PRIVATE INTERNATIONAL LAW NOTES

TOPICS

Unit 1-2 Introduction to PIL

Unit 3-5 Successive stages in a Conflict of Laws case

Unit 6 Proof of Foreign Law

Unit 7-8 Domicile

Unit 9-10 Contract

Unit 11-12 Torts (Marine & Aerial)

Unit 13-14 Marriage and Matrimonial Causes

Unit 15-16 Legitimacy, Legitimation and Adoption

Unit 17-19 Property

Unit 20 Recognition and Enforcement of Foreign

judgements

MODULE 1: INTRODUCTION

DEFINITIONS:
 1. By Cheshire - PIL is that part of the law which comes before play when an issue
before the court affects some facts, events, or transaction i.e., so closely connected
with a foreign system of law as to necessitate recourse to that system.
2. By Dicey and Morris - PIL consists of rules which do not directly determine the
rights and liabilities of particular persons but which determines limits of jurisdiction
to be exercised by courts and also choice of law.

NEED FOR PIL:

PIL is required because every country has different systems of laws regarding marriage,
adoption, succession, torts, contracts, and like matters. Sometimes even within a country, the
laws are different. For example, Texas vis a vis Vegas. Therefore if marriage means the same
thing all over the world and the rules of capacity and ceremony of marriage are the same in
all countries, the question of conflict of law between countries wonʼt arise. However, since
that is not the case, every country has a branch of law which resolves these conflicts. It is this
branch which is called PIL / Conflict of Laws.

PIL only indicates the governing law and jurisdictional/procedural questions. For example, a
court is called upon to determine the validity of a marriage performed between an English-
domiciled man and woman, the ceremonies of which are performed in Vegas. PIL merely
informs us that the question of capacity of marriage will be determined by law domicile of
parties but the question of performance of ceremonies and validity will be determined by law
of Vegas where marriage was solemnized.

SUBJECT MATTER OF PIL:

• In what circumstances the court will assume jurisdiction over cases having foreign
element.
• If the answer to the above question is in affirmative, then whether the court will
determine the case entirely under Indian law or the appropriate foreign law.
• In what circumstances will it recognise a foreign judgement/execute a foreign decree.

CHOICE OF JURISDICTION, CHOICE OF LAW, AND RECOGNITION &

ENFORCEMENT OF FOREIGN DECREE:

Unlike civil law countries, the common law countries include rules of jurisdiction as well as
choice of law within the scope of PIL. For example, Germany, Switzerland, Finland, etc.
They only focus on jurisdictional questions and when it comes to foreigners and their choice
of law, they have a separate law called the law of foreigners.

1. Choice of Jurisdiction: Jurisdiction refers to the ability of a particular court to try

and decide a particular dispute. The procedural law of every country lays down that
(in what matters which court will have jurisdiction). These rules may apply to foreign
law as well. For example, summons will be issued under Order 5 CPC to Indian as
 well as foreign parties; res judicata where a court will not have jurisdiction if a matter
has already been decided by a foreign court.
2. Choice of Law: It is the question as to which law will be applied to decide the suit -
internal or foreign. For example, a contract is entered in China between resident
traders of China and Singapore respectively for the supply of certain goods to
Kolkata. Now if a suit is filed in Kolkata then which law will apply Indian, Chinese,
or Singaporean? Some rules are established in this regard in PIL. eg. immovable
property will be governed by laws where the property is situated (Lex Situs).
3. Recognition of Foreign Judgements: If a foreign judgement is from a competent
court then the local municipal court will be required to give effect to the same even if
the foreign court determines a dispute as per its own public policy. Local courts will
not go into the merits of the case and exceptions to this rule can differ in procedural
laws.

WHY FOREIGN LAW IS APPLIED IN PIL DISPUTES?

1. Comity - Dutch jurist John Voet said that the comity of nations is as important in PIL
as it is in Public International Law. It means mutual regard and respect among
sovereign nations which is the basis of a just international order. For example, the
‘Doctrine of Reciprocityʼ is where nations recognise the judgements passed by the
courts of other nations in reciprocal obligations. However, modern jurists do not agree
with this view. According to Cheshire, “The application of foreign law implies no act
of courtesy, no sacrifice of sovereignty. In reality, the courts are required to do justice
between the parties and in doing so if foreign law is applicable the courts will apply
the same. Even if countries are at war / have placed sanctions on each other.
2. Necessity - Another basis of the application of foreign law is that it is necessary for
the determination of the rights of parties. So in the above example of a Chinese
contract, if Indian courts in Kolkata apply only Indian law then the rights of the
parties under the contract may totally get frustrated.
3. Justice and Convenience - It is the demand of justice that requires the application of
foreign law. For example, if courts in Egypt apply Egyptian law to decide whether a
son adopted by an Indian Hindu in India is his legitimate child or not then it will be
completely unjust as the Egyptian law does not recognise adoption.

Graveson defines ‘justiceʼ as follows: “It is to a great extent a legal reflection of ethical and
moral values conditioned by time, place, and circumstances much as the concept of
reasonableness in common law is a reflection of contemporary social valuesˮ. Graveson also
propounded a subsidiary principle to justice. He says that the court applies foreign law
because its application is convenient i.e., out of two or more possibilities the law will select
one and will follow the same. For example, deciding a dispute with respect to property based
on lex situs (where the property is situated) is a matter of convenience as it is based on where
the property is actually located.
DIFFERENCES:

PUBLIC INTERNATIONAL PRIVATE INTERNATIONAL

LAW LAW

Scope Deals with transactions between Deals with individuals and not
states states, but their disputes have a
foreign element

Subject matter Treaties, conventions, Jurisdiction, choice of law,

international agreements, recognition, and enforcement of
international judicial bodies and foreign judgements
customs

Sources Customs, treaties, precedents, Municipal laws and local

general principles of procedural laws
international law, and writings of
jurists

Basis for Recognition Comity of nations Convenience-Cheshire; Comity-

John Voet

Consequences Sanctions, non-recognition

Enforcement Voluntary consent and other Domestic courts and police
diplomatic measures

Adjudication International courts and tribunals Domestic courts

Uniformity Uniform Not uniform

 MODULE 2: INTRODUCTION

UNIFICATION OF PRIVATE INTERNATIONAL LAW

There are two modes of unification:

1) INTERNAL: Unification of internal laws of the countries of the world.

 The first step in the direction of unification of internal law was the Bern Convention
of 1886 which protects literary and artistic works.
 After WW1, the International Institute for Unification of Private Law was established
in Rome to unify the civil laws of different countries.
 The Warsaw Convention of 1929 provides for uniform rules relating to the carriage of
goods and persons by air. It was amended by the Hague Convention in 1955.
 At the regional level, a successful attempt has been made by the Scandinavian
countries: Finland, Denmark, Norway, and Sweden - who have signed conventions
unifying several branches of PIL such as bankruptcy, res judicata, and recognition of
judgements and decrees.
 In the USA every state has its own private law. To solve the conflicts arising between
these laws, guidelines were passed in the form of “Restatement of Private
International Lawˮ. Although this is not binding on any state yet the courts resort to it
to resolve conflicts of law.

CEDAW Convention, after India became the signatory, the Indian SC in the case of Vishakha
v. State of Rajasthan 1997 referred to the CEDAW Convention to pass the guidelines for
POSH. The Indian Parliament subsequently passed the POSH Act in 2013 with international
law being reflected in its objects and reasons.

2) EXTERNAL: Unification of the rules of private international law - eg. air and space law;
12 nautical mile rule.

