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Recognition of foreign divorce decree: An Indian perspective.

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]

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