1.

Definition of private international law

Private international law refers to that part of the law that is administered between private
citizens of different countries or is concerned withthe definition, regulation, and enforcement of
rights in situations where both the person in whom the right inheres and the person upon
whomthe obligation rests are private citizens of different nations.

It is a set of rules and regulations that are established or agreed upon by citizensof different
nations who privately enter into a transaction and that will govern in the event of a dispute. In
this respect, private InternationalLaw differs from public international law, which is the set of
rules entered into by the governments of various countries that determine therights and regulate
the intercourse of independent nations.

Private international law has been defined as law directed to resolving controversies between
private persons, natural as well as juridical, primarily in domestic litigation, arising out of
situations having a significant relation to more than one state.

Cheshire

PIL is that part of law which comes into play when the issue before the court affects some fact,
event or transaction that is so closely connected with a foreign system of law as to necessitate
recourse to that system.

Baty

PIL is the rules voluntarily chosen by a given state for the decision of cases which have a
foreign complexion.

1. P Tandon:
"Private international law is a body of principles determining questions as to jurisdictions
and questions as to selection of appropriate law, in civil cases which present them selves
for decision before a court of one state or country, but which involves a foreign element i.
e. which effect foreign persons or foreign or transactions that have been entered in a
foreign country or with respect of foreign system of law"
Pitt Cobbet
"Private international law is the body of rules for determining questions as to selection of
appropriate law, in civil cases which present them selves for decision before the courts of
one state or country, but which involve a foreign element i. e, which effect foreign
persons or foreign things or transactions that had been entered into wholly or partly in a
foreign country or with reference to some foreign system of law."

Private international law may be defined as the rules voluntarily chosen by a given state for the
decision of cases which have a foreign element or complexion.
Thus, where two Englishmen make a contract in Portugal for the sale of goods situated in
Lisbon, payment to be made in London, an English court would certainly recognize and apply
Portuguese law as far as it affected the validity of the contract.

The private international law forms part of municipal laws of a state and is meant for purpose of
deciding weather a given case involving foreign element (i) shall be adjudicated upon by its
own domestic laws or by laws of some other state; and (ii) shall be subject of its courts of some
other state.

Thus private international law deals with cases in which some relevant fact has a geographical
connection with a foreign country and may on that ground raise a question as to the application
of Indian or some other appropriate foreign law to they determination of the issue or as to the
exercise of jurisdiction by Indian or foreign courts.

02.Is Private InternationaI Law is the distinct part of Law?

PIL is a separate and distinct unit as much as the law of tort or of contract, but possesses the
unity , not because it deals with a particular topic but because it is always concerned with one or
more of three questions namely, jurisdiction, choice of law and recognition of foreign judgment.

PIL does not give a final decision. It is comparable with a railway inquiry room. By approaching
the inquiry room you can only a ascertain the platform from which a particular train leaves. It is
the train that reaches you to your destination not the enquiry room.

Comity,convenience and the desire of courts to do justice form the basis of Private International
Law. We can not say it as a ful-fledged law. The main aim of Private International Law is the
desire of the courts to do justice. It is quite distinct than law. It is essentially a system of
indicating choice, choice of jurisdiction, choice of law and rules for recognition and enforcement
of foreign judgement of a foreign court.

Private International law only decide the rule of choice and then indicate the convenient law that
is to be applied. It does not contains the basic feature of law. There is no conclusiveness and
imperative obligation to take a single and particular view in PIL like the real law. The degree of
boundness, obligation is somehow very low in case of PIL. The very purpose of private
international law is to avoid conflicts of law.

PIL is regarded as law and the reason somehow is that it is a part of municipal law of a particur
state. It varies from state to state. States legislative action is essential for the evoluation of PIL.

So we may say that PIL is a distinct part of law which meanwhile contain the notion of law and
justice. Somehow the essence of law is present in PIL though it is very distinctive one.

03.Utility of Private International Law

 Private international law explores cross-border legal relationships. The discipline
investigates core legal issues pertaining to international communication, such as the
criteria for resolving conflicts of law arising under contracts.

Teaching and research in private international law comprise various areas, such as the
international law of obligations, international family and inheritance law, international
property law and international civil procedure law. Other issues examined relate to
personal legal status as well as the theory, concepts and methods of private international
law.

Private international law plays a vital role to develop the existing legal systems of the
different states. It helps to understand various legal orders all over the world.

By the proper recognition and enforcement of foreign judgement, PIL broaden the
domain of states legal arena.

Private International law helps to develop international legislation and international law
association.

