Property

Property may be movable of immovable. The law that governs movable property is the law of domicile of the party, that is, lex domicilii. The law that governs immovable property is the law where it is situated, that is, lex situs. Immovables not only mean lands, but include all estates, interests and charges in and over lands. They include freehold and leasehold interests, freehold lands subject to a trust for sale though the sale has not taken place, rent charges, mineral rights, and also the interests of a mortgagee. However, rent charges arising out of an equitable claim, based on a contract between parties, partake of the character of a movable property, which can be recovered by an action in an Indian court, the presence of the defendant within its jurisdiction being the condition precedent. There is yet another well-established principle of conflict of laws that municipal courts refrain from exercising jurisdiction in respect of title to, or any kind of right or interest in, foreign immovables.

Foreign Arbitral Awards and Foreign Judgments Based upon Such Awards

The New York Convention on foreign arbitration, by Article V (1) (e) lays down a procedural norm that an arbitral award, duly rendered, attains finality if, and only if, a domestic court endorses it. This procedural norm was endorsed by the Supreme Court of India in two leading cases. The ratio that the Supreme Court employed in the above-mentioned cases is in accordance with Section 17 of the Indian Arbitration Act, 1940. Such an endorsement by a local court of the forum that was required under Article V (1) (e) of the New York Convention was done away with by the Arbitration and Conciliation Act, 1996 under Section 35. The forum for the conduct of arbitration in the country of the applicable law also is not indispensable; and it is for the court exercising jurisdiction to determine, on the basis of balance of convenience, the place for the conduct of arbitration, taking into consideration the local status of the parties, such as that one of the parties cannot afford to go to the country of the applicable law, coupled with the availability of evidence, oral and documentary, at the place where the court is exercising jurisdiction.

Law of Persons

The Indian subcontinent is inhabited by three principal communities, namely the Hindus who are in the majority, followed by Muslims and Christians. The Christians, though numerically in the minority, enjoyed the support of the British rulers for them to claim a separate legal status. Hindu law did not permit divorce, whereas Muslim law allowed divorce only the male spouse and Christian law allowed divorce to both the male and the female spouses. Conversion to Islam by the Hindus and the Christians brought about inter-personal law conflicts. The Regulating Act, 1781, enacted by the British rulers, introduced the rule that in a court action, where the parties professed different religions, the applicable law was the law of the defendant. As this rule failed to produce a satisfactory result where a Hindu wife, who got converted to Islam, could not get divorce that she sought because Hindu law did not permit divorce, Ormond, J. introduced the norm of justice, equity, and good conscience. Recent reforms in the Hindu law, coupled with enactment of the Muslim Marriage Act, 1939, brought about relief to wives who embraced Islam and sought relief. Courts played a significant role by giving a divorced Muslim wife maintenance right for life.

Brief Outline for the Case Study

Conflict of Laws or Private International Law, as it is also known, is a tough branch of jurisprudence. Transactions across frontiers in the globalized village we live in are so frequent and so numerous that courts of law, and, in particular, the higher judiciary, namely the Supreme Court and the High Courts, are called upon to resolve them in order to render justice to the parties before them....

Domicile and Residence

The domicile of a person is in that country in which he either has or is deemed by law to have his permanent home. The concept of domicile is the creation of law. A person acquires a domicile in a country based on his intention to set up residence there permanently animo et facto, that is, intention and fact of residence. The Indian Conflict of Laws, though by and large based on the English Conflict of Laws, nevertheless rejects the English doctrine of revival of domicile of origin by virtue of Section 13 of the Indian Succession Act, 1925.

Law Relating to Procedure

The jurisprudential distinction between substance and procedure is that substance relates to rights and obligations of the parties to a dispute, and the procedure is the means employed to determine such rights and obligations. To elucidate the above distinction between substance and procedure, we may cite Article V (1) (e) of the New York Convention as example, which lays down the rule that a foreign arbitral award duly rendered becomes final and binding if, and only if, a domestic court endorses it. This procedural requirement finds its reflection in Section 17 of the Indian Arbitration Act, 1940. The said procedural requirement was done away with by the Arbitration and Conciliation Act, 1996 (See Section 35). Also, the procedural requirement for the conduct of arbitration in the country of the applicable law is not indispensable; and it is for the local court exercising jurisdiction to determine, based upon the interests of the parties before it, its jurisdictional competence. Municipal courts apply their local law of limitation as part of their procedural law in conflicts resolution.

Validity of Marriage

Strange as it may seem, courts in general have a tendency to treat marriage and its validity as an all-purpose concept, may we say omnific, vis-à-vis correlative issues such as adoption, legitimacy and rights of succession, testate or intestate, of a surviving spouse and children born of such marriage. Marriage may be good for the purpose of one issue and yet invalid for the purpose of another; as Professor Willis L.M. Reese says. The same attitude they bring to bear in respect of adoption. They blindly follow the opinion of authoritative law givers, ignoring the rules of conflict of laws.

The Law of Obligations

Professor Dicey in England and Beale in the United states propounded the ‘jurisdiction selection’ rule, according to which the law to govern a foreign contract is the law of the country where the contract is entered into, and the law to govern issues of performance is the law of the place of performance. Similarly, in the case of a foreign tort, the governing law is the law of the country where the tort is committed. This jurisdiction selection rule held sway till the first half of the twentieth century. As opposed to the above doctrine, Professor Morris propounded the ‘proper law’ rule to govern the Law of Obligations, whether it be a foreign contract or a foreign tort. According to the proper law doctrine, in Morris’s opinion, it will help achieve results which are ‘commercially convenient and sound’ in the case of foreign contracts and ‘socially convenient and sound’ in the case of foreign torts.

Foreign Judgments

A foreign judgement, even as a local judgement, should be assigned finality and decisiveness, if it is in conformity with the lex fori and, at the same time, does not ignore the applicable substantive law of the transaction. Hindu husbands, who go abroad either for higher studies or seeking lucrative jobs overseas, obtain a divorce for foreign courts in such of those states where domicile can be acquired by a make believe ‘six weeks’ or, as for that, a ‘three months’ stay. The concerned foreign courts grant divorce ignoring the law, that is, Hindu law, that governs their relationship. In order to circumvent such abuses, Section 13 of the Civil Procedure Code has to be suitably amended so as to curb divorce decrees granted by foreign courts in violation of rules of conflict of laws.

Law Relating to Children

Courts play the role of a guardian angel in promoting and protecting the interests of children. The Guardians and Wards Act, 1890, introduced major reforms in matters of jurisdiction of Indian Courts, appointment of a guardian to secure the welfare of a child, recognition by an Indian court of a foreign court’s order as to the custody and guardianship of a minor, as also the rights of a guardian so appointed under the law of a foreign country. Courts play a major role in matters relating to the upbringing of children. The higher judiciary plays the role of parens patriae in preserving and promoting the welfare of children and restoring children to their habitual residence in cases of their abduction by either of the spouses. On the subject of guardianship of children born out of wedlock, courts recognize the mother as the natural guardian in preference to the putative father.