01.

Definition of private international law

Private international law refers to that part of the law that is
administered between private citizens of different countries or is
concerned withthe definition, regulation, and enforcement of rights in
situations where both the person in whom the right inheres and the
person upon whomthe obligation rests are private citizens of different
nations.
It is a set of rules and regulations that are established or agreed upon
by citizensof different nations who privately enter into a transaction
and that will govern in the event of a dispute. In this respect,
private InternationalLaw differs from public international law,
which is the set of rules entered into by the governments of various
countries that determine therights and regulate the intercourse of
independent nations.
Private international law has been defined as law directed to

resolving controversies between private persons, natural as well as

juridical, primarily in domestic litigation, arising out of situations
having a significant relation to more than one state.
Cheshire
PIL is that part of law which comes into play when the issue before
the court affects some fact, event or transaction that is so closely
connected with a foreign system of law as to necessitate recourse to
that system.
Baty

PIL is the rules voluntarily chosen by a given state for the decision of
cases which have a foreign complexion.
1. P Tandon:
"Private international law is a body of principles
determining questions as to jurisdictions and
questions as to selection of appropriate law, in civil
cases which present them selves for decision
before a court of one state or country, but which
involves a foreign element i. e. which effect foreign
persons or foreign or transactions that have been
entered in a foreign country or with respect of
foreign system of law"
Pitt Cobbet
"Private international law is the body of rules for
determining questions as to selection of
appropriate law, in civil cases which present them
selves for decision before the courts of one state or
country, but which involve a foreign element i. e,
which effect foreign persons or foreign things or
transactions that had been entered into wholly or
partly in a foreign country or with reference to
some foreign system of law."
Private international law may be defined as the rules voluntarily
chosen by a given state for the decision of cases which have a
foreign element or complexion.
Thus, where two Englishmen make a contract in Portugal for the sale
of goods situated in Lisbon, payment to be made in London, an

English court would certainly recognize and apply Portuguese law as

far as it affected the validity of the contract.
The private international law forms part of municipal laws of a state
and is meant for purpose of deciding weather a given case involving
foreign element (i) shall be adjudicated upon by its own domestic
laws or by laws of some other state; and (ii) shall be subject of its
courts of some other state.
Thus private international law deals with cases in which some
relevant fact has a geographical connection with a foreign country and
may on that ground raise a question as to the application of Indian or
some other appropriate foreign law to they determination of the issue
or as to the exercise of jurisdiction by Indian or foreign courts.
02.Is Private InternationaI Law is the distinct
part of Law?
PIL is a separate and distinct unit as much as the law of tort or of
contract, but possesses the unity , not because it deals with a
particular topic but because it is always concerned with one or more
of three questions namely, jurisdiction, choice of law and recognition
of foreign judgment.
PIL does not give a final decision. It is comparable with a railway
inquiry room. By approaching the inquiry room you can only a
ascertain the platform from which a particular train leaves. It is the
train that reaches you to your destination not the enquiry room.
Comity,convenience and the desire of courts to do justice form the
basis of Private International Law. We can not say it as a ful-fledged

law. The main aim of Private International Law is the desire of the
courts to do justice. It is quite distinct than law. It is essentially a
system of indicating choice, choice of jurisdiction, choice of law and
rules for recognition and enforcement of foreign judgement of a
foreign court.
Private International law only decide the rule of choice and then
indicate the convenient law that is to be applied. It does not contains
the basic feature of law. There is no conclusiveness and imperative
obligation to take a single and particular view in PIL like the real law.
The degree of boundness, obligation is somehow very low in case of
PIL. The very purpose of private international law is to avoid conflicts
of law.
PIL is regarded as law and the reason somehow is that it is a part of
municipal law of a particur state. It varies from state to state. States
legislative action is essential for the evoluation of PIL.
So we may say that PIL is a distinct part of law which meanwhile
contain the notion of law and justice. Somehow the essence of law is
present in PIL though it is very distinctive one.
03.Utility of Private International Law
Private international law explores cross-border
legal relationships. The discipline investigates core
legal issues pertaining to international
communication, such as the criteria for resolving
conflicts of law arising under contracts.

