Notes On Conflict of Laws

Asst. Prof.
Malini Venugopal
CONFLICT OF LAWS
MODULE – I
Definition: A branch of law which provides procedures and guidelines to assist a judge in private
litigation, to select a court and a law to which a case is closely connected, which might appropriately
be applied in resolving a legal dispute before the court arising out of a set of fact, events or
transactions which have a foreign element. It, traditionally, also comprises rules of recognition and
enforcement of foreign judgments and arbitral awards.
Conflict of laws is a set of procedural rules that determines which legal system and which
jurisdictions applies to a given dispute. The rules typically apply when a legal dispute has a ‘foreign’
element such as a contract agreed to by parties located in different countries.
Foreign element arises because the case has a contact with a foreign system of law either because
some event on which the case is based had occurred in a foreign country or because the parties are
foreigners. A case may have contact with more than one foreign system of law, like, the case where a
man of Italian nationality domiciled in France distributes his movable properties situated in England
by a will executed in Russia and an English Court has to decide whether the will is valid and how the
properties are to be distributed.
Nature of Private International Law: It is concerned with all legal relationships between private
entities and thus includes family law, law of contracts and obligations. It is a branch of municipal law.
Its subject matter always includes a foreign element, one of its prime natures is the pursuit and
application of the appropriate legal system and jurists have been more influential in this branch of
the law.
In R. Vishwanathan v. Syed Abdul Wajid (1963), Justice JC Shah opined that Private international law
is not the law governing relations between states. It is simply a branch of the civil law of the state
evolved to do justice between litigating parties in respect of transactions involving a foreign element.
In Monica Variato v. Thomas Variato, 2000(2) Goa LT 149, division bench of Bombay High Court held
that the principles of private international law are not universal. They vary from state to state. What
may be applicable in one state may not be applicable in another state.
Recognition of foreign law: The universal principle of jurisprudence is that the sovereign is supreme
within his own territory and has exclusive jurisdiction over everything and everybody within that
territory. By applying this law any country can refuse to recognize foreign law but it is impracticable
to apply this principle to ignore foreign laws. According to Cheshire, the application of foreign law
implies no act of courtesy, no sacrifice of sovereignty, it merely derives from a desire to do justice
(example of a widow). In Re Bonacina (1912) 2 Ch394, if a promise is valid and enforceable by Italian
law and was made by an Englishman in Italy to be performed there, then it would not be held void by
an English court merely because it was unsupported by consideration. Private International Law
directs the court to apply the relevant foreign rules of law although these rules are at variance with
those of the lex fori.
Why should the courts depart from the rules of the country’s law and apply those of another
system? The justifications for this include:
(i) To implement the reasonable and legitimate expectation of parties to the transaction
or an occurrence (if two Kenyans went and got married in another country, say France in
accordance with the rules prescribed by the French law and not the formalities prescribed by the
Asst. Prof. Malini Venugopal
Kenyan laws, if Kenyan laws were to be applied, then the Kenyan courts would have to treat the
parties as unmarried and their children as illegitimate)
(ii) To avoid grave injustices that might occur (if divorce was granted in a foreign country and
after on one of the parties remarried, he/she might be guilty of bigamy unless that foreign
judgement was recognised.)
(iii) As a Matter of Comity (Comity here connotes courtesy or the need for reciprocity or even the
rule of international law as the accepted rule of mutual conduct as between states and therefore
more than mere courtesy. Most common law states do not use comity as a justification for their
actions but rather as a basis for legal reforms on their laws. In Credit Suisse Fides Trust SA v.
Cuoghi [1998] QBB 818, 827 (CA), Millet LJ opined that in Mareva Injunction ‘it was becoming
widely accepted that comity between courts of different countries requires mutual respect for
territorial integrity of each other’s jurisdiction.’)
(iv) To Meet Treaty Obligations (Sometimes, application of foreign laws by a municipal court is
required by public international law.)
The three branches/functions of conflict of laws:
Jurisdiction – It is to prescribe the conditions under which the court is competent to entertain a suit
containing a foreign element. Jurisdiction can be from the point of view of the plaintiff, defendant
and of subject matter. The common law rule is that any person, unless he is an enemy alien can
invoke the jurisdiction of the court. Residence in the country is not necessary to invoke the
jurisdiction. The presence, however transcient is necessary to serve summons personally to the
defendant. But there are some cases (ex parte decree), as provided by statutory provisions in
England or India whereby jurisdiction may be exercised over even absent defendants.
There are three reasons which require the question of jurisdiction to be separately treated in private
international law. First, there are circumstances in which the court is empowered by statute to
assume jurisdiction over absent defendants. Second, there are certain types of action, where the
mere presence of the defendant in the country does not render the court jurisdictionally
competence. Thirdly, there is a separate regime of jurisdictional rules in the case of a defendant
domiciled in a Member State of the European Community.
Choice-of-law process – To determine the particular municipal system of law by reference to which
the rights of the parties must be ascertained.
If the court decides that it possesses jurisdiction, the next question is that of choosing appropriate
law. A case may have contact with one or more foreign systems of law. The point of contact with a
foreign system of law is termed as connecting factor.
For example; a marriage between a man of German nationality domiciled in India and a woman of
Italian nationality domiciled in Australia, the marriage ceremony taking place in New York. And the
validity of this marriage arises in an Indian court. The Indian Private International Law requires the
court to decide formal validity of marriage by applying the law of the country where the marriage
was celebrated. In this case the American law. The law thus chosen is called lex causae.
It does not necessarily mean that only one foreign law will be indicated as the lex causae. The
different aspects of the case may be governed by different foreign laws. The function of private
international law is complete when it has chosen the appropriate system of law. Private international
law does not provide a direct solution to the points of dispute in the case rather it lays guidelines to
choose appropriate lex causae.
Choice of law rules: Courts faced with a choice of law issue have a two-stage process:
(a) The court will apply the law of the forum (lex fori) to all procedural matters (including, self-
evidently, the choice of law rules);
(b) With regard to substantive questions of law, the court will look at factors that connect/link the
legal issues to the laws of potentially relevant states and applies the laws that have the greatest
connection, e.g.
(i) The law of nationality (lex patriae) or domicile (lex domicilii) will define legal status and
capacity,
(ii) The law of the state in which land is situated (lex situs) will be applied to determine all
questions of title,
(iii) 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
Recognition and enforcement of judgments of a foreign state – To specify the circumstances under
which a foreign judgement can be accepted to decide the question in dispute and to indicate when a
foreign judgement can be allowed to be executed in this country.
Public International Law and Private International Law: Public International Law is common to all
nations where as private international law is different for different countries. Private international
law is a part of municipal law but public international law is a law between states.
No. Public International Law Private International Law / Law of Conflicts
1) Public International law is the body Conflict of laws, often called Private
of legal rules, which applied International Law. Private International Law
between Sovereign States and regulating relationship between Private
other International Personalities. persons (Natural or Legal) of two different
States.
2) Public International law rules are Private International law rules are framed by
outcome of international custom the State legislature.
and treaties.
3) Public International law is enforced Private International Law is enforced by the

by international pressure and fear concerned State executive.
for example – breakage of
diplomatic relations, sanctions etc.
4) In public International Law there is In private International Law courts are

no Predetermined Court. predetermined.
5) Public International Law is same for Private International Law differ from state to
all the States. state.
6)
Based on the consent of the state Not based on the consent of the state
7)
Regulates relationship of states and Determines the law which will be applicable
determine rights and duties of the in a particular case having foreign element
subject states
8) Wider scope Minimal scope
9)
Applicable to criminal as well as Applicable to civil cases only
civil states
Unification of Private International Law: PIL has come into existence because of different municipal
systems of law with conflicting rules. Due to these conflicting rules of municipal laws, the result of a
case may depend upon the forum chosen by the litigant. PIL aims to avoid this consequence by
applying relevant foreign law instead of lex fori. This aim is often defeated because PIL is not the
same in all countries.
The lack of unanimity in the PIL of different countries can be reduced in two ways.
a) Unification of Internal laws of various countries

b) Unification of the rules of Private International Law
So long as the world stands sharply divided into two divergent groups, namely those governed by the
common law and those governed by the civil law, unification of the internal laws is very challenging,
unless it confines to such areas of common concerns. The first step in the direction of the unification
of internal laws was taken by the Bern Convention of 1886 under which an international union for
the protection of the rights of authors over their literary and artistic works was formed. After the
First World War an International Institute for the Unification of Private Laws was established at
Rome. The Warsaw Conventions of 1929 which has been amended by the Hague Convention of 1955
is a very important landmark in that direction. This Convention provides for uniform rules relating to
carriage of goods and persons by air. In the Brussels Convention of 1922-23 the unification of rules
relating to carriage of goods and persons by sea came into existence. Then came in the Geneva
Convention on International Carriage of Goods by Road of 1956. The Geneva Conference of 1930
resulted in a Convention on the Uniform Law of Bills of Exchange.
Because of basic ideological differences among the countries of the world, it is not possible to
achieve unification of all private laws. Therefore, another method of avoiding the situation where
courts in different countries may arrive at different results on the same matter is the unification of all
private laws. In 1951, a permanent bureau of Hague Conference was constituted. This has been done
under a Charter which has been accepted by many countries, including the UK. The drafting of the
charter in 1951 designed to place Hague Conference on the firm footing by the creation of a
Permanent Bureau composed of a Secretary-General and two Assistant Secretary-Generals belonging
to two different countries, is an event of great significance. Its functions are chiefly to examine and
prepare proposals for the unification of the rules of private international law while, at the same time,
maintaining a close touch with other governmental and non-governmental organisations. There are
numerous other Charters, Conventions and International Institutes working towards unifying Private
International Law. But international Conventions can be part of municipal law only when the same
have been recognized or incorporated in the municipal law.
Codification occurs both in the international and the national spheres of the legislative process. From
the inception of the codification movement, international private relations have been regulated both
within the States and within the international community by way of policies and principles
acceptable to all the legal systems. Several arguments have been used to challenge the need for and
suitability of the codification of private international law, particularly conventional codification. On
the other hand, cogent arguments have been used in support of the view that private international
law reaches perfection through unification.
Development and theories of conflict of laws
The first instances of conflict of laws in the Western legal tradition can be traced to Greek law.
Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-law
rules. Leading solutions varied between the creation of courts for international cases, or application
of local law, on the grounds that it was equally available to citizens of all states.
More significant developments can be traced to Roman law. Roman civil law (jus civile) being
inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The
officers of these specialized tribunals were known as the praetor peregrinus. The Praetor peregrinus
did not select a jurisdiction whose rules of law should apply. Instead, they "applied" the "jus
gentium." The jus gentium was a flexible and loosely-defined body of law based on international
norms. Thus, the praetor peregrinus essentially created new substantive law for each case. Today,
this is called a "substantive" solution to the choice-of-law issue.
The modern conflict of laws is generally considered to have begun in Northern Italy during the late
Middle Ages and at trading cities such as Genoa, Pisa, and Venice. The need to adjudicate issues
involving commercial transactions between traders belonging to different cities led to the
development of the theory of statuta, whereby certain city laws would be considered as statuta
personalia "following" the person whereby it may act, and other city laws would be considered as
statuta realia, resulting in application of the law of the city where, e.g., the res would be located (lex
rei sitae).
The modern field of conflicts emerged in the United States during the nineteenth century with the
publishing of Joseph Story's treatise on the conflict of laws in 1834. Story's work had a great
influence on the subsequent development of the field in England such as those written by A.V. Dicey.
Much of the English law then became the basis for conflict of laws for most Commonwealth
countries. However, in the US, Story's work fell out of fashion in the mid-twentieth century.
Traditional conflict of law rules were widely perceived as too rigid and unresponsive to the needs of a
highly mobile society undergoing the Second Industrial Revolution.
1. Statutory theory: The statute theory is the most ancient theory. In its original version, it is a
product of the 13th century Italian theories. It was propounded by Bartolus may be called the father
of this theory. Personal Law may be applied if it is not opposed to public policy or public order. The
term ‘statute’ was used to indicate any local law, whether customary or legislative of a city state.
This statute or local are classified according to statute theory into three categories namely personal
statute, real statute, and mixed statute.
a) A personal statute relates to persons (statuta personalia) and applied to persons domiciled
within a territory. The statutes of that particular territory applied to such domiciled persons
even when they went to other territories.
b) The real statutes regulate things (statuta realia) and Real statutes are territorial in
application and will be applied only by local courts.
c) Mixed statute deals with acts (statuta mixta) such as formations of contracts or agreements.
Mixed statutes applied to all acts done within the territory of the enacting City States even
when the case in respect of such an act arose within another City State.
This theory appears on the force of it to be very simple. But in actual practice it preserved great
difficulties because it was not easy to determine whether a statute was real, personal, or mixed.
Bartolus made a distinction to tackle such problem. If the language of the statute mentions the
person first it shall be considered to fall under personalia, and if it mentions the thing first then it
falls under realia. According to Cheshire & North’s Private International Law, the Statute Theory lacks
a scientific basis, and affords no solid ground upon which a sound and logical system can be erected.
The Dutch jurist Ulric Huber laid down 3 maxims for the statute theory: a) The laws of a State have
absolute force within the territorial limits of its sovereignty, b) All persons who are found within
the territory of a Sovereign are deemed to be his subjects, and as such are bound by his laws, c) By
reason of Comity every Sovereign admits that a law which has already operated in the country of
its origin shall retain its force everywhere.
The third maxim is debated on the fact that one can not expect every country’s law to suit him or his
means. While in some countries gay marriage is legal while in some others it is not. Therefore, the
third maxim becomes illogical and impractical.
2. International theory: These are rules of conflict of laws which are universal and common to
various legal systems of the world. This theory rejected the statute theory as well as the territorial
theory. Savigny said, solution of the problem did not lie in classifying the laws based on their object ,
but in the ability to find out the seat of each legal application , as each legal relationship has its
natural seat in some local law. Here the seat is the place where the thing is situated or in case of a
person, where he is domiciled.
According to Savigny the natural seat was determined by the domicile of a person affected by the
legal relation; the place where a thing, which is the object of a legal relation is situated; the place
where a juridical act is done; the place where a Tribunal sits.
The international theory has been criticized on many courts. The most damaging criticism of this
theory starts on the assumption that Savigny assumed the laws of different lands to be uniform,
why in fact it is not so. For instance, breach of marriage promise is regarded as breach of contract in
some countries while in some it is regarded as a tort. In such a situation, it may be difficult to find
out the natural seat of the legal relationship. Then, in our contemporary world there are still more
than one international system, of which the important ones are, the common law system and civil
law system.
3. The territorial or acquired rights theory: Territorial and vested rights theory was originally
formulated by the Dutch jurist Ulrich Huber (1635-1694) in his book “De Conflict Legam”. Later it was
elaborated by Dicey in England and by Beale in U.S.
As expounded in Holland’s jurisprudence, this theory is based on the principle of territoriality of

administration of law, that judges can only enforce the law and recognize the judgment of their own
legal system to which they belong or circumscribed by the territory. Courts of Sovereign state does
not apply foreign law but merely recognize the consequences of the operations of a foreign law.”
This means that courts of a country according to them, apply foreign law only to the extent to which
they are permitted to do so by the sovereign.
This theory tries to reconcile the territoriality of a law and the need for private international law. Dr.
Cheshire has vehemently criticized this theory as being, ‘unnecessary,’ ‘untrue,’ and ‘unhelpful.’ The
Territorial theory in essence nearly defeats the purpose of Private International Law as a subject
area. Because it is very well established that territorial law is not enough to resolve all conflicts of
law.
4. Local law theory: Local law theory is expounded by Walter Wheeler Cook in his book ‘logical and
legal basis of conflict of laws 1942’. This theory is fully founded on common law genius namely that
law is not deducted from logical reasoning of any philosophers and jurists, any inherent principle but
simply an observation of what judges have done in the past in order to prophecy how they will
probably act in the future. This theory is a developed version of the territorial theory. The gist of this
theory is that the court recognizes and enforces a local right that is created by its own. This theory
approves the foreign right when it is recognized in the Local law. But as the dispute in question has
a foreign element the court would necessarily apply the rule of the forum that would be applied in
the case of a purely domestic dispute. But for reasons of social expedience and practical convenience
it considers the laws of a foreign country in which the decisive facts have occurred.
According to Cheshire, North & Fawcett, this local law theory affords no basis for the system of
Private International Law. While precedents can be a good basis for deciding on conflicts however,
they shall not be the only basis on which any future decisions shall be made. A court should also be
ready to set aside a Precedent if it discovers in future that the precedent has led to miscarriage of
justice. A great example of such is the power of higher courts to overrule the earlier judgements of
lower courts.
5. Theory of justice: The Theory of Justice was developed by Dr Graveson with the only basis of
delivering true justice. His main aim is to deliver pure justice keeping in mind precedents, having
good conscience and equity. The approach of English courts to private international law is pragmatic
and ethical. It has sociological, ethical, and legal aspects towards the end of justice. According to
Dr.Graveson, the basis of private international law is sociologically, in the international need for fair
treatment in the private transactions of individuals, ethically, in the desire of English courts to do
justice; and legally, in the obligation of their oath in office. In essence the rules of private
international law are made from the precedents with the view of doing justice. It brings one to an
important conclusion as to no particular theory can properly answer the question of what are the
theoretical basis of private international law. Thus, it is inevitable that some or the other foreign law
is applied to resolve the cases of such conflict of interests.
Successive stages in a suit which involves the application of private international law
a) Jurisdiction (module II)

b) Classification of the Cause of Action
c) Selection of the Lex Causae
d) Application of the Lex Causae
Classification of the Cause of Action: In all systems of law the various legal rules are arranged under
specific categories or divisions such as contracts, torts, succession etc. The cause of action in a case
should be put into the appropriate category; for example, the judge should decide whether the
cause of action relates to tort or contract etc. This is classification. Unless this is done, he will not be
able to apply the choice of law rule and ascertain the lex causae, because the choice of law will be
different for different categories.
He must decide, for instance, whether the question relates to the administration of assets or to
succession, for in the case of movables left by a deceased person, the former is governed by the law
of the forum, the latter by the law of the domicile.
Example: A man, domiciled in Russia dies leaving immovable properties in England. The widow
claims a share of the properties and an English court has to adjudicate upon widow’s claim. If
classifying it as succession in immovable property the rule of choice of law that is applicable is lex
situs. If classifying the widow’s claim as a matrimonial right, the choice of law rule is lex domicilii of
the husband – the Russian Law.
In a vast majority of cases the process of classification is simple and automatically performed. In
some cases, however, difficulties arise mainly because the cause of action may equally be placed in
one category or another. Secondly, it may be a case where English law and the relevant foreign law
may classify the cause of action into different categories. Thus, there arises conflict of classification
and the question is which law governs classification – the lex fori or the foreign law?
These two difficulties are well illustrated by the historic Maltese Marriage case (Anton v. Bartolo
(1891) Clunet 1171), decided by the Court of Appeal at Algiers in 1889. A husband and wife, who
were domiciled in Malta at the time of their marriage, acquired a French domicile. The husband
bought land in France. After his death his widow brought an action before a French Court for a share
in her deceased husband’s landed property. So, at the time of death the husband was domiciled in
France. For the French Court this was a case involving a foreign element as the husband and wife
were domiciled in Malta at the time of their marriage. Both according to the Maltese law and French
law, succession to land was governed by lex situs and matrimonial rights were regulated by the lex
domicilii at the time of marriage.
The first essential, therefore, was to decide whether the facts raised a question of succession to land
or of matrimonial rights. At this point, however, a conflict of classification emerged. In the French
view the facts raised a question of succession; in the Maltese view a question of matrimonial
rights. When a conflict of this nature arises it is apparent that, if a court applies its own rule of
classification, the ultimate decision on the merits will vary with the country in which the action is
brought. On this hypothesis, the widow would have failed in France but have succeeded in Malta.
Here the French Court accepted the classification made by Maltese law and applied Maltese Law
(lex domicilii at the time of marriage) in deciding the widow’s claim.
English law does not follow this principle. The English judge will classify the cause of action by
applying English law. At the same time, he will not completely ignore the classification made by the
foreign law and he may give wider meaning to the legal categories recognised in English Law in order
to accommodate the foreign classification. Categories like, contracts, torts, bill of exchange, can be
given a wider meaning than those usually accorded in a purely domestic case.
In England initial classification was on the basis of the lex fori – Macmillan Inc v. Bishopsgate Trust,
1996, “the proper approach is to look beyond the formulation of the claim and to identify according
to the lex fori the true issue or issues thrown up by the claim and defence.”
The following example will show that English judges have been prepared to solve the problem of
classification in this broad spirit. In De Nicols v Curlier, 1900 the facts were as follows: A couple,
French by nationality and by domicile, were married in Paris without making an express contract as
to their proprietary rights. Their property, both present and future, thus became subject by French
law to the system of community property. The husband died domiciled in England, leaving a will
which disregarded his widow's rights under French law. The widow took proceedings in England to
recover her community share.
The rule of English private international law is that the proprietary rights of a spouse to movables
are governed primarily by any contract, express or implied, that the parties may have made before
marriage. Failing a contract, the rights are determined by the law of the matrimonial domicile of
the parties. Thus, the problem of classification was whether the right claimed by the widow was to
be treated as contractual or testamentary. It was clear that in the eyes of English internal law no
contract had been made, but the House of Lords held that according to French law a husband and
wife are bound by an implied contract to adopt the system of community, despite the absence of an
express agreement to that effect. Thus, the court, by its readiness to recognise a foreign concept,
widened the category of contracts as understood by English internal laws.
Classification of substantive or procedural law:
In cases containing a foreign element, during the trial there are certain areas where the lex causae is
paramount and there may be other areas where lex causae has no application. If the subject matter
is procedural, then the law of the forum applies exclusively and substantive laws are governed by
“lex causae.” A procedural rule of the foreign law will not be recognised by English court, if it is at
variance with the English law. Though there is a theoretical difference between the substantive laws and
procedural laws, a clear-cut distinction is too difficult to be made in its practical application. Here the
judge has to make a classification and determine whether the rule in question belongs to procedural
laws or substantive law. To complicate matters, sometimes there may be conflict between the lex fori
and lex causae on this question of classification; lex fori may classify the rule as procedural, whereas
the lex causae may classify it as substantive.
This problem was illustrated under the case of Ogden v. Ogden, 1908. This concerned a domiciled
Frenchman, aged nineteen, who married a domiciled Englishwoman, in England, without first
obtaining the consent of his parent, as required by Article 148 of the French Code. The husband
obtained an annulment of this marriage in a French court on the ground of want of consent. The wife
subsequently went through a ceremony of marriage in England with a domiciled Englishman, who, in
the present action, petitioned for a decree of nullity on the ground that at the time of the ceremony
the respondent was still married to the Frenchman.
The question raised was the validity of the marriage with the French man in violation of the
requirement of parental consent. The court classified the rule of parental consent as one relating to
formality or procedure. As the marriage took place in England, the formal validity is governed by
English law and French procedural rules are inapplicable. Hence the court ignored the French rule of
parental consent and held the marriage with the French man valid with the result that the
subsequent marriage with the Englishman was void.
Incidental Question:
While deciding a case containing a foreign element, the problem of the incidental issue or incidental
question is said to arise when another issue as a result of the first issue arises. A case involving
private international law may place a subsidiary issue, as well as a main question, before the court.
Once the relevant choice of law rule has been applied and the law to govern the main issue thereby
determined, a further choice of law rule may be required to answer the subsidiary question
affecting the main issue.
This problem may be illustrated as follows:
Wife claims rights of intestate succession to Husband’s immovables in Italy. According to English rules
of private international law, this falls to be determined by Italian law as the law of the situs. Assume
further that, under English conflict rules, Wife is recognised as widow, but not under Italian rules,
because, for instance, Italian law does not recognise Hs divorce from his first wife. The main problem,
whether Wife can succeed to Hs estate, is clearly determinable Italian law, but must the subsidiary
problem of the validity of the marriage also be referred to that law?
A question of this nature is termed as the "incidental question". For the principal issue to be
decided, resolving the incidental issue is essential. Generally, for example, in many cases the issue of
the validity of marriage arises incidentally as a secondary question while the principal claim concerns
like divorce, property or pecuniary rights, succession, support and alimony, etc
Prerequisites for an incidental question: 1) The main issue should be governed by a foreign law; 2)
There should be a subsidiary question involving a foreign element which could have arisen separately
and which has its own independent choice of law rule; 3) This choice of law rule should lead to a
different conclusion than which would have been reached had the law governing the main question
been applied.
Without these prerequisites there is no incidental question.
Lawrence v. Lawrence, 1985: English Case
The first husband and his wife married in Brazil and lived there until 1970. In that year the wife
obtained a divorce in Nevada, USA, and the next day she married the second husband in Nevada. The
wife’s Nevada divorce was recognised by English law but not by the Brazilian law, under which she
remained married to her first husband. Later, the second husband petitioned for a declaration as to
the validity of this second marriage. The conflict arose because the two laws, taking different views
as to the validity of the Nevada divorce, also took different views as to whether the wife was single
when she remarried.
Since the Nevada divorce was invalid by Brazilian law she lacked capacity by that law, so the marriage
was void. The trial judge, however, held that the validity of the remarriage was governed by English
law, because, being the law of the intended matrimonial domicile, it was the law of the country with
which the marriage had its most real and substantial connection. Since the divorce was recognised
by English law, the remarriage was valid.
In the Canadian case of Schwebel v Ungar [1963] 42 DLR (2d) 622, the wife and her first husband
were originally domiciled in Hungary. On their way to settle in Israel, while in Italy but still domiciled
in Hungary, the husband divorced the wife under Jewish law (gett). They then made their way to
Israel where both became domiciled, and where the divorce was recognised as valid. Some years
later, the wife, still domiciled in Israel, married in Ontario a second husband who was domiciled
there. The divorce obtained in Italy was not recognised in Ontario. The second husband petitioned
in the Ontario court for a nullity decree, on the ground that when the wife’s second marriage was
celebrated, she was still married to her first husband. The Canadian courts held the remarriage
valid, because using the dual domicile rule, the wife’s capacity to remarry was governed by the law
of Israel, and by that law the divorce was valid, even though it was not valid by the lex fori, Ontario
law. In other words, the lex causae approach was used for the incidental question. Here, capacity to
enter marriage was regarded as the main question, to which divorce recognition was incidental.
A problem related to that of the incidental question is that of "picking and choosing" or ‘Dépeçage.’
'A case involving foreign elements may give rise to issues which involve different choice of law rules.
Dépeçage means to divide. In multi-state cases, it refers to a process by which different issues in the
one case might be divided, segregated, and determined in accordance with the laws of different
places. There are two or more issues in dispute, each of which gives rise to a conflict of laws.
Dépeçage admits that each issue is dealt with by a different choice of law rule, and so a different law
of the cause.
Application of the lex causae: Doctrine of renvoi
Renvoi is a French word which literally means – to send back or return. Renvoi is a conflict of conflict
rules i.e. choice of law rules. The doctrine of renvoi is a legal doctrine which applies when a court is
faced with a conflict of law and must consider the law of another state. It is a process by which the
court adopts the rules of a foreign jurisdiction with respect to any conflict of law that arises. The
problem of renvoi therefore arises when the court is applying the law of the cause (as initially
selected), the question being which part of the law of the cause is first to be applied. The idea behind
the doctrine is that it prevents forum shopping.
o Renvoi arises in the application of the lex causae.