Private international law develops the notion of international harmony of decisions.

PIL ensures the stability with regard to cross-border legal relationships.

04.Nature of PIL

Private international law is the area of law that comes into play whenever a court is faced with a
question that contains a foreign element, or a foreign connection. The presence of such a foreign
element in a legal matter raises a number of questions and it is the function of private
international law to provide an answer to these questions and to ensure just solutions. It is
concerned with all legal relationships between private entities and thus includes, for example,
family law and the law of contracts and obligations. These laws differ from country to country.

PIL is a branch of municipal law. PIL is essentially a system of Indicating choice, choice of
jurisdiction, choice of law and recognition of a foreign judgment.

PIL contains the following basic nature:

1. its subject matter always includes a foreign element;

2. one of its prime nature is the pursuit and application of the appropriate legal system and

3. jurists have been more influential in this branch of the law than is typical with other legal
subjects.
Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as 1963 in R. Vishwanathan v.
Syed Abdul Wajid gives an enlightening explanation of what Private International Law is It is
not the law governing relations between States. It is simply a branch of the Civil Law of the State
evolved to do justice between litigating parties in respect of transactions or personal status
involving a foreign element. Its rules in the very nature of things differ from State to State, but
by the comity of nations, certain rules have been recognised as common to civilized jurisdictions.
Through part of the judicial system of each State, these common rules have been adopted to
decide disputes involving a foreign element and enforce foreign judgment, often as a result of
International Conventions.

A Division Bench of the Bombay High Court in a case of divorce involving two conflicting legal
systems, Monica Variato v. Thomas Varia stated that the principles of Private International Law
are not universal. They vary from State to State. What may be applicable in one State may not be
applicable in another State .

In 1952, Indian & General investment Trust Ltd. v. Raja of Kholikhote, the High Court devoted
substantial part of the judgment to general principles of Private International Law:
The name Private International Law is rather unfortunate because it is difficult to conceive of
a law which is both International and at the same time private. It is called private inasmuch as
it deals with the legal relations of individuals and not of States; it is International, inasmuch as
its rules are enforced by Courts, and in that respect it is a branch of the ordinary law of the land.

05.What is foreign law?

Foreign law is the law of any other country apart from the law of the country where an issue is
for consideration.

Foreign law is law referenced or cited by a court that comes from a country other than that in
which the court sits. Foreign law is usually not binding on the court siting it, and citation to
foreign law as persuasive can be controversial. However, in some circumstances, a court may be
called upon to determine the meaning of a foreign statute, such as when one is incorporated into
the language of a contract before the court.

Foreign law is the law of any jurisdiction having a different system of law from that considering
the issue.(David Walker, The Oxford Companion to Law, (1980) p 479)

According to Blacks Law Dictionary, Foreign laws refer to the laws of a foreign country, or of
any other state. In conflict of laws, the legal principles of jurisprudence which are part of the
laws of any other state . Foreign laws are additions to our own laws and in that respect are called
jus receptum

Foreign laws are those laws enacted and in force in a foreign state or country. The courts do not
judicially take notice of foreign laws and so they must be proved as facts.Such proof varies
according to circumstances.
Foreign law may arise in an Bangladeshi court where some foreign element is involved in the
case and the Bangladeshi rules of conflict of laws and international private law direct that some
issue in the case must be determined by foreign law.

06.How foreign law proved?

When foreign law is applicable by virtue of the conflict of laws rules of the forum, there are
several methods by which that law can be made known to the court:

( 1 ) by judicial notice,

(2) by pleading and proof and,

(3) by presumption.

These methods are governed by the lex fori . It is well established that knowledge of foreign law
is not to be imputed to a judge. It is also a basic principle that the judge can only apply local law:
foreign law when relevant operates not as law but as fact.

The courts will not take judicial notice of foreign law or statutes unless authorized to do so by
statute.

Foreign law is generally determined by the court as a question of fact. The party who wishes to
rely on a foreign law must therefore plead it. It is a basic rule of procedure that parties are bound
by their pleadings and a party may not give evidence on matters not pleaded.

A judge cannot decide a case containing foreign elements according to his personal knowledge of
the foreign law. It appears that even if the judge had previously lived and practiced in that other
country, his knowledge is irrelevant.

It has previously been indicated that the traditional common law procedure and practice is to
treat foreign law as if it were a fact." This view may be based on the theoretical premise that
anything which is not deemed to be law must be a fact. One therefore frequently encounters the
statement that foreign law is a fact, although it would be more correct to say that foreign law is
treated like a fact.

