Private International Law
Comprehensive Study Notes
Units 1 – 4
Topics Covered:
Conflict of Laws • Characterization • Renvoi • Domicile • Family Law
Matrimonial Causes • Adoption • Foreign Judgments
UNIT 1: Foundations of Private International Law
1.1 Application and Subject Matter of Private International Law
Definition and Nature
Private International Law (PIL), also known as Conflict of Laws, is a branch of municipal law that
deals with cases having a 'foreign element' — i.e., where a legal dispute involves persons, events,
transactions, or property connected with more than one country.
Subject Matter
• Jurisdiction: Which court has authority to hear a dispute?
• Choice of Law: Which country's law applies to the substance of the dispute?
• Recognition & Enforcement: Will a judgment from one country be recognised or enforced in
another?
Application
PIL applies whenever a court encounters a foreign element, for example:
• A contract made in England to be performed in India
• A marriage solemnized in France by Indian nationals
• A tort committed in Germany affecting a party domiciled in the UK
NOTE: PIL is not a uniform international code; each country has its own PIL rules. It applies
domestically and guides courts on how to handle cross-border disputes.
Distinction between Private International Law and Public International Law
The following table highlights the key differences:
Basis Private International Law Public International Law
Parties Private individuals, companies, or Sovereign states and international
entities organisations
Nature Part of municipal (domestic) law A separate, supranational legal
system
Source Domestic statutes, case law, Treaties, conventions, customary
codifications international law
Subject Matter Cross-border contracts, torts, family War, diplomacy, human rights,
Basis Private International Law Public International Law
law, succession territorial boundaries
Enforcement Through national courts Through international tribunals (ICJ,
ICC, etc.)
Governing Court Domestic courts apply their own PIL International Court of Justice, arbitral
rules tribunals
1.2 Characterization and Theories of Characterization; Concept of Renvoi
Characterization (Classification / Qualification)
Characterization is the process by which a court determines the legal category into which a particular
issue falls, so as to identify the appropriate choice-of-law rule. It is the first and crucial step in any PIL
analysis.
For example, is a limitation period a matter of procedure (governed by lex fori) or substance
(governed by lex causae)?
Theories of Characterization
• Lex Fori Theory (Bartin's Theory)
◦ Characterization should be done according to the law of the forum (lex fori).
◦ Supported by: Bartin (France), Kahn (Germany).
◦ Criticism: Leads to different results depending on which court hears the case.
• Lex Causae Theory (Despagnet / Wolff)
◦ Characterization should be made by the law which is to govern the case (lex causae).
◦ Problem: Circular reasoning — you need to know the applicable law before you can
characterize.
• Comparative Law / Analytical Jurisprudence (Beckett / Rabel)
◦ Characterize by reference to general principles derived from comparative analysis of legal
systems.
◦ Aims at a universal and neutral standard.
◦ Adopted in modified form in some common law jurisdictions.
• English Approach
◦ English courts predominantly use lex fori for characterization, as confirmed in Ogden v Ogden
(1908) and Re Maldonado (1954).
◦ However, certain issues (e.g., validity of a foreign judgment) may call for reference to foreign
law.
NOTE: Leading Indian position: Indian courts follow lex fori for characterization, consistent with
Section 13 of the Civil Procedure Code, 1908 which governs foreign judgments.
Concept of Renvoi
Renvoi arises when the PIL rules of the forum (Country A) refer to the law of Country B, but Country
B's PIL rules either refer back to Country A (remission) or forward to Country C (transmission).
Types of Renvoi
• Single Renvoi (Remission): Country A refers to Country B; Country B's rules refer back to
Country A.
• Double Renvoi (Total Renvoi): Country A refers to Country B; Country B refers to Country C;
Country C then refers back to Country A.
• Foreign Court Theory (English approach in some cases): The forum court acts as if it were the
foreign court, adopting the foreign court's PIL rules entirely.
Renvoi — Arguments For and Against
• For Renvoi: Promotes uniformity; ensures same result regardless of which court hears the case;
respected in succession cases (e.g., Re Annesley [1926]).
• Against Renvoi: Conceptually circular; creates uncertainty; not workable if both countries accept
renvoi.
Renvoi in English Law
• Accepted in immovable property and succession cases: Re Annesley [1926], Re Ross [1930].
• Rejected in contract and tort.
• The position is not uniform; courts apply it selectively.
NOTE: The Hague Convention and many codified systems (e.g., EU Rome I & Rome II
Regulations) expressly exclude renvoi from their scope.
1.3 Application of Foreign Law and Domicile
Application of Foreign Law
When PIL rules direct a court to apply foreign law, the following principles apply:
• Foreign law is treated as a fact, not law, in common law countries — it must be pleaded and
proved by expert evidence.
• If not proved, courts generally apply lex fori as a default.
• Foreign law must be applied as it actually is, not as the forum court thinks it should be.
• If foreign law is contrary to public policy of the forum, it will be refused application.
Domicile
Domicile is the legal connection between a person and a legal system that governs personal matters
like marriage, divorce, succession, and legitimacy. It is a fundamental connecting factor in PIL.
Types of Domicile
• Domicile of Origin: Acquired at birth; follows the father's domicile for legitimate children, and the
mother's for illegitimate children. Revives automatically when a domicile of choice is abandoned
without acquiring a new one.
• Domicile of Choice: Acquired by a person of full age who resides in a country with the intention
of settling there permanently or indefinitely (animus manendi). Requires both physical presence
and intention.
• Domicile of Dependency: Applies to minors (follows father/mother) and, historically, to married
women (followed the husband's domicile — now largely abolished in England by the Domicile
and Matrimonial Proceedings Act 1973).
Indian Law on Domicile
• Section 15–20 of the Indian Succession Act, 1925 deal with domicile for succession purposes.
• No single codification; courts apply common law principles supplemented by statutes.
• Every person must have a domicile, and can have only one domicile at a time.
• An Indian citizen retains Indian domicile until a clear change of domicile is established.
English Law on Domicile
• Governed largely by case law and the Domicile and Matrimonial Proceedings Act 1973.
• A person cannot have more than one domicile at a time for the same legal purpose.
• Standard of proof for change of domicile is high: Udny v Udny (1869) — clear and unequivocal
intention to reside permanently required.
NOTE: Key difference: Indian law follows strict common law; English law has been partly
modernised by the 1973 Act, especially regarding women's domicile.
1.4 Jurisdiction of Courts
Concept of Jurisdiction in PIL
Jurisdiction refers to the authority of a court to hear and decide a case involving a foreign element.
PIL distinguishes between:
• Jurisdiction to adjudicate: Power of the court to hear the matter.
• Jurisdiction to prescribe: Power of a state to apply its law.
• Jurisdiction to enforce: Power to execute a judgment.
Bases of Jurisdiction — English Law
• Presence: Defendant physically present in England at the time of service of process.
• Submission: Defendant submits voluntarily to the court's jurisdiction (e.g., by entering an
appearance).
• Domicile: Under Brussels I Recast Regulation (EU), domicile of defendant governs.
• Contract: Jurisdiction clause or place of performance.
• Tort: Place of harmful event.
Bases of Jurisdiction — Indian Law
• Civil Procedure Code (CPC), 1908 — Sections 15–20 govern territorial jurisdiction.
• Section 20 CPC: Suits may be instituted where defendant resides, carries on business, or
where cause of action arises.
• Courts may also exercise jurisdiction based on the location of immovable property (Section 16
CPC).
Forum Non Conveniens
A court may decline jurisdiction if it determines that another court is more appropriate. The English
doctrine is laid down in Spiliada Maritime Corp v Cansulex Ltd [1987] — the test is whether there is
another more appropriate forum for the case.
UNIT 2: Family Law Matters in PIL
2.1 Material and Formal Validity of Marriage
Importance
The validity of a marriage may be questioned in PIL because a marriage solemnized in one country
may be challenged in another. PIL distinguishes between formal and material (essential) validity.
Formal Validity
Formal validity relates to the ceremony and procedure of the marriage — form, solemnization, and
registration.
• General Rule (English & Indian law): Formal validity is governed by the lex loci celebrationis
(law of the place of celebration).
• If the ceremony complies with the law of the place where it was performed, it is formally valid.
• English cases: Berthiaume v Dastous [1930] — marriage valid if compliant with local formalities.
Material (Essential) Validity
Material validity refers to the capacity of the parties, consent, prohibited degrees of relationship, and
similar substantive requirements.
• English rule: Capacity to marry is governed by the law of each party's antenuptial domicile (dual
domicile theory).
• Indian rule: The Hindu Marriage Act 1955 and Special Marriage Act 1954 apply to parties
governed by those statutes; capacity follows personal law or domicile.
• Consent: Must be genuine and free — absence of consent (e.g., duress) invalidates the
marriage in most systems.
• Prohibited degrees: Governed by the law of each party's domicile.
Exceptions to the General Rule
• If the marriage is contrary to public policy of the forum (e.g., polygamous marriages may not be
recognized in some jurisdictions).
• Evasion of law: Parties cannot evade their personal law by marrying abroad — Vervaeke v
Smith [1983].
NOTE: Under Indian law: The Hindu Marriage Act 1955 requires both parties to be Hindus, neither
a spouse, and meeting age and capacity requirements. The Special Marriage Act 1954 governs
inter-religion and civil marriages.
2.2 Choice of Law and Jurisdiction of Courts in Matrimonial Causes
Choice of Law
• Validity of marriage: Lex loci celebrationis for form; domicile for capacity.
• Divorce and nullity: Law of the domicile of the parties (traditionally).
• Maintenance and ancillary relief: Lex fori often applied.
Jurisdiction of Courts — English Law
• Domicile and Matrimonial Proceedings Act 1973: Courts have jurisdiction if either spouse is
domiciled in England at the start of proceedings, or has been habitually resident for one year.
• Habitual residence has largely replaced domicile as the dominant connecting factor in English
family law.
Jurisdiction of Courts — Indian Law
• Hindu Marriage Act 1955, Section 19: Jurisdiction lies with the District Court within whose local
limits the parties last resided together, or where the respondent resides, or where the petitioner
resides (if respondent is outside India).
• Special Marriage Act 1954 and other personal law statutes contain similar provisions.
2.3 Dissolution of Marriage — Divorce, Grounds, and Restitution of Conjugal
Rights
Divorce — Connecting Factors
• Traditional rule: Divorce governed by law of domicile — Le Mesurier v Le Mesurier [1895] (Privy
Council).
• Modern English rule (post-1973 Act): Jurisdiction based on domicile or habitual residence;
choice of law is generally lex fori.
• Indian rule: Jurisdiction based on last matrimonial home or respondent's residence; personal
law of parties applies to grounds.
Grounds of Divorce Under Indian Law
• Hindu Marriage Act, 1955 (as amended in 1976): Adultery, cruelty, desertion (2 years),
conversion, mental disorder, leprosy (now removed), venereal disease, renunciation,
presumption of death, mutual consent (Sec. 13-B).
• Special Marriage Act, 1954: Similar grounds applicable to civil marriages.
• Muslim Personal Law: Talaq, Khul, Mubarat, judicial divorce under Dissolution of Muslim
Marriages Act, 1939.
• Christian marriages: Indian Divorce Act, 1869 (amended 2001).
Grounds of Divorce Under English Law
• Divorce, Dissolution and Separation Act 2020: The sole ground is irretrievable breakdown of
marriage — no fault divorce is now the norm.
• Earlier law (Matrimonial Causes Act 1973): Five facts established irretrievable breakdown —
adultery, unreasonable behaviour, desertion, 2-year separation with consent, 5-year separation.