o Renvoi arises because of the different senses in which lex causae could be interpreted.
o Renvoi arises because of the existence of different systems of PIL with different choices of
law rules.
Illustration: ‘X’ a British subject, domiciled in Italy, dies intestate leaving movable properties in
England and an English court is required to decide as to how the movables are to be distributed.
There are three connecting factors in this case: 1. Nationality, 2. Domicile and 3. The place where the
movables are situated. According to English PIL the decisive connecting factor is the place of domicile
and hence the law to be chosen is the lex domicile of the deceased at the time of his death i.e. Italian
Law. The judge has to apply the law of Italy. Here the difficulty is to determine the sense in which the
lex causae or Italian law should be understood. Law of Italy can be taken in two senses: 1. Law of
Italy in the narrow sense which is part of the Italian Code which deals with intestate succession to
movable properties, 2. Law of Italy in the broader sense of the whole Italian Law including Italian PIL.
If it is taken in broader sense, the judge will have to apply Italian PIL. Then the intestate succession to
movable properties will be governed by the lex patriae i.e. English Law. The result is that English PIL
refers the question of succession to movables to Italian Law. And the Italian PIL refers the question
back to English Law. This reference back is called Renvoi (Renvoi by remission). If the remission back
is accepted or English Law is applied by the judge it is called simple renvoi or single or partial renvoi.
Forgo’s case: Forgo, a Bavarian national domiciled in France, died intestate in France leaving movable
properties there. The French court has to decide how the movable properties were to be distributed.
According to French PIL, the law to be applied was the lex patriae, i.e. law of nationality namely the
Bavarian law. Bavarian law was taken in the wide sense of the whole law of Bavaria including
Bavarian PIL. According to Bavarian PIL succession to movables was governed by the lex domicilii. So
the Bavarian law referred the question back to the French law. This reference was accepted by the
French Court and the French law of succession was applied, thus depriving the right of succession to
Forgo’s collateral relatives.
Simple renvoi may arise by two methods: by remission and by transmission. When only two legal
systems are involved – PIL of country A referring the question to be decided to the law of country B
and the PIL of that country referring the question back to the law of the country A – the renvoi is by
remission. Sometimes the PIL of the legal system to which the reference is made may remit the
question to the law of third country. This is renvoi by transmission.
Doctrine of double renvoi: also known as Total renvoi or English doctrine of renvoi or the foreign
court theory. The English judge is required to make an imaginary journey to the foreign land and sit
in the court of that country. According to this theory, an English judge who is referred by his own law
to a foreign system of law, should apply whatever law a court in that foreign country would have
applied if that court were seized of that matter.
Illustration: A British subject domiciled in Belgium, dies intestate in Belgium leaving assets in
England. English court has to decide as to how the assets are to be distributed. This theory requires
the English judge to imagine that he is sitting in a Belgium court and decide the case as would be
decided by the Belgium court. He will apply the choice of law rule of Belgium PIL and find that this
question of succession is to be decided by lex patriae i.e. English law. He examines the English law
including PIL and finds that English PIL refers the question back to Belgian law as lex domicilii. Belgian
law does not recognise single renvoi and the reference back will not be accepted. So the Belgian
judge will apply the internal law of England in distributing the assets. The same thing should be done
by the English judge according to the above theory. The English judge should consider himself sitting
in the Belgian court under the particular circumstances of the case. In other words, when the court
is referred by the choice of law rule to a foreign law, it should apply the foreign law as the foreign
court would administer it. The reference to the law of a country should be regarded as not simply as
to the whole law of the country, but to the law which the courts of that country would apply had the
case arisen there. Thus the renvoi is total or double.
Collier v. Rivaz (1841): A British subject who died domiciled in Belgium made a will which was valid
according to English law, not according to Belgian law. At that time the validity of the will should be
tested by the law of the place where the testator was domiciled at the date of his death. If the case
where to arise in a Belgian court, that would apply the English law as the law of nationality. The
validity of the will was tested by English law and the will was held valid. Sir Hubert Jenner said that
‘the court sitting here decides from the evidence of persons skilled in that law and decides as it
would be sitting in Belgium.’
In Re Annesley (1926), the case was concerned with the validity of a will executed by a woman
named Annesley. She was a British subject domiciled in France at the time of her death. The will she
executed was valid by English law but failed to satisfy the requirements of French law. The English
court held that French law should be applied. The judge reached that conclusion by applying foreign
court theory. English PIL refers the question of validity of wills in the law of domicile, i.e. French law.
According to the French law, judge has to apply the law of the nationality that is English law. In the
other words, the French judge would find that he is referred to the English law and the English law
refers the matter back to the French law. Partial renvoi is accepted by French law and therefore that
reference would be accepted and the French internal law would be applied.
In Re Ross (1930), Janet Anne-Ross, a British subject domiciled in Italy died in Italy leaving movable
properties in England. She had left a will distributing her properties both in England and Italy by
which nothing was given to her only son. According to the Italian law, the son was entitled to a share
of her properties. A suit was brought in England on the basis of the above Italian rule. English PIL
refers the question of succession to movables to the Law of domicile i.e. the Italian Law. The English
judge applied the foreign court theory. Italian PIL provides that succession to movables must be
decided by the law of the nationality, i.e. English law. When the Italian judge refers to English law he
finds that by English law he is referred back to Italian law. Italian law rejects the theory of partial
renvoi and hence the reference back will not be accepted and English law will be applied.
Drawbacks of double renvoi: a) foreign court theory does not necessarily ensure uniform results.
Uniform results will be produced only if the theory is accepted by one country and rejected by the
other. If recognized by both, there will be an interminable reference forth and back, what Chesire
calls international game of lawn tennis.
b) foreign court theory amounts to the complete surrender of the English choice of law rule. The
effect of this theory is to substitute a foreign law rule in preference to the English rule. The English
rule is discarded since it does not meet with the approval of the foreign law makers.
c) the foreign court doctrine is difficult to apply. This theory requires the English judge to ascertain
what precisely will be done by the foreign judge. This creates two serious difficulties. One is to
ascertain whether partial renvoi is accepted or repudiated by the foreign law. The second difficulty is
to ascertain the national law of the propositus when the foreign law refers the question to the
national law.
Areas of application of double renvoi: According to Cheshire, the foreign court theory is applicable
only in some exceptional cases, like, 1) Validity of wills/bequests, 2) Title to foreign land/ claims to
foreign immovable, 3) Certain cases of title to movable properties, 4) Validity of marriages
MODULE – II
JURISDICTION
Jurisdiction broadly refers to the power of a court to entertain a case. Jurisdiction defines the powers
of a court to inquire into facts, apply the law, make decisions, and declare judgments. The
involvement of foreign elements in a case is likely to make determination on jurisdiction more
complex. There is a tremendous variety in the bases of jurisdiction adopted in different states.
Starting with common law jurisdictions, there are clear similarities between Britain and other States
like Australia, New Zealand, and Canada. Although there is considerable diversity in the rules on
international jurisdiction in different states, one theme that keeps on occurring is that of forum
conveniens. Forum conveniens can be defined as a court taking jurisdiction on the ground that the
local forum is the appropriate forum for trial or that the forum abroad is inappropriate. It is a
positive doctrine, unlike the doctrine of forum non conveniens, which is a negative doctrine
concerned with declining jurisdiction.
Forum conveniens manifests itself in different ways, like;
Discretionary rule – This rule is found in many common law jurisdictions. English court is empowered
under its non-convention rules on jurisdiction to permit service of a writ out of the jurisdiction on a
foreign defendant. The court has to be satisfied that there is a serious issue to be tried and that the
discretion should be exercised to allow service out of the jurisdiction. The plaintiff has to show that
England is the appropriate forum for the trial.
Rule of construction – A German court in a decision, by means of rule of statutory construction, has
introduced a requirement of a ‘sufficient connection’ between the litigation and the forum state in
cases where jurisdiction is founded on the presence of the defendant’s property in the forum. This
requirement introduces one of the main considerations to be taken into account under forum
conveniens.
Express reference – Some states have adopted jurisdictional bases which expressly refer to
considerations of appropriateness. Under French law, a judge was able in two situations to rule on a
case, not because of a precise rule giving him competence but because he thinks it is appropriate to
do so. The situations in question are, first, where there would otherwise be a miscarriage of justice
and, secondly, where the dispute deals with measures of execution to be performed in France and
the judge decides that it is right to determine some underlying question. In many states
appropriateness is seen as the underlying basis of their rules on jurisdiction.
The underlying basis of jurisdiction – Under French law jurisdiction is said to be based on proper
administration and interests of litigants. The Greek law of jurisdiction is said to take account of all the
public and private interests involved and allocate jurisdiction to the appropriate forum in each case.
Swiss law bases jurisdiction on a strong connection with the forum. There is no jurisdiction on the
basis of the simple presence of the person or mere location of the property. Under the Brussels and
Lugano Conventions jurisdiction is always allocated to an appropriate forum. The bases of jurisdiction
under these conventions require a close connection with the forum. There are different perceptions
in different states as to when the local forum is an appropriate one for trial.
Limitation on the exercise of jurisdiction
Restraints on the exercise of jurisdiction are of enormous practical importance in conflict of laws. The
restraints (stay of proceedings and/or declining of jurisdiction) refer to the situation where a court
which has jurisdiction refuses to exercise it. However, it must be distinguished from the situation
where the rules on jurisdiction are not satisfied and a court, hence, dismisses the action on the
ground that it has no jurisdiction. Of course, in both situations, the result is the same: the court
refuses to try the action. The major grounds for declining jurisdiction include: 1) Forum non
convenience, 2) Pendency and 3) Jurisdiction clauses
Forum Non Conveniens:
Forum Non-convenience (FNC) can be defined as a general discretionary power for a court to
decline to exercise a possessed jurisdiction on the basis that the appropriate forum for trial is
abroad or that the local forum is inappropriate. The discretion on the court to determine whether
or not to determine a suit provides a principal mechanism by which the common law regulates and
seeks to prevent clashes of jurisdiction which arise when proceedings take place in more than one
court.
In the leading case, Spiliada Maritime Corp. V. Cansulex ltd (1986), the British House of Lords
adopted the basic principle that a stay will only be granted on the ground of FNC where the court is
satisfied that there is some other available forum, having jurisdiction, which is the appropriate forum
for trial of the action, i.e. in which the case may be tried more suitably for the interests of all the
parties and the ends of justice.
Generally, one of the important questions which a court should resolve before dismissing an action
through FNC is whether there exists a convenient alternative forum to which the defendant is
amenable. If the court doubts this, it may not dismiss the action, or alternatively, it may determine
for stay until assured that the defendant will not resist attempts to be sued in the more convenient
forum. As a matter of doctrine, FNC neither entails a res judicata effect nor does exclude it. Courts
may at their own discretion allow reinstitution of the same action when, for instance, the defendant
cannot be subjected to the jurisdiction of the convenient forum, or that the period of limitation for
the action has lapsed in the calculation of that forum. The doctrine of FNC is not explicitly adopted
by the non-Common Law countries; it is the Common Law tradition which is responsible for its
development.
In some case, the plaintiff may commence an action in a state which has been deliberately chosen
because of its inconvenience to the defendant. What FNC does in this case is that in a way it lessens
the harshness of transient rule of jurisdiction or, in other words, it serves as an antidote to an
excessively wide basis of jurisdiction. The major role of FNC is to restrict the plaintiff into a
convenient forum. Thus, in a system where it operates, forum shopping would no more be an issue
because the plaintiff would be forced to go into the appropriate forum. If the parties mutually have
agreed that the matter be settled in a foreign forum, then, the courts will usually uphold the
agreement of the parties.
Pendency/ Lis Alibi Pendens/ Stay of Proceedings:
Pendency refers to a situation where parallel proceeding involving the same parties and cause of
action are continuing in two different states at the same time. There is an obvious risk that if the
proceedings continue, the courts of different states may hold an irreconcilable judgment. In order to
avoid this problem, many states have adopted pendency rules as a ground for suspending of
jurisdiction. Lis alibi pendens (a Latin term that means an action on the same cause of action is
pending elsewhere) arises from international comity and permits a court to refuse to exercise
jurisdiction when there is parallel litigation pending in another jurisdiction. Under this rule the court
will stay proceedings before it to await the outcome of the same case in a foreign court or under
foreign arbitration in exercise of case management (Reichhold Norway ASA v. Goldman Sachs
International [2000] 1 WLR (CA)).
In the case MacShannon v. Rockware Glass ltd [1978], Lord Diplock restated the governing principle
and stated that in order to justify a stay, two conditions should be satisfied, one positive and one
negative:
a) The defendant has to satisfy the court that there was another forum to whose jurisdiction he was
amenable in which justice could be done between the parties at a substantially less inconvenience or
expense, and
b) The stay would not deprive the plaintiff of a legitimate personal or juridical advantage which
would be available to himself if he invoked the jurisdiction of the local court.
In order to stay the proceedings, the court has to consider:
 Whether the proceedings in the foreign place were commenced first
 The stage they have reached
 The effect that determination of the foreign proceedings would have on the proceedings in the
forum.
Stay Because of Abuse of the Process - where resort for litigation is for an improper motive, such as
harassment of the defendant, then the court will also stay the proceedings.
The first seized approach requires the courts of the forum to defer to the courts of a foreign state if
the latter are first seized of the proceedings. Where the jurisdiction of the court first is established,
any court other than the court first seized shall decline jurisdiction in favor of that court.
Traditionally, the existence of identical or related proceedings in the foreign place has not made
courts more inclined to grant a stay of proceedings, especially where the defendant in the forum is
the plaintiff in the foreign proceedings.
Jurisdiction Clauses:
1. Non-exclusive jurisdiction clause

