Report No. 65
14.13. Nationality constituted by a genuine link justifying duty of allegiance.-
We shall now discuss the test of nationality. In general, and individual has the nationality of State which confers it upon him, provided there exists a genuine link between the State and the individual1. The requirement of a genuine link is the logical result of the decision of the International Court of Justice in the Nottebohm case, ICJ Report 4: 49 American-Journal of International Law 396. The question of existence of a genuine link may present problems when the particular country attempts to confer nationality upon a person not resident within its borders without that person's consent.
It may also happen that more than one State may determine that an individual in its national. For the present purpose it is not necessary to go into these details of nationality. But it is pertinent to point out that nationality is a concept which is normally evolved in order to determine whether a person owes permanent allegiance to the country concerned2.
1. American Law Institute Restatement of Foreign relations Law, Second (1905), p. 74, para. 26.
2. Cf. The USA Immigration and Nationality Act, 1952, section 1101(a)(22) (1958) 8 United States Code, section 1101(a)(22).
14.14. Use as to desirability of recognising the test of nationality.-
Examining the desirability of the test of nationality in relation to recognition of divorces, we would state that on this subject, two views are possible. Many civil law countries treat this as a basic ground for the exercise of jurisdiction in matrimonial causes; and not to recognise this test amounts to non-recognition of their decrees in almost every case. At the same time, however, it is to be pointed out that nationality, in itself, does not indicate a sufficiently close connection significant for the present purpose between a person and a country.
14.15. Another ground of recognition is nationality.-
Injustice might, therefore, result where a person has abandoned the country of nationality long before institution of the proceedings in which the decree was obtained. Recognising these aