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Conflict of Laws Private International Law Notes PDF
Conflict of Laws Private International Law Notes PDF
Or Conflict of Laws
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
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Supply of goods
Torts committed on short visits
Enforceability of foreign judgment - can a foreign
Name
Its three different names conflict of laws, private
Name
Private International Law is used by Civil Law
countries.
Name is first used by Story in 1834.
Used by early authors like Westlake and Foote.
Confusion between law of nations or public
international law.
It governs the relation between sovereign states.
Some principles like proper law principles are
adopted in a private international law case when
deciding a case.
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Conflict of laws
Conflict of laws of two countries on the same subject.
The very purpose of private international law is to
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History
Back to Greek law equal application to foreigners
also.
More significant developments can be traced to
Roman law.
Roman civil law (jus civile) being inapplicable to noncitizens.
Special tribunals "applied" the "jus gentium."
The jus gentium was a flexible and loosely-defined
body of law based on international norms.
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History
Contribution of Islamic law and jurisprudence.
Muslim conquests and maritime explorations.
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Modern laws
The modern conflict of laws is generally considered to
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England
King constituted special courts for foreigners, the
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Comity of nations
Jurisdiction of courts
Recognition and enforcement of foreign judgments
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Application
The court must first decide whether it has jurisdiction
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Choice of law
Each legal category has one or more choice of law rules
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Choice of law
application of the lex fori or local law.
the court will apply the law of the forum (lex fori) to all procedural
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Choice of Law
Lex loci contractus: the law of the place where the contract was made;
Lex loci solutionis: the law of the place where the contract is to be
performed;
Lex loci celebrationis: the law of the place where the marriage was
celebrated;
Lex loci delicti: place where the tort was committed;
Lex loci domicilli: the law of the place where a person is domiciled;
Lex patriae: the law of the nationality
Lex situs: the law of the place where the property is situated.
Lex fori: the law of the forum(internal Law).
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Choice of law
Which system of law must govern the case?
Warsaw convention 1929 amended in
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Subject matter
Rules relating to jurisdiction of courts
2. Rules of choice of law
3. Rules relating to recognition and judgment of
foreign judgments and decrees.
1.
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Different jurisdictions
Law of the place of tort
Place of celebration of marriage
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Different theories
Theory of acquired right:
Dutch jurist Huber and later Dicey and Beale in USA.
Principle of territoriality
Enforcement of right rather than foreign law.
Dalrymple v. Dalrymple, (1811).
No support today.
No protection of right without the recognition of law.
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Jurisdiction selection
Rule selection
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Factors
Need of the interstate and international systems
Relevant policies of the forum.
law.
Certainty, predictability and uniformity of result
Ease in the determination and application of the law to
be applied.
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Foreign element
Ogden v. Ogden, 1908
Simonin v.s Mallac
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Thank you
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West Bengal
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Classification or characterization
The first step in any case where a foreign element
involved,
Determination of jurisdiction is important.
Classification of the cause of action
Objective is to find out the court and correct legal
category.
What choice of law to be applied?
Whether the law of the forum?
Law of the domicile?
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Characterization
As a breach of contract
As a tort
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Characterization
Indian court
Inheritance to immovable property in India
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Choice of law
The question of what law applies is a question the
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Choice of forum
If foreign law can never apply within the forum state,
then obviously the forum cannot apply foreign choiceof law rules.
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Choice
Capacity to marry: lex domicilli
Formalities and validity: lex celebrationis or lex
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Traditional approach
The theory of territoriality.
The traditional jurists are of the opinion that axiom of
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Cases
Ogden v. Ogden, 1908
Frenchman domiciled in France
knowledge of parents
Frenchman below 25
Father take him to France back and got annulled the
marriage from French Court want of parental
consent
French law.
Frenchman married another girl in France.
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Case
English women approached High Court of England on
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Characterization
Parental consent is a formality lex loci celebrationis,
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Renvoi
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Renvoi
French term means sending back
When a forum court refers the case to anther
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Renvoi
Jurisdiction
The court must first decide whether it has the
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Renvoi
Objective is to attain a uniform judicial determinations
Renvoi
Where the law of the forum provides that a juridical
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Law
what is meant by law when a reference is made to
foreign law; for example, does a reference to Indian
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Single renvoi
A single renvoi forum always refers to the other law's
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Single renvoi
when the court of the forum has a choice to apply the
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Single renvoi
A single renvoi forum always refers to the other law's
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Single renvoi
If a Judge in country A is referred by his own rule of
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Single renvoi
when the court of the forum has a choice to apply the
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Lex Fori
Or Single Renvoi
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Single renvoi
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Transmission
If 3 countries are involved.
Indian national - A
Domiciled in the US - B
Dies intestate in UK leaving movables C
English law law of the domicile US law
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Application of renvoi
Because the doctrine is considered difficult and its
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Application of renvoi
Because the doctrine is considered difficult and its
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Applicability
formal and intrinsic validity of wills
cases of intestate succession
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Limitations
Does not ensure uniform results.
One of the country should reject the renvoi then only
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Re O Keefe
Born in Calcutta India
Settled in Naples, Italy
British nationality
Father domiciled in Ireland at the time of her berth-
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authorization.
The question was whether the instruments could be probate in
England.
Held: the formal validity of a will cannot be denied if it satisfies
either the internal law or the private international law.
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cases
In Re Ross, 1930
Validity of a will intestate succession to movables
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Thank you
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West Bengal
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Lex Fori
Or Single Renvoi
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Application of renvoi
the doctrine is considered difficult and its results are
Applicability
formal and intrinsic validity of wills
cases of intestate succession
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Limitations
Does not ensure uniform results.
One of the country should reject the renvoi then only
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Re O Keefe
Born in Calcutta India
Settled in Naples, Italy
British nationality
Father domiciled in Ireland at the time of her berth-
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authorization.
The question was whether the instruments could be probate in
England.
Held: the formal validity of a will cannot be denied if it satisfies
either the internal law or the private international law.