 Teaching and research in private international law

comprise various areas, such as the international
law of obligations, international family and
inheritance law, international property law and
international civil procedure law. Other issues
examined relate to personal legal status as well as
the theory, concepts and methods of private
international law.
Private international law plays a vital role to
develop the existing legal systems of the different
states. It helps to understand various legal orders
all over the world.
By the proper recognition and enforcement of
foreign judgement, PIL broaden the domain of
states legal arena.
Private International law helps to develop
international legislation and international law
association.
Private international law develops the notion of
international harmony of decisions.
PIL ensures the stability with regard to cross-border
legal relationships.
04.Nature of PIL

Private international law is the area of law that comes into play
whenever a court is faced with a question that contains a foreign
element, or a foreign connection. The presence of such a foreign
element in a legal matter raises a number of questions and it is the
function of private international law to provide an answer to these
questions and to ensure just solutions. It is concerned with all legal
relationships between private entities and thus includes, for example,
family law and the law of contracts and obligations. These laws differ
from country to country.
PIL is a branch of municipal law. PIL is essentially a system of
Indicating choice, choice of jurisdiction, choice of law and
recognition of a foreign judgment.
PIL contains the following basic nature:
1. its subject matter always includes a foreign
element;
2. one of its prime nature is the pursuit and
application of the appropriate legal system and
3. jurists have been more influential in this branch of
the law than is typical with other legal subjects.
Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as
1963 in R. Vishwanathan v. Syed Abdul Wajid gives an
enlightening explanation of what Private International Law is It is
not the law governing relations between States. It is simply a branch
of the Civil Law of the State evolved to do justice between litigating
parties in respect of transactions or personal status involving a foreign

element. Its rules in the very nature of things differ from State to
State, but by the comity of nations, certain rules have been recognised
as common to civilized jurisdictions. Through part of the judicial
system of each State, these common rules have been adopted to
decide disputes involving a foreign element and enforce foreign
judgment, often as a result of International Conventions.
A Division Bench of the Bombay High Court in a case of divorce
involving two conflicting legal systems, Monica
Variato v. Thomas Varia stated that the principles of Private
International Law are not universal. They vary from State to State.
What may be applicable in one State may not be applicable in another
State .
In 1952, Indian & General investment Trust Ltd. v. Raja
of Kholikhote,the High Court devoted substantial part of the

judgment to general principles of Private International Law:

The name Private International Law is rather unfortunate because
it is difficult to conceive of a law which is both International and at
the same time private. It is called private inasmuch as it deals with
the legal relations of individuals and not of States; it is
International, inasmuch as its rules are enforced by Courts, and in
that respect it is a branch of the ordinary law of the land.
05.What is foreign law?
Foreign law is the law of any other country apart from the law of the
country where an issue is for consideration.
Foreign law is law referenced or cited by a court that comes from
a country other than that in which the court sits. Foreign law is

usually not binding on the court siting it, and citation to foreign law as
persuasive can be controversial. However, in some circumstances, a
court may be called upon to determine the meaning of a foreign
statute, such as when one is incorporated into the language of a
contract before the court.
Foreign law is the law of any jurisdiction having a different system of
law from that considering the issue.(David Walker, The Oxford
Companion to Law, (1980) p 479)
According to Blacks Law Dictionary, Foreign laws refer to the
laws of a foreign country, or of any other state. In conflict of laws, the
legal principles of jurisprudence which are part of the laws of any
other state . Foreign laws are additions to our own laws and in that
respect are called jus receptum
Foreign laws are those laws enacted and in force in a foreign state or
country. The courts do not judicially take notice of foreign laws and
so they must be proved as facts.Such proof varies according to
circumstances.
Foreign law may arise in an Bangladeshi court where some foreign
element is involved in the case and the Bangladeshi rules of conflict
of laws and international private law direct that some issue in the case
must be determined by foreign law.
06.How foreign law proved?
When foreign law is applicable by virtue of the conflict of laws rules
of the forum, there are several methods by which that law can be
made known to the court:

