CONFLICT OF LAWS IN INDIA

Author(s): T. S. Rama Rao

Source: Zeitschrift für ausländisches und internationales Privatrecht , 1958, 23. Jahrg.,
H. 2 (1958), pp. 259-279
Published by: Mohr Siebeck GmbH & Co. KG

Stable URL: https://www.jstor.org/stable/27873899

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

Mohr Siebeck GmbH & Co. KG is collaborating with JSTOR to digitize, preserve and extend
access to Zeitschrift für ausländisches und internationales Privatrecht

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
 L?NDERBERICHTE

CONFLICT OF LAWS IN INDIA

By T. S.Rama Rao*

I. GENERAL REMARKS

A comparative study of the systems of Conflict of Laws in the

Western countries and those of India and other Asian States would
reveal a fundamental divergence in the scope and content of the sub
ject : while the Western systems deal with conflicts between territorial
laws, those of Asia are concerned mainly with conflicts between per
sonal laws. This is because, while in the Occident the internal law is
uniform for all persons in the territory, in the East, the law of status
is largely a "personal law" dependent upon one's religion. The system
to some extent resembles that prevalent in early medieval Europe,
where "five men each under a different law may be found walking or
sitting together: Frank, Burgundian, Goth, Lombard, Roman and so
forth"1. A brief survey will first show how the British Administra
tion allowed the continued operation of personal laws in India and
how it provided for cases of conflict between them.

1. Historical Bases
By the Charter of George I of 1726, Mayors' Courts were estab
lished in the three Presidency Towns of Madras, Calcutta, and Bom
bay. The charter for the first time introduced in India the law of Eng
land - both common law and statute law, as it stood in 1726.
The question of the applicability of the civil law of England to the
Indians was tackled by the charter of 1753, which expressly provided
that the Mayors' Courts were not to try actions between Indians, such
actions being left to be determined among themselves, unless both
parties by consent submitted to this jurisdiction.

* F?r die ?berlassung dieses Berichtes sei Herrn Professor Lipstein in

Cambridge auch an dieser Stelle gedankt. D. H.
1 Gibbon, The History of the Decline and Fall of the Roman Empire (1776
1788) Ch. XXXVIII. The analogy, however, is only slight and should not
be taken too seriously, because apart from the few fields in which personal
law is allowed to govern, there is a large body of Indian law common to all
citizens irrespective of their religion.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
260 l?nderberichte: indien RabelsZ

The problem of reservation of personal laws again cropped up, when

the East India Company acquired the Diwani - i.e. the right to
collect the revenues, involving the administration of civil justice - over
Bengal and Bihar, from the Moghul Emperor. One view, expounded
by Alexander Bow, a lieutenant-colonel in the Company's service, was
that4'to leave the natives to their own laws would be to consign them to
anarchy and confusion", and further that the introduction of English
law was a measure *'calculated to preserve the influence which con
querors must possess to retain their power"2. But this view was re
jected by the far-sighted Governor-General Warren Hastings, who
formulated the celebrated Plan of 1772, which provided that in "suits
regarding inheritance, marriage and caste and other religious usages
and institutions", Hindus and Mohamedans were to be governed by
their own laws. This was incorporated as the twenty-seventh article
of Regulation II of 1772. In pursuing this policy of "conciliating the
affections of the natives", Hastings seems to have been influenced
by the example of the Romans, who "allowed to their foreign sub
jects the free exercise of their own religion" 3. This attitude of neutral
ity in matters of religion and personal laws was strictly adhered to by
the British Administration in India, especially since the Mutiny of
1856 revealed to them the strength of religious feelings of both the
Hindus and the Mohamedans.
The next important landmark is the Regulation of 1781, drafted by
Sir Elijah Impey, which provided that in all cases where no specific
directions were given, the judges of the Company's Court should act
"according to justice, equity and good conscience". In the same year,
Parliament passed an Act4 which gave civil jurisdiction to the Su
preme Court in Calcutta (which was the successor of the Mayor's
Court and was a Court of the British King, and not of the East India
Company) over Indian inhabitants in the city, but directed (by
s. 17) that "their inheritance and succession to lands, rents and goods,
and all matters of contract and dealing between party and party",
should be determined in the case of Mohamedans and Hindus by
their respective laws, and where only one of the parties should be a
Mohamedan or Hindu, "by the laws and usage of the defendant". The
Act was soon extended to the other Presidency Towns of Madras and
Bombay.
During the first half of the nineteenth century, by which time Brit
ish rule was extended throughout the country, the state of law in
India was, broadly speaking, as follows: There were two sets of
Courts, the Queen's Courts in the Presidency Towns, and the Com

2 See Rankin, Background to Indian Law (1946) 3.

3 Preface to Halhed's Code of Gentoo Laws (1776), compiled at the in
stance of Hastings, to enable English judges to ascertain Hindu law. - Even
under the Moghul r?gime, Hindus were allowed to be governed by their
own family laws.
4 21 Geo. 3, c. 70.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 261

pany's Courts in the Mofussil, as the territories held by the Com

pany as a feudatory of the Moghul Emperor came to be known. Both
within the Presidency Towns and outside, Hindus and Mohamedans
were allowed to be governed by their own laws. However, within the
three towns, apart from these personal laws, there was a general terri
torial law or lex loci applicable to all persons, viz., English common
law introduced by the charter of 1726. Outside the towns, there was
no lex loci at all5 ; the vacuum was to some extent filled by the Courts
by virtue of the provisions regarding justice, equity, and good con
science, introduced by the Regulation of 1781. Thus, in cases not
governed by Hindu or Mohamedan law, especially when dealing with
questions of succession, the courts, as a measure of justice and equity,
tried to apply the law of the country of the parties before them, but
this was not ascertainable in all cases. It was inevitable that the vague
test of justice and equity applied over such a large domain of law, should
lead to considerable uncertainty in law. To remedy this state of affairs,
successive Law Commissions were appointed, and as a result of their
deliberations, it was decided that a body of substantive civil law,
based on English law, was required for British India as a whole, and
that, save for the exceptions made by the code, it should be the law
of the land applicable to everyone ; that, however, no portion either of
the Mohamedan or of the Hindu law ought to be enacted as such in
any form by a British legislature6. A number of codes were speedily
enacted like the Code of Civil Procedure, the Succession Act, the In
dian Divorce Act, the Evidence Act, the Indian Contract Act, and the
celebrated Indian Penal Code. Thus, the Benthamite movement
towards codification registered its outstanding triumph in the field of
Indian law. What is more remarkable, is that a body of five or six
jurists (undoubtedly eminent) laid down the law they found fit for
a country of millions with little check from any quarter !
The dichotomy between the Royal Courts and the Company's
Courts was abolished by the Indian High Courts Act of 1861. But the
provisions in the old enactments, which are of interest to the student
of Private International Law, are incorporated in the new Acts also.
Thus the Civil Courts Acts, which now define the jurisdiction of the
Mofussil courts, retain the residual power of the courts (conferred
by the Regulation of 1781) to act "according to justice, equity and
good conscience". This provision is also contained in the Letters Pat
ent of the various High Courts (clause 19). Similarly, the provision