Restitution of Conjugal Rights
• A matrimonial remedy requiring the spouse who has withdrawn from matrimonial home without
reasonable excuse to return.
• Section 9, Hindu Marriage Act, 1955 — provides for restitution petition before District Court.
• Section 22, Special Marriage Act, 1954 — similar provision.
• Constitutional challenge: In T. Sareetha v T. Venkata Subbaiah (1983), the Andhra Pradesh
High Court struck down Section 9 as unconstitutional; this was reversed by the Supreme Court
in Saroj Rani v Sudarshan Kumar (1984) — upheld as constitutional.
• English law: Restitution of conjugal rights was abolished in England by the Matrimonial
Proceedings and Property Act 1970.
2.4 Recognition of Foreign Judgments in Matrimonial Causes
General Principle
A foreign matrimonial judgment (divorce, nullity, judicial separation) may be recognised if it meets the
PIL requirements of the recognising state.
English Law — Recognition
• Family Law Act 1986, Part II: A foreign divorce or legal separation is recognised if it was
obtained by judicial or other proceedings and either spouse was habitually resident, domiciled,
or a national of that country.
• Overseas divorces obtained without proceedings (bare talaq, etc.) are more complex — see
Quazi v Quazi [1980].
Indian Law — Recognition
• Section 13, CPC 1908: A foreign judgment is conclusive except on certain grounds (fraud, lack
of jurisdiction, violation of natural justice, opposed to public policy, inconsistent with prior Indian
judgment, on a claim founded on breach of Indian law).
• A foreign divorce judgment recognised if obtained from a court of competent jurisdiction in the
country where respondent was domiciled at the time.
UNIT 3: Adoption in Private International Law
3.1 Recognition of Foreign Adoptions
When Does Recognition Arise?
Recognition of a foreign adoption is required when a child adopted in one country seeks to establish
legal status in another — for inheritance, nationality, or welfare purposes.
English Law
• Adoption and Children Act 2002 and Adoption (Intercountry Aspects) Act 1999 govern
recognition in England.
• An overseas adoption (from a designated country) is automatically recognised if it satisfies
conditions under the Adoption (Designation of Overseas Adoptions) Order 1973 (now
superseded by the 2013 Order).
• A Hague Convention adoption is recognised if it complies with the Hague Convention on
Intercountry Adoption 1993.
Indian Law
• The Hindu Adoptions and Maintenance Act, 1956 (HAMA) governs adoption by Hindus in India.
• Non-Hindus and inter-country adoption are governed by the Juvenile Justice (Care and
Protection of Children) Act, 2015 and guidelines issued by CARA.
• A foreign adoption is recognised in India if it complies with Indian law and the law of the child's
country of origin, subject to the overriding consideration of the child's welfare.
NOTE: India ratified the Hague Convention on Intercountry Adoption in 2003, integrating its
principles into domestic law through CARA regulations.
3.2 Adoption by Foreign Parents — Legal Framework of International Adoption
International Framework
• Hague Convention on Protection of Children and Co-operation in Respect of Intercountry
Adoption, 1993: Establishes a system of co-operation between Central Authorities of contracting
states; aims to prevent child trafficking and ensure genuine child welfare.
• UN Convention on the Rights of the Child (UNCRC), 1989: Article 21 mandates that intercountry
adoption be considered only as a last resort after all domestic options are exhausted.
Process Under Indian Law
• Domestic adoption must be attempted first under the subsidiarity principle.
• Prospective Adoptive Parents (PAPs) from abroad must be registered with CARA (Central
Adoption Resource Authority).
• Home study reports, no-objection certificates, and court orders from both countries are required.
• After adoption, the child must receive exit permission and immigration clearance in the receiving
country.
Process Under English Law
• Intercountry adoptions must comply with the Intercountry Adoption (Hague Convention)
Regulations 2003.
• Prospective adopters must be assessed and approved by local authorities or voluntary adoption
agencies.