If foreign law is deemed to be a fact or is treated like a fact, the logical consequences would be
that:

1. Foreign law must be pleaded like a fact;

2. Foreign law must be proved like a fact;

3. Foreign law questions go to the jury in appropriate cases;

4. If facts are not considered on appeal, foreign law cannot be considered on appeal; and
 5. The holding of a court on questions of foreign law in one case is not evidence in other
cases involving the same foreign law problems; and holdings of appellate courts on
foreign law do not have the force of stare decisis.

All these views have been taken in the long history of common law and modern code procedure.
But the application of these views has undergone legislative or judicial change in many respects
in most jurisdictions.

Unwritten foreign law may be proved by the oral testimony of expert witnesses. The testimony
may include the unwritten law as collected from the reported decisions of the foreign courts and
the treatises of learned men; it may also be proved by printed and published books of reports of
decisions of the courts of foreign countries.

Pfleuger v. Pfleuger case

Where an objection is raised before trial to the omission to plead foreign law, the defect cannot
be cured by judicial notice.

it would appear that in most instances and where exceptional circumstances do not prevail, a
party relying upon foreign law should be prepared by his pleadings and his proof to establish the
foreign law upon which he relies at the trial. The court in the first instance, may refuse, in the
sound exercise of its discretion, to take judicial notice of foreign law. In such a case, the rules
that developed when proof of the law in all cases was required will apply: the party having the
affirmative of the issues on the merits will be required to introduce his proof of the foreign law
and to sustain his burden of proving it or be defeated, unless he can be aided by any of the
presumptions discussed above. In view of the fact that the presumptions available to the court
may afford only temporary relief from

proving the foreign law, and may, even if they are successful, result in an objectively incorrect
result because of the substitution of the law of the forum, it would appear that the safest approach
is to be ready with proof.

07.Who may be called as a witness to prove foreign law?

The proposition that foreign law must be proved like a fact has led to the English view that
foreign law must be proved by witnesses.

Foreign laws may be proved by the testimony of witnesses acquainted with such laws. (Frith v.
Sprague )

Where the case turned on foreign written law--statutes, codes, proclamations or decrees, and the
like-that law was to be proved in the first instance by copies of the statutes or decrees
themselves; oral testimony alone of the foreign written law was insufficient.
According to the common law rules, a copy of the foreign statute was required to be
authenticated by exemplification, the testimony of a witness who had examined the original, or
by the certification of a judicial officer of the foreign jurisdiction.

Unwritten foreign law may be proved by the oral testimony of expert witnesses.

Under the English view knowledge acquired by study is not sufficient qualification for an expert
witness on foreign law. He must have had experience as a judge or advocate in the foreign
jurisdiction or have held an office or position which caused him to familiarize himself with the
law to which
he testifies.

The criterion for qualification is that the witness is "skilled" in the foreign law;he must have
familiarized himself with the foreign law. Standards which do not affect the qualifications of the
witness but do go to the weight of his testimony include the fact he is not entitled to practice in
the particular foreign country and his lack of first hand observation and residence there.

Distinction between public international law and private international law

As to consent:

Public international law based on the consent of the state.Private international law is not based
on the consent of the states.

As to object:

Public international law regulates relation ship of states inter se and determine rights and duties
of the subject states at international sphere.

Private international law determines as to which law will apply of two conflicting in a particular
case having foreign element.

As to conflict of laws:
Public international law does not involve in conflicts of laws.
Private international law involves in the conflicts of laws.

As to nature:

Public international is same for all the states.Private international may be different in various
states.

As to sources:

Public international law has its sources in treaties, custom etc. etc.Private international law has
its sources in the legislation of the individual state to which the litigant belongs.
As to application:

Public international law applicable to criminal as well as civil cases.Private international law is
applicable to civil cases only, which present themeselves for accession of courts of the state.

As to subject:
Public international law deals with the states.
Private international law deals with the individuals.

As to municipal law:
Public international law is not part of municipal law but Private International law is a part of
municipal law

As to jurisdiction

Public international law does not involves determination on the question of determination.Private
international law determines court which will have jurisdiction to decided issue in question.

As to scope:

Public international law has wider scope. it is of universe character.Private international law has
lessor scope.

1. Definition of marriage

Marriage means the act of uniting a man and woman for life and it is highest recognized valid
legal union of a man and woman for life.

Marriage is a contract both civil and religious, by which the parties engage to live together in
mutual affection and fidelity, till death shall separate them.

