CENTRAL UNIVERSITY OF SOUTH BIHAR

CONFLICT OF LAWS
Research Topic: -
“Concept of Matrimonial Cause(relief), Available
Reliefs under Private International Law”.

SUBMITTED TO:-
Dr. Ajay Kumar Barnwal
SUMMITTED BY:-

ASHUTOSH KUMAR
PROGRAMME: - B.A. LL.B (HONS.)
ENR NO:- CUSB1513125013
SEMESTER: - 9TH

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ACKNOWLEDGEMENT

I am very grateful to my teacher who gave me very important and interesting project work.
My project work is on ' Concept of Matrimonial Cause and Reliefs under Private
International Law '. I started and did this project work under the supervision and
guidelines of Dr. Ajay Kr. Barnwal Without his suggestions and guidelines. it would have
been very difficult to complete the task within prescribed period of time.

He suggested me the topic of project and the steps that should be followed while making the
project. The other very important is that he suggested me the object of making research
work. So I acknowledged him for this gratuitous work who provided time and help from
his busy schedule. At the same time I acknowledge to my family members who provided me
various kind of helps in kinds of time as well various type of resources to complete the
project. I am also thankful to library staffs who provided me books when required to me to
complete the research work. Other thing from which I came to know the practical
approaches is that he gave opportunity to sit in the various classes.

Thanks

ASHUTOSH
KUMAR

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TABLE OF CONTENTS PAGE NO.

1. Research Title 04

2. Research Methodology 04

3. Table of Cases 05

4. Abstract 06

5. Introduction 07

6. Dissolution of Marriage 08

7. Jurisdiction in English Law 08

8. Jurisdiction in Indian Law 09

10. Choice of Law in England and India 10

11. Recognition of Foreign Divorces 10-12

12. Nullity of Marriage 12-13

13. Judicial Separation 14-15

14. Conclusion 16

15. Bibliography 17

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RESEARCH TITLE
An Analysis of: Concept of Matrimonial Cause under Private international Law.

RESEARCH METHODOLOGY

This Research Work is basically based upon Doctrinal Method of research, basing upon the
research through Primary sources including contemporary literature review, Books, Journals,
Digests and Secondary Sources including websites, online articles and the data collected from
World Wide Web.

Method of Writing

The research paper is in theoretical in nature.

Mode of Citation

The mode of citation used in this paper is 19th edition of Harvard Blue Book Citation.

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TABLE OF CASES
1.Niboyet v. Niboyet, (1878) 4 P.D.1

2.Leon v. Leon , (1963) 3 WLR 1164

3.Panthaky v. Panthaky, 1941 Bom. 330.

4.Jagir Kaur v. Jaswant singh, 1963 SC1521.

5.Christopher Neelkantham v. Annie Neelkantham, 1959 Raj 133

6. Pemberton v. Huges, (1899) 1 Ch 781

7. Hogan Bhai v. Hariben, 1985 Guj 187

8. Rajiv Tayal v. Union of India.

9. Narashima Rao v. Venkata Laxami.

10. Von Lorang v. Administartor of Austrian Property.

11 .Joao Gloria Pires v. Ana pires.