o Parties agree to submit to the jurisdiction of a place but there is no further agreement
precluding either party from suing elsewhere
o Persuasive
2. Exclusive jurisdiction clause
o Parties agree not only to submit to the jurisdiction of the courts of a foreign place but also
agree not to sue in any other place
o Eg ‘disputes under this contract are to be referred only to the Supreme Court of
Queensland
o Highly persuasive but not necessarily binding on the court
The negative implication of forum selection clause in an agreement is exclusion of forums which
could have exercised jurisdiction had it not been for the parties‟ agreement to opt otherwise. To put
it in other way, if parties to a contract confer jurisdiction to a forum state, say X, other states are, at
least theoretically, precluded from asserting jurisdiction over the parties for a dispute arising from
the contract, no matter whether one or both of the parties are domiciliary or not.
Personal Connecting Factors: Domicile and Residence
Many choice of law rules use a personal connecting factor to determine the lex causae. Example
choice of law rule for intestate succession to movables is the law of the place where the deceased
was domiciled at time of death. Some choice of law rules are not dependant on a personal
connecting factor. Example Choice of law rule for intestate succession to immovables is law of the
place where the immovable is situated. Also, the choice of law for tort is the place where the tort has
occurred.
Lex domicilii is a personal law evolved from the Roman law to become a connecting factor. It is a
connecting factor which links a person with a particular legal system. Domicile means a permanent
home or place where a person resides with the intention of remaining there for an indefinite
period. According to MORRIS - “It is important to identify an individual’s personal law, which governs
questions concerning the personal and proprietary relationships between members of a family. Place
of birth is an inadequate criteria by which to identify the personal law”. William vs Osenton 1914
The domicile of a person is in that country in which he either has or is deemed by law to have his
permanent home. Whicker vs Hume 1958 By domicile we mean home the permanent home
General principles of domicile:
1. No person can be without a domicile;

2. No person can at the same time have more than one domicile;
3. An existing domicile is presumed to continue until it is proved that a new domicile has been
acquired; and
4. Domicile denotes the connection of a person with a territorial system of law.
Domicile is different from nationality and residence. Nationality represents a man’s political status
whereas domicile indicates his civil status and it provides the law by which his personal rights and
obligations are determined. Nationality depends apart from naturalisation, on the place of birth or a
parentage: but in the case of domicile, one may acquire a domicile of choice by residence in a
particular country with a particular intention. Consequently, a man may be a national of one country,
but domiciled in another.
Types of domicile:
• Domicile of Origin: The domicile attributed at the time of birth.
• Domicile of Choice: The domicile the competent person can acquire during his life time.
• Domicile of Dependency: The domicile of the dependent person is dependent on the

conduct of another
Domicile of Origin:
Domicile of origin is assigned by law to a child when it is born. The common law rule is that a
legitimate child takes father’s domicile at time of birth, and an illegitimate child takes mother’s.
Foundlings take domicile of the place where found. The domicile of origin acts as a fall back,
whenever there is no other domicile, it comes to fill the gap. It avoids assuming the continuance of
an abandoned domicile.
Udny vs. Udny 1869 –
 Udny was born in Leghorn 1779 with a Scottish Domicile of Origin.

• He joined Guards in 1797 and acquired property in London where he lived with his family till
1884.
• He then left for France to avoid pressing creditors but did not acquire domicile of choice.
• Later he fathered a child and then married the mother. The question before Scottish court as
to whether the child was legitimate?
• The House of Lords stated that “no man shall be without a domicile, and secure this result
the law attributes to every individual as soon as he is born, the domicile of his father, if the
child is legitimate and the domicile of mother if illegitimate. This has been called the
domicile of origin and is involuntary… Domicile of origin prevails until a new domicile has
been acquired. But the moment a person loses his acquired domicile, the domicile of origin
springs back to him”.
• Hence it was held that, Udny had acquired a domicile of choice in England and he had
abanonded it by departing for France. His Scottish Domicile of origin was revived.
Domicile of choice:
Every person over the age of majority and is not mentally incapable is regarded by English law as able
to acquire domicile of choice by residing in a country with the present intention of making it a
permanent house. There are two requisites for the acquisition of a domicile of choice. They are:
1. The fact of residence
2. Intention to reside
It must be proved that the person in question has established his residence in a particular country
with the intention of remaining there permanently. These two elements – factum and animus – must
concur. For presence/factum, length of time is immaterial, bare presence is sufficient. If there is a
dispute, you have to adduce evidence of what your intention is. Intention/animus at common law is
an intention to reside permanently in the place. Intention of leaving domicile of origin in itself is
insufficient, as is intention to acquire a new domicile in the future. It must be freely chosen ie not a
duty – foreign posting, relief from illness or escape the creditors. However, this can be overridden by
other factors – it is just that this in itself will not show a new domicile.
Winans v. A.G, 1904: Winan’s domicil of origin was Maryland in USA. Till the age of 26, he was
engaged in his father’s business in USA. Then he left for Russia and was employed there for 10 years
by the Russian Govt. He became ill and doctors advised him to reside in England. Till his death he
resided in England and never returned to USA. The question arose as to where he was domiciled at
the time of his death.
The burden of proving the change of domicile lies on the person asserting the change and the
intention of the person has to be proved. The court ruled in favour of the Winans. The House of
Lords held that he has not acquired a domicile of choice in England. Residence however long without
the requisite intention is not enough to acquire the domicile of choice. Sons proved that “he
described himself as a citizen of America in all his ideas and sympathies”. Hence, Domicile of origin
was retained.
Ramsay v. Liverpool Royal Infirmary, 1930: George Bowie was born in Scotland and worked for a
time as a commercial traveller in Glasgow. He gave up work in 1882 and decided to live in Liverpool
in 1892 where his brother and sister resided. He lived in Liverpool for 36 years until his death. George
left behind the will which was valid under Scottish Law and not under British Law. It became
necessary to determine his domicile for executing his will. It was held that, the long residence failed
to disclose any intention on his part to choose England as his permanent home. The House of Lords
held unanimously that George died domiciled in Scotland. The House of Lords held despite the long
stay in England, George Bowie had not acquired the domicile of choice. He would have moved to
England if those family members with whom he was living had decide to move.
Prisoners, Refugees and Fugitives:
The essence of imprisonment is that the individual is deprived of his personal freedom to move from
place to place. The prisoner will retain the domicile that he possessed before his imprisonment.
It is difficult to say the same with regard to refugees who flee the country of their birth out of
necessitous circumstances. They might return to the country of origin when it becomes safe for them
to do so. Refugees and temporary residents are capable of having a domicile of choice. The fact you
can show presence and intention to reside in a place means people like refugees and illegal
immigrants can acquire a domicile of choice.
A fugitive from justice may acquire domicile by choice if it is clear that he intends to establish links
with his new country. The court examines whether the individual has remained in a particular
country after he could have returned in safety.
Domicile of origin and domicile of choice:
The domicile of origin when compared with the domicile of choice is much more enduring and less
easily shaken off. As established in Winans and Ramsay’s case, very strong evidence is required to
displace a domicile of origin by a domicile of choice.
Domicile of choice is lost by animo non revertendi (with the intention of not returning). Here the test
of intention is much more less than displacing the domicile of origin. Mere absence of intention to
return will be sufficient.
Domicile of choice is acquired by free will and it can be abandoned by free will. Domicile of origin on
the other hand is imposed by the operation of law. It is not a matter of free will and cannot be
extinguished by abandonment. The domicile of origin continues to be in operation until it is
displaced by a domicile of choice. This was illustrated by the leading case of Bell v. Kennedy, 1868.
The Doctrine of Revival:
This doctrine has settled with the case Udny v. Udny, that where a person abandons a domicile of
choice his domicile of origin revives by operation of law until a new domicile of choice be acquired.
D is born in India of parents domiciled in England. In his infancy D is taken to Italy, where he resides
and is domiciled for next fifty years. He then leaves Italy with the Intention of settling in New York,
but dies in mid-Atlantic. The issue was to determine the domicile of D at the time of his death.
Domicile of origin is based on parentage and not on birth. Hence D’s domicile of origin is England by
applying the doctrine of revival, even though he had not set foot in England even once in his lifetime.
Domicile of origin is never lost and is in a position to revive whereas the domicile of choice cannot
revive and lost forever the moment a person leaves the country of his choice with animo non
revertendi.
Domicile of Dependence:
In English law there were three classes of dependent persons for the purposes of domicile – infants,
lunatics, and married women. Married women have now been freed from the dependent status by
the Domicile and Matrimonial Proceedings Act, 1973. (Puttick v. AG 1979)
Infants: During the minority of the child, it is incapable of acquiring a domicile of choice but will be
having the domicile of the person on whom it is legally dependent. This is the domicile of
dependence. In majority of the cases the domicile of dependence and the domicile of origin may be
the same, but it is possible that these may be different. If the father of a minor changes his domicile,
the new domicile is automatically communicated to the minor. This new domicile is the domicile of
dependence.
If a child is born illegitimate and later legitimated, the child automatically acquires the domicile of
father. But this is only the domicile of dependency, which the child gets from the date of legitimation.
Its domicile of origin continues to be that which was communicated at the time of its birth i.e., the
domicile of its mother.
The domicile of dependence changes as the parent acquires a new domicile and does not affect the
domicile of origin of the child. After the death of the father the child acquires the domicile of his
mother. Any domicile which is subsequently acquired by the mother is automatically communicated
to the minor child as the new domicile of dependence.
Lunatics: It is an agreed principle that the domicile of lunatic cannot be changed by himself as he
cannot have the requisite intention or by the person to whose care he has been entrusted. If a
person becomes lunatic after becoming major and after acquiring domicile of choice, he retains this
domicile during the period of lunacy. As a general principle he is incapable of acquiring a fresh
domicile or lose the existing domicile. If a person is insane continuously both in infancy and when he
attains majority, his domicile will change with that of his father. If a person becomes lunatic after
attaining majority, the domicile he had at that time could not be changed as to allow this would be
great damage to interest of others. According to Cheshire the correct solution would be that the
court should be entitled to change lunatics domicile if it appears to be for his benefit. Interest of
lunatic has to be given paramount importance over the interest of others.
Commercial Domicile/ Quasi Domicile:
Commercial Domicile is in no sense a true domicile. It is merely a legal concept used in the time of
war as a test of enemy character. Commercial domicile attaches to any person or firm voluntary
residence or carrying on business in enemy territory or even enemy occupied territory. This concept
has been principally used to determine the liability of property to seizure. The main points of
distinction between ordinary or civil domicile and commercial domicile are following:
1. Commercial domicile comes into effect only during war time whereas a person should necessarily
have the ordinary domicile throughout his life.
2. Residence and intention are not essential in the case of commercial domicile unlike the case of
ordinary domicile. A person may not reside in enemy territory but if he carries on business there, he
gets invested with commercial domicile.
3. Where no person can have more than one operative domicile for the same purpose, he may have
any number of commercial domiciles. It may be noted that since commercial domicile is not domicile
in the true sense, the fact that a person may have an ordinary domicile and one or more commercial
domiciles at the same time constitutes no exception to the general principle that no person can have
more than one operative domicile at the same time.
Domicile of companies or corporations: The company is domiciled in the country where it is