Marriage was instituted by God himself for the purpose of preventing the promiscuous
intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and
education of children.

According to Blacks Law Dictionary,

Marriage, as distinguished from the agreement to marry and from the act of becoming married, Is
the civil status of one man and one woman united in law for life, for the discharge to each other
and the community of the duties legally incumbent on those whose association is founded on the
distinction of sex.
Edvard Westermarck defines marriage as "a relation of one or more men to one or more women
that is recognized by custom or law"

The anthropological handbook Notes and Queries (1951) defined marriage as "a union between a
man and a woman such that children born to the woman are the recognized legitimate offspring
of both partners."

The highest-profile cases to be decided by the U.S. Supreme Court ascertain the definition of
marriage. U.S. v. Windsor challenges the federal definition of marriage as a legal union between
one man and one woman

The legal union of a couple as spouses. The basic elements of a marriage are: (1) the parties'
legal ability to marry each other, (2) mutual consent of the parties, and (3) a marriage contract as
required by law.

In the English common law tradition from which our legal doctrines and concepts have
developed, a marriage was a contract based upon a voluntary private agreement by a man and a
woman to become husband and wife.

Hague Marriage Convention

The Hague Convention that harmonizes different marriage laws, the Convention on the
Celebration and Recognition of the Validity of Marriages, was concluded at The Hague on 14
March 1978 and entered into force on 1 May 1991. Article 9 of the Convention holds that, A
marriage validly entered into under the law of the State of celebration or which subsequently
becomes valid under that law shall be considered as such in all Contracting States, subject to the
provisions of this Chapter.In short, one Contracting State must recognize a marriage legally
performed in another contracting state. Currently only three states (Australia, Luxembourg, and
the Netherlands) have ratified the Convention.Another three (Egypt, Finland, and Portugal) have
signed it

A contract made in due form of law, by which a free man and a free woman reciprocally engage
to live with each other during their joint lives, in the union which ought io exist between husband
and wife. By the terms freeman and freewoman in this definition are meant, not only that they
are free and not slaves, but also that they are clear of all bars to a lawful marriage.

To make a valid marriage, the parties must be willing to contract, able to contract, and have
actually contracted.They must be willing to contract. Those persons, therefore, who have no legal
capacity in point of intellect, to make a contract, cannot legally marry.

10.Distinctions between legitimation and Adoption

01.Adoption, properly speaking, refers only to persons who are strangers in blood.

Legitimation, refers to persons of the same blood.

Where one acknowledges his illegitimate child and takes it into his family and treats it as if it
were legitimate, it is not properly an adoption but a legitimation. (Blythe v. Ayrcs, 90 Cal.
532, 31 Pac. 915, 19 L R. A. 40. )

1. Legitimation means that a person who has not been born to married parents acquires the
status of legitimacy as a result of some act.
On the other hand, Adoption involves the extinction of the parental links between the
child and the biological parents and the creation of similar links between the child and the
adoptive parents.

03.Legitimation is a legal process by means of which a child born illegitimate is made legitimate.
Adoption is a process whereby a person assumes the parenting for another and, in so doing,
permanently transfers all rights and responsibilities, along with filiations, from the biological
parent or parents.

1. In case of legitimation, the parent will complete their marriage and recognize their child.
On the other hand in case of Adoption, The parent will only recognize their child.

2. Marriage is essential pre-condition for a valid legitimation but in case of adoption in

English Private law marriage tie is not obligatory to take adoption. A women or man can
take adoption by completing judicial formalities without marriage relationship.

1. Jurisdiction in case of Bangladesh perspective

In the context of private international law jurisdiction implies competency of the domestic courts
to hear actions and render decisions in matters invoking foreign elements, in which they are
called upon to do so, Usually the question of jurisdiction can be classified into three broad
categories, i.e.. relating to subject matter, pecuniary and local limits.

In suits having foreign elements the preliminary question is whether the Bangladeshi courts have
jurisdiction to try the suit. If the answer to this is in the affirmative, then the next question
relating to jurisdiction will arise in the same way as they arise in an internal suit.
RULES AS TO FORUM
I. Pecuniary Jurisdiction
Sections 15 to 20 of the Code of Civil Procedure, 1908 regulate the forum for the institution of
suits. As per section 15, which refers to pecuniary jurisdiction of the court, every suit shall be
instituted in the court of lowest grade competent to try it.

In a leading case of Fazle Karim vs. Naderuzzaman, 10 DLR 632 it was held that, if a
subordinate court and a superior court are vested with concurrent jurisdiction, the case has to be
instituted in the subordinate court.