5 This is now the generally accepted view. For a brilliant refutation of

the contrary view taken by the first Indian Law Commission, viz., that
"by a fair application of principles of international law", English law became
ipso jure the lex loci in India, as soon as the country became a possession of
the British Crown, see Rankin (note 2 supra) 30-34.
6 It is interesting to note that the first Law Commission envisaged the
codification of Hindu Law and Mohamedan Law also, but this project was
abandoned by the Second Commission.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
262 L?NDERBERICHTE : INDIEN RABELSZ

regarding application of the law of the defendant in cases of parties

having different personal laws, was adopted by the Government of
India Act 1915 (s. 112), and is now continued in force by Art. 225 of the
Constitution of India.

2. Legal Sources
The sources of Indian Private International Law are statutes and
decisions of courts. The Indian Law Commissions exhaustively cod
ified rules of Private International Law on various topics in the
Indian Succession Act, the Code of Civil Procedure, the Divorce Act,
the Contract Act, and other Acts drafted by them. These provisions
shall be examined in detail in their proper places below ; but generally
it should be noted that these provisions were drafted by Englishmen,
and were mainly based on English Law. As Sir George Rankin well
points out, "the influence of the common law in India is due not so
much to a reception, though that has played no inconsiderable part,
as to a process of codification carried out on the grand scale, not merely
with a view to putting into form a system of law which was already
in force, but to lay down a rule of decision where there seemed to be
none"7. Thus, in the case of Indian Private International Law, not
only is the superstructure erected by the judiciary with the familiar
tools of common law, but the very foundation has been laid on the
basis of English law, by virtue of the Codes. However, it should be
pointed out that, while the draftsmen of these Codes have mainly
followed English law, they have to some extent deviated from it,
where it was found that English rules would be unsuited to Indian
conditions. Thus, to give but one example, the English distinction be
tween realty and personalty was rejected by the commissioners, and
it was provided in the Succession Act that the law of succession to
land in India should be the same as the law of succession to movables,
in the case of persons domiciled in India. Secondly, codification of
rules of Private International Law in these codes, has sometimes result
ed in undue rigidity, and has proved unsatisfactory. For example,
s. 11 of the Contract Act provides that "every person is competent
to contract who is of the age of majority according to the law to which
he is subject", and the Indian Majority Act regulates the age of ma
jority for all persons domiciled in India in a uniform manner. By vir
tue of these provisions, capacity to contract is governed in all cases by
the lex domicilii. Thus, the modern view that, in cases of mercantile con
tracts, the lex loci contractas and not the lex domicilii should govern ca
pacity, cannot be followed in India8. Fortunately,however,the authors

7 Rankin (note 2 supra) 19 f.

8 In T. . S. Firm v. Muhammad Hussain, A.I.R. 1933 Mad. 756, the
Madras High Court applied the lex loci contractus in the case of a mercantile
contract, but surprisingly enough no mention is made in the judgment of
s. 11 Contract Act.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1968) CONFLICT OF LAWS 263

of the Codes have mostly contented themselves with enacting the broad
principles of Private International Law in the various fields, thus leav
ing free scope for judicial legislation 9.

3. Law of the Defendant

As was noted earlier, Parliament provided by s. 17 of the Act of
1781, that where one party to a suit is a Hindu and another a Muslim,
the law of the defendant should be applied. In the Government of In
dia Act, 1915, the same rule was made applicable to all classes of per
sons subject to a personal law. Commenting on this provision, Mah
mood J. remarked that it "is an illustration of the simplicity which
marks some of our oldest legislative enactments"10.
It is obvious that this principle, which is so out of tune with cur
rent legal thought, would work serious injustice in most cases, espe
cially in matters of inheritance and divorce. However, Courts have
virtually nullified it by an ingenious negative approach, viz., by hold
ing that, whatever else may be the scope of the section, it could hardly
have been intended to apply to a case like that before the court11 ! Ap
parently the effect of the provision has been considered only in cases
of interpersonal conflicts and not in cases of Private International
Law proper. But even in such a case, the result is not likely to be dif
ferent.

4. "Justice, Equity and Good Conscience"

Undoubtedly before the enactment of the Codes, the carte blanche
provision in the Regulation of 1781 enabled and necessitated an un
limited judicial legislation by the Company's courts, and made them
"the monarchs of all they surveyed" in the uncharted domain of
Indian law. It should be observed that "equity" in this context does
not refer to the English equity law, but should be understood in its
normal sense. We must also avoid assuming that by these provisions,
it was intended that rules of English Private International Law were
to be introduced as such in India, because firstly this branch of the
law was during the eighteenth century in a primitive stage in Eng
land itself, and secondly conflicts of personal or domiciliary laws
could hardly have arisen in those days in India.
The Codes and subsequent Indian legislative enactments have ob
viously limited the scope of judicial discretion. However, the policy
of non-interference in personal laws pursued by the British Ad

9 See e. g. s. 13 (a) Code of Civil Procedure, 1908, discussed ? 12 infra.

10 Gobind Bayai v. Inayatullah (1885), 7 All. 775, 778.
11 Cf. Sarkies v. Prosonomoyee Dossee (1881), 6 Cal. 794, where the defen
dant, a Hindu purchaser of a limited estate unsuccessfully claimed a full
title on the basis of his personal law ; Gobind Bay al v. Inayatullah (pre
ceding note), a case of pre-emption ; Ayesha Bibi v. Subodh Chandra Chakra
barthi, [19451 2 Cal. 405, a matrimonial case.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
264 L?NDERBERICHTE : INDIEN RABELSZ

ministration, while it proved satisfactory, when the various religious

groups lived within the confines of their own laws by a rigid adherence
to orthodoxy, left the Courts without any guidance in those rare
cases where inter-racial contacts resulted in the breach of religious
barriers, and conflicts of personal laws arose for consideration. In
those cases, the courts still had necessarily to resort to the omnibus
clause of justice, equity and good conscience to solve them on their
own merits.

II. CONFLICT OF PERSONAL LAWS

We may now examine in some detail the effect of the policy of

tolerance of personal laws on the development of Indian Private Inter
national Law, and see how far English principles have been utilized
by our Courts to solve the peculiar problems arising out of the con
flict of personal laws in India.

