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Development of Indian Private International Law

By word Private International law (PIL) we can understand it is a dispute which is present on an International platform. Private International law is also called as conflict of law because the adjudication of dispute involves law of two sovereigns. The private international law can be defined as the one set of law where the issue involves a close connection with a foreign legal system.

The traditional definition of the private international law is that, a dispute which involves a foreign element, where three issue are in question. The foreign element contains the following the questions, firstly the application of law, secondly the court's competence to entertain such claim and lastly the enforcement and recognition of that judgement. The jurists have defined private international law in following ways; Cheshire defines private international laws as, "Private International law is the part of law which comes into play when the issue before the court affects some fact, event or transition that is so closely connected with a foreign system of law as to necessitate recourse to that system".

Breaking down the definition, we can understand the prominence of PIL is to dispense justice to non-domiciled and to ensure that there is equal treatment between a foreigner and a local. Whenever the dispute involves a foreign element in issue, then three questions need to be answered namely, the jurisdiction of court to entertain, by which the issue need to be resolved and the enforcement of that judgment in other nation.

These three questions are only components in the branch of private International law. As there is no legislation pertaining to the private international law, the common law deals with the conflict of law. The basic rule of common law is that the English Courts do not have jurisdiction or competence to entertain the case involving a foreign element in the issues. The jurisdiction of court will be presumed based on the resident of defendant and the empowerment of jurisdiction through statutory law.

In private international law, the domicile of defendant will be taken into consideration and mere place of defendant do not render power to court to trail the case, the court must have separate legislation in dealing with it. When there is question of jurisdiction, various theories will applied to solve the question. The theory of territorial principle is helpful in treating two sovereigns on an equal plane. The territorial principle says that, every court has power to exercise jurisdiction over all persons including the foreigners in its territory. The territory jurisdiction can and cannot be full exercised, where special exception to it are imposed.

These exceptions can be term as special status territories, those areas will not come under the purview of the court, even though it is present in its territory. Hence, it is important for us to know that jurisdiction need to be answered primarily, when the issue involves a foreign element. In most of the cases, the residence of defendant will be take as jurisdiction, based on the principle of convenience. Once the residence of defendant is considered as the competent jurisdiction, then the court must accept the claim against the defendant. It is assumed that the residence of the defendant will be the jurisdiction of the claim.

Another component of the foreign element is recognition of the foreign judgment passed by the court. The question is whether the passed decree will it be applicable and accepted in other country. This is the reason why the unification of private international law rules are often emphasised.

For instance, if the dispute is with relate to the property in England of domiciled person of India, and the claim is execution of the Will made using the rules of India. Then the testament will not be enforceable in England, and the properties located will have no governance through Will. The English courts must decide the claim using the rules of India, to make Will have its enforceability over the properties. The judgment must be recognised by India, as the legal heirs are domiciled here.

The English court will decide which law should be applied for rendering the judgment, as in the present case the court have decided that Indian rules of succession shall be applied. Hence, once the competence of court is decided then, the question as to which law should be applied will be answered. After rendering the judgment the opposite country must accept and recognise the judgment to make sure the judgement passed have enforceability.

The origin of Indian Private International law is when the Charter of 1753 was enacted for solving the question of jurisdiction, where the English courts can only try a claim or determine an issue, when both the parties to the dispute submit their consent to the courts. Here in this case the Mayor's Court will apply English statue and common law for deciding the matter through virtue of Charter of George I of 1726 Mayor's Court. Celebrated plan of 1772 by the then Governor-General Warren Hastings provided that matters like inheritance, dissolution of marriage and other religion sensitive matters, will be decided using the personal laws of Mohammedans and Hindus.

This was due to absence of defined law for succession and inheritance. However Sir Elijah Impey formulated the Regulation of 1781, which provides that when there is no defined law for any matter, then the Mayor courts' must act according to 'justice, equity and good conscience'. This illustrates as the classic example as to how British Government and East India Company shaped when there is conflict of laws in picture. However the dispute as to how statute of England is applied in India is persistent till the enactment of the Indian succession Act, CPC, IPC, Indian Contracts Act and so on. However the British government and courts failed to solved when there is conflict of personal law.

When there is question as the capacity of parties to marry, then in those cases the personal law of the parties will come into picture, where the marriage and the validity of marriage will be governed by the personal laws. The enactment of special marriage act, 1872, regulates marriages of the parties who profess neither of the religion. Further Christian marriages are regulated by the Christian Marriage Act, 1872, where it validities union of Christian and a non-Christian, even when their personal law forbids so. In 1923, union of two religions are governed through enactment of Special Marriages Act.

However it validates a marriage, until that is being forbidden by the personal laws of the parties. In the case of Chetti v. Chetti (1909), the English Court declared a marriage as void, as the Hindu law incapacities marriage with persons from other religion, hence the court declared that marriage between a Hindu and Englishwoman as void. The question of polygamy will also be governed using law through which their marriage is solemnised (R. v. Hammersmith Superintendent Registrar of Marriage, (1917) 1 K.B. 634).

Hence by this we can understand that the nature of marriage will also be governed using the law which validated the marriage. The dissolution of marriage was difficult in Hindu, till the enactment of Hindu Marriage Act, 1955, as there no legislation providing the grounds of divorce and nullity. However the Christian marriage divorces were catered the Indian Divorce Act, 1869 and muslim marriages through extra-judicial dissolution, by pronouncement of Triple Talaq.

The Hindu Marriage dissolution usually happens, when either spouse converts into muslim or christian. This arises problem of polygamy. The disputes relating to the torts, succession, inheritance and procedure, the doctrine of lex situs is applied to solve. The capacity of contract is governed by the lex domicilii under section 11 of the Indian Contracts Act, and to check the validity of the implied contracts, then the doctrine of lex loci contractus comes into picture, where the questions such as age of majority and capacity will be tested.

For instance, the sale of prohibited goods to minors. In the case of Delhi cloth and general Mills Co. Ltd. v. Harman Singh 1955, the intention of the parties are taken into consideration to decide which law must be applicable to resolve the breach of contract. If one of the party wishes to decide the issue based on the place of contract, then it will be taken in consideration as the choice of law, which constitutes as the component of the foreign element present in the issue.

Lastly, the question when relate to the application of procedural law. This question was answered in the case of Messa v. Messa 1938, where it was decided that when Indian court is adjudicating the issue, then the evidentiary rules of India will be applied for submission of evidence or proofs.

In conclusion, it is observed that Indian Private International law rules is influenced from the common law system. The courts played a prominent role in shaping the rules of Private International law of India, where the judicial rulings acted as supplementary factor in determining cases in the absence of legislation for conflict of personal laws. Hence, Indian Private International law is a product of judicial rulings, regulations and 'justice, equity and good conscience'.

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