Rules as to Nature of Suit

Based on the subject matter the suits may be divided into three classes;
(a) suits in respect of immovable property;
(b) suits for torts to person or movable property;
(c) suits of other kinds.
A. Suits of Immovable Property
Sections 16 to 18 of the CPC deal with suits relating to immovable property. Six kinds of suits
relating to immovable property that are enumerated in section are:
(I) suits for recovery of immovable property;
(ii) suits for partition of immovable properly;
(iii) suits for foreclosure, sale or redemption in case of mortgage of or charge upon immovable
property;
(iv) suit for determination of any other right to interest in immovable property:
(V) suits for tort to immovable property; and
(vi) suits for recovery of movable property actually under distraint and attachment.
These suits must be filed within the local limits of whose jurisdiction the properly is situated.

The explanation of these section makes it clear that the section was not designed to deal with
cases Involving a foreign land. The explanation says that the property in this section means
property situated in Bangladesh. This section favours the institution of the suit at a place where
the subject matter or the property is situated. Suits for Wrongs to Person or

Movable Property
Section 19 of CPC is confined to the suit for compensation for wrongs to persons or movables. If
the wrong was done within the local limits of the jurisdiction of one court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of the
jurisdiction of another court, the suit may he instituted at the option of the plaintiff in either of
the said courts.
Residence
It Is considered a well established rule of Bangladeshi law that if the defendant is resident within
the jurisdiction the court will have the jurisdiction to entertain the suit. The courts have
deliberated on the question of what will constitute residence in a large number of cases. In some
cases depending upon the circumstances even a very short stay is construed as sufficient for
residence to confer jurisdiction on the court.

In Kashinath v. Anant, the presence of the defendant at the time of the institution of the suit was
considered enough for the court to assume jurisdiction. In this case the defendant had left the
place where he had been residing and was proceeding on a months leave to London. He reached
Bombay and was waiting there to leave for London, In the meanwhile the plaintiff liled a suit
and also had the process served on the defendant.

Tyabji J. held in this case that the residence is to be used in a broad sense. As far as the courts
jurisdiction is concerned, it is a settled law that if a person has no settled abode or residence, then
he is deemed to be resident at the place where he is. He held that since the defendant had left his
earlier residence and had not established residence anywhere else he could he deemed to he a
residence of the place where he was at the time of the institution of the suit.

The Code of Civil Procedure, 1908 contains the rules regarding. who can he brought to trial in a
forum in India. The Code provides for this in a negative form. Le.. against whom action cannot
be flied. It also contains the rules in respect of the persons who can bring a suit against
foreigners. They are discussed here under two headings. (A) against whom action may not be Ii
led. (B) who may bring (he suit.

Submission to jurisdiction
Another method for the courts to assume jurisdiction in matters involving the foreign elements is
through submission to jurisdiction by the persons concerned.

Against Whom Action May Not Be Filed

A. Jurisdictional Immunity
There is a general rule that a suit can be brought against any foreign national. Notwithstanding
this general condition there are certain persons who have been granted immunity from this
general rule Law of jurisdictional immunity is codified in the Code of Civil Procedure, 1908 in
Bangladesh which entails certain modifications from the usual practice. The Code confers
jurisdictional immunity to:

(a) a ruler of a foreign State;

(h) any ambassador or enjoy of a foreign Slate;
(c) any High Commissioner of a Commonwealth country; and
(d) any such member of the staff of the foreign State or the staff or retinue of the ambassador,
envoy of a foreign Stale or of the High Commissioner of a Commonwealth country as the central
government may. by general or special order, specify in this behalf.(sec-86)

These persons cannot be sued in any court in Bangladesh except with the consent of the
government certified in writing by a secretary to the government.

It has been held that the power of the government to grant sanctions for suits against foreign
States must he exercised in accordance with the principles of natural justice . It is necessary that
consent should have been obtained before the institution of the suit. The jurisdictional immunity
extends to all civil actions as well as to execution proceedings. The jurisdictional immunity to
the foreign sovereign exists not merely in respect of his person but also in regard to his property.
In this respect no distinction is made between the public property and the private property of the
sovereign.

Foreign documents

According to the broader aspect of section 82 of the Evidence Act,1872 any court of Bangladesh
has the jurisdiction to presume the genuineness of foreign documents.

Definition of Foreign Judgement

Foreign Judgment means a judgment given by a court in a foreign state in a civil matter, and
includes a judgment for the payment of compensation or damages to an injured party even
though it may not have been given in a civil matter.
According to section 2(6) of the Code of Civil Procedure,1908"foreign judgment" means the
judgment of a foreign Court.