5. Capacity to Marry
The capacity of a person to marry depends in India on his personal
law. Hence in the case of marriage of a domiciled Indian with a for
eigner, Indian law as the lex domicilii would refer the question of
capacity of the Indian to his personal law.
Particular difficulties have arisen with regard to a Hindu's capac
ity to marry a person of different religion or caste12. Under custom
ary Hindu law, every marriage of a Hindu outside his caste was
void13. As non-Hindus do not belong to any caste, they were not
allowed to marry a Hindu except after conversion to Hinduism by
ceremonial rites u. These rules, however, have been considerably modi
fied in modern times.
(a) As for marriages in India, statutory enactments have brought
about a gradual abolition of the old restrictions. The first step in this
direction was taken in 1872, when the Indian legislature passed the
Special Marriage Act (III of 1872), on the representation of the Brahmo
Samajists, who were unwilling to be married under Hindu rites15.
S. 2 of the Act provides that "marriages may be celebrated under this
Act. between persones neither of whom professes the Christian or the

12 As to mixed marriages between Muslims and Christians, see ? 6 infra.

13 Subbaramayya Y.Venkatasubbamma, [1941] Mad. 989.
14 See Ratansi D. Morarji v. Administrator General of Madras, A.I.B. 1928
Mad. 1279, where a European lady became a Hindu and married a Hindu
Vaisya, Even in such a case, marriage with a high caste Hindu might be
void under customary Hindu law. However, in Ratansi D. Morarji}s case
the Court observed that "whether ... a higher caste may not be assigned
to one in the position of Sulochana [the European convert in the case], is a
question which . . . deserves to be carefully considered" (I. c. at 1285).
15 Cf. In b. Jnanendra Nath Ray (1922), 49 Cal. 1069.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
 23 (1958) CONFLICT OF LAWS 265

Jewish, or the Hindu or the Muhammadan, or the Parsi or the Bud

dhist, or the Sikh or the Jaina religion." Hence a Hindu and a person
of another religion could marry, provided they made a declaration
before the Marriage Registrar that they did not profess any of the
stated religions, even if such declaration did not represent the true
beliefs of the parties. This is so because, while s. 21 of the Act imposes
a penalty on making a false declaration, the Act does not provide
that such declaration shall invalidate the marriage16. However, the
marriage was void if one spouse declared that he was a Hindu, because
in this case the Registrar lacked jurisdiction to solemnize the marriage
under the Act17.
The Christian Marriage Act (XV of 1872) brought no alteration.
According to this statute (s. 4), every marriage between persons one
or both of ivhom is or are a Christian or Christians which is not solem
nized under the provisions of the Act shall be void18. Hence the Act
provides for a marriage between a Christian and a non-Christian in
general; but s. 88 states that "nothing in this Act shall be deemed
to validate any marriage which the personal law applicable to either
of the parties forbids him or her to enter into" 19. Therefore, it appears
that a Hindu could not marry a Christian under this act though, sur
prisingly enough, this question does not seem to have arisen in any
case.

In 1923, the scope of the Special Marriage Act was enlarged so

to authorize in s. 2 equally marriages "between persons each of who
professes . . . the Hindu, Buddhist, Sikh, or Jaina religion." Thu
under the Act, inter-caste marriage among Hindus was permitted20
but marriage between a Hindu and a person of another religio
remained legally forbidden.

16 Niranjan Das Mohan v. Ena Mohan, A.I.R. 1943 Cal. 146, 150.
17 Batan Behari Datta v. Margaretha Heh, A.I.R. 1939 Cal. 544.
18 Moreover, the person solemnizing such a marriage is liable to be punish
with imprisonment not exceeding 10 years. Thus a pastor may val id
marry a Christian and a Muslim, but a Kazi or Moulvi who tried to solemn
such a marriage, would be committing a grave offence under this provisio
even though Mohamedan law permits a marriage between a Muslim an
a "Kitabi." See In re Kolandaivelu (1916), 40 Mad. 1030; aliter Empero
v. Maha Bam (1918), 40 All. 393.
19 This provision, however, does not concern the formalities of the ma
riage, which are on the contrary within the exclusive domain of the lex l
celebrationis. Therefore, the prohibition by Canon law against solemnizing
a marriage between Catholics otherwise than by Catholic rites, was not giv
effect to in India, and a civil marriage before an Indian Registrar in accor
dance with the Christian Marriage Act was held valid : Saldanha v. Saldanh
(1929), 54 Bom. 288 (marriage between an Indian Christian lady and a G
domiciled Roman Catholic).
20 All legal impediments, as for inter-caste marriages of Hindus, ha
been removed retro-actively by the Hindu Marriages Validity Act (XXI
1949).
18 Zeitschrift f?r internat. Privatrecht. H. 2 (Jahrg. 23)

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
266 L?NDERBERICHTE: INDIEN RABELSZ

It was only after the attainment of Independence that the final

step - unprecedented perhaps in Indian history - was reached. This
happened in 1954, when the legislature passed a new Special Marriage
Act (XLIII of 1954), which provides in s. 4 that a marriage between
any two persons may be solemnized under this Act.
(b) The question whether a Hindu can validly marry a non-Hindu
outside India, was first considered in the English case of Chetti v.
Chetti21. There the husband - a Hindu domiciled in India - claimed
that, by his personal law, he had no capacity to marry a non-Hindu
and hence his marriage in England with an Englishwoman was void.
Sir V. Bhashyam Ayangar, a High Court judge of Madras, was examined
as a witness (by a commission in India), and he deposed that a Hindu's
marriage with a non-Hindu - even if concluded abroad - would not
be recognized in India, except probably, when an English Court de
clared it to be valid. However, the English Court held that any such
incapacity would not be recognized in English law. - In India this
question seems to have arisen in two cases only, Sainapatti v. Saina
patti22 and Sophy Auerbach v. Shivaprosad AgarwaXla2*. In the former
case, it was held that in view o? Chetti v. Chetti and other English cases,
it is settled that a Hindu's marriage with a Christian celebrated in Eng
land is valid. The Court failed to see that, as an Indian Court and as
the Court of the husband's domicile, it had to apply Indian and not
English law. In the latter case, the problem was raised by the Court,
but not answered, because the Court was not asked to consider it by
either of the parties.
As we have endeavoured to show, a Hindu could not, before 1954,
legally marry a non-Hindu in India. It seems to follow that he was
equally prevented from doing so abroad, at any rate under Hindu
law as the lex domicilii. It is submitted, however, that since the Special
Marriage Act, 1954, came into force, a Hindu has the capacity to
enter into a marital contract anywhere with persons of another religion.