 Only after 1951 serious efforts were started for the unification of PIL across the
world. The Hague Conference led to the establishment of a permanent bureau. This
has assisted sections from different parts of the world. They want to promote the
codification of PIL.
 In 1964 through this bureau proposals related to the unification of rules of PIL
relating to adoption were accepted.
 Some other conventions which have unified the rules are the Convention on Choice of
Court 1965; the UN Convention on Recovery Abroad on Maintainance (1956 New
York); the Convention on Jurisdiction, Applicable Laws and Recognition of Decrees
relating to Adoptions 1965; the Convention on Conflicts of Law relating to Forums of
Testamentary Disposition 1961.
Regional and Bilateral Attempts:

1. Inter-Scandanavian Convention (1929-1933) series of convention

2. The Benelux Convention unified the rules of PIL

However international conventions can be a part of municipal law only when the same has
been recognised and incorporated in the municipal law.
1

MODULE 3: GENERAL PRINCIPLES

BASIS OF JURISDICTION

In PIL disputes any court which assumes jurisdiction over a case has to first decide the basic
question i.e., in reference to which law the court is going to characterize the factual situation
so that it is able to reach a socially desirable and just result. For example, the following are
some well-recognised rules:

1. Capacity is governed by lex domicilii (common law country)

2. Formalities and procedures are governed by lex loci (Eg. where marriage is performed
is lex loci celebrationis; where a contract is entered is lex loci contractus)
3. Immovable property - lex situs

Ogden v. Ogden:

A French domicile man and an English domicile woman got married in London. At that time
as per French law, the consent of parents was necessary to marry till the age of 25 years. The
French man was below the age of 25 and therefore his parents got the marriage annulled by
the French courts. Subsequently, the French man got remarried. Once the English woman/the
wife got to know about this, she filed proceedings before the English HC for divorce on the
grounds of adultery and desertion. This petition was dismissed by the Court. Nonetheless, the
English woman remarried to one Mr. William Ogden. After some time, Mr. Ogden found out
about her earlier marriage and therefore moved the English courts to declare the second
marriage as a nullity on the grounds of bigamy. In this second proceeding, the Court nullified
the second marriage on the ground that parental consent was a matter of lex loci celebrationis
and therefore the Court did not recognise the French decree. As a result of this, tragically the
English woman remained unmarried in the eyes of French law but married in the eyes of
English law.

In Re Cohn 1945:

In this case, Mrs. Cohn and Mrs. Oppenheimer, mother and daughter respectively, were both
domiciled in Germany. Mrs. Cohn has a will in favour of Mrs. Oppenheimer. While they
were residing in the U.K., they died in air raids in London. The question before the courts
was who died first or who survived the other. As per the English law, the presumption is that
the younger person survives the older person and therefore Mrs. Oppenheimer survived Mrs.
Cohn. However, as per German law, the presumption was that both of them died
simultaneously. It was argued that the question of presumption is a question of procedure and
proof and therefore it should be determined by lex fori (i.e., the law of the forum, the forum
being the English courts). However, Honʼble Mrs. Justice Uthwalt rejected this argument and
held that the law of the domicile will apply in this case and therefore Mrs. Cohnʼs relatives
will be entitled to her estate.

Maltese Marriage Case (Anton v. Batolo)1891:

In this case, a widow claimed a share in her husbandʼs property situated in Algeria (French
colony). The husband and the wife at the time of their marriage were domiciled in Malta. As
per the French PIL, succession was governed by lex rei situs, and the right of husband and
wife on the property was governed by ‘matrimonial domicileʼ, i.e., where the couple intended
to reside at the time of marriage. As per the French law, the wife was not entitled to any share
in her husbandʼs property. However, under Maltese law, she was entitled to a share and right
of survivorship. It was held that the Maltese law would apply and not the French law and
therefore the widowʼs claim was upheld.

JURISDICTION IN DOMESTIC LAW

1. S/9 CPC (Subject-matter jurisdiction) Suits of civil nature v. civil suits - suits of civil
nature include socio-religious questions (Vaishno Devi Shrine case)

 Express and implied bar

2. S/6 CPC (Pecuniary jurisdiction)

 Pecuniary limits cannot be exceeded

3. S/20 CPC (Territorial jurisdiction)

 Plaintiff will decide the jurisdiction ‘dominus litusʼ

 Where the defendant or each of the defendants place of business, residence,
works for gain at the time when cause of action arises.
 Cause of action arises (wholly or in part)
 MODULE 4: GENERAL PRINCIPLES

CHARACTERISATION OF DISPUTE

‘Characterisation’ means classification of a given factual situation in one of the applicable

legal systems in cases having foreign element. Essentially, it means how do you classify
disputes in particular categories. It is important because every dispute has some procedural
aspects and substantive aspects. Based on:

1. Lex Fori - domestic country - helpful in determining the procedural aspects - eg. court
fee, limitation act
2. Lex Causae - foreign country - helpful in determining the substantive aspects - deals
with the merits of the case - eg. contract
3. Dual Theory - etc.

Stage 1: Characterise the dispute based on lex fori.

Stage 2: Characterise the dispute based on lex causae.

Give example of Ogden case where the English courts wrongly did not recognise the French
decree and applied lex fori instead of lex causae.

Lex Fori - Bartin (main propounder)

Lex Causae - Despagnet and Martin ‘Wolffʼ (main propounders and criticizers of

Lex Fori)
Dual Theory: Cheshire (main propounder) and criticizers are Dicey and Morris

CLASSIFICATION BASED ON LEX FORI

Bartin was of the view that in PIL it is not possible to arrive at any conclusion on the basis of
the rules of law of nations for the simple reason that there are no such rules. Therefore, in all
cases, characterization is to be made on the basis of Lex Fori i.e., the law of the country
where the court adjudicates the case also known as ‘internal lawʼ. Bartin recognised only two
exceptions to this theory:

1. Lex Situs for property because it affects the security of transactions.

2. Lex Loci Contractus where the contract is entered into by correspondence to the
governing law which is a foreign law.

Reasons for support:

1. That PIL rests on the notion of sovereignty and the internal laws are an extension to
the same.
 2. Practical reasons i.e., the judges are trained in the internal law and therefore should
decide the issue based on the rules of the forum. If they apply foreign law they will be
venturing into darkness.

However, this theory has been criticized by Despagnet and Martin ‘Wolffʼ who propounded
the theory of Lex Causae. According to them the analogy to the internal law is more apparent
than real. For example, the English law characterizes the question of parental consent as
extrinsic or related to the formal validity of marriage, while French law considers it intrinsic
or related to material validity. This means that the matter is governed by Lex Loci
Celebrationis in English law while domicile/nationality will apply in French law. According
to Bartin, this matter will be characterized based on the internal law as one related to
formalities and it will result in socially undesirable result like Ogden v. Ogden 1908.

CLASSIFICATION BASED ON LEX CAUSAE

According to ‘Wolffʼ, “every legal rule takes its classification from the legal system to which
it belongs (foreign law)ˮ. So French law will classify French rules, and an English court
examining the applicability of French rules will have to take the French classification into
consideration. Rare exceptions to this rule may be based on justice and morality. Otherwise,
it will be (criticism for Bartin) “shutting your eyes to good portraits and remaining satisfied
with a collection of caricatures.ˮ

However, this theory has been criticized by Cheshire as follows:-

1. “If the law which finally regulates the matter (lex causae) depends upon
classification, how can a classification be made according to that law?ˮ It therefore
leads to a vicious circle like in the Maltese marriage case.
2. If there are more than one lex causae i.e., two or more foreign laws are equally
applicable then which of those laws will apply or will be preferred over the other?

CLASSIFICATION BASED ON DUAL CLASSIFICATION BY CHESHIRE

Cheshire divides characterization into two stages:

1. Primary characterization based on lex fori.

2. Secondary characterization based on lex causae

Primary characterization is based on the allocation of factual situations to the correct legal
category, while secondary characterization is an application of the proper law. The theory of
two-fold classification has been criticized as artificial and too mechanical by Dicey and
Morris. For example, Cheshire characterizes parental consent as primary classification while
Robertson maintains that it is governed by secondary classification. Eg. an English woman
marries in Greece and according to Greek law, the presence of a priest is mandatory.
However, in the case of English law, the presence of a priest is not mandatory. Therefore,
when the English courts apply this theory for them according to lex loci celebrationis the
absence of a priest is a mere irregularity and hence does not hold the marriage void.
Therefore the English courts would not be able to move to the next stage of application of lex
causae because the marriage at the primary stage of lex fori is okay. Hence the classification
is artificial and too mechanical.

MODULE 4
(c) and (d): Ogden case

(e) Cohnʼs case

(b) Maltese marriage case
 MODULE 5: GENERAL PRINCIPLES- RENVOI

‘Renvoiʼ = remission (by Cheshire) /transmission (by Dicey)

Remission here means ‘referring the matter backʼ - if internal law is applied then it is partial
renvoi and if the judge juxtaposes himself as judge of the country which remitted, eg, in
contract law cases (lex contractus), it is total renvoi (based on ‘foreign court theory).

