Hague Conventions on Private International Law

The world has to acknowledge the contribution the Hague Conference on Private International Law has hitherto made and continues to make in its endeavour to obtain from the world community approval and acceptance of the outcome of its efforts to unify rules of conflict of laws. India has become an active member of the Hague Conference. This chapter discusses the recognition of decrees of divorces and judicial separation and maintenance obligations; child custody and child abduction; the law relating to succession; the law relating to service of summons abroad; Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 1961; and Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, 1970.

Law of Persons

This chapter deals with the law relating to marriage and divorce, as interpreted and applied by courts in India. Marriage involves many topics/processes such as celebration, divorce, nullity, etc., and each one is accorded a different treatment by the concerned law. The following topics/processes under each matrimonial law are discussed: pre-solemnization requisites; solemnization; divorce; marriages solemnized under the Foreign Marriages Act, 1969; the conversion of spouses of the Hindu, Christian, and Parsi marriages to Islam, and right to polygamy after such conversion; conversion of Muslim women from Islam after dissolution of marriage under Muslim Law; and rights of a Muslim woman to seek divorce and maintenance.

Insolvency and Corporations

This chapter discusses the law of insolvency and corporations as interpreted and applied by courts in India. Topics covered include insolvency jurisdiction of an Indian court; effect of an Indian bankruptcy order on debtor’s property; choice of law in an Indian insolvency; discharge by virtue of an Indian order; effect in India of foreign insolvencies; legal status, domicile, and powers of corporations; and jurisdiction over corporations.

Exclusion of Foreign Law

This chapter discusses restrictions to the enforcement of foreign laws under Indian law. Section 23 of the Indian Contract Act, 1872, forbids an Indian court from recognizing or enforcing a contract where such recognition or enforcement would be opposed to Indian public policy, or where such contract was obtained by fraud. A well-known principle of conflict of laws is that a court will not enforce a foreign penal law, either directly or indirectly. Foreign revenue laws are comparable to foreign penal laws from the standpoint of enforceability. As a matter of principle, a court will not enforce the public law of a foreign country, though the scope and ambit of this principle remains nebulous.

Procedure

This chapter begins with a brief discussion of the jurisprudential distinction between substance and procedure. Substance relates to rights and obligations of the parties to a dispute, whereas procedure is the means employed to determine such rights and obligations. Matters of substantive law are governed by the lex causae (that is, the law that governs the cause of action), the law found applicable under the concerned country’s rules for the choice of law. Matters of procedure, on the other hand, are governed by the lex fori (that is, the law of the forum), the law of country where the action is brought. The chapter covers procedural matters of interlocutory character; remedial measures for enforcing a right; conflict of laws and the law of limitations; matters of enforcement; underlying norms and principles of stay of proceedings; and proof of foreign law.

Validity of Marriage

This chapter examines the inflexible and conservative attitude and approach of the courts in general, that has inexorably led them to treat marriage and its validity as 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. It presents five cases highlighting the switch that had recently taken place in the judicial thinking that establishes the proposition that marriage cannot be treated as an all-purpose concept in respect of related issues such as adoption, legitimacy, and rights of succession of the surviving spouse and children born of a putative marriage. The chapter then discusses the validity of marriage under Section 283 of the Restatement (Second) of Conflict of Laws, 1971; the insulated approach of courts in England; and the hidebound attitude of Indian courts to marriage and other personal law issues.

The Law of Obligations

The law of obligations consists of the law of contracts and the law of torts. The law of obligations, whether it be contract or tort, is the outcome of the act of parties which gives rise to a legal obligation. This chapter discusses the following: foreign contracts and the conflicts resolution process; express choice of law; informed or implied intention; inferred choice of law; inference as to the validity of a contract in case of conflict; absence of express or inferred choice of law; presumptions relating to the proper law doctrine; whether the proper law signifies connection with a country or with the system of law; time factor as an aid to interpretation; the doctrine of renvoi vis-à-vis the proper law; and foreign torts.

Domicile and Residence

Domicile denotes a relationship between a person and a country, but can never arise from membership of a group as distinguished from the country in which the group is domiciled. However, the municipal law of the country of domicile, as is the case with India, may itself distinguish between different classes of its subjects such as Hindus, Muslims, Christians, etc., and apply different rules based on religion. This chapter discusses the following: the meaning and function of domicile; limits of domicile areawise; determination of acquisition of domicile; domicile as a must for everyone; domicile of origin and domicile of choice; domicile of dependent persons (i.e., married women, minors and mentally retarded persons), domicile of corporations; domicile, nationality, and residence; and ordinary residence and habitual residence.

The Trend-setting Developments in Conflict of Laws

This chapter examines the ‘vested or acquired rights’ theory of Professor A. V. Dicey in England and Professor J. H. Beale in the United States, which is traceable to Ulrich Huber (1635-94), a Dutch jurist-cum-judge. Huber’s formulations in respect of the binding force of law in general and conflict of laws in particular is derived from the sovereignty of states which, according to him, is unlimited and absolute. This view is in keeping with Hobbesian theory of sovereignty of states. The chapter aims to impress upon the Indian legal fraternity that it is high time to reorient their attitude and approach to conflict of laws or private international law.

Foreign Judgments

This chapter discusses the recognition and enforcement of foreign judgements by Indian courts. Topics covered include refusal to recognize applicable Indian law; judgement opposed to natural or substantial justice; judgement obtained by fraud; sustaining a claim founded on a breach of Indian law; and foreign arbitral awards and foreign judgements based upon such awards.