6. Polygamy
Both Customary Hindu Law and Mohamedan Law permit polyg
amy, though the Hindu Marriage Act, 1955, has now prohibited it
among Hindus. Yet in the Hammersmith Marriage case2*, the English
court held that a marriage celebrated in England is necessarily monog
amous in nature, even in the case of a Hindu or Muslim. In the same
sense, both of the appeal judges in the Indian case of Khambatta v.
Khambatta20 agreed that the lex loci contractas determines the nature

21 [1909] P. 67.
22 A.I.R. 1932 Lan. 116.
23 A.I.R. 1945 Cal. 484. Cf. note 31 infra.
24 JB. v. Hammersmith Superintendent Registrar of Marriages, Ex parte
Mir-Anwaruddin, [1917] 1 K.B. 634.
2* (1934), 59 Bom. 278.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
 23 (1958) CONFLICT OF LAWS 267

of the marriage, while Beaumont C.J. in the first instance had held
that the law of the matrimonial domicile was decisive 2e. It is, however,
unlikely that an Indian Court would now adopt the view of the appeal
judges in Khambatta's case, which has been repeatedly criticized by
modern writers.
As an additional ground for his decision in Khambatta's case, Broom
field J. stated that in consequence of s. 4 of the Christian Marriage
Act of 1872, even under Indian law, a marriage with a Christian is
always monogamous27. This assumption, however, seems to be in
correct. It should be noted that two of the grounds of divorce available
for a wife under s. 10 of the Indian Divorce Act (IV of 1869), which
applies to Christians only28, are "bigamy with adultery" and "mar
riage with another woman with adultery." This distinction indicates
that the framers of the Indian Divorce Act contemplated that the
Hindu or Muslim does not lose his right of polygamy by contracting
a marriage with a Christian. The same conclusion was reached in
Sainapatti v. Sainapatti29, where the English wife of a Hindu sued
for divorce on the ground that her husband contracted later another
marriage with a Hindu woman and thus committed "bigamy with
adultery." Yet the court held that the husband did not commit
"bigamy" and granted a divorce on the ground of "marriage with
another woman with adultery." But if the husband did not commit
bigamy, his second marriage was necessarily valid. This conclusion is
greatly strengthened by the fact that, while the Special Marriage Act,
1872, prohibits bigamy expressly (s. 16), the Christian Marriage Act
of the same year does not do so. Similarly, bigamy is made punishable
under s. 494 Indian Penal Code, but this section has no application
to Hindu or Mohamed an husbands. All this is evidently in line with
the policy of the Law Commissions and of the British Administration
not to interfere with the personal laws of the Hindus and Mohamedans.
Anyhow, it should be noted that even if a marriage under the
Christian Marriage Act is not necessarily monogamous in nature, a
Hindu cannot marry under the Act, because of s. 88, as was sub
mitted earlier (? 5 supra). A Muslim, however, is entitled under his
personal law to marry a Christian. But among Christians, the Catholics
are not permitted by their personal law, viz., the Canon law, to marry
a person who is not baptized 30. Hence the scope for potentially polyg
amous marriages under the Christian Marriage Act is quite limited,
such marriages being possible, if at all, only between Muslims and
Protestants.
Moreover, it is an essential condition of a valid Christian marriage
in India (both under the Christian Marriage Act and the Divorce Act),
26 L. c. at 283. 27 . c. at 303-305.
28 Cf. S 7 (a) infra. 29 Note 22 mvra.
80 For this reason, a marriage contracted in accordance with the Christian
Marriage Act between a Roman Catholic and a Jew was held void under
s. 88: Claudia Jude v. Cancelot Jude, [1945] 2 Cal. 462.
18*

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
268 L?NDERBERICHTE: INDIEN RABELSZ

that at the time of the marriage neither party should have a spouse
by an earlier indissolved marriage, i.e. that the Christian marriage
should not be bigamous in nature. If so, it would be void. But is the
same true when the marriage was celebrated abroad ? In Sophy Auer
bach v. Shivaprosad Agarwalla31 this question was answered in the
negative. In that case a Hindu, who was already married to a Hindu
woman in India, went through a form of marriage with an English Jewess
in Paris. The second wife was later converted to Christianity. She filed
a suit in the Calcutta High Court for a declaration that her marriage
with the defendant was void, as under French law - the lex loci cele
brationis ~ such a marriage was a nullity. In the absence of satisfactory
evidence, the Court presumed that the "French Courts would not take
a different view from the English Courts" on the question involved32.
From Chetti v. Ghetti33 the Court inferred that English Courts would
consider the potentially polygamous Hindu marriage as void, and
would regard the French marriage as valid34. Hence the Court pre
sumed that the French law would be the same. Even assuming other
wise, the Court held that, as it was not proved that under the hus
band's personal law the polygamous marriage was void, the declara
tion of nullity could not be granted to the plaintiff. Thus the Court
gave a wider operation to personal law outside India than within the
country !
A Christian domiciled in India who is converted to Islam is entitled
to marry again even if his first (Christian) wife is alive. The same was
formerly true for converts to Hinduism (John Jiban Chandra v.
Abinash Chandra 05). If it is, however, established that "the conversion
was undertaken solely with the intention of securing some immediate
material advantage," the conversion would be held ineffective36.

7, Divorce and Nullity Proceedings

The divergent provisions regarding dissolution of marriage under
the different personal laws in India, have given rise to acute problems
in the field of conflict of laws.

31 Note 23 supra,
32 In the absence of proper proof of foreign law, the correct presumption
to be made, is that the foreign law is the same as Indian law (see e. g. s. 137
of the Negotiable Instruments Act, 1881). But cf. ? 13 infra.
33 Note 21 supra.
34 Actually the contrary view would now be held by the English Courts.
See Baindail v. Baindail, [1946] P. 122, and Srini Vasan v. Srini Vasan,
[1946] P. 67. But these cases were decided subsequent to the Indian decision.
35 [1939] 2 Cal. 12.
36 Bartholomew, Private Interpersonal Law: (1952) 1 Int. Comp. L. Quart.
325-344 at 343. See Bakeya Bibi Y.Anil Kumar Mukherji, [1948] 2 Cal. 119;
Skinner v, Orde (1871), 14 Moo.I.A. 809.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 269