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cases
In Re Ross, 1930
Validity of a will intestate succession to movables
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Thank you
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West Bengal
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Deciding case
Question of fact to be proved
Question of law not required to be proved
foreign law.
Foreign law question of law or question of fact?
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Practices
Russia East Europe - simple fact parties to prove-
Other countries
Common-law countries, Spain, Portugal, India and
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Experts
Evidence of roman Catholic Bishop was accepted to
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India
Indian evidence Act, 1872.
S.38 of the Act provides that any official publication of
India
57(2) all public Acts passed by the Parliament of the
UK to be judicially noticed
4. the course of proceedings of Parliament of the UK
S.84 the court may presume the geniuses of every
such record.
Appropriate books or documents of reference.
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India
Bombay High Court taken the view that judgment of the
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English court
William and Humbert Ltd. v. W. & H Trade Marks
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Exclusion
Government of India v. Taylor, [1955] AC 491.
HL held that revenue law cannot be enforced in UK.
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India
A. 261 of the Indian constitution provides that full
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Public policy
Fundamental concern to the state and society at large.
No definite definition
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Public policy
It should be narrowly construed.
J. Cardozo: the courts are not free to refuse to enforce a
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Public policy
Kuwait Airways Corporation v. Iraqi Airways, (2002) AC
883.
Power to disregard a provision of foreign law must be
exercised
exceptionally and
with the greatest
circumspection.
Foreign Awards (Recognition And Enforcement) Act 1961
refuse to enforce foreign awards violates Indian public
policy, justice or morality.
Shahnaz v. Rizwan, (1965) 1 Q.B. 390. polygamous
marriage - domiciled Indian Muslims wife entitled to
entire dower on dissolution of marriage-contract can be
enforceable in India.
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Summary
The case concerned a polygamous marriage governed by Muslim law. The
couple hailed from India. The issue was whether the wife could ask the Court to
enforce a term of the marriage contract which stipulated the payment by the
husband to the wife of a deferred Mahr in the event of his divorcing her. This
clause
was
enforceable
under
Muslim
law.
The Court treated this provision purely as a contractual term. The fact that the
contractual term owed its existence to the couples polygamous marriage was
not
treated
as
a
bar
to
enforcement.
The Court did not have jurisdiction to make post-divorce financial
arrangements at the time of the decision, given the polygamous nature of the
marriage. This followed from its jurisprudence on polygamy. It was important
not to classify the Mahr as some form of ancillary relief (say, in todays practice,
the provision of a lump sum, which seems to be the Mahrs approximate
function) although the case itself preceded the development of lump sum
awards by English courts. This was because the courts had established that it
was contrary to public policy to enforce rights under polygamous unions.
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Public policy
Matrimonial Proceedings (Polygamous Marriages) Act
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India
Foreign takeover regulations: French subsidiary-
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Cases
Chenni v. Chenni, (1965)
Marriage between uncle and niece
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can be enforced
Huntington v. Attrill, (1893) AC 150.
It is the law of the forum to decide whether the law is
penal or remedial in nature.
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Domicile
In personal matters, lex patrie is the governing law in
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Domicile
Root of the concept is the permanent home.
Intend to make that place his permanent home is
important.
If he is never stayed in that place not domiciled.
Dual citizenship but only one domicile.
Domicile attaches to a place or a country or a part of a
country.
Place of birth - If the person is born in India Indian
personal law.
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Domicile
If a suit is filed in Italian court for the succession to the
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Cases
Re Samara
Re OKeefe.
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Illustration
A, having his domicile in 1*[India], dies in France,
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Illustration
A, an Englishman, having his domicile in France, dies
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37
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India
Movables his domicile
Immovable's law of India
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Domicile of origin
Common law persons at birth.
Father- legitimate
Mother illegitimate
Domicile of origin remains the same until obtains a
domicile of choice.
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India
Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160.
Child domicile of father legitimate Mother illegitimate.
DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334.
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Wife
Common law - Domicile of husband.
Changed by law in 1973 in England
changes it.
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Domicile of choice
Actual residence in pace with an intention to reside
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India
Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764.
Thomas Edmund Teighmouth Shore v. Hugh Carcy
Morgan (1935) ILR 62 Cal 869. missionary who live
60 years in India and died in India acquired domicile
of choice in India.
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Thank you
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Domicile
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
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Domicile
In personal matters, lex patrie is the governing law in
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Domicile
Root of the concept is the permanent home.
Intend to make that place his permanent home is
important.
If he is never stayed in that place not domiciled.
Dual citizenship but only one domicile.
Domicile attaches to a place or a country or a part of a
country.
Place of birth - If the person is born in India Indian
personal law.
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Domicile
If a suit is filed in Italian court for the succession to the
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Cases
Re Samara
Re OKeefe.
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Illustration
A, having his domicile in 1*[India], dies in France,
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Illustration
A, an Englishman, having his domicile in France, dies
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Succession
7. Domicile of origin of person of legitimate
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Succession
8. Domicile of origin of illegitimate child.- The
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Succession
10. Acquisition of new domicile.- A man acquires a
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Succession
11. Special mode of acquiring domicile in India.-
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India
Movables his domicile
Immovable's law of India
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Domicile of origin
Common law persons at birth.
Father- legitimate
Mother illegitimate
Domicile of origin remains the same until obtains a
domicile of choice.
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India
Kedar pandey v. Narain Bikram Sah, AIR 1966 SC 160.
Child domicile of father legitimate Mother
illegitimate.
DP Joshi v. State of Madhya Bharat, AIR 1955 SC 334.
Central Bank of India v. Ram Narain, AIR 1955 SC 36
intention to reside for a long period.
Yogesh Bharadwaj v. State of UP, AIR 1991 SC 356
The domicile of origin can be transmitted through several
generations on member of which has ever resided for any
length f time in the country of the domicile of origin.
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Wife
Common law - Domicile of husband.
Changed by law in 1973 in England
changes it.
