Private International Law

Contents
1. INTRODUCTION TO PRIVATE INTERNATIONAL LAW 3
a. Definition 3
b. Bases: comity, convenience and justice 3
c. Difference between Public International Law and Private International Law 4
d. Unification of Private International Law 4
e. Functions of Private International Law 5
2. General Principles : Successive Stages in a Conflict of Laws case 6
a. When a case comes before court- 6
b. Conflict of Connecting Factors- 6
c. Renvoi 7
d. Domicile: 10
e. Domicile and Matrimonial Proceeding Act, 1973 14
f. Domicile of Child- 14
3. Proof of foreign law- 20
a. Mode of proof- 20
b. Exclusion of Foreign Law 20
a. Revenue Laws 20
b. Penal Laws- 21
c. Instances where fundamental public policy infringed 22
4. Marriage and Matrimonial Causes 23
a. Polygamous Marriage- 23
b. English Matrimonial reliefs unavailable in the case of Polygamous Marriage- 24
c. Determination of law in deciding marriage in monogamous or polygamous- lex loci
celebraationis 24
d. Children of polygamous marriage would be regarded as legitimate 25
e. Validity of Marriage 26
f. Effect of Changes in lex loci celebrationis- 27
g. Lex loci celebrationis will be applicable even if the main objective of the parties was
to escape the local law. 27
h. Formal Validity- The principle of locus regit actum- 27
i. Exceptions to the locus regit actum rule 28
j. Essential validity- 28

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k. Foreign Marriage Act- 28

5. Adoption 31
l. Hague Convention on Inter Country Adoption + CRC 31
a. Juvenile Justice Rules of 2007 32
6. Tort in International Law 33
a. Substantive v Procedural law 33
b. Cross border tort disputes 33
1. Lex fori theory 33
2. Lex loci delicti theory 33
c. Maritime Tort- 34
d. Aerial Torts- 34
7. Property- 36
a. What law determines whether the property is movable or immovable- 36
b. Jurisdiction in the case of immovable property: The Mocambique Rule 36
c. Exceptions to the Mocambique rule 36
a. FIRST EXCEPTION: ACTION FOUNDED ON PERSONAL OBLIGATION. 36
b. Second Exception: Questions affecting foreign land incidentally arising in an english
action 37
c. Third Exception: Admiralty Jurisdiction in Trespass 37
d. Lex Situs governs- 38
e. Transfer of Tangible Movables- 38
f. The Assignment of Intangible movables- 39
8. Contracts 40

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PRIVATE INTERNATIONAL LAW

1. INTRODUCTION TO PRIVATE INTERNATIONAL LAW

Deals with Private international matters.

a. Definition
Private international law is that part of English law which comes into operation whenever the
court is faced with a claim that contains a foreign element. It is only when this element is
present that private international law has a function to perform. It has three main objects.
● First, to prescribe the conditions under which the court is competent to
entertain such a claim.
● Secondly, to determine for each class of case the particular municipal system
of law by reference to which the rights of the parties must be ascertained.
● Thirdly, to specify the circumstances in which (a) a foreign judgment can be
recognised as decisive of the question in dispute; and (b) the right vested in the
judgment creditor by a foreign judgment can be enforced by action in
England.

Conflict of Laws-
Conflict of laws, by virtue of its being essentially, though not wholly, judge-made, is part of
the common law of a country. The rules of conflict of laws, like any other branch of common
law, are subject to the constitution and the statutes of a country, besides obligations arising
out of treaties to which the said country is a party.

● Presence of a Foreign Element.

● Presence of a system of law that is different from what applies to one party to the
issue.
● Cannot isolate into water tight compartments, it has an effect on all branches of
Municipal law.
● It may come up in any kind of action, in cases involving any kind of law.
● It is applicable to a cross-section/variety of law.

b. Bases: comity, convenience and justice, practicality, necessity

i. Comity of Nations-

The doctrine of comity is the legal principle which dictates that a jurisdiction recognizes and
give effect to judicial decrees and decisions rendered in other jurisdictions' unless to do so
would offend its public policy. "Comity of nations" is very often found mentioned as a reason
for the recognition of foreign laws. This is misleading as comity or courtesy, is not a matter
for judges to adopt in deciding cases; it is a matter for sovereigns in their mutual intercourse.

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Comity is not compatible with judicial function. As Cheshire points out, the application of
foreign law implies no act of courtesy, no sacrifice of sovereignty. It merely derives from a
desire to do justice.

ii. Justice-
Almost every country in the modern world has its own system of municipal law and it greatly
differs from other systems in the rules by which the legal relations arising in daily life are
regulated. Under this circumstance, the invariable and inflexible application of the lex fori in
all cases would lead to gross injustice.

It is clear that no court can do justice if it refuses absolutely to recognise the existence of a
foreign law or of any rights acquired under that law or denies validity to normal foreign
judgments. Therefore, foreign law is recognised and applied in such cases, for rendering
justice.

iii. Convenience-

English courts cannot refuse to adjudicate cases simply because the claims are foreign in
nature. It is not necessary that the transaction should have taken place in England in order to
invoke the jurisdiction of the English Court. Nor is it necessary that the parties should be
domiciled or resident in England. In other words, the English Courts have to entertain claims
of a foreign nature and having thus been committed to this policy, it must, in the nature of
things, take into account the relevant foreign laws. Otherwise, the court will not be able to
decide the rights of parties properly. So, foreign laws are recognised to enable the court to
adjudicate upon the rights of parties effectively.

c. Difference between Public International Law and Private International Law

[Link]. Public International Law Private International Law

1. Common to all Nations Different for each country
2. Law between states which regulates Part of Municipal law of each state like the
the intercourse of Sovereign States. Law of contracts, torts etc.
3. Need not to be a part of Municipal Absolutely need to be part of the
Law of the country. municipal law of the country.
4. State has been the main subject of Disputes among the individuals residing in
public international law different jurisdictions has been the main
focus.

d. Unification of Private International Law

There are two modes for unification of private international law:

i) Unification of the internal laws of the countries of the world, and
ii) Unification of the rules of private international law

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e. Functions of Private International Law

The functions of Private International Law are threefold namely-

(a) Jurisdiction
To prescribe the conditions under which the court is competent to entertain a suit containing a
foreign element;
Specific court and statutes that deal with the jurisdiction.

(b) Choice of Law:

To choose the relevant foreign law by the application of which the rights of parties are to be
determined, for ensuring justice in the case.

(c) Recognition and Enforcement of Foreign Judgments:

To specify the circumstances under which a foreign judgment can be accepted to decide the
question in dispute and to indicate when a foreign judgment can be allowed to be executed in
this country. Rules regarding recognition and enforcement of foreign judgements.

English Private Law-

Each country has its own principles of PIL.

Each country has to go by its own system.
Private International Law is not concerned with criminal law.

a. Lex Causae- Law that governs the dispute

b. Lex Domicilii- Law in force where the person is domiciled
c. Lex Forii- Law of the forum/Law in Force of the court that is hearing the dispute.
d. Lex Loci Celebrationis- The law of the place where marriage is performed or contract
taken place.
e. Lex Locii Contractus- Law of the place where a contract is made.
f. Lex Loci Delicti- The law of the place where tort is taken place
g. Lex Monetare-Law of the country whose currency debt or monetary consideration is
taking place.
h. Lex Loci Actus- Law of the place where the Act was done.
i. Lex Patriae- Law of the place of Nationality of the person
j. Lex Situs- Law of the place where Property is situated.
k. Lex Loci Solutionis- Law of the place where the contract is to be performed.
l. Propositus- Person whose rights and obligations are being considered.

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2. General Principles: Successive Stages in a Conflict of Laws case

a. When a case comes before court-

a. Determine the Jurisdiction.
Whether the court has a jurisdiction to hear the court. Whether there is a presence of
foreign elements so it falls under Private International Law.

b. Classification of Cause of Action-

If it's a criminal law matter, principles of PIL would not apply. If it's a civil law
matter, principles of PIL would apply. Further classify the dispute into a header like
contract, tort, succession or matrimonial issue.
The next step is to classify the cause of action and place it in the appropriate legal
category. The court has to determine whether the cause of action comes within the
category of contracts, torts, succession or matrimonial cause etc. This is an essential
step because unless the classification is made, it will not be possible to apply the
relevant rule of Private International Law for the choice of law.

c. Choose the appropriate foreign law- (Lex Causae)

The selection is made by the choice of law rule under PIL. After the cause of action is
classified, the further step is to choose the appropriate foreign law or to select the lex
causae. The selection is made as indicated by the choice of Law rule of Private
International Law. There can be number of different foreign element and the court has
to decide which law should be chosen to ensure justice.

d. Application of Lex Causae-

The last step is to decide the case by applying the chosen law.

A man takes a ticket in London for railway journey from London to Glasgow in Scotland.
(English Private International Law regards Scottish Law as a foreign system of Law). He is
injured in train collision which occurs in Scotland. In a suit for compensation, how will you
classify the cause of action? Is it a breach of contract or the commission of Tort? If breach of
contract, English Law would be applied as the proper law of contract; if tort, both English
and Scottish law would become applicable. So the judge has to decide.

b. Conflict of Connecting Factors-

What's the law you apply when there are two or more laws? The choice of law will depend on
the Connecting factor.

a. Domicill
b. Situation of Property
c. Place of Celebration of Marriage, etc.

Even if the connecting factor remains the same, the meaning given to the connecting factor
may be different in two distinct legal systems.

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Example-
When a man of West German nationality domiciled in Russia dies leaving movable properties
in England, the decisive connecting factor in English Private International Law is domicile
but in the eye of Italian private International Law, it is nationality.
Even when the connecting factor is the same, the meaning given to the connecting factor may
be different in two legal systems. For example, in the above case, let us suppose that German
and English Law agree on the connecting factor i.e. domicile.
When you go to the next step and try to ascertain the place of domicile you will find that the
English and German conceptions of domicili are diametrically opposite. Consequently, the
place of domicile according to English Law may be Russia, but according to German Law it
may be some other country. When a conflict like this arises, it is necessary to decide which of
the differing conceptions about the connecting factor should be accepted.

According to English Private International Law the English judge looks exclusively to the
meaning given by English Law and the interpretation given by lex fori prevails.

Procedural rules: Lex fori governs: Ogden v. Ogden-

It must be clearly understood that in cases containing a foreign element, although the relevant
foreign law is selected and applied, it does not mean that all questions arising for decision are
exclusively determined by the lex causae.

A procedural rule of the foreign law will not be recognised by English Court, if it is at
variance with the English rule. In other words, a procedural rule is outside the control of lex
causae. Consequently, it is very important to determine whether a particular rule is a rule of
procedural law or, a rule of substantive law.

To complicate matters, sometimes there may be conflict between the lex fori and the lex
causae on this question of classification; lex fori may classify the rule as procedural, whereas
the lex causae may classify it as substantive. The further question naturally arises as to which
classification must be adopted by judge.

Case- Ogden v. Ogden-(1904-7) (All [Link] 86).

A 19-year-old man domiciled in France, married a woman domiciled in England without

obtaining parental consent as required by article 148 of the French Code. (The rule in article
148 provided: "The son who has not reached the age of twenty-five cannot contract a
marriage without the consent of his father or mother"). After sometime the husband obtained
a decree of annulment of marriage from a French Court holding the marriage void for the
violation of Article 148. Subsequently the woman married an English man in England. This
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English man after some time instituted the present action in an English Court praying for a
decree of nullity of his marriage on the ground that at the time of marriage, the woman was
married to the French man.

The question raised was the validity of the marriage with the French man in violation of the
requirement of parental consent. The Court classified the rule of parental consent as one
relating to formality or procedure. As the marriage took place in England, the formal validity
is governed by English law and French procedural rules are inapplicable. Hence the court
ignored the French rule of parental consent and held the marriage with the French man valid
with the result that the subsequent marriage with the English man was void. This
classification of the French rule of parental consent as a matter relating to ceremony rather
than substance, has been subject to severe criticism. It has been pointed out that the rule of
parental consent is one which affects the capacity of the husband to enter into the marriage
relationship and therefore is a matter relating to substantial validity.

c. Renvoi

(1) Renvoi arises in the application of the lex causae.

(2) Renvoi arises because of different senses in which lex causae could be interpreted.
(3) And renvoi arises because of the existence of different systems of Private International
Law with different choices of law rules.

When any conflict occurs, which is considered to have law of another state the Doctrine of
Renvoi is applied in the court. It is the process by which a court adopts rules of a foreign
jurisdiction with any conflict of law. It prevents forum shopping (having case heard where its
likely to be favourable) and the same law is used for cases regardless of what the case
actually is.

Example-

X' a British subject, domiciled in Italy, dies intestate leaving movable properties in England
and an English Court is required to decide as to how the movables are to be distributed. There
are three connecting factors in this case: (1) nationality, (2) domicile and (3) the place where
the movables are situated. According to English Private International Law the decisive
connecting factor is the place of domicili and hence the law to be chosen is the lex domicile
of the deceased at the time of his death i.e., the Italian Law.

