Archive for ◊ September, 2013 ◊

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• Saturday, September 28th, 2013

Security And Risk Mitigation Measures For Card Present Transactions In India Brought Into Force By RBIReserve Bank of India (RBI) has finally decided that enough is enough. According to the Circular numbered RBI/2013-14/296, DPSS (CO) PD No.719/02.14.011/2013-14, issued on September 27, 2013, RBI has finally brought into force the mandatory provisions of the circular numbered DPSS.PD.CO.No.513 / 02.14.003 /2011-2012 dated September 22, 2011 on security issues and risk mitigation measures related to Card Present (CP) transactions and circulars DPSS (CO) PD No.1462 / 2377/ 02.14.003/2012-13 dated February 28, 2013 and June 24, 2013 respectively on security and risk mitigation measures for electronic payment transactions, wherein various timelines were indicated for compliance.

Banks in India have approached RBI from time to time to extend the 30th September 2013 deadline for the applicability of these circulars for complying with the task of securing the technology infrastructure (Unique Key Per Terminal- UKPT or Derived Unique Key Per Transaction- DUKPT/ Terminal Line Encryption- TLE) as stated under Para 4(a)(3) of RBI’s circular dated September 22, 2011.

RBI had decided these timelines after a series of meetings/discussions with the stakeholders. It was also clearly emphasised in RBI’s circular dated June 24, 2013 that no further extensions would be granted. In addition, it was also indicated that in the event of a customer complaining of misuse of card after the date stipulated in this circular, the issuer or the acquirer who has not adhered to the timelines should bear the loss.

This means that banks in India would now be legally liable to make good the losses arising due to their own negligence, lack of cyber due diligence and non adherence to the directions issued by RBI from time to time. Presently the banks of India are passing of the burden and losses arising out of fraudulent monetary transactions to their consumer that is going to change very soon.

RBI has further decided not to grant any further extension of time. Accordingly, banks not complying with the requirements shall compensate loss, if any, incurred by the card holder using card at POS terminals not adhering to the mandated standards.

In this context, since the card holder/s would be approaching his/her card issuing bank for any fraudulent POS transaction/s in India (which have occurred after September 30, 2013), the following course of action is mandated by RBI:

(1) The issuing bank would ascertain, within 3 working days from the date of cardholder approaching the bank, whether the respective POS terminal/s where the said transaction/s occurred is/are compliant with TLE and UKPT/DUKPT as mandated.

(2) In the event it is found that the POS terminals are non-compliant as mandated, the issuing bank shall pay the disputed amount to the customer within 7 working days, failing which a compensation of Rs.100 per day will be payable to the customer from the 8th working day.

(3) The issuing bank shall claim the amount paid by it to the customer from the respective bank/s which have acquired the POS transaction/s in question.

(4) The acquiring banks have to pay the amount paid by the issuing bank without demur within 3 working days of the issuing bank raising the claim, failing which the RBI would be constrained to compensate the issuing bank by debiting the account of the acquiring bank maintained with the Bank.

RBI has also directed the acquiring banks to send a status report of compliance with respect to TLE and UKPT/DUKPT as on 30 September 2013, duly signed/ approved by the CMD/CEO of the bank on or before October 07, 2013. The position in this regard may also be put up to the Board in its next meeting, and a duly approved copy of this may be sent to RBI.

RBI will also consider invoking the penal provisions under the Payment and Settlement Systems Act, 2007 for banks that have failed to adhere to the timeline of September 30, 2013. These instructions have been issued under Section 18 of Payment and Settlement Systems Act, 2007.

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• Wednesday, September 25th, 2013

Social Media And Cyber Crimes Investigation In IndiaSocial media like Facebook, Twitter, Linkedin, etc are essential for the free flow of information and freedom of speech and expression. However, along with various rights, people using social media websites must also comply with the laws and regulations of various jurisdictions.

We have no dedicated social media laws in India. Although the Information Technology Act, 2000 (IT Act 2000) covers the social media aspect but it does so indirectly and in an ineffective manner. Even the IT Act, 2000 itself is a weak piece of law that deserves to be repealed as soon as possible and more comprehensive and holistic laws must be enacted in this regard.

