid according to Russian law – goods will be
passed to the consignee when the goods passed to the
merchant – not in accordance with English law.
 English court held that Russian law should be applied.
Gifts
 Which law applies to gifts?
 Lex situs – proper law
 Cheshire – proper law theory
 Morris – lex situs
 Donations Mortis causa – S.191 of the Indian
Succession Act, 1925.
 English law – lex situs
 In Re Korvine’s Trusts, (1921) 1 Ch.343. – domiciled
in soviet Union, resident in England made gift of
his movables in England. – gift was void according
to lex domicilii – English court applied lex situs.
Commercial transactions
 Lex situs is practically not applicable.
 Shifting situs
 Lex domicilii has been rejected in commercial
transactions.
 Law of the locus where the ship is to unload.
 Ship in High Seas or aircraft – law of the flag.
Thank you
Dr. KD Raju
[email protected]
Law of Succession
 Civil law countries – law of nationality at the time of
death.
 India – personal laws
 Succession to immovables – lex situs – Sankaran
Govindan v. Lakshmi Bharati, AIR 1974 SC 1764.
 Succession Movables – lex domicilli – Umyal Achi v.
Lakshmi Achi AIR 1945 FC 25.
 If a person leaving behind immovable property in
England – internal law
Indian succession Act, 1925
 S.5 - Succession to the immovable property in India of
a person deceased shall be regulated by the law of
India, wherever such person may have had his
domicile at the time of his death.
 (2) Succession to the movable property of a person
death.
Administrators
 Functions under English law: 1. collection of assets
of the deceased.
 2. payment of debts
 3. distribution of residue among the heirs.
Civil law v. common law
 Civil law countries – will is considered as a public
document.
 Common law countries – as a secret.
 Administration and succession are two different
things in English law.
 English law – no one can distribute the property
without the authorization of the court. - probate
of the will
 Obtaining letters of administration is mandatory.
will
 In testamentary successions, the court will uphold
wishes of the testator as far as possible.
 Deceased made a will and appointed an executor –
executor may obtain the probate of the will.
 Deceased made a will and not appointed an executor –
court may appoint an executor.
 When the deceased had died intestate, then the court
may grant letters of administration.
Presence of the property
 English courts usually exercise jurisdiction in granting
administration if the property is in England.
 Choice of law:
 In the Goods of Hill, (1870) 2 P&D. 89
 ‘court of the country of the domicile of the deceased
makes a grant to a party who then comes to England
and satisfies the court about his authorization to
administer the property.
Administration
 Administration of the estate of the deceased person is
governed by lex fori.
 Administrator is liable to account.
 Make payment of debts.
Indian law
 Indian Succession Act, 1925
 Indian law follows English law
 S.270 - basis of jurisdiction – 1. at the time of death
the deceased had a fixed pace of abode.
 2. If movable or immovable property of the deceased is
within the jurisdiction of the district judge.
Indian law
 Indian courts have taken the view that a grant of probate
can be made of a will executed abroad by a person who is
neither domiciled here nor a national of India, if the
testator left some immovable or movable property in India.
 Katyankutty Padaji v. Gaurikutty, 1953 TC 352.
 Indian courts didn’t have jurisdiction to appoint an
administrator on the basis that the deceased was domiciled
in India.
Personal laws
 Probate is only compulsory to Christians.
 S.218 lays down that if heirs do not apply for administration
of the property the creditor of the deceased can apply for
administration of the estate.
 Domicile or nationality of the deceased is immaterial.
 The heir will be decided according to whether the deceased
is a Hindu or a Muslim.
Indian succession Act
 218(a) - If the deceased has left a widow,
administration shall be granted to the widow.
 If the widow is a lunatic or committed adultery or
remarried – not eligible.
 The husband surviving his wife has the same right of
administration of her estate as the widow has in
respect of the estate of her husband.
domicile
 Where the deceased has left property in India,
 letters of administration shall be granted according to
the foregoing rules,
 notwithstanding that he had his domicile in a country
in which the law relating to testate and intestate
succession differs from the law of India.
Indian law
 If the property is in India – lex fori
 S.222 – a probate shall be granted to an executor
appointed by the will.
 If will is probated outside India and the property is in
India, Indian court will give administration of the
property to the foreign administrator or his
representative in India.
Intangible property
 Trademark – succession to intangible property created
by a stature is to be governed by the law of the country
where it was created.
 Blackwood & Sons v. AN Parasuram, AIR 1959 Mad
410.
Immovable property
