Typically, cases brought before municipal courts predominantly involve matter
with intrinsic connections. Consequently, the customary cases presented for
adjudication in Indian courts are characterized by a cause of action originating
within the territorial boundaries of India, involving parties who possess Indian
nationality and domicile. On occasion, Indian courts also exercise jurisdiction
over matters bearing foreign elements, wherein at least one aspect of the
lawsuit maintains a nexus with a foreign jurisdiction.
It is plausible that Indian courts may be called upon to adjudicate matters
pertaining to the inheritance of assets from an individual who died in India,
leaving behind both movable and immovable properties within India and overseas.
Similarly they may be tasked with resolving a divorce petition initiated by an
Indian domiciled with the Indian jurisdiction, who had entered into matrimony
with an English woman in England. These instances underscore the presence of
foreign elements with such cases.
Hence, with regard to cases involving foreign elements, a domestic court may be
summoned to address the following tripartite inquiries:
Application of private international law:
- Under what circumstances shall the court exercise jurisdiction over
cases imbued with foreign elements?
- Should the court affirm the first inquiry, will it resolve the matter
exclusively in accordance with Indian legal principles, or shall it employ
the pertinent foreign jurisprudence?
- Under what conditions will the court acknowledge a foreign judgment, and
when will it authorize the enforcement of a foreign decree?
According to Dicey and Morris, English private international law is that branch
of law of England which "consists of rules which do not directly determine the
rights and liabilities of particular persons but which determines the limit of
jurisdiction to be exercised by the English courts and also the choice of the
body of law, whether domestic law of England or the law of the foreign country
by reference to which english courts are to determine different matters brought
before them for decision."
Private international law, despite being an integral facet of domestic
jurisprudence, does not pertain to a singular legal domain but, in practical
terms, encompasses a comprehensive array of legal disciplines. Consequently, it
maintains an expansive purview.
Taking into a broad perspective conflict of laws may arise in the following two
- When the laws of two or more countries with which the case is connected
differ from each other.
- The conflict may arise between the laws of the same country. This may
When laws of different states or provinces of a country differ from each other,
just as laws of the states of the USA. This is a case of conflict of territorial
When the laws of different communities in a country differ from each other. For
example, in personal matters laws of Hindus, Muslim, Christians and Parsis
differ from each other in India. This is a case of conflict of personal laws of
In addition to India's domestic legal framework, the second realm of Indian law
is dedicated to the delineation of territorial boundaries governing Indian
courts. It is responsible for ascertaining whether a particular case should be
adjudicated based on India's internal legal norms or the pertinent foreign legal
provisions, without directly adjudicating the substantive rights and obligations
of the parties involved. This legal discipline, known as private international
law, becomes operational when a case exhibits foreign elements, and it serves to
determine the jurisdictional limits of Indian courts.
The term "foreign law," when invoked within the context of cases involving
foreign elements, warrants an examination of its specific legal connotation. In
conventional language, foreign law signifies the legal framework of foreign
nation. However, within the purview of private international law, foreign law
carries technical significance. It denotes the application of a legal system
distinct from the one that the court would employ for purely domestic cases.
Hence, in this context, such a legal framework is designated as foreign law.
Subject matter of Private International law:
India as well as countries of common law system consider the following as the
subject-matter of private international law:
- Rules relating to jurisdiction of courts.
- Rules of choice of law.
- Rules relating to recognition and enforcement of foreign judgment and decrees.
The entirety of the case's adjudication rests upon these three fundamental
The characterization of a specific set of facts stands as an essential
preliminary phase in the resolution of cases involving foreign elements.
However, despite the extensive body of literature dedicated to this subject, the
issue of characterization remains one of the most intricate challenges within
the domain of private international law. The substantial divergence in legal
systems across the world occasionally renders the matter of characterization
seemingly insurmountable. The subject is specifically discussed under the
A. The problem:
- The nature of the problem involved in characterization.
