PRIVATE INTERNATIONAL LAW ASSIGNMENT

"EVOLUTION OF INDIAN PRIVATE INTERNATIONAL LAW"

CONTENTS

1. Introduction

2. Definition & Meaning of Private International Law

3. Nature of Private International Law

4. Origin & Evolution of Private International Law

 Era of Territorial laws

 Era of Personal laws

 Era of Feudalism

 The Legalists

 Era of Statutists

 Modern Era

5. English Private International Law

6. Indian Private International Law

7. Genesis of Indian Private International Law

8. Is Private International Law is distinct part of Law

9. Distinction between Public & Private International Law

10. Conclusion

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 11. References

INTRODUCTION

International law is a system of law primarily to regulate relations between states. International
Law is thought as fluff subject during the early days. Thus, it wasn’t included as part of
curricula until 1970’s. It’s said that, English law is law, Foreign law is fact and International
law is fiction.

International law was thought as a window dressing term for geo-politics & diplomacy. But, now
in this era of globalization, International law has grown in leaps & bounds. International law has
3 branches:

1. Public International law

2. Private International law and

3. Supra National Law.

DEFINITION AND MEANING OF PRIVATE INTERNATIONAL LAW

The term Private International Law was coined by John Story & it’s also called a conflict of
laws. Private International law is a set of rules of procedural law that regulates the relationship
between physical and judicial persons of different nationalities. It determines which legal system
and the law of which jurisdiction will apply to a legal dispute among private individuals
involving a foreign element. The 3 branches of Private International law are:

1. Choice of Jurisdiction- In what circumstances the court will assume jurisdiction over
cases having foreign elements?

2. Choice of law- Which law will the court apply in deciding such cases, the native
municipal law or a foreign law?

3. Recognition of Foreign judgements- In what circumstances it will recognize a foreign

judgment or when it will order the execution of a foreign decree?

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As per Cheshire: “Private International Law, is that part of the law which comes into play
when the issue before the courts affects some fact, events or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to that system.”
According to Baty: “Private International law is the rules voluntarily chosen by a given state
for the decision of case which have a foreign complexion.”
In Narashima Rao v. Venkatalakshmi, 1991. Divorce was granted in USA but the same was
held to be invalid in India. This resulted in remarriage being valid in USA and bigamous in
India.

NATURE OF PRIVATE INTERNATIONAL LAW:

Private International law differ from country to country. It’s branch of municipal law, which is
applied when 2 or more sets of legal systems are in conflict with each other over a given issue.
James Fawcett:- Private international law sets out procedural rules relevant to substantiate law
applicable to:
1. Relationship between parties
2. Appropriate forum to resolve their disputes
3. Effect to be given to foreign judgement.
Ex- Question on succession to the property of X, who died in India. He has properties, both
movable and immovable in India and England. What are the laws be a applied? So, here private
international law plays a role.
Ex- A obtains money decree against B in Bangladesh court and files for execution of the decree
in an Indian court. The question is whether foreign judgment is maintainable in India?
The Bombay HC in case of divorce involving two conflicting legal systems, Monica Variato v.
Thomas Variato, stated that the principles of private international law are not universal. They
vary from State to State. But, by the Comity of nation’s, certain rules have been recognised as
common to civilised jurisdictions.1 Still, What may be applicable in one State may not be
applicable in a another State.

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R. Vishwanathan v. Syed Abdul Wajid

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In Indian & General Investment Trusts Ltd. v. Raja of Kholikhote, 1952, the Court stated
that, Private International Law suffers from a curious juxtaposition. In spite of the term
‘international’ being part of its nomenclature, the only international aspect is the foreign element.
Private International Law, though has an international aspect, is essentially a branch of municipal
law. This is why every country has its own private international law. However, Private
International Law through a branch of municipal law, does not deal with any one branch of law,
but is concerned practically with every branch of law and thus has a very wide ambit.

The legal systems of the world consist of a variety of territorial systems, that is their own
municipal system, each dealing with the same phenomena of life-birth, death, marriage, divorce,
bankruptcy, contracts, wills and so on but, dealing with them differently. The moment that a case
is seen to be affected by a foreign element, the court must look beyond its own internal law.
Private International Law rules deals with techniques alone, thus it do not furnish a direct
solution to the dispute.  