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India
Section 15 : Domicile Acquired by woman on marriage
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Domicile of choice
Actual residence in pace with an intention to reside
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India
Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC
1764.
Thomas Edmund Teighmouth Shore v. Hugh Carcy
Morgan (1935) ILR 62 Cal 869. missionary who live
60 years in India and died in India acquired domicile
of choice in India.
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Indian SC
Domicile is a mixed question of law and fact and there is
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Cheshire
One has to consider the tastes, habits, conduct,
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General rule
First, no person can be without a domicile. It is well
Domicil
The burden of proving a change of domicile rests with
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unpredictable law.
Habitual residence or ordinary residence
Physical presence with some degree of continuity.
R v. Barnet London Borough Council, ex p shah, 1983.
Settled for his ordinary purposes.
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OKeefe case
British national
Lived in Naples for 37 years domicile - Italy
Died in Naples
Domicile of origin was Eire
Succession of movable property in England
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two countries,
One to nationality and on to domicile
1. Then the court would apply the domestic law of the
domicile of the person concerned.
2. if there is a conflict between the laws of two
countries both of which adhere to principle of
domicile, then the domestic law of the country of the
domicile of the person concerned would apply.
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Hague principles
3. if there is a conflict between two countries following
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Domicile of origin
Acquired by operation of law
Legitimate son-father
Illegitimate mother
Married Matrimonial Proceedings Act, 1973
Sankaran Govindan Case
Re O Keefe
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Domicile of choice
Acquisition of a fresh domicile are residence and
intention.
Residence in the country of domicile of choice.
Intention to live permanently.
Physical presence in that country as an inhabitant of it.
Intention can be inferred
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India
In India, a person's domicile of origin prevails until he
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Choice
Jopp v. Wood, (1865) it was held that a residence of
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India
It was held by the Supreme Court of India in Central
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India
Michael Anthony Rodrigues v. State of Bombay, 1956.
Bom. 729.
1918 Goan nationality came to Bombay in 1927.
Tailoring business 40 years.
Michael never visited Goa.
Joined Royal Indian Armed Forces in 1946
He acquired the domicile of choice in Bombay and
abandoned the Goan domicile or origin.
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Intention
The required intention is to reside in a country
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Intention
Kedar Pande v Narayan Bikram Shah 1966 SC 160.
Whether Shah domiciled in India in 1949
Father Nepal
Born in Banaras educated in India
Mansions built by his father in 1938
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Employment
The intention to reside permanently or for an
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Abandoning
Where a person stops residing in the country of the
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Jurisdiction of Courts
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Immunity
Sovereigns
Theory of absolute immunity
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Jurisdiction
Nationality civil law countries
Domicile common law countries
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Different jurisdictions
17. Suits for immovable property situate within
jurisdiction
of
different
Courts.
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CPC
18. Place of institution of suit where local limits of
jurisdiction
of
Courts
are
uncertain.
Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable
property is situate, any one of those Courts may,
if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to
entertain and dispose of any suit relating to that property,
and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction
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CPC
19. Suits for compensation for wrongs to person or
movables.
Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and
the defendant resides,
or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court,
the suit may be instituted at the option of the plaintiff in
either of the said Courts.
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S.20
Other suits to be instituted where defendants
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S.83
Alien - Every person residing in a foreign country,
the Government of any country which is at war with
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51
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52
S.86
86. Suits against foreign Rulers, Ambassadors and
Envoys.
No foreign State may be sued in any Court otherwise
competent to try the suit except with consent of the
Central Government certified in writing by a Secretary
to that Government:
Provided that a person may, as a tenant of immovable
property sue without such consent as aforesaid 2[a
foreign State] from whom he holds or claims to hold
the property.
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53
Immunity
No foreign state head or ambassadors or high
KDR/IIT KGP/RGSOIPL-2010
54
Thank you
9/14/2010
KDR/IIT KGP/RGSOIPL-2010
55
Jurisdiction of courts
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2010
Jurisdiction
Territorial jurisdictions
National law
English law
English court have jurisdiction if the defendant is
Early case
Gurdial Singh v. Raja of Faridkot, (1894) 22 Cal. 222.
The Privy Council held that: being properly territorial and
In that case, A filed a suit against B in the court of the Native State of
Faridkot, claiming Rs. 60,000 alleged to have been misappropriated by B,
while he was in A's service at Faridkot. B did not appear at the hearing, and
an ex parte decree was passed against him. B was a native of another
Native State Jhind. In 1869, he left Jhind and went to Faridkot to take up
service under A. But in 1874, he left A's service and returned to Jhind. The
present suit was filed against him in 1879; when he neither resided at
Faridkot nor was he domiciled there. On these facts, on general principles
of International Law, the Faridkot court had no jurisdiction to entertain a suit
against B based on a mere personal claim against him. The decree passed
by the Faridkot court in these circumstances was an absolute nullity. When
A sued B in a court in British India, against B on the judgment of the
Faridkot court, the suit was dismissed on the ground that Faridkot court has
no jurisdiction to entertain the suit. The mere fact that the embezzlement
took place at Faridkot, was not sufficient to give jurisdiction to the Faridkot
court would have had complete jurisdiction to entertain the suit and to pass
a decree against him.
KDR/IIT KGP/RGSOIPL-2010
Jurisdiction
Action lies in the court within whose jurisdiction the
KDR/IIT KGP/RGSOIPL-2010
Rule of territoriality
Private International Law same as that of in England.
Kasinath v. Anant, (1899) Bom. 407
KDR/IIT KGP/RGSOIPL-2010
Early positions
239. Srinivas v. Venkata Varda Ayyangar, (1906) 29
Mad.
Defendant was in Madras to practice as an apprentice
to a Vakil of the High Court.
At the time of suit he was within the jurisdiction of the
court.
resident or present in the country at the time of suit.
Mere presence of the defendant is sufficient.
KDR/IIT KGP/RGSOIPL-2010
KDR/IIT KGP/RGSOIPL-2010
10
Jurisdiction
Nationality civil law countries
Domicile common law countries
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11
Submission to jurisdiction
Express agreement or by conduct
Conduct: voluntarily appears as a defendant.