- Theories of characterization
- Process of characterization.
To elucidate the challenge of characterization, it can be elucidated through a
select number of illustrative examples.
- An Indian court is called upon to adjudicate the question of inheritance
to the immovable property situated in India of a married woman domiciled in tibet.
The female had married in a polyandrous form of marriage- polyandry being
recognized in the Tibetan tribe to which she belonged. The property is claimed
by her two husbands and three children on the one side, and by her two brothers
on the other. It will depend on the way the Indian court characterizes the
polyandrous union of the deceased woman.
If this union is characterized as a valid marriage- her husband and children
would inherit the property.
On the other hand, if this union is characterized as no marriage, then brothers
of the deceased women will inherit the property.
- An Indian domiciled Muslim goes to England and marries there in a
registry office to a German domiciled woman. Later on, the German wife files
a petition for a declaration that her marriage is null and void, her husband
being already a married person. Suppose the petition is filed in an English
or German court. Much will depend on the question whether the English or
German court will recognize the polygamous marriage performed in India. If
they do so, the declaration will be made, otherwise not. But if the petition
is filed in India, the petition will not succeed, since in India polygamous
unions are recognized as valid marriages under Muslim law.
- An English domiciled in England enters into a contract marriage with a
French lady domiciled in France. Later on he refuses to perform the
marriage. Much would depend on where the action is brought.
If the action is brought in England- English court characterizes the breach of
marriage promise as breach of contract, it might award compensation. As it is
under the English domestic law.
If the action is brought in France- It will be characterized as tort, as it is
in French domestic law, the result would be different.
Therefore, any court vested with jurisdiction over a case featuring foreign
elements must initially ascertain whether a given set of circumstances engenders
legal entitlements, duties, the establishment of legal relationships,
institutions, or interests in a tangible asset. The fundamental inquiry pertains
to the legal framework by which the court shall characterize these factual
circumstances, thereby enabling the attainment of a just and socially desirable
outcome. This represents the pivotal query, for without its resolution, the
court's proceedings cannot advance.
For instance following are some of the well
recognized rules of private international law: capacity is governed by- lex
domicilii; the formalities are governed by- lex loci celebrationis or lex loci
contractus and immovable are governed by- lex situs. Unless the court evaluates
what is meant by capacity, formalities or immovable property, it would be almost
impossible for the court to proceed with the case.
B. Theories of Characterization:
The subsequent presentation outlines four theories of characterization: (a)
Characterization should be governed by the lex fori, (b) Characterization should
be made under lex causae, (c) Characterization should be made in two stages:
primary characterization and secondary characterization, (d) Characterization
should be based on comparative law and analytical jurisprudence.
For the purpose of characterization, Beckett divides the case into the following
- Characterization on basis of lex fori:
"Lex fori," a Latin expression signifying the laws of the forum, constitutes a legal terminology within the field of conflict of laws. It is used to refer to the laws of jurisdiction in which a legal case is brought.
Thus it is implied that lex fori governs procedural matters. It refers to the law of the forum, which means the law that country naturally applies.
- When a court is tasked with characterizing a foreign law, institution, legal relationship, or a set of foreign circumstances, it should make this determination by reference to the characterization principles found in its domestic legal system, provided that a matching rule exists therein. In cases where no such corresponding rule, legal relationship, or institution exists in domestic law, it should be determined on the basis of the closest analogy available in its internal law.
- Upon ascertaining that the governing law pertains to a specific nation or jurisdiction, the court is obliged to apply said law in accordance with its application in that particular nation or jurisdiction. Furthermore, the court should also consider any additional characterization criteria dictated by the laws of the relevant country or jurisdiction.
- Characterization on basis of lex causae:
Lex causae, a Latin term, denotes the legal principle wherein a forum court selects, from the available pertinent legal systems, the governing law to render its judgment in matters of international jurisdiction. This concept pertains to the utilization of specific local legal provisions as the foundational rationale for the court's decision, thereby incorporating it into the body of referenced legal precedent. In opposition to Bartin's theory, Despagnet and Martin Wolff have propounded the theory of lex causae.