 Succession to immovable property is by lex situs of
immovable property.
 Vishvanathan v. syed Abdul Wazid, 1963 SC 1.
will
 Personal laws apply to different communities.
 Testamentary succession – succession Act applies to all
communities except Muslims.
 5 (2) Succession to the moveable property of a person deceased is
regulated by the law of the country in which such person had his
domicile at the time of his death.
 Application of this provision has excluded if the deceased is a
Hindu, Mohammadan, Buddhist, Sikh or Jain.
Pvt.intn.law
 Indian succession Act provisions won’t affect the pvt.
Int.n.law principles.
 If a foreign court determines succession of an Indian
who leaving behind immovable's in India and the
foreign court applies any law other than his personal
law, Indian courts will not recognize the foreign
decree.
The Hague Convention 1989
 The Hague Convention on La Applicable to the Succession to the
Estates of Deceased Persons 1989.
 Applies to the succession of the estates of deceased persons
except testamentary and matrimonial property rights.
 Succession is governed by the law of the country where the
deceased habitually resides for the last 5 years.
 More connected with the place – nationality.
Hague convention 1989
 A person can designate any system of law applicable to
the succession of his estate.
 The law means not the conflict of law.
 A state may only refuse to apply the applicable law
under the Convention if the applicable rules are
manifestly contrary to public policy.
 Only Netherlands implemented this Convention.
Hague Convention 1961
 The Hague Convention on the Conflict of Laws
Relating to the Form of Testamentary Dispositions
1961.
 India not implemented
 Testamentary disposition is to be regarded as valid if it
complies with the internal law.
 Public policy – non implementation
UNIDROIT convention 1973
 UNIDROIT International Convention Providing a Uniform
Law on the Form of an International Will 1973.
 Objective is to the international validity of a will.
 UK implemented this convention by enacting the Justice
Act 1982.
 India has not implemented this convention
Will convention
 A single person to designate to deal with all
international wills.
 The will has to be in writing
 It will be valid wherever it is made, assets located,
nationality, domicile or residence of the testator.
 A will signed in presence of signatories will be valid in
all contracting states.
Thank you
PVT Int. Law
Tort in private international law
 The traditional approach starts with lex loci and
considers the site of conduct.
 Lex loci Commissi Theory – civil liability arising out of
a wrong derives its birth from the law of the place. –
Philips v. Eire, (1870) L.R. 4 Q.B. 225.
 Obligatio theory –Holmes . J.
Theories
 Lex loci delicti commissi governs,
 Indian standing in the border pushes a rock
which rolls down and dashes against the car
parked in the Pakistan side.
 Cheshire - tort occurred in both countries
 Civil law countries -Where the tort has been
committed.
 3possible solutions
 1. there should be of the place where the
act commenced . – Holmes. J.
 2. the tort may be deemed to be complete
in the country where the law is most
favourble to the plaintiff. - Cook
 3. tort is completed in the country where
the harm ensues. - Beale
 In the case of defamation the harm is in
Lex loci the nature of non-physical.
commissi  Damage in more than one country.
 Bata v. Bata, (1948) W.N. 366.
 Defamatory letters ere written by the
defendant in Zurich.
 Posted in London and harm to reputation.
 CL – held that the tort of libel was
completed in London.
 It is not necessary that the cause of action
fully occurred within the jurisdiction – P.C
in Distillers Co. (Bio-chemicals) Ltd. v.
Thompson,(1971) 1 All E.R. 694.
Tort
 Morris – proper law – most significant
connection which the chain of acts.
 US proper law theory has been accepted –
Babcock v. Jackson (1963) 12 NY.
 England – Boys v. Chaplin, (1968) 2 QB 1.
 Action in personam – action on tort is act
Proper in personam – mere presence of the
defendant within its jurisdiction is
law or
sufficient.
Social  When the tort is complete it is actionable
enviro in England.
nment
theory
 Locus delicti – even if the damage was
occurred in another place.
 Phillips v. Eire, (1870) LR 6 QB 1.
 Tow conditions: 1. the wrong must be of
such a character that it would have been
actionable if committed in England.
 2. The act must not have been justifiable by
the law of the place where it was done.
Choice of
 The wrong complained of must be wrong
law
not only under the lex loci delicti commissi
but also under the lex fori.
Locus delicti
 First rule – the wrong alleged would have been
actionable in England when it is committed.
 Monroe (George) Ltd. v. American Cynamid and
Chemical Corporation, (1944) 1 KB 432.
 Medicine manufactured in US.
 Act or omission happened where? – South Wales
 No warning with regard to the use of expectant mother
in the first three months of pregnancy.
 Cause of action takes where the mother purchased the
drug.
Second rule
 Not justifiable according to the lex loci delicti.