12
Indian law
If the person is outside its territories, the court will
13
Jurisdiction
Fernandes v. Ray, 21 Bom. 373.
Political agent of Kolhapur State
jurisdiction.
KDR/IIT KGP/RGSOIPL-2010
14
KDR/IIT KGP/RGSOIPL-2010
15
Common law
If the cause of action, fully or partly within the
KDR/IIT KGP/RGSOIPL-2010
16
17
Different jurisdictions
17. Suits for immovable property situate within
jurisdiction
of
different
Courts.
KDR/IIT KGP/RGSOIPL-2010
18
CPC
18. Place of institution of suit where local limits of
jurisdiction
of
Courts
are
uncertain.
Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable
property is situate, any one of those Courts may,
if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to
entertain and dispose of any suit relating to that property,
and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction
KDR/IIT KGP/RGSOIPL-2010
19
CPC
19. Suits for compensation for wrongs to person or
movables.
Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and
the defendant resides,
or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court,
the suit may be instituted at the option of the plaintiff in
either of the said Courts.
KDR/IIT KGP/RGSOIPL-2010
20
S.20
Other suits to be instituted where defendants
21
S.20
When the permanent or temporary residence of the
defendant is within the jurisdiction,
2. If the defendant is engaged in some business within
the jurisdiction,
3. If the defendant is working for gain within the
jurisdiction,
4. If the cause of action, wholly or in part, arises within
the jurisdiction.
1.
KDR/IIT KGP/RGSOIPL-2010
22
Carries on business
Frontier Bank v. Smt. Prakash Wati Bahl, ILR 1950
Punjab.
Deposited money at Dera Ismail Khan, headquarters
Pakistan.
Transfer to Delhi Branch failed.
Explanation II to S. 20 C.P.C.
H. Ahmed & Co. v. Kohinoor Glass Factory Ltd. 1961
A.P. 470 (F.B).
If the defendant carry on business, jurisdiction to
entertain the suit.
KDR/IIT KGP/RGSOIPL-2010
23
Cause of action
Gurudayal Singh v. Raja of Faridkot, (1894) 22 cal. 222.
Action lies in the court within whose jurisdiction the
24
Contract
ABC Laminart Pvt Ltd v. AP Agencies, Salem AIR 1989
SC 1239.
Contract was made
Was to be performed
Money under it was payable
Where the breach occurred
If a defendant not resident in India had submitted to
the jurisdiction of the court.
Admiralty jurisdiction
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25
S.83
Except alien enemy, all others ca file suit or
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26
KDR/IIT KGP/RGSOIPL-2010
27
S.86
86. Suits against foreign Rulers, Ambassadors and
Envoys.
No foreign State may be sued in any Court otherwise
competent to try the suit except with consent of the
Central Government certified in writing by a Secretary
to that Government:
Provided that a person may, as a tenant of immovable
property sue without such consent as aforesaid 2[a
foreign State] from whom he holds or claims to hold
the property.
KDR/IIT KGP/RGSOIPL-2010
28
S.86(3).
Such consent can only be granted according to S.86(2).
No consent can be refused without giving a reasonable
opportunity to the applicant.
The Government should show cogent reason for
refusing permission.
Consent must be obtained before the institution of the
suit.
KDR/IIT KGP/RGSOIPL-2010
29
Exceptions
Immunity does not extend to
award under Arbitration,
Recovery of rent
Rulers of Indian states are not exempted from income
tax.
KDR/IIT KGP/RGSOIPL-2010
30
Immunity
No foreign state head or ambassadors or high
KDR/IIT KGP/RGSOIPL-2010
31
Immunity
Sovereigns
Theory of absolute immunity
KDR/IIT KGP/RGSOIPL-2010
32
Cases
Rahimtoola v. Nizam of Hyderabad, (1958) AC 397.
The principle of sovereign immunity is not founded on
KDR/IIT KGP/RGSOIPL-2010
33
Foreign sovereign
Person and property.
Mighell v. The Sultan of Johore, (1894)
KDR/IIT KGP/RGSOIPL-2010
34
Indian law
Diplomatic Relations (Vienna Convention) Act, 1972.
Act made on the basis of Vienna Convention on
KDR/IIT KGP/RGSOIPL-2010
35
England
State Immunity Act, 1978
Act of commercial nature - no immunity
KDR/IIT KGP/RGSOIPL-2010
36
KDR/IIT KGP/RGSOIPL-2010
37
38
Brussels Convention
KDR/IIT KGP/RGSOIPL-2010
39
KDR/IIT KGP/RGSOIPL-2010
40
Objective
It set out uniform rules for the assumption of
jurisdiction by Member States in civil and
commercial cases.
In addition, the Convention laid down uniform
rules relating to the recognition and enforcement
of civil and commercial judgments among the
Member States.
Free circulation of judgments throughout the
Community.
KDR/IIT KGP/RGSOIPL-2010
41
Regulations
Regulation 1346/200018 relating to insolvency proceedings;
Regulation 1347/200019 (commonly referred to as Brussels II) which
KDR/IIT KGP/RGSOIPL-2010
42
Applicability
The Brussels Regime covers legal disputes of a civil or
KDR/IIT KGP/RGSOIPL-2010
43
Domicile
In general, it is the domicile of the defendant that
44
KDR/IIT KGP/RGSOIPL-2010
45
of Judgments.
6 members of the EC trading partners of European
Free Trade Association (EFTA).
Members: UK, Denmark, Iceland, Norway,
Liechtenstein , Sweitzerland,
Civil and commercial matters.
Defendant is domiciled in EC.
Lugano Convention is parallel to the Brussels
Convention.
KDR/IIT KGP/RGSOIPL-2010
46
Convention
It is a parallel and amended version of the Brussels
Convention.
If the defendant is domiciled on any contracting state,
have the jurisdiction.