incorporated. The moment the company is brought into existence it gets domicile of origin (Country
of incorporation). Domicile of choice is not possible in case of company. The company throughout its
existence has only one domicile – the place of incorporation. Each corporation has one, and only
one, domicile. Generally, it is where the executive authority of the business is concentrated.
However, if such authority is not centralized in one state, then the commercial domicile is the place
where the majority of the corporation's daily operational decisions are made.
Presence and Residence: English court gets jurisdiction over a person by his mere presence. The
same principle applies to artificial persons like corporations. It is not necessary that a corporation
should be resident or domiciled or incorporated within the jurisdiction. An artificial entity can show
its presence by the transaction of business. The business must have been done in England not merely
done with England.
Residence of corporations is important for the basis of income tax. It becomes important to
determine whether the foreign company is a resident or not. Residence depends on control. A
company or corporation is regarded as resident in the country where the central control exists. The
test of control was laid down in case of Cesena Sulphur Co. v. Nicholson, 1876. The place of
incorporation is not at all decisive, it is one of the factors taken for consideration to determine where
the control is located. A company is resident where its control and management abide: it is domiciled
where it is incorporated. The material thing is to determine from which place the company is in fact
controlled not necessarily where according to its constitution it ought to be controlled.
MODULE – III
FAMILY LAW
Marriage:
The institution of marriage is neither purely a social nor religious nor legal institution. In fact, it is a
sociolegal-religious and economic institution. It regulates the social-economic-legal-religious, moral,
and cultural relations between man and woman in the civilized system by sanctioning certain mutual
rights and obligations towards each other. All legal systems of the world recognize the institution of
marriage as a sociolegal institution.
In Islam, marriage is considered as a civil contract by recognizing limited polygamy. In some

religions the performance of essential customary ritual ceremonies are considered as basic
conditions for legal sanctity to the matrimonial institution. Among Hindus, marriage is neither
purely sacrament nor purely a contract, it is something in between a sacrament and contract.
However, in Modern Hindu Law, Marriage has become monogamous and a dissoluble union and
ceased to be sacramental union. Though the marriage is regarded as a contract in western societies
but still the Roman Catholic Christians insists that marriage is a sacramental and indissoluble
institution- either marriage exists for ever or never. Under the Parsi marriage and divorce Act,1936,
though the marriage is regarded as contract a religious ceremony of ASHIRVAD is necessary for its
validity.
A marriage is a formal union of man and woman by social and legal contract that unites their lives
legally, economically, and emotionally. Their relationship continues throughout their lives or until
they decide to divorce.
Concept of English Marriage:
Under English internal law, marriage is defined as voluntary union for life between one man and
one woman to the exclusion of others. It is a Contract of sui generis. It cannot be rescinded by
mutual agreement of parties; it can be dissolved only by a formal or public act.
Cheshire and North defined “Marriage is a contract by which a man and a woman express their
consent to create the relationship of husband and wife. This contract, however, differs
fundamentally from a commercial contract in the following ways:
(a) As a general rule, it can only be concluded by a formal public act.
(b) It can only be dissolved by a formal public act.
(c) More importantly, it creates a status which is taken into account in relation to, for example,
succession, tax, legitimacy of children, and to some extent in relation to immigration laws.
In Hyde v. Hyde,1866, Lord Penzance defines English marriage as, “I conceive that marriage, as
understood in Christendom, may for the purpose of creating the status of ‘Husband’ and ‘wife’ be
defined as, the voluntary union for life of one man and one woman, to the exclusion of all others.”
The requirements of English marriage are that 1) the union should be voluntary 2) it should be
monogamous and 3) it must not be for a limited period. The reference to ‘Christian’ in Lord
Penzance’s definition is misleading. For English marriage, it need not be a marriage between
Christians. Whatever may be the religion of the parties, or the place of marriage, their unions will be
regarded as the English marriage provided, in the eyes of the relevant law, it possesses the two
attributes namely, indefinite duration and exclusion of all others.
Concept of Indian Marriage: In India two forms of marriages are available. One is a marriage as per
their religion to which both the parties are associated, another one is civil marriage which is
performed under The Special Marriage Act, 1954.
Consular marriages in India: Under the Foreign Marriages Act,1969 these Marriages are performed
abroad when one of the parties to the marriage is an Indian National, the other party may be an
Indian National or a Foreigner. The Government of India can appoint any diplomatic or consular
officer in a foreign country to be the marriage officer who shall have to follow the procedure
prescribed under this Act, while solemnizing a marriage in a foreign country. The officer has the
power to refuse Registration or performance of the Marriage in his opinion if lex loci celebrationis
prohibits such marriage or if it is against the rules of international law and comity of Nations. The
marriage solemnized abroad in accordance with the lex loci celebrationis is a valid marriage and
recognized in India.
Limitations of Foreign Marriage Act: Although the Foreign Marriage Act was an improvement
regarding private international law, but it does not contain any provision which explicitly deals with
divorce, nullity of marriage and other matrimonial reliefs.
1. Not overriding: The provisions of this act are additional provisions and do not have
overriding effect over the existing laws which means that it is depended upon the
discretion of the person who is marrying a foreigner or is marrying in a foreign nation, to
decide whether they want their marriage to be solemnized under this Act or not.
2. Incomplete Act: It deals with only three factors relating to foreign marriages, i.e.
solemnization of marriage, process of solemnization and the registration of marriage.
Apart from these three, there is no provision dealing with the issue of divorce, nullity of
marriage, maintenance, citizenship of child born out of such marriages.
3. Use of ‘may’ in Section 4 and 17 of the Act: The use of word ‘may’ make this Act an
enabling legislation. This act does not contain provision that make the solemnization and
registration of marriage, a compulsion.
4. Inadequate Provisions for Penalty: It is evident that the punishments and penalties,
prescribed under the Act applies only to the Indian party of such foreign marriages and
this has the tendency of limiting the scope of this Act.
Validity of Marriage:
When the court has to decide whether a marriage is valid, foreign elements may be involved: one or
both of the spouses may be foreign, or the marriage may have been celebrated in a foreign country.
There are various defects which may make a marriage invalid. The rules that precisely define them,
will differ between the various laws. For example, the question may be whether the proper
formalities for the celebration of the marriage were complied with, or whether one of the spouses
was below the minimum permitted age, or whether they are too closely related. On such matters,
different countries have different rules.
For choice of law purposes, rules about the validity of marriage are divided into two classes:
(i) Those concerned with formal validity and

(ii) Those concerned with essential validity.
Rules of formal validity lay down the way in which a marriage must be celebrated (procedure).
Rules of essential validity are concerned with the substance of the marriage relationship (capacity).
Formal validity is governed by the law of the country where the marriage is celebrated (lex loci
celebrationis), while essential validity is governed by the personal laws of the parties at the time of,
or immediately after, the marriage. For a marriage to be valid it must be formally and essentially
valid.
Formal validity is concerned with the law which governs the ceremony and other formalities
required for the valid celebration of a marriage. The basic rule is that formal validity is governed by
the lex loci celebrationis, the law of the country where the marriage is celebrated. The rule is an
application of a general principle of the conflict of laws, locus regit actum (the place governs the
deed). It includes such questions as to whether a civil ceremony or religious ceremony is required,
need for witness, requirement of notice, registration, publication, need for parental consent etc.
R v. Mills 1884: House of Lords held that a marriage celebrated in Ireland by Presbyterian minister
according to the rites of Presbyterian Church was invalid. It was held that marriage in Ireland is
governed by common law system and is invalid if not performed by Episcopal ordained priest.
In Berthiaume v. Dastous [1930] AC 79, the spouses, who were domiciled in Quebec, were married
in a Roman Catholic Church in France. The marriage was void by French law because, owing to a
mistake by the priest, it had not been preceded by a civil ceremony. Even though by the law of
Quebec a religious ceremony alone was sufficient, the Privy Council (on appeal from Quebec) held
the marriage void.
In Apt v. Apt (1947), It was held that the rule which admits marriage by proxy must be considered as
relation to formal validity since it is concerned with the manner in which the marriage ceremony may
be conducted. Woman domiciled in England authorised X to act as her representative in a marriage
between her and another person celebrated in a country where marriage by proxy is allowed and if
the celebration by proxy is in fact conducted. The marriage is valid.
Effect of changes in Lex Loci Celebrationis:
The compliance with the lex loci is not only sufficient, but is also compulsory. The rule extends even
to the retrospective validation by the lex loci of a marriage originally void under that law. In
Starkowski v. A-G [1954] AC 155, spouses domiciled in Poland celebrated their marriage in a church
in Austria, without any civil ceremony. According to Austrian law as it then stood, such marriage was
void, but five years later the marriage was retrospectively validated as a result of Austrian legislation.
In the meantime, the parties had become domiciled in England, but they separated, and the year
after validation of the marriage by Austrian law the wife remarried. (The House of Lords had to
decide whether a child of that second marriage was legitimate, which depended on the validity of
that marriage which in turn depended on whether the first marriage had been validated in the eyes
of English law.)
The House of Lords held that effect must be given to the retrospective validation by Austrian law,
even though this involved a change in the status, without their assent, of people who at the time of
the validation were domiciled in England and had no remaining connection with Austria. (The good
practical reason for this was legislation retrospectively validating marriages which, through error or
misconstruction of a statute, have not complied with the proper formalities is necessary form time to
time in all countries. Such legislation can of course only practicably be enacted in the country where
the marriages in question were celebrated.) England should give effect to such legislation, for to do
so will be beneficial to the great majority of the spouses concerned who celebrated their marriages
in good faith, and wish them to be validated. The result in Starkowski itself was that the second
marriage was void, and the child of it illegitimate.
Evasion of domestic rule will not affect the ‘principle of locus regit actum.’:
The predominance of lex loci celebrationis with regard to formal validity is not affected even if the
sole object of the parties in celebrating their marriage in another country is void some inconvenient
rule of their lex domicilii. For example in the case Simonin v. Mallac (1860), the parties domiciled in
France, crossed the channel and celebrated their marriage in England without obtaining parental
consent as required by French law.
In this case, French woman filed a petition before the English court seeking it to declare her marriage
as null and void with a French man on the ground that the marriage lacks essential requirements to
be valid. English court had jurisdiction over the suit as the place of celebration of the marriage was
England.
Lord Creswell in this case observed that the parental consent so essentially required by the French
law is just a matter of form of marriage. According to the English conflict of laws rule the formal
validity of marriage is governed by lex loci celebration is rule. Thus, the formal validity of this case
was governed by the English conflict of laws rule, for, England being the place of celebration of the
marriage.
Exceptions to the rule of locus regit actum: Under the following circumstances a marriage is
regarded as valid even though it has failed to observe the formal requirements of lex loci
celebrationis.
a) Statutory exceptions: The Foreign Marriages Act, 1892 provides that a marriage between
two parties one of whom at least a British subject, solemnized before a “marriage officer” in
a foreign country in the manner prescribed by the Act shall be valid as if it had been
solemnized in the UK (Eg: Consular Marriages). A marriage celebrated under the Act is valid
in England though it may be invalid by lex loci.
b) Marriage of members of British forces serving abroad: A marriage of a member of British
armed force serving in a foreign country will be formally valid if it was celebrated by the
Chaplin serving with the force or by the authorised commanding officer.
c) The Common Law exception – Common Law marriages: If there is an insuperable difficulty
in using the formalities of lex loci celebrationis the marriage will be regarded as formally
valid provided the marriage is celebrated in accordance with the requirements of English
common law. Requirements of common law marriage: Parties should take each other as
husband and wife, and an episcopal ordained priest should perform the ceremony.
d) Marriage on the High Seas: If there are circumstances which would justify the marriage
being celebrated on board the ship without waiting for the ship to reach port, the marriage
may be regarded as valid even in the absence of ordained priest.
Essential validity of marriage or capacity to marry: The capacity of parties to enter into valid
marriage is a matter relating to essential validity. All impediments to marriage such as lack of age,
prohibited degrees of consanguinity and affinity, previous marriage, physical incapacity are essential
to determine validity of a marriage.
The issues which are classified as questions of essential validity are all those which relate to a
person’s legal capacity to marry. Examples of aspects of essential validity:
 Prohibited degrees of relationship

