The document discusses key issues in applying private international law to divorce cases, including multiplicity of forums, recognition of foreign divorce decrees, and India's approach. It notes that multiple countries can have jurisdiction over divorce cases, and recognition of foreign decrees depends on principles of comity and reciprocity. While Indian courts have recognized principles like domicile in divorce cases, the rules are scattered and not codified uniformly, leaving gaps that could allow exploitation. The document argues that India needs coherent legislation to properly deal with divorce and other issues in marriages involving Non-Resident Indians.

1. Table of Contents
ABSTRACT ............................................................................................................................. 2
INTRODUCTION..................................................................................................................... 3
“Divorce In Private International Law”............................................................................... 3
The Issue Of Multiplicity Of Forums and the Choice Of Law ................................................... 5
Recognition of Divorce Decrees ............................................................................................. 6
Application of Private International Law in Indian Divorce Cases ........................................... 7
Such law should consist of provisions for :......................................................................... 8
Conclusion ............................................................................................................................ 9

2. ABSTRACT
The legal character of private divorce, as well as the changes in legal regulation and its
acknowledgment as a legal fact, is discussed in this article. Different ways to comprehending
the nature of private divorce are discussed, as well as the indicators that it manifests. The
reasons for unwillingness to recognize private divorces in various nations are examined.
There are no grounds for non-recognition of a private divorce if it is recorded in state
organisations of third countries where such a procedure of dissolution of marriage is
regulated by law.
In English law, a marriage though a contract, is a sui generis. Each legal system determines
the attributes of a marriage, at Common Law in England; it is in essence a consensual union
of a man and woman. In a celebrated (or notorious) case in 1866, Hyde v. Hyde, it was held
that a marriage was voluntary union for life of one man with one woman to exclusion of
others. This decision was the foundation of the rule that polygamous marriages were not
recognized in England. Even when divorces became easier, the concept was maintained, as
the dissolubility of a marriage did not affect its legal character.8 This was also the position in
Australia, and Canada. In India, among Hindus marriage has always been regarded as
sacrament, whilst in Mohomedan Law, it is a contract. The formal requirement of the
marriage will be governed by the law of the country where the marriage is celebrated. A
marriage can be celebrated if the parties meet the substantive requirement of the domestic
law of the country where the marriage is celebrated, and one of the parties is a national of that
state, or habitually resides there; and each party satisfies the substantive requirements of the
law applicable to the parties in accordance with the conflict of law rules of the place where
the marriage is celebrated.

3. INTRODUCTION
“Divorce In Private International Law”
With people's desire to seek higher living conditions, education, or work prospects expanding
as a result of globalisation, the use of private international law in family conflicts is
becoming more widespread. Private International Law, commonly known as 'Conflict of
Laws,' is a set of laws, regulations, and ideas that deal with legal disputes between persons or
constituents of two sovereign states, extending beyond national borders. When it comes to
family disputes, Private International Law can be used in a variety of situations, including
parental kidnapping, international child support concerns, cross-cultural marriage
registration, dual citizenship issues, and matrimonial disputes like divorce or judicial
separation.1
Capacity to marry is an important factor contributing towards the validity of marriage. There
can not be any valid marriage unless each party to the marriage is capable to marry. The
capacity of parties to the marriage differs from one legal system to another legal system. The
nature of marriage differs from culture to culture and country to country2
.In Shaw v. Gould3
Lord Westbury observed that ‘Marriage is the very foundation of civil society, and no part of
the laws and institutions of a country can be of more vital importance to its subjects than
those which regulate the manner and condition of forming, and if necessary of dissolving, the
marriage contract’. The observation of Lord Westbury shows the importance and relevancy
of marriage in the always changing society. Question relating to validity of marriage may
also arise in several contexts other than the judicial proceedings4
. As Morris has pointed out
that on a matter of such importance there is a need for certainty in the choice of law rules. In
Lawrence v. Lawrence5
Lincoln J. observed that ‘Ideally, the conflict rules relating to the
status of married and divorced persons should be simple and easily understood. Unfortunately
the relevant English conflict of laws rules have yet to attain the necessary degree of clarity
andcertainty’6
. This, unfortunately, is true for India and many other countries. In India the
1
Habibi Fahnrich v. Fahnrich, 1995 WL 507388, N.Y. Sup.
2
David McClean, The Conflict of Laws by the Late J.H.C. Morris199, (2010).
3
(1868) L.R. 3 H.L. 55.
4
Judicial proceeding on marriage includes Divorce, judicial separation, annulmentof marriage which directly
raises the issue of validity of marriage.
5
[1985] 1 All E.R. 506.
6
David McClean, The Conflict of Laws by the Late J.H.C. Morris200, 201