Transmission here means ‘referring the matter to a third countryʼ

‘Renvoiʼ means remission or transmission. The doctrine of ‘Renvoiʼ in PIL arises when the
matter is referred back to the law of the forum (remission) or to the law of a third country
(transmission).

According to Dicey, a patent conflict of rules involving a reference back to the forum is
called remission by a patent conflict of rules invoking reference to a third country is called
transmission.

The law of a country for doctrine of ‘Renvoiʼ means:

1. Internal law of that country, or

2. The whole law of that country including PIL

As per the rules of PIL of that country, that country may:

 Refer back to the law of the forum.

 Refer forward to a third country.

In the Forgo case,

A Bavarian national, domiciled in France, died in France and left properties in France. The
French court referred the matter to the Bavarian court applying the principle of lex patriae
(i.e., the law of nationality). However, the Bavarian court referred the matter back to the
French court on the basis of lex domicili. Unlike Bavaria, French law did not recognise
succession on collaterals for an illegitimate child i.e., Forgo. The French court applied the
‘doctrine of partial renvoiʼ and decided the matter as per its own law, resulting in no
succession to collaterals to Forgoʼs properties.

CRITICAL ANALYSIS OF ‘RENVOIʼ

The doctrine of renvoi has been applied in several cases. In Re Ross (1930), an English
woman domiciled in Italy, left her property by will to her relatives, excluding her only son.
After her death, the son brought an action in English court to claim his share in the property
as to what he would be entitled under Italian law. The English court proceeded to determine
the question “as an Italian judge would haveˮ. Therefore, the English court decided the issue
based on lex patriae and allowed the claim of the beneficiaries under the will as against the
only son (as per English law).

As explained by Sir Herbert Jenner(1841) Collier v. Revaz “the court sitting here (U.K.)
decides from the personʼs skilled in that law, and decides as it would if sitting in Belgium.ˮ
The theory has been criticized on the following grounds:

1. If the foreign country also adopts renvoi then no solution is possible as it will lead to a
circulus inextricabilis which Cheshire calls as “an international game of lawn tennisˮ.
2. It is very difficult to interpret the law of a third country especially when there are no
clear pronouncements on the subject.
3. The doctrine goes against the aim of PIL which is to bring uniformity of laws.
4. Transmission to a third country may result in application of multiple law systems and
it causes a difficulty especially in complex commercial transactions involving
multiple jurisdictions.

Indian position - there are no judgments of SC on renvoi but in commercial matters courts do
not apply renvoi.

RELEVANT PROVISIONS IN THE INDIAN EVIDENCE ACT (IEA)

 S/45: which is about foreign expert (skilled in foreign law)

 S/57: taking judicial notice of foreign laws particularly U.K. - refer to appropriate
books/docs
 S/38: record of law published under foreign government - law books published also
included
 S/84: presumption of genuineness - burden of proof on defendant S/74- public docs
and mode of proof - commonwealth and foreign
 S/78: mode of proof
 S/82: presumption of documents admitted in England without proof of seal/signature -
anything admissible in English and Irish courts, will be also admissible in India -
Suganchand Bhinki M. Chand v. Mangibai Gulabchand (1942) Bombay HC was held
that a judgement of highest court of foreign country is the best evidence as to its law.
Palaniappa Chetti v. Nagappa Chettiar 1930 Madras HC: was held that although
evidence of an expert on a point of law of a foreign country in the usual mode of
proving foreign law, the court should itself interpret the foreign law if the facts so
require.
 MODULE 6: GENERAL PRINCIPLES

EXCLUSION OF FOREIGN LAW

When it is in conflict with:

1. Public policy - eg. same sex marriage, adoption matters

2. Revenue law - sovereign function - neither interfere in any other countryʼs tax law nor
let anyone escape our countryʼs tax
3. Penal law - eg. S/494

The exclusion of foreign law is on 3 main grounds:

1. Public Policy refers to those matters regarded by the parliament and the courts as
involving fundamental concerns of the state and society at large. In the case of Satya
v. Teja Singh 1975 SC it was held that the court cannot enforce a contract which is
opposed to the notion of public policy. In the words of Judge Durrough in the case of
Richardson v. Mellish 1824 (U.K.) “I protest arguing dynamically upon public policy.
It is an unruly horse and once you ride it, you canʼt imagine where it will deliver
you.ˮ In October 1996, the Hague Conference negotiated the context of multiple
judgement conventions in which public policy was a key element.
2. Penal Law contains some punishment for the breach of duty in relation to the state as
held in Raulin v. Fischer 1911 U.K.) - a court will not enforce foreign penal laws,
either directly or indirectly if such law contains both penal as well as remedial
provisions, then the court will only enforce the remedial nature of the law.
3. Revenue Law of foreign court can neither impose the burden nor confer a benefit on
subjects of any other state. As held in the case of Regazzoni v. K.C. Sethia 1956
(U.K.) the court can also not collect taxes of foreign countries irrespective of the
identity of the person.

In some countries, public policy is a broad concept encompassing the revenue laws as well as
the penal laws.

JUDGEMENTS
1. Govt of India v. Taylor 1955 U.K. (by House of Lords)

 In this case, the Govt of India purchased business of Delhi Electricity Supply and
Traction Company, a company registered in England but carrying out business in
India.
 On the receipt of purchase of money the Company remitted to England and went into
voluntary liquidation.
 The Indian Commissioner of Income Tax claimed capital gains tax from sale of
business.
  House of Lords rejected the argument and held that tax gathering is not a matter of
contract but of authority and administration as between the sovereign state and its
subjects within its jurisdiction.

2. Huntington v. Attrill 1893 N.Y., U.S.A.

 The question which the court should characterize is whether the particular law is
penal or remedial.
 The court held that it is to be decided based on lex fori.

3. Wholl v. Oxhome 1817 U.K.

 The English Court enforced a contract which was void by its proper law. It is because
English courts disregard foreign discriminatory legislations rendering a contract void.
 Under the Bills of Exchange Act 1882, a bill of exchange subject to foreign law can
be enforced in England even if it is void under the foreign law due to insufficient
stamping.
 MODULE 7-8: DOMICILE

Introduction & General Principles

“Everlasting homeˮ- Cheshire

Lord Cranworth in Whicker v. Hume 1858 observed “By domicile we mean home, permanent
home.ˮ

But then what is home?

“If you do not understand your permanent home, I am afraid that no illustrations from foreign
writers will help you.ˮ

In 1863, Moorhouse v. Lord 1863, Lord Cranworth observed “The present intention of
making a place a personʼs permanent home can exist only where he has no other idea than to
continue there, without looking for any event which may change his residence.ˮ

Ramsay v. Liverpool Royal Infirmary (IMPT)-

 A person was born in Scotland, Glasgow in 1845 and therefore had a Scottish
domicile. He shifted to Liverpool, England in 1892 and died there in 1927 without
ever going back to Scotland.
 He made a ‘willʼ which was valid as per the Scottish law but invalid as per the law of
the U.K.
 He did not even attend the funeral of his mother at Glasgow and arranged for his own
burial at Liverpool.
 He often used to say that he was very proud to be a Glasgow man and connected with
Scotland.
 The House of Lords held that he never made Liverpool his permanent home and
therefore he continued to have Scottish domicile of origin.
 As per lex domicilli the will was valid as per Scottish law.

Winas v. A.G. (1904 House of Lords)

Under both Indian and English PIL the following principles of domicile apply:

1. No person can be without a domicile.

2. No person can have 2 domiciles simultaneously (exception - federal systems like
U.S.A. and Australia).
3. Domicile denotes the connection of a person with a territorial system of law. (IMPT)
4. The presumption is in favour of the continuance of an existing domicile.
5. The burden of proof of a change in domicile lies on the person who alleges it.
(Casdagli v. Casdagli 1919 U.K.; Abdul Samad v. State of West Bengal 1963 SC).
The Indian SC and the Constitution also recognise only one domicile for the purposes of PIL-
Pradeep Jain v. UOI 1984 SC. In India, the primary domicile is the Indian domicile and the
secondary domicile is the state domicile. The state domicile may prevail only for certain
purposes, for example, marriage laws.