Foreign Judgment means a judgment of a foreign court. . In other words, a foreign judgment
means adjudication by a foreign court upon a matter before it. Thus judgments delivered by
courts in England, France, Germany, USA, etc. are foreign judgments.

According to Blacks Law Dictionary,

Foreign judgement means a decree,judgement or order of a court in a state, country or judicial

system different from that where the judgement or its effect is at issue.

Convention on the recognition and enforcement of foreign judgments in civil and commercial
matters was adopted on1 february 1971 which evaluate and prescribe the proper recognition and
enforcement of foreign judgement across the world.

Bangladesh Government always adopts a very conservative approach towards the enforcement of
foreign judgment awards. Any bilateral agreement only apply to the recognition and enforcement
of judgments made in proceedings started if it has been
ratified and enacted by notification in the gazette by the Bangladesh Government. The common
laws of Bangladesh have no direct operation on a foreign judgment provided the foreign Court
had jurisdiction to give the judgment, the judgment will be conclusive in Bangladesh and
enforceable, unless it does not fulfill the criterions outlined by the law for
enforcement. However, the judgment creditor must first bring an action on the foreign judgment
in the local Courts. The judgment creditor cannot sue upon the original cause of action unless the
judgment is not enforceable or entitled to recognition in Bangladesh.

Recognition

According to Blacks Law Dictionary,

Recognition means the confirmation that an act done by another person was authorized . The
formal admission that a person, entity or thing has a particular status, especially a nations act in
formally acknowledging the existence of another nation or national government.

In private International law recognition means the acceptance or confirmation of foreign laws to
avoid conflicts in different legal matters. Recognition is one of the most important criteria to
solve domicile problems, contractual obligation problems, legitimacy, jurisdiction problems etc.
under the ambit of private international law.

2.DOMICILE
Domicile of an individual is very significant for deciding his/her marriage, succession, taxation,
etc related issues. However, domicile is a complicated subject as it is a mixed question of facts
and laws. In fact, there is no set procedure to get a domicile certificate in India as on date. To
make the matter worst, there is an acute confusion between a domicle certificate and a residence
certificate. Most of the Indian States and their authorities consider a residence certificate as a
domicile certificate.

In its popular sense, this synonymous treatment of domicile and residence may be justified.
However, in its technical sense, domicile is a conflict of laws principle and it has no role to play
while deciding the territorial laws of a nation. In essence, domicile involves existence of more
than one sovereign jurisdiction and a corresponding resolution of legal issues by applying the
most appropriate law in a given circumstances.

Domicile as a conflict of laws concept identifies a person, in cases having a foreign element,
with a territory subject to a single system of law, which is regarded as his personal law. Generally
speaking, a person is domiciled in the country in which he is considered to have his permanent
home. His domicile is of the whole country, being governed by common rules of law, and not
confined to a part of it.

The interesting part about a domicile is that no one can be without a domicile and no one can
have two domiciles. This is logical as well as a person domiciled in a particular jurisdiction
cannot be domiciled in another foreign territory. For instance, in India a domicile of origin is
attributed to every person at birth by operation of law. This domicile is not decided by his place
of birth or by the place of residence of his father or mother, but by the domicile of the
appropriate parent at the time of his birth, according as he is legitimate or illegitimate.

A person domiciled in a country establishes his legal status for the whole of the country and is
subject to one body of law. But in federal countries like the United States, Australia, or Canada,
or in a composite State like the United Kingdom, different systems of law may prevail in
different regions in respect of certain matters. In such cases, each of the territories governed by a
separate system of law is treated, for the purpose of conflict of laws, as a country, though in
public international law or constitutional law it is not a separate sovereign State.

This is not the legal position in India. Though a Union of States, and a federation in that sense,
the whole country is governed by a single unified system of law, with a unified system of judicial
administration, notwithstanding the constitutional distribution of legislative powers between the
Centre and the States. There is no State-wise domicile within the territory of India. A man who is
domiciled in India is domiciled in every State in India and identified with a territorial system of
legal rules pervading throughout the country. He is domiciled in the whole of this country, even
though his permanent home may be located in a particular spot within it . Thus, the concept of
domicile varies from country to country and from jurisdiction to jurisdiction.