 Age of majority
 One party already married
 Consent of the parties
 Non-consummation of marriage
 Parent consent
Capacity to marry: It is a wide term used that does not necessitate the conclusion of all matters of
capacity should be subject to the same choice of law rule a matter to which we shall return. It looks
into the legal capacity only. Capacity to marry does not, however, cover the whole field of essential
validity; it does not include the consent of the parties or the non-consummation of the marriage.
Which law should govern the capacity to marry?
There are 2 theories with regard to the capacity to marry. Dual domicile theory and the theory of
intended matrimonial home.
The dual domicile theory: This is the traditional and still prevalent view. A marriage is invalid unless
according to the law of the domicile of both contracting parties at the time of marriage, they each
have the capacity to contract that marriage. Capacity to marry is governed by the law of each party’s
ante nuptial domicile. E.g., A marriage between an uncle and niece, jews by religion, uncle being
domiciled in Russia and the niece being domiciled in England at the time of marriage. According to
the dual domicile theory, the marriage is invalid since the parties do not have the capacity to marry
by English Law, although by Russian law such marriages are allowed.
The doctrine of intended matrimonial home: The capacity to marry is governed by the law of the
country where the parties at the time of marriage intended and did actually establish their
matrimonial home. Mostly this will be the country where the husband is domiciled at the time of
marriage.
Which is better?
The intended matrimonial home rule seems the more appropriate to govern incapacities which are
imposed to protect the public interests of countries, rather than the interests of the parties to the
marriage. This is because it is the country in which the parties settle as married couple after the
marriage, rather than a country in which either of them used to live before the marriage, whose
interests can be affected by the existence of the marriage. An example of such incapacity, imposed in
the public interest, is the prohibition of polygamy.
The dual domicile rule, under which the marriage must be valid under the law of each party’s
domicile at the time of the marriage, seems the more appropriate for incapacities which are imposed
in the interests of a party, or for his protection, such as minimum age for marriage, or rules entitling
a person to have a marriage annulled to which he did not consent, or which has not been
consummated. The law of the country to which a party belongs at the time of the marriage seems
the right one to determine what protection he requires.
a) Prohibited degrees of relationship: While all the systems of law impose restrictions on
marriage between persons who are related, the precise rules vary between different
countries. The prohibitions may extend not only to blood relationships (consanguinity), but
also to relationships to marriage (affinity). The strong weight of authority is that the dual
domicile rule applies to the prohibited degrees. There is however an exception to the dual
domicile rule, to the effect that if a marriage is celebrated in England and one party is
domiciled in England at the time of the marriage, then it is governed by English law alone.
Brook v. Brook, 1961: A marriage was celebrated in Denmark between a domiciled Englishmen and
his deceased wife’s sister also English domicile. Marriage between man and his deceased wife’s sister
was legal by Danish law, but was illegal by English law at that time. The House of Lords in this case
established the distinction between formalities of marriage and capacity to marry. While the former
is governed by lex loci celebrationis the latter is governed by each party’s ante nuptial domicile.
Marriage was void irrespective of the theory applied.
Sottomayor v De Barros (No 2) [1879] 5 PD 94, in which a marriage was celebrated in England
between first cousins, the husband domiciled at the time of the marriage in England, the wife in
Portugal. Even though a marriage between first cousins was prohibited by Portuguese law, the
marriage was held valid under English law. The basis of the decision was that it would be unjust to an
English party who celebrates in England a marriage which is valid by English law to hold the marriage
void under a foreign law.
b) Non-Age: Countries have varying rules on the minimum age for marriage. There is doubt that
the dual domicile rule applies here. The law which is most fitted to decide whether a young
person needs protection against his own immaturity and want of judgement is the law of the
country to which he belongs at the time of the marriage. So each party must have capacity
by the law of his or her ante nuptial domicile. Thus in Altaji Mohammed v Knott [1969] I QB
1, a man of 27 and a girl of 13, both domiciled in Nigeria, had married each other there, and
come to England four months later, where they were to live while the husband was a
student. The court accepted without demur that the marriage was valid, because the wife
was old enough by Nigerian law, even though she was too young by English law.
c) One Party Already Married: all the possibly applicable laws allow only monogamous
marriage. The conflict arises because they disagree as to whether or not one of the parties is
already married, for example, because a divorce dissolving the previous marriage of one of
the spouses is recognised by one of the laws but not by another. This kind of case is usually
dealt with under the heading of ‘Bigamy’ or ‘Previous Marriage’. In the other class of case,
the husband admittedly already has a wife according to all the possibly relevant laws, and
the conflict arises because one or more of them permit polygamy but the others do not.
Here the issue is ‘Capacity to Contract a Polygamous Marriage’.
d) Consent of the Parties: Under lack of consent, we deal with cases where a party maintains
that he did not consent to the marriage at all, or, more likely, that his apparent consent was
vitiated by some defect such as fraud, duress or mistake. The conflict will arise because the
precise rules differ from one legal system to another. The dual domicile rule rightly applies to
consent, for the issue is the protection of an aggrieved party, not the public interest of the
country in which the marriage relationship will be centered. In Szechter v Szechter [1971] P.
286, the parties were domiciled in Poland, where the marriage was celebrated. The parties
only entered into the marriage in order to obtain the wife’s release from prison, where her
personal safety was threatened. On her release, the parties made their way to England. The
wife brought nullity proceedings in the English court on the ground that she had entered the
marriage under duress. The judge holding that the matter was governed by Polish law as the
law of the parties’ antenuptial domicile, granted a nullity decree on the basis of expert
evidence that the marriage was invalid for lack of consent by Polish law. The husband was
thus enabled to remarry his original wife, whom he had divorced as part of the scheme to
secure the release of the second wife.
Polygamous Marriage
In Common Law Until 1972, the rule of English Law was that the parties to a polygamous marriage
were "not entitled to the remedies, the adjudication, or relief of the matrimonial law of England. This
was laid down under the case of Hyde v. Hyde (Mormon faith marriages are potentially polygamous
and remedies are not available). If the husband is entitled under relevant law to have more than one
wife at a time his marriage is regarded as polygamous although in fact he has only one wife. Thus
Muslim marriage in India is regarded as polygamous marriage although the husband in fact has one
wife. This is because the marriage is potentially polygamous in the sense that the husband can at any
time exercise his right to have a plurality of wives.
In Hyde v. Hyde 1866, an Englishman, who had embraced the Mormon faith, married a Mormon lady
in Utah according to Mormon rites. After cohabiting with her for three years and having children by
her, he renounced his faith and soon afterwards became the minister of a dissenting chapel in
England. He petitioned for a decree of divorce after his wife had contracted another marriage in Utah
according to Mormon faith. Lord Penzance assumed that a Mormon marriage was potentially
polygamous and he refused to dissolve the marriage.
If the marriage was potentially polygamous at its inception then, though it might be possible to
change it into a monogamous marriage, it retained its polygamous nature until such change was
actually made.
Thus is Sowa v. Sowa 1961, a polygamous marriage was celebrated in Ghana where both parties
were domiciled. Husband promised to celebrate another ceremony which according to law of Ghana
makes it monogamous. Husband failed to fulfil his promise. The court held that in spite of the
promise and husband failed to take additional wife it is still considered polygamous marriage.
What law determines the nature of marriage?
The law that determines whether the marriage is monogamous or polygamous has not yet been
settled beyond all doubt. Eg; if a woman domiciled in England marries a Muslim in London and then
cohabits with him in Pakistan where he is domiciled, what law determines whether her marriage is
monogamous or polygamous. If lex loci celebrationis is applied, the marriage is monogamous,
because it was celebrated in England; but according to the law of the matrimonial domicile, the
marriage would be polygamous as they were living in Pakistan as husband and wife. Cheshire would
cite judicial dicta in favour of matrimonial domicile.
Other than on the issue of capacity to marry, all marriages in England are to be characterised as
monogamous and that all marriages of English domiciliaries in a foreign country, according to
polygamous forms or customs, will be regarded as polygamous.
Nature of Marriage: A marriage polygamous at the inception, may become monogamous at the time
of the proceedings and vice versa. Nature of marriage may change due to variety to reasons – change
of religion, change of domicile, subsequent ceremony in monogamous form and subsequent events
which alter the nature of marriage according to lex loci celebrationis.
Ali v. Ali, 1966: Parties both domiciled in India entered into marriage in India which was essentially
polygamous. Later they came to England and husband acquired English Domicile. The husband filed
for divorce based on wife’s desertion. The question before court is whether it was a monogamous
marriage or polygamous. It was held that husband had acquired English domicile and therefore the
marriage was monogamous as that of his wife. The English law had prevented him from marrying. Ali
vs Ali was a case where the change in domicile changes the character of marriage.
Cheni v. Cheni, 1962; Sinha Peerage Claim, 1946
Recognising polygamous marriage: Polygamous marriages are now recognised for a wide variety of
purposes. In Baindail v. Baindail, 1846 A domiciled Indian of Hindu faith married an Indian woman
according to Hindu faith. At that time it was polygamous marriage. While his Indian wife is still alive
he married English women in England by a civil form of marriage. The English wife filed a case for
nullity of marriage ground that husband was already married. The English court said the law does not
refuse to recognise the polygamous marriage for all purposes and declared the second marriage
void. Status of polygamous husband would be recognized so that he could not contract a
monogamous marriage in England subsequently.
The English court will recognise polygamous marriage for
a) succession of property by children of polygamous marriages

