|
NRIDivorce.com
>>
Personal Stories >>
This Story
The aim
of this article is to analyse the legal position regarding
recognition of foreign divorce decrees in India. The same
is an important aspect of Conflict of Laws in India or Private
International Law in India, which has not yet fully 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
marriage and divorce laws of India have a totally different
application when it comes to Conflict of Laws or Private International
law. In the absence of a codification in this regard we have
to primarily rely upon the judicial precedent for its application
in India.
I. Introduction
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]
Read rest
of this on BNN
|
