Kathmandu School of Law Review

P-ISSN : 2091-2110, E-ISSN : 2773-8159, DOI : 10.46985, Publisher : Kathmandu School of Law, Nepal
Annual flagship journal of Kathmandu School of Law, Nepal

Volume 5, Issue 2, November 2017
Articles

Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India

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  • Indrani Kundu
Indrani Kundu
School ofLaw, AURO University, Surat, Gujarat
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Published 2017-11-30

How to Cite

Kundu, I. (2017). Conflict of Laws: Jurisdiction of the Court and Choice of Law in Cross-Border Matrimonial Suit in India. Kathmandu School of Law Review, 5(2), 80–87. Retrieved from https://kslreview.org/index.php/kslr/article/view/977

Abstract

Marriage, a civil union between two persons, involves some legal procedures which determine the rights and liabilities of parties in such civil union. Conflict of marriage laws is the conflict of laws governing status and capacity to marry defined by personal laws of parties to the marriage. Rules of Conflict of Laws are set of procedural rules which determine A) which legal system will be applicable to a given dispute, & B) which Court will have jurisdiction to try the suit.In the words of Dicey and Morris, rules of Private International Law do not directly determine the rights and liabilities of persons, rather it determines the jurisdiction of Court and the choice of body of law i.e. whether by the domestic law or by any foreign law, the case will be decided. This paper, by adopting doctrinal approach, seeks to find the criteria for Indian court to exercise jurisdiction in cross border matrimonial suit. Further, it endeavors to find out the difference between term ‘domicile’ and ‘residence’.

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References

  1. Law Commission of India, 65th Report on ‘Recognition of Foreign Divorces’ 5 April 1976; Law Commission of India; 193rd Report on ‘Transnational Litigation- Conflict of Laws- Law of Limitation, 7 June 2005; Law Commission of India, 219th Report on ‘Need for Family Law Legislation for Non Resident Indians, 30 March 2009.
  2. T.S. Rama Rao, ‘Conflict of Laws in India’, vol. 23(2), Zeitschrift fur Auslandisches und Internationals Privatrecht, 256, 1958, pp. 259-262.
  3. A suit can be related to matrimonial issue, issues of inheritance, movable and immovable property. These constitute the subject matter of a suit. In the conflict of laws rule there are different principles governing these issues. Lex Domicilii & Lex Patriae for governing legal capacity of an individual. Lex Loci Celebrationis governs the formal validity of a marriage. Lex situs governs the immovable property. Lex Domicilii/ Lex Patriae governs movable property.
  4. Characterization in conflict of laws means to identify the problem as to the suit related to person or related to property. The characterization of a problem varies according to the choice of law rules of countries. For example, a suit related to a land may be characterized as a suit related to the person i.e. inheritance, again the same issue may be characterized as the suit related to property i.e. immovable property.
  5. Amit M. Sachdeva, ‘Conflict of Laws’, in Alian Marciano and Giovanni Battista Ramello (ed/s), Encyclopedia of Law and Economics, Springer, New York, 2013, pp. 1-9.
  6. The setting up of matrimonial home in foreign land.
  7. The territorial theory states that every court has jurisdiction over everything and every person present within its territory.
  8. Whatever is there within the territory is of the territory.
  9. Mrs. Sucheta Dilip Ghate v. Dilip Shantaram Ghate, AIR 2003 SC 390.
  10. Mrs. Indira Sonti v. Mr. Suryanarayan Murty Sonti,AIR, 2001, DLT 572.
  11. Ibid, para 4.
  12. This suit involves foreign element.
  13. Harmeeta Singh v. Vikramjit Sen , AIR 2003 DLT 822.
  14. Jagir Kaur & another v. Jaswant Singh, AIR, 1963, SC 1521.
  15. Now repealed. Section 125 of Criminal Procedure Code, 1973 has replaced the provision of maintenance which was there in section 488 of the Criminal Procedure Code, 1882.
  16. Neelkantam v. Annie Neelkantam,1959, Raj., p.133.
  17. Union of India v. Dudh Nath, AIR, 2000, SC 525.
  18. Difference between the terms ‘residence’ and ‘domicile’, available at http://11r8i71smg9y1w70b64etqrh.wpengine.netdna-cdn.com/wp- content/uploads/2016/ 05/Domicile-vsResidence.pdf, accessed on 12 April 2017.
  19. Union of India Case (n 20), para 4.
  20. British India Steam Navigation Co. Ltd. v Shanmughavilas Cashew Industries, AIR 1990 SCC 481.
  21. Civil Procedure Code, 1908, Section 20.