b) legitimacy of child
c) as a bar to subsequent marriage
d) enforcement of proprietary rights
e) succession by widows
Matrimonial causes
Matrimonial causes is a federal issue. It is defined to include proceedings in relation to:
 Dissolution of a marriage (divorce)
 Annulment/Nullity of a marriage
 Validity of a marriage
 Maintenance and property distribution
Divorce is the dissolution of a valid and subsisting marriage on grounds arising since the celebration
of marriage. The first question that arises is one regarding jurisdiction, i.e, which courts are
competent to pass decrees of divorce. Recognition of divorces and annulments becomes mirror
image of jurisdiction powers of courts to hear these matters.
Jurisdiction to grant divorce: The traditional test of jurisdiction was established in Le Mesurier v Le
Mesurier [1895] AC 517, it was said in the Privy Council that ‘according to international law, the
domicile of the married couple affords the only true test of jurisdiction to dissolve their marriage’. It
followed that the English court would only grant a divorce if at the commencement of the
proceedings the parties were domiciled in England, and, a foreign divorce would only be recognised
if it was granted by the court of the domicile, or at least recognised as valid by that court. This case
laid down that husband’s domicile at the time of suit was the sole test of jurisdiction.
That approach has now been abandoned. This happened because the principle was not accepted by
the many countries which use the criterion of nationality rather than domicile, and because the
narrow jurisdiction could cause grave hardship to wives who wished to divorce their husbands in the
English court.
The principle in Le Mesurier case created the problem of the deserted wife. If the husband deserted
his wife, went to another country and acquired the domicile of the country, she could not obtain a
divorce in English Court as the husband’s domicile at the time of proceedings was not English. To
mitigate the difficulties of deserted wives, parliament enacted the Matrimonial Causes Act, 1937.
This Act enabled the wife to petition for divorce if she had been deserted by the husband, provided
immediately before desertion her husband was domiciled in England. The parliament introduced
another exception by Section 1 of Law Reform (Miscellaneous Provisions) Act, 1949. According to this
section the court shall have jurisdiction to entertain proceeding by wife if the wife is resident in
England and has been ordinarily resident there for a period of three years immediately preceding the
commencement of the proceedings. Later for an alternative connecting factor parliament enacted
the Domicile and Matrimonial Proceedings Act of 1973. Part II of this Act now provides two cases of
divorce jurisdiction, domicile and habitual residence.
The exclusive role of the domicile having thus been breached, and married women now having
independent domiciles, new grounds of jurisdiction were introduced, based simply on the policy that
at least one of the parties, whether husband or wife, petitioner, or respondent, should have a
sufficient connection with England to make it reasonable for the English court to deal with the case,
and likely that the divorce will be recognised in other countries.
Only on the basis of domicile or habitual residence the English court can assume jurisdiction. It
cannot assume jurisdiction on any other ground. Leon v Leon 1998: Once a court has jurisdiction
subsequent change of domicile by husband will not defeat the jurisdiction of the court to entertain
petition.
Indian Courts will assume jurisdiction if they have set up matrimonial residence or already have a
permanent home where they lived together. If they had never set up a matrimonial home then the
place of their stay no matter how short the duration was. Residence or domicile of the petitioner
even if the defendant is not in India
Christopher Neelakantan vs Annie Neelakantam 1959: The Indian Domiciled Christian man married
a English girl in London. She refused to come to India. The man filed for divorce in Rajasthan under
Special Marriage Act. The court took jurisdiction and granted Divorce.
Choice of law: It might be thought that just as the question whether a marriage was valid in its
inception may be governed by a foreign law, so also in appropriate cases should the question
whether there are sufficient grounds for its dissolution be referred to a foreign law, for instance the
law of the parties’ domicile at the date of the proceedings. If foreign laws were applicable, they
would presumably be those of the countries to which the parties belong.
Once the forum court [the court where the petition is filed] get convinced that in the impugned
petition this court has appropriate jurisdiction, next question before the court would be choices of
law to be applied over the disputed facts. Therefore, after jurisdiction choices of law is the second
subject matter of private international law. The question of choices of law is determined according to
the Rule adopted by the particular legal system of the forum country. For example; in matter of
matrimonial causes, for deciding the material validity of a marriage most of the countries generally
applies the Lex Domicilii Rule of choices of law while for determining formal validity of a marriage,
Lex Loci Celebrationis Rule of choices of law is applied by the countries under private international
law.
Though private internal law is not a codified law, it does not mean under this set of laws judges can
exercise their discretionary power vehemently or arbitrarily. There are set of rules, doctrines and
many legal principles that guide judges about how to choose or to make decision that under which
particular law or legal system this matter has to be adjudicated. Therefore, there are different rules
dealing with matters of matrimonial causes that is applied by forum court at the time of determining
the particular rule of choices of law to adjudicate a matrimonial cause. India is one of the Common
Law countries. There is minute or sometimes nil difference in the application of the rule of choices of
law in matters of matrimonial causes.
The question of choice of law has never been prominent in the English rules of the conflict of laws
relating to divorce, which has always been treated as primarily a jurisdictional question. English
Court when deciding whether to recognize foreign divorce have never examined the ground on
which the decree was granted in order to hand, when English Court have themselves assumed
jurisdiction, they have never applied any other law than that of England. In English law the only
possible alternative to the lex fori would be the law of the domicile. No difference between them
could exist before 1938, because English courts did not exercise jurisdiction unless the parties were
domiciled in England. The Court of Appeal determined the question of divorce by the law which
would be applicable thereto if both the parties were domiciled in England at the time of the
proceeding, i.e. English law.
The rule may be justified on the ground that it would be highly inconvenient and undesirable from
the practical point of view to apply foreign law in English divorce suit. Again, to require English Court
to dissolve marriage an exotic foreign ground would be distasteful to judge and unacceptable to
public opinion.
Position in India: The personal laws of the parties involved is applied. When the marriage is
performed abroad or has some foreign element in it, then Special Marriage Act will provide a better
solution is the view point put forth by Paras Diwan. Christopher Neelakantan case: The divorce of
Christian couple was granted under special marriage act as petitioner had filed his case under the
grounds of desertion which is not a valid ground under the Indian Divorce Act 1869.
Recognition of Foreign Divorces: A marriage, which still subsists according to one or more laws, but
has been dissolved according to others, is called a ‘limping marriage.’ The hardship and
inconvenience which can result from a marital status which differs from one country to another is
obvious. However, try to avoid this by simply recognising all foreign divorces would enable a spouse
to evade the requirements of the law of the country or countries with which neither has any genuine
connection, but whose courts exercise divorce jurisdiction on flimsy grounds.
The rules governing the recognition of foreign divorces therefore aim to strike the right balance
between being too restrictive, thus unnecessarily creating limping marriages, and being too
generous, thus sanctioning bogus divorces.
In Travers v Holley [1953] P 246, that a divorce granted by a foreign court to a wife should qualify for
recognition if the English court in equivalent circumstances would have had jurisdiction, that is if the
husband had been domiciled in the foreign country in question immediately before deserting his
wife, or the latter had been ordinarily resident in the foreign country for the three years preceding
her divorce petition. (basis of reciprocity).
Later, the House of Lords took the view that the proper approach was to recognise a divorce
obtained in a country with which the spouses, or one of them, had a sufficient connection, whether
or not that connection happened to coincide with one chosen in England for the exercise of
jurisdiction. It was thus held in Indyka v Indyka [1969] I AC 33 that a foreign divorce should be
recognised if at the commencement of the foreign proceedings there was a real and substantial
connection between either of the parties and the country in which the divorce was obtained. While
this was certainly a generous approach, this ground of recognition was extremely vague, making the
status of the parties in England uncertain, and the decision of the court difficult to predict.
The rules in Travers v Holley and Indyka v Indyka were abolished, and replaced by new grounds of
recognition on the basis of either party being a national of, or habitually resident in, the country in
which the divorce was obtained.
One change is that the common law ground of recognition under Armitage v A-G, preserved by the
1971 Act, on the basis of the divorce being recognised by the law of the parties’ domiciles, though
not obtained in the country in which either was domiciled, has been abolished. Thus the last relic of
the old notion that divorce involving a change of status, was primarily a matter for the domicile has
been abandoned. The policy now is simply that the divorce should have been obtained in a country
having an adequate connection with either of the parties.
Legitimacy, Legitimation and Adoption
Legitimacy in layman’s language means the status acquired by a person who is born to parents who
are married to one another at the time of the birth. Legitimation means that a person who has not
been born to married parents acquires the status of legitimacy as a result of some act. Adoption
involves the extinction of the parental links between the child and the biological parents and the
creation of similar links between the child and the adoptive parents.
England:
A child is, or is presumed to be, legitimate if it is born anywhere in the world in ‘lawful wedlock.’
Courts can, under the law, declare a person to be legitimate if the applicant is, when he commences
the proceedings, domiciled in England, or was, for throughout a period of one year before the
commencement of the proceedings, habitually resident in England. A child conceived before
marriage is regarded as legitimate if born after the parents were married, and so also a child
conceived before but born after the parents were divorced. Child born after artificial insemination is
legitimate even if the donor is not the husband; unless it is proved that the husband did not consent
to the insemination.
In English cases we are confronted with two important conflicting decisions. First the decision in
Shaw v. Gould, 1868. A testator domiciled in England bequeathed certain funds in trust for Elizabeth
Hickson for life and after her death in trust for her children. The will also devised some English lands
after her death, to her first and other sons lawfully begotten. Elizabeth when she was only 16 years
old married Buxton, a domiciled English man. But she was taken away by her parents just after the
marriage ceremony and the marriage was never consummated. After some years, Elizabeth wanted
to marry another domiciled English man named Shaw. To dissolve Buxton marriage by a decree
obtained from a Scotland court, Buxton was paid a sum of money to go to Scotland and live there for
forty days to enable him to obtain a domicile in Scotland. And on the basis of this domicile, a Scottish
court granted a decree of divorce dissolving the marriage between Buxton and Elizabeth. After this
Elizabeth marries Shaw in Scotland and Shaw acquired a Scottish domicile of choice. Two daughters
and one son were born to Elizabeth from Shaw in Scotland. By Scottish law, the divorce and the
marriage with Shaw were valid, and the children were legitimate. But the House of Lords applied
English law and held that children were not legitimate. The Scottish divorce could not be recognized
in England because it was obtained by collusion and the Scottish court was not competent to dissolve
the marriage. In the eye of English law Buxton continued to have English domicile.
A child not born in lawful wedlock would, however, be regarded as legitimate in England if, and only
if, it is legitimate by the law of the domicile of both the parents at the time it was born. In Re
Bischoffsheim, 1948 a single Judge has laid down the rule that English courts would recognize the
status of legitimacy if the child is regarded as legitimate by the law of the domicile of the parents at
the birth of the child. In this case a testator domiciled in England directed in his will that certain
funds should be held in trust for the benefit of his granddaughter Nesta for life and after her death in
favour of her children. Nesta married George, her deceased husband’s brother in New York. Both
Nesta and George were domiciled in England at the time of marriage. The marriage was void by
English law, but valid by the law of New York. After acquiring New York domicile, a son was born to
them. Romer J held that the child was legitimate and did not apply the test of birth in lawful wedlock
as done in Shaw v. Gould.
This judgment is severely criticized as it is difficult in application where parents have different
domiciles. However, a step forward is taken by the Law Commission in England to answer the
difficulties i.e. it suggested that the lex domicilii to be adopted should be that with which the child
was most closely connected.
In the case of Bamgbose v. Daniel [1954] it was stated that, traditionally, the children of polygamous
marriage is not regarded as legitimate, however, in England, they are regarded as legitimate if they
are so regarded by the law of the country where the parents were domiciled when the child was
born.
Under the rule of ‘putative marriages,’ children of a void marriage are recognized as legitimate if
either of the parents believed that the marriage is valid. This rule is also recognized by the Legitimacy
Act 1959 subject to the provision that the father should be an English citizen.
India:
In India, ‘Legitimacy’ is a status of a child being born during the continuance of a valid marriage
between the mother and any man, or within 280 days after its dissolution if the mother remains
unmarried. Unless it is shown that the parties to the marriage had no access to each other at any
time when he could have been conceived, his birth is treated as a conclusive proof of he being
legitimate. (Evidence Act, sec: 112)
Illegitimate children cannot succeed to their father’s estate on intestacy but can succeed mothers’
estate. If the child has born of a marriage which is null and void under section 11 or 12 of the Hindu
Marriage Act, 1955, the child is deemed to be legitimate and consequently can succeed to the estate
of the father on intestacy. In Mahomedan law, applicable to Sunnis governed by the Hanafi School,
illegitimate children cannot inherit from the father, but can from the mother. But in case of Shias, the
illegitimate children can never inherit. Illegitimate children cannot succeed to property on intestacy
under the Indian Succession Act, 1925, Christians, Parsis and other religious groups are governed
under this statute.
Legitimization is a process to recognize the child of being legitimate. Subsequent Marriage between
the parties, Acknowledgment by the man etc. are the examples of legitimation.
England:
English courts had jurisdiction to entertain proceedings for a declaration that a person was
legitimated, or not if, at the date the proceedings are commenced, the applicant is domiciled in
England or had been habitually resident in England for at least one year.
The role of Conflict of Law is to choose the system of law which shall determine whether legitimation
by this method is effective or not. The rule finally established at common by Re Grove 1888, is that a
foreign legitimation by subsequent marriage is not recognized in England unless the father is
domiciled, both at the time of the child’s birth and also at the time of the subsequent marriage, in a
country whose law allows this method of legitimation. In Re Grove the question was regarding the
legitimacy of Sara Thomegay who was born in England. Her father’s domicile of origin was
Switzerland but he had acquired an English domicile at the time of Sara’s birth in England. Her
parents subsequently married in England. Cotton L J., held Sara illegitimate as her father was not
domiciled in a country which recognised this type of legitimation at the time of her birth.
The present law is that, where the parents of an illegitimate person marry, the marriage shall, if the
father is at the date of the marriage domiciled in England and Wales, render the person, legitimate
from the date of the marriage. By the Legitimacy Act, 1926 introduced the principle of legitimation
by subsequent marriage into the English law.
The English Legitimacy Act only recognises legitimation by subsequent marriage and by other
methods. The legitimation by parental recognition came up in the case of RE Luck’s settlement,
1940. David’s father who was domiciled in England left his wife and went to California with David’s
mother. David was born in California and was illegitimate by birth. David’s father acquired a new
domicile in California married again but not David’s mother. But he signed a formal document with
the consent of his second wife by which he acknowledged David to be his legitimate son. Court did
not recognise this legitimation because at the time of his birth his father was domiciled in England
and English law did not recognise legitimation by recognition.
India:
Indian law, whether Hindu law or Muhammadan law, only recognizes the concept of legitimacy of a
child and not of legitimation. When there is any doubt as to legitimacy of a child, under
Muhammadan law the acknowledgment by the presumptive father is the proof that the child so
acknowledged is the legitimate child of the presumptive father, provided that legitimacy is possible.
In Bibi Nanyer-Omissa v. Bibi Zainirun. even in the absence of evidence of marriage between the
parties, the Privy Council on acknowledgement declared the child to be legitimate. But the Muslim
scholars criticized this judgment and have favoured Muhammad Allahdad Khan v. Muhammad
Ismail Khan (1888), where the court held that a child whose illegitimacy is proved beyond doubt, by
reason of the marriage of its parents being either disproved or found to be unlawful cannot be
legitimatized by acknowledgment.
Adoption
Adoption is a process in which a child is adopted by an individual or a family in which he is not born
to. It is a transaction where the mutual rights and responsibilities of the child are permanently
transferred from the biological parents to the adoptive parents. On the basis of parties involved,
adoption is divided as Open adoption, Semi-open adoption and Closed adoption. On the basis of
location and origin adoption is subdivided into Domestic Adoption and Inter country adoption.
Domestic adoption is the placement of a child for adoption within the country in which he or she was
born and normally resides. On the other hand, inter country or international adoption is the placing
of a child for adoption outside that child’s country of birth.
Inter-country Adoption: Under inter-country adoption, any individual or any couple can become
legal parents to any child who is a citizen of a different country. If an Indian citizen is considering
overseas adoption, they should meet the eligibility criteria of that country, in addition to meeting
eligibility criteria within India.
The Roman concept of adoption by which a minor is brought permanently into the family of the
adopter was codified under the Adoption Act, 1965 the main purpose of which was to give effect to
the Hague Convention, 1965. In Roman law and Hindu law adoption was not conceived as a mode of
legitimising illegitimate children.
English courts have jurisdiction to make adoption order if the applicant is domiciled in England or
Scotland and if the applicant and infant reside in England. There is no jurisdictional requirement that
the infant must be domiciled in England.
According to Cheshire court should not make an order for adoption unless it is satisfied that the
adoption will be accordance with the law of infant’s domicile. In order to prevent limping adoptions
which are valid by English law and invalid by lex domicilii of the infant. Adoption must not be
permitted unless it will promote the welfare of the minor.
In Laxmikant Pandey v. Union of India 1987, the Supreme Court issued certain guidelines regarding
adoption processes, and, subsequently, CARA (The Central Adoption Resource Authority) was
established for the regulation of inter-country adoptions in India.
Lakshmi Kant Pandey who wrote to the Supreme Court of India alleging neglect and malpractice on
the part of private adoption agencies and social organizations facilitating the adoption of Indian
children to parents of different countries. He noted the issues faced by the children going to foreign
countries and falling in hands of sexual exploiters due to neglect. The petitioner requested the court
to restrain the private agencies “from carrying out further activity of routing children for adoption
abroad” and directing the Government of India and other government agencies to carry out their
obligations in the matter of adoption of Indian Children by Foreign parents.
Supreme Court held that any adoption in violation of or non-compliance with the directives set forth
in the judgment may lead the adoption to be declared invalid and expose the person concerned to
strict action including prosecution. The pre requisites laid down by the court for completing a legal
inter country adoption included that that the foreigner desiring to adopt a child must be sponsored
by social or child welfare agency recognized or licensed by the government of the country in which
the foreigner is a resident.
It was emphasized by the court that no application by a foreigner for taking a child in adoption
should be entertained directly by any social welfare agency in India working in the area of Inter-
Country adoption or by any institution or centre or home to which children are committed by the
juvenile court. Certain guidelines were also made regarding the age of the child to be adopted.
CARA was designated as the Central Authority for implementation of the Hague adoption
convention. Till 2000, Juvenile Justice Act’s provisions related to adoption were not very clear and
comprehensive but in the 2015 amendment, the Act made the laws regarding adoption process
complete and streamlined. India has signed and ratified the Hague convention in 2003 and it is also a
member of the Hague Conference.
An NRI, OCI, or a foreign prospective adoptive parent who wishes to adopt a child from India must
follow the Indian guidelines. These regulations are required to check illegal practices like trafficking,
kidnapping, and sale of children and corruption.
Laws Applicable on Inter-Country Adoption in India: All inter-country adoptions, whether it is an