TYPES OF DOMICILE
A) DOMICLIE OF AN INDEPENDENT PERSONS

1. DOMICLIE OF ORIGIN:

 Domicile of father (and not birthplace) (and domicile of mother in case of illegitimate
child)
 As per English PIL, if the child is born after fatherʼs death, he will get motherʼs
domicile; but as per Indian law, it does not matter if the father is dead or alive
 ‘Revivalʼ - at a time when there is no domicile of choice, the domicile of origin
revives - it is criticized by Cheshire but is largely accepted today
 Founding domicile - where the child is found (in case of orphan) - it will change if
before attaining majority, the parents are found

2. DOMICILE OF CHOICE:

Sankaran Govindan v. Lakshmi Bharti 1964 (Kerala HC)

 Krishnan domiciled in India (Kerala) went to the U.K. for higher education in 1925.
 After some time, his parents declined to give him financial support.
 With the help of an English woman Ms. Hopesworth, he completed his studies in
1939 and set up his medical practice in Sheffield.
 He shifted from a rental apartment to his own mansion in Sheffield and earned a
fortune.
 He joined the British Health Service and died in the U.K. in 1950.
 During these 25 years he never came back to India, but wrote letters to his friends and
relatives expressing his intention to return.
 Kerala HC held that Krishnan did not abandon his domicile of origin.
 However, the SC overruled this judgement in 1974 and held that Krishnan acquired
the U.K. as domicile of choice once he had a comfortable practice and purchased a
mansion in Sheffield.

For acquisition of domicile of choice, the following two conditions are necessary:

(i) ‘Residence’ in the country of domicile of choice;

Kumud v. Jotindranath 1911 Calcutta HC:

 Relied on an English case - R v. North Corry [R: King]

  Held that ‘residence’ is a place where a person or his family or their servants eat,
drink, and sleep.
 No specific period is necessary.

(ii) ‘Intention’ to live in that country permanently. In other words, factum et animus must
occur. It is an intangible fact. Every conceivable event and incident in a manʼs life is relevant
and admissible indication of the state of mind. Every act, no matter how trivial it is, can show
intention with respect to domicile. Eg. Casdagli v. Casdagli 1918.

DIFFERENCE BETWEEN DOMICILE OF ORIGIN AND CHOICE

Bell v. Kennedy 1868 U.K.

1. Mr. Bell was domiciled in Jamaica. He reached Scotland where he wanted to purchase
a house and acquire domicile of choice.
2. He had not firmly made up his mind to settle there as his wife passed away in
between.
3. The Court held that if a new domicile of choice is not acquired, the domicile of origin
revives.

(B) DOMICILE OF DEPENDENT PERSON

Dependent persons - not capable of acquiring their own domicile -

1. Married Women - domicile of husband (S/15 Indian Succession Act) English and
Indian law. Exceptions (S/16 Indian Succession Act):

 decree of separation
 transportation of husband (when the husband is undergoing a life sentence)

2. Lunatics: S/18 Indian Succession Act - domicile of another person (on whom he is
dependent) - considered static by many authors (exception to the doctrine of revival of
domicile of origin as even if this guardian dies, the guardianʼs domicile will continue)
3. Minors: S/14 of the Indian Succession Act - domicile of father (mother in case of an
illegitimate child and under English law, a child born after fatherʼs death i.e., a
posthumous child, his domicile will also be that of the mother)

Indian Succession Act

 S/7- Domicile of origin of person of legitimate birth

 S/8- Domicile of origin of illegitimate child
 S/14- Minorʼs domicile
 S/15 & 16- Domicile acquired by woman on marriage; Wifeʼs domicile during
marriage
 S/18- Lunaticʼs acquisition of new domicile
In R Dolphin v. Robins 1859 Lord Crainworth observed that the wife can acquire separate
domicile only in exceptional cases like separation between husband and wife or if the
husband is undergoing life sentence. It seems that the Indian law and the exceptions in S/16
of the Indian Succession Act are based on this rule.

However, now the ‘Domicile and Matrimonial Proceedings Actʼ 1973 (U.K.) has abolished
the rule of unity of domicile between the husband and wife. Hence, a married woman is not a
dependant person anymore under the English law.

(C) DOMICILE OF CORPORATION

Foote calls it quasi domicile or commercial domicile.

The English courts have decided the cases involving corporations on the basis of “residenceˮ.
The residence here implies the place where the center of control of the company exists.

De Beers Consolidated Mines Ltd. v. Howe 1906 - company was incorporated in South Africa
and was carrying mining of diamonds. However, it was found that the actual control of affairs
of the company was with the board of directors in London and not in South Africa. It was
held that the company was resident in U.K. for tax purposes, although its profits were
generated in South Africa. Lord Loreburn observed that a company cannot eat or sleep but it
can keep a house and do business. We therefore have to see its actual place of control.

Central Railway Company v. Thompson 1925  It was held that the company was resident in
both England and Sweden because the central control is evenly divided between the two
countries and it is difficult to identify one seat of control.

For domicile of a company the main factor that is seen is where it is incorporated (similar to
the domicile of origin). A company is resident where there is actual place of control and it is
domiciled where it is incorporated.
 MODULE 9-10: CONTRACTS

Introduction

In order to identify the applicable law in contractual obligations the English common law and
the Indian law follow the doctrine of proper law of contract. This doctrine was developed in
Vita Foods Incorporated v. Unus Shipping Company (1929) and later it was followed by the
Calcutta High Court in the Indian General Investment Trust v. Raja of Khalikote wherein it
was held that the proper law of contract means that law which a court is to apply in
determining the obligations under the contract. There is no rigid criteria like lex loci
contractus and it can be ascertained by intention of party, terms of contract, situation of
parties and all the surrounding facts.

Cheshire found favour in defining the limits of the partiesʼ express choice of law to govern
their contract. According to Cheshire parties can select proper law by localising the contract
and grouping its elements to find the centre of gravity. For example if parties want to select
English law to govern contract, they have to ‘localiseʼ the contract by grouping elements such
as lex loci contractus, currency of transaction, language of contract, seat of arbitration and
jurisdiction of courts in such a manner that the contract becomes most substantially and
closely associated with law of England.

Delhi Cloth and General Mills Co. Ltd. v. Harnam Singh (1955):

The contract was entered between 2 merchants for sale of clothes in which the law of
Lyallpur was chosen as proper law, however the SC clarified that parties cannot pick and
choose ‘whatever laws they likeʼ from the globe and stressed that the choice of law should be
made based on the law which the cotract is localised. Therefore the court followed the above
interpretation of party autonomy given by Cheshire.

British India Steam Navigation Company v. Shanmugha Vilas Cashew Industry 1990 SC:

The bill of lading specified the proper law to be U.K. However, all the localising factors were
in India and the Court held that the parties cannot choose a completely unconnected law
which is not otherwise not a proper law of contract. The court can even strike down such a
clause if the choice of law is not connected to the contract.

Cheshire Dicey

(criticized by Dicey) (now Indian courts follow this)

Localisation Party autonomy
Closest connection ‘centre of gravityʼ Globalisation
Objective interpretation of proper law Subjective interpretation of proper law
Cheshire - localization theory (Dicey did not support - supported party autonomy i.e., theory
of intention)

The above cases do not represent the current position on the subject. In the case of National
Thermal Power Corporation v. Singer Corporation 1992 SC the Court held that the
transaction which has the closest and most real connection to the system of law will be the
governing law. The Court accepted the partyʼs selection in favour of neutral English law and
emphasized that the selection would only be disregarded if:

1. It is not bona fide

2. It is illegal
3. It is in contravention to public policy

This view was expanded in Modi Entertainment Network v. WSG Cricket Private Ltd.
wherein the courts confirmed the partyʼs rights to select any law including a neutral legal
system as the governing law. Diceyʼs subjective interpretation is followed in this case
because party autonomy is respected. Here the parties agreed that the English courts will have
jurisdiction, even though the facts related to India (match broadcasted in India by Modi
Entertainment) and Kenya (the cricket match was held in Kenya).

Position in India - judgements of Indian courts

When proper law will not be applied in contracts?

Dicey, Morris and Kelly articulated that the partiesʼ choice of law is made in bad faith if it
contradicts the overriding mandatory norms of the legal system which has the closest
connection with the contract.

In Re The Pollandia 1982 House of Lords it was held that the partiesʼ choice of Dutch law
over English was not bona fide or legal because they were overriding mandatory rules under
the Hague Bisby Rules applicable in the U.K. under the English Carriage of Goods by Sea
Act 1971.