Any EC Member state is a party to Brussels
Convention, it will apply in matters of jurisdiction.
If the defendant is domiciled in an EFTA Contracting
State, Lugano Convention will apply.
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47
KDR/IIT KGP/RGSOIPL-2010
48
Application
Parties Singed EU, US
Ratified Mexico
KDR/IIT KGP/RGSOIPL-2010
49
India
2008.
1. Convention of 5 October 1961 Abolishing the
Requirement of Legalisation for Foreign Public
Documents [12]
2. Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or
Commercial Matters [14]
3. Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters [20]
4. Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption [33]
KDR/IIT KGP/RGSOIPL-2010
50
Thank you
KDR/IIT KGP/RGSOIPL-2010
51
Foreign Judgments
Dr. Raju KD
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
IIT Kharagpur
West Bengal
KDR/IIT KGP/RGSOIPL-2010
Theories of recognition of J.
Theory of comity
No foreign judgment can be recognised unless there is
reciprocity.
Lot of practical problems.
Obligation theory - adjudication by a foreign court
becomes a legal obligation, which can be enforced in
any country.
Doctrine of obligation no problem of reciprocity.
KDR/IIT KGP/RGSOIPL-2010
Other theories
Grounds of judicial reason or ideas of social value or
both.
Every judgment must be recognised in the interest of
justice.
Theory of acquired rights since the foreign judgment
implies an acquisition of a right, it should be enforced.
KDR/IIT KGP/RGSOIPL-2010
Enforcement
English courts have been enforcing foreign judgments
England
A plaintiff who had obtained a judgment from a
KDR/IIT KGP/RGSOIPL-2010
Foreign judgment
KDR/IIT KGP/RGSOIPL-2010
Recognition in India
S.13 of CPC
Indian courts absorbed the comity theory and
KDR/IIT KGP/RGSOIPL-2010
India
Foreign judgments are recognized and enforced under
KDR/IIT KGP/RGSOIPL-2010
Exceptions
a) where it has not been pronounced by a Court of
competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be
founded on an incorrect view of international law or a
refusal to recognise the law of 1[India] in cases in which
such law is applicable;
KDR/IIT KGP/RGSOIPL-2010
Exceptions
(d) where the proceedings in which the judgment
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10
S.14 presumption
The Court shall presume upon the production of any
want of jurisdiction.
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11
s.44 A
the decrees of foreign courts which can be executed
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12
Indian law
A foreign judgment creditor can bring an action on a
foreign judgment.
Res judicata can be applied in foreign judgments.
Indian court cannot impeach a foreign judgment on
the ground of error on internal law or an error of fact
or procedural error.
The foreign judgment should operate as res judicata in
the country where it has been delivered.
KDR/IIT KGP/RGSOIPL-2010
13
Competent jurisdiction
The court must have the jurisdiction to deal the case.
Gurdayal Singh v. Raja of Faridkote, (1894) AC 670.
The PC held that in a personal action a decree
KDR/IIT KGP/RGSOIPL-2010
14
Judgments in personam
Personal jurisdiction depends upon the right of the
15
Factors
3. if the defendant is a resident in the foreign country
16
Action in rem
A proceeding against a ship or other chattel in which
KDR/IIT KGP/RGSOIPL-2010
17
Action in rem
Judgments in rem are conclusive.
Judgment in rem against tangibles ship admiralty
jurisdiction.
Judgment of divorce is a judgment in rem
controversial?
A res is a tangible thing within the jurisdiction of the
court.
A judgment in rem is a judgment under (a) possession
or property in a thing is adjudicated to a person,
(b) the sale of a thing is decreed in satisfaction of a
claim againstKDR/IIT
the KGP/RGSOIPL-2010
thing itself.
18
In -Rem
(c) the status is adjudicated upon, such as a decree of
nullity or divorce;
(d) property is ordered to be sold by way of
administration in bankruptcy or on death.
Difference: res binds all persons claiming an interest
in the property inconsistent with the judgment even
though pronounced in their absence.
In personam merely determines the rights of
litigants inter se.
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19
Rem
Jurisdiction in rem accorded universal recognition,
KDR/IIT KGP/RGSOIPL-2010
20
Immovable property
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21
Ex-parte decree
Exparte decree of the foreign Court cannot be presumed to
22
conclusiveness
Where the judgment was not on merit and the
23
Merits
A foreign judgment cannot be re-opened on merit to
24
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25
Divorce decree
Foreign divorce decree where husband and wife were
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26
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27
KDR/IIT KGP/RGSOIPL-2010
28
Indian constitution
Article 261 final judgments or orders delivered or
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29
Hague Convention
The Hague Convention on the Recognition and
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30
Thank you
KDR/IIT KGP/RGSOIPL-2010
31
KD Raju
KDR/IIT KGP/RGSOIPL-2010
KDR/IIT KGP/RGSOIPL-2010
Indian courts
From April 1, 1951 CPC is applicable to all states of
KDR/IIT KGP/RGSOIPL-2010
Foreign decrees
Such a certificate will be conclusive proof .
Can be executed in District Courts only S.44 A-1
KDR/IIT KGP/RGSOIPL-2010
Exceptions
(4) questions of succession;
(5) questions of bankruptcy, compositions or
Application
A.3 - This Convention shall apply irrespective of the
A.5
Recognition refused in following cases:
(1) if recognition or enforcement of the decision is
KDR/IIT KGP/RGSOIPL-2010
Res-judicata
(3) if proceedings between the same parties, based on
10
A. 7
Recognition or enforcement may not be refused for the
11
A.8
there shall be no review of the merits of the decision
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12
Jurisdiction A.10
The court of the State of origin shall be considered to
have jurisdiction:
(1) if the defendant had, at the time when the
proceedings were instituted, his habitual residence in
the State of origin, or, if the defendant is not a natural
person, its seat, its place of incorporation or its
principal place of business in that State;
a commercial, industrial or other business
establishment, or a branch office, and was cited there
in proceedings arising from business transacted by
such establishment or branch office;
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13
Jurisdiction
(3) if the action had as its object the determination of
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14
Jurisdiction
(5) if, by a written agreement or by an oral agreement
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15
16
Procedure
(4) unless the authority addressed otherwise requires,
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17
A.14.