- According to Wolff: "every legal rule takes its classification from the legal system to which it belongs. French legal rule takes its classification from the legal system to which it belongs. French law classifies French legal rules, Italian law Italian rules, and an English court examining the applicability of French rules will have to take the French classification into consideration. Further, English rules on conflict of laws can either expressly or implicitly forbid the court to accept the foreign classification. But such exclusion may be based on principles of justice or morality. To examine the applicability of foreign law without reference to its classification is to fail to look at foreign law at all."
- According to Despagnet: says that when a judge, guided by both domestic law and principles of private international law, determines that a foreign law should govern a specific legal relationship, it is to be construed that the judge is implementing that foreign law insofar as it structures and governs said relationship.
- Theory of two-fold Characterization:
According to certain legal scholars, the issue of characterizing applicable laws can be most effectively addressed through a bifurcation of the characterization process into primary characterization (lex fori) and secondary characterization (lex causae).
Cheshire believes that the primary characterization is that process by which the juridical nature of a question requiring a decision is determined.
Robertson states that it is the allocation of factual situations to its correct legal category or the submission of facts under categories of law.
Both Cheshire and Robertson maintain that primary classification should be made on the basis of lex fori for the lex causae is unknown until the process of primary classification is complete. According to Cheshire, the difference between primary and secondary characterization is that the former precedes and the latter follows. The term lex fori is used in its wider meaning by the proponents of this theory. It does not mean the domestic rules of the forum alone but it includes the rules of private international law also.
The advocate of this theory acknowledges two exceptions to the general principle that primary characterization should adhere to the lex fori. These exceptions are as follows:
- The determination of whether assets or interests therein are movable or immovable falls under the purview of the lex situs.
- In cases where there are two potentially applicable foreign laws with identical characterizations, the forum should adopt the common characterization.
- Characterization on the basis of Comparative Law:
Commencing with the premise that the principles of private international law
serve as guidelines for the judiciary in resolving matters involving diverse
international legal systems, these matters pertain to the juxtaposition of the
domestic law of the judge's jurisdiction and a specified foreign law, or the
interaction between two distinct foreign legal systems. Consequently, these
rules, in order to fulfill their intended purpose, must possess characteristics
that enable them to effectively assess the nature of rules and institutions
across various legal systems, and they should be employed in a manner conducive
to this objective.
Process Of Characterization In Practice:
Ogden v. Ogden -
Cases not involving characterization of a rule or institution of internal law: The sole exception that can be contemplated is when it is evident that, under any conceivable interpretation, the jurisdiction of one of the two foreign countries' courts is unequivocally established, and the two foreign legal systems concur in adhering to an interpretation distinct from that of the lex fori. Under such circumstances, a court may effectively, if not formally, embrace the foreign interpretation by employing a principle akin to that of 'renvoi'.
Cases involving characterization of rules or institutions of internal law: He says, "In most cases the court will simply by applying the rule- of its internal law, in order to determine its application, its ordinary principles of private international law which can in this connection only be interpreted in the light of general jurisprudence.
Cases involving characterization of rules or institutions of foreign internal law: The court's duty extends beyond determining the intrinsic meaning of a rule as a part of internal law; it also involves understanding the specific situations applied by the courts of the country in whose legal system it forms a part. Only with this comprehensive understanding can a court effectively categorize foreign rules and institutions.
It illustrates the complications involved in characterization. In September,
1998, an English domiciled woman and a Frenchman domiciled in France married in
London without the knowledge of their parents. At that time the Frenchman was
below the age of twenty-five. When the father of the Frenchman came to know
about the marriage he took him to France and got his marriage annulled from the
French court as under French law marriage of person below age of 25, without the
consent of the parent is null and void.