4. situation is further complicated with the existence of various personal laws and their
difference with one another.
It is necessary to identify the major concerns that cause uncertainty in order to decipher the
application of Private International Laws in divorce cases. The first issue is the Multiplicity
of Forums, which allows two or more countries to make decisions on the same issue. The
second issue concerns the recognition of a divorce decree in a state other than the one that
issued it. At this point, it would be useful to look deeper into these difficulties. The institution
of marriage gives rise to obligations, conjugal relations and certain rights between the
spouses and this is the reason why law seeks the discharge of those marital obligations. In
India, conjugal right is believed to be inherent in the very institution of marriage and not a
mere creation of statute. But in cases where foreign element, i.e. Private International Law, is
involved, then for the purpose of resolution of Conflict of laws, the Courts resort to the
Principles of Comity or Courtesy and in some cases, the Courts also use the Principle of
reciprocity.
International family law has become a prominent subject, transcending the traditional
boundaries of public and private international law, as a result of globalisation and the
increasing movement of persons and families across national borders.7
The Hague Children's
Conventions have produced a new system of international law in the context of cross-border
children's concerns, which has been fully welcomed by American courts and lawmakers and
incorporated in federal legislation and uniform state laws.
At the same time that marriage and family life have become more globalized, countries
around the world have made large changes to their domestic laws in ways that have reduced
the scope and scale of traditional conflicts problems. Since 1971, substantive and procedural
restrictions on marriage have been eased, rates of non marital cohabitation have increased,
and new alternatives to marriage have emerged, such as the civil union and domestic
partnership. As described by Mary Ann Glendon8
, many countries have experienced both
“a progressive withdrawal of official regulation of marriage formation, dissolution, and the
7
See generally ANN LAQUER ESTIN, INTERNATIONAL FAMILY LAW DESK BOOK (2d ed. 2016)
8
MARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW: STATE, LAW, AND FAMILY IN THE UNITED
STATES AND WESTERN EUROPE 2 (1989)

5. conduct of family life” and, at the same time, “increased regulation of the economic and
child-related consequences of formal or informal cohabitation.”
The Issue Of Multiplicity Of Forums and the Choice Of Law
Multiplicity of the Forums is a difficulty that emerges when the subject matter and personal
jurisdiction of a case are shared by the courts of more than one country. Subject matter
jurisdiction relates to the court's ability to decide on the issues at hand, whereas personal
jurisdiction refers to the court's competence to enforce the outcome of the dispute.9
The
Principle of Domicile, according to which a court becomes competent to adjudicate on
divorce cases if at least one of the parties maintains a habitual residence within the territorial
jurisdiction of the said court or meets the minimum statutory residence requirement, is highly
valued in Common Law countries.
Other legal systems, on the different hand, may recognise other principles for asserting
jurisdiction, such as the couples' citizenship, the site of marriage, the spouses' domicile at the
time of the marriage, or the spouses' religion.10
This indicates that the implementation of the legal concept is not uniform and might vary
from state to state. As a result of these disparate principles, it is occasionally possible for
more than one nation to have jurisdiction over a given issue. As a result, gaining a thorough
awareness of the jurisdictions of other nations' courts is critical in order to avoid the issues
that come from the diversity of forums. In the United States of America, for example, the
court that issues the final decree first has precedence, and its decision is regarded binding on
the parties.11
When it comes to the European Community, however, the doctrine of "Lis
Pendens," as incorporated in Brussels II,12
provides that the court or tribunal where the
divorce action is first filed has exclusive jurisdiction over the matter.
As a result, it's critical to understand which court should be contacted, given the principles
that govern how courts are granted jurisdiction. Furthermore, few current alternatives have
9
Williams v.North Carolina, 317 U.S. 287, 63 S.CT. 207, 87 Ed. 279 (1942).
10
Tan Yock Lin, “Conflicts Issues in Family and Succession Law”, pp. 331-336, 1993.
11
Md. Code Ann, Cts. & Jud. Proc. 6-103.1 (2002).
12
Margarate Bennett, Private International Law Concepts in Divorce, ABA Family Law Section Spring CLE
Conference in San Juan, Puerto Rico, April 30, 2004.