To make the situation worst, we have no set procedure for e-discovery for social media in India. As a result most of the crucial electronic evidences are lost before they can be acquired by the law enforcement agencies of India.

Further, cross border issues like authorship attribution for cyber crimes, jurisdictional issues, failures of Mutual Legal Assistance Treaty (MLAT) between India and other countries, etc are some of the complications that Indian government faces on a regular basis.

India government has been trying its level best to regulate social media in India. This includes issuance of guidelines and other departmental instructions. However, we have an inadequate cyber crime investigation mechanism in India. Recently the Supreme Court of India issued notice Maharashtra government and Deity for framing cyber crime investigation guidelines for India.

Similarly, a Public Interest Litigation (PIL) has also been filed in India for directing the central to frame regulations and guidelines for effective investigation of cyber crimes in India.

No policy and measure of Indian government would be successful till they are properly formulated and effectively implemented. This equally applies to social media platforms operating world wide.

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Author:
• Monday, September 16th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBThe aim of this article, written by Praveen Dalal managing partner of law Firm Perry4Law, is to analyse the legal position regarding recognition of foreign divorce decrees in India and its judicial enforcement in India. Recognition of foreign decree is an important aspect of Conflict of Laws or Private International Law, which has not yet been developed in India. An attempt has been made to provide holistic aspects of this branch, so that the same may be used for various purposes. The article is primarily based upon the updating and purposive interpretation of the Conflict of Laws, as applicable in India. Thus, it will inevitable tread beyond the contemporary line of thought that is not only limiting this branch to narrow confines but is equally restricting its growth in India.

The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The “Public International Law” on the other hand primarily encompasses within its ambit the Treaties and conventions which are required to be uniformly followed by the “Member Countries” [1]. To appreciate the concept better it is inevitable to analyse the concept of International law in some detail. The expression “International law” is synonymously used for the term “Public International Law”. It is different from “Private International Law” that is a law of different States. The rules of Private International Law have been formulated to avoid conflicts that arise due to conflicting laws of different States. The Public and Private International Law differs in many crucial aspects that primarily decide which law will govern the situation. The chances of “sovereignty clash” are more in case of Private International Law as compared to its counterpart.

The following differences between Private International Law and Public International Law are worth noticing:

(1) Subjects: The Public International Law primarily deals with the States and to some extent with the individuals; Private International Law primarily deals with the individuals of two States.

(2) Scope: The rules of Private International Law are made by the concerned sovereign State whereas it is not so in case of Public International Law.

(3) Applicability: The Public International Law is applied uniformly to all States with few concessions attached to it whereas Private International Law differs from State to State.

(4) Source of law: The Public International Law is formulated through the mode of Treaties and Conventions whereas the Private International Law is formulated by the legislature of the sovereign States.

As a general rule the Public International Law is usually used to give effect to municipal laws of a State but there may be occasions where Private International Law may become rules of Public International Law. This happens when the rules of Private International Law are incorporated in the international treaties [2].

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, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. The problem in India 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 fact 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 the following:

(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 [3].

Thus, India’s social, moral and religious conditions, along with the “public policy”, will be decisive for determining the matrimonial law, including jurisdictional aspects, applicable in India and the harmonisation of law cannot be achieved at the cost of their ignorance and sacrifice. The principles governing public policy must be on proper occasion, capable of expansion or modification. The practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy, which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case, which may not be covered by authority, our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution[4]. The courts can refuse to apply a rule of foreign law or recognise a foreign judgment or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is sought to be invoked or enforced[5].

Only court of competent jurisdiction can entertain a matrimonial suit. A court is competent if:

(a) either party or both parties to the suit had “sufficient contact” with the territorial jurisdiction of that court, or

(b) either party was or both parties were “domiciled” in its territorial jurisdiction at the time of filing of the suit, or

(c) the parties were married under “a law” that confers jurisdiction upon that court, either expressly or impliedly, etc.

The Indian Courts have generally tried to follow in jurisdictional matters the English rules of Private International Law, whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal is not a sound judicial strategy. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the different communities. It is only where there was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 58 years of independence the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in India derived their inspiration from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area.