Subsequently, the Frenchman contracted another marriage in France. Upon hearing
this, the Englishwoman brought proceedings in the High Court of England for the
dissolution of marriage on the grounds of desertion and adultery. The petition
was dismissed for want of jurisdiction.
In October 1906 she married an Englishman, William Ogden with whom she lived for
some time. Then Ogden filed a suit asking for decree of nullity on the ground
that at time of marriage she was already a married woman.
The court passed the decree annulling the marriage. The English court said that
her marriage with Frenchman was valid as the court would not recognize the
nullity decree pronounced by the French Court and therefore it held that her
marriage with William Ogden was a nullity.
The parental consent was characterized by English Court as matter relating to
formalities and as formalities are governed by lex loci celebrationis, i.e. the
English law, the first marriage was valid under the law and since the first
marriage was valid the second marriage was invalid being a bigamous union. In
the result, this Englishwoman remained a married woman in the eyes of the
English court, but unmarried in the eyes of French law.
An explanation of the pivotal factors influencing their judgment
The English court could have decided that a certain requirement in English law
should be considered a formality, making it irrelevant to marriages of English
individuals celebrated abroad. Likewise, they could have consistently determined
that a particular requirement in French law, such as parental consent, should be
viewed as a matter of capacity, making it applicable to marriages held in
England for individuals domiciled in France. This is due to the
non-incorporation of this particular formality (parental consent) within English
(A) Single renvoi:
(B) Double renvoi:
- In a case involving a single renvoi, a judge in one jurisdiction encounters conflicting rules within their own legal system. They decide to refer the case to a foreign jurisdiction, where, in accordance with the foreign jurisdiction's laws, the case is subsequently returned to the judge's original jurisdiction. In response, the original jurisdiction accepts the sub-reference and applies its own legal framework.
(C) No renvoi:
- A court in one jurisdiction refers a case to a foreign jurisdiction, but the foreign jurisdiction, in turn, refers the case back to the originating jurisdiction. This can create a loop of referrals between two or more legal systems.
- A court in one jurisdiction, when faced with a legal issue involving a foreign element, does not refer the case to the foreign jurisdiction's legal system. Instead, it applies its own laws without considering any possible references back to the foreign jurisdiction's legal system.
- According to the civil law countries lex patrie (law of the place where property is situated) is the governing law when the matter revolves around deciding an issue of personal law whereas lex domicilii is the governing law in the common law countries.
- Under both Indian and English private international law there are four general rules in respect of domicile:
- No person can be without a domicile.
- No person can simultaneously have two domiciles.
- Domicile denotes the connection of a person with a territorial system of law.
- The presumption is in favor of continuance of an existing domicile.
Person may have his nationality in one country and domicile in another country.
This further signifies that though a person may be stateless he cannot be
without a domicile. There is also a connection of dependent persons in the
context of this legal matter, indicating a reliance or interdependence on the
part of the individual in question. For example A marries B and establishes his
matrimonial home at Jaipur.
After sometime a son C is born to him. Jaipur is the
domicile of B as per Indian law the domicile of a wife is her husband's
domicile. Jaipur is also the domicile of C, as C is dependent upon A. The
domicile of B will remain Jaipur so long as she remains A's wife and it will not
change even if she leaves Jaipur forever. Similarly C's domicile will remain
Jaipur until he is a minor. Accordingly, if A changes his domicile then the
domicile of B and C also changes.
Under English private international law, the concept of domicile differs from
that of a permanent home. A person can establish domicile in a location only if
they reside there with a permanent and indefinite intention to make it their
lasting residence. If an individual goes to a place with a fixed intent to stay
for, let's say, 35 years and then return, they will not be considered domiciled
there, even if they are unable to return and have established a residence there.
Conversely, a person may be deemed domiciled in a place even without having set
up a permanent home, for instance, when someone leads a nomadic lifestyle or has
abandoned one residence without acquiring another. Discussing a case will
provide additional explanation on the concept of 'lex domicile' within the realm
of private international law.