It is equally important to understand the difference between the terms domicile and residence.
The word domicile should not be confused with a simple residence. The residence is a
physical fact and no volition/intention is needed to establish it. The animus manendi is not an
essential requirement of residence, unlike in the case of a domicile of choice. Thus, any period of
physical presence, however short, may constitute residence provided it is not transitory, fleeting
or casual. The intention is not relevant to prove the physical fact of residence except to the extent
of showing that it is not a mere fleeting or transitory existence To insist on an element of volition
is to confuse the features of residence with those of domicile. While residence and intention
are the two essential elements constituting the domicile of choice residence in its own right is a
connecting factor in a national legal system for purposes of taxation, jurisdiction, service of
summons, voting etc .

The determination of domicile of an individual has a great legal significance. It helps in

identifying the personal law by which an individual is governed in respect of various matters
such as the essential validity of a marriage, the effect of marriage on the proprietary rights of
husband and wife, jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and
adoption and testamentary and intestate succession to moveables. The domicile is the legal
relationship between an individual and a territory with a distinctive legal system, which invokes
that system as his personal law. India recognises only one domicile, namely, domicile in India by
virtue of Artice 5 of the Constitution of India. Further, the concept of domicile has no relevance
to the applicability of municipal laws, whether made by the Union of India or by the States.
The law of domicile in India can be traced under the Indian Succession Act, 1925. The domicile
under the provisions of the Act can be classified under the following categories:

(i) Domicile of origin,

(ii) Domicile of choice, and

(iii) Domicile by operation of law.

(i) Domicile of origin: Every person must have a personal law, and accordingly every one must
have a domicile. He receives at birth a domicile of origin, which remains his domicile, wherever
he goes, unless and until he acquires a new domicile. The new domicile, acquired subsequently,
is generally called a domicile of choice. The domicile of origin is received by operation of law at
birth and for acquisition of a domicile of choice one of the necessary conditions is the intention
to remain there permanently. The domicile of origin is retained and cannot be divested until the
acquisition of the domicile of choice. By merely leaving his country, even permanently, one will
not, in the eye of law, lose his domicile until he acquires a new one. This proposition that the
domicile of origin is retained until the acquisition of a domicile of choice is well established and
does not admit of any exception .

(ii) Domicile of choice: The domicile of origin continues until he acquires a domicile of choice
in another country. Upon abandonment of a domicile of choice, he may acquire a new domicile
of choice, or his domicile of origin, which remained in abeyance, revives. The burden of proving
a change of domicile is on him who asserts it. The domicile of origin is more tenacious. Its
character is more enduring, its hold stronger and less easily shaken off. The burden of proving
that a domicile of origin is abandoned is needed much heavier than in the case of a domicile of
choice. No domicile of choice can be acquired by entering a country illegally. The domicile of
choice is a combination of residence and intention. Residence, which is a physical fact, means
bodily presence as an inhabitant. Such residence must be combined with intention to reside
permanently or for an unlimited time in a country. It is such intention coupled with residence that
acquires him a new domicile. It is immaterial for this purpose that the residence is for a short
duration, provided it is coupled with the requisite state of the mind, namely the intention to
reside there permanently. If a man intends to return to the land of his birth upon a clearly
foreseen and reasonably anticipated contingency, such as, the end of his studies, he lacks the
intention required by law. His tastes, habits, conduct, actions, ambitions, health, hopes, and
projects are keys to his intention. That place is properly the domicile of a person in which he has
voluntarily fixed the habitation of himself and his family, not for a mere special and temporary
purpose, but with a present intention of making it his permanent home, unless and until
something (which is unexpected or the happening of which is uncertain) shall occur to induce
him to adopt some other permanent home.
The only intention required for a proof of a change of domicile is an intention of permanent
residence. What is required to be established is that the person who is alleged to have changed
his domicile of origin has voluntarily fixed the habitation of himself and his family in, the, new
country, not for a mere special or temporary purpose, but with a present intention of making it
his permanent home. On the question of domicile at a particular time the course of his conduct
and the facts and circumstances before and after that time are relevant.