ORIGIN AND EVOLUTION OF PRIVATE INTERNATIONAL LAW-

The first instance of conflict of laws in the western legal tradition can be traced in Greek law.
Ancient Greek dealt straightforwardly with multi state problems and didn't create choice of law
rules.

Over a period of years, various nations influenced the growth of Private International law, such
as:

 In 12th & 13th Century- by Italy

 In 14th to 16th Century- by France

 In 17th Century- by Netherlands

 In 1st half of 19th Century- by USA & Netherlands

 In 2nd half of 19th Century- by UK, France & Germany

 In 1st half of 20th Century- by USA.

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 (A) ROME- ERA OF TERRITORIAL LAWS

The contribution of Roman legal system towards the evolution of Private International Law is the
rules of law of Origo & Domicilum i.e. natives and alien. A person had his Origo in the place to
which his father or mother (if he is illegitimate) belonged. Domicilum meant the relation
between a man and the urban community which he had chosen for his permanent residence.
Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction
to deal with multi-state cases. The officers of these specialized tribunals were known as the
praetor peregrini. The Praetor peregrini didn’t select the jurisdiction whose rules of law should
apply. Instead, they have applied the jus gentium. The jus gentium was a flexible and loosely
defined body of law based on international norms. Thus, the praetor peregrini essentially created
new substantive law for each case. Today, this is called a “substantive” solution to the choice-
of-law issue.

Ancient Roman law- To the Roman citizens Roman law applied and to the citizens of provinces
the provincial law applied. Dispute between Roman were decided under Roman law but the
dispute between citizens of provinces who were aliens of Romans were decided by different law
called law of motions.

(B) AFTER THE FALL OF ROMAN EMPIRE- ERA OF PERSONAL LAWS (6 th-10th
Century)

After the fall of Roman Empire, law became personal. So, there was no scope for the growth
of Private International law. The country was overrun by Germanic tribes, each tribe carried
his own personal law, no matter where he went, for example- sabian tribe ruled by sabian
rules, while Saxon to be ruled by his own law. This is much similar to the personal laws
applicable to each religion in India or Pakistan, like Dayabhaga & Mitakshra are followed in
different parts of India even within the same Hindu religion. The only exception to the
system was the Criminal laws and Canon laws, which were uniformly applicable to all. The
concept of Professio juris have emanated in this time period, as parties may themselves have
chosen which law they wish to be governed by. This concept of choice of law can be seen in
modern day of PIL also.

(C) ERA OF FEUDALISM (ROME)- 11th & 12th CENTURIES

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During the Middle Ages, King granted land to people like Barons, Soldiers and Peasants for
services rendered by them. Since, there was a lack of strong central leadership, this era of
feudalism thrived in France, England and Germany. This period also reasserted territorial laws,
no foreign law was tolerated. Thus, no personal laws were allowed. Hence, there was no scope
for development of PIL. Jurisdiction and application of law were coextensive, that is dependent
on the facts, such as where the defendant was a resident, where the cause of action arose etc.
This connection between domicile, place of contract, permanent residence etc. played a role
which is much similar to PIL of modern day.

Therefore, Ancient Roman law is regarded as the foundation of Civil Law system. Roman
jurisprudence gave birth to certain basic concepts in the arena of PIL, such as:

1. Concept of domicile- which thereafter, in common law, became the “connecting factor”
for determination of personal law, that is, status, capacity and as contrasted with
nationality and citizenship which are the connecting factors of civil law.

2. The rule of lex citus- that immovable property is governed by law of place where it is
situated.

3. The personal law- In terms of which, the subjects like family law, succession, marriage
would be governed by the law of his place of origin and community to which he belongs
and carried that law with him whenever he want.

(D) ERA OF LEGALIST (ITALY)- 13th to 18th CENTURY

With the development of commerce and transaction, dispute arose between individuals of two
cities of Italy. Jurists tried to solve those problems by focusing on rules of Roman law, who are
also known as Glossators. However, the early Glossators were not so much successful to this
end, but the post-glossators in 13th century were. Carolus De Taco suggested that, Lex Fori be
applied for all people or some equitable method be followed to render justice. Hugolins
suggested that when parties hail from two different cities, the law of 3 rd city could be used to
ensure impartiality. But, in reality none of these were real solution, that would be applicable in
courts. Another suggestion was put forth for an objective test, based on provincial or local
allegiance to determine choice of law but, this also failed to show at which state this test is to be

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applied. Boldunius observed difference between nature of laws as to be procedural and
substantive and called for Lex Fori in case of procedural laws. This solution is now more
followed in modern day of PIL.

(E) ERA OF STATUTISTS

The post-glossators(jurists) discovered the Statute theory. Bartolus classified law into 2 types:

 Real Statute theory &

 Personal Statute theory.

The main purpose of real statute is to regulate things and the purpose of personal statute is to
deal about personal matters. Real statutes were considered essentially as territorial while
personal statutes were personal. The law of person would be applicable unless such personal law
was opposed to the public order of the city. However, this theory was not perfect a,
classification of ‘real and personal’ was not unanimous amongst cities and the definition of
public order was not clear. D' Argentre held that in case of doubt regarding, where the particular
subject fit in, the choice must be Lex Fori.

Dutch Jurist, Max Huber, opined that it should be depended on the will of Sovereign. He gave 3
rules and called it Doctrine of Comity:

(1) Laws of state have force only within its own territory.

(2) All citizens within a territory are bound by the laws of its own sovereign.

(3) Comity ensures recognition of foreign laws in a country’s court.

But, USA Supreme Court in Hilton v. Guyat, 1895 observed that, Comity is a legal issue, it's
neither matter of absolute obligation nor mere courtesy or goodwill upon one another. It is the
recognition, which one nation within its own territory accords to the judicial, legislative &
executive acts of another nation and to the rights of its own citizens under the protection of its
laws.

(F) MODERN ERA 17th CENTURY

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Savigny rejects both territorial as well as statutes theories and calls for development of uniform
private international law. He observed that, every legal relationship is based on and belongs to
some law and the object of PIL is to find the seat of this legal relationship. In case of conflict of
law, law of the place, where the legal relationship belongs to, must be applied. Even though,
Universal Public international law is a pipe dream, the concept of finding the seat of legal
relationship is more scientific and accurate in nature.

This time period was greatly influenced by Napoleonic Civil Code (Frenchjof 804). Mancini
observed that, for an individual, personal law is law of his nationality. After World War I, the
capitalist system as well as Russia, influenced private international law communist system. Thus,
now, there arose a contact between very different system of laws and governance, resulted in a
private international law completely different from an early day of private international law.

ENGLISH PRIVATE INTERNATIONAL LAW

No development took place until 17th century, all suits before English courts were dealt with by
English law. During the Middle Ages, there was thus no conflict of laws rather, there was only
conflict of jurisdiction. In 1603, James I became king of England and Scotland, when Scotland
became part of England, England followed the Anglo saxon law while Scotland followed the
Roman law, thus conflict of law arose.

In case of Postnati v. Kelvin 1608, concept of recognition of foreign law came. Facts are that,
Kelvin was born in 1606 in Scotland. And inherited estates in both Scotland and England. It is
well established in England that, a person can’t have allegiance towards two nations. English law
held that foreigner cannot hold lands in its territory. So, a question arose that, can Kalvin, a scot
can hold land in England? So, in this case, Scot laws were recognized for the first time in
England and the king’s bench held that since Kalvin was not an alien, he has all rights to hold
land in England.

Then in case of Slang v. Coffon, Courts for the first time showed inclination and willingness to
take the foreign law evidence.

Then, in Weir's Case, Courts displayed it’s willingness recognize foreign judgments. In this
particular case, the court resolved upon a habeas corpus matter and remanded a party. Here the

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only question was, if there was a power & jurisdiction for English court to remand, no question
about the conclusiveness of a foreign judgment was entertained.

Thus, beyond few such examples, there was not much instances which states for growth of
private international law in England.

In common law Court, Jurisdiction must come from the place where the incident or act or cause
of action took place thus, when the cause of action was in foreign country hearing the case was
not feasible.

Therefore, before 17th century, normal courts were not given the jurisdiction or competence to
take up foreign suits. Special Courts were set up to hear such suits. These special courts were
mostly related with trade and commerce, thus they applied the universal mercantile laws.

During early 17th century, the position was slightly varied and cases wherein the cause of action
partly arrows in England and partly elsewhere were also taken up by the common law courts.
Robinson v. Bland 1706, this case revolved around a contract which was valid in France but
void in England, but case was filed in England. Now the question arose that, if such a contract
can be enforced in England. The English court held that, the general rule is that the place where
the contract was entered into must be considered while expounding on whether the contract
should be enforced or not.

After that, in 18th century, English Courts also started taking up cases where cause of action
arose completely outside England. But even in such cases, only English law was applied.

Here, Cheshire opined that, 18th century is only the beginning stage for development of public
international law in England. By 19th century, English PIL start taking it’s shape.

INDIAN PRIVATE INTERNATIONAL LAW

Ancient Period: It is difficult to say that private international law existed in ancient India. It is
well known that much before the advent of the Mughal rule in India, particularly during the
Gupta and mauryan empires, India had a flourishing trade and commerce with countries across
the high seas. It seems evident that, many suits pertaining to contracts and transactions relating to
trade, commerce and other matters must have come before the Indian courts. It is also evident

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that, during the Gupta empire & mauryan empire, law in India was territorial though usage and
custom too had their place, sometimes supplementing law and sometimes even overriding it.

Medieval Era: With the establishment of the Mughal empire in India, on many matters rules of
Muslim law came to be applicable however, in most matters, if both the parties were Hindus,
Hindu law applied and if the both the parties were Muslims then then Muslim law applied. In
personal matters, in the entire area of family law, it was personal law of the parties that applied.
Hindus were governed by the Hindu law and Muslims were governed by the Muslim law. Thus,
emerged the era of personal laws in India.

Modern Era (Pre-independence Period)- During the British period, from its very beginning to
its end, various communities in India were governed by their personal laws in personal matters.

Before independence and till the recognition of states, India was a federation between British
India and native Indian princely states, having distinct legal systems. As result, conflictual
questions often arose in the area of law and administration of justice, particularly the recognition
and enforcement of foreign judgments. Because at that time, a judgement passed in princely state
was foreign to court system of British India, which we have now inherited. The best reflection of
this is seen in the provision of section 13, CPC 1908, dealing with recognition of foreign
judgments.

Apart from that, During the British period, India developed contacts not merely with the
countries of British Empire but also with other countries, the result was that, cases with foreign
elements did came for adjudication before the Indian courts. Just as in other matters, so in cases
having foreign elements, Indian courts decided them mostly by applying rules propounded in
English decisions.

Thus, basically the rules of Indian private international law are based on the rules of English
private international law. Indian courts have almost blindly followed and adhered to English
precedent probably, in a dependent India nothing else was possible.

Modern Era: But now after the independence, it is not at all necessary or logical to ape any
country and follow its rules. Now, we are in position to develop the rules of private international

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law in accordance with the social needs and circumstances of our contemporary society and in
accordance with the ideas and notions of world justice.

Warren Hasting’s regulation 1772 and Charter of 1774: Diversity of Lex Fori

Modern Indian law begins in Bengal, with Warren Hasting’s Regulation of 1772, where in civil
law to be applied in Bengal. Mofussil prescribed application of Hindu & Mohammedan laws to
Hindus & other religious institutions.

Thus in 1772, Warren Hastings transformed to the principle of personality of laws from its
simple form of separate jurisdiction, as under the charter of 1753, into a complicated system,
whereby the Lex Fori rather than jurisdiction was diversified. Unfortunately, it was not
immediately adopted by the British parliament.

The Regulating Act 1773 and Charter of 1774 empowered the newly established Supreme Court
at Calcutta to apply English law, if suited to Indian conditions.

In 1781, the Act of 1773 was amended by the act of Settlement. This amendment compares with
the Warren Hastings regulation of 1772 on certain areas of legal relationship. The Supreme
Court of Calcutta had a diversified Lex Fori. It was required to apply to Hindus and Muslims,
their respective laws on matters relating to inheritance, succession, contract and dealing between
party and party.

In 1861,when the jurisdiction of Supreme Court and mofussil court was amalgamated into
original and appellate jurisdiction respectively, which also inherited there respective laws, a new
twist was added to variation of subject matter.

Genesis of Indian Private International Law

There has been a genesis and evolution, both in civil law countries traceable to Roman law and
in the common law countries from the 18th century.

In India, from the commencement of the British rule 1772, there has been an evolution of rules to
regulate inter-personal conflict of laws, considering the personal laws of different communities
in India. Indian, however has had an older development of private international law peculiar to
historical, political, social circumstances.