Ramsay v. Liverpool Royal Infirmary
A person died leaving behind a will which was formally valid under the Scottish
law, though invalid by law of England. The testator was born in Glasgow in 1845
and thus had Scottish domicile of origin. From 1892, till his death in 1927 he
lived in Liverpool, England. During these 37 years he never went to Scotland.
Only fact that still connected him with Scotland was that he often said that he
was very proud to be a Glasgow man. As against this he on several occasions
refused to go to Glasgow. He did not go to attend the funeral of his mother at
Glasgow and arranged for his own burial at Liverpool.
The house of lords unanimously held that it was not proved that he made
Liverpool his permanent home and therefore he continued to have his Scottish
domicile of origin.
(VI) Law of property:
In private international law, most of the countries including England, India,
the United States and most countries of European continent, follow an
established rule that in respect of all transactions relating to immovable
property, and all rights over and in relation to, immovable property are
ordinarily governed by law of situs of immovables. In the case of Nelson v.
Bridport, the court observed: "The incidents to real estate, the right of
alienating or limiting it, and the course of succession to it, depends entirely
on the law of the country where the estate is situated."
Meaning of Lex Situs:
In the words of Morris, "The sovereign of the country where land is situated has
absolute control over the land within his domain: he alone can bestow effective
rights over it, his courts alone are, as a rule, entitled to exercise
jurisdiction over such land. Consequently, any decision by an English court
which ran counter to what the lex situs had decided or would decide would be in
most cases a brutum fulmen." For instance, an Indian domiciled Hindu dies
leaving behind immovables in Spain. Under the internal law of Spain A is the
heir to the property of the deceased, while under Hindu law B is the heir. The
Spanish courts would apply the law of the nationality of the deceased, i.e Hindu
law, thus if the matter was decided by the Spanish court, B would be considered
to be the heir. If the matter is agitated in an Indian court and if Indian
courts applying the lex situs as meaning domestic law of Spain, would declare A
as the heir to the property of the deceased, then this decision would be brutum
The English court has held that they have no jurisdiction to adjudicate upon any
matter relating to property situated abroad, even though the parties may be
residents or nationals of England or domiciled there. In Deschamps v. Miller,
the father of the plaintiff, had a settlement of some immovables situated abroad
in favor of his wife and others. When the plaintiff challenged the validity of
this settlement in English court, the court declined to exercise the
This is also the position under the Indian law. Section 16, Indian Civil
Procedure Code incorporates this principle. The Privy council in Neelkant v.
Vidhya said the British Indian courts have no jurisdiction to entertain an
action in respect of a mortgage of immovable property situated in a foreign
State. The same view has been taken in other cases such as Krishna D. Iyyar v.
In the case of Nachiappa Chettiar v. Muthu Karuppan Chettiar, J. Rajamannar said
" a person's capacity to alienate an immovable by sale or mortgage, inter vivos,
or to devise an immovable or to acquire , or to succeed to an immovable is
governed by lex situs. The same view was taken by the Punjab High Court in Labh
Singh v. Chief Settlement Commissioner. The lex situs must determine whether an
effective and lawful transfer of title has taken place.
It is an established rule of English and Indian private international laws that
formal validity of the conveyance or any other transaction relating to
immovables is governed by lex situs.
The material validity of a contract relating to immovables, is governed by
proper law of contract.
Transfer of Tangible and Intangible Property:
(VII) Commercial Contracts:
- (A) The Domicile Theory:
This is the oldest and the most accepted theory pertaining to the movable property. The movables have no fixed situs, their situs can be shifted at any time by its owner. Therefore, the medieval Italian statutists propounded the principle of 'mobila sequuntur personam'. This doctrine had wide acceptance not merely on the continent of Europe but also in England and the United States. In the case of Sill v. Worswick, Lord Loughborough said, "With respect to the disposition of it, with respect to the transmission of it either by succession or the act of the party, it follows the law of the person."