• Entry clearance is required from UK immigration authorities before bringing the child to the UK.
3.3 Jurisdiction Under Indian and English Law
Indian Jurisdiction
• The Juvenile Justice Act 2015 and CARA Regulations 2022 vest jurisdiction in the Child Welfare
Committees (CWCs) and District Courts.
• The court having jurisdiction is the court in the district where the child is residing or where the
prospective adoptive family is located.
• For inter-country adoption, the court order from India is required before the child can be taken
abroad.
English Jurisdiction
• The Family Court (and formerly the High Court) has jurisdiction to make adoption orders under
the Adoption and Children Act 2002.
• Jurisdiction may be exercised if the child is habitually resident in England and Wales.
• For Convention adoptions, the designated Central Authority (UK: the Department for Education)
oversees the process.
3.4 CARA and Foreign Adoption
Role of CARA
The Central Adoption Resource Authority (CARA) is the nodal body under the Ministry of Women and
Child Development, Government of India, that regulates and monitors all adoption matters in India.
Functions of CARA
• Maintains a national database of children legally free for adoption and prospective adoptive
parents (CARINGS portal).
• Issues No-Objection Certificates (NOCs) for inter-country adoption.
• Coordinates with Central Authorities of receiving countries.
• Accredits Foreign Adoption Agencies (FAAs) for facilitating adoptions.
• Monitors post-adoption follow-up reports.
CARA Regulations 2022
• Prioritize domestic adoption — inter-country adoption is a last resort.
• Prospective Foreign Adoptive Parents (PFAPs) must apply through their home country's Central
Authority.
• Children declared legally free for adoption can be placed with PFAPs only after a specified
waiting period for domestic adoption.
• Post-adoption, receiving countries must submit progress reports until the child turns 18.
NOTE: Landmark judgment: In Lakshmi Kant Pandey v Union of India (1984), the Supreme Court
laid down comprehensive guidelines for inter-country adoption, emphasising child welfare,
vigilance against trafficking, and the need for court supervision.
UNIT 4: Indian Law Relating to Foreign Judgments
4.1 Basis of Recognition and Recognition of Foreign Judgments
Why Recognise Foreign Judgments?
Recognition of foreign judgments promotes justice, avoids re-litigation, respects international comity,
and provides certainty in cross-border transactions. However, recognition is not automatic — it is
subject to conditions.
Theories Justifying Recognition
• Comity: Courts respect foreign judgments out of mutual courtesy between states — Story and
Huber's comity theory.
• Obligation Theory (Dicey): A foreign judgment creates an obligation on the judgment debtor to
pay. Courts enforce this obligation. Adopted in English law — Russell v Smyth (1842).
• Vested Rights Theory: Recognition of foreign rights that have vested under a foreign legal
system.
Section 13, Code of Civil Procedure 1908 — Core Provision
Section 13 CPC provides that a foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties — EXCEPT in the following cases:
• (a) Where it has not been pronounced by a Court of competent jurisdiction.
• (b) Where it has not been given on the merits of the case.
• (c) Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of India in cases in which such law is
applicable.
• (d) Where the proceedings in which the judgment was obtained are opposed to natural justice.
• (e) Where it has been obtained by fraud.
• (f) Where it sustains a claim founded on a breach of any law in force in India.
NOTE: Section 13 CPC applies to both execution and defence — a foreign judgment bars re-
litigation of the same matter in India if it doesn't fall within any of the exceptions.
Section 14 CPC — Presumption of Jurisdiction
The court shall presume, upon the production of any document purporting to be a certified copy of a
foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the
contrary appears on the record or is proved.
4.2 Finality, Failure of Foreign Judgments
Finality
For a foreign judgment to be conclusive under Indian law, it must be final and conclusive in the
country in which it was pronounced. A judgment is final when:
• It is not subject to any further appeal in the original jurisdiction.
• It conclusively determines the rights and obligations of the parties.