The courts, however, cannot be blamed for this sardonic situation. The courts are helpless because either they have to rely upon foreign precedents or they have to develop the Private International Law in India within the parameters of already exiting and scattered law. The same can only be done by adopting an updating, purposive and futuristic interpretation of the existing laws. That is a need of hour because nothing much has been done to remedy the situation by the legislature. Further, since the matter is before the courts the same can also be taken care by the courts in India. Legislatures are not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society [6]. Thus, Courts in India can provide a much better solution to this situation by adopting the “purposive and updating modes of interpretation’ of the provisions of the various laws. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking[7]. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law [8]. This must be more so since the efforts of the Law Commission reflected in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted.

The matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. We cannot also lose sight of the fact that today more than ever in the past; the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence.

Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters are becoming the order of the day. The minimum rules of guidance for securing the certainty need not await legislative initiative. The Constitutional Courts can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose [9].

The relevant provisions of Section 13 of the Code of Civil Procedure, 1908 (Code) are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Under Section 13 of the Code, a foreign judgment is not conclusive as to any matter thereby “directly adjudicated upon” “between the parties” if:

(a) it has not been pronounced by a Court of competent jurisdiction; or

(b) it has not been given on the merits of the case; or

(c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; or

(d) the proceedings are opposed to natural justice, or

(e) it is obtained by fraud, or

(f) it sustains a claim founded on a breach of any law in force in India.

It is thus clear that in order to make a foreign judgment conclusive in India; it must be shown that it complies with all the abovementioned six conditions. If there is no compliance of any one of these conditions, the foreign judgment will not be conclusive and consequently not legally effective and binding. A decree of a foreign Court is normally recognised by a Court in another jurisdiction as a matter of comity and public policy. But no country is bound to recognise and give effect to a decree of a foreign Court if it is repugnant to its own laws and public policy. So far as India is concerned, a judgment of a foreign Court creates estoppel or res judicata between the same parties provided such judgment is not subject to attack under any of the Clauses (a) to (f) of section 13 of the Code [10].

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. If a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction, it is necessary that the Court granting the decree has jurisdiction over the proceedings. A foreign divorce decree is therefore, subject to collateral attack for lack of jurisdiction [11]. This clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise. A decree passed by a court without jurisdiction will be void, having no force of law and binding value. In Rafique Bibi v Sayed [12] the Supreme Court observed: “What is void has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction, which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go beyond the decree must prevail”.

Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the “contest” between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court, which may be valid in other matters and areas should be ignore and deemed inappropriate. Thus, an ex-parte decree passed in the absence of the wife will not satisfy the requirements of this clause.

In M/S International Woolen Mills v M/S Standard Wool (UK) Limited (2001) the Supreme Court, while dealing with the validity of an ex-parte decree observed: “Section 114 merely raises the presumption, under illustration (e) thereof, that judicial acts have been regularly performed. To say that a decree has been passed regularly is completely different from saying that the decree has been passed on merits. An ex-parte decree passed without consideration of merits may be decree passed regular if permitted by the rules of that Court. Such a decree would be valid in that country in which it is passed unless set aside by a Court of Appeal. However, even though it may be a valid and enforceable decree in that country, it would not be enforceable in India if it has not been passed on merits. Therefore for a decision on the question whether a decree has been passed on merits or not, the presumption under Section 114 would be of no help at all”.

The first part of clause (c) of Section 13 recognises that if a decision is based on an incorrect view of International Law by a foreign court, that judgment will not be recognised in India. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable; the judgment will not be recognised by the courts in this country. The marriages, which take place in this country, can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment, which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13, which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases, which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied.

The provision of clause (e) of Section 13, which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v Teja Singh [13] it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law, which determines the jurisdiction and judges the merits of the case [14].

If you need any professional assistance, please feel free to contact us and establish a client attorney relationship.