( 1 ) by judicial notice,
(2) by pleading and proof and,
(3) by presumption.
These methods are governed by the lex fori . It is well established that
knowledge of foreign law is not to be imputed to a judge. It is also a
basic principle that the judge can only apply local law: foreign law
when relevant operates not as law but as fact.
The courts will not take judicial notice of foreign law or statutes
unless authorized to do so by statute.
Foreign law is generally determined by the court as a question of fact.
The party who wishes to rely on a foreign law must therefore plead it.
It is a basic rule of procedure that parties are bound by their pleadings
and a party may not give evidence on matters not pleaded.
A judge cannot decide a case containing foreign elements according
to his personal knowledge of the foreign law. It appears that even if
the judge had previously lived and practiced in that other country, his
knowledge is irrelevant.
It has previously been indicated that the traditional common law
procedure and practice is to treat foreign law as if it were a fact." This
view may be based on the theoretical premise that anything which is
not deemed to be law must be a fact. One therefore frequently
encounters the statement that foreign law is a fact, although it would
be more correct to say that foreign law is treated like a fact.

If foreign law is deemed to be a fact or is treated like a fact, the

logical consequences would be that:
1. Foreign law must be pleaded like a fact;
2. Foreign law must be proved like a fact;
3. Foreign law questions go to the jury in appropriate
cases;
4. If facts are not considered on appeal, foreign law
cannot be considered on appeal; and
5. The holding of a court on questions of foreign law
in one case is not evidence in other cases involving
the same foreign law problems; and holdings of
appellate courts on foreign law do not have the
force of stare decisis.
All these views have been taken in the long history of common law
and modern code procedure. But the application of these views has
undergone legislative or judicial change in many respects in most
jurisdictions.
Unwritten foreign law may be proved by the oral testimony of expert
witnesses. The testimony may include the unwritten law as collected
from the reported decisions of the foreign courts and the treatises of
learned men; it may also be proved by printed and published books of
reports of decisions of the courts of foreign countries.
Pfleuger v. Pfleuger case

Where an objection is raised before trial to the omission to plead

foreign law, the defect cannot be cured by judicial notice.
it would appear that in most instances and where exceptional
circumstances do not prevail, a party relying upon foreign law should
be prepared by his pleadings and his proof to establish the foreign law
upon which he relies at the trial. The court in the first instance, may
refuse, in the sound exercise of its discretion, to take judicial notice of
foreign law. In such a case, the rules that developed when proof of the
law in all cases was required will apply: the party having the
affirmative of the issues on the merits will be required to introduce his
proof of the foreign law and to sustain his burden of proving it or be
defeated, unless he can be aided by any of the presumptions discussed
above. In view of the fact that the presumptions available to the court
may afford only temporary relief from
proving the foreign law, and may, even if they are successful, result in
an objectively incorrect result because of the substitution of the law of
the forum, it would appear that the safest approach is to be ready with
proof.
07.Who may be called as a witness to prove
foreign law?
The proposition that foreign law must be proved like a fact has led to
the English view that foreign law must be proved by witnesses.
Foreign laws may be proved by the testimony of witnesses acquainted
with such laws. (Frith v. Sprague )

Where the case turned on foreign written law--statutes, codes,

proclamations or decrees, and the like-that law was to be proved in
the first instance by copies of the statutes or decrees themselves; oral
testimony alone of the foreign written law was insufficient.
According to the common law rules, a copy of the foreign statute was
required to be authenticated by exemplification, the testimony of a
witness who had examined the original, or by the certification of a
judicial officer of the foreign jurisdiction.
Unwritten foreign law may be proved by the oral testimony of expert
witnesses.
Under the English view knowledge acquired by study is not sufficient
qualification for an expert witness on foreign law. He must have had
experience as a judge or advocate in the foreign jurisdiction or have
held an office or position which caused him to familiarize himself
with the law to which
he testifies.
The criterion for qualification is that the witness is "skilled" in the
foreign law;he must have familiarized himself with the foreign law.
Standards which do not affect the qualifications of the witness but do
go to the weight of his testimony include the fact he is not entitled to
practice in the particular foreign country and his lack of first hand
observation and residence there.
Distinction between public international law and
private international law
As to consent:

Public international law based on the consent of the state.Private

international law is not based on the consent of the states.
As to object:
Public international law regulates relation ship of states inter se and
determine rights and duties of the subject states at international
sphere.
Private international law determines as to which law will apply of two
conflicting in a particular case having foreign element.
As to conflict of laws:
Public international law does not involve in conflicts of laws.
Private international law involves in the conflicts of laws.
As to nature:
Public international is same for all the states.Private international may
be different in various states.
As to sources:
Public international law has its sources in treaties, custom etc.
etc.Private international law has its sources in the legislation of the
individual state to which the litigant belongs.
As to application:
Public international law applicable to criminal as well as civil
cases.Private international law is applicable to civil cases only, which
present themeselves for accession of courts of the state.

As to subject:
Public international law deals with the states.
Private international law deals with the individuals.
As to municipal law:
Public international law is not part of municipal law but Private
International law is a part of municipal law
As to jurisdiction
Public international law does not involves determination on the
question of determination.Private international law determines court
which will have jurisdiction to decided issue in question.
As to scope:
Public international law has wider scope. it is of universe
character.Private international law has lessor scope.

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

Marriage is a contract both civil and religious, by which the parties

engage to live together in mutual affection and fidelity, till death shall
separate them.

Marriage was instituted by God himself for the purpose of preventing

the promiscuous intercourse of the sexes, for promoting domestic
felicity, and for securing the maintenance and education of children.
According to Blacks Law Dictionary,
Marriage, as distinguished from the agreement to marry and from the
act of becoming married, Is the civil status of one man and one
woman united in law for life, for the discharge to each other and the
community of the duties legally incumbent on those
whose association is founded on the distinction of sex.
Edvard Westermarck defines marriage as "a relation of one or
more men to one or more women that is recognized by custom or law"
The anthropological handbook Notes and Queries (1951) defined
marriage as "a union between a man and a woman such that children
born to the woman are the recognized legitimate offspring of both
partners."
The highest-profile cases to be decided by the U.S. Supreme Court
ascertain the definition of marriage. U.S. v. Windsor challenges the
federal definition of marriage as a legal union between one man and
one woman
The legal union of a couple as spouses. The basic elements of a
marriage are: (1) the parties' legal ability to marry each other, (2)
mutual consent of the parties, and (3) a marriage contract as required
by law.

In the English common law tradition from which our legal doctrines
and concepts have developed, a marriage was a contract based upon a
voluntary private agreement by a man and a woman to become
husband and wife.
Hague Marriage Convention
The Hague Convention that harmonizes different marriage laws, the
Convention on the Celebration and Recognition of the Validity of
Marriages, was concluded at The Hague on 14 March 1978 and
entered into force on 1 May 1991. Article 9 of the Convention holds
that, A marriage validly entered into under the law of the State of
celebration or which subsequently becomes valid under that law shall
be considered as such in all Contracting States, subject to the
provisions of this Chapter.In short, one Contracting State must
recognize a marriage legally performed in another contracting state.
Currently only three states (Australia, Luxembourg, and the
Netherlands) have ratified the Convention.Another three (Egypt,
Finland, and Portugal) have signed it
A contract made in due form of law, by which a free man and a free
woman reciprocally engage to live with each other during their joint
lives, in the union which ought io exist between husband and wife. By
the terms freeman and freewoman in this definition are meant, not
only that they are free and not slaves, but also that they are clear of all
bars to a lawful marriage.
To make a valid marriage, the parties must be willing to contract, able
to contract, and have actually contracted.They must be willing to

