In India, there is no Codified Private International Law [Case Law]

Private International Law - Marriage - Single Status Certificate - The revenue authorities cannot refuse to issue such certificate merely stating that he is not residing within their area.
Private International Law - Marriage - the capacity to contract marriage is to be determined in accordance with the Private International Law applicable to the Country in which such marriage is being solemnized.

Private International Law - In India, there is no codified Private International Law. The comity of nations insists that each Country should respect laws of other Country. If the Foreign Country insists that the capacity to contract marriage should be based on the national Law, certainly, India also have to give respect to such law of the Foreign Country. [Para 3]
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, J.
W.P.(C) No.9779 of 2018
Dated this the 13th day of April, 2018
PETITIONER
ANAND RAMAKRISHNAN
BY ADVS.SRI.T.N.MANOJ SRI.K.RAVI (PARIYARATH) 
RESPONDENT(S)
1. THE REVENUE DIVISIONAL OFFICER/ SUB COLLECTOR, O/O. OF THE SDM, THRISSUR-680001.
2. THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, CONSULAR PASSPORT AND VIZA DIVISION, PATIALA HOUSE, NEW DELHI-100110.
3. THE SECRETARY DEPARTMENT OF HOME, STATE OF KERALA, THIRUVANANTHAPURAM-695001.
R1 & R3 BY SENIOR GOVERNMENT PLEADER SRI.B. VINOD R2 BY SRI.N. NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.SUVIN MENON, CGC
J U D G M E N T 
The petitioner, an Indian National, currently working in Country Bahrain, wants to marry a Filipina in accordance with the marriage law applicable in Country Philippines. As per the law applicable in Philippines, a certificate of Capacity to Contract Marriage will have to be obtained. The petitioner is a divorcee. He obtained the divorce through the Family Court. He approached the revenue authorities for obtaining a certificate of single status. The revenue authorities declined it stating that the petitioner is not residing within their area of jurisdiction for the past more than 12 years. However, it is not disputed that the petitioner's permanent address is within the area of jurisdiction of the revenue authorities.
2. In a matter involving foreign elements, it may give rise to different choice of law comes into operation whenever the court is faced with dispute containing a foreign element. In Private International Law, the capacity to contract marriage is to be determined in accordance with the Private International Law applicable to the Country in which such marriage is being solemnized. The learned Central Government Counsel, Sri.Suvin Menon points out to the law applicable in Philippines. According to the learned Central Government Counsel, the Private International Law of Philippines insists the law applicable to the nations of parties to determine capacity to contract such marriage and it is not based on the domicile of such person. There are varying views under the Private International Law as to the choice of law applicable for determining capacity to contract marriage. Some of the Countries follow the law based on the Country of domicile. However, choice of law has to be considered from the angle of the Country where the marriage is proposed to be solemnized. The law applicable to the marriage and the law applicable to capacity to marry are different and distinct. The law applicable to the marriage is the national Law where such marriage is solemnized/celebrated (Lex loci celebrationis). If that country's Private International Law insists that the national Law will have to be followed to determine the capacity of the marriage, there may not be a difficulty to hold that the capacity of the marriage has to be determined in accordance with the national Law of the parties.
3. In India, there is no codified Private International Law. The comity of nations insists that each Country should respect laws of other Country. If the Foreign Country insists that the capacity to contract marriage should be based on the national Law, certainly, India also have to give respect to such law of the Foreign Country.
4. The learned counsel for the petitioner also made available before this Court the Family Code of Philippines and referred to Article 21, which reads as follows: 
When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.” 
5. The learned Central Government Counsel pointed out to the judgment of the Supreme Court of Philippines in Grace J.Garcia, a.k.a. Grace J.Garcia-Recio v. Rederick A. Recio (Third Division) and referred to the following paragraphs in the said judgment: 
The petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. 
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.” 
6. In the light of the above, this Court is of the view that the Private International Law of the Philippines which insists the legal capacity to contract marriage has to be determined in accordance with the national Law of the parties. That be the legal position, the revenue authorities will have to issue such certificate to the petitioner after conducting necessary inquiry. The revenue authorities cannot refuse to issue such certificate merely stating that he is not residing within their area. They cannot dispute the fact that he is an Indian National and his permanent address is within the jurisdiction of the revenue authorities of Mukundapuram Taluk, Thrissur District. However, Indian Consulate in Bahrain is free to raise any objection if the petitioner is not entitled to single status, that shall be done within ten days from the date of receipt of a copy of this judgment. Therefore, the writ petition is disposed of with the following directions: 
The single status certificate shall be issued to the petitioner after conducting necessary inquiry by the revenue authorities within a period of two weeks from the date of receipt of a copy of this judgment. Certainly, the petitioner will have to legalise such certificate in appropriate manner. No costs.

No comments