• Interlocutory orders and consent decrees may or may not be final depending on their nature.
Grounds of Failure (Non-Recognition) — Detailed Analysis
(a) Lack of Competent Jurisdiction
• The foreign court must have been competent — i.e., the defendant was present/domiciled,
submitted to jurisdiction, or there was a connection with the subject matter.
• Test: Would the Indian court treat the foreign court as having jurisdiction? Roshanlal Kuthalia v
R.B. Mohan Singh Oberoi (1975, SC).
(b) Judgment Not on Merits
• A default judgment passed without examining the merits may not be recognised.
• However, a consent decree or a judgment after undefended proceedings can be 'on merits'
depending on circumstances.
(c) Incorrect View of International Law / Refusal to Apply Indian Law
• If the foreign court should have applied Indian law (e.g., as lex causae) but refused to do so, the
judgment fails.
• Similarly, if the foreign court applied incorrect principles of international law.
(d) Opposed to Natural Justice
• If the defendant was not given notice or opportunity to be heard — principles of audi alteram
partem.
• If the proceedings were conducted in a manner violating basic procedural fairness.
(e) Fraud
• A judgment obtained by fraud on the foreign court or on the party can be refused recognition.
• The fraud must be in obtaining the judgment, not merely in the conduct that gave rise to the
litigation.
• Syed Hasan v Anwar Ali (Allahabad HC) — fraud vitiates even a final foreign judgment.
(f) Breach of Indian Law
• If the claim is founded on a breach of any law in force in India — e.g., a gambling debt (illegal
under Indian law) reduced to judgment abroad — it will not be enforced in India.
• This ground is akin to the public policy exception.
4.3 Direct Execution of Foreign Decrees
Distinction: Recognition vs. Enforcement
• Recognition: Treating the foreign judgment as conclusive and using it as a defence (res
judicata) against re-litigation.
• Enforcement / Execution: Actively executing the judgment through court machinery to recover
money or compel performance.
Reciprocating Territories — Section 44A CPC
Section 44A CPC allows the direct execution of decrees passed by superior courts of reciprocating
territories without a fresh suit:
• 'Reciprocating territory' is notified by the Central Government — includes UK, Singapore,
Malaysia, UAE, New Zealand, Hong Kong, and others.
• A certified copy of the decree is filed in the District Court; the court executes it as if it were its
own decree.
• Section 44A does NOT apply if: decree falls under any exception in Section 13 CPC; decree is
for taxes, penalties, or fine; or enforcement would be against public policy.
Non-Reciprocating Territories
• For countries not notified as reciprocating territories (e.g., USA, Canada, most of Europe), a
fresh suit must be filed in India.
• The foreign judgment can be used as evidence of a debt/obligation — creates a cause of action.
• The suit is based on the obligation created by the foreign judgment.
Process of Execution Under Section 44A CPC
• Step 1: Certified copy of the decree filed with the District Court of India.
• Step 2: Court verifies the decree is from a superior court of a reciprocating territory.
• Step 3: Court examines whether any Section 13 CPC exception applies.
• Step 4: If valid, the decree is executed in the same manner as a decree of that court.
Leading Case Law
• Satya v Teja Singh (1975, SC): Supreme Court held that even a foreign divorce decree could be
resisted if obtained by fraud on the court or by suppression of facts material to the jurisdictional
question.
• R. Viswanathan v Rukn-ul-Mulk Syed Abdul Wajid (1963, SC): Explained the scope of Section
13 and held that the foreign court's jurisdiction must be one recognised by Indian PIL.
• International Woollen Mills v Standard Wool (UK) Ltd (2001, SC): Clarified that Section 44A
applies only to money decrees and cannot be used for injunctions or declaratory decrees.
NOTE: Important: Section 44A CPC applies only to 'money decrees' and decrees for immovable
property situated in India. It does not apply to decrees for specific performance, injunctions, or
family matters unless separately provided by law.
End of Notes
Private International Law • All Four Units