Private International Law in India: Domicile, CPC, Awards

Private international law, or conflict of laws, decides three questions in cases with a foreign element: which court has jurisdiction, which system of law applies, and whether a foreign judgment or award will be recognised and enforced. Unlike public international law, it is part of each state's domestic law. India has no single code on the subject; its rules are found in the Code of Civil Procedure, the Indian Succession Act, the marriage statutes, the Arbitration and Conciliation Act, 1996 and judicial decisions drawing on English common law. This note covers each of these areas.

1. Nature and Sources

• Three questions. Jurisdiction (the choice of forum), choice of law (the applicable law) and recognition and enforcement of foreign judgments and awards (Topic 3)
• Statutory sources. Sections 13, 14 and 44A of the Code of Civil Procedure, 1908; sections 4 to 19 of the Indian Succession Act, 1925 on domicile; the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969; and Part II of the Arbitration and Conciliation Act, 1996.
• Judge-made rules. In the absence of statute, Indian courts follow principles of justice, equity and good conscience, drawing on English conflict rules but adapting them to Indian conditions, as the Supreme Court stressed in Y. Narasimha Rao (1991)

2. Jurisdiction

• Basis. Indian courts have jurisdiction under sections 16 to 20 of the Code, chiefly where the defendant resides or carries on business or the cause of action arises in India.
• Choice of forum clauses. Parties may agree to submit disputes to a foreign or neutral court, and such clauses are generally respected.
• Anti-suit injunctions. In Modi Entertainment Network v WSG Cricket (2003), the Supreme Court held that Indian courts may restrain a party from pursuing foreign proceedings, but only sparingly, with due regard to comity, where the party is amenable to the court's jurisdiction and the foreign proceedings would be oppressive or vexatious; the doctrine of forum non conveniens is also considered.

3. Domicile

Domicile, the place a person treats as a permanent home, is the main personal connecting factor in Indian conflict rules. A person can have only one domicile at a time, and the Supreme Court has held that there is a single domicile for the whole of India, not a separate domicile for each state (Pradeep Jain v Union of India, 1984).

Figure 1: The three kinds of domicile

• Intention. Domicile of choice requires both residence and the intention to make that place a permanent home; mere long residence is not enough without that intention.
• Constitution. Article 5 confers citizenship at the commencement of the Constitution on persons with a domicile in India who also satisfy one of its birth or residence conditions.

4. Choice of Law

Figure 2: Main connecting factors in Indian law

• Proper law of contract. In NTPC v Singer Co (1992), the Supreme Court held that the proper law is the law expressly chosen by the parties; failing an express choice, the law inferred from the terms and circumstances; and failing that, the system with which the transaction has its closest and most real connection.
• Marriage abroad. The Foreign Marriage Act, 1969 provides for marriages outside India where at least one party is an Indian citizen, solemnised before a Marriage Officer.
• Child custody. In disputes over children removed to India, courts decide on the welfare of the child as the paramount consideration rather than enforcing a foreign custody order automatically (Nithya Anand Raghavan v State (NCT of Delhi), 2017)

5. Foreign Judgments: Sections 13, 14 and 44A CPC

• Definitions. A foreign court is a court outside India not established by the Central Government (section 2(5)), and a foreign judgment is the judgment of a foreign court (section 2(6))
• Section 13. A foreign judgment is conclusive as to any matter directly adjudicated between the same parties, except where it (a) was not pronounced by a court of competent jurisdiction; (b) was not given on the merits; (c) is founded on an incorrect view of international law or a refusal to recognise Indian law where applicable; (d) was obtained in proceedings opposed to natural justice; (e) was obtained by fraud; or (f) sustains a claim founded on a breach of any law in force in India.
• Section 14. The court presumes, on production of a certified copy, that the foreign judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record; the presumption may be displaced by proving want of jurisdiction.
• Ex parte judgments. A foreign ex parte decree passed without considering any evidence is not on the merits and is not conclusive; one based on evidence may still be on the merits (International Woollen Mills v Standard Wool, 2001)

Figure 3: Enforcing a foreign money decree in India

• Section 44A. A decree of a superior court of a reciprocating territory notified by the Central Government may be executed in India by filing a certified copy in a District Court, as if it were an Indian decree; the section 13 exceptions remain available as objections (section 44A(3)), and only money decrees other than for taxes, fines or penalties qualify.
• Reciprocating territories. Include the United Kingdom, Singapore, Hong Kong, Bangladesh, Malaysia, New Zealand and, from a notification of 17 January 2020, the United Arab Emirates; the United States is not a reciprocating territory, so a US judgment can only be enforced by a fresh suit.

6. Foreign Divorces: Y. Narasimha Rao (1991)

• Facts. A husband obtained a divorce decree in Missouri, United States, on a ground not available under the Hindu Marriage Act, 1955; the wife had not submitted to that court's jurisdiction.
• Rule. The jurisdiction assumed by the foreign court and the ground of relief must be in accordance with the matrimonial law under which the parties were married.
• Exceptions. A foreign decree may be recognised where it is passed on a ground available under that law in the forum where the respondent is domiciled or habitually and permanently resides, or where the respondent voluntarily and effectively submits to the forum and contests the claim, or where both parties consent to it.
• Result. The Missouri decree was not recognised, and a later marriage by the husband was open to bigamy proceedings.

7. Foreign Arbitral Awards

Figure 4: Recognition and enforcement under Part II

• Seat matters. In BALCO v Kaiser Aluminium (2012), the Supreme Court held that Part I of the Act applies only to arbitrations seated in India, prospectively for agreements made after 6 September 2012; foreign-seated awards are dealt with only under Part II, though the 2015 amendment allows interim relief by Indian courts in foreign-seated arbitrations unless excluded.
• Geneva awards. Awards under the Geneva Convention, 1927 are covered by sections 53 to 60, though this chapter is now of limited practical use.
• Appeal. An order refusing to enforce a foreign award is appealable under section 50, but there is no appeal against an order enforcing it.

8. The Hague Conference

• HCCH. The Hague Conference on Private International Law is the intergovernmental body that develops conventions in this field; India became a member on 13 March 2008.
• Conventions India has joined. The Apostille Convention, 1961, which replaced chain legalisation of public documents with a single certificate; the Service Convention, 1965; the Evidence Convention, 1970; and the Intercountry Adoption Convention, 1993.
• Not joined. India is not a party to the Child Abduction Convention, 1980 or the Judgments Convention, 2019.

9. Frequently Asked Questions

How is a judgment of a United States court enforced in India?

Since the United States is not a reciprocating territory under section 44A, the decree holder must file a fresh suit in India on the foreign judgment, within three years of its date. The judgment is conclusive between the parties unless one of the section 13 exceptions applies.

Is a foreign divorce decree valid in India?

Only if it satisfies the tests in Y. Narasimha Rao (1991): the foreign court must have assumed jurisdiction and granted relief on a ground recognised by the law under which the parties married, unless the respondent submitted to the forum or both parties consented.

Can an Indian court review the merits of a foreign award?

No. Section 48 permits refusal only on its listed grounds, and after the 2015 amendment the public policy ground does not entail a review on the merits of the dispute, as the Supreme Court confirmed in Vijay Karia v Prysmian (2020).

10. Related Topics

• Topic 3: Public and Private International Law. How the two branches differ.
• Topic 38: Nationality. Nationality as a connecting factor.
• Topic 57: International Economic Law. Investment arbitration and White Industries.