Eg. Indian law does not recognise pre-nuptial agreements and hence cannot be enforced

In Renusagar Power Company Ltd. v. General Electric Company 1994 SC it was observed
that in matters of international commercial arbitration, validity of partiesʼ choice of law must
be construed in view of the public policy of India i.e.,

1. fundamental principles of justice

2. prevalent concepts of good morals
3. deep-rooted traditions of the commonwealth
 4. most basic notions of justice and morality (in Sangyong Engineering and
Construction Co. Ltd. v. NHAI 2019 SC).

If the stronger party is taking advantage of the oppressed and depressed then it is against
public policy - Central Inland Water Transport Corp. Ltd. v. Brojo Nath Ganguly 1986 SC
where the Court refused to give effect to a contract which permitted the employer to dismiss
the employee without cause by giving three monthsʼ notice or pay in lieu. It was held that this
contract was unconscionable and opposed to public policy and therefore cannot be enforced.
 MODULE 11: TORTS

There are three main theories:

1. Lex fori - internal law - proposed by Savigny - only in theory and not in practice i.e.,
not followed by English courts
2. Lex loci delicti commissi - where the tort is committed
3. Proper law theory/ Social Environment Theory - what is the closest connection to
the parties in the case (closest connection test) - explained by Morris and followed by
Lord Denning

Bata v. Bata - some letters are written in Zurich and posted in London where they are
published. The English courts will have jurisdiction as per lex loci delicti commissi.

Tortious liability in PIL is governed by the following theories:

1. Lex fori theory-

 Theory is proposed by Savigny who was of the view that tortious liability is similar to
criminal liability or the fundamental principles of public policy applicable in the
country of the forum.
 However, this theory has never been followed by English courts and Cockburn CJ
observed that application of this theory will lead to the most “inconvenient and
startling consequencesˮ.

2. Lex loci delicti commissi theory-

 The civil liability arising of a wrong (tort) derives its birth from the law of the place
where it was committed, and its character is determined by that law.
 In the case of Bata v. Bata 1948 U.K. where defamatory letters were written by the
defendant in Zurich and posted to London, the court held that lex loci delicti commissi
will be applicable and since publication was made in London, the English courts will
have jurisdiction.
 According to Cheshire, this theory is applied because it is the law of the country
which is most directly affected by the defendantʼs allegedly tortious activity and also
to give effect to the reasonable expectation of the parties.
 This theory has been criticized by Kahn wherein he advocates that if the tort is
committed at a “chance placeˮ (two English men by chance on a vacation in Italy
where the tort is committed) then lex loci delicti commissi will not apply.
3. Proper law theory/social environment theory-

Boys v. Chaplin (1968)

Plaintiff and defendant were a part of ‘Her Majestyʼs Armed Forcesʼ in Malta (ordinary
residence in U.K.) where he was hit by a car by Mr. Chaplin. He sued Mr. Chaplin in
England which was contented as the cause of action arose in Malta. But for assessment of
damages, English law should be applied as it is a procedural question (lex fori applies).
Under English law the damages were 2250 Pounds but in Malta the damages were 53
Pounds. The court held that both the questions will be determined by proper law theory as
both questions are substantive in nature and not procedural. Therefore the court went
ahead with English law and gave damages as per the English law.

1. The plaintiff suffered injuries in a road accident due to the negligence of the
defendant in Malta (lex loci delicti commissi). Both the parties were normally resident
in England and the action was filed in English court.
2. The act of negligence was a tort both under English law and Maltese law. (under civil
liability, the tort should also be under the place where it is committed)
3. Under the Maltese law, Boys was entitled to 53 Pounds while as per the English law
the assessment of damages entitled him to 2250 Pounds because the heads
4. It was held that the assessment of damages was a matter of substantive law and not
procedural law and therefore it is governed by English law.
5. Out of the five judges of the House of Lords, the only dissenting judge was Diplock J
who concluded that Boys should get only 53 Pounds as damages.
6. In holding so the House of Lords overruled Machado v. Fontes 1897. In that case, a
defamatory publication was made in Brazil by Fontes who was sued in England by the
plaintiff Machado. Under then law in Brazil such publication was not an actionable
tort but it was actionable as tort by English law. The court held that the English court
can proceed with the case against the defendant and compared the tort with criminal
prosecution in Brazil.

 Phillips v. Eyre 1870 - relates to ‘double actionability’ i.e., act should be a tort in both
the places.

1. In Boys v. Chaplin, the proposition laid down in Phillips v. Eyre almost a century ago
was followed i.e., the double actionability test.
2. An action on a foreign tort will be maintainable if it is actionable both under English
law as well as the foreign country where the tort was committed.
3. lex loci delicti commissi will apply as a general rule however in those cases where the
tort is committed in more than one country, the courts can apply the closest
connection test based on the proper law/social environment theory as highlighted in
several decisions of Lord Denning.
 4. The brief facts of Phillips v. Eyre (1870) are:

i. Edward Eyre was an Englishman who was serving as the governor of Jamaica.
ii. In the year 1865 there was a revolt in Jamaica and in order to suppress that
same Governor Eyre declared martial law.
iii. This lead to widescale arrests and one Mr. Phillips was put on house arrest,
handcuffed and later forcefully transported by ship to U.K.
iv. The Legislative Council of Jamaica passed an act of indemnity saving
Governor Eyre from any civil or criminal liability for his acts to suppress the
revolt.
v. Upon Governor Eyreʼs return to England, Phillips with the support of the
Jamaican Committee and some liberal thinkers filed an action for tort of false
imprisonment assault, etc. against Governor Eyre.
vi. Governor Eyre took the plea that his acts did not constitute the tort in Jamaica
due to an express legislative act of indemnity.
vii. The English court sustained his plea and observed that Governor Eyre cannot
be held liable in torts in England if such tort is not a tort in the foreign land
where it was committed.

Wills J. observed that civil liability arising out of a wrong derives its birth from the law of the
place and its character is determined by that law. Therefore an act committed abroad, if valid
and unquestionable by the law of the place (lex loci delicti commissi), cannot be questioned
anywhere else, in so far as civil liability cases are concerned.
 MODULE 12

(A) MARINE TORTS

Inland torts are different from maritime and aerial torts due to their location.

Maritime torts are those torts which are committed on the high seas. These torts may fall into
two categories:

1. The act is internal to a ship i.e., it is confined to a single ship/vessel. For example, if a
crew member assaults a passenger on a ship, it will be treated as an internal maritime
tort. Such a tort will be governed by the law of the flag since that ship will be a part of
the territory of the country the flag of which it flies. Therefore, if a tort is committed
on an Indian ship, the matter will be exclusively governed by Indian law. If an action
is brought on such a tort in an English court then the rule laid down in Phillips v. Eyre
as modified in Boys v. Chaplin will apply.
2. The act is external to a ship. For example, negligent navigation resulting in collusion
with another ship or some damage to property such as submarine cables. In such cases
the Convention on High Seas 1958 (concluded in Geneva) will apply. If the country is
not a party to the convention then the general maritime law of that country will apply.
The Bombay HC admiralty division has original jurisdiction over general maritime
law matters.

(B) AERIAL TORTS

Aerial torts are those torts which are committed on the board of an aircraft. Graveson defines
‘aircraftsʼ includes any mechanical device capable of flight. In the case of aerial torts there
are three possibilities:

1. If the aircraft is flying over high seas or territorium nullius (i.e., outside territorial
boundaries) then like maritime tort the law of the flag of the aircraft will apply.
2. If the aircraft if flying over the airspace of another country then lex loci delicti
commissi will apply.
3. However, Kahn suggests that it should be the law of the place where the aircraft is
registered because “connection of the aircraft with the countries over which it flies is
fleeting and it may be difficult to prove the precise location at the time when the tort
was committed.ˮ

The matter is now governed by several international conventions such as the Warsaw
Conventions 1929-59 on air transport, Chicago Convention on International Civil Aviation
1944 to which English statutes of Carriage by Air Act 1961 and Civil Aviation Act of 1949
correspond to and therefore the appropriate jurisdiction will be determined based on the
above conventions and domestic laws. Several authors point that Lord Denningʼs social
environment theory (proper law theory) can be applied to marine as well as aerial torts.
  India- S/19 CPC

Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Company 1883
U.K. - On plaintiffʼs action for damages due to negligent navigation by the defendantʼs ship,
the court held that the tort of negligence will be decided by the maritime law of England and
not by the general common law.

