Private International

Law
NATURE AND SCOPE
CLASS 2.1
 The term Private International Law (PIL) was coined by Joseph Story. This subject is also known
as Conflict of Laws.
 It consists of body of rules which determines whether local/foreign law is to be applied and if so,
which system of foreign law.
 It is a branch of legal service which is applied when two / more sets of legal systems are in conflict
with each other over a given issue. It is a set of procedural rules that determines which legal system
and which jurisdiction is to be applied to dispute.
 James Fawcett: PIL sets out procedural rules relevant to substantive law applicable to
 Relationship between parties
 Appropriate forum to resolve their disputes.
 Effect to be given to foreign judgment.
 Example:
 Question on succession to the property of X who died in India. He has properties both moveable and
immoveable in India and England. What are the laws to be applied?
 X files petition for maintenance u/S. 125 of CrPC in Indian Court. She is married to Y
who is domiciled in NY,USA.Y takes plea that the claim is not maintainable as the
marriage has been dissolved in a Court in NY.

 A obtains Money Decree against B in a Bangladeshi Court and files for execution of the
decree in an Indian Court. Is a foreign judgment maintainable in India?

 RMV Vellachi V RMA Ramanathan Chettiar (AIR 1973 Mad 141)

Respondent submitted that since he wasn't a Singaporean citizen he was not
bound by the foreign judgment. Appellant submitted that the respondent was a partner of a
firm doing business in Singapore and the said firm had instituted many suits in Singapore,
making it clear that the respondent had submitted to Singapore jurisdiction. Mad H.C.
Observed that it was the firm that had submitted to Singapore Court’s jurisdiction and not the
respondent in his personal capacity, making the judgement non-executable.
 X and Y who are Hindus got married as per Hindu rites in India. X filed for divorce in USA
as he resided there. Thereafter, X remarried after grant of divorce. Y, his wife in India files
complaint against X for bigamy in Indian Court. The question here is, has X committed
bigamy or is the foreign divorce decree valid.
[ Narashima Rao V Venkata Lakshmi (1991) 3 SCC 451 : In this case judgment rendered was
such that while in India it was a bigamous marriage, in USA it was a valid marriage.]
 Court is called upon to determine validity of marriage between Indian man and British
woman, who got married in France. Here if the issue is about capacity of the spouses, it
must be determined by Indian / UK laws while for requisite ceremonies Court must refer to
French laws.

In all the above examples, we can see that there is a foreign element. The domestic/ municipal
court ( India in our case), in such cases may have to determine the following:
  In what circumstances will the Court assume jurisdiction over cases having foreign
element(s).
 If the jurisdiction is established, then it needs to determined whether issue at hand is to be
resolved by applying Indian/appropriate foreign laws.
 Willthe court recognise or rather under what circumstances will the court recognise foreign
judgments, and order execution of foreign decrees.

 It is to be remembered that laws of one country can have no intrinsic force except the territorial
limits and jurisdiction of the country. It can only bind
 Its own subjects.
 Those within its jurisdiction as long as they reside within that jurisdiction.
 Boullenois observes that ‘ all laws made by a sovereign has no force/authority except within the
limits of his own domain. But necessity of public and general welfare has introduced some
exceptions, such as w.r.t. civil commerce.’
 So long as international relations are based on sovereign equality of nations municipal courts
are not bound to recognise or give effect to foreign law or decree. They will be strictly within
their rights to adjudicate every case, even those with foreign elements, in accordance with their
own domestic laws.
 But, since we live in era of globalisation, almost every country of the world decides cases with
foreign elements, with reference to foreign laws as well as accord recognition to foreign
judgments.
 It is also to be noted that there is no uniformity amongst the countries of the world as to
 Under which circumstances to assume jurisdiction over cases having foreign elements.
 In which cases foreign law is to be applied.
 In which cases foreign judgments are to be recognised.
 Thus PIL though having an international aspect, it is essentially municipal law as each country
has its own PIL. It is also to be remembered that even that PIL is branch of municipal law. It
doesn't deal with any one branch of law, it is concerned with every branch of law and has a very
wide ambit.
 It is also to be noted that sometimes even within a country laws are different. E.g. Though
Ontario and Quebec are provinces in Canada, their laws differ. Each province of USA follows
their own law and might be different from one another.
 Yet another aspect to be considered is that even within a country, different communities might
have different laws.. E.g. Different personal laws for Hindus Christians and Muslims. Bigamy
is permissible in Mohammedan law while a ground for divorce in Hindu law.
 As seen above, there occurs a ‘Conflict of Laws’ even within a country, bringing it under the
scope of PIL.
 Simply put PIL has application in 2 scenarios:
 When laws of 2/more countries with which the case is related differ from one another.
 Conflict arises between laws of the same country.
 Whenever a municipal court is called upon to adjudicate, it does so upon its own internal laws.
These internal laws can be classified into two categories:

 Internal laws (Indian Law) when no foreign elements are involved.

 When foreign elements are involved, the internal law which determines

 Territorial jurisdiction of Indian Court

 Adjudication using Indian/foreign law.
 It is this particular branch of internal law that is called as PIL.

 Thus PIL is a branch of internal law of each country as was observed in R Vishwanatha V R
Mulk Syed Abdul Wazid AIR 1963 SC 1 and in Sathya V Tej Singh AIR 1975 SC 105.
Key Cases

RMV Vellachi V RMA

Ramanathan Chettiar
(AIR 1973 Mad 141)
To grasp the concept of Jurisdiction as well as recognition of foreign
judgments.

Narashima Rao V
Venkata Lakshmi
(1991) 3 SCC 451 :

To understand the concept of recognition of Foreign judgments.

R Vishwanatha V R
Mulk Syed Abdul
Wazid AIR 1963 SC 1
and in Sathya V Tej
Singh AIR 1975 SC
105
observations that PIL is internal law of a nation