a) Christian Marriages
The Indian Divorce Act (IV of 1869) has codified the rules of Private
International Law regarding Christian marriages. According to s. 2,
no relief can be provided under the Act, unless the petitioner or the
respondent professes the Christian religion. Jurisdiction to grant dis
solution of marriage, depends as in England solely upon the test of
domicile. However, decrees of nullity can not be granted, unless the
petitioner is resident in India at the time of presenting the petition
and the marriage has been solemnized in India. The latter condition
denies redress even to domiciled Indians if they were married abroad.
For other matrimonial remedies, residence of the petitioner in India
is sufficient.
The test of Indian domicile is strictly enforced in divorce cases.
Statutory domicile under s. 11 Succession Act has been held insuf
ficient to confer divorce jurisdiction37. However, under the (British)
Indian and Colonial Divorce Jurisdiction Act, 1926, Indian Courts
formerly had jurisdiction to dissolve marriages of English domiciled
persons ; but this provision has been repealed by the Indian Independ
ence Act 38.
The grounds for granting decrees of divorce and nullity are similar
to those in English law. However, it is interesting to note that, as the
prohibited degrees of relationship have not been defined by the Act,
Courts have left them to be determined by the lex domicilii or per
sonal law of each person. Thus, in the case of Catholics domiciled in
India, it has been held that Canon law, not English, would determine
the prohibited degrees39. This is in sharp contrast to English law,
where prohibited degrees are prescribed by statute, and are applicable
uniformly to all persons domiciled in England40.
Provisions like s. 18 (1) (a) and (b) of the English Matrimonial Caus
es Act, 1950, enabling a foreign domiciled wife to obtain dissolution
of marriage, are not found in India. But perhaps s. 16 of the Indian
Succession Act may provide a solution in such cases41.

b) Hindu Marriages; Conversion

Under Hindu law, divorce was not possible till the passing of the
Hindu Marriage Act, 1955. Even after conversion of one of the spouses
to another religion, the marriage subsisted. Yet apostasy had in prac

37 For further discussion of this problem, see ? 10 (note 57) infra.

38 Smith v. Smith, A.I.R. 1954 All. 624.
89 Lopez v. Lopez (1885), 12 Cal. 706, where the marriage of a Catholic
with the sister of his deceased wife was held valid, as permissible by Canon
law. The Court further presumed in the absence of evidence to the contrary
that dispensation would have been obtained from the Ecclesiastical author
ities.
40 In re De Wilton, De Wilton v. Montefiore, [1900] 2 Ch. 481.
41 See ? 10 infra.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
 270 L?NDERBERICHTE: INDIEN IlABELSZ

tice the unfortunate effect of a complete separation between the spous

es, as was to be expected from the conditions of Indian society.
This worked hardship on converts to Christianity, as polygamy is not
permitted under Christian law. Hence the Native Converts' Marriage
Dissolution Act, 1866, was passed to enable a convert to Christianity
to obtain the dissolution of his or her prior marriage, if the uncon
verted spouse refused to cohabit with him or her.
This Act was, however, restricted to Christian converts only and did
not extend to converts to Islam, probably because a convert to that
religion is entitled to remarry, even if his Hindu marriage is not dis
solved. But under Muslim law as under Hindu law, polyandry is not
permitted, and hence the question arose, whether a lady converted to
Islam is entitled to dissolve her marriage in accordance with the rule
of Mohamedan law that a convert is entitled to a dissolution of his or
her marriage, if on an offer by him or her the other spouse refuses to
become a Muslim. The question was considered in Reheya Bibi v. Anil
Kumar Mukherji*2, Bobasa Khanum v. Khodabad Bomanji Irani**,
Noor Jehan Begum v. Eugene Tiscenko**, and Syeda Khatoon v. Mor
deca? Obadiah*5. In all these cases, the contention that, in the absence
of statutory regulation, the Mohamedan rule should be applied as a
measure of "justice, equity and good conscience", was of no avail. The
important difference between the rule of Mohamedan law and the
Native Converts' Marriage Dissolution Act is that, unlike the latter,
the former would authorize dissolution of a marriage, even when the
unconverted spouse is willing to continue cohabitation, if he or she
refuses conversion to Islam. Naturally the Courts refused to enforce
such a rule.

c) Marriage with a Muslim

Under Mohamedan law, the husband can dissolve his marriage by
unilateral, extra-judicial declaration (Talak). This form of divorce is
recognized among Muslims in India; but it does not follow that the
same holds true in the case of a mixed marriage with a Christian wife.
In Khambatta v. Khambatta?, an Indian Muslim married a Scottish
lady in the Christian form in Scotland. After they settled in India,
the wife was converted to Islam. Later the husband purported to dis
solve the marriage by Talak. Beaumont C. J., as was noted earlier
(? 6 supra), held that the nature of the marriage and the grounds of

42 Note 36 supra (Hindu convert).

43 A.I.R. 1947 Bom. 272 (Parsi convert).
44 [1942] 2 Cal. 165 (Russian Orthodox convert).
45 (1945), 49 C.W.N. 745 (Jewish convert).
46 The contrary view was held by Ormond J. in Ayesha Bibi v. Subodh
Chandra Chakrabarthi (note 11 supra). There is a controversy among Indian
writers also, on this point. See N. C. Chatterjea, Mixed Marriages and Con
flict of Laws: (1947) 1 Ind. L. Rev. 27-39, who criticizes Ormond J's. views.
47 Note 25 supra.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
 23 (1958) CONFLICT OF LAWS 271

dissolution depended upon the lex domicilii, though on appeal, two

other judges held that the lex loci contractus determined the nature
and incidents of the marriage. Anyhow, all the judges agreed that, on
account of her conversion and consequent adoption of Mohamedan
law as her personal law, the wife was validly divorced. So the question
still remains whether, under Indian law, a Muslim can validly divorce
his Christian wife in the Mohamedan form if she remains a Christian.
The Indian Divorce Act provides for dissolution of marriage on grounds
enumerated therein, where one or both of the spouses are Christians.
As personal law cannot override the provisions of a statute, and as the
Divorce Act does not expressly save customary modes of divorce, it
is submitted that a marriage with a Christian may only be dissolved
under the Indian Divorce Act. This reasoning seems to be more appro
priate than that of Blackwell and Broomfield JJ. in the case of Kham
batta, who reached the same result by holding - on the basis of the
Hammersmith Marriage case*8 - that a Christian marriage is monog
amous in nature and, therefore, cannot be dissolved in a polygamous
manner. As pointed out earlier, the correctness of this premise may be
doubted.

8. Conclusions as to Marriage
The survey of matrimonial cases indicates that the British Adminis
tration's policy of neutrality in matters of religion has greatly limited
the scope for the development of Private International or Interperson
al Law in India. Since the vast majority of the Indian population
under their personal law lacked capacity to marry outside their reli
gion, the result could hardly be otherwise. When affairs of heart and
of religion clashed, the Hindu had to choose one or the other, as his
religion did not permit any compromise between the two. As a result,
in India conversion, not decrees of Courts, determined the conflict of
laws in most cases.
However, in the few cases that arose before the Courts, they have
looked to English decisions for guidance. Even when the law permit
ted them to decide cases according to "justice, equity and good con
science," they have not violated principles of Private International
Law. This can be seen from Noor Jehan Begum's case49, where the
Court held that, at any rate, it had no jurisdiction to dissolve the
marriage, as the parties were not domiciled in India.
Since the attainment of independence, the Legislature has made
sweeping changes in personal laws, especially Hindu law. We have
mentioned the revolutionary innovations introduced by the Special
Marriages Act, 1954, and by the Hindu Marriage Act, 1955. It is inter
esting to recall here that nearly a century ago, Sir Henry Maine desir
ed to introduce a law in India regularizing marriages between persons
of different religions. But the project was dropped in the face of un

48 Note 24 supra. 49 Note 44 supra.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
272 l?nderberichte: indien RabelsZ

animous opposition from all religious heads in India. "Bishops, pun

dits, rabbis, mobeds, and mullahs found themselves for once in com
plete agreement"50.

9. Succession and Inheritance

Hindus and Mohamedans were allowed to be governed by their own
laws of succession and inheritance, both under the earlier Regulations
of the East India Company and under the Indian Succession Act.
The Act (s. 5) has also incorporated the well-known rule of Private
International Law that succession to movables is governed by the
lex domicilii of the deceased at the time of his death, and succession
to land in India by Indian law as the lex situs.
The application of this rule to Hindus and Muslims domiciled outside
India has resulted in certain peculiar innovations in Indian Private
International Law. In the case of such persons, the Indian Courts read
ily apply their lex domicilii to regulate succession to their movables,
but if they have left immovables in India, the Courts formerly applied
the Hindu and Mohamedan Law prevalent in India, for regulating
succession to them.
Thus in Muhammad Koya v. Katheessa Bisl, the Madras High Court
gave full effect to the will of a Moplah Muslim, domiciled in Ceylon, so
far as his movables in India were concerned, because under Ceylon
law he was competent to dispose of his property by will as he liked.
But under Mohamedan law in India, a Muslim can bequeath only one
third of his property. The Court held that as to the immovables in
India, the will was inoperative to the extent of its inconsistence with
the lex situs.
In Kershaji v. Kaikhushru52, a Parsi domiciled in the Baroda State
left immovables in British India; and the question arose whether his
adopted son could inherit them. Parsis in Baroda had the right of
adoption by custom, but Parsis in British India were not governed by
such a custom. The Court held that the custom could not prevail re
garding immovables in India. Similarly in Ratanshaw v. Bamanji5*,
the Court, in deciding the title to the land in British India, refused to
recognize as valid a customary form of divorce prevalent among Parais
in Baroda, because such a divorce was not recognized by the personal
law of Parsis in British India. The Court was under the impression
that s. 5 Succession Act incorporated the English rule of real property,
and purported to follow the English case of Birtwhistle v. FartMZi54.
Contrary to that, the object of the framers of the Act was to exclude
the distinction in English law between realty and personalty55.
50 Veeey-FitzGerald, The Projected Codification of Hindu Law: (1948) 2
Ind. L. Rev. 108-130, at 128.
51 A.I.R. 1945 Mad. 81. M A.I.R. 1929 Bom. 478.
M A.I.R. 1939 Bom. 238.
M (1836), 2 C. & F. 571; ? E.R. 1270; (1840) 7 C. & F. 895; 7 E.R. 1308.
M See Rankin (note 2 supra) 47-49.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 273

The recent case of Nataraja v. Subbaraycft* has, however, cleared to

some extent the obscurity created by these decisions. In this case, the
question arose, whether the adopted son of a Hindu widow domiciled
in French India could succeed to her property (movables and immov
ables) in British India. Under the law of French India, a Hindu wid
ow can validly adopt a son to herself, but under the Hindu law in
force in British India, she could not do so. The Privy Council held
that the capacity of the widow to adopt and the status of the child
adopted should be determined in accordance with the law of her domi
cile, i. e., French Hindu law. The court further decided that no dis
tinction could be made between movable and immovable property
in India, and that the adopted son was entitled to succeed to both.
As a result of these decisions, the law in India seems to be this : The
exempting provision in the Indian Succession Act (s. 2) in favour of
fi. a.) Hindus and Muslims is interpreted as applying to Hindus and
Muslims of foreign domicile also, and in their case the personal law
applicable to them under their law of domicile is applied to them,
though it may differ from the personal laws applicable to Hindus and
Muslims in India. In the case of other foreign domiciled persons be
longing to not exempted religions - including Parsis- who have left
immovables in India, the Succession Act is applied. The distinction thus
made between foreign domiciled persons for purposes of succession
to immovables in India on the basis of their religion, is a peculiar fea
ture of Indian Private International Law. This only represents the
extension in the sphere of Private International Law of the principle
of autonomy of personal laws, which has been the characteristic fea
ture of Indian law. However, it should be noted that the ratio legis
for applying the personal law of foreign domiciled Hindus and Mus
lims would cease, if the foreign country itself has abolished all dis
tinctions based on personal law. In such a case, the Indian Succession
Act should be applied in their case also. But this aspect of the matter
has not yet come up for judicial consideration in India.

III. OTHER PROBLEMS

It remains to deal briefly with the other problems of Indian Private

International Law unconnected with personal law. In marked con
trast to the field of the interpersonal Conflict of Laws in India, where
there was little legislative guidance to the judiciary, we find conflict
rules regarding other matters set out elaborately in various statutes.
We further find the legislature as well as the judiciary importing
freely English principles, in this, more than any other branch of In
dian law, probably because Private International Law is the least
settled division of law. Besides, the Indian appeal decisions of the
M A.I.R. 1950 P.C. 34.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
274 l?nderberichte: indien RabelsZ

Privy Council - a great unifying force in the British Empire - cont

buted to the shaping of Indian conflict jurisprudence on the British
pattern. Therefore, only the occasional deviations from English
need to be noticed now.

10. Domicile
Well-known principles concerning domicile, which could safely ha
beert left to a text-book on Private International Law, have been met
ulously codified in Part II of the Indian Succession Act. Howeve
there are some interesting provisions which depart from English la
Thus s. 16 provides that the wife's domicile no longer follows that
of the husband, if they are separated by the sentence of a compete
Court, or if the husband is undergoing a sentence of transportation
By its deviation from the strict English rule of unity of matrimon
domicile, this section may provide a way-out for deserted Indian wiv
of foreign domiciled persons, who may first get a decree of judicia
separation from an Indian Court and then, by acquiring afresh
Indian domicile, obtain the dissolution of their marriage.
A more striking innovation is found in s. 11, which provides for
special mode of acquiring domicile in India, i. e. by a declaration
the prescribed manner of one's desire to acquire an Indian domicile,
provided it is preceded by residence for one year in the country. T
a person may provide for the devolution of his property according
Indian law. But this provision may result in a man having two dom
ciles, one his true domicile ascertainable by the objective tests
animus and the factum of residence, and another the statutory Ind
domicile. Foreign Courts will certainly give effect only to the forme
whilst Indian Courts would be bound to apply Indian law as the
domicilii, in cases of succession at least. Thus an undesirable conflic
between Indian and foreign Courts would necessarily ensue. In d
vorce cases, however, even the Indian Courts have - as alrea
mentioned - refused to accept the statutory domicile as binding, an
have declined jurisdiction, where the petitioner could not prove tha
he had acquired bona fide an Indian domicile in the objective sense o
the term57.