The judge has to apply the law of Italy. Here the difficulty is to determine the sense in which
the lex causae or Italian law should be understood. "Law of Italy" can be taken in two senses:

(i) Law of Italy in the narrow sense of international law, that is that part of the Italian
Code which deals with intestate succession to movable properties;

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(ii) Law of Italy in the broader sense of the whole Italian law including Italian Private
International Law.

According to Italian Private International Law intestate succession to movable properties is

governed by the lex patriae (Law of nationality); in this case, English Law.

The matter is referred back to English law. The result therefore, that English Private
International Law refers the question of succession to movables to Italian law, as the lex
domicili and the Italian Private International Law refers the question back to English law, as
the lex patriae.

This reference back is called Renvoi (Renvoi means remission). If the remission back is
accepted, or English law is applied by the judge, in the above illustration it is called simple
renvoi or single renvoi or partial renvoi.

Types of Renvoi-

a. Simple/Single/Partial Renvoi- Renvoi by remission

Renvoi by transmission- 3

This system refers to laws which are chosen from others’ jurisdictions. In their
jurisdiction where the matter arises in Place A, those authorities will consider whether
their own domestic law is the applicable law otherwise if it is applicable in
Jurisdiction B its rules will be then applied to bring it back to Place A the court will
accept the reduction and apply its own domestic laws.

Forgo’s Case-
Forgo, a Bavarian national domiciled in France, died intestate in France leaving
movable properties there. The French Court had to decide how the movable properties
were to be distributed. According to French Private International Law, the law to be
applied was the lex patriae, i.e., law of nationality namely the Bavarian law. Bavarian
law, in what sense? Bavarian law was taken in the wide sense of the whole law of
Bavaria including Bavarian Private International Law. (Forgo was illegitimate and
under French law, collaterals would not succeed to his movable properties and so the
properties would pass on to the French Government, but under Bavarian law,
collaterals could succeed to the properties). According to Bavarian Private
International Law succession to movables was governed by the lex domicili. So, the
Bavarian law referred the question back to the French law. This reference was

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accepted by the French Court and the French Law of succession was applied, thus
depriving the right of succession to Forgo's collateral relatives.

Simple renvoi may arise by two methods: by remission and by transmission". When
as in the above case of Forgo, only two legal systems are involved - private
international law of country "A" referring the question to be decided to the law of
country "B" and the Private International law of that Country referring the question
back to the law of the country "A"- the renvoi is by remission:

Sometimes, the private international law of the legal system to which the reference is
made may remit the question to the law of third country. This is renvoi by
transmission A refers to B. B refers to C.

b. Double Renvoi/Foreign Court Theory

Where the court of Place A applies the law that the court of Place B would apply if the
matter came before it. This system uses two or more remissions. This is also known
by the names of "Total renvoi" or English doctrine of renvoi or the foreign court
theory. According to this theory, an English judge who is referred by his own law to a
foreign system of law, should apply whatever law a Court in that foreign country
would have applied if that Court were seized of the matter. The English judge is
required to make an imaginary journey to the foreign land and sit in the Court of that
country.

"X" A British subject domiciled in Belgium, dies intestate in Belgium leaving assets
in England, English Court has to decide as to how the assets are to be distributed. This
theory requires the English judge to imagine that he is sitting in a Belgian Court and
decide the case as would be decided by the Belgian Court. Now what would be done
by the Belgian judge if the case were to come before him? He will apply the choice of
law rule of Belgian Private International Law and find that this question of succession
is to be decided by lex patriae, i.e. English law, He examines the English law
including private International Law and finds that English Private International Law
refers the question back to Belgian law as lex domicili. Belgian law does not

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recognise partial renvoi and the reference back will not be accepted. So, the Belgian
judge will apply the internal law of England in distributing the assets.

The English judge should consider himself sitting in the Belgian Court under the
particular circumstances of the case. To put it differently, when the court is referred by
the choice of law rule to a foreign law, it should apply the foreign law as the foreign
court would administer it. The reference to the law of a country should be regarded as
not simply as to the whole law of that country, but to the law which the courts of that
country would apply had the case arisen there. Thus, the renvoi is total or double. One
important aspect of this foreign court theory is that the decision of the English judge
will depend upon the question whether the doctrine of partial renvoi is recognised by
the particular foreign law to which he is referred.

c. No Renvoi
Countries like the United States, Denmark, Greece do not accept Renvoi at all.

d. Internal Law Theory

The judge should straight away apply Internal Law related to the case instead of the
private international law of that country.
For Example- An English judge should directly apply the law related to Succession in
the foreign country (Belgium) instead of first applying the private international theory.

Procedure for its application

Applied in validity of wills and intestate succession such as Transfer of property and
retrospective legitimacy of marriage of natural parents i.e., validity of divorce decree.

When English Private International Law refers the issue to be decided to a foreign law, in
what sense the reference should be taken?

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Case laws:
● In re Ross (where the judge applied the Italian law with respect to the immovable
property situated in Italy because Italy does not accept the Renvoi based issue in
accordance with English law) Janet Anne-Ross, a British subject domiciled in Italy
died in Italy leaving movable properties in England. She had left a will distributing
her properties both in England and Italy by which nothing was given to her only son.
According to the Italian law, the son was entitled to a share of her properties as the
legitimo-portio. A suit was brought in England on the basis of the above Italian rule.
English Private International Law refers the question of succession to movables to the
Law of domicile i.e. the Italian Law. The English judge applied the foreign court
theory and found that he should decide the case according to Italian law as it would be
administrated in an Italian Court. What would be done by an Italian court if the case
were to come before it? Italian Private International Law provides that succession to
movables must be decided by the law of nationality, that is English law in this case.
When the Italian Judge refers to English law he finds that by English law he is
referred back to Italian law, Italian law rejects the theory of partial renvoi and hence
the reference back will not be accepted and English law will be applied. On this
premise the English judge applied English Internal law by which the will was valid
and thus disallowed the claim of the plaintiff.

● Boys v. Chaplin
The plaintiff, a passenger on a motorcycle, was injured through the negligence of the
defendant whose car had hit the motorcycle. The plaintiff and defendant were British
soldiers stationed in Malta. David Boys were run into by a motor car driven by
Richard Chaplin. He was serving in the Royal Naval Air Squadron and was also
stationed in Malta at the time. David Boys was badly injured. He had a fractured skull
and was unconscious for three days. The right side of his face was crushed. He was
taken to the Royal Naval Hospital in Malta. He was there for about six weeks. Then
he was brought back to England on 19 September 1963, and taken to the Royal Air
Force Hospital at Wroughton in Wiltshire. Eventually on 5 June 1964, owing to his
injuries, he was discharged from the Royal Air Force. He is wholly and permanently
deaf in one ear and his sense of balance has been substantially impaired. The right
side of his face is partially paralysed and he suffers much from headaches.
Nevertheless, he is able to do good work. Soon after his discharge he found

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employment as electronics engineer at a good wage: and it is unlikely that he will

suffer any loss of earnings in the future on account of this accident.
The driver of the car, Richard Chaplin, is also back in England. He is stationed at
Culrose in Cornwall. In August 1965 David Boys was given legal aid to sue Richard
Chaplin and he issued a writ claiming damages
At first Chaplin denied negligence, but later it was admitted. the only question is:
What damages should be awarded? We were told that both vehicles are fully insured
against liability for damages, whatever sum is awarded, being both insured with the
same Insurance Company, an English Company.

Now the question arises: What is the law to be applied in the assessment of damages?
According to the law of England, David Boys should be compensated, not only for his
expenses and money loss, but also for his pain and suffering and loss of amenities of
life. The figure would be 2,303. But, according to the law of Malta (as found by the
Judge). David Boys should only receive his expenses and his money loss, and nothing
whatever for his pain and suffering and loss of amenities. The figure would be 55.

The Judge held that the damages should be assessed according to the law of England,
and he awarded the plaintiff 2,303. The defendant appeals to this Court, claiming that
the matter is governed to the law of Maita and that the plaintiff should recover only
53.
The court held that the law of malta would prevail.

● Brokaw v Seatrain
Goods said to be household effects were shipped in a United States ship from
Baltimore in the United States to London via Southampton. While the ship was on
the high seas the United States Treasury served a notice of levy in respect of
unpaid tax on the shipowners in the United States demanding the surrender of
all property in their possession belonging to two United States taxpayers. When
the ship docked at Southampton the United States Government claimed possession
of the goods by virtue of the notice of levy. The plaintiffs ultimate
consignees of the goods, brought an action in detinue against the defendant
shipowners for the return of the goods and damages for their detention. On the
shipowners' inter-pleader summons bringing in the Government of the United

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States as claimants, the master ordered that the claimants be barred from the
claim. The US Government can not claim it.
Held, dismissing the appeal, that since the service of the notice of levy on
the shipowners in the United States had not been sufficient to reduce the goods
into the actual possession of the claimants, their claim fell within the
prohibition of English law on the enforcement of the revenue law of another
country and accordingly failed

Procedure-
● The court at first place must decide whether it has the jurisdiction to hear the given
case which includes addressing the questions of whether the plaintiff is attempting to
manipulate the judicial system by forum shopping.
● Next step is characterisation, which is the court analysis of cases as pleaded and
allocated components to its appropriate classification which has one or more choice of
law.
● The court will thereafter apply the choice of law rules. In certain issues like family
law, incidental questions emerge complicating the process.

Case laws relating to jurisdiction

● Machado v Fontes

The court held that the double actionability test could be relaxed to the extent that it
was sufficient if the act was wrongful in the country where it was committed, even
though any damage would not have been actionable in civil proceedings there.

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d. Domicile:

Personal Law’s-
Law’s relating to personal freedom of individual example, succession, wills, marriage,
divorce, etc.

- Connection of an individual to one territory subjected to a single law

- Individual subjected to different legal system
- Governs an individual’s personal laws (succession, wills, marriage, divorce, etc)
- Domicile is a permanent home of an individual
- Person settles down in a territory with the intention of making it his permanent home
- Domicile and nationality may be same if the individual permanently resides in the country
of nationality
· Domicile acts as a connecting factor for various legal systems
· Domicile can be used for assumption of jurisdiction or for recognition and assumption of a
foreign court's jurisdiction
· Domicile determines an individual's right to vote, his right to hold public office, his liability
to various forms of taxation and other welfare rights
· Necessary to regulate legal relationships

Note: Mere intention to abandon or mere residence in another country is not enough for
abandonment of domicile of choice. Thus, the domicile of choice is abandoned when a person
gives up residing in the country of the domicile of choice and he has no intention to reside
there indefinitely.

Types of Domiciles:
a. Domicile of origin (DOO):
- If a child is born legitimately then he acquires the domicile of the father.
- But if a child is illegitimate, then he acquires the domicile of the mother.
- DOO is involuntary i.e. individual does not have choice of origin
- Case Laws
● Central Bank of India v Ram Narain
● Sondur Gopal v Sondur Rajini

b. Domicile of choice (DOC):

The acquisition of a domicile of choice requires an intention by the propositus to remain

permanently in the territory in which he resides. This is not difficult to understand if the word
permanent is used in its correct sense as signifying the opposite of “temporary”. According to
the Shorter Oxford English Dictionary it means “lasting or designed to last indefinitely
without change”, and this indeed is the definition that most of the judges have recognised

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when required to consider the nature of the intention necessary for a change of domicile. In
Udny v Udny, for instance, Lord Westbury described the intention as being one to reside “for
an unlimited time”. A more modern statement to the same effect is that of Baroness Hale who
referred to an intention to reside “permanently or indefinitely”

- Every individual person can acquire a DOC with the intention to permanently reside in any
territory other than his DOO
- Any circumstances, which evidence of a person’s residence, or intention to reside there
permanently or indefinitely, must be taken into consideration to determine whether he has
acquired a DOC
- DOC = Physical residence + Intention to reside
- Chandigarh Housing Board v Gurmeet Singh

c. Domicile of dependence
In past three classes of dependent persons-
a. Infants
b. Lunatics
c. Married women

Domicile of dependents

Married women, minors and mentally deficient persons were regarded as incapable of
acquiring a domicile on their own, and their domicile followed that of the person they were
regarded as being dependent on.

