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UNIVERSITY OF PETROLEUM & ENERGY STUDIES Dehradun COLLEGE OF LEGAL STUDIES

PRIVATE INTERNATIONAL LAW

Assignment Submission On Indian Private International Law Act, 2013

Submitted To: Ms. Anuradha Nayak Asst. Prof (COLS)

Submitted By: Devesh Sharma Roll No. 44 BA-LLB: VIIth Sem

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INDIAN PRIVATE INTERNATIONAL LAW ACT, 2013

Section 1: Short title & Extent This Act may be called the Indian Private International Law Act, 2013. This act, would apply to the whole of India, except Jammu & Kashmir.

Section 2: Definitions: In this Act, unless the context otherwise requires; (1) Biological parent(s), means genetic parent(s); (2) Commissioning parents/couples/individuals, means parents, couples or

individuals, respectively, who approach an ART clinics or ART bank for providing a service that the ART Clinic or the ART bank is authorized to provide; (3) Surrogacy, means an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate; (4) Surrogate mother, means a woman who is a citizen of India and is resident in India, who agrees to have an embryo generated from the sperm of a man who is not her husband and the oocyte of another woman, implanted in her to carry the pregnancy to viability and deliver the child to the couple / individual that had asked for surrogacy; (5) Surrogacy agreement, means a contract between the person(s) availing of assisted reproductive technology and the surrogate mother; (6) "Prescribed" means prescribed by rules made under this Act;

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(7) "State Government", in relation to a Union territory, means the Administrator thereof; (8) "Marriage Officer" means a person appointed by each State Government, by notification in the Official Gazette, for the whole or any part of the State; (9) "Prescribed" means prescribed by rules made under this Act. (10) (11) Contract means an agreement enforceable by law is a contract; Consent means when two or more person agree upon the same thing in the

same sense; (12) Free Consent shall have the same meaning as in Section 14 of the Indian

Contract Act, 1872;

Section 3: Marriage (a) A Marriage solemnized outside the territory of India by an Indian origin with a person of another state or same state shall be solely recognized upon the registration made under Foreign Marriage Act, 1969. (b) The Marriage shall be declared void in case of non-compliance of sub-section (a) of the provision. (c) This section does not affect the determination of the validity of marriage in reference to another state to the extent that it does not fail to affect the rule of Private international law. (d) Nothing in this section shall affect any municipal law or custom of the country.

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Section 4: Registration of marriages solemnized under this Act: (1) Where (a) a Marriage Officer is satisfied that a marriage has been duly solemnized between an Indian citizen and an NRI in accordance with the law and procedure laid down in this act and (b) a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this Section, the Marriage Officer may, upon payment of the prescribed fee, register the marriage. (2) No marriage shall be registered under this Section unless at the time of registration it satisfies the conditions mentioned in Section 4. Indian laws to be applicable to the marriage- any marriage solemnized under this act shall be subject to Indian laws especially the provisions of Chapters IV, V, VI, and VII of the Special Marriage Act, 1954 (43 of 1954) relating to consequences of marriage, its nullity, divorce, restitution of conjugal rights etc., shall apply in relation to marriages solemnized under this Act. However any special provision made under this act with regard to any of the matters dealt with under the above mentioned chapters of special marriage act, shall have overriding effect.

Section 5: Adoption Of Foreign Child (a) Adoption of foreign child shall be recognized in India; provided that any of the spouse hold the Indian Citizenship. (b) The Parent-child relationship shall be effectively maintained in the interest of the child. (c) There shall be specific clause in the Adoption Agreement so as to determine the jurisdiction of the court.

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Section 6: Surrogacy: (1) The required procedure for surrogacy shall be governed by contract amongst parties. The contract shall contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. Such an arrangement should not be for commercial purposes. (2)The surrogacy contract must necessarily provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. (3) A surrogate child shall be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian. (4) The birth certificate of the surrogate child shall contain the name(s) of the commissioning parent(s) only. (5) Right to privacy of donor as well as surrogate mother shall be protected. (6) Sex-selective surrogacy shall be prohibited. (7) Cases of abortions shall be governed by the Medical Termination of Pregnancy Act 1971 only.

Section 7: Enforcement of Foreign Law and Judgments (a) Foreign law shall not apply, should the effects of its application be contrary to the fundamental principles of the Constitution of India. (b) Enforcement of foreign judgments shall be applicable, but subject to section 13 of the Code of Civil Procedure, 1908.

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Section 8: Enforcement of Foreign Arbitral Awards and Claims (a) All Foreign Arbitral Awards and claims shall be governed by the law which the parties choose explicitly or implicitly. (b) The parties shall choose the applicable law during the acceptance of the contract. (c) The parties may change, by agreement, applicable law.

Section 9: Renvoi (a) If the provisions of this Act mandated the use of foreign law, the provisions of which refer back to the substantive provisions of Indian law. Where in the provisions of foreign law to the law of another foreign state, the substantive provisions of this law, if it is used according to its choice of law provisions, otherwise apply the substantive provisions of Indian law. (b) If it was the law of parties selected, it is possible to take into account the provisions of the conflict only if it appears from the arrangements between the parties.

Section 10 : Transitional Provision (a) The emergence and existence of circumstances and facts of which occurred before the effective date of this Act, including the choice of law in accordance with the existing legislation. The provisions of this Act shall apply to the legal relations arising before its entry into force, if they are long lasting in nature and occurs to them again or continuing conduct of participants and factors important for them after the date of its entry into force, in respect of such acts and facts. (b) This also applies in proceedings for recognition and enforcement of foreign judgments and foreign arbitral awards concerning the conditions for recognition and enforcement.

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EXPLANATIONS Section 1 This Section designs the skeleton of the whole legislation. It expresses the extent of the territorial jurisdiction of the particular act and the date on which the act will come into force. Section 2 This section defines the various terms, that would help better in the understanding of this legislation. Section 3 & 4 This section explicitly states that marriage outside the territory of Indian can be validated only when it is registered under Foreign Marriage Act, 1969. The intent is to avoid the conflict with any other legislation and acquire the jurisdiction over all the matrimonial affairs happening outside the territory of India. It further states that supremacy of municipal law shall be maintained. Section 5 This section recognizes the adoption of foreign child but only by Indian citizen. Adoption shall be followed with Adoption Agreement which must possess the jurisdiction clause as to avoid any conflict of laws. Section 6 India is emerging as a leader in international surrogacy and a sought after destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. . In 2008, the Supreme Court of India in the Manji's case has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly
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recommended against Commercial Surrogacy. The Law Commission of India has submitted the 228th Report on Need For Legislation To Regulate Assisted Reproductive Technology Clinics As Well As Rights And Obligations Of Parties To a Surrogacy. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. Section 7 This section maintain the applicability of foreign law in case it does not infringe the fundamental principles of Indian constitution and also validate the applicability of foreign judgment till the extent of the Code of Civil Procedure,1908. Section 8 This section shall be liberally interpreted. The intention is to deliver justice in accordance with the principle of Natural justice. The enforcement of foreign Arbitral awards and claims shall accordingly govern under applicable law which the parties had chosen during the entry of contract. Section 9 This section provides the process by which a court adopts the rules of a foreign jurisdiction with respect to any conflict of laws that arises. Acceptance of rules of foreign jurisdiction has to be in accordance with the choice of law or accordingly with the Indian Law. Section 10 This section provides dynamism in the particular legislation. It lays down provision for the retrospective effect of the provision after the enactment of the legislation. It will override the all other existing legislation previously dealing with provision laid down in the existing statute.

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