In all matters except those noted above, Indian decisions on domi

cile reveal a thorough identity of views with English Courts. In
particular the Indian Courts seem to have adopted the strict English
rule that an unconditional intention to reside for ever in this country
is necessary to acquire a domicile of choice here, to judge by the obiter
dicta in certain cases58.

57 Allen v. Allen, A.I.R. 1945 Sind 171; Finch v. Finch, A.I.R.1943 Lah.
260. Cf. ? 7 (a) supra.
58 See Central Bank of India, Ltd. v. Bam Narain, A.I.R. 1955 S.C. 36.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 275

11. Jurisdiction of Indian Courts

Indian Courts, like those in England, refuse to exercise jurisdiction
over foreign immovables, even in an indirect manner. Regarding ac
tions in personam, s. 20 of the Code of Civil Procedure (C. C. P.) pre
scribes, as a condition precedent for exercise of jurisdiction, that the
defendant "actually and voluntarily" should reside or carry on busi
ness or personally work for gain in India, or that the cause of action
should have arisen within the country wholly or in part.
The last provision is similar in nature to Order 11, r. 1 of the Eng
lish Supreme Court Rules, and is open to all the objections which
English jurists have levelled at the latter. The chief objection is that
it authorizes the Indian (or the English) Court to exercise a jurisdic
tion wider than what it is prepared to concede to foreign Courts. But
Indian Courts have freely exercised jurisdiction over non-resident
foreigners on the basis of a local cause of action59.
As for the first condition, the important difference from English
law is that residence of the defendant is necessary instead of mere
presence60. And the word "reside" has been interpreted as connoting
residence of "more or less a permanent character"61. The words
"actually resides" indicate that domicile or constructive residence is
not sufficient. Similarly, as the section should be considered as ex
haustive of the conditions of exercise of jurisdiction, it is obvious that
nationality is not accepted as a test of jurisdiction in India62.

12. Foreign Judgments

S. 13 C.C.P., which is mainly based on English law, provides for six
grounds of defence against the enforcement of a foreign judgment, but
the most important defence is that "it has not been pronounced by a
Court of competent jurisdiction." The other grounds of defence, e. g.
that the judgment was obtained by fraud, that the proceedings in the
foreign Court violated rules of natural justice etc., would indeed come
within the ambit of the first ground itself.
The competence of the foreign Court under the first head is judged
by rules of Private International Law. The section thus has permitted
judicial evolution of principles on the subject, on the basis of English
law. The well-known principles of effectiveness and submission have
been utilized to decide such competency of the foreign courts.

59 See Neelakanda v. Kunju, A.I.R. 1935 Mad. 545, were a suit was held
to lie against a non-resident to enforce a rental agreement made in India
regarding foreign property ; Sirdar Gurdyal Singh v. Rajah of Faridkote,
[1894] A.C. 670, L.R. 21 I.A. 171 (discussed before note 63 infra).
60 As for England, see Carrick v. Hancock (1895), 12 T.L.R. 599.
61 Go8wami v. Govardhanlalji (1890), 14 Bom. 541. See also Srinivasa
Moorthy v.Venkata Varada Aiyangar (1911), 34 Mad. 257 (P.C.).
62 See Alexandrovicz, International Law in India: (1952) 1 Int. Comp.
L. Quart. 289 - 300 at 299.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
276 L?NDEKBERICHTE: INDIEN RABELSZ

The classic judgment in this field is that of the Privy Concil in Sir
dar Gurdyal Singh v. Rajah of Faridkote63, where it was held that in a
"personal action" a decree pronounced in absentent by a foreign
Court, to the jurisdiction of which the defendant had not submitted,
is by International Law an "absolute nullity". It should be noted that
s. 20 C.C.P. authorizes Indian Courts to proceed against absent defen
dants, if the cause of action arose wholly or partly in India.
Before Independence, an exception to the rule of submission was
made in the case of judgments passed by English Courts against ab
sent defendants who were British Indian subjects64. The reason was
that the defendants owed allegiance to the Common Sovereign of
England and British India and were subject to the authority of the
British Parliament, which had authorized the English Courts to
exercise jurisdiction over non-residents in certain cases. It was natu
ral that Indian Courts should refuse to show such preference to Brit
ish judgments after the advent of Independence (/. G. Investment
Trust, Ltd. v. Rajah of Khalikote65).
The main deviation from English law has been on the question
whether nationality would suffice by itself to confer jurisdiction on a
foreign Court over a non-resident defendant. In Ramalinga v. Swami
natha66, the Madras High Court answered the question in the affirma
tive, though it cited mo authority for its decision. The view that na
tionality can be the basis of jurisdiction, is entirely repugnant to the
spirit of the common law. Moreover, there is no justification for giving a
wider jurisdiction to foreign Courts than is assumed by our Courts.
It is doubtful whether the above decision will find favour with the
Courts, if the question arises again67.
Under s. 13 C.C.P. a suit has to be brought on the foreign judg
ment for its enforcement in India. But direct enforcement of foreign
judgments is provided under s. 44A C.C.P., on a reciprocal basis with
the superior Courts in the United Kingdom and other Commonwealth
Countries68. The advantages of direct enforcement of a foreign judg
ment are, however, only procedural, as the defences under s. 13
C.C.P. are available here also.

13. Proof of Foreign Law

The law on the ascertainment of foreign law is more liberal than
in England. An English Court cannot take judicial notice of foreign
63 Note 59 supra.
64 See Moazzim Hossein Khan v. Raphael Robinson (1901), 28 Cal. 641.
65 A.I.R. 1952 Cal. 508, 524. ?? 194 Mad. 891.
67 See dicta in Vareed v. Gopalbai, A.I.R. 1954 T.C. 358 (F.B.), where the
Court approved the view of Alexandrovicz (note 62 supra) that three In
dian Courts have accepted the English rule that "nationality and allegiance
do not justify exercise of jurisdiction, though they are an important element
in Public International Law."
68 It is surprising that the section has not yet been amended to provide
for reciprocating territories outside the Commonwealth.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 277

law unless it is proved as a fact by expert evidence. Indian Courts,

however, can rely also on statements of law in an authorized law
report or text-book regarding foreign law under s. 38 of the Indian
Evidence Act, which provides that such text-books and reports are
"relevant". Presumably, therefore, an Indian Court has the discretion
to refer to such books and reports, even when parties do not prove the
foreign law69.

