PRIVATE INTERNATIONAL LAW

1 III TERM PRIVATE INTERNATIONAL LAW COMPILED BY DR. POONAM DASS MS. MEENA PANICKER UPDATED BY NAMITA VASHISHTHA FACULTY OF LAW UNIVERSITY OF DELHI 2016 FACULTY OF LAW, UNIVERSITY OF DELHI DELHI -110007 2016 III TERM PRIVATE INTERNATIONAL LAW I. DEFINITION, NATURE AND SCOPE OF PRIVATE INTERNATIONAL LAW Definition, Nature , Scope, Foreign Element; Unification of PRIVATE INTERNATIONAL Law, Hague Conventions of PRIVATE INTERNATIONAL Law; blurring the distinction between Public and PRIVATE INTERNATIONAL Law; Indian Scenario-quasi federal nature of India hetrogenous society and personal laws, inter personal conflict of laws Expanding horizon of PRIVATE INTERNATIONAL Law- WTO and commercial transactions, Transactions through Cyberspace Introduction to: Jurisdiction lex fori Immovable properties- CPC Ct. A. Ct. Nachiappa Chettiar v. Ct. A. Ct. Subramania Chettiar, AIR 1953 Mad 492 Admiralty in rem jurisdiction ; Carriage by Air Carriage by Air Act, 1972 M.

2 V. Elizabeth v. Harwan Investment and Trading Goa, 1993 AIR 2014 Essar Shipping Limited vs Aquavita INTERNATIONAL & other, O/OJCA/537/2015 available at Matrimonial matters - as per the applicable law Custody of child - Guardians and Ward Act, 1890 (ordinary residence) Ruchi Majoo v. Sanjeev Majoo, AIR 2011 SC 1952 In Personam CPC Anti Suit Injunction Modi Entertainment Network v. G. Cricket Pvt. Ltd., AIR 2003 SC 1177; Piramal healthcare Ltd. v. DiaSorin , Delhi HC, decided on 26 Aug, 2010 Choice of Law; Problematic scope of application-Characterisation, Renvoi Foreign Law nature, proof, application and exclusion Enforcement of Foreign Judgements II. DOMICILE Meaning in General Meaning in the Indian Context primary and secondary domicile Domicile of Origin and Domicile of Choice Dependants Fugitives Domicile of Corporation Central Bank of India v. Ram Narain, AIR 1955 SC 36 Kedar Pandey v.

3 Narain Bikram Sah, AIR1966SC160 1 Joshi v. State of Madhya Pradesh,AIR 1955 SC 334 9 Rashid Hasan Roomi v. Union of India, AIR 1967 All 154 13 Prakash v. Mst. Shahni, AIR 1965 J&K 83 17 Chandigarh Housing Board v. Gurmeet Singh, AIR 2002 SC 587 Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764 Sondur Gopal v. Sondur Rajini, 2013 (9) SCALE 372 III. PROPER LAW OF CONTRACT Evolution of modern proper law theory, English Position Vita Food Products v. Unus Shipping Company, (1939) 2 AC 277 Tzortzis v. Monarch Line, (1968) 1 All ER 909 Compagnie d'Armement Maritime SA v. Compagnie Tunisienne de Navigation SA, ( 1971 ) AC 572-609 HL Amin Rashid Shipping Corporation v. Kuwait Insurance Company, [1983] AC 50 1980 Rome Convention on the Law Applicable to Contractual Obligations Indian Position Dhanrajamal Gobindram v. Shamji Kalidas And Co., AIR 1961 SC 1285 Delhi Cloth and General Mills Co. v. Harnam Singh,AIR 1955 SC 590 20 British India Steam Navigation Company v.

4 Shanmugha Vikas Cashew Industries, (!990) 35 SCC 481 33 NTPC v. Singer Company, (1992) 3 SCC 551 36 Renu Sagar Power Company v. General Electric Company, AIR 1994 SC 860 IV. TORT Thoeries lex fori, lex loci delicti, proper law or social environmental theory, development of proper law of tort cases UK and Indian Position Philips v. Eyre, (1870) LR 681 Boys v. Chaplin, 1971 AC 356 Choice of Law in Tort Under the PRIVATE INTERNATIONAL Law (Miscellaneous Provisions) Act 1995 , ,10, 11,12 & 14 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) Articles 1,4,8, 9,11, 12,14,15 Govindan Nair v. Achuta Menon, (1915) ILR 39 Mad 433 V. MARRIAGE MATRIMONIAL RELEIFS Capacity and Formal validity of marriage, Divorce, Adoption and custody of children Lakshmi Sanyal v. S K Dhar, AIR 1972 SC 2667 Smt. Mira Devi v. Smt.