[1] Praveen Dalal, “The mandates of WTO”,  http://perry4law.blogspot.com/2005/05/mandates-of-wto.html .
[2] Praveen Dalal, “The true face of International law”, http://praveendalal.blogspot.com/2005/06/true-face-of-international-law.html .
[3] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[4] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC 1571.
[5] Renusagar Power Co. Ltd. v General Electric Co., A.I.R. 1994 S.C. 860.
[6] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC 1571.
[7] Praveen Dalal, “Law as an instrument of social change” http://perry4law.blogspot.com/2005/06/law-as-instrument-of-social-change.html
[8] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.
[9] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[10] Maganbhai v. Maniben, A.I.R. 1985 Gujarat 187.
[11] Satya v Teja Singh, A.I.R. 1975 SC 105.
[12] (2004) 1 SCC 287.
[13] A.I.R. 1975 SC 105.
[14] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.

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Author:
• Monday, September 16th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBThe aim of this article, written by Praveen Dalal managing partner of law Firm Perry4Law, is to provide an legal insight into the law-governing domicile in India and its applicability to marriage, succession and employment purposes. An effort has also been made to reconcile the conflict of laws as prevailing in the international community vis-à-vis domicile and matrimonial rights associated with it.

Domicile is primarily a private international law or conflict of laws concept that 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. 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. No one can be without a domicile and no one can have two domiciles. 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. It is possible for the domicile of origin to be transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin.

When a person is referred to as domiciled in a country, the expression “country” is used in private international law as a term of art denoting, in the words of dicey, the whole of a territory subject under one sovereign to one body of law. But in a federation 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 private international law, as a “country”, though in public international law or constitutional law it is not a separate sovereign State. This is, however, not the 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.

The word “domicile” should not be confused with a simple “residence”. The residence is a physical fact and no volition 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’. A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life. A man may be ordinarily resident or habitually resident in more than one place. While ‘ordinary residence’ is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, ‘habitual residence’ may denote a quality of endurance longer than ordinary residence, although duration, past or prospective, is only one of the many relevant factors, and there is no requirement of any particular minimum period. If a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country, even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country. The education, business, profession, employment, health, family, or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode. It is only lawful residence that can be taken into account. If a man stays in a country in breach of immigration laws, his presence there does not constitute ordinary residence. 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. It is well settled that the domicile of a person is in that country in which he either has or is deemed by law to have his permanent home. The notion, which lies at the root of the concept of domicile, is that of permanent home. But it is basically a legal concept for the purpose of determining what is the personal law applicable to an individual and even if an individual has no permanent home, he is invested with a domicile by law. There are two main classes of domicile: domicile of origin that is communicated by operation of law to each person at birth, that is the domicile of his father or his mother according as he is legitimate or illegitimate and domicile of choice which every person or full age is free to acquire in substitution for that which he presently possesses. The domicile of origin attaches to an individual by birth while the domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely.

Each person who has, or whom the law deems to have, his permanent home within the territorial limits of a single system of law is domiciled in the country over which the system extends; and he is domiciled in the whole of that country even though his home may be fixed at a particular spot within it. In federal states some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation and the individual will be domiciled in one state or province only. The Constitution recognises only one domicile, namely, domicile in India. Art. 5 of the Constitution is clear and explicit on this point and it refers only to one domicile, namely, “domicile in the territory of India”.

The legal system, which prevails throughout the territory of India, is one single indivisible system. It would be absurd to suggest that the Legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws. The concept of ‘domicile’ has no relevance to the applicability of municipal laws, whether made by the Union of India or by the States. It would not, therefore, be right to say that a citizen of India is domiciled in one state or another forming part of the Union of India. The domicile, which he has, is only one domicile, namely, domicile in the territory of India. When a person who is permanently resident in one State goes to another State with intention to reside there permanently or indefinitely, his domicile does not undergo any change: he does not acquire a new domicile of choice. His domicile remains the same, namely, Indian domicile. Moreover to think in terms of state domicile with be highly detrimental to the concept of unity and integrity of India.

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 Women’s 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.

We cannot also lose sight of the fact that today more than ever in the past; the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters are becoming the order of the day.

The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence — permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law, which determines the jurisdiction and judges the merits of the case.

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. The same is important for resolving the “conflict of laws” in India. There seems to be an ignorance of the concept in its true perspective in India. There is an urgent need to spread “public awareness” in this regard.

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