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Before independence and till the recognition of states, India was a federation between British
India and native Indian princely states, having distinct legal systems. As result, conflictual
questions often arose in the area of law and administration of justice, particularly the recognition
and enforcement of foreign judgments. Because at that time, a judgement passed in princely state
was foreign to court system of British India, which we have now inherited. The best reflection of
this is seen in the provision of section 13, CPC 1908, dealing with recognition of foreign
judgments.

Having attained independence, the growth of true Indian law on the principle and subordinate
questions of private international law is inevitably hampered. Conflict of laws again arose soon
after the independence with the formation of Pakistan. The genesis and evolution of private
international law in India has taken place. It’s the English rules of private international law that
have been applied in Indian conflict cases.

Modern Era: But now after the independence, it is not at all necessary or logical to ape any
country and follow its rules. Now, we are in position to develop the rules of private international
law in accordance with the social needs and circumstances of our contemporary society and in
accordance with the ideas and notions of world justice.

IS PRIVATE INTERNATIONAL LAW IS THE DISTINCT PART OF

LAW?

Private International law is a separate and distinct unit as much as the law of tort or of contract,
but possesses the unity, not because it deals with a particular topic but because it is always
concerned with one or more of three questions namely jurisdiction, choice of law and recognition
of foreign judgement.

Private International law does not give final decision. It is comparable with a railway enquiry
room. By approaching the inquiry room you can only ascertain the platform from which a
particular train leaves. It’s the train that reaches you to your destination not the enquiry
room. Private International law only decide the rule of law of choice and then indicate the
convenient law that is to be applied.

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We can’t say it as a full fledged law. It doesn’t contain the basic feature of law. There is no
conclusiveness and imperative obligation to take a single and particular view in Private
International law like the real law. The degree of boundness, obligation is somehow very low in
case of Private international law. The very purpose of Private International law is to avoid
conflicts of law.(which is ultimately fall in the basket of Courts).So, we may say that, Private
International law is a distinct part of law which contain the notion of law and justice.

DISTINCTION BETWEEN PRIVATE INTERNATIONAL LAW AND

PUBLIC INTERNATIONAL LAW:

Private International Law Public International Law

As to Consent It’s not based on the consent It’s based on the consent of
of the states. the state.

As to Object It determines as to which law It regulates relationship of

will apply of two conflicting States inter se and determines
in a particular case having rights and duties of the
foreign element. subject states at international
sphere.

As to Conflict of Law It involves in the conflict of It doesn’t involve in conflict

laws. of laws.

As to nature It may be different in various It’s same for all the states.
states.

As to sources It has its sources in the It has its sources in treaties,

legislation of the individual custom, etc.
state to which the litigants
belong.

As to application It is applicable to civil cases It’s applicable to criminal as

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 only, which present well as civil cases.
themselves for accession of
courts of the state.

As to subject It deals with the individuals. It deals with the states.

As to municipal law It’s part of municipal law. It’s not a part of municipal
law.

As to jurisdiction It determines court which will It does not involves

have jurisdiction to decided determination on the question
issue in question. of determination.

As to scope It has lessor scope. It has wider scope.

CONCLUSION

The term conflict of laws itself originates from situations, where the ultimate outcome of a legal
dispute depended upon which law applied, and the common law courts manner of resolving the
conflict between those laws. Private international law has no real connection with public
international law, and is instead a feature of local law which varies from country to country.

The Hague conference on Private International law, has been going through a rapid and
profound development in recent years. This reflect the changing character of private international
law, which is no longer a discipline regarding the life and the business of elite, but of everyone.
The challenge is to respond to new needs quickly and adequately, preserving the well tested
working method, adopting them where necessary and to maintain the high practical ideals of
promoting legal security, the orderly and efficient settlement of dispute and the rule of law while
respecting the diversity of legal traditions.

The courts are saddled with the cumbersome and unwieldy body of conflict laws, that create
confusion and uncertainty and inconsistency as well as complication of judicial tasks. The
approach has been like that of a misguided judge, who treated a case not having proper

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knowledge about private international laws, which will definitely be a big loss to the advocate
and the party in obtaining justice but, not to the judge.

REFERENCES:

1. https://www.lawctopus.com/academike/private-international-law/

2. https://www.academia.edu/22851501/
Origin_and_Development_of_Private_International_Law

3. https://www.scribd.com/document/181353534/History-and-Evolution-of-Private-
International-Law-Including-India

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