14. Contracts
Capacity to contract is governed by the lex domicilii under s. 11
of the Contract Act. The section would apply to mercantile contracts
also, as no exception is made in this respect. Thus it is opposed to the
modern trend of legal opinion, which favours the lex loci contrac
tas to determine the age of majority in cases of mercantile contracts70.
In other cases, the proper law of the contract is applied, as in Eng
land71, and Indian Courts have applied the usual presumptions in
ascertaining the intention of the parties. The recent Supreme Court
judgment in Delhi Cloth and General Mills Co., Ltd. v. Harnam Singh12
may well be considered the locus classicus on the subject. The ques
tion, in brief, was whether a debt due from the defendant to the plain
tiff, wich arose in Pakistan, was discharged by payment of the money
to the Custodian of Evacuee Property in Pakistan, under compulsion
of a Pakistan statute. The Court answered in the affirmative, as
Pakistan law was the "proper law of the contract". Bose J. in his
judgment breaks new ground by denouncing the fiction of implied
intention widely resorted to by Courts in ascertaining the proper law.
He endorses Cheshire's objective approach to the ascertainment of the
proper law.
15. Torts
On the question of torts, there seems to be only one decision, Go
vindan Nair v. Achutha Menon73. In this case the Durbar of Cochin
passed an order of excommunication against the plaintiff, for having
committed adultery with a highcaste woman. The order was passed
on the bare allegation of the woman, in the absence of the plaintiff,
and would be considered defamatory under Indian law. Pursuant to
the order, the plaintiff was barred from entering a temple of the
Cochin Durbar, situated in British Malabar. The plaintiff sued a Cochin
official, who had communicated the order to the manager of the

?? An English Court is precluded from doing so: Hartmann v. K?nig (1933),

50 T.L.R. 114. For a criticism of this decision, see Gutteridge, Comparative
Law2 (1949) 46 f.
70 See, however, T. N. S. Firm v. Muhammad Hussain (note 8 supra).
71 See State Aided Bank of Travancore, Ltd. v. Dhrit Bam, A.I.R. 1942
P.C. 6.
72 A.I.R. 1955 S.C. 590.
73 (1915), 39 Mad. 433.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
278 L?NDERBER1CHTE: INDIEN RABELSZ

temple for defamation. As the defendant resided in British India, the

Court had jurisdiction, but the alleged tort had been committed in a
foreign State (Cochin), as the defendant forwarded the order from his
Cochin office. The Madras High Court examined the English cases on
the subject74 and held, dismissing the plaintiff's suit, that "unless the
act is wrongful according to the law both of British India and of the
place where the act is committed, the suit will not lie." The propo
sition thus stated, is slightly different from the classic formulation of
English law by Wittes J., who held in Phillips v. Eyre 75 that the wrong
must be "actionable" in England, and "not justifiable" by the law
of the place where it was committed.

16. Limitation and Procedure

S. 11 of the Indian Limitation Act (IX of 1908) provides that "no
foreign rule of limitation shall be a defence to a suit instituted in India
on a contract entered into in a foreign country, unless the rule has
extinguished the contract and the parties are domiciled in such country
during the period prescribed by such rule." The familiar distinction
between matters of procedure and of substance is incorporated in this
section. But the requirement of domicile in the foreign country con
stitutes an undesirable deviation from English law.
On principle, the rule that the lex fori alone determines procedure
is observed in India also. The defences of discharge and set-off are
therefore not governed by the lex fori as they affect substantial rights7?.
Rules of evidence are governed solely by the lex fori, i. e. the Indian
Evidence Act. In Messa v. Messa 71, the defendant averred that under
Hebrew law - which was the lex successionis - a party in possession
of property, if he could cite two legal authorities in his favour, was
entitled to plead "Kimli," and that thereupon his title became in
defeasible. Beaumont C. J. held that this rule could not be applied in
India, as it was a rule of procedure78.

Conclusion
The above survey shows that Indian Private International Law
has hitherto in the main closely followed the English model. Yet the
desire that India should hereafter adopt some features of other foreign
systems of Private International Law, has been expressed by eminent

74 Notably The Mary Moxham (1876), 1 P.D. 107.

7* (1869), L.R. 4 Q.B. 225.
76 Cf. Murugesa Chetti v. Annamalai Chetti (1899), 23 Mad. 458.
77 [1938] Bom. 529. The testator in this case was a Jew domiciled in
Aden.
78 Messa v. Messa (preceding note) at 634.

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms
23 (1958) CONFLICT OF LAWS 279

judges79. Undoubtly a comparative study of various laws on this sub

ject would be of great value for the proper evolution of Indian Private
International Law. However, India should not, and is not likely to,
renounce the common law tradition, which has moulded Indian legal
thought for more than a century80.
The policy of non-interference in matters of personal laws, adopted
by the British Administration, has naturally been abandoned by the
Governments and Legislatures in Free India. That policy was not
only convenient for the alien r?gime, but also just and necessary under
the conditions of Indian society at that time. At the present time,
however, India cannot afford the wastefulness and multiplicity of
divergent personal laws. In fact, the Constitution of India itself stresses
the need for a common Civil Code for the entire population of India
(Art. 44).
Besides, the policy of the British Administration resulted in checking
the adaption of personal laws by custom to suit the needs of changing
times. No doubt, the judiciary in India played its part in the moulding
of personal laws to meet the requirements of an evolving society, but
with indifferent success, especially in the field of Interpersonal Law,
because of the very limitations of the judicial process. Only the Legis
lature can effect the urgently needed changes in law. It may be ex
pected that the efforts in this direction undertaken in the post-Inde
pendence era would simplify and unify personal laws in India, and
that a more homogeneous system of Indian Private Interpersonal Law
would in due course evolve.

79 See P. P. Rajamannar, The Future of Private International Law in India :

(1952) 1 Ind. . . of Int. Affairs 20-25. See also /. & G. Investment Trust,
Ltd. v. Rajah of Khalikote (note 65 supra) at 515 s., where Sinha J. expressed
the same view.
80 See Alexandrovicz (note 62 supra).

This content downloaded from

3.6.73.78 on Thu, 18 Jan 2024 03:03:26 +00:00
All use subject to https://about.jstor.org/terms