12. Satyav. Teja Singh, 1975 SCC (1) 120.

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ABSTRACT

The article basically focuses on the marriage as a contract which is sui generis along with the
opinion of various Judges though the judgments in different cases. However it also talks about
the position, legal formalities along with the validity and capacity of the parties to marriage and
the choice of law rules governing such marriages in England and other common law countries
though out the world. On the other hand the author has also focused on the matrimonial causes
like polygamous marriages; divorce, judicial separation, nullity of marriage in different
countries. Towards the end of the article it talks about the jurisdiction and the choice of law for
solving such causes after marriage and the recognition of foreign divorces in other countries. At
the conclusion part the authors have tried to give an overall view along with the present scenario
on the subject. At the same time that marriage and family life have become more globalized,
countries. Around the world have made large changes to their domestic laws in ways that have
reduced the scope and scale of traditional conflicts problems. For example, the shift toward no-
fault divorce laws in the United States eliminated much of the forum-shopping for favorable
divorce laws that preoccupied earlier generations of conflicts scholars, clearing away a thicket of
rules that had complicated questions of marriage validity. Since 1971, substantive and procedural
restrictions on marriage have been eased, rates of no marital cohabitation have increased, and
new alternatives to marriage have emerged, such as the civil union and domestic partnership. As
described by Mary Ann Glen don, many countries have experienced both “a progressive
withdrawal of official regulation of marriage formation, dissolution, and the conduct of family
life” and, at the same time, “increased regulation of the economic and child-related consequences
of formal or informal cohabitation.”2 The traditional conflicts problems of marriage recognition
and choice of law in divorce proceedings have not disappeared, but have shifted significantly as
a result of these trends.

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INTRODUCTION
Transformed by the advent of globalization, and the increasing movement of individuals and
families across national borders, international family law has become a significant subject,
bridging the traditional boundaries of public and private international law. In the context of
cross-border marriage and divorce litigation, however, courts. Conflict of marriage laws is
the conflict of laws with respect to marriage in different jurisdictions1. When marriage-related
issues arise between couples with diverse backgrounds, questions as to which legal systems and
norms should be applied to the relationship naturally follow with various potentially applicable
systems frequently conflicting with one another 2. Conflict of laws in the matrimonial field has
been a phenomenon in India since time immemorial, dating back to conflicts between the laws
of Shia and Sunni sects in the Muslim community. In the period preceding 1857, ecclesiastical
courts enjoyed jurisdiction over matrimonial causes in India. As the jurisdiction of these
ecclesiastical courts extended to all Christians, problems related to conflict of laws did not arise.
It could be enjoyed by the courts so long as the parties were resident within their jurisdictional
territory. In turn, this also meant that the domicile or nationality of the parties was not a cause
of concern for the church. However, the rapid advances of the English society in the eighteenth
and nineteenth centuries made the recognition of divorce essential. This came in the form of
Matrimonial Causes Act, which not only repudiated notions of indissolubility in marriage, but
also transferred the jurisdiction to the civil courts of the country in entirety. Subsequently, the
Supreme Court of Judicature Act, 1925 defined matrimonial causes to include nullity of
marriage, divorce, judicial separation, and restitution of conjugal rights. These causes were
introduced in India by the Hindu Marriage Act, 1955 for all citizens except Muslims. Among
Muslims, wives are allowed to seek divorce on the grounds specified under the Dissolution of
Muslim Marriages Act, 1939. The essay examines the first two of these grounds viz. nullity of
marriage and divorce in extensive detail. For conflicts purposes, the most significant changes in
family law since the Second Restatement are the adoption of unilateral non-fault divorce laws,
and a wider embrace of property-sharing principles at the time of divorce. Although disputes

1 Ross Smith v. Ross Smith, (1963)

2 Niboyet v. Niboyet, (1878)

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regarding marital property issues are now more important in practical terms than disputes over
the grounds for divorce, the Second Restatement has no jurisdictional rules for litigation of
equitable distribution.

DISSOLUTION OF MARRIAGE

In England, the consent and breakdown theories of divorce are both partially accepted. However,
the Matrimonial Causes Act, 1973 accepts no other ground for divorce except irretrievable
breakdown of marriage. The situations where such a breakdown would ensue are statutorily
defined by Section 1 (2), and include factors such as the commission of adultery, desertion or
separation for a continuous period immediately before the suit. In India in contrast, the Indian
Divorce Act, 1869 stands as a testament to colonial times, whereas the Special Marriage Act,
1954 shows the insensitivity of putting guilt as a ground for divorce alongside mutual consent
and breakdown.3 The former recognizes few grounds such as adultery and conversion by the
husband. It is the latter statute, however, which calls for our attention: it re-enacts each of the
three theories of divorce in Sections 27 and 28. Many fault grounds are recognized, including
lengthy imprisonment, incurable insanity, leprosy, presumption of death, over and above
traditional fault grounds such as adultery and cruelty. This broad outlook is reiterated by the
Hindu Marriage Act, 1955.