- (B) The Lex Situs Theory:
This theory is mostly accepted while dealing with the immovable property in dispute. In Re Anzinani, J. Maugham said: "I do not think anybody can doubt that with regard to the transfer of goods, the law applicable must be the law of the country where movable is situated."
- (C) The Proper Law Theory:
Admitting the virtues of lex situs theory, Cheshire says, "It is going too far that every type of question must be submitted to the law of the situs and to that law alone." On this premise he propounded the theory of proper law thus; the law "that may be chosen to govern questions arising out of the transfer of movables in the law of the country with which the transfer has the most real connection or more shortly, it adopts the theory of lex actus, which is analogous to the proper law of the contract." Lex actus basically means the law of the place where an act is done or a transaction takes place.
From the earliest epochs of human civilization, nations have been actively
engaged in cross-border trade. During the initial evolution of international
trade and commerce, a set of regulations, commonly referred to as the 'law of
merchants,' was instituted to oversee the diverse facets of these global
transactions. As international trade and commerce inherently engender legal
conflicts, it became an essential endeavor to establish a framework of conflict
rules for the governance of commercial activities involving foreign elements. In
the Hague Conference of 1964, a convention addressing international sales and
purchases of goods was adopted. However, these international accords primarily
address the issue peripherally. Therefore, the resolution of conflicts of law in
commercial contracts must be sought through the private international law of
each respective sovereign jurisdiction.
Theory of Proper Law Of Contract:
English law has consistently adhered to the principle that, much like the
parties' freedom to include any terms within their contract, they also possess
the autonomy to designate the governing legal framework for the obligations
arising out of it. This designated legal framework, chosen to govern the
contract, is referred to as the 'proper law of the contract.
Lord Wright's judicial observation: "The proper law of the contract means that
law which the English court is to apply in determining the obligation under the
contract. English law in deciding these matters has refused to treat as
conclusive any rigid or arbitrary criteria such as lex loci contractus or lex
loci solutionis and has treated the matter as depending on the intention of
parties to be ascertained in each case on a consideration of the terms of the
contract, the situation of the parties, and generally of all the fact.''
Hence, the contemporary 'proper law' theory comprises two primary components:
The integration of foreign legal provisions:
- When parties have explicitly selected the governing law for their
contract, signifying their intent to apply a specific legal system to the
obligations arising from the contract, that designated law typically
constitutes the proper law of the contract.
- When parties have not made any explicit choice, and thus have not
articulated their intentions, the proper law of the contract becomes the law
of the jurisdiction with which the contract has the closest and most
In Re Helbert Wagg & Co. Ltd.'s Claim a loan was granted by a company, which
carried on the business in England, to another company which carried on the
business in Germany, and the parties agreed that the contract was to be
construed under German law, but that the bond was to be issued conforming to the
usual text and practice ruling in the city of london. It was held that the
latter got incorporated in the contract and became a term of contract, but the
proper law of contract remained the law of Germany.
Implied Choice of Law:
Reiterated on numerous occasions is the principle that when the parties'
explicit intentions regarding the governing law of a contract are not
articulated in written form, their intent must be deduced from the contractual
terms, the contract's character, and the overall circumstances of the case. This
inferred intent, in turn, establishes the proper law of the contract.
Concurrently, while the objective perspective has been advocated, a sustained
effort has been undertaken to diminish the reliance on inferred intention and
replace it with the criterion of a bona fide and substantial nexus with the
When parties have not expressed any intentions:
In Boissevain v. Weil, Lord Denning remarked that the proper law of the contract
'depends not so much on the place where it is made nor even on the intention of
the parties or on place where it is to be performed, but on the place with which
it has the most substantial connection.'