The procedure for the recognition or enforcement of
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18
Resjudicata A.20
If two States have concluded a Supplementary Agreement
19
Ratification
Article 27
This Convention shall be open for signature by the
KDR/IIT KGP/RGSOIPL-2010
20
India is a party
Statute of the Hague Conference on Private International
Law [01]
Convention of 5 October 1961 Abolishing the Requirement
of Legalization for Foreign Public Documents [12]
Convention of 15 November 1965 on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or
Commercial Matters [14]
Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters [20]
Convention of 29 May 1993 on Protection of Children and
Co-operation in Respect of Intercountry Adoption [33]
KDR/IIT KGP/RGSOIPL-2010
21
Arbitration
Arbitration proceedings are governed by the law of the
22
Legislations
1996 Arbitration and Conciliation Act
Based on the UNCITRAL Model Law on Arbitration
KDR/IIT KGP/RGSOIPL-2010
23
KDR/IIT KGP/RGSOIPL-2010
24
Evidence
S.47 - (a) the original award or a copy thereof, duly
KDR/IIT KGP/RGSOIPL-2010
25
Non-enforcement
(2) Enforcement of an arbitral award may also be
26
West Bengal
KDR/IIT KGP/RGSOIPL-2010
Summary
Marriage
Matrimonial causes
KDR/IIT KGP/RGSOIPL-2010
Marriage
Concept of marriage
Contract
Sacrament
Hyde v. Hyde, (1866) LR 1 P&D 130 marriage through
Hague Convention
The Hague Convention on the Celebration and
Validity
English courts against polygamous marriages.
Harvey v. Farnie, 1880. AC recognised that
Polygamy
Ali v. Ali, (1966) 2 W.L.R 620. personal law permits
KDR/IIT KGP/RGSOIPL-2010
second wife if he
Mutta marriages
by the lex loci
will decide it is
Which law?
Matrimonial domicile?
A monogamous marriage at the inception cannot join a
England
Matrimonial Proceedings (Polygamous Marriages)
S.494 IPC
Whoever, having a husband or wife living, marries in
KDR/IIT KGP/RGSOIPL-2010
Hindu
Hindu law
Dayabhaga
Mitakshara
Polygamy Muslims
Polyandry Lahaul Valley bordering Tibet.
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10
Other systems
Parsi Marriage and Divorce Act, 1936 prohibits
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11
Conversion
Khambatta v. Khambatta, - Muslim married to Scot
12
Conversion
Nurjahan v. Tisanco, 45 CWN 1047.
Two Russian Christians married in Berlin.
Scotland.
1940 wife converted to Islam.
Thrice offered the husband to become Muslim.
Refused the acceptance by husband.
Wife initiated dissolution of marriage in Indian court.
KDR/IIT KGP/RGSOIPL-2010
13
Conversion
Indian court held that parties were not domiciled in India dismissed
the suit.
No spouse can, on converting to another religion, impose his new
religion on the other.
Aiyasaabibi v. Subodh Chandra, (1945) 2 Cal. 405 allowed wifes
petition. law after conversion.
Saeeda Khatun v. Ovedia, (1945) 49 CWN 754.
Jews domiciled in India
No matrimonial relief to a convert spouse under new personal law.
No law under which a marriage performed under one personal law can
be dissolved under another personal law.
KDR/IIT KGP/RGSOIPL-2010
14
Dissolution of marriage
Both parties change their religion, then they will be
15
16
Foreign marriages
Foreign Marriages Act, 1969
Facility for Indian national to marry abroad with
KDR/IIT KGP/RGSOIPL-2010
17
Validity of marriages
Validity must be formal and material
1. capacity to marry
validity?
Material validity
Formal validity
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18
Material validity
If the courts of two countries consider the validity of a
19
Validity
Domicile of parties?
Matrimonial home?
England under English law
One of the parties is domiciled in England English law
Both parties are domiciled abroad lex loci celebrationis.
Apt v. Apt, (1947) Argentinean domiciled in Germany
KDR/IIT KGP/RGSOIPL-2010
20
Materiality
English law no such differentiation between material
KDR/IIT KGP/RGSOIPL-2010
21
English law
Capacity to marry domicile of each party
Brook v. Brook, (1877) prohibited degrees of
KDR/IIT KGP/RGSOIPL-2010
22
Consent of parties
Essential validity
H v. H, (1954) Hungarian domiciled girl married her
23
Indian law
Capacity is determined by personal laws.
Lex loci celebrationis
marriage.
All communities personal laws
Foreign Marriage Act, 1969
KDR/IIT KGP/RGSOIPL-2010
24
Formal validity
Lex loci celebrationis
Personal laws
KDR/IIT KGP/RGSOIPL-2010
25
Thank you
KDR/IIT KGP/RGSOIPL-2010
26
Matrimonial
Reliefs in
Pvt. Int.Law
KDR/IIT KGP/RGSOIPL/-2010
Matrimonial Causes
English law 1857 matrimonial causes jurisdiction
ecclesiastical courts.
Divorce was unknown
Jurisdiction extend to all Christians
Church was not concerned with domicile or
nationality of parties.
Jurisdiction based on residence of parties.
KDR/IIT KGP/RGSOIPL/-2010
KDR/IIT KGP/RGSOIPL/-2010
Indian law
Indian Divorce Act, 1869.
KDR/IIT KGP/RGSOIPL/-2010
Jurisdiction
English Law
Domicile or habitual residence
KDR/IIT KGP/RGSOIPL/-2010
Validity
De Barros v. De Barros (No 1), (1877) 3 PD 1.
The law of the country where the marriage is
solemnized.
Personal capacity to marry according to domicile
Valid in accordance with the country where the
marriage took place.