contract. Those persons, therefore, who have no legal capacity in

point of intellect, to make a contract, cannot legally marry.
10.Distinctions between legitimation and
Adoption
01.Adoption, properly speaking, refers only to persons who are
strangers in blood.
Legitimation, refers to persons of the same blood.
Where one acknowledges his illegitimate child and takes it into his
family and treats it as if it were legitimate, it is not properly an
adoption but a legitimation. (Blythe v. Ayrcs, 90 Cal. 532, 31 Pac.
915, 19 L R. A. 40. )
1. Legitimation means that a person who has not
been born to married parents acquires the status of
legitimacy as a result of some act.
On the other hand, Adoption involves the
extinction of the parental links between the child
and the biological parents and the creation of
similar links between the child and the adoptive
parents.
03.Legitimation is a legal process by means of which a child born
illegitimate is made legitimate. Adoption is a process whereby a
person assumes the parenting for another and, in so doing,
permanently transfers all rights and responsibilities, along with
filiations, from the biological parent or parents.

1. In case of legitimation, the parent will complete

their marriage and recognize their child. On the
other hand in case of Adoption, The parent will only
recognize their child.
2. Marriage is essential pre-condition for a valid
legitimation but in case of adoption in English
Private law marriage tie is not obligatory to take
adoption. A women or man can take adoption by
completing judicial formalities without marriage
relationship.
1. Jurisdiction in case of Bangladesh
perspective
In the context of private international law jurisdiction implies
competency of the domestic courts to hear actions and render
decisions in matters invoking foreign elements, in which they are
called upon to do so, Usually the question of jurisdiction can be
classified into three broad categories, i.e.. relating to subject matter,
pecuniary and local limits.
In suits having foreign elements the preliminary question is whether
the Bangladeshi courts have jurisdiction to try the suit. If the answer
to this is in the affirmative, then the next question relating to
jurisdiction will arise in the same way as they arise in an internal suit.
RULES AS TO FORUM
I. Pecuniary Jurisdiction
Sections 15 to 20 of the Code of Civil Procedure, 1908 regulate the
forum for the institution of suits. As per section 15, which refers to

pecuniary jurisdiction of the court, every suit shall be instituted in the

court of lowest grade competent to try it.
In a leading case of Fazle Karim vs. Naderuzzaman, 10 DLR
632 it was held that, if a subordinate court and a superior court are
vested with concurrent jurisdiction, the case has to be instituted in the
subordinate court.
Rules as to Nature of Suit
Based on the subject matter the suits may be divided into three
classes;
(a) suits in respect of immovable property;
(b) suits for torts to person or movable property;
(c) suits of other kinds.
A. Suits of Immovable Property
Sections 16 to 18 of the CPC deal with suits relating to immovable
property. Six kinds of suits relating to immovable property that are
enumerated in section are:
(I) suits for recovery of immovable property;
(ii) suits for partition of immovable properly;
(iii) suits for foreclosure, sale or redemption in case of mortgage of or
charge upon immovable property;
(iv) suit for determination of any other right to interest in immovable
property:
(V) suits for tort to immovable property; and
(vi) suits for recovery of movable property actually under distraint
and attachment.
These suits must be filed within the local limits of whose jurisdiction
the properly is situated.

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

Section 19 of CPC is confined to the suit for compensation for wrongs

to persons or movables. If the wrong was done within the local limits
of the jurisdiction of one court and the defendant resides, or carries on
business, or personally works for gain, within the local limits of the
jurisdiction of another court, the suit may he instituted at the option of
the plaintiff in either of the said courts.
Residence
It Is considered a well established rule of Bangladeshi law that if the
defendant is resident within the jurisdiction the court will have the
jurisdiction to entertain the suit. The courts have deliberated on the
question of what will constitute residence in a large number of cases.
In some cases depending upon the circumstances even a very short
stay is construed as sufficient for residence to confer jurisdiction on
the court.
In Kashinath v. Anant, the presence of the defendant at the time
of the institution of the suit was considered enough for the court to
assume jurisdiction. In this case the defendant had left the place
where he had been residing and was proceeding on a months leave to
London. He reached Bombay and was waiting there to leave for