JURISDICTION IN ENGLISH LAW

Several fundamental changes have been effected by the Domicile and Matrimonial Proceedings
Act, 1973, following which the jurisdiction of English courts has been limited to two grounds-
domicile and habitual residence. According to the statute, the first of these grounds is satisfied if
either party is domiciled in the country on the date of initiation of proceedings. 4 Moreover, a
subsequent change in domicile would not alter the jurisdiction already enjoyed by the English
courts. The second ground of habitual residence has been recognized in light of the Hague
Conventions regarding the same. At the same time, the term has not been defined, but left to be

3 Section 1 (1) of Special Matrimonial Causes Act, 1973

4 Section 10 of Matrimonial Causes Act, 1973

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determined by factual elements instead. This idea has been underlined by the Council of Europe
on Fundamental Legal Concepts thus: “in determining whether a residence is habitual, account
is to be taken of the duration and the continuity of the residence as well as other factors of a
personal or professional nature which point to durable ties between a person and his residence.”

JURISDICTION IN INDIAN LAW

The matrimonial laws in India vary from one community to another, yet statutory enactments
have been made for most of these. Under none of these religion-specific laws is either nationality
or domicile considered relevant for the purpose of determining jurisdiction in a matrimonial
cause. Instead, they choose to accord centrality to ‘residence’, which in turn has been defined in
a broad sense. The Hindu Marriage Act, 1956, serves as a case in point: it recognizes, among
others, ‘residence’ at the time of marriage and presentation of petition as valid factors for
determination of jurisdiction. Courts have been quick to point out that whether a spouse is
resident in a particular place or not depends upon the facts of the case. This mixed question of
law and fact was handled by the Supreme Court in Jagir Kaur v. Jaswant Singh5 thus, “…we
would define the word ‘resides’ thus: a person resides in a place if he through choice makes it his
abode permanently or even temporarily; whether a person has chosen to make a particular
place his abode depends upon the facts of each case. “Additionally, Subba Rao, J. observed that
the word ‘residence’ would not include “a casual stay in, or a flying visit to, a particular place”.

However, it is possible that the parties may have failed to establish a matrimonial home during
the period of marriage. In such cases, jurisdiction is accorded to the last place of residence, even
when the duration of such stay is remarkably brief. Tara v. Jaipal Singh6 serves as a useful
illustration: in this case, the parties had not set up permanent residence anywhere, choosing to
live at several places for short time periods instead. It was held that they were living in
Darjeeling simply because it was where they had resided during the week immediately preceding
the breakdown.

5 1963 SC 1521
6 (1946) 1 Cal 604

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CHOICE OF LAW IN ENGLAND AND INDIA

English courts invariably apply their own domestic law once their jurisdiction has been
determined. This is not negated even when it becomes known that matrimonial misconduct does
not constitute a ground for divorce in the foreign country of residence/domicile. While this may
find justification in the grounding of English divorce law in domicile, it cannot explain away the
insistence of the English courts to apply their domestic law while assuming jurisdiction on the
basis of residence of the parties. Special statutory jurisdiction has come to be abolished over
time, but English domestic law is still applied in all the cases where the English court has
jurisdiction. In India, once questions of jurisdiction have been entertained and determined, the
courts apply the personal law of the parties involved. Thus, the Parsi Marriage and Divorce Act,
1936 would be applied in a case where the parties to the dispute belong to the Parsi community.
The Special Marriage Act, 1954 is applied even when both parties belong to the same religion, in
situations where the marriage involves a foreign element, or has been performed abroad. 7 It
becomes evident, then, that the question is not of applying the lex domicilii of the parties, but
their lex fori.