adoption of an orphan or an abandon, or a surrendered child, or adoption of a relative’s child, can be
done only as per the provisions of the Juvenile Justice Act, 2015 and Adoption Regulation Act, 2017
(framed by CARA).
Eligibility for Intercountry adoption in India:
• Both single adopters and heterosexual married couples may adopt.
• A married couple with a combined age of up to 90 years, or a single adopter up to 45 years

may apply for a child up to 4 years of age.
may apply for a child between 4-8 years of age.
may apply for a child up to between 8 and 18 years of age.
• The consent of both the spouses for the adoption shall be required, in case of a married
couple;
• A single female can adopt a child of any gender;
• A single male shall not be eligible to adopt a girl child;
• No child shall be given in adoption to a couple unless they have at least two years of stable
marital relationship.
• In case of couple, the composite age of the prospective adoptive parents shall be counted.
• The minimum age difference between the child and either of the prospective adoptive
parents shall not be less than twenty-five years.
• The age criteria for prospective adoptive parents shall not be applicable in case of relative
adoptions and adoption by step-parent.
• Couples with three or more children shall not be considered for adoption except in case of
special need children as defined in sub-regulation (21) of regulation 2, hard-to-place children
as mentioned in regulation 50 and in case of relative adoption and adoption by step-parent.
Guardianship and Custody of Child
Powers of English Court: It was the prerogative of the Crown, acting in its capacity as parents patrie,
‘to do what was necessary for the welfare of its minor subjects.’ From time immemorial, this power
was exercised by the courts on behalf of the Crown. Thus, the courts have an inherent jurisdiction
over infants. In addition, the courts now have statutory jurisdiction under the Guardianship of
Minors Act, 197I. Once the jurisdiction of the court is invoked, it is in complete control of the minor;
it can restrain him or her from marrying without its consent and it can prevent him from leaving the
country. The court also gets power to deal with any case containing a foreign element. It can appoint
a guardian to a British minor who is resident abroad. It is competent to restrain the removal of an
infant from England, whatever be his domicile or nationality. It is equally competent to direct that a
foreign infant be sent home and placed in the care of his foreign guardian. There is one limitation,
however in the case of foreign minors. This limitation 1s that the court is incompetent to pass orders
relating to a minor unless the minor is personally subject to its jurisdiction.
Jurisdiction of Courts: It is a fundamental principle that the Sovereign accords protection to all those
who owe him allegiance and this includes not only British subjects but also those aliens who are
present in England. Therefore, it has long been established that court has jurisdiction appoint a
guardian for a minor if he is present in England even though he is not domiciled in England and owns
no property in England. The court can exercise jurisdiction notwithstanding that the court of his
domicile has already appointed a guardian for him. The court can exercise jurisdiction also in cases
where the minor is a British subject, though not resident in England. But in the present-day
conditions, jurisdiction on this ground will be exercised only in exceptional circumstances, since the
concept of British nationality has been radically changed.
Domicile and ordinary residence as jurisdictional bases: It is important to bear in mind that the
English domicile of a minor by itself is not sufficient to confer jurisdiction on the court. Similarly, the
fact that the minor possesses property in England is also not a ground to exercise jurisdiction.
It has already been stated that physical presence of the minor in England is a sufficient jurisdictional
base, even if he is a foreigner. It is now established that the court is competent to exercise
jurisdiction if he is ordinarily resident in England although physically not present. This was decided in
the case of Re P (1965). Here a husband and wife, both stateless persons lived separately in England.
They had a six-year-old son who spent five days a week with his mother and the weekends with his
father. One weekend the father flew with the son to Israel and the mother filed a petition seeking to
make her son a ward of the court. On the question whether the English court can exercise
jurisdiction over this infant, domicile was rejected as a jurisdictional ground. Russel L.J., rejecting
domicile said that “the whole trend of English authority on the parental jurisdiction of the Crown
over infants bases the jurisdiction of protection as a corollary of allegiance in some shape or form.
Domicile is an artificial concept which may well involve no possible connection with allegiance". The
Court assumed jurisdiction on the basis of ordinary residence. It was held that the child was
ordinarily resident in England, though for the last two years he was physically present in Israel.
We may, therefore, state the present position as follows: In the case of an alien minor, the English
court has jurisdiction if, at the time of the proceedings either (1) he is physically present, although
not domiciled in England or (2) he is ordinarily resident though not in fact present in England . In
the case of a person too young to decide for himself where to live, his ordinary is the matrimonial
home of his parents if they live together, but if they live separate, the ordinary residence is at the
home where he normally lives.
Recognition of foreign orders relating to minor: In a case where the court has jurisdiction, whether
it will in fact exercise its powers will depend upon the facts and circumstances of the case. It may
happen some times that in the case of an alien infant, a guardian has already been appointed by the
court in the place of his domicile and the foreign guardian claims custody of the child present in
England. In every case, whether there is a foreign court order or not, the paramount consideration is
the welfare of the child to which everything else should yield. There is but one object, which ought
to be kept strictly in view, "it was said in an old case, and that is the interest of the minor.” This has
been reiterated by section 1 of the Guardianship Minors Act. The court has ample discretion and it
will consider the orders of foreign courts, but these will be disregarded if such a course is found
necessary for the well-being of the infant: The scope of judicial discretion in discarding foreign
custody orders is amply illustrated by the case of Mckee v. Mckee (1951). A husband and wife,
American citizens and resident in the United States, separated and agreed in writing that neither
should remove their minor son out of the United States without the written consent of the other. A
year later, a California court in divorce proceedings awarded the custody of the boy to the wife with
access to the husband. Five years later, the husband without the permission of the wife took the boy
to Ontario (in Canada) and settled down there. The wife came to Ontario and took habeas corpus
proceedings before the Ontario court. The trial judge awarded custody of the child to the husband
but on appeal by the wife, the Supreme Court of Canada reversed this decision. The husband took
the matter to the Privy Council and the Privy Council restored the order of the Ontarian Court
awarding custody of the boy to the husband. True, the husband flouted the order of the Californian
court and this was considered by the trial court, but it was more influenced by considerations of the
infant’s welfare in awarding custody to the husband. The Privy Council took the view that the trial
court was justified in concluding that in the light of other circumstances the interest of minor would
be best served, if the minor was placed in the custody of the husband. The order of the Californian
court was an important factor to be considered, but it could never be taken as decisive.
It must be realised, however, that the courts generally do not encourage the unilateral movement of
children and prima Jacie the parent who breaks up the home will not be allowed to profit from that
conduct. In Re H, 1966, a custody order in respect of a child was passed by a New York court. In
violation of this order, the mother unilaterally, without the knowledge of the father, removed the
child to England. The English court passed orders allowing the father to take the child back to New
York. The court said that in the present day world, kidnapping of children from one country to
another has become very common and it is the duty of the courts in every country not to allow the
kidnapper to reap the benefits of his misdeeds, In another case RE T, (1968) Willimer, LJ observed:
Every court should give recognition to the orders of foreign Courts in respect of custody or
guardianship of children unless it comes to the conclusion that to give effect to the foreign order will
not be in the interests of the child".
Indian Law:
The Indian courts have followed the principles of English law in exercise of jurisdiction over infants.
Once the court assumes jurisdiction, the merits of the case will be decided in accordance with lex fori
which is Guardian and Wards Act 1890 and the personal law of the concerned.
Regarding the recognition of foreign custody and guardianship orders, we have a full bench decision
of the Kerala High Court in Marggarate v. Dr. Chacko, 1970; Dr. Chacko, an Indian Christian domiciled
in India, went to Germany to study medicine, and there fell in love with and married Margarete a
German domiciled woman. They had two children out of this union, a boy and a girl. But their
married life ran into heavy weather and finally the marriage broke down. Both the husband and wife
approached the German court for the custody and the guardianship of the children. The German
court decreed custody of the children to the wife with access to the husband once a day every week.
Dr. Chacko, in violation to the custody order of the German Court, took away the children with him
and flew to India and went to his native place in Kerala. Margarete, thereupon, came to Cochin and
started habeas before corpus proceedings the Kerala High Court to recover the custody of the
children.
The court examined in detail the question whether it will be in the interests of the children to give
them to the custody of the mother in accordance with the order of the German court. The court,
after considering all the aspects concluded that the interests of the children will be better served in
restoring the custody to the mother. The effect of this decision is that a custody or guardianship
order passed by a foreign court of competent jurisdiction will be recognised and given effect unless it
is clearly found that it is against the welfare of the child.
Prateek Gupta v. Shilpi Gupta & Ors.

In this case, the Supreme Court passed an important judgement wherein the custody of a child who
lived in the US, and later brought by the father to India was disputed.
The appellant (Father) approached the Supreme Court against the High Court’s order. Due to marital
issues, the couple separated and the father returned to India, while both the children continued to
live in the US with the respondent (mother). The father, however, used to make occasional visits to
them to meet his sons. On one such occasion, he allegedly took along with him, one son, Aadvik. This
was done by foul play thereafter the father returned to India with the child without any information
or consent of the mother. The mother, aggrieved by this, then approached Juvenile and Domestic
Relations Court Fairfax County in the US. She then established temporary custody of the child and
the father was directed to return the child to the Commonwealth of Virginia and to the custody and
control of the respondent. The respondent then invoked the writ jurisdiction of the High Court of
Delhi, he sought a writ of Habeas Corpus against the appellant for custody of the child alleging that it
was illegal and unlawful. The High Court, however, still directed the appellant to hand over the
custody of the child to the mother.
Smt Surindar Kaur Sandhu v. Harbax Singh Sandhu
The issue that pertained, in this case, was to the Jurisdiction of Court in Child custody case. Here, the
minor son was British Citizen, whereas the parents were Indian Citizens. Interpretation of Section 6
of The Hindu Minority and Guardianship Act, 1956 was held by the Court dealing with the Custody of
the Child. The Court observed that this Act constituted the father as the natural guardian of the
minor son. But it was also held that the provision cannot over-power the consideration as to what is
conducive for the welfare of the minor. Also, the modern theory of conflict of laws recognises the
fact that, and also prefers the jurisdiction of the State that has most intimate contact with the issue,
to be in power. It was held that the right Jurisdiction of this case is not India.

Notes On Conflict of Laws

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Asst. Prof.

The three branches/functions of conflict of laws:

No. Public International Law Private International Law / Law of Conflicts

3) Public International law is enforced Private International Law is enforced by the

4) In public International Law there is In private International Law courts are

all the States. state.

a) Unification of Internal laws of various countries

Development and theories of conflict of laws

As expounded in Holland’s jurisprudence, this theory is based on the principle of territoriality of

a) Jurisdiction (module II)

Classification of substantive or procedural law:

This problem may be illustrated as follows:

Without these prerequisites there is no incidental question.

Lawrence v. Lawrence, 1985: English Case

Application of the lex causae: Doctrine of renvoi

o Renvoi arises in the application of the lex causae.

Forum conveniens manifests itself in different ways, like;

Limitation on the exercise of jurisdiction

Forum Non Conveniens:

Pendency/ Lis Alibi Pendens/ Stay of Proceedings:

In order to stay the proceedings, the court has to consider:

 Whether the proceedings in the foreign place were commenced first

 The stage they have reached

1. Non-exclusive jurisdiction clause

Personal Connecting Factors: Domicile and Residence

General principles of domicile:

1. No person can be without a domicile;

• Domicile of Origin: The domicile attributed at the time of birth.

• Domicile of Dependency: The domicile of the dependent person is dependent on the

Udny vs. Udny 1869 –

 Udny was born in Leghorn 1779 with a Scottish Domicile of Origin.

1. The fact of residence

Prisoners, Refugees and Fugitives:

Domicile of origin and domicile of choice:

The Doctrine of Revival:

Commercial Domicile/ Quasi Domicile:

Domicile of companies or corporations: The company is domiciled in the country where it is

In Islam, marriage is considered as a civil contract by recognizing limited polygamy. In some

Concept of English Marriage:

(a) As a general rule, it can only be concluded by a formal public act.

(b) It can only be dissolved by a formal public act.

(i) Those concerned with formal validity and

(ii) Those concerned with essential validity.

Effect of changes in Lex Loci Celebrationis:

 Prohibited degrees of relationship

Which law should govern the capacity to marry?

What law determines the nature of marriage?

Cheni v. Cheni, 1962; Sinha Peerage Claim, 1946

The English court will recognise polygamous marriage for

a) succession of property by children of polygamous marriages

Matrimonial causes is a federal issue. It is defined to include proceedings in relation to:

 Dissolution of a marriage (divorce)

 Maintenance and property distribution

Legitimacy, Legitimation and Adoption

Laws Applicable on Inter-Country Adoption in India: All inter-country adoptions, whether it is an

Eligibility for Intercountry adoption in India:

• Both single adopters and heterosexual married couples may adopt.

• A married couple with a combined age of up to 90 years, or a single adopter up to 45 years

• A single female can adopt a child of any gender;