Kotah Transport Ltd. v. Jhalawar Bus Service Ltd. 1960 India- A suit for damages was filed
by the plaintiff company against the defendant company due to negligent driving by the
defendantʼs driver. The accident occurred in Jhalawar and the action was brought in Kotah. It
was held that there was nothing in the law of Jhalawar which justified the act of defendant
and therefore the case was decided in favour of the plaintiff. (double actionability test - it
should be a tort in both jurisdictions)

RECOGNITION OF FOREIGN JUDGEMENTS

Need?

 judicial reasoning or social values- Justice H.E. Reads - very good in theory but not in
practice
 comity of nations - oldest and now not followed - no defences available
 obligation - prominent in Justice Blackburnʼs judgements - defences are available eg.
jurisdiction, PNJ, etc.

Need for recognition:

1. The English courts in earlier decisions such as Gever v. Augilar took the view that
foreign judgements need to be recognised on the basis of comity. Cheshire criticizes
this theory because comity will exclude all defences available to the defendant in a
municipal court except for want of jurisdiction of the foreign court.
2. The more recent theory which is now followed in English cases (Williams v. Jones
1845; Godard v. Grey 1817) is the theory of obligation. Justice Blackburn observed
that the judgement of a court of competent jurisdiction imposes an obligation on the
defendant to appear and the courts in this country are bound to enforce the same. The
defendant will have all the defences under municipal law which will nullify his
obligation. This theory is criticized by Martin Wolff due to its difficulty of application
in foreign divorce cases and other judgements in rem.
3. H.E. Reads propounded the view that foreign judgements are recognized on the
grounds of judicial reasons or social values or both. This view is theoretically sound
but practically flawed because it is difficult to examine vast number of cases and
apply the social values on a fact-to-fact basis.
4. Von Bar proposed the theory of harmony between the law and the judgement.
According to him a judgement is lex specialis i.e., a law regulating one single case.
Therefore, every country should respect a foreign judgement and recognise it in its
 municipal law. Martin Wolff criticizes this theory as it tends to over simplify the
complexities in enforcement of foreign judgements.
5. The theory of acquired rights holds the view that a foreign judgement implies an
acquisition of a right and it should be enforced. Martin Wolff criticizes this theory as
well as it presupposes the right as acquired.
6. The theory of vested rights was proposed by Dicey who was of the view that the right
was created by the foreign law and not the municipal law. The Indian law does not
subscribe to this theory in view of S/13 CPC.

India Law for Recognition

 CPC S/13, 14, and 44A

 IEA S/45, 57, 38, 84, 74, 78, and 82

The doctrine/theory of obligations as discussed above is the backbone of recognition and

enforcement of foreign judgements in India as enshrined in S/13, 14 and 44A of the CPC.
This theory is based on the premise that the judgement debtor owes an obligation to the
decree holder under the law of the state which passed the decision. For this reason, a foreign
judgement cannot have an automatic effect in India. Instead the judgement constitutes a cause
of action which must be recognised or enforced by initiating a fresh legal proceeding in India.
The doctrine of reciprocity therefore has a limited effect wherein S/44A permits certain
foreign judgements from superior courts of certain countries notified by the CG to have
automatic effect in the country. Judgements even from these countries must be pronounced
by a court of competent jurisdiction. The principles on which a court will be considered
internationally competent include:

1. nationality or habitual residence of the judgement debtor

2. express or implied submission of the judgement debtor
3. cause of action arising in foreign jurisdiction

India is not a signatory to HCCCA (the Hague Convention on Recognition and Enforcement
of Judgements/the Hague Choice of Court Convention, 2005) or the judgements convention.
These conventions endeavor to harmonise the law on the recognition and enforcement of
foreign judgements in civil and commercial matters by enabling interested parties to know in
advance the grounds on which a foreign decision may be recognised in another contracting
state. HCCCA has been ratified by EU, UK, Mexico, Singapore, etc.

In Transasia Capital Pvt. Ltd. v. Gourav Dhavan 2023 Delhi HC - a judgement passed by the
HC of UK was sought to be executed in India before the Delhi HC. In the execution petition,
the respondent Mr. Dhawan who was the personal guarantor in the loan agreement and
therefore liable to pay the decreetal amount of 47 million USD appeared for the first time. In
the proceedings he challenged the execution based on exceptions available in S/13(a),(b),(d)
CPC. However, the court came to the conclusion that he was duly served as per the law of
summons in England and therefore the ex parte order of the English court was valid and
binding upon him. Moreover, the said judgement was given with adequate reasoning and
proper evidence and therefore it was based on “merits of the caseˮ. UK being a reciprocal
territory as notified by the CG back in 1953, S/44A of CPC becomes applicable and the
judgement of the UK HC falls within the definition of “superior courtˮ and can be directly
executed in India. The court also upheld the asymmetric jurisdiction clauses as it’s a common
international practice that lenders get more choices in terms of jurisdiction. The court also did
not accept his contention that he was not “ordinarily residingˮ in England.

Restrictions or limitations to regulation and enforcement of foreign judgements:

1. It is well established in English as well as Indian law that no foreign judgement can be
enforced which has been pronounced by a court having no jurisdiction in the cause.
The competency of the foreign court is determined by the rules of PIL as held in
Pemberton v. Huges 1899. Generally, a foreign court will have jurisdiction based on
the following factors:

 Residence/nationality
 Express/implied submission
 Cause of action

In Indian General Investment Trust v. Ramchandra Maharaja, Raja of Kalikot 1952 - Justice
Sinha explained the meaning of submission as “voluntary acceptanceˮ of the authority of the
court to pass judgement when the court has no such authority. Such submission may be
express or implied (point 2 above).

2. A judgement impeachable on merits- A judgement is not given on the merits if

evidence is not recorded/ trial is not held properly/ reasonable opportunity is not given
to either party to present his case or if it is ex parte without due service of summons
(Ellise v. M. Henry 1871 U.K.; Gajanan Sheshadri v. Shanta Bai 1939 Indian Privy
Council). However, if a judgement is not on merits, the court does not reopen the case
if it can be gathered from the foreign judgement that judicial mind was applied and
the procedure according to which the suit was decreed has been proper then the
defendant cannot take the defence under S/13(b) CPC.
3. Natural justice- A judgement is opposed to natural justice if the defendant was:

 not served with notice/summons

 not given adequate opportunity to present his case
 not given proper reasons in the foreign judgement
 can prove that the judge was biased

(Prawley v. Isaacs 1867; Edulji Burjorji v. Manikji Patel 1887 Bombay)

4. Fraud- Fraud is an extrinsic collateral act which vitiates the solemn proceedings in a
court of justice. A foreign judgement can be impeached for fraud or collusion. In
 Sankaran v. Laxmi Kerala HC 1964 the Court observed that the judgement of English
court was also vitiated by fraud however it was overruled by SC in 1974by relying on
McDonald v. Pier 1963 U.K. on fraud.
5. Judgement contrary to Indian law or international law: S/13(c) and (f) are overlapping
as they talk about breach of Indian law. In Pires v. Pires 1967 it was held that a
judgement in breach of law of the state cannot be enforced. In this case, confirmation
of foreign decree was sought in Goa for divorce. The marriage was Roman Catholic
marriage and at that time the Portuguese Code did not allow dissolution of such
marriage. Therefore, the court refused to enforce the judgement under S/13. It may be
noted that the head of public policy is not expressly given as a defence under S/13
unlike the English law, however, it is implicit in S/13(c) and (f).
 MODULE 13-15: MARRIAGE AND MATRIMONIAL CAUSES

Introduction:

The requirements of an English Marriage are:

• Union should be voluntary between a Man & a Woman

• It should be monogamous
• It must not be for a limited period.

The concept of Christian marriage was defined in Hyde Vs. Hyde (1866) wherein, Lord
Penzance observed that ‘I conceive that marriage as understood in Christendon may for this
purpose be defined as voluntary union for life of one man & one woman, to the exclusion of
all others.’