RECOGNITION OF FOREIGN DIVORCES

[A] England

The recognition of foreign divorces in India has come to be codified by the Recognition of
Divorces and Legal Separations Act, 1971. Prior to the enactment of this statute, it had been held
that a foreign divorce decree would not be recognized unless the judicial pronouncement was
made by a competent court in the country of domicile. In Le Mesurier v. Le Mesurier, the court
had observed that: “The principle of recognizing the validity of a decree pronounced by the court
of the domicile has been long established and forms an essential part of the comity of
nations.” Even when such a pronouncement was not made, but only recognized as valid by the
foreign court of domicile, the English courts would recognize the divorce. This position changed
with Travers v. Holley, which laid down that the validity of the basis of exercising jurisdiction

7 Christoper Neelkantham v. Annie Neelkanthm, 1959, Raj 133

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before the foreign court, whether domicile or otherwise, would determine recognition of the
divorce. This was taken even further by the judgment of the House of Lords in Indyka v. Indyka,8
which qualified real and substantial connection between the parties and the court as a valid
ground for seeking divorce before that particular forum.

Following the enactment of the Act of 1971, recognition of foreign divorces is guided by
Sections 3 and 6 of the statute. The latter of these provisions has been reconstituted with the
passing of the Domicile and Matrimonial Proceedings Act, 1973, which permits the wife to have
her separate domicile. The Act of 1971 identifies two new grounds for divorce viz. habitual
residence and nationality, and is arguably a step forward in the sense that it retains liberality
while injecting fresh certainty. ‘Habitual residence – a whittled down version of domicile – offers
an alternative to the concept of domicile, which has developed in a largely erratic manner. ’At
the same time, the absence of a clear-cut definition for “habitual residence”, under either statute
or case-law, may deprive the law of the requisite clarity. When any of these grounds contained in
sections 3 and 6 exist, the foreign divorce is recognized regardless of whether it has been
obtained through judicial proceedings or otherwise. However, at times when this is not the case,
it becomes necessary to construe the term “other proceedings” for non-judicial divorces. This
issue came to consideration before the House of Lords in Regina v. Secretary of State for the
Home Department, Ex parte Ghulam Fatima,9 where a wholesome reading of the provisions of
the statute led the court to conclude that a single set of proceedings had to be necessarily
instituted in the country where the divorce was obtained.

In 1899, Lindley, M.R. had observed that English courts only needed to look at the finality of the
judgment and jurisdiction of the court before recognizing a foreign divorce, provided that
English notions of substantial justice were not offended.10 This viewpoint is reflected in the Act
of 1971, which permits refusal on grounds of violation of principles of natural justice and public
policy.

8 (1967) 2 All E.R. 689

9 (1995) 2 AC 513
10 Pemberton v. Huges, (1899) 1 Ch 781

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[B] India

Each matrimonial law specifies grounds for dissolution of marriage. However, none of these
legislations, whether inadvertently or otherwise, state whether a domiciliary/residence
qualification is necessitated by a divorce. Consequently, it becomes necessary to look at courts
for guidance, and the judgment in Satya v. Teja Singh11 clarifies the need for a domicile in the
location of the court for upholding the validity of the divorce. Thus, Indian rules for recognition
of foreign divorce are not fully developed yet apart from general provisions contained in Section
13 of the Civil Procedure Code. Accordingly, the development of case-law assumes centrality.
In Joao Gloria Pires v. Ana Pires,12 the court started with the assumption that the decree was
valid, but could not be accepted because it was contrary to public policy. In a later case,
recognition was denied on the ground that one of the spouses had misrepresented their domicile
before the foreign court. Indian courts must assume responsibility in developing the law in this
regard with or without the aid of legislation. When they themselves can assume jurisdiction on
the basis of residence, there can be no logical explanation to refuse it to foreign courts on the
same count. In fact, the Law Commission made several important recommendations for
addressing this issue in its 65th report, such as provisions of fairness for the other party (whether
because of the lack of reasonable notice, opportunity of hearing, et al.) and the irrelevance of
non-recognition by a third country as a factor in recognizing a foreign divorce (or otherwise), but
no subsequent law has been passed.

