Joining in matrimony is a profound union since dawn of civilizations; for it embodies conjugal connections endowed with rights and obligation onto both the spouses. The legal systems across the globe endeavour towards enjoyment of such rights and ensure discharge of those marital obligations. Matrimonial disputes are already one of the most complex areas for legal intervention and it becomes more complex where foreign element is involved, i.e., one of the parties of the marriage belong to a jurisdiction distinct from the concerned state. Such marriages then enter into a maze where there is a conflict of laws of different nations involved, emerging incidental questions of jurisdiction and conflict in application of personal laws thereto, thereby complicating the process.
Private international law purports to make possible the application of, within the territory/jurisdiction of the State, the law of foreign states. The modus is to adopt an international framework inspired through municipal laws of the nations, adopted to resolve conflict of two private individuals governed by their respective personal laws holding different citizenships and/or nationalities. The intersection is drawn through application of lex fori (law of the forum), lex patriae (the law of nationality), lex domicilii (law of the domicile), or lex situs (law of the site)
Ideally, a legal right, cannot live outside the region of the legal system that produced it until re-made by foreign law. Unification of substantive law and its conflicts both come under the sphere of Private International Law. In order to deal with the foreign rulings on matrimonial matters, there's a need of well- developed Private International Law body that has the power of recognition, reorganization and solemnization of trans-border marriages along with checking the propriety & legality of a foreign decree of divorce. Numerous of the questions raised by this problem of ‘choice-of-law’ have been contained by colourful approaches to the doctrine of Renvoi, by the academia as well as the international judicial fora.
1. The Doctrine of Renvoi
The Doctrine of Renvoi is the process by which a court of one country adopts rules of a foreign country in the event of any conflict-of-law situation. It is an attempt to resolve disputes containing any foreign elements. It entails the principle of uniformity in application of law especially in possibility of invoking multiple systems of law. The doctrine prima facie applies to issues wherein personal laws of individuals are applicable such as matrimonial disputes, inheritance & succession of property etc. In absence of Renvoi the court strictly applies its municipal law.
A. Single Renvoi
This system refers to application of laws from a foreign jurisdiction or application of domestic law under remission. Where the matter arises in jurisdiction of country (A) and involves a foreign element, the Court of (A) will consider whether its own domestic law is the applicable law or that of country (B) (foreign element). Now, as per law in jurisdiction of (B), the issue may return to Court of (A) (the original forum) this is called remission; the Court of (A) will first accept the remission and thereby apply its domestic laws.
B. Double Renvoi
This system refers to application of laws under two or more remissions. Herein, the Court of country (A) applies the law that the court of country (B) would apply as if the matter was before it.
Single Renvoi does not mandatorily mean the application or rules of a foreign court/jurisdiction, it also incorporates a remission and/or transfer; whereas double Renvoi clearly mandates a court to operate as if it were implementing law, rules & policies of a foreign jurisdiction.
2. Application of Renvoi in India
In the case of Y. Narsimha Rao v Y. Venkata Lakshmi, the Apex Court has held that jurisdiction assumed as well as the grounds of decision made by the foreign court should be in consonance with the matrimonial laws under which the parties are married; which highlights recognition of the doctrine of ‘Renvoi’.
In view of the dualist approach, India adopts rules of Private International Law through different legislations. The concerned rules are incorporated in Special Marriage Act, Foreign Marriage Act, etc., or have been enumerated through judicial activism.
The legislation of the Foreign Marriage Act was an improvement in this regard; however, the provisions of this act are additional provisions and do not have overriding effect over the existing laws. The Act has its own shortfalls, where it is silent of divorce, nullity of marriage and other matrimonial reliefs.
India should consider adapting to the Hague convention relating to marriage, which facilitates the celebration and ensures the recognition of the validity of trans-border marriages. It models a modern approach and leans towards application of lex loci celebrationis thus demonstrating Renvoi.
The principal reason for resorting to total Renvoi is to achieve uniformity in terms of the resolution of the case, irrespective of the country in whose court the claim is transferred. It prevents trans-border forum shopping. Whereas, it is unavoidable to note the practical difficulties involved in the application of Renvoi, which requires detailed expertise about the foreign law under consideration.
The doctrine of Renvoi being an international law concept is not adopted by all national in strict sense; however, most nations recognise and have inculcated the doctrine as single or complete Renvoi into their legal systems. Therefore, in absence of strict application pan world, the doctrine may not be a conclusive solution to forum shopping or provide uniformity in application of laws as intended; given the difference in the legal systems and the sovereignty of states. However, it undoubtedly provides a constructive path to resolve trans-border disputes that raise issues in the realm of matrimonial aspects, succession, application of respective personal laws qua domicile/nationality/location of cause etc.
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