KDR/IIT KGP/RGSOIPL/-2010
KDR/IIT KGP/RGSOIPL/-2010
Foreign marriages
Ogden v. Ogden, [1908] p46 (CA)
Woman domiciled in England
consent.
Husband married another woman
Petition for dissolution in English Court.
English woman married another man
Second marriage of English woman annulled on the
ground of bigamy.
KDR/IIT KGP/RGSOIPL/-2010
India
Domicile of origin or nationality is not relevant
for jurisdiction.
Last resided together
Domiciled in India at the time of filing the
petition.
Nullity of marriage - Only if the marriage was
solemnized in India.
Restitution or judicial separation the petitioner
must be resident of India at the time of
presentation of petition.
KDR/IIT KGP/RGSOIPL/-2010
India
Main basis is residence
It is also not necessary that they should be Indian
nationals.
Lex loci celebrationis
Noor Jehan Begum v. Eugene Tiscenko, AIR 1941 Cal
582.
Foreign Marriage Act 1969, S.23 lex loci celebrationis.
KDR/IIT KGP/RGSOIPL/-2010
10
Indian citizen .
If its prohibited by law of the country where it is
performed or it is inconsistent with international law
or the comity of nations.
The matrimonial proceedings in India should be
according to the Special Marriage Act 1954.
KDR/IIT KGP/RGSOIPL/-2010
11
petition
Ordinarily residing in India for the last 3 years before
the petition was presented.
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12
Hindu
Where the marriage was solemnized
Parties last resided together
resides
The petitioner is residing at the time of presentation of
petition.
KDR/IIT KGP/RGSOIPL/-2010
13
14
Temporary living
Suit can be filed in a court within whose jurisdiction the
15
Choice of law
Once decided the jurisdiction personal law of the
parties.
Lex fori
Special marriage Act will apply in case if some foreign
element is involved.
Christopher Neelkantam v. Annie Neelkantam, 1959
Raj. 133.
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16
domicile.
Bhagwan Ghamshamdas v. Charlotte Zingg (1959) ILR
1 Cal 4.
Indian married a Srilankan, within 1 year of
dissolution of marriage in violation of S15 then.
KDR/IIT KGP/RGSOIPL/-2010
17
KDR/IIT KGP/RGSOIPL/-2010
18
cases
Teja Singh v. Satya, 1970.
Divorce decree pronounced by court of domicile will
KDR/IIT KGP/RGSOIPL/-2010
19
Law commission
th
65
report
20
Nullity of marriage
Void and voidable
Age rule
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21
Nullity
Can be granted if the marriage solomnised in India
The petitioner was resident in India when the petition
was presented
Restitution petitioner in in India at the time of filing
the petition
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22
Void marriages
Impotency
Lunatic or idiot
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23
Voidable marriages
Marriage not consummated
Pregnant at the time of marriage
Coercion or fraud
Incapable of giving valid consent
Recurrent attack of insanity or epilepsy
basis of jurisdiction.
KDR/IIT KGP/RGSOIPL/-2010
24
Validity of marriage
Ecclesiastical courts applied the law of
celebrations.
De Renevile v. De Reneville, (1948) p. 100
Domiciled French man with woman domiciled in
England
Court held: if she is domiciled in England.
It will depend on the question whether the
marriage was void or voidable.
Void court have jurisdiction
Voidable no jurisdiction.
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25
India
Formal validity of marriage will be determined by
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26
Polygamous marriages
The Matrimonial Proceedings (Polygamous
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Custody
Kuldeep Sidhu v. Charan Singh, AIR 1989 (P&H)
103.
Indians married in India but settled in Canada
Father came to India with two children
Mother came to India with an order of custody of
children from a Canadian Court.
Indian court allowed custody.
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Thank you
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West Bengal
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Adoption
"Adoption" means the process through which the
Adoption
Hindu Adoption and Maintenance Act, 1956 Hindu
Female
S. 8 - Capacity of a female Hindu to take in
Adoption
``There cannot be a valid adoption (under the Hindu
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Indian law
Only Hindu law recognised adoption.
Adopter as well as child should be Hindu.
Personal law
No statute dealing with other than Hindus on
adoption.
Adoption is not known to Mahomedan law.
If a custom permits adopts in a particular area, it is
recognised. (j&K).
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Christians
There is no specific statute enabling or regulating
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Christians
Philip Alfred Malvin V. Gonsalvis, (see 1999 (1) KLT
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Foreign adoptions
Rights of Child Resolution adopted by the United
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India
The law is yet to develop
C.S. Natraja v. C.S. Subbaraya, (1949) 54 PC.
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SC on adoption
" if a child is to be given in Inter-Country adoption, it
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1995 Guidelines
The object of the guideline is to implement the
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Guidelines
The goal is to find a family for as many orphan
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Procedure
The Supreme Court of India has laid down that every
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Procedure
The applicants will have to contact or register with an
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Procedure
If a child is declared as free for inter country adoption
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Hague convention
CONVENTION
ON
PROTECTION
OF
CHILDREN AND CO-OPERATION IN RESPECT
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Recognition
A.23 - An adoption certified by the competent
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Hague provisions
Adoption will takes place only after the competent
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Recognition
Adoption includes recognition of the legal parent-
child relationship.
Parental responsibility
Termination of the pre-existing legal relationship
between child, mother and father.
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Child
Indian Law natural person below the age of eighteen
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Jurisdiction
Basis:
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Jurisdiction
Surinder Kaur /sandhu v. Harbux Singh Sandhu, 1984
SC 1224.
Welfare of children is of paramount importance.
The state which was intimate contact with the issues
have the jurisdiction.
The mere presence of the child in India would not give
jurisdiction of Indian court.
English courts apply the English domestic law rather
than apply the law of domicile or nationality.
India apply Guardians and Wards Act, 1890.
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India
Margrett v. Chakoo, 1970 Ker. 1.