6. been established to the problem of Choice of Law, which deals with the application of legal
principles when there are multiple options. These include identifying each State's policy
interest in seeing its laws implemented. This is based on the idea that the most appropriate
decision would be to apply the law of the state having the closest link to the dispute's subject
matter. Although subjective in nature, this approach permits a nation to deny the applicability
of foreign law when it has a significant impact on the state's public policy.
Recognition of Divorce Decrees
To maintain a positive relationship with the international community, most countries adhere
to specific criteria when enforcing a judgement issued by a foreign court. The Principle of
Comity is one such principle. It essentially refers to a state's deference to the laws of another
state. The doctrine's use and implementation fall in between civility and strict requirement.
Similarly, countries that have similar legal traditions, solid diplomatic relations, and a history
of respecting the validity of each other's judicial judgements tend to continue the same
relationship for mutual advantage. In such circumstances, a nation is more inclined to
acknowledge the validity of a foreign court's decision. These principles were acknowledged
in the United States through Section 98 of the Second Restatement of Conflicts of Laws,
which stated that a lawful judgement rendered by a foreign government after a fair trial will
be regarded as binding. 13
The scope of the same has further been extended by Section 498 of the Restatement (Third)
of Foreign Relations Law (1987) by making extensive references to the Hague Convention
on the Recognition of Divorces and Legal Separations, 1970.14
However, Clause (1) of the
said Section states that it is not mandatory for the United States to recognize the divorce
decree of a nation that was neither the domicile nor a place of residence of any of the
spouses, even when the parties might have been the nationals of that state.15
13
As modified in 1988. See generally Courtland H. Peterson, Foreign Country Judgements and the Second
Restatement of Conflicts of Laws, 72 COLUM. L. REV. 220 (1972).
14
Restatement (Second) of Foreign Relations Law, Sec. 484 (AM. LAW INST. 1965) (incorporating Hague
Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations (June 1, 1970)).
15
The Hague Convention on the Recognition of Divorces and Legal Separations (Hague Divorce Convention),
1970, Sec. 484 (1).

7. This was further reiterated in the case of Juma v. Aomo16
, where it was held that even when a
foreign court exercises its jurisdiction on the ground of nationality, if neither of the parties
resided in that country, such decree passed by the foreign court will not be recognized in the
United States. Moreover, in the case of Aleem v. Aleem17
, it was stated by the court that
divorce decrees that discriminate between a man and woman are contrary to the public policy
as well as the constitutional mandate of equality. Therefore, such decrees cannot be
recognized as valid.
Foreign divorce decrees that contravene basic legal norms, constitutional norms, or equal
protection principles are also considered outside the jurisdiction of the rules of comity or
reciprocity in most nations, making them solely discretionary.
Application of Private International Law in Indian Divorce Cases
Now, to understand the application of Private International Law in divorce cases in India, it
will be pertinent to note a few provisions of the relevant legislation at the outset. Section 13
of the Civil Procedure Code, 190818
provides that a foreign judgment is conclusive where it
is pronounced by a court of competent jurisdiction. At the same time, Section 41 of the
Indian Evidence Act, 187219
states that the final judgment given by the court in the exercise
of its matrimonial jurisdiction is binding.
The main point that can be noted here is that the foreign court should have the jurisdiction to
deal with certain cases and only when a final decision is given by such a court, it is
considered to be valid. Most of the time, such jurisdiction is conferred through the principle
of Domicile. Now, when it comes to the rule of domicile, as per the judgment in the case of
Mesurier v. Le Mesurier (1895),20
the domicile of the wife follows that of the husband and,
therefore, a court situated where the husband is domiciled has a valid jurisdiction. This point
was analysed in the case of Satya v. Teja Singh in 197421
, wherein, even though it was
accepted that the wife’s domicile follows the domicile of the husband, emphasis was placed
16
Juma v. Aomo, 68 A.3d 148 (Conn. Ct. App. 2013).
17
Aleem v. Aleem, 931 A.2d 1123, 1123 (Md. Ct. Spec. App. 2007).
18
The Civil Procedure Code, 1908, Section 13.
19
The Indian Evidence Act, 1872, Section 41.
20
(1895) AC 517 (B).
21
1975 AIR 105.