5 Aman kumari, AIR 1962 Madhya Pradesh 212 38 Parwatawwa v. Channawwa, AIR 1966 Mysore 100 44 Rosetta Evelyn Attaullah v. Justin Attaullah, AIR 1953 Calcutta 530 60 Joao Gloria Pires v. Mrs. Ana Joaquina Rodrigues e Pires, AIR 1967 Goa, Daman and Diu 113 68 Satya v. Teja Singh, AIR 1975 SC 105 73 Neeraja Saraph v. Jayant V. Saraph, 1994(4) SCALE 445 85 Dhanwanti Joshi v. Madhav, 1998 1 SCC 112 Kuldeep Sidhu v. Chaman Singh, AIR 1989 Punj & Har 103 Laxmikant Pandey v. Union of India, AIR 1984 SC 469 (Rules for inter country adoption0 VI . FOREIGN JUDGEMENTS Recognition and Enforcement and A Civil Procedure Code, 1908 Y. Narasimha Rao v. Y. Venkatalakshmi, (1991) 3 SCC 451 87 Deva Prasad Reddy v Kamini Reddy, AIR 2002 Karnataka 356 Sankaran Govindan v. Lakshmi Bharathi, AIR 1974 SC 1764 94 Lalji Raja & Sons v. Hansraj Nathu Ram, AIR 1971 SC 974 108 Marggarate Maria Pulparampil Nee Feldman v.)

6 Dr. Chacko Pulparampil, AIR 1970 Kerela 1 110 V. Ravichandran v. Union of India, (2010) 1 SCC 174 Arati Bandi v. Bandi Jagadrakshaka Rao, AIR 2014 SC 918 Surya Vadanan v. State of Tamil Nadu & Ors., AIR 2015 SC 2243 114 VII. ARBITRAL AWARDS Recognition and Enforcement Badat and Company v. East India Trading Company, AIR 1964 SC 2826 BOOKS RECOMMENDED Paras Diwan, PRIVATE INTERNATIONAL Law, 4th Ed., Deep and Deep (1998) Atul M Setalvad, Conflict of Laws, 3rd Ed., Lexis Nexis(2014) V. C. Govindaraj, Conflict of Laws in India, Oxford University Press (2011) Cheshire, North & Fawcett: PRIVATE INTERNATIONAL Law, 14th Ed. Oxford University Press (2008) Note: The above topics/cases are not exhaustive. The teachers teaching the course have liberty to add new topics/cases. III Term Examination, November-December 2015 Note: Attempt any five questions.

7 All questions carry equal marks 1. Define PRIVATE INTERNATIONAL Law and distinguish it from Public INTERNATIONAL Law. Discuss the nature and scope of PRIVATE INTERNATIONAL law and explain why there is a need for unification of rules of PRIVATE INTERNATIONAL Law. 2. (a) What is domicile of origin and domicile of choice? When does a person get back his domicile of origin? Refer to judicial decisions. (b)(i) Govinda married person leaves Indiato settle in Canada. He purchased a house in Canada and writes to his wife in India about the said purchase. He informs her that he will soon take her to Canada. But in the meantime, after 2 years of job in Canada, Govind finds a lucrative job in Australia and he moves there. He finds Australia much better place to work and writes to his wife about the better job, perks and life style in Australia. He plans to bring his family in Australia very soon. However, his wife objects to the idea of settling in Australia due to racism there.

8 But Govind successfully persuades his wife to settle in Australia. In Australia, till date he has spent only 6 months. Explain the status of domicile of choice of Govind in the above problem. Give reasons. (ii) After abandoning his home in state P, a man took his family to house in state R, about a mile from state P. After depositing his belongings there, he returned to state P with a view to spend the night with a relative. He fell ill and died on that very night. What was his domicile of the person at the time of his death? Give reasons. 3. Discuss the theory of proper law of contract under PRIVATE INTERNATIONAL Law. Refer to decided cases. 4. What are the theories governing PRIVATE INTERNATIONAL Law of Torts. Explain the UK and Indian positions with the help of decided cases. 5. Discuss the rules of PRIVATE INTERNATIONAL Law governing the capacity and formal validity of marriage. Refer to decided cases. 6. (a) Discuss the issuesunder PRIVATE INTERNATIONAL Law relating to Inter Country Adoption.

9 Explain the Indian position in the light of ratio propounded in Laxmi Kant Pandey v. Union of India, (2001) 9 SCC 379. (b) Jurisdiction of a court is not barred in cases involving custody and removal of a child by a parent from a foreign country to India in contravention of the orders of the court where the parties had set up their matrimonial home . Critically analyze the above proposition in the light of the judgment in RuchiMajoo v. Sanjeev Majoo, AIR 2011 SC 1952. 7. (a) Under what circumstances the courts in India will recognize and enforce the foreign judgment? Discuss in the light of statutory provisions and decided cases. (b) Meera and Rajesh after marriage went to California, USA. Within few months, matrimonial fight broke out between them. Meera subsequently returns to India. In the meantime, after waiting for 6 months Rajesh files a suit for divorce there in California and gets an ex-parte decree, thus annulling the marriage.

10 Subsequently, Rajesh remarries with another woman. Upon hearing this Meerafiles a case for bigamy in the Indian court. Can the decree granted by the US court be recognized by the court in India? Give reasons. 8. Write short note on any two of the following: (a) Domicile of Dependents. (b) Principle of Comity of Courts under Conflict of Laws. (c) Forum Shopping.. III Term Examination, November-December, 2014 Note: Attempt any five questions. All questions carry equal marks 1. The varying rules of PRIVATE INTERNATIONAL law in different countries for granting relief in matrimonial matters has resulted in conflict of laws situation. Discuss with reference to decided cases in relation to divorces granted by foreign courts, where marriages have been solemnised in India as per Hindu rites. What are recommendations of Indian courts for safeguarding interests of Indian woman married to NRI. 2. Discuss the definition, need and scope of rules of PRIVATE INTERNATIONAL law.