Indian married German lady and later on he flew back
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Guardianship
application by foreign Nationals to be appointed
as Guardian of Indian Children the Karnatak High
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Foreign orders
Usually Indian courts will give effect to foreign orders
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Thank you
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Dr. KD Raju
Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology, Kharagpur
kdraju@rgsoipl.iitkgp.ernet.in
Property
Movables lex domicilii
Immovable lex situs
recover a debt..
Movable or immovable
According to the law of the place where the property
is.
If there is a conflict between the lex fori and lex situs
on whether th property is movable immovable, lex
situs will determine.
Re Berchtold, (1923) 1 Ch.192.
Freehold interest in England was declared as
immovable property.
Hungarial law movable property
Movable or immovable
Re Cutliffe,(1940) Ch. 565.
Stock of a British Company.
Movable v. Immovable
Exhibition building US and Germany considered as
India
General Clauses Act,1897 S.3(26) - "Immovable
India
Nachiyappa Chettiyar v. Muthu Karuppan Chettiyar,
1946.
Capacity to alienate immovable property is to be
determined by applying the law of the place where the
property is situated.
Indian courts dont have jurisdiction over immovable
property situated outside india, but an action in
personam against the defendant within the
jurisdiction on contractual right is possible.
Immovable property
India, England, US and most of the European
Lex situs
Entire law of the country?
Only private international law
Spain.
Under internal law of Spain A is the heir.
Under Hindu law B is the heir.
Spanish court will apply the law of nationality,
i.e Hindu law B is the heir.
Indian court lex situs law of Spain A is the
heir.
Such situation Renvoi applies.
Jurisdiction
British
Capacity
Governed by the lex situs. Bank of Africa Ltd.
Contracts
If two Indians enter into a contract in India for
India
Proviso to - S. 16 of CPC
Provided that a suit to obtain relief respecting, or
India
Mahadev v. Ramchandra, 1922 Bom.
Even if the land is situated outside India, if the relief
the assignment.
Lex situs
Most favoured theory
In Re Anzinani, (1930) 1 Ch. 407
The law of the country were the movable is situate.
Supporters Savigny, Westlake, Dicey, Foote, Schminthoff and
Wolf.
Pledges or lien lex situs
Theory breaks down only when the goods are in transit.
Transfer
Contractual questions proper law of contract.
Proprietary questions if there is a dispute between parties
Gifts
Which law applies to gifts?
Lex situs proper law
Cheshire proper law theory
Morris lex situs
Donations Mortis causa S.191 of the Indian
Commercial transactions
Lex situs is practically not applicable.
Shifting situs
transactions.
Law of the locus where the ship is to unload.
Ship in High Seas or aircraft law of the flag.
Thank you
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Dr. KD Raju
Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology, Kharagpur
kdraju@rgsoipl.iitkgp.ernet.in
Law of Succession
Civil law countries law of nationality at the time of
death.
India personal laws
Succession to immovables lex situs Sankaran
Govindan v. Lakshmi Bharati, AIR 1974 SC 1764.
Succession Movables lex domicilli Umyal Achi v.
Lakshmi Achi AIR 1945 FC 25.
If a person leaving behind immovable property in
England internal law
Administrators
Functions under English law: 1. collection of assets
of the deceased.
2. payment of debts
3. distribution of residue among the heirs.
document.
Common law countries as a secret.
Administration and succession are two different
things in English law.
English law no one can distribute the property
without the authorization of the court. - probate
of the will
Obtaining letters of administration is mandatory.
will
In testamentary successions, the court will uphold
Administration
Administration of the estate of the deceased person is
Indian law
Indian Succession Act, 1925
Indian law follows English law
Indian law
Indian courts have taken the view that a grant of probate
Personal laws
Probate is only compulsory to Christians.
S.218 lays down that if heirs do not apply for administration
domicile
Where the deceased has left property in India,
letters of administration shall be granted according to
Indian law
If the property is in India lex fori
S.222 a probate shall be granted to an executor
Intangible property
Trademark succession to intangible property created
Immovable property
Succession to immovable property is by lex situs of
immovable property.
Vishvanathan v. syed Abdul Wazid, 1963 SC 1.
will
Personal laws apply to different communities.
Testamentary succession succession Act applies to all
Pvt.intn.law
Indian succession Act provisions wont affect the pvt.
Int.n.law principles.
If a foreign court determines succession of an Indian
who leaving behind immovable's in India and the
foreign court applies any law other than his personal
law, Indian courts will not recognize the foreign
decree.
Will convention
A single person to designate to deal with all
international wills.
The will has to be in writing
It will be valid wherever it is made, assets located,
nationality, domicile or residence of the testator.
A will signed in presence of signatories will be valid in
all contracting states.
Thank you
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Theories
Lex loci delicti commissi governs,
3possible solutions
Proper
law or
Social
enviro
nment
theory
in England.
Locus delicti
First rule the wrong alleged would have been
Second rule
Not justifiable according to the lex loci delicti.
Philips v. Eire
Machado v. Fontes
Machado sued fontes in English court for a libel published
in Brazil.
Brazilian law not actionable in civil law but actionable in
criminal proceedings.
Main defence was that the publication was not actionable
in Brazil.
Two conditions are satisfied and actionable in England.
Boys v. Chaplin
Both of them were Her Majestys Armed Forces were
stationed in Malta.
Plaintiff suffered injury due to road accident on
account of the negligence of the defendant.
Both of them returned to England and the plaintiff
sued the defendant.
The act was actionable under English as well as
Maltese law.
No compensation for pain and sufferings under
Maltese law.
Aerial torts
On board on aircraft.
No law dealing with aerial torts.
India
CPC where the wrong was done
Within the jurisdiction of the court were the
Restitution
To prevent unjust enrichment.
Contract that has failed.
Restitution
There is no statutory provisions with regard to
Restitution
In other cases determination by applying the law of
India
Indian Contract Act, 1872 if a person avoids a
Trusts
England Recognition of Trusts Act Passed in 1987 to
Trusts
Oral trusts and trusts created by statutes are outside
Choice of law
Proper law of contract most real connection. Arab
Thank you
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