Facts of the case:

• Mr. Hyde, an Englishman went to Utah (USA) & adopted the Mormon faith (Christ
centred faith in which polygamy is allowed). He married a Mormon lady in Utah &
co-habited with her for 3 years and had children.
• He criticised the Mormon faith upon his return to England & was excommunicated
from the Mormon faith in Utah where his wife married another man. The court held
that Mormon marriage was potentially polygamous & UK is adapted to Christian
marriages where monogamy is the rule.
• It was also held that parties to a polygamous marriage are not entitled to any
matrimonial relief/ adjudication by the English courts.

Unlike a Hindu marriage which is sacrosanct in nature, the English marriage is a contract of
special kind i.e. it arises out of a contract as there can be no valid marriage unless each party
consents to marry the other. It cannot be rescinded by mutual agreement of parties & can be
dissolved only by formal public act

In Sowa Vs. Sowa (1961) a marriage was celebrated in Ghana between the parties domiciled
there wherein polygamy was allowed. The husband promised that later he will convert the
marriage into a monogamous marriage as per law of Ghana. He failed to carry out his
promise. He also did not remarry. Therefore, it is a polygamous marriage.

The English law follows Lex Loci Celebrationis: If a woman domiciled in England marries a
Muslim man in India & they are living in England as husband and wife the marriage will be
polygamous as per Lex Loci Celebrationis.
Exceptions to Hyde Vs. Hyde / Can the nature of marriage change?/ (Change of
circumstance)
Cheni Vs. Cheni (1962)-

(English Case)
Marriage in Cairo, Egypt b/w two jews- Will the marriage be polygamous. However the
conditions was that the husband can remarry if no child is born within 10 years of marriage.

The wife moved the English court for matrimonial relief. The English Court recognised this
as a monogamous marriage in lieu of change of circumstances & granted the matrimonial
relief to the wife.

Therefore there are exceptions to Hyde Vs. Hyde as the very nature of marriage may change
due to variety of reasons, For Eg:

1. Change of religion.
2. Change of domicile.
3. Subsequent ceremony in Monogamous form.
4. Subsequent events which change the nature of marriage according to Lex Loci
Celebrationis.

Ali Vs. Ali (1966)-

• The parties were domiciled in India & married in India when polygamy was
recognised. They later came to England and husband acquired an English domicile.
• Husband petitioned in English court for divorce on the ground of desertion.
• The court recognised his change of domicile and granted him the relief as husbandʼs
domicile & residence in England prevented him from entering into a second marriage
& therefore the marriage had become monogamous in nature.
• A similar exception was carved out in the case of Baindail Vs. Baindail (1946)

Hashmi v. Hashmi-

 A Pakistan domiciled man married a Pakistan domiciled woman and had children.
 This man then went to U.K. and married an English woman and had children. The
question before the court was about the legitimacy of the children of both the
marriages.
 It was held that children of a potentially polygamous marriage can succeed to
property in England and for declaring legitimacy of the children the court also
declared the marriage as valid.
VALIDITY OF MARRIAGE

1. Formal- ceremony?, civil or religious?, witnesses?- lex loci celebrationis

2. Essential- polygamy or monogamy?, parental consent (Ogden), age?, prohibited
degree of relationship?- lex domiclli (dual domicile theory and matrimonial home
intent)

1. FORMAL VALIDITY OF MARRIAGE: Formal validity of marriage is related to

formalities and procedures of marriage such as whether the ceremony will be civil
ceremony or religious ceremony or a ceremony at all is required, the number of
witnesses, the permitted time when the ceremony can be performed, etc.

It is governed by lex loci celebrationis in Apt v. Apt 1947 it was held that a rule which
allows a party to marriage to enter into marriage by proxy is a rule related to formal
validity of marriage.

2. ESSENTIAL VALIDITY OF MARRIAGE: Essential validity of marriage deals

with matters like capacity of parties to enter into a valid marriage, all the impediments
to marriage such as polygamy, prohibited degree of relationship, age of marriage,
physical incapacity, etc.

There are two theories governing the essential validity of marriage:

a) Dual domicile theory

b) Theory of intended matrimonial home

This requirement is generally governed by lex domicilii (Brook v. Brook 1861)

Brook v. Brook (1861)

A marriage was celebrated in Denmark between an English domiciled man and his deceased
wifeʼs sister of English domicile. This marriage was valid in Danish law but not valid in
English law. The House of Lords held that the domicile of the parties (prohibition as to
capacity) will prevail over lex loci celebrationis (Denmark) and therefore the marriage is void
under the law of England.

Lord Campbell observed In the sphere of English conflict of laws, since the decision of
House of Lords in 1861 in Brook v. Brook (1861). it is well established that a distinction has
to be made between formalities and essentials of marriage -and that the latter which includes
capacity is governed by the law of domicile of the parties. In Brook v. Brook, the marriage
was solemnised in Denmark between a man and his deceased wife's sister, both of English
domicile.
According to the law of Denmark, the marriage was valid. According to the law of England,
as it stood then, the parties were within prohibited degrees of relationship and hence the
marriage was void.

The question in issue was whether the lex loci celebrationis would prevail over the
domiciliary prohibition as to capacity. The point was debated before very eminent Law Lords
and in an exhaustive judgment it was held that the marriage was void, as under the law of
England such a marriage was void. Lord Campbell, L.C. at p. 207 in that case stated:

"There can be no doubt of the general rule that a foreign marriage, valid according to the law
of a country where it is celebrated, is good everywhere. But, while the forms of entering into
the contract of marriage are to be regulated by the lex loci contractus, the law of the country
in which it is celebrated, the essentials of the contract depend upon the lex domicilii, the law
of the country in which the parties are domiciled at the time of marriage, and in which the
matrimonial residence is contemplated.

Although the forms of celebrating the foreign marriage may be different from those required
by the law of the country of domicile, the marriage may be good everywhere. But if the
contract of marriage is such, in essentials, as to be contrary to the law of the country of
domicile, and it is declared void by that law, it is to be regarded as void in the country of
domicile, though not contrary to the law of the country in which it was celebrated", and at p.
212 the Lord Chancellor further observed:

"It is quite obvious that no civilised State can allow its domiciled subjects or citizens, by
making a temporary visit to a foreign country to enter into a contract, to be performed in the
place of domicile, if the contract is forbidden by the law of the place of domicile as contrary
to religion, or morality or to any of its fundamental institutions." The other Lords, Lord
Cranworth and Lord St. Leonards also enunciated the same principles. Ever since that
decision the principle has been applied in England to varying situations.

Law governing Legitimacy

The English law is governed by the ‘Matrimonial Causes Act 1973’ on the questions of
validity of marriage, divorce and other matrimonial reliefs:

In the case of Starkowski vs. Attorney Gen, 1953 [English case], the facts are as follows:

 Two roman Catholics domiciled in Poland got married in an Austrian church without
civil ceremony and priest in May 1947, when Austrian law did not recognise such
marriage.
 After a few weeks, an Austrian legislation validated such marriages retrospectively
upon registration of the marriage.
 The marriage was not registered then and the parties acquired English domicile after
they moved to UK.
  In 1950, the wife married another man in England and the question before the court
was whether the second marriage was valid.
 The court held that Austrian marriage was valid due to the retrospective Austrian
legislation and therefore the 2nd marriage by the wife was bigamous and void.
 It was held that if a marriage does not comply with the formalities i.e., the lex loci
celebrationis at the time of the marriage, it may be validated by subsequent
retrospective change of law in lex loci celebrationis

DIVORCE AND OTHER MATRIMONIAL RELIEFS

1. Section 47, Matrimonial Causes Act (1973) [U.K.] provides wide range of matrimonial
reliefs to a party in a polygamous marriage including:

 Divorce
 Decree of nullity
 Judicial separation
 Presumption of death and dissolution
 Financial reliefs including to children

2. Judicial separation as a remedy has been granted by English courts since 1858and it
entitles the petitioner to live apart from the respondent but does not dissolve the marriage.
In deciding this question the English court applies, English law on the principle of Mensa
et thoro which means ‘separation from bed and board’.
3. Nullity of marriage is concerned with the validity of the marriage unlike divorce which
dissolves an already valid marriage.
4. It is governed by Section 11, Matrimonial Causes Act(1973). If the marriage is void ab
initio then it will be declared as nullity, for eg: under the English law, if one party is
below minimum age or is already married. In Scotland, lack of consent renders the
marriage void ab initio

[Case laws: Brook v Brook; Starkowski vs. Attorney Gen.]