A. Domicile of Married Women:

Under English common law, the domicile of a married woman was the same as and changed
with the domicile of her husband. This rule was considered as absolute admitting of no
exceptions, whatever are the circumstances. Historically it was based upon the ancient maxim
of the common law that husband and wife was one and the same person in the eye of the law.
Case laws relating to marriage disputes with respect to domicile:
● Ogden v Ogden
● Parwatawwa v Chanawwa
● Satya v Teja Singh
● Neeraja Saraph v Jayant Saraph
● Lakshmi Sanyal v SK Dhar
● Simonin v Mallac
● Madhulika Sameer Azad v Sameer Mohan Azad
● ​Deepu Dev v State of Kerala
● Najma Sirajudeen Musliyar v Registrar General of Marriages

B. Domicile of Legitimate Children in India:

At common law, where legitimating by subsequent marriage was effective, a legitimated
child is to be treated as if it was legitimate. The rule of legitimating by subsequent marriage is

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unknown in Indian law, through Muslims can acknowledge that an illegitimate child is
legitimate; this can however, be only done if it is uncertain whether the parties were married,
and not if it is established that they were not

C. Domicile of Illegitimate Children:

In India, the domicile of an illegitimate child was that of his mother.
Case law: Re Bischoffsheim

D. Domicile of mentally Deficient persons:

Retains the domicile he had before he began to be legally treated as insane, if he was born
mentally retarded, or becomes retarded when child, he is to be treated as a dependent child.
No Indian decisions on the subject (though S.8 of the Indian Succession Act 1925 provides
that a lunatic cannot acquire a domicile independently)

E. Domicile of Adopted child:

No English authority on this question. It has been suggested by Dicey that the domicile of an
adopted infant is the same and change with the domicile of the adopting parents. Because on
adoption, the legal consequences of the natural relationship of the parent and child are
extinguished and re- established as between the adopter and child. In Indian law, there is
Madras High Court decision that the domicile of the adopted child is the domicile of the
adopting parent.

Doctrine of Revival:
If the domicile of origin is displaced as a result of the acquisition of a domicile of choice, the
rule of English law is that it is merely placed in abeyance for the time being. It remains in the
background ever ready to revive and to fasten upon the propositus immediately he abandons
his domicile of choice.

Nobody can be without a domicile, so the revival of the domicile of origin could be
considered to be the most logical approach given the endurance and tenacity of a domicile of
origin. This rule creates certainty where a propositus has abandoned a domicile of choice and
failed to create a new intention to reside permanently elsewhere. However, this approach has
been criticised, as revival of the domicile of origin can be artificial where the link between
this state and the propositus is negligible.

When a person moves from his DOC to any other country, then he loses his domicile of
choice and revives his DOO.
(ex: a person whose DOO is England has moved to France with an intention to stay there and
acquires a DOC of France. He then decides to move to Spain for a year. At such time, he
loses his DOC of France and hence he revives his DOO of England)

Characteristics of Domicile:
- Every person always has a domicile
- DOO continues as long as a new DOC is acquired, or when it is lost.
- Individual cannot have more than one domicile

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- Individual will have only one DOO but can have multiple DOC

General principles of Domicile (As per Indian and English private international law)
i. No person can be without a domicile
This rule is based upon the practical necessity of connecting every person with some legal
system by which questions affecting his family relations and family properties are to be
determined.
Udny vs. Udny (1869): no man shall be without a domicile, and secure this result the law
attributes to every individual as soon as he is born, the domicile of his father, if the child is
legitimate and the domicile of mother if illegitimate this has been called the domicile of
origin and is involuntary. Domicile of origin prevails until a new domicile has been acquired.
But the moment a person loses his acquired domicile his acquired domicile, the domicile of
origin springs back to him
ii. No person can at the same time have more than one domicile
Though dual citizenship is permitted by several countries. Main object is to connect a person
with a definite legal system. Domicile signifies connection with a territorial subject to a
single legal system of law. Like a federal state where the legislative authority is distributed
between central and state legislatures, the law district is, generally the state where the
concerned person has established his home.
iii. An existing domicile is presumed to continue until it is proved that a new domicile
has been acquired
An existing domicile is presumed to continue until it is proved that new domicile has been
acquired. Hence the burden of proving a change of domicile lies invariable on those who
allege that a change has occurred. If the evidence adduced is conflicting or is not convincing,
then court has to decide in favour of existing domicile
iv. Domicile denotes the connection of a person with a territorial system of law.
Otherwise, domicile is determined according to English law
In a case involving foreign element, the question as to where a person is domiciled is to be
determined according to English concept of domicile and not according to foreign concept. In
other words, for the purpose of English Private International Law, domicile means domicile
in English sense. Thus, in the eye of English law, a person domicile in England may acquire a
domicile of choice in Frances if he satisfies the English rules, although he may fail to satisfy
the French rules.

e. Domicile and Matrimonial Proceeding Act, 1973

Previously domicile of married women would be the same as that of her husband.
This act provides that the domicile of a married woman at any time on or after January 1st
1974 shall instead of being the same as her husband's by virtue only of marriage, be
ascertained with reference to the same factors as in the case of any other individual capable of
having an independent domicil.

The married woman retains her own domicile and is capable of acquiring a fresh domicile
independent of that of her husband during the subsistence of the marriage.

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Puttick v. A G(1979) 3 All E.R. 463,

The petitioner, a German national woman with a German domicile of origin, was arrested in
Germany and charged with a number of serious offences there. While on bail, she absconded
and using an illegally obtained passport of another German national, came to England and
married an English man in 1975.
The question before the Court was whether she had acquired an English domicile. It was held
that the rule of unity of domicile of husband and wife had been abolished by the Domicile
and Matrimonial Proceedings Act, 1973 and that therefore, she did not acquire a domicile in
England.
The Court further held that she did not and could not acquire a domicile of choice in England
as she was staying in England to avoid trial in Germany and not to set up a permanent home.
The illegal entry and residence, according to the court, barred her from acquiring an English
domicile of choice. In other words, after January 1st 1974, there is no distinction between a
married woman and a married man as regards the acquisition and loss of domicile.

f. Domicile of Child-

The domicile of dependence changes as the parent acquires a new domicile. As between a
living father and his legitimate child there is a necessary unity of domicile, even though they
may be residing in different countries. This is often expressed as an absolute rule, so that the
unity cannot be disrupted by the will of the father. For example if the father purports to create
a different domicile for his minor son by setting him up in business in a foreign country, this
act is incapable of creating a new domicile for the son, although the father desires it. This rule
of unity of domicile was retained even in cases where the parents were separated and were in
different countries, the child living with the mother. In such cases the minor's domicile of
dependence changes with the changes in his father's domicile creating a lot of hardships.

According to the Act where the parents are alive, but living separate, the child's domicile will
be that of the mother if the child has its home with the mother and no home with the father.
But the child loses the mother's domicile, if the child changes home and lives with the father.
On doing so, the child again gets the domicil of the father. It is to be particularly noted that
this statutory provision only relates to the domicile of dependence and does not affect the
domicile of origin of the child.

Case- Sondur Gopal v. Sondur Rajini- SC judgement-

This judgement is for the maintainability of case of custody and separation in India. The facts
were- the husband and wife got married following Hindu rituals, under the Hindu Marriage
Act. The husband left for Sweden after a few days and the wife followed, they had a child in
Sweden, and they acquired Swedish citizenship. Husband’s job required him to come to
India, his wife followed, they lived there for 2 years.

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After that, the husband got a job in Sydney, Australia, and the wife followed him with their
child on sponsorship visa for 4 years, where they had another child. While they were in
Australia, the husband sold his house is Sweden. This could be considered as the husband’s
intention to do away with the Sweden domicile. Husband loses his job, his visa expires and so
the family moved to Sweden and lived in a leased house, wherein the husband had no job.
Subsequently, the husband gets a job in Sydney, the wife and children follow, the wife and
children come back to India on a tourism visa and then the wife tells her husband that she
does not wish to return to Sydney.

Hindu Marriage Act 1955 is the applicable legislation, Section 1(2) mentions- It extends to
the whole of India except the State of Jammu and Kashmir and applies also to Hindus
domiciled in the territories to which this Act extends who are outside the said territories. This
points towards the extra-territorial jurisdiction of this act.

The court had to decide that when the wife moved back to India, whether the court has
jurisdiction to entertain the case. Jurisdiction is the first issue that needs to be decided.
Husband said he is a Swedish citizen and he moved to Australia, the SC of India held that the
wife had moved back to India. Even if the husband had made Sweden their domicile of
choice, it would be considered to be given up when he sold his property there and moved to
Australia.

Doctrine of revival reinstates the domicile to domicile of origin when domicile of choice
(Sweden) is given up. Husband shows business permit to establish domicile in Australia, but
that was not enough proof for acquisition of domicile of choice in Australia. The two
elements- residence and intention were both missing to establish domicile of choice, i.e.
Sweden or Australia. Thereby, the husband and wife had revived their domicile of origin, i.e.
India, thereby, Indian courts would have jurisdiction.

Case Laws

Winans vs. A.G:

Facts: American citizen (Domicile of origin) moved to Russia (Domicile of choice). Was told
to move to England (health reasons) and lived there for 38 years. Died in England leaving
huge fortune.
Question: Whether Winans had acquired English domicile (DOC) or was he an American
Domicile (DOO)?
Held: Intention to move was absent as the purpose of relocation was not out of choice but out
of recommendation. Hence English domicile of choice could not be given.

a. Residence
b. Intention to be permanent

Bell v Kennedy-

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The domicile of origin, which in its inception is not a matter of free will but is communicated
to a person by operation of law, is not extinguished by mere removal with an intention not to
return. It cannot be lost by mere abandonment. It endures until supplanted by a fresh domicile
of choice.

The domicile of origin of Bell was in Jamaica. In 1837, he left the island without any
intention of returning, resided in Scotland, and occupied himself in looking for an estate in
that country on which to settle down. He had not been successful in this when his wife died in
1838.

It was held that his domicile at that moment was in Jamaica. Although he had abandoned the
island for good in 1837 and was resident in Scotland, he had not at that time decided to make
his permanent residence there. The evidence showed that in 1838 his mind was vacillating
with regard to his future home. Therefore, since he had not acquired a Scottish domicile of
choice, he retained his domicile of origin.

Sankaran Govindan v Lakshmi Bharati

In Sankaran Govindan v Lekshmi Bharathi ([Link]. 1964 Ker. 244) the Kerala High Court had
to decide whether a doctor from the erstwhile Travancore State who went to England for
medical studies and resided in England uninterruptedly for 30 years till his death had
acquired an English domicile of choice displacing his Indian domicile of origin.

One Dr. Krishnan belonging to an Ezhava family in Travancore left for England in 1920 for
higher studies in medicine. He did not get regular remittances from home after his father's
death and was practically stranded in England. But he was able to pursue his studies with the
assistance of an elderly lady, Miss Helworth. After completing his studies he practised in
England and was able to build up a comfortable practice. Subsequently he got employed in
the National Health Scheme. He purchased a building in Sheffield where he housed his
evening surgery. He was in England for about 30 years, but during this period he never came
to India. He, however, communicated regularly with his relatives in Travancore. Dr.
Krishnan, was unmarried and he died intestate in England in 1950, leaving considerable
movable and immovable properties. Dispute arose as to how his properties were to be divided
and in that connection it became necessary to decide the place where Dr. Krishnan was
domiciled at the time of his death. The question was whether Dr. Krishnan had the intention
of making England his permanent home.

The Kerala High Court observed that strong evidence was necessary to displace the domicil
of origin by a domicil of choice and held that there was no sufficient evidence to establish
that Dr. Krishnan chose the English domicil and decided to make England his permanent
home, despite the fact of uninterrupted residence in England for 30 years. The Court placed
reliance on certain letters written by Dr. Krishnan to his relations in India which disclosed
that he entertained the idea of returning to India. It was contended that these letters were
written only to threaten his elder brother who was appropriating his share in the family

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properties and he had no real intention of returning to India. This interpretation was not
accepted by the High Court.

On appeal, the Supreme Court took a different view and held that Dr. Krishnan had acquired
an English domicile of choice at the time of his death (A.I.R. 1974 S.C.1764). Mathew J.,
found: "It would appear that till 1939, Krishnan had the intention to return to India. But when
he acquired a comfortable practice and purchased a house in Sheffield his intention changed.
Although he was saying in some of his letters after 1939 that he would return and settle down
in Travancore, that was with the predominant idea of getting from Padmanabhan, Dr.
Krishnan's brother, his share of the income. If he had made it clear that he would not return,
the chances of Padmanabhan, accounting for the income he had been taking from his
(Krishnan's) share of the properties, were remote... We are of the view that the declaration by
Krishnan in the letters written after 1939 that he would return to Travancore did not contain
the real expression of his settled intention. These declarations cannot be taken at their face
value. They are interested statements designed to extract from Padmanabhan the share of his
income".

Mathew J., quoted the following passage from Cheshire: (Cheshire, 10th Edn.p.167) "It is
impossible to lay down any positive rule with respect to the evidence necessary to prove
intention. All that can be said is that every conceivable event and incident in a man's life is a
relevant and an admissible indication of his State of mind. It may be necessary to examine the
history of his life with the most scrupulous care, and to resort even to hearsay evidence where
the question concerns the domicile that a person, now deceased, possessed in his lifetime.
Nothing must be overlooked that might possibly show the place which he regarded as his
permanent home at the relevant time. No fact is too trifling to merit consideration".

