Report No. 65

Chapter 3

Law Applied by Courts

I. Introductory

3.1. Scope of the Chapter.-

In this Chapter, we shall briefly deal with the law which is applied when a Court dissolves a marriage. A consideration of this aspect is relevant to the question of recognition of divorce.

3.2. Questions that usually arise.-

Three questions are usually discussed in dealing with the problems arising in the field of conflict of laws-

(1) Bases of jurisdiction.

(2) Choice of law.

(3) Recognition.

We have dealt, in a general way, with the first.1 We propose now to discuss the second; the specific question to be considered in this context is how far, for the purpose of recognition, it should be a pre-requisite that the law of the recognising forum was applied by the foreign court. In other words, besides the criterion of existence of the requisite basis of jurisdiction (habitual residence, nationality or domicile), should it also be necessary that the foreign court must have applied the law in force in the country where recognition is sought?

1. Paras. 2.19 to 2.35, supra.

3.3. General statement of the position in India, England and USA.-

At the outset, we may, by way of introduction, state that in India, as well as in England1 and in the United States3, the "jurisdictional approach", and the ensuing identity of forum and lex, have been long accepted as a matter of course, as regards divorce. Therefore, if an Indian or English Court exercises jurisdiction to dissolve a marriage, it applies the Indian or English law, as the case may be, in the absence of special statutory provisions to the contrary. The position is not different in other countries in the Commonwealth. However, as a theoretical examination of the position on the subject might be helpful, we shall, deal with a few important aspects, before reverting to the English law.

1. De Nova Developments of Private International Law, (1964) 13 American Journal of Comparative Law.

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