8. on Section 13 (e) of the CPC, 1908.22
The said Section states that the judgment given by a
foreign court or tribunal can be challenged where it is obtained by fraud. In the said case,
wherein the husband defrauded the court by stating that he was domiciled in the State of
Nevada, where it was actually found that he never resided there for a considerable period of
time, it was held by the court that the decision given by such a court will not be considered
binding in India.
Likewise, the International Principle of Domicile has been recognized by the court in various
cases such as Chistopher Andrew Neelakantan v. Mrs. Anne Neelakantan23
, wherein the
court relied on Dicey’s Conflict of Laws (7th Edition)24
to focus on the same. However, as is
evident from these cases, the rules for dealing with such matrimonial issues have only been
recognized by the courts but have not been specifically laid down in any particular
legislation.
Such rules are scattered in different legislations, such as Foreign Marriage Act, Special
Marriage Act, etc. When we talk about the Foreign Marriage Act, 1969, its provisions do not
make it compulsory for foreign-based parties to solemnize their marriage under the said Act
and leaves it to their discretion. They also do not deal with the issues of dissolution of
marriage, nullity of marriage, or any matrimonial relief. Therefore, the said legislation is not
adequate to provide solutions for various problems that are likely to arise in such marriages.
Moreover, the principles that are followed by the courts are diverse and uncodified. This
leaves a wide scope for exploitation of the loopholes which can create several social evils,
such as abandonment of a wife by an NRI husband, assault, torture or abuse of women,
obtaining an ex- parte divorce decree against the wife in some foreign country, etc. We,
therefore, need cogent and uniform legislation to deal with the cases of divorce and other
matrimonial issues in NRI-based marriages.
Such law should consist of provisions for :
1) The mandatory registration of a marriage under that Act;
2) Filing of an affidavit stating the marital status of both spouses;
22
The Civil Procedure Code, 1908, Section 13 (e).
23
AIR 1959 Raj 133.
24
Graveson, R. (1959), The Seventh Dicey, The International and Comparative Law Quarterly, 8(1), 1-17.

9. 3) Declaring an ex-parte decree, without the knowledge of the other spouse in foreign
jurisdictions, as invalid;
4) Adoption as well as Child Custody;
4) Recognition of joint property for NRI couples and the relevant rules for their division;
5) Matrimonial remedies as well as the clear provisions for divorce and judicial separation.
The best way to incorporate this set of suggestions would be to provide for bilateral
cooperation between Foreign governments and the Indian Government with regards to
matrimonial issues and the aggrieved spouses.
Conclusion
Evidently, there are a variety of issues, such as a patchwork of rules and regulations
governing marriage conflicts, particularly in circumstances when more than one forum is
accessible for the same, or where the spouses are domiciled in different countries. The
optimum approach in all of these scenarios would be to create a framework that includes all
of the regulations that must be followed when dealing with such issues. As a result, exactly as
European nations are bound by the Brussels II framework for the Regulation of Foreign
Orders Recognition25
.
India should also make a concerted effort to enter into multilateral or bilateral agreements
with other countries to set standards for the recognition of marriage decrees in their
jurisdictions. This would not only provide much-needed clarity to the relatively muddled
restrictions, but it would also aid in the prevention of marital exploitation due to loopholes in
national and international laws and agreements.
25
divorce-in-private-international-law/#_ednref18) Supra note 5.