"Nothing can be neglected", said Mathew J., "which can possibly indicate the bent of
Krishnan's mind. His aspirations, whims, prejudices and financial expectations, all must be
taken into account. Undue stress cannot be laid upon any single fact, however impressive it
may appear when viewed out of its context, for its importance as a determining factor may
well be minimised when considered in the light of other qualifying events.... More reliance is
placed upon action than upon declaration of intention, "It is not by naked assertion but by
deeds and acts that a domicile is established".

Kedar Pandey v Narain Bikram Sah

The appellant and respondent were contesting candidates for election to the State Legislative
Assembly. The respondent was declared elected, and the appellant filed an election petition
challenging the election on the ground that the respondent was not duly qualified under Art.
173 of the Constitution as he was a citizen of Nepal and not a citizen of India. The Tribunal
held that the respondent was not a citizen of India, but the High Court in appeal set aside that
order and upheld the election of the respondent. On the question whether the respondent was
a citizen of India under Art. 5 of the Constitution, On the material date.

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HELD: Assuming that the respondent was not born in the territory of India, on a
consideration of all the events and circumstances of his life, he had acquired a domicile of
choice in India long before the end of 1949 which is the material time under Art. 5 of the
Constitution. He had formed the deliberate intention of making India his home with the
intention of permanently establishing himself and his family in India and therefore had the
requisite animus manendi. He was ordinarily resident in India for 5 years immediately
preceding the time when Art. 5 came into force. Since the requirements of Art. 5(c) were
satisfied, the High Court rightly reached the conclusion, that he was a citizen of India at the
relevant time. The only intention required for a proof of a change of domicile is an intention
of permanent residence. What is required to be established is that the person who is alleged
to have changed his domicile of origin has voluntarily fixed the habitation of himself and his
family in the new country, not for a mere special or temporary purpose, but with a present
intention of making it his permanent home, On the question of domicile at a particular time
the course of his conduct and the facts and circumstances before and after that time are
relevant.

Central Bank of India v Ram Narain-

A person accused of an offence under the Indian Penal Code and committed in a district
which after the partition of India became part of Pakistan cannot be tried for that offence by a
Criminal Court in India after his migration to India and acquiring thereafter the status of a
citizen of India. The fact that after the commission of an offence a person becomes domiciled
in another country, or acquires citizenship of that State does not confer jurisdiction on the
Court of that country retrospectively for trying offences committed and completed at a time
when that person was neither the national of that country nor was, he domiciled there.
According to section 4 ‘of the Indian -Penal Code and section 188 of the Code of Criminal
Procedure if at the time of the commission of the offence the person committing it is a citizen
of India then even if the offence is committed outside India, he is subject to the jurisdiction of
the Courts in India, as qua citizens the jurisdiction of Courts is not lost by reason of the
Venue of an offence. If, however, at the time of the commission of the offence the accused
person is not a citizen of India these sections have no application at all. The term “domicil”
does not admit of an absolute definition. The simplest definition of domicil is: That place is
properly the domicil of a person in which his habitation is fixed without any present
intention of removing therefrom. The fact is that the term domicil can be illustrated but
cannot be defined.

Chandigarh Housing Board v Gurmeet Singh

Need to ADD.

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3. Proof of foreign law-

TO ESTABLISH LEX CAUSE THE PROOF NEEDS TO BE SUBMITTED.

Onus lies on the party who wishes to apply the foreign law, needs to prove to the judge about
the applicability of the foreign law. If the argument fails the court can adjudicate it as
domestic law.

Points of relevant foreign law should be proved by the parties. They are treated as questions
of fact; consequently, they should be pleaded and proved to the satisfaction of the judge as
any other fact. The onus lies on the party who wishes to rely on a foreign law. He must state it
in his pleadings and prove it at the trial by adducing evidence. If he does not do so, the court
will decide the case as it were a purely domestic case.

a. Mode of proof-
As a general rule, foreign law must be proved by expert evidence. It cannot be proved by
simply placing the text of the foreign law before the court or by citing foreign decision or
foreign text book. These can be done only by an expert witness, as part of his evidence, and
subject to the cross examination by the opposite party. The court can evaluate and interpret
the text of a foreign law or a foreign decision or the opinion of an academician only with the
assistance of an expert giving evidence before the court.

Competent witness- (Practical Experience in the field)

a. Lawyer practicing in that field.
b. Ambassador and embassy officials
c. An academician
d. Roman Catholic Bishop

b. Exclusion of Foreign Law

a. Revenue Laws
Government of India v. Taylor (1955) All E,R.292.

In this case the Government of India claimed from a liquidator in England a large sum of
money due as capital gains tax under the following circumstances. The Delhi Electric and
Traction Company Ltd. was a company incorporated in England, but carrying on business in
India, In 1947 the company sold its business to the Government of India. The sale price was
paid to the company in India and the amount was remitted to England after a few days. Two
years after this, the Company went into voluntary liquidation in England and Taylor was
appointed as liquidator. In the liquidation proceedings the Indian Commissioner of
Income-tax claimed about 11 1/2 lakhs of rupees due to the Government as capital gains tax
on the sale of the company's business.

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The liquidator rejected this claim and the case finally came to the House of Lords. For the
Government of India, it was contended that the rule of exclusion of foreign laws properly
applied only to penal laws and Lord Mansfield was wrong in extending it to revenue laws.
Further, whatever may have been the rule in the past, there is a necessity for modification in
the case of a country belonging to the Commonwealth particularly in the case of taxes similar
to those imposed in England. These arguments were not accepted by the House of Lords. It
was unanimously held that the English courts will not enforce the revenue laws of another
country. "Tax gathering is not a matter of contract but of authority and administration as
between the State and those within its jurisdiction". And it is a settled principle that English
courts refuse to enforce any claim which, in their view, is a manifestation of a foreign State's
sovereign authority.

Brokaw v. Seatrain U.K. Ltd, (1971)2 AIHE.R. 91 - indirect enforcement of foreign

revenue laws.

Mr. A. an American citizen shipped certain goods in an American ship to be delivered in

England to his son in-law, Mr. B. While the ship was at sea the U.S. treasury served a notice
of levy on the ship owners in respect of taxes unpaid by Mr. A and ordered the ship owners to
surrender the goods shipped by A.

When the ship docked in Southampton, England, the consignee Mr. B demanded delivery but
the ship owners refused to deliver the goods as the United States Government claimed
possession of the goods.

Mr. B filed a suit against the ship owners claiming delivery of goods. The defendant
shipowners took out an interpleader summons bringing in the U.S. Government as the
claimants of goods. It was held that this was an attempt to enforce revenue laws indirectly, by
the seizure of goods, the revenue laws of a foreign country and the English Courts will not
aid in the enforcement of a foreign revenue law.

b. Penal Laws-

The leading English authority on the enforcement of foreign penal laws is Huntington v
Attrill, a decision by the Privy Council (1893 A.C. 150).

By provisions of a New York statute, the directors of a company were personally liable for
debts contracted by the company upon proof that false reports of its financial conditions had
been published. Sums so recovered were payable to the creditors in satisfaction of their debt.
The defendant was the director of a New York Company. He had signed a certificate which
stated falsely that the whole of its capital stock had been paid up. The plaintiff who had lent
money to the company sued the defendant for the recovery of the loan and obtained a
judgment. As the judgment remained unsatisfied, the plaintiff brought an action on it in
Ontario. The defence was that the New York law under which the New York judgment was
obtained, was penal in nature and hence the Ontarian court could not enforce the judgment. In

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support of this defence, reliance was placed on the fact that the New York courts had
interpreted the above statute as penal. The Privy Council affirmed the principle that foreign
penal laws are not enforceable in English courts. But English courts are not bound by the
view taken by foreign courts as to the nature of the law in question. Whether the foreign law
is penal in character, is to be decided by the English courts. The Privy Council analysed the
New York Statute and held that the Statute and held that the statue was not penal, but
remedial only.

c. Instances where fundamental public policy infringed

(a) When fundamental conceptions of English justice are discarded: e.g. violation of the
principles of natural justice, in that no opportunity was given to the other party to present his
case.

(b) When English conceptions of morality are infringed: e.g. a contract or some other
transaction which promotes sexual immorality-a contract to pay money to a prostitute as the
price of prostitution.

(c) When the interests of the United Kingdom or its good relations... with foreign powers are
affected: e.g. a contract to pay money for revolutionary activity in a friendly country or a
contract to import liquor in violation of the prohibition laws of friendly foreign countries, or a
contract to export prohibited commodities etc.

(d) When the foreign law or statute offends against English conception of human liberty and
freedom of action: e.g. slavery, bonded labour, excommunication, the-disabilities imposed by
Nazi Germany on Jews, discriminatory-laws against coloured people etc. The paralysing
restrictions on freedom imposed by despotic governments will not be recognised by English
courts.

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4. Marriage and Matrimonial Causes

Marriage, whether arising out of contract or sacrament, creates status. Marriage in English
law arises out of a contract since there can be no valid marriage unless each party consents to
"marry the other". But it is a contract of a special kind. It can [Link] concluded by a formal
or public act. (You cannot enter into a valid marriage by an exchange of letters or by talking
over the telephone); it cannot be rescinded by mutual agreement of parties; it can be
dissolved only by a formal or public act. Though marriage is a contract in the limited sense
indicated above, it is more than a contract; it creates status and this status is of vital
importance in social life. Thus marriage, although originating from a contract is
fundamentally different from a mercantile contract. The contract becomes functus officio
upon the solemnisation of the marriage ceremony and thereafter there are changes in party's
status and mutual relationship.

● Presence of a foreign element

● Public or Formal Law

Hyde v. hyde-
The concept of Christian marriage was defined by Lord Penzance in Hyde v. Hyde (1886.
L.R. 1 P& D. 130 p. 133) thus: "marriage as understood in Christendom may be defined as
the voluntary union for life of one man and one woman to the exclusion of all others". The
requirements of an English marriage are that
(1) the union should be voluntary
(2) it should be monogamous and
(3) it must not be for a limited period, Union for life in Penzance's definition does not
mean that the marriage should be indissoluble. What is required is that it should be of
Indefinite duration, i.e. potentially for life.

a. Polygamous Marriage-
It is clear from the above that polygamous marriages are excluded from the concept of
English marriages. The exclusion embraces not only actual polygamous unions (i.e. husband
actually having more than one wife) but also potentially polygamous marriages. If the
husband is entitled by the relevant law to have more than one wife at a time, his marriage is
regarded as polygamous although in fact he has only one wife. This is because the marriage is
potentially polygamous in the sense that the husband can at any time exercise his right to
have a plurality of wives. Thus a muslim marriage in India is polygamous, although the
husband in fact has only one wife. For example, in Sowa v Sowa (1961)1 All E.R. 687) a
marriage was celebrated in Ghana between parties domiciled there. The marriage was
potentially polygamous as the law of Ghana allows plurality of wives. The husband promised
to go through another ceremony later which according to the law of Ghana will convert the
marriage into a monogamous marriage. He failed to carry out his promise. It was held that in
spite of the promise and in spite of the fact that the husband has not taken an additional wife,
the marriage should be regarded as polygamous.

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b. English Matrimonial reliefs unavailable in the case of Polygamous Marriage-

Hyde v. Hyde. In this case the petitioner was an Englishman who embraced the Mormon
faith. He went to Utah in the United States and married a Mormon lady according to Mormon
faith. After cohabiting with her for three years and having children by her, he renounced
Mormon faith, came to England and became the minister of a dissenting chapel. A sentence
of excommunication from Mormon faith was pronounced against him in Utah and his wife
married another man. He petitioned before an English court for divorce on the grounds of
adultery of his wife. According to the Mormon faith polygamy was allowed. Lord Penzance
refused to adjudicate on the ground that the Mormon marriage was potentially polygamous.
"It is obvious", he said, "that the matrimonial law of this country is adapted to Christian
marriages and is wholly inapplicable to polygamy. The parties to a polygamy marriage are
not entitled to the remedies, the adjudication or the relief of the matrimonial law of England"

c. Determination of law in deciding marriage in monogamous or polygamous- lex

loci celebraationis

The relevant law to decide this question is law of the place where the marriage was
celebrated-lex loci celebrationis. That is the law of the place where the marriage is celebrated.

Can polygamous marriage be changed to monogamous-

a. Change of religion
b. Change of domicile
c. Subsequent ceremony in monogamous form
d. Subsequent events which alter the nature of marriage according to lex loci
celebrationis

Case Laws-
SINHA PEERAGE CLAIM, (1946) 1 ALL E.R. 348

Marriage between two Hindus in India in 1880. The Hindu law at that time allowed plurality
of wives for the husband and hence the marriage was polygamous at its inception. But later,
the spouses had joined the Brahma Samaj, one of whose tenets was monogamy. Since the
husband had not taken a second wife and since by their new religion they had accepted
monogamy, the marriage at the time of the proceedings was recognised as monogamous.

Ali v. ALI. (1966) 1 ALL.E.R. 664

The parties, both domiciled in India entered into a marriage in India. The marriage was
potentially polygamous. They later came to England and the husband acquired an English
domicile. The husband petitioned before an English court for divorce on the grounds of wife's
desertion. The Court's jurisdiction depended on the question whether at time of the
proceedings the marriage was monogamous or polygamous. It was held that the husband's

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acquisition of English domicil and residence in England prevented him from having a second
wife and hence the marriage had become monogamous character Thus Ali v Ali is an
authority for the proposition that if the husband changes his domicil from a country which
permits polygamy to one which does not, this change of domicil changes the character of the
marriage and renders it monogamous. (Cheshire points out the various difficulties with the
decision in Ali [Link], See 9th Ed. page 309). The result may not be logical and it is true that it
is difficult to reconcile this decision with Hyde v Hyde. All the same, the decision is to be
welcomed from the practical aspect as it narrows the scope of Hyde v. Hyde.

Baindail v Baindail (1846 P. 122)

A domiciled Indian of Hindu faith married an Indian woman in India according to Hindu
rites. As Hindu law recognised polygamy at that time, the marriage was polygamous in
nature. While his Indian wife was still alive, he married an English woman in England by a
civil form of marriage describing himself as a bachelor to the Registrar of marriages. On
discovering the previous marriage in India, the English woman petitioned before an English
court for a decree of nullity on the ground that her husband was already married when he
married her. Here the question was: what was the status of this man at the time he married the
English woman? If he was recognised as a married man, his marriage with English woman in
England would be void. On the other hand, if the first marriage was not recognised because
of its polygamous character, he would not be a married man in the eye of English law and if
so, the second marriage would be valid. Confronted with this situation, the court held that the
husband was a married man at the time of English marriage. The court said that English law
does not refuse recognition of polygamous marriages for all purposes. For many purposes the
status created by polygamous marriage would have to be recognised. Thus Baindail v.
Baindail established that polygamous marriages would be recognized by English court for
some purposes. Status of polygamous husband would be recognised so that he could not
contract a monogamous marriage in England subsequently. Married status of polygamous
union had been recognised by English court for other purposes also.

d. Children of polygamous marriage would be regarded as legitimate

English court would recognise polygamous marriages for according legitimacy for children
born under such marriages. Authority for this proposition is provided by Hashmi v. Hashmi
(1972) Fam 36. The husband was domiciled in Pakistan at all material times. He first married
W (1) in Pakistan according to Muslim rites and had three children by this marriage.
Subsequently he married W (2) a domiciled English woman in an English Register Office,
and had three children by her also. The question before the court was the legitimate status of
the children by the two marriages.

The court held that the first marriage in Pakistan was a valid polygamous marriage and hence
the second marriage to W (2) in England was void. Although the first marriage was
polygamous in nature, the children born out of this marriage, the court held, should be
regarded as legitimate. What about the legitimacy of the children born out of the second

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marriage which was held to be void? It was held that this second marriage though void under
English law would be recognised as valid under the Pakistan law, the lex domicilii of the
husband. Legitimacy of the child should be decided by the lex domicilii of the husband and
so the children of W(2) are also legitimate. This decision clearly provides authority for the
view that the children of actually polygamous marriages are legitimate. It also supports the
validity of the parent's marriage, but upon the lex domicilii.

e. Validity of Marriage
It has been settled since 1725, that formalities of marriage are governed by lex loci
celebrationis, law of the place where the marriage was celebrated. The maxim is locus regit
actum, i.e., the place governs the act. In the words of Cheshire "there is no rule more firmly
established in private international law than that which applies the maxim locus regit actum
to the formalities of marriage". The rule is said to be of an absolute nature. It is necessary to
emphasize the negative and positive aspects of this rule. If a marriage is good by the law of
the country where it is effected, it is good all over the world even though the ceremony would
not be recognised in the country where the parties are domiciled. Conversely if the so-called
marriage is no marriage in the place where it is celebrated it is no marriage any where
although the ceremony or proceedings if conducted in the place of the parties' domicil, would
be considered as good marriage. "Every marriage must be tried according to the law of the
country in which it took place and if it is good by that law, it is good all the world over".

Formal validity v. Essential validity-

The statement made above that a marriage good by the lex loci celebrationis is good all the
world over is correct only with regard to formal validity. Essential validity (Age, nature) of
marriage is governed by entirely different principles. Therefore, the question whether a
particular requirement relates to formal validity, or essential validity is supremely important.
What do we mean by formalities of marriage? Naturally the term includes such questions as
to whether a civil ceremony or a religious ceremony or whether a ceremony at all is required,
what should be the number of witnesses, the permitted time when the ceremony can be
conducted and such similar matters.

Apt v. Apt. (1947) 2 All E.R. 677)

The Court of Appeal held that a rule which admits marriage by proxy must be considered as
relating to formal validity, since it is concerned with the manner in which the marriage
ceremony may be conducted. If a woman domiciled in England authorises 'X' to act as her
representative in a marriage between her and another person celebrated in a country where
marriage by proxy is allowed. and if the celebration by proxy is in fact conducted, then, the
formal validity of this marriage is unassailable, this is so despite the fact that such proxy
marriages are not allowed in England. The nature of the rule requiring parental consent for
marriage, is. as we saw when discussing characterisation, highly controversial. (e.g. Ogden v
Ogden). English law considers such rules as relating to formal validity.
f. Effect of Changes in lex loci celebrationis-

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Whether change in law applied retrospectively make an invalid marriage valid-

Starkowski v. Attorney General (19533 2 All E.R. 1272).

Two Roman Catholics domiciled in Poland were married in May 1947 in a Roman Catholic
Church in Austria without a civil ceremony. Austrian law at that time did not recognize
marriages without civil ceremony. After a few weeks, an Austrian legislation validated such
marriages retrospectively provided they were registered in the public register. This marriage
was registered only in 1949 by which time the parties had acquired an English domicile. By
1950 the wife married another man in England. The issue before the House of Lords was
whether the second marriage in England was valid; this depended upon the validity of the
Austrian marriage. The House of Lords held that the Austrian marriage was valid and
therefore the English marriage was bigamous and void. The Court accepted the retrospective
Austrian legislation according to which the marriage was formally valid.

g. Lex loci celebrationis will be applicable even if the main objective of the parties
was to escape the local law.

Simonin v. Mallac, the parties domiciled in France, crossed the channel and celebrated their
marriage in England without obtaining parental consent as required by French law English
law does not require parental consent. The wife later petitioned for a decree of nullity. The
court dismissed the petition since consent is only a requirement of formal validity and its
absence will not affect a marriage celebrated in England. Simon v Mallac and similar cases
show that English law has no doctrine of evasion law

h. Formal Validity- The principle of locus regit actum-

It has been settled since 1725, that formalities of marriage are governed by lex loci
celebrationis, law of the place where the marriage was celebrated. The maxim is locus regit
actum, ie, the place governs the act. In the words of Cheshire "there is no rule more firmly
established in private international law than that which applies the maxim locus regit actum
to the formalities of marriage". The rule is said to be of an absolute nature. It is necessary to
emphasize the negative and positive aspects of this rule. If a marriage is good by the law of
the country where it is effected, it is good all the world over even though the ceremony would
not be recognised in the country where the parties are domiciled. Conversely if the so-called
marriage is no marriage in the place where it is celebrated it is no marriage anywhere
although the ceremony or proceedings if conducted in the place of the parties' domicil, would
be considered as good marriage. "Every marriage must be tried according to the law of the
country in which it took place and if it is good by that law, it is good all the world over".

i. Exceptions to the locus regit actum rule

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1. Consular marriages celebrated under the Foreign Marriage Act 1892(Amended by

1947).
2. Marriages of members of British Forces serving abroad.
3. Marriages, celebrated in circumstances where compliance with the local law is
virtually impossible, and marriages celebrated in countries under belligerent
occupation where one of the parties is a member of the occupying forces. In such
cases, English law will recognise a marriage as formally valid if it complies with the
requirements of the English common law.
4. Marriage on High Seas

j. Essential validity-

The statement made above that a marriage good by the lex loci celebrationis is good all the
world over is correct only with regard to formal validity. Essential validity of marriage is
governed by entirely different principles.
Essential validity refers to the statutory rules of the country.

k. Foreign Marriage Act-

Preamble
Lakshmi Sanyal vs Sachit Kumar Dhar on 8 September, 1972

The appellant filed a suit for a declaration that her marriage with the respondent was null and
void and for other reliefs. The parties professed the Roman Catholic faith. The marriage was
solemnised by a Minister of the Roman Catholic Church who had received episcopal
ordination and was competent to solemnise the marriage under sub-s. (1) of s. 5 of the Indian
Christian Marriage Act, 1872. The appellant claimed that she was a minor at the time the
marriage was solemnised and the consent of her father or her guardian was not taken nor did
she give her own consent freely to the marriage.

Further, the marriage was void because the parties were within the prohibited degree of
consanguinity. The High Court held that from the standpoint of Canon Law if the Roman
Catholic church the objection to the validity of the marriage on the ground of lack of consent
could not be sustained. The High Court expressed the view that the consent of the parents
was not necessary as' required under s. 19 of the Indian Christian Marriage Act since the
marriage was solemnised by a person failing under s.5(1), nor was there any provision in the
Indian Divorce Act. 1869 which rendered a marriage null and void on the ground of minority
of a party. On the question of the marriage being within the prohibited degree of

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consanguinity it was found that since the consanguinity between the parties was of the second
degree it was certainly an impediment in the way of the marriage under the Roman Catholic
law; But the impediment could be removed by dispensation which was granted by the
competent authorities of the church; for that reason, the marriage could not be held to be null
and void. Hence the appeal was dismissed and the marriage was not null and void.
Parwatawwa v Chanawwa

Nazma Sirajuddin Musliar v. Registrar General of Marriages-

Registration of marriages, two persons who got married, one of whom was a citizen was a
citizen of UAE, petitioner married UAE citizen (Person of Indian Origin), Marriage
certificate was issued.

Registrar general of marriages has not received the application and thus not registered the
application, registrar said that both parties need to be present to get the marriages registered.

Sarala Baby V. State of Kerala (2010 (2) KHC 334)- It was held that there is no need for
personal appearance of the parties to the marriage, for presenting the application for
registration.

Seema V. Aswani Kumar (2006 (1) KLT 791 (SC)) in which a direction was issued to all state
Governments to formulate Rules for compulsory registration of marriages, irrespective of
religion of the parties

Deepu Dev v. State of Kerala-

Upasna Bali v. State of Jharkhand-

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5. Adoption

a. Hague Convention on Inter Country Adoption + CRC

⎯ Gives effect to Article 21 of the United Nations Convention on the Rights of the
Child by adding substantive safeguards and procedures to the broad principles and
norms laid down in the Convention on the Rights of the Child (CRC)
⎯ Also respects and protects the rights of families of origin and adoptive families.
⎯ Provides safeguards for children and families involved in adoptions between
participating countries and also works to prevent the abduction, sale, trafficking of
children or illegal and ill-prepared adoptions.
⎯ Recognises that growing up in a family is of primary importance and is essential for
the healthy development of the child.
⎯ Recognises the advantage of a permanent family to a child for whom a suitable family
cannot be found in his or her country of origin.
⎯ Sets out clear procedures and prohibiting improper financial gain
⎯ provides greater security, predictability and transparency for all parties to the
adoption, including prospective adoptive parents.
⎯ Best interests of the child are paramount
⎯ “Subsidiarity principle”: Contracting States recognise that a child should be raised by
his or her birth family or extended family whenever possible. If that is not possible or
practicable, other forms of permanent care in the State of origin should be considered.
Only after due consideration has been given to such aspects should intercountry
adoption be considered, and then only if it is in the child’s best interests.
⎯ Institutional care should be considered as a last resort for a child in need of a family.
⎯ Gives immediate certainty to the status of the child whose adoption was made in
accordance with the Convention and eliminates the need for lengthy
procedures/formalities like recognition of orders/re-adoption

Note: India is signatory to both the CRC and the Hague Convention.
Indian case laws-
● Re Rasiklal Chhaganlal Mehta
In this case, it was held that inter-country adoptions under Sec 9(4) of the Hindu Adoptions
and Maintenance Act (HAMA) 1956 should be legally valid under the laws of both the
countries. The adoptive parents must fulfil the requirement of law of adoptions in their
country and must have the requisite permission to adopt from the appropriate authority
thereby ensuring that the child would not suffer in immigration and obtaining nationality in
the adoptive parents’ country.

● Laxmi Kant Pandey v. Union of India

In this case, the SC formed some guidelines which were to govern international adoption.
Setting up of a Central Regulatory Body was suggested and so the Central Adoption
Resource Agency (CARA) was set up in 1989. The agency lays down both substantive law
and procedural law on intra-country and inter-country adoption.

CARA Guidelines state that any foreign couple who wants to adopt a child from India must
be sponsored by a child welfare agency or a social agency which is recognized by the
government of the country in which the foreign couple resides.