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

The Code of Civil Procedure, 1908 contains the rules regarding. who
can he brought to trial in a forum in India. The Code provides for this
in a negative form. Le.. against whom action cannot be flied. It also
contains the rules in respect of the persons who can bring a suit
against foreigners. They are discussed here under two headings. (A)
against whom action may not be Ii led. (B) who may bring (he suit.
Submission to jurisdiction
Another method for the courts to assume jurisdiction in matters
involving the foreign elements is through submission to jurisdiction
by the persons concerned.
Against Whom Action May Not Be Filed
A. Jurisdictional Immunity

There is a general rule that a suit can be brought against any foreign
national. Notwithstanding this general condition there are certain
persons who have been granted immunity from this general rule Law
of jurisdictional immunity is codified in the Code of Civil Procedure,

1908 in Bangladesh which entails certain modifications from the

usual practice. The Code confers jurisdictional immunity to:
(a) a ruler of a foreign State;
(h) any ambassador or enjoy of a foreign Slate;
(c) any High Commissioner of a Commonwealth country; and
(d) any such member of the staff of the foreign State or the staff or
retinue of the ambassador, envoy of a foreign Stale or of the High
Commissioner of a Commonwealth country as the central government
may. by general or special order, specify in this behalf.(sec-86)
These persons cannot be sued in any court in Bangladesh except with
the consent of the government certified in writing by a secretary to the
government.
It has been held that the power of the government to grant sanctions
for suits against foreign States must he exercised in accordance with
the principles of natural justice . It is necessary that consent should
have been obtained before the institution of the suit. The jurisdictional
immunity extends to all civil actions as well as to execution
proceedings. The jurisdictional immunity to the foreign sovereign
exists not merely in respect of his person but also in regard to his
property. In this respect no distinction is made between the public
property and the private property of the sovereign.
Foreign documents
According to the broader aspect of section 82 of the Evidence
Act,1872 any court of Bangladesh has the jurisdiction to presume the
genuineness of foreign documents.

Definition of Foreign Judgement

Foreign Judgment means a judgment given by a court in a foreign
state in a civil matter, and includes a judgment for the payment of
compensation or damages to an injured party even though it may not
have been given in a civil matter.
According to section 2(6) of the Code of Civil Procedure,1908
"foreign judgment" means the judgment of a foreign Court.
Foreign Judgment means a judgment of a foreign court. . In other
words, a foreign judgment means adjudication by a foreign court upon
a matter before it. Thus judgments delivered by courts in England,
France, Germany, USA, etc. are foreign judgments.
According to Blacks Law Dictionary,
Foreign judgement means a decree,judgement or order of a court in a
state, country or judicial system different from that where the
judgement or its effect is at issue.
Convention on the recognition and enforcement of
foreign judgments in civil and commercial matters was

adopted on1 february 1971 which evaluate and prescribe the proper
recognition and enforcement of foreign judgement across the world.
Bangladesh Government always adopts a very conservative approach
towards the enforcement of foreign judgment awards. Any bilateral
agreement only apply to the recognition and enforcement of
judgments made in proceedings started if it has been
ratified and enacted by notification in the gazette by the Bangladesh

Government. The common laws of Bangladesh have no direct

operation on a foreign judgment provided the foreign Court had
jurisdiction to give the judgment, the judgment will be conclusive in
Bangladesh and enforceable, unless it does not fulfill the criterions
outlined by the law for
enforcement. However, the judgment creditor must first bring an
action on the foreign judgment in the local Courts. The judgment
creditor cannot sue upon the original cause of action unless the
judgment is not enforceable or entitled to recognition in Bangladesh.
Recognition
According to Blacks Law Dictionary,
Recognition means the confirmation that an act done by another
person was authorized . The formal admission that a person, entity or
thing has a particular status, especially a nations act in formally
acknowledging the existence of another nation or national
government.
In private International law recognition means the acceptance or
confirmation of foreign laws to avoid conflicts in different legal
matters. Recognition is one of the most important criteria to solve
domicile problems, contractual obligation problems, legitimacy,
jurisdiction problems etc. under the ambit of private international law.