In 1972, Lord Denning articulated that in ascertaining the proper law of a
contract, the pivotal query is: which legal system exhibits the most intimate
and substantial affiliation with the transaction in question? His Lordship
emphasized that to address this inquiry, a comprehensive examination of all
circumstances linked to the case is imperative. It is noteworthy that this
criterion was implicitly endorsed, initially observed in the case of Bonthoyn v.
Commonwealth of Australia.
In the realm of private international law, a distinctive characteristic of tort
cases is that when a wrongful act occurs solely within a specific jurisdiction,
the governing principle is lex loci delicti, regardless of whether any foreign
elements, such as the domicile, residency, or nationality of the involved
parties, are present or absent. For instance, if defamation is committed in
Germany, it would be governed by German internal law, but if the defense is of
qualified privilege on account of the official position of the defendant that he
holds a representative of a foreign government, then whether the plea will be
sustained or not depends on foreign law.
Three predominant theories pertaining to the application of legal principles to
foreign torts are as follows:
- The Lex Fori:
Cockburn, C.J. very rightly said that the application of this doctrine would
lead to "the most inconvenient and startling consequences." This doctrine
implies that the plaintiff has the liberty to select the jurisdiction that is
most advantageous to their case, as long as they can locate the defendant there.
Additionally, it's possible that the defendant could be held responsible for an
action that was considered lawful in the jurisdiction where it occurred but
constituted a violation under the legal framework of the country where the
lawsuit was filed.
- The Lex Loci Commissi Theory:
In the case of Phillips v. Eire, J. Wills observed: "The civil liability arising
out of a wrong derives its birth from the law of the place, and its character is
determined by that law." Similarly Lord Haldane said that if the lex loci
delicti did not confer any right to sue, then the common law action for damages
for tort cannot be maintained, even if it is a tort under lex fori. In support
of this theory Westlake said that if the defendant's act disturbed the social
order of any country, then it was the law of the country where it was committed,
the law of which therefore is the best authority on the subject.
The challenge in applying this theory becomes evident in cases where the
elements comprising the tortious act occur across multiple jurisdictions. Three
potential solutions have been proposed for this issue:
The governing law should be that of the jurisdiction where the act initiating
the tortious conduct originated. However, this approach may falter in cases
where the act commences in multiple locations, such as when a defamatory letter
is authored in one country (X) and mailed from another country (Y).
Alternatively, the tort could be considered as completed in the jurisdiction
whose laws are most favorable to the plaintiff. However, this approach may
excessively favor the plaintiff.
Another proposal is that the tort is considered as completed in the jurisdiction
where the resulting harm occurs. Nonetheless, objections to this idea arise,
particularly when the harm is non-physical in nature, such as damage to one's
reputation, which cannot be physically localized without resorting to legal
fiction. Additionally, it is possible that harm may manifest in multiple
In the case of Bata v. Bata, where defamatory letters were written by the
defendant in Zurich and posted to certain addresses in London, the court of
Appeal said that since the publication is the material element that completes
the tort libel, the cause of action arose in England.
- Proper law or Social Environment Theory:
On the analogy of proper law of contract the 'social environment' theory is
propagated. Morris says: "If we adopt proper law of tort, we can at least choose
the law which, on policy grounds, seems to have the most significant connection
with the chain of acts and circumstances in particular situations before us."
In Boys v. Chaplin, Lord Denning, propounded the theory: "After considering the
authorities, I am of the opinion that we should apply the proper law of the
tort, that is, the law of the country with which the parties and the act done
have the most significant connection. And once we have decided which is the
correct law to apply, I think that law should be applied, not only to ascertain
whether there is a case of action, but also to ascertain the heads of damage
that are recoverable and also measures for damage, for these matter are matter
of substantive law. They are quite distinct from the mere qualification of
damages, which is a matter of procedure for the lex fori."
While the legal differentiation between legitimate and illegitimate children has
been traditionally upheld, many countries worldwide, including communist
nations, have moved toward reducing the clarity of this distinction. In English
common law, much like in Roman law, the concept of openly designating a child as
"filii nullius" (child of no one) began to evolve.