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● Under the CARA Guidelines, intra-country adoption is preferred first.

● As per CARA Guidelines, only three type of children is recognized as adoptable.

1. Those children who have been surrendered.

2. Those who are abandoned.
3. Those who are orphans and are under the care of some specialized adoption
agency.

b. Juvenile Justice Rules of 2007

Rule 8(6) mentions the order of priority which is to be followed in cases of inter-country
adoptions-

(i) Non - Resident Indian (NRI)

(ii) Overseas Citizen of India (OCI)

(iii) Persons of Indian Origin (PIO)

(iv) Foreign Nationals

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6. Tort in International Law

Choice of law- The law of the place where the event took place.
a. Substantive v Procedural law
First look at the kind of damages, like general, special, and consider application of legal
principles through lex loci delicti

● Scott v. Lord Seymour (1862) (assault and false imprisonment for contract related
dispute case)

● Phillips v Eyre (1870) (two pronged test to decide whether a court can assume
jurisdiction over a tort that occurred in another country by requiring double
actionability, which means being actionable in both jurisdictions)

● Boys v Chaplin (1971) (modified the test; only had to be actionable under the law of
the jurisdiction where the lex fori had a closer connection, the lex loci delicti of the
"double actionability" rule could be disapplied)
⎯ Refer to Lord Upjohn’s opinion in particular
Note: Issue in Machado v Fontes was that it was not a civil wrong on the other jurisdiction,
no option but to apply English law.

The Halley case (1868)

The Privy Council dismissed a claim on an employer’s vicarious liability on the grounds that
such a tort was not recognised in English Law.

5. Cross border tort disputes

3 theories relating to choice of law:
● The lex fori theory (the forum state)
● The lex loci delicti theory (the place where it was committed)
● The proper law / social environment theory
1. Lex fori theory

● Law of the forum where the claim has been brought is applicable as per this theory
● No need to determine where the tort occurred, or to prove that it was a tort at all in
that country
● Criticism: could pose a disadvantage to defendant as the plaintiff could indulge in
forum shopping (explained while doing renvoi)
● Defendant may become liable for an act, which may amount to a tort in lex fori but
not in the lex loci delicti
● Friedrich Savigny: propagated that tortious liability akin to criminal liability; closely
related to the public policy of the forum state; should be governed by lex fori

2. Lex loci delicti theory

● The law of the place where the tortious act has been committed should be applicable.
● Westlake: tortious act that disrupts the social order, then law of that country where act
was committed would be the best authority to decide

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● Criticism: not a flexible theory; problematic if tortious act is committed in one

country and the injury is felt in another; also, problematic if parties have almost no
connection to the place where the tort occurred, i.e., the lex loci delicti may be
entirely coincidental and by chance.

3. The Proper law /social environment theory

● Seeks to fill the gaps in lex loci delicti theory

● Law that has the closest connection with the facts and circumstances in a particular
claim/case should apply
● Boys v. Chaplin addressed this theory when Lord Denning gave the view regarding
most significant connection to both the parties as well as the act done.
● Criticism: Uncertainty and unpredictability of the scenario in the case at hand /
different circumstances depending on case to case
c. Maritime Tort-

With regard to maritime torts, i.e., torts committed in the sea, a distinction should be made
between torts committed in the maritime belt and those committed in the open sea, In the case
of torts committed within the maritime belt, the focus delicti is deemed to be littoral State and
the rule in Phillips v. Eyre as modified by Boys v. Chaplin applies. As regards torts
committed in the open sea, outside the maritime belt no country can claim to apply its own
law, and the question is what law should govern the rights and liabilities of parties. Here
again, it becomes necessary to draw a distinction between two categories of tortious acts:

a. Acts which have occurred on board a single ship as in the case of physical harm
inflicted by one passenger on another. These like domestic torts and are governed by
the law of the state whose flag is flown in the ship. Where a flag is common to a
political unit containing different legal systems, as in the case of the U.S.A. or the
British Commonwealth the law of the flag means the law of the port at which the ship
is registered.

b. Acts which are external to a ship eg: negligent navigation leading to a collision or the
destruction of a submarine cable. In such cases, it is the general maritime law as
applied and administered by the Admiralty Division of the High Court that applies
and not the law of the flag State. The act then should amount to a tort by English law
and by the General maritime law. However, if the act in question is one that is covered
by the International Convention to which England is a party, the rules of the
convention become applicable.

6. Aerial Torts-
Warsaw Convention

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Aerial torts include tortious acts committed on board and aircraft and damage to life and
property on account of crashing of aircraft or collision between aircrafts in the air. There is no
judicial pronouncement on this question in English law. One view is that when tort is
committed in an aircraft or when a collision occurs, while the aircraft is over the airspace of a
country, the locus delicti of the tort is that country. Another view is that the law applicable is
the law of the country where the aircraft is registered. The matter is now governed to some
extent by international convention, namely, the Warsaw Conventions on Air Transport, the
Chicago Convention -on International Aviation 1944.

In accordance with these conventions, the Carriage by Air Act, 1961 and the Civil Aviation
Act, 1949 have been enacted in England.

Section 40(2) of the Civil Aviation Act, 1949 lays down that "where material loss or damage
is caused to any person or property on land, or water by or by a person in, or an article or a
person falling from an aircraft while in flight, taking off, or land, the damages shall be
recoverable without proof of negligence or intention, as if caused by the wilful act, neglect or
default of the owner of the aircraft

Kota transport ltd. v Jhalawar Bus Service

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7. Property-

In a conflict of law case, the first task of the judge is to determine whether the res litigiosa
(property under dispute) is movable or immovable. The choice of law rule will depend upon
this decision. Rights over immovables are decided by the lex situs (law of the place where the
property is situated); but in the case of movables, other laws are also applicable.

a. What law determines whether the property is movable or immovable-

Land and interest in land present no difficulty and they are classified as immovable in legal
systems. But in regard to many movables which are very closely connected with immovable
properties the classification differs in different legal system. For example, title deeds to land,
keys to a house etc., are considered as immovable according to English domestic law. In
Scots law, heritable bonds are considered as immovable. In Jamaica, when slavery existed,
slaves in an estate were considered as part of the estate and so were taken as immovable. A
building erected for an exhibition is regarded in some American States as movable.
Consequently, if the subject matter of ownership is regarded movable by one system of law
and immovable by another system of law the question arises as to which classification should
be accepted. It is well settled that English court will accept the classification made by the lex
situs.

7. Jurisdiction in the case of immovable property: The Mocambique Rule

In the leading case of British South Africa Co. v. Companhia de Mocambique (1893 A.C
602) the House of Lords laid down the rule that an English court has no jurisdiction to
adjudicate upon the right of property or the right to possession of foreign immovables, even
though the parties may be resident or domiciled in England.

As Morris aptly observes: "The sovereign of the country where the land is situated has
absolute control over the land within his dominions: he alone can bestow effective rights over
it; his courts alone are, as a rule, entitled to exercise jurisdictions over such land: (Dicey &
Morris p.520)

8. Exceptions to the Mocambique rule

The Mocambique rule stated above is subject to three exceptions two of which are derived
from the practice of equity courts and the third from the practice of Admiralty courts.

a. First exception: action founded on personal obligation.

The necessary condition for the exercise of jurisdiction in the case is that the defendant
should personally be subject to the jurisdiction of the court. The court can pass a decree,
which though personal in form, will indirectly affect land abroad.

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This exception is stated by Cheshire thus: "If the conscience of the defendant is affected in
the sense that he has become bound by a personal obligation to the plaintiff, the court in the
exercise of its jurisdiction in personam, will not shrink from ordering him to convey or
otherwise deal with foreign land. For the argument that a court cannot, by its judgments or
decrees, directly bind or affect land that lies within the confines of another State has no force
where the issue before the courts is not a jus in rem relating to foreign immovables, but a
personal obligation enforceable against the defendant. (Cheshire, IX edn.p.495, 496).”

Three Circumstances-

A. Fraud and other unconscionable conduct.

B. Contracts relating to foreign land.
C. Fiduciary Relationship.

b. Second Exception: Questions affecting foreign land incidentally arising in an

english action

In the case of administration of a trust or estate of a deceased person, if the property includes
immovables or movables in England as well as immovables situated in a foreign country, the
English court has jurisdiction to determine questions affecting the foreign immovable
property for the purposes of administration.

The authority for the above proposition is drawn from the well known case of Re Duke
Wellington (1947, 2, All E.R.843). The Duke of Wellington a British subject domiciled in
England left wills dealing with immovables properties in Spain and England. The English
Court did not decline to decide questions relating to Spanish land which were incidental to
the main issues involved in the wills.

c. Third Exception: Admiralty Jurisdiction in Trespass

The Court of Appeal in The Tolten (1946, 1 All. E.R 79) recognised an exception to the
general rule that the English court takes no cognizance of trespass to foreign land. In the
Tolten the plaintiff was the owner and occupier of a wharf in Lagos, Nigeria. The wharf was
damaged owing to the negligent navigation of the defendant's ship. This damage conferred on
the plaintiff a maritime lien on the ship which was enforceable by an Admiralty action in
rem. An action was brought before an English court to enforce this lien and recover damages
for injury caused to the wharf. The court held that the ban imposed by the Mocambique rule
is applicable in cases where the High Court exercises its admiralty jurisdiction which is
conferred by the general law of the sea.

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d. Lex Situs governs-

(1) capacity to take immovables,
(2) capacity to transfer immovables, whether by sale, gift mortgage or devise,
(3) formal validity of transfer of immovables
(4) essential validity of transfer of immovables and
(5) succession both testate and intestate.

e. Transfer of Tangible Movables-

In choosing the proper law to govern the transfer of movable objects, arguments may be
advanced in favour of the law of the domicile, the law of the situs, the law of the place of
acting, or the proper law of the transfer.

i. Law of the domicile-

According to this theory, transfer of movables is governed by the law of the
owner's domicil. This is based on the reasoning that movables have no locality'
or no fixed situs and are capable of being shifted from place to place by the
owner. That they are in a particular place at a given time, is purely a matter of
chance. Since movables have no fixed situs, an artificial situation must be
ascribed to them and this is the place where the owner is domiciled This
doctrine was generally accepted in England and the United States of America
in earlier times.

ii. Law of the Situs-

An alternative to the law of the domicile is the law of the situs. The law of the
situs has the great advantage of being a single and exclusive system that can
act as an independent arbiter of conflicting claims.

iii. Law of the place of Acting-

The law of the country where the legal act of purported creation/acquisition
etc, or the transfer/transaction took place. Here, as in other areas of law, the
mere fact that a transaction is completed in a particular place is no adequate
reason for admitting the control of the local law. If, for instance, an
Englishman executes a document in Edinburgh granting a lien over his
furniture in London to another Englishman it is unthinkable that this slight and
perhaps incidental connection with Scotland should require the possessory
rights of the parties to be determined by Scots law. Yet, curiously enough,
there are decisions, dealing with negotiable instruments, which contain strong
dicta in favour of the law of the place of acting.

iv. The Proper law of Transfer-

The last law that may be chosen to govern questions arising out of a transfer of
movables is the proper law of the transfer. This might mean one of two things.

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First, it could simply mean applying the law governing the contract of transfer
to proprietary questions. Second, it could mean identifying the law governing
proprietary issues using a rule analogous to the choice of law rule for contracts
under the common law (the law with which the transfer has the closest and
most real connection, perhaps also giving effect to party autonomy)

f. The Assignment of Intangible movables-

Intangible movables may be divided into rights which are mere rights of action, and rights
which are represented by some document or writing that is not only capable of delivery but in
the modern commercial world is negotiated as a separate physical entity. A debt, arising from
a loan or from an ordinary commercial contract, is an example of the first class; while the
second class is chiefly exemplified by negotiable instruments and shares.

In the case of assignment of an intangible movable like debt, involving foreign element,
which law governs the rights and liabilities of the parties? As in the case of tangible movables
various theories have been propounded and all the different theories have their own
advocates.

These are:

(i) the law of the place where the creditor is domiciled,

(ii) the law of the place where the debt may be said to have an artificial location (lex
situs).
(iii) the law of the place where the assignment is made,
(iv) the proper law of assignment, and
(v) the proper law of the transaction that created the debt.

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8. Contracts

Contracts involving a foreign element

● Cheshire: complexity when it comes to lex cause
● Two main theories applied:
1. Theory of intention (subjective theory)
2. Localisation of contracts (objective theory)

a. Theory of intention- Where the parties have chosen the law where their rights and
duties are determined
b. Localisation theory- Grouping the elements of the contract as reflected in its
formation and in its term, which is the country through which the contract is most
closely connected. X and Y getting into Contract, Y is in Italy, X is a French resident.
Y is domiciled in Italy, a contract entered into Italy, performance entered into Itlay,
Money to be paid in a french bank. Localisation theory would lead to the application
of Italian Law.