NULLITY OF MARRIAGE

Both void and voidable marriages developed in ecclesiastical courts, but were carried over to
common law even after these courts ceased. The earliest matrimonial statutes viz. the Parsi
Marriage and Divorce Act, 1936 and the Divorce Act, 1869, made no distinction between void
and voidable marriages. However, it was adopted by both the Special Marriage Act, 1954 and the
Hindu Marriage Act, 1955. With the enactment of the new jurisdictional rules under the Domicile

11 1975 SCC (1) 120

12 1967 Goa 113

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and Matrimonial Proceedings Act, 1973, the distinction has lost much of its significance in
England.

The Act of 1973 has made radical changes to the jurisdiction of the court in matters of nullity of
marriage. The differences between the jurisdictional rules for void and voidable marriages have
been removed. Now, under the statute, an English court can enjoy jurisdiction either under
domicile, of one or both parties, or through habitual residence for a period of one year before the
petition. In turn, they recognize a foreign nullity decree when it is approved by the court of
domicile or habitual residence. In Von Lorang v. Administrator of Austrian Property,13 for
instance, the House of Lords noted that the court of common domicile of the parties to the
dispute has the competence to make a determination regarding questions of status of the parties
with finality. As Sir Jocelyn Simon, P. succinctly observed, “If we ourselves claim a ground of
jurisdiction we must concede a similar ground of jurisdiction to foreign courts . While Indian
case laws on this specific issue have been rare, we can conclude that the recognition of foreign
nullity decrees will be no different from recognition of divorce decrees. This is because Indian
law makes no distinction whatsoever between matrimonial causes on the point of jurisdiction.

LANDMARK CASE-LAW

[1] Rajiv Tayal v. Union of India.14

In this case, the NRI husband sought to quash the order of the court to join the proceedings
before the Metropolitan Magistrate in India largely on the ground that subjecting him to criminal
process would constitute an unfair burden on him as he was residing in a foreign country. The
court unequivocally held that the acceptance of a plea of this nature would accord a premium to
an accused citizen simply because he happened to be abroad, thereby placing him in a position
superior to other Indians. By its rejection, in contrast, it could be ensured that the process of law
was not misused by the accused.

[2] Narasimha Rao v. VenkataLaxmi15.

13 (1927) A.C. 641

14 1991 SCC (3) 451
15 (1991) 2 SCR 821

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 In this case, the decree for dissolution of marriage had been passed by a circuit court in America.
The meaning of each of the clauses in Section 13 of the Code of Civil Procedure, 1908 was set
out by the Supreme Court. ‘Competent court’, as contained in the first clause, was understood to
mean a court to whose jurisdiction the parties had both voluntarily and unconditionally submitted
themselves to. ‘Merits’, found in the second clause, were construed as the grounds available
under the law under which the marriage took place.

Judicial Separation

A blissful marital life is a sheer result of unconditional love, faith, belief, passion and
determination between couples who ensure to stay together in every phase of life. But things turn
out ugly when both the spouses experience lack of interest, mistrust, misunderstandings,
differences, etc… amongst one another. Unfortunately, this results in the couple filing for
Divorce. But the eyes of law believe in giving an opportunity to couples in the form of Judicial
Separation.Judicial Separation is a provision under the Indian marriage laws, wherein both the
husband and the wife get an opportunity to introspect about giving a chance to their marriage,
before going on with the divorce proceedings. Under a decree of Judicial Separation, both the
parties live separately for a period of time getting adequate space, independence and time to
think about continuing their marriage or not. During this phase, both the parties still carry the
same legal status of being husband and wife and yet at the same time live separately also.