ATTITUDE TOWARDS LGBTQ AND TRANS SEXUAL PERSONS RIGHT TO

MARRY

The Matrimonial causes act, 1973 did not recognise same sex marriage and a marriage not
between a male and a female was declared to be void.

• In the case of Talbot vs. Talbot (1967), U.K. court, it was held that a marriage
between a post operative trans sexual person and a man will not be recognised in
English law where Roger J. stated, “ marriage is a relationship which depends on sex
and not gender”
 • In the case of Wilkinson v Kitzinger 2006 UK HC , they are both professors in
Canada married in Canada, where same sex marriage was recognised.
• On there return to UK, there marriage was not recognised and therefore they filed a
petition in HC.
• Potter J. who delivered the judgement on 31 July 2006. did not recognise their
marriage and observed that marriage is an age old institution which has ‘long standing
definition and acceptance as a relationship between a man and a woman.
• The couple was at liberty to convert it into a civil union under the Civil Partnership
Act, 2004 .

Same sex marriage as of today is recognised throughout U.K. It was recognised by law of
parliament in England and Wales and Scotland in 2014 and in Northern Ireland since 2020.
UK is the 27th country in the world where such recognition is granted

The Indian SC in Supriyo vs. UOI, held that right to marry is not a Fundamental Right but a
statutory right and therefore it is the parliament which will have to enact a legislation to
recognition same sex marriage in India.
 MODULE 17-19: PROPERTY

DIFFERENCES:

MOVABLE PROPERTY IMMOVABLE PROPERTY

Movability It can be easily shifted or moved It cannot be shifted or moved

from one place to another

Examples Vehicles, electronics, jewellery, Real estate like housing, land,

etc. factory, etc.

Governing law It is generally governed by lex It is generally governed by lex situs

domicilii (Mocambique rule)

Registration Registration is not compulsory Registration is compulsory if the

property is over Rs.100.

Transferability Transfer is easy with less Transfer is complex with several

formalities. formalities.
Rights Rights include possession, use, Rights include ownership, lease,
transfer, and encumbrance. rent, transfer, use, encumber,
partition, etc.
Definition Defined u/s. 2(9) of the Defined u/s. 3 of TOPA and
Registration Act as including includes things found on Earth and
standing timber, growing crops, attached to the Earth as well as
grass, fruit upon and juice in deep within the Earth and does not
trees and property of every include standing timber, growing
description except for crops or grass.
immovable property
Judicial recognition Judicially recognised movable Judicially recognised immovable
property: government property: right to collect rent,
promissory note, royalty, hereditary office, right to ferry and
 standing timber, etc. fishery, factory, walls etc.

MOCAMBIQUE RULE

Immovable property is generally governed by the theory of lex situs. A foreign court does not
have jurisdiction to make orders relating to immovable property in another jurisdiction. This
is popularly called as the ‘Mocambique ruleʼ as propounded in the landmark case British
South Africa Company v. Pompania de Mocambique (1893).

The exceptions to the Mocambique rule are:

1. With respect to any contract made or equity between the persons in this country,
respecting lands in a foreign country, particularly in the British dominion, this court
will hold the same jurisdiction as if they were situate in England. This is also called as
in personam application. In Griggs Brooks Ltd. v. Rob Evans 2004 U.K. HC held that
in personam jurisdiction on property abroad has existed for 250 years. The result is
that the jurisdiction of the court is over the person and not the property even though
the consequence will be alteration of ownership in foreign land. However, when right
in rem is involved (right against the whole world) and not inter partes it will be
governed by the Mocambique rule and not the exception. This is also laid down in A-
16(1) of the Brussels Convention.
2. The second exception will apply if determination in right in rem will turn out to be
merely incidental to the main proceeding. The party will have to prove that right to
property on foreign land does not form the foundation of the claim but is merely
incidental thereto and prayer clause has to be made accordingly. In Singh v. Singh
2009 Australian SC it was held that the relief framed should fall in the exception
otherwise the Mocambique rule will apply.

In Singh v. Singh-

 Two brothers residing in Australia were involved in a dispute involving an

immovable property situated in Malaysia.
 One brother X was supposed to hold this property on trust for the other, but instead
he transferred it to his wife and daughter.
 Brother Y for whom property was held on trust brought proceedings in western
Australia against X, his wife and daughter to prevent further alienation of the
property and also transferring the property back to him.
 The majority decision held that the Mocambique rule will not apply, rather the
exception will apply as the jurisdiction is not over the property but over the persons
of the defendants.
 As per recent jurisprudence, it can be said that the Mocambique rule has become the
exception and the exceptions have become the rule.
Section 16 CPC deals with jurisdiction of court over immovable property. In Mahadev v.
Ramchandra 1922 Bombay HC it was held that even if the proviso to S/16 is considered to be
not applicable to cases where property is situated outside India, the English rule with respect
to jurisdiction in personam applies to India if the relief can be obtained through personal
obedience of the defendant. This case involved a suit for mesne profit over property in
foreign country against the defendant who was residing within the jurisdiction of the Bombay
HC.

Explanation to S/16 states that immovable property is situated in India and this may be the
reason why the courts relied upon English and Indian PIL in deciding the question of
immovable property on foreign land. Both English and Indian law are similar because all the
aspects of succession intestate or testamentary and other aspects of immovable property are
governed by lex situs. This is also the position in the English Wills Act and Indian Succession
Act 1925.

SUCCESSION OF IMMOVABLE PROPERTY

Section 5 of the Indian Succession Act deals with succession to property. Clause 1 applies lex
situs rule to immovable property and clause 2 applies lex domicilii rule to movable property
in Vishwanathan v. Syyed Abdul Wazir 1963 SC it was held that succession to immovables is
governed by the lex situs of the immovable property. This rule also applies to construction of
wills (S/74 to 111) and the doctrine of election (S/180-190).

The draft Convention on Formal Validity of Wills made at the Hague in 1961 also extends
this rule.

TRANSFER OF MOVABLE PROPERTY: TANGIBLE AND INTANGIBLE

The rule of “mobilia sequuntur personamˮ is that the property follows the person. However,
there are several theories for transfer of movables:

1. Lex domicilli theory: This is the oldest theory in PIL based on the fact that movable
property cannot have a fixed situs i.e., the situs can be shifted anytime by the owner.
Therefore it is the domicile of the person that will determine principles of transfer of
such property. Graveson criticizes this theory due to its complete unpredictability in a
world “where men of commerce call for certainty”.
2. Lex loci actus theory: In the case of Alcock v. Smith 1892 U.K. Justice Kay observed
that it is the validity of transfer of movable property which will depend on the law of
the country where the transfer takes place and not the law of the domicile in personal
matters. Cheshire and Graveson criticize this theory and Cheshire illustrates that if an
Englishman grants lien over his furniture in London to another Englishman and the
document is executed in Edinburgh, it is unthinkable that Scottish law will be the
governing law.
 3. Lex situs theory: With respect to transfer of goods Cheshire advocated that the law
applicable must be the law of the country where movable property is situated. in Re
Anzinani 1930 U.K. Justice Maugham observed that business could not be carried out
if lex situs is not applied especially in contracts. However, Graveson criticizes this
theory because if goods are in transit or they are fleeting or their exact location is not
known then this theory may not apply.
4. Proper law theory: According to Cheshire, the law of the country with which the
transfer has the most real connection (closest connection) will apply to transfer of
movables. This is very similar to the proper law of contract theory. Cheshire admits
that lex situs will be more suitable in so far as a third party is concerned and Morris
favours this theory for goods in transit. The above theories also apply to the
assignment of intangible movables. In Rabindra N. Maitra v. Life Insurance
Corporation of India 1964 Calcutta HC where the father assigned his life insurance
policy to his son in Bombay. The sum assured payable in Bombay and the policy
taken pre-partition, the court held that the government of Pakistan cannot confiscate
the policy irrespective of the fact that the premiums were paid in Dhaka. The court
applied proper law theory to state that Indian law will apply.

Indian law and English law apply the rule of situs for transfer of shares i.e., the place where
the register of shares is kept. London and South American Investment Trust v. British
Tobacco Company 1927 U.K. and In Re Indian Bank 1915 Bombay. The Indian Companies
Act 2013 also provides for the register of shares or the depository account for transfer of
shares (CDSL and NSDL) (S/56 Companies Act).