Ascertaining the Proper Law-

a. Vita Food Product Case-
Read the article sent by sir.

b. Assunzione Case

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9. Recognition and Enforcement of Foreign Judgements-

1. Decree
2. Foregin court means a court outside India not established under the
authority of the Central Government of India.
3. Foreign Judgement- Judgement of Foreign Court

Section 13, 14 and 44A of Code of Civil Procedure, 1908

Section 13-
When foreign judgment not conclusive—
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except—
(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 2 [India].

Satya v. Teja Singh-

The appellant and respondent, who were Indian citizens, were married in India in 1955. The
respondent left for the U.S. in 1959 and from 1960 to 1964 was living in Utah for some time
as a student and thereafter in employment. Since 1965 he had been in Canada. He filed a
petition for divorce in November 1964 in Nevada, and obtained a decree against the appellant
in December 1964. The appellant did not appear in the Nevada Court, was unrepresented and
did not submit to its jurisdiction. In 1965, the appellant moved an application for maintenance
under s. 488, Criminal Procedure Court, 1898, and the respondent relied upon the divorce
decree of the Nevada Court as a complete answer to the appellant's claim. The trial
court held in favour of the appellant and the order was confirmed in revision. In further
revision, the High Court held in favour of the respondent on the basis that 'at the crucial
time of the commencement of the proceedings for divorce the petitioner was domiciled'
in Nevada, that during marriage the domicile of the wife follows the domicile of the
husband, that it was decided in Le Mesurier v. Le Mesurier [1895] A.C. 517 that
'according to international law, the domicil for the time being of the married pair

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affords the only test of jurisdiction to dissolve their marriage, and that therefore,
the Nevada Court had
jurisdiction to pass the decree of divorce. Allowing the appeal to this court.
HELD : The decree of divorce passed by the Nevada Court in U.S.A. could not be
recognised in India. [212F]
(1) The question as to whether the Nevada decree deserves recognition depends on the rules
of Indian private international law. Our notions of a genuine divorce and of
substantial justice and the distinctive principles of our public policy must determine the
rules of our Private International Law. But awareness of foreign law in a parallel
jurisdiction would be a useful guidelines in determining these rules. [200 F-G; 211 A-B]
Shorn of confusing refinements, a foreign decree of divorce is denied recognition in
American Courts if the judgment is without jurisdiction or is procured by fraud or if treating
it as valid would offend against public policy. The English law on the subject, prior to the
passing of the Recognition of Divorces and Legal Separation Act, 1971, has grown out of a
maze of domiciliary wilderness but English Courts have; by and large, adopted the same
criteria as the American Courts for denying validity to foreign decrees of divorce. (206p;
207 A-B]
(2) The Judgment of the Nevada Court was rendered in a civil proceeding and therefore
its validity in India must be determined on the terms of s. 13, 198 C.P.C. It is beside the
point that the validity of that judgment is questioned in a Criminal Court in India. if the
Judgment falls under any of the clauses (a) to (e) of s. 13, it will cease to be conclusive as
to any matter thereby adjudicated upon. The Judgment will be open to collateral attack on
the _grounds mentioned in the five clauses of s. 13. (213 C-E]
(3) Under s.13(e),the foreign Judgment is open to challenge 'where it has been obtained
by fraud.' Fraud as to
the merits of the case may be ignored, but fraud as to the jurisdiction of the Nevada Court is
a vital consideration in the recognition of the decree passed by that Court. Though it is not
permissible to allege that the Court is taken by it is permissible to allege that the Court was
'misled'. The essential distinction is between 'mistake, and 'trickery'. [213 E-H] The
Duchess of Kingston's Case, Smith's Leading Cases, (13th Ed) Vol. II, 644 at p. 651, referred
to.
(4) Domicil being a jurisdictional fact, the Nevada decree is open to the collateral attack that
the respondent was not a bona fide resident of Nevada, much less was he domiciled
in Nevada. The recital in the judgment of the Nevada Court is not conclusive and can be
contradicted by satisfactory proof.
(5) The facts of the present case establish that the respondent went to Nevada as a bird
of passage, resorted to the Court there solely to found jurisdiction and procured a decree of
divorce on a misrepresentation that he was
domiciled in Nevada. Prior to the institution of the divorce proceedings, he might
have stayed but he never lived, in Nevada. Having secured a divorce decree he left
Nevada immediately thereafter rendering false his statement in the petition for divorce that
he had 'the intent to make the State of Nevada his home for an indefinite period,' The

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concept of domicil is not uniform in all jurisdictions and just as long residence does not by
itself establish domicil, brief residence may not negative it. But residence for a particular
purpose fails to satisfy the qualitative test, for, the purpose being accomplished the
residence would cease. The two elements of factum et animus must concur. Thus, the
decree of the Nevada Court lacks jurisdiction and cannot receive recognition in Indian
Courts.
(6) The judgment to operate as conclusive proof under s.41, Evidence Act, has to be of a
Competent Court', that is, a Court having jurisdiction over the parties and the subject matter.
Even a judgment in rem is open to attack on the ground that the Court had no jurisdiction,
and s. 44 of the Evidence Act gives the right to a party to show that a judgment under s.
41 was delivered by a Court. not competent to deliver it, or was obtained by fraud or
collusion. Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether
in rem or in personam; and no rule of private international law could compel a wife to
submit to a decree procured by the husband by trickery.
(7) The High Court wrongly assumed that the respondent was domiciled in Nevada; and
in this view, the Le Mesurier doctrine on which the High Court relied, loses its
relevance.
Section 14:
Presumption as to foreign judgments.—
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; but such presumption may be
displaced by proving want of jurisdiction.

44A. Execution of decrees passed by Courts in reciprocating territory.—

(1) Where a certified copy of a decree of any of the superior Courts of 3 *** any
reciprocating territory has been filed in a District Court, the decree may be executed in 4
[India] as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such
superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and
such certificate shall, for the purposes of proceedings under this section, be conclusive proof
of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of the decree
apply to the proceedings of a District Court executing a decree under this section, and the
District Court shall refuse execution of any such decree, if it is shown to the satisfaction of
the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of
section 13.

[Explanation 1.— “Reciprocating territory” means any country or territory outside India
which the Central Government may, by notification in the Official Gazette, declare to be a
reciprocating territory for the purposes of this section; and “superior Courts”, with reference
to any such territory, means such Courts as may be specified in the said notification.
Explanation 2.— “Decree” with reference to a superior Court means any decree or judgment
of such Court under which a sum of money is payable, not being a sum payable in respect of

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taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no
case include an arbitration award, even if such an award is enforceable as a decree or
judgment.]]

Section 47: Questions to be determined by the Court executing decree.—

(1) All questions arising between the parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree and not by a separate
suit.
(2) Where a question arises as to whether any person is or is not the representative of a
party, such question shall, for the purposes of this section, be determined by the Court.

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Requirement’s u/s 44A of CPC-

Section 44A of CPC sets out that the decree must be of a superior court of a reciprocating
territory. A 'reciprocating territory' (as per CPC) means any country or territory outside (of)
India, which the (Indian) Central Government may, by way of notification in the Official
Gazette, declare to be a reciprocating territory and 'Superior Courts' in relation to such a
territory for this section. The decree must be filed in a District Court, and it may be executed
in India as if the District Court had passed it and a certificate shall be submitted along with
the certified copy of decree which shall be conclusive proof of the decree to the extent of
such satisfaction or adjustment to the decree

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10. Contracts-

● It is the backbone of trade at domestic and international level.

● Indian Contract Act, 1872 forms the governing and foundational law in terms of
regulation of all forms of contract.
● However, contracts between individuals, institutions and companies has grown
beyond the boundaries of the ICA 1872.

Problems-
● When parties to a contract reside in different countries, different problems pose
themselves such as what law one or both the parties should follow or in which
country the claim is justiciable and in what way.

Proper law of contract-

● Every International Contract has a governing law which is most of often termed as
the proper law of contract.
● The proper law of the contract is the system of law which the parties expressly or
impliedly chose as the law governing their contract, or in the absence of such
choice, the system of law with which the contract has its closest and most real
connection.
● The common law principle comprises of 3 things:
a. Express Choice
b. Inferred Choice
c. Objective Choice

Theories of Proper Law of Contract-

a. Lex Loci Contractus: The law of the place where the contract is made.
b. Lex Loci Solutionis: The law of the place where the contract is performed.
c. Intention of the parties is applicable when the 2 theories are unable to provide a
solution for the multiplicity of the issues in an international contract.

Position in India-
● There is no statute on the subject of choice of law in Contracts in India.
● The Indian courts follow and apply the common law rules relating to the proper law
of the contract.
● The privy council has held that a contract is governed by the laws chosen by the
parties either expressly or through implication.
● The same has been held by SC in various cases.
- Delhi Cloth Mills v. Harnam Singh
- British Indian Steam Navigation Company Ltd. v. Shanmugavilas Cashew
Industries that the law chosen by the parties must have some connection with the
contract.
- But there was no such qualification made in the later decision where the court
cited with approval. Vita food products v. Unus Shipping Company and stated
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that the choice must be accepted if it was bonafide and not opposed to the public
policy.

11. Property-

As different rules of conflict of laws apply in the case of property depending on whether
the property is regarded as movable or immovable and depending in some cases, on
where the property is situated, it becomes necessary to first consider 2 basic preliminary
questions:

1. Whether the property is classified as movable or immovable?

2. How its situs is ascertained?

Different systems of law have different modes of such classification in their domestic
law.

Position in England-
- Movable Property- The property which can be transferred from one place to
another is movable property.
- Immovable property- Section 2(26) of the general clauses act 1847 defines
immovable property as “immovable property shall include land, benefits arising
out of land and things permanently attached to the land, or permanently fastened
to anything attached to the earth.
- Tangible- Assets which have a physical existence and can be touched and felt are
called tangible assets.
- Intangible assets don’t have a physical existence and cannot be touched or felt.
Intangible assets can either be definite or indefinite depending on the kind of asset
in question.
- Situs of Property- Means with respect to real property, the state or country in
which it is located, with respect to tangible personal property, the state or country
in which it is normally kept or located at the time of the decedent’s death, and
with respect to intangible property the state or country in which the decedent was
domiciled at death.

All rights over or in relation to immovable assets are governed by the law of the
country where the immovable is situated. (lex situs)

While there appears to be almost a universal acceptance of the principle that the lex
situs governs all or almost all matters relating to immovables there is no such
acceptance of any 1 principle relating to movables, tangibles and intangibles.

There exist 4 major theories with regard to transfer-

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a. Lex Domicilli- The law of the place where the owber is domiciled.
b. Lex Situs- property is located.
c. Lex loci actus- The law of the place where the act occurred that gives rise to the
legal claim.
d. Theory of proper law of transfer- Cheshire while propounding the theory of
proper law of transfer states “The law that may be chosen to govern questions
arising out of the transfer of movables is the law of the country with which the
transfer has the most real connection”

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LIST OF IMPORTANT CASES

Unit 3, 4 and 5: General Principles –

Maltese Marriage case

Ogden v Ogden
A 19-year-old man domiciled in France, married a woman domiciled in England without
obtaining parental consent as required by article 148 of the French Code. (The rule in article
148 provided: "The son who has not reached the age of twenty-five cannot contract a
marriage without the consent of his father or mother"). After sometime the husband obtained
a decree of annulment of marriage from a French Court holding the marriage void for the
violation of Article 148. Subsequently the woman married an English man in England. This
English man after some time instituted the present action in an English Court praying for a
decree of nullity of his marriage on the ground that at the time of marriage, the woman was
married to the French man.

The question raised was the validity of the marriage with the French man in violation of the
requirement of parental consent. The Court classified the rule of parental consent as one
relating to formality or procedure. As the marriage took place in England, the formal validity
is governed by English law and French procedural rules are inapplicable. Hence the court
ignored the French rule of parental consent and held the marriage with the French man valid
with the result that the subsequent marriage with the English man was void. This
classification of the French rule of parental consent as a matter relating to ceremony rather
than substance, has been subject to severe criticism. It has been pointed out that the rule of
parental consent is one which affects the capacity of the husband to enter into the marriage
relationship and therefore is a matter relating to substantial validity.

Forgo’s case

Forgo, a Bavarian national domiciled in France, died intestate in France leaving movable
properties there. The French Court had to decide how the movable properties were to be
distributed. According to French Private International Law, the law to be applied was the lex
patriae, i.e., law of nationality namely the Bavarian law. Bavarian law, in what sense?
Bavarian law was taken in the wide sense of the whole law of Bavaria including Bavarian
Private International Law. (Forgo was illegitimate and under French law, collaterals would
not succeed to his movable properties and so the properties would pass on to the French
Government, but under Bavarian law, collaterals could succeed to the properties).
According to Bavarian Private International Law succession to movables was governed by
the lex domicili. So, the Bavarian law referred the question back to the French law. This

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reference was accepted by the French Court and the French Law of succession was applied,
thus depriving the right of succession to Forgo's collateral relatives.