Grounds for Judicial Separation in India

The following grounds on which Judicial Separation can be granted:

 Cruelty – Either of the spouse or both are cruel for one another.

 Desertion – Either of the spouses is not alive and is missing since seven years and above.

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 Adultery – Either of the spouses is being cheated upon by other spouse. In case a husband
or a wife knows that their respective spouse is married and that the other person is alive during
this petition; then the grounds for judicial separation strengthens.

 Forced conversion of religion – Either of the spouses is forcing the other one to change
and convert his/her religion. Incurable diseases such as leprosy, cancer, Ebola, etc…

 Insanity or abnormality – Either of the spouses is not in a sound condition.

 Venereal or sexual diseases – Either of the spouses is suffering from sexual diseases such
as HIV, AIDS, Genital Herpes, Syphilis, etc…

 Rape, Sexual Harassment, Molestation, Bestiality and Sodomy.

 Renunciation of the world by either of the spouse on religious or spiritual grounds.

 Child marriage – Either of the spouses is married without his/her consent before attaining
18 years of age.

Difference between Judicial Separation and Divorce

Although the procedure of dealing defended and undefended proceedings for both judicial
separation and divorce are similar, yet there are certain differences between them. Explore them
as follows:

 Judicial Separation does not terminate marriage whereas in divorce the parties are no
more husband and wife and hence the marriage ends.

 While undertaking proceedings for judicial separation, the court does not have to
consider that the marriage is permanently closed or broken down whereas in divorce it is
required while presenting the petition.

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 Both the parties can file for judicial separation any time post marriage whereas in case of
divorce the parties can only file for divorce only after completion of one year of marriage.

 A judicial separation goes through one stage judgment procedure however; divorce goes
through a two stage judgment process.

 There are certain provisions in Matrimonial Causes Act 1973 that are applicable to
divorce but are not applied to judicial separation petitions irrespective of going through a two or
five year separation period.

 Judgments with respect to Wills are not applicable in case of Judicial separation. In case
the parties are undergoing a separation time and if one of the spouse dies then the existing spouse
will not be benefited out of it and thus the property will devolve.

Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple
seeking divorce, to try resolving their differences by living separately, before the initiation of
divorce proceedings. This gives time for introspection and resolving the matrimonial disputes
and misunderstanding between the couple.

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CONCLUSION
In the end, I conclude my topic that Matrimonial causes are those causes which are related to the
marriage in which two parties are involve one is husband other is wife. There are many types of
matrimonial causes which arises in the society for example – Restitution of conjugal rights,
judicial separation, divorce etc. Here, we dealt matrimonial causes in context of private
international law. Concept of matrimonial cause is not new in private international law but this is
very old concept. Matrimonial causes arises where any person goes to abroad or any person
comes from abroad and doing marriage in that country. After the marriage differences arises
between the spouse and this type of matrimonial causes solve by the special rule in the private
international law. If any Matrimonial cause arises between two same country people then
Matrimonial Cause solve by their own personal law but if dispute arises which is related to
matrimonial cause then conflict of law arises between two different country law and after that
question arises that which law would be applicable for the solve of these type of problem. In
India, if these type of problem arises then solve on the basis of residence of that people and if
these types of problem arises in England then case decided on the basis of domicile of the
people.

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Bibliography

Books

1.Paras Diwan. Private International Law (New Delhi Sultan Chand and Sond) 1998.

2. Cherishre and Norths. Private International Law (Lucknow- Eastern Book Company) 2008.

3.A.V. Dicey. Conflicts of Laws (Allahabad : Central Law Publications) 2006.

4. Dr. Sai Ramani Garimella (Allahabad : Central Law Publications) 2006.

5. V.C. Govindaraj. Private International Law (New Delhi Sultan Chand and Sond) 1998.

WEBSITES

1.http://www.wekipedia.org.

2. http://www.indiankanoon.com.

3. http://www.manupatra.com.

4. http://www.sconline.com.

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5. http://www.advocatekhoj.com.

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