Jurisdiction of Court:
Shaw v. Gould:
- English law:
The English legal system has made progress in reducing the gap between
legitimate and illegitimate distinctions. But, when it comes to how English law
decides which law to apply in certain situations, things can get a bit
confusing. This often happens in cases related to who gets what from a person's
For instance, when a will says to give property to the children of someone,
there are two important questions. First, what did the person writing the will
mean by these words? This question about meaning usually follows English law.
The second question is whether the children are legally recognized as legitimate
or not. This kind of question about their legal status should generally be
answered using the laws of where they live.
"However, when we look at the decisions made in legal cases, we find that
sometimes there are conflicting decisions", which was held by the council the
case of Bamgbose v. Daniel.
In the will of an English person, certain funds were set aside in a trust for
Elizabeth Hinson's lifetime. After her passing, these funds were meant to
benefit her children, particularly her sons born within a lawful marriage.
Elizabeth initially married Buxton, but their marriage didn't last, and they
separated right after the wedding. Later, she became engaged to Shaw, who was a
resident of England.
To enable a divorce from Buxton, a plan was put in place. Shaw established
residency in Scotland, and Buxton was convinced to go to Scotland for about
forty days. Eventually, a Scottish court dissolved the marriage between
Elizabeth and Buxton.
Subsequently, Elizabeth and Shaw got married in Edinburgh, Scotland. They had
two daughters and a son from this marriage. At the time of the current legal
action, Elizabeth had passed away.
The marriage between Elizabeth and Shaw was recognized as valid under Scottish
law. However, the central question that the English court had to address was
whether this marriage met the requirements of English law. It's important to
note that at the time of Elizabeth's second marriage, both she and her former
husband remained domiciled in England.
The House of Lords, the highest court in the UK, determined that Elizabeth's
second marriage was not valid under English law because her first marriage had
not been dissolved by the court in her home country. Consequently, the House of
Lords concluded that all three of her children were not born within a lawful
marriage and, therefore, were not entitled to the benefits specified in the
An explanation of the pivotal factors influencing their judgment
Cheshire suggested that legitimacy of a person should be determine by law of his
domicile of origin. According to him status of legitimacy, like that of any
other family status, ,ust be determined by law of domicile- in the case of
legitimacy, by the law of the domicile of the father at the time of the birth of
the person whose status is in question.
Despite the English rule that domicile of the illegitimate child is that of its
mother, Cheshire offers a better solution to the problem inherent in the rule
that it is the law of the domicile of the father at the time of the birth of the
child which determines the legitimacy of the child. According to him 'legitimacy
is concerned with the relationship between a child and father' and therefore
domicile of the natural father should be decisive.
It is submitted that the rule of choice of law may be formulated thus:
- A child anywhere is lawful if born within the lawful wedlock.
- A child is legitimate if the law of his father's domicile or habitual residence regards him as legitimate.
- In those cases where the legitimacy of the child is determinable under two systems of law, then the principle of most favourable law should be applied.
In the context of legitimacy, Indian law is not well-defined. Under Indian
domestic law, a child born either during a lawful marriage or within 280 days
after the father's death or after the dissolution of the marriage is presumed to
be legitimate. Additionally, the law dictates that the domicile of an
illegitimate child is determined by the mother's domicile.
Comprehending the nuanced aspects within the realm of private international law
is imperative. A thorough understanding of both domestic (municipal) laws and
international laws is essential to ensure the delivery of justice. Given the
extensive scope and intricacies of this field, it stands as a distinct and
indispensable area of study.
Private international law places significant emphasis on the complexities
associated with cross-border legal matters. These intricacies form the bedrock
of the discipline, serving as a means to render equitable justice to individuals
entangled in such cases. As a result, this field stands as a unique and vital
domain dedicated to upholding the rights and interests of those embroiled in
transnational legal affairs.