 Philips v. Eire
 Machado v. Fontes
 Machado sued fontes in English court for a libel published
in Brazil.
 Brazilian law – not actionable in civil law but actionable in
criminal proceedings.
 Main defence was that the publication was not actionable
in Brazil.
 Two conditions are satisfied and actionable in England.
Boys v. Chaplin
 Both of them were Her Majesty’s Armed Forces were
stationed in Malta.
 Plaintiff suffered injury due to road accident on
account of the negligence of the defendant.
 Both of them returned to England and the plaintiff
sued the defendant.
 The act was actionable under English as well as
Maltese law.
 No compensation for pain and sufferings under
Maltese law.
Double actionability rule
 A wrongful act committed out of England is actionable
in England only if it is actionable in lex loci delicti
commissi and hold that Mechado v. Fontes was
wrongly decided.
Maritime and aerial torts
 Tots committed in High Seas.
 E.g: assault by a member of the crew on another or on
a passenger or torts committed by a passenger .
 Governed by the flag of the ship.
 If the tort is committed in an Indian ship, Indian law
will apply.
 But if the action for tort is initiated in England, The
rule in Boys v. Chaplin would apply.
 Action for negligence outside the ship will be dealt by
the maritime law of England.
Aerial torts
 On board on aircraft.
 No law dealing with aerial torts.
 Law of the country where the aircraft is registered
 Locus delicti
 If the aircraft is above the High Seas, the general
maritime law will be applied or English law will be
applied.
 Warsaw Convention
 Chicago Convention
India
 CPC – ‘where the wrong was done’
 Within the jurisdiction of the court were the
defendant resides or carries on business.
 Cause of action arise.
 Wrongful act has taken place or where its effect are
experienced.
Restitution
 To prevent unjust enrichment.
 Contract that has failed.
 Whenever there are fiduciary duties of which a breach
has been committed.
 Restitution is ordered by a court whenever a person
has derived an unjustified advantage which it is his
duty to restore.
 Indian Contract Act 1872, SS. 64 and 65.
Restitution
 There is no statutory provisions with regard to
restitutionary claims arising outside India.
 There is no provision on limitation as to foreign
claims.
 England law applied is proper law of the obligation.
 If it is related with a contract - applying ‘proper law of
contract.’
 If an obligation arising in connection with a
transaction relating to immovable property is usually
determined by lex citus.
Restitution
 In other cases – determination by applying the law of
the place where the enrichment occurs.
 The present practice in England is that the law applied
where the obligation have the closest and most real
connection.
 Baring Bips & Co Ltd v. Cunningham District Council
(1997) CLC 108.
 UK – proper law of the contract
 In the case of Insurance – law of insurance.
India
 Indian Contract Act, 1872 – if a person avoids a
voidable contract, he must restore any benefit he has
received under the contract he has avoided or
compensate the other party.
 Void – return of all advantages.
Trusts
 England – Recognition of Trusts Act Passed in 1987 to
give effects to the Hague Conference on Private
International Law Applicable to Trusts and n their
Recognition, 1986.
 Hague Convention
 Trust created inter-vivos
 Trusts for specified purposes
 charitable trusts
 Created by judicial decisions
Trusts
 Oral trusts and trusts created by statutes are outside
the purview of the convention.
 Choice of law – by the settler.
 Substantive law – not conflict of laws
 If the country where there is no law of trust – governed
according to the law applicable in the absence of
choice.
 Not opposed to public policy.
Absence of express provision
 A.7 - Where no applicable law has been chosen, a trust
shall be governed by the law with which it is most closely
connected.
 In ascertaining the law with which a trust is most closely
connected reference shall be made in particular to –
 a) the place of administration of the trust designated by
the settlor;
 b) the situs of the assets of the trust;
 c) the place of residence or business of the trustee;
 d) the objects of the trust and the places where they are to
be fulfilled.
Choice of law
 Proper law of contract – most real connection. – Arab
Monetary Fund v. Hashim [1996].
 Place of residence
 Place of business
 Where the enrichment occurred
 Where the obligation arises
 Place where the property situate – lex citus
Thank you

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Private International Law

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Provided that the object of the suit is to enforce a

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Provided that the object of the suit is to enforce a

 (e) where it has been obtained by fraud;

 (f) where it sustains a claim founded on a breach

 unless the contrary appears on the record;

 but such presumption may be displaced by proving

 Concluded 1 February 1971

(a) neither party has a spouse living;