Simple renvoi may arise by two methods: by remission and by transmission". When as in
the above case of Forgo, only two legal systems are involved - private international law of
country "A" referring the question to be decided to the law of country "B" and the Private
International law of that Country referring the question back to the law of the country "A"-
the renvoi is by remission:

Sometimes, the private international law of the legal system to which the reference is made
may remit the question to the law of third country. This is renvoi by transmission A refers to
B. B refers to C.

In re Annesley

Unit 6: Proof of foreign law -

Exclusion of foreign law –

Govt of India v Taylor

In this case the Government of India claimed from a liquidator in England a large sum of
money due as capital gains tax under the following circumstances. The Delhi Electric and
Traction Company Ltd. was a company incorporated in England, but carrying on business in
India, In 1947 the company sold its business to the Government of India. The sale price was
paid to the company in India and the amount was remitted to England after a few days. Two
years after this, the Company went into voluntary liquidation in England and Taylor was
appointed as liquidator. In the liquidation proceedings the Indian Commissioner of
Income-tax claimed about 11 1/2 lakhs of rupees due to the Government as capital gains tax
on the sale of the company's business.
The liquidator rejected this claim and the case finally came to the House of Lords. For the
Government of India, it was contended that the rule of exclusion of foreign laws properly
applied only to penal laws and Lord Mansfield was wrong in extending it to revenue laws.
Further, whatever may have been the rule in the past, there is a necessity for modification in
the case of a country belonging to the Commonwealth particularly in the case of taxes similar
to those imposed in England. These arguments were not accepted by the House of Lords. It

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was unanimously held that the English courts will not enforce the revenue laws of another
country. "Tax gathering is not a matter of contract but of authority and administration as
between the State and those within its jurisdiction". And it is a settled principle that English
courts refuse to enforce any claim which, in their view, is a manifestation of a foreign State's
sovereign authority.

Huntington v Attrill
The leading English authority on the enforcement of foreign penal laws is Huntington v
Attrill, a decision by the Privy Council (1893 A.C. 150).

By provisions of a New York statute, the directors of a company were personally liable for
debts contracted by the company upon proof that false reports of its financial conditions had
been published. Sums so recovered were payable to the creditors in satisfaction of their debt.
The defendant was the director of a New York Company. He had signed a certificate which
stated falsely that the whole of its capital stock had been paid up. The plaintiff who had lent
money to the company sued the defendant for the recovery of the loan and obtained a
judgment. As the judgment remained unsatisfied, the plaintiff brought an action on it in
Ontario. The defence was that the New York law under which the New York judgment was
obtained, was penal in nature and hence the Ontarian court could not enforce the judgment. In
support of this defence, reliance was placed on the fact that the New York courts had
interpreted the above statute as penal. The Privy Council affirmed the principle that foreign
penal laws are not enforceable in English courts. But English courts are not bound by the
view taken by foreign courts as to the nature of the law in question. Whether the foreign law
is penal in character, is to be decided by the English courts. The Privy Council analysed the
New York Statute and held that the Statute and held that the statue was not penal, but
remedial only.

Unit 7 and 8 – Domicile:

Sankaran Govindan v Lakshmi Bharati

In Sankaran Govindan v Lekshmi Bharathi ([Link]. 1964 Ker. 244) the Kerala High Court had
to decide whether a doctor from the erstwhile Travancore State who went to England for
medical studies and resided in England uninterruptedly for 30 years till his death had
acquired an English domicile of choice displacing his Indian domicile of origin.

One Dr. Krishnan belonging to an Ezhava family in Travancore left for England in 1920 for
higher studies in medicine. He did not get regular remittances from home after his father's
death and was practically stranded in England. But he was able to pursue his studies with the
assistance of an elderly lady, Miss Helworth. After completing his studies he practised in
England and was able to build up a comfortable practice. Subsequently he got employed in
the National Health Scheme. He purchased a building in Sheffield where he housed his

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evening surgery. He was in England for about 30 years, but during this period he never came
to India. He, however, communicated regularly with his relatives in Travancore. Dr.
Krishnan, was unmarried and he died intestate in England in 1950, leaving considerable
movable and immovable properties. Dispute arose as to how his properties were to be divided
and in that connection it became necessary to decide the place where Dr. Krishnan was
domiciled at the time of his death. The question was whether Dr. Krishnan had the intention
of making England his permanent home.

The Kerala High Court observed that strong evidence was necessary to displace the domicil
of origin by a domicil of choice and held that there was no sufficient evidence to establish
that Dr. Krishnan chose the English domicil and decided to make England his permanent
home, despite the fact of uninterrupted residence in England for 30 years. The Court placed
reliance on certain letters written by Dr. Krishnan to his relations in India which disclosed
that he entertained the idea of returning to India. It was contended that these letters were
written only to threaten his elder brother who was appropriating his share in the family
properties and he had no real intention of returning to India. This interpretation was not
accepted by the High Court.

On appeal, the Supreme Court took a different view and held that Dr. Krishnan had acquired
an English domicile of choice at the time of his death (A.I.R. 1974 S.C.1764). Mathew J.,
found: "It would appear that till 1939, Krishnan had the intention to return to India. But when
he acquired a comfortable practice and purchased a house in Sheffield his intention changed.
Although he was saying in some of his letters after 1939 that he would return and settle down
in Travancore, that was with the predominant idea of getting from Padmanabhan, Dr.
Krishnan's brother, his share of the income. If he had made it clear that he would not return,
the chances of Padmanabhan, accounting for the income he had been taking from his
(Krishnan's) share of the properties, were remote... We are of the view that the declaration by
Krishnan in the letters written after 1939 that he would return to Travancore did not contain
the real expression of his settled intention. These declarations cannot be taken at their face
value. They are interested statements designed to extract from Padmanabhan the share of his
income".

Mathew J., quoted the following passage from Cheshire: (Cheshire, 10th Edn.p.167) "It is
impossible to lay down any positive rule with respect to the evidence necessary to prove
intention. All that can be said is that every conceivable event and incident in a man's life is a
relevant and an admissible indication of his State of mind. It may be necessary to examine the
history of his life with the most scrupulous care, and to resort even to hearsay evidence where
the question concerns the domicile that a person, now deceased, possessed in his lifetime.
Nothing must be overlooked that might possibly show the place which he regarded as his
permanent home at the relevant time. No fact is too trifling to merit consideration".

"Nothing can be neglected", said Mathew J., "which can possibly indicate the bent of
Krishnan's mind. His aspirations, whims, prejudices and financial expectations, all must be
taken into account. Undue stress cannot be laid upon any single fact, however impressive it

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may appear when viewed out of its context, for its importance as a determining factor may
well be minimised when considered in the light of other qualifying events.... More reliance is
placed upon action than upon declaration of intention, "It is not by naked assertion but by
deeds and acts that a domicile is established".

Sondur Gopal v Sondur Rajani

This judgement is for the maintainability of case of custody and separation in India. The facts
were- the husband and wife got married following Hindu rituals, under the Hindu Marriage
Act. The husband left for Sweden after a few days and the wife followed, they had a child in
Sweden, and they acquired Swedish citizenship. Husband’s job required him to come to
India, his wife followed, they lived there for 2 years.

After that, the husband got a job in Sydney, Australia, and the wife followed him with their
child on sponsorship visa for 4 years, where they had another child. While they were in
Australia, the husband sold his house is Sweden. This could be considered as the husband’s
intention to do away with the Sweden domicile. Husband loses his job, his visa expires and so
the family moved to Sweden and lived in a leased house, wherein the husband had no job.
Subsequently, the husband gets a job in Sydney, the wife and children follow, the wife and
children come back to India on a tourism visa and then the wife tells her husband that she
does not wish to return to Sydney.

Hindu Marriage Act 1955 is the applicable legislation, Section 1(2) mentions- It extends to
the whole of India except the State of Jammu and Kashmir and applies also to Hindus
domiciled in the territories to which this Act extends who are outside the said territories. This
points towards the extra-territorial jurisdiction of this act.

The court had to decide that when the wife moved back to India, whether the court has
jurisdiction to entertain the case. Jurisdiction is the first issue that needs to be decided.
Husband said he is a Swedish citizen and he moved to Australia, the SC of India held that the
wife had moved back to India. Even if the husband had made Sweden their domicile of
choice, it would be considered to be given up when he sold his property there and moved to
Australia.

Doctrine of revival reinstates the domicile to domicile of origin when domicile of choice
(Sweden) is given up. Husband shows business permit to establish domicile in Australia, but
that was not enough proof for acquisition of domicile of choice in Australia. The two
elements- residence and intention were both missing to establish domicile of choice, i.e.
Sweden or Australia. Thereby, the husband and wife had revived their domicile of origin, i.e.
India, thereby, Indian courts would have jurisdiction.

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Udny v Udny
Udny vs. Udny (1869): no man shall be without a domicile, and secure this result the law
attributes to every individual as soon as he is born, the domicile of his father, if the child is
legitimate and the domicile of mother if illegitimate this has been called the domicile of
origin and is involuntary. Domicile of origin prevails until a new domicile has been acquired.
But the moment a person loses his acquired domicile his acquired domicile, the domicile of
origin springs back to him

Winans v AG

Facts: American citizen (Domicile of origin) moved to Russia (Domicile of choice). Was told
to move to England (health reasons) and lived there for 38 years. Died in England leaving
huge fortune.
Question: Whether Winans had acquired English domicile (DOC) or was he an American
Domicile (DOO)?
Held: Intention to move was absent as the purpose of relocation was not out of choice but out
of recommendation. Hence English domicile of choice could not be given.

a. Residence
b. Intention to be permanent

Puttick v AG
The petitioner, a German national woman with a German domicile of origin, was arrested in
Germany and charged with a number of serious offences there. While on bail, she absconded
and using an illegally obtained passport of another German national, came to England and
married an English man in 1975.
The question before the Court was whether she had acquired an English domicile. It was held
that the rule of unity of domicile of husband and wife had been abolished by the Domicile
and Matrimonial Proceedings Act, 1973 and that therefore, she did not acquire a domicile in
England.
The Court further held that she did not and could not acquire a domicile of choice in England
as she was staying in England to avoid trial in Germany and not to set up a permanent home.
The illegal entry and residence, according to the court, barred her from acquiring an English
domicile of choice. In other words, after January 1st 1974, there is no distinction between a
married woman and a married man as regards the acquisition and loss of domicile.

Madhu Arya v State of Uttarakhand

In India there is only one domicile and each citizen of this country carries with him or her,
one single domicile which is the 'Domicile of India'. The concept of regional or provincial
domicile is alien to Indian legal system. Even the Constitution of India (Article 5) while
explaining 'citizenship' speaks of 'domicile in the territory of India, and not in the territory of
a 'Province' The difference in personal laws in India is also not regional based but religion or

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community based and a 'muslim' or a 'Hindu' will be governed by a single system of personal
laws irrespective of where and in which State he resides.

[Link]
-2011-04-06

Unit 9 and 10 – Contracts:

The Assunzione

The plaintiffs were Charterers of the "Assunzione", and they claimed against the ship owners
damages in respect of damage to, and short delivery of, a cargo of wheat which was being
carried by the "Assunzione" from Dunkirk to Venice. There is also a claim to recover the
proportion of a salvage award which had to be paid on behalf of the cargo. We are concerned
only with a preliminary point, and that is, what is the law to be applied to the contract of
affreightment which was made between the parties?

Under the traditional proper law of the contract approach, in the absence of an express or
inferred choice, the court looked for the system of law with which the transaction was most
closely connected. This took into account such factors as the place of residence or business of
the parties, the place where the relationship between the parties was centred, the place where
the contract was made or was to be performed, or the nature and subject matter of the
contract. Nonetheless, the common law rule was not as open ended and flexible as might at
first appear. In order to promote certainty in the law the courts identified specific factors as
having great weight in identifying the closest connection in relation to certain contracts. For
example, for insurance contracts the objective proper law would normally be the law of the
state where the insurer carried on business. There can be little doubt that when the English
courts set out to ascertain the objective proper law of the contract they also sought to achieve
certain underlying policy objectives, such as giving business efficacy to the contract.

The Alwahab

Delhi Cloth Mills v Harnam Singh

British Indian Steam Navigation Company v Shanmugavilas Cashew Industries

Vita Food Products v Unus Shipping Co

Units 11 and 12 – Torts:

Philips v Eyre

Boys v Chaplin

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Machado v Fontes

Units 13 and 14 : Marriage:

Hyde v Hyde

Cheni v Cheni

Sinha Peerage Claim

Ali v Ali

Baindail v Baindail

Deepu Dev v State of Kerala

Najma Sirajudin Musliyar v Registrar General of Marriages

Unit 15 and 16 – Adoption:

Laxmikant Pandey v Union of India

Units 17, 18 and 19 – Property:

None

Unit 20 – Recognition and enforcement of foreign judgments

Satya v Teja Singh

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