(c) Domicile by operation of law. (Married womens domicile): The rules of Private International
Law in India are not codified and are scattered in different enactments such as the Civil
Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, and the
Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In
matters of status or legal capacity of natural persons, matrimonial disputes, custody of children,
adoption, testamentary and intestate succession etc. the problem in this country is complicated by
the fact that there exist different personal laws and no uniform rule can be laid down for all
citizens. The distinction between matters which concern personal and family affairs and those
which concern commercial relationships, civil wrongs etc. is well recognised in other countries
and legal systems. The law in the former area tends to be primarily determined and influenced by
social, moral and religious considerations, and public policy plays a special and important role in
shaping it. Hence, in almost all the countries the jurisdictional, procedural and substantive rules
that are applied to disputes arising in this area are significantly different from those applied to
claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal
unity, stability and tranquility for the sake of uniformity of rules and comity of nations which
considerations are important and appropriate to facilitate international trade, commerce, industry,
communication, transport, exchange of services, technology, manpower etc. This glaring Tact of
national life has been recognised both by the Hague Convention of 1968 on the Recognition of
Divorce and Legal Separations as well as by the Judgments Convention of the European
Community of the same year. Article 10 of the Hague Convention expressly provides that the
contracting States may refuse to recognise a divorce or legal separation if such recognition is
manifestly incompatible with their public policy. The Judgments Convention of the European
Community expressly excludes from its scope (a) status or legal capacity of natural persons, (b)
rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social
security, and (e) bankruptcy. A separate convention was contemplated for the last of the subjects.

The judicial interpretation of the concept of domicile in India is very clear. In Dr.Pradeep Jain v
U.O.I the Supreme Court observed: The entire country is taken as one nation with one
citizenship and every effort of the Constitution makers is directed towards emphasizing,
maintaining and preserving the unity and integrity of the nation. Now if India is one nation and
there is only one citizenship, namely, citizenship of India, and every citizen has a right to move
freely throughout the territory of India and to reside and settle in any part of India, irrespective of
the place where he is born or the language which he speaks or the religion which he professes
and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of
India and is entitled to equality before the law and equal protection of the law with other citizens
in every part of the territory of India, it is difficult to see how a citizen having his permanent
home in Tamil Nadu or speaking Tamil language can be regarded as an outsider in Uttar Pradesh
or a citizen having his permanent home in Maharashtra or speaking Marathi language be
regarded as an outsider in Karnataka. He must be held entitled to the same rights as a citizen
having his permanent home in Uttar Pradesh or Karnataka, as the case may be. To regard him as
an outsider would be to deny him his constitutional rights and to derecognise the essential unity
and integrity of the country by treating it as if it were a mere conglomeration of independent
States.

In Dr.Yogesh Bhardwaj v State of U.P the Supreme Court observed: Domicile, being a private
international law concept, is inapposite to the relevant provisions, having no foreign element,
i.e., having no contact with any system of law other than Indian, unless that expression is
understood in a less technical sense. An expression, which has acquired a special and technical
connotation, and developed as a rule of choice or connecting factor amongst the competing
diverse legal systems as to the choice of law or forum, is, when employed out of context, in
situations having no contact with any foreign system of law, apt to cloud the intended import of
the statutory instrument.

In Mr. Louis De Raedt v U.O.I the Supreme Court observed: For the acquisition of a domicile
of choice, it must be shown that the person concerned had a certain State of mind, the animus
manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he
had formed the intention of making his permanent home in the country of residence and of
continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is
insufficient. The burden to prove that the petitioners had an intention to stay permanently in
India lies on them. The fundamental right of the foreigner is confined to Article 21 for life and
liberty and does not include the right to reside and settle in this country, as mentioned in Article
19(1)(e), which is applicable only to the citizens of this country. The power of the Government in
India to expel foreigners is absolute and unlimited and there is no provision in the Constitution
fettering this discretion. The legal position on this aspect is not uniform in all the countries but so
far the law that operates in India is concerned, the Executive Government has unrestricted right
to expel a foreigner.

In Y. Narasimha Rao V Y. Venkata Lakshmi the Supreme Court observed: As pointed out above,
the present decree dissolving the marriage passed by the foreign court is without jurisdiction
according to the Act as neither the marriage was celebrated nor the parties last resided together
nor the respondent resided within the jurisdiction of that court. The decree is also passed on a
ground that is not available under the Act, which is applicable to the marriage. What is further,
the decree has been obtained by appellant 1 by stating that he was the resident of the Missouri
State when the record shows that he was only a bird of passage there and was ordinarily a
resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of
residence of 90 days with the only purpose of obtaining the divorce. He was neither domiciled in
that State nor had he an intention to make it his home. He had also no substantial connection
with the forum.

The law of domicile in India is crystal clear and is free from any ambiguities. However, there
seems to be an ignorance of the concept in its true perspective in India among various States and
their authorities. We at Perry4Law Organisation (P4LO) beleive that there is an urgent need to
spread public awareness in this regard. Further, it would be a good startegy to formulate the
domicile Policy of India by Central Government as soon as possible. We hope the Central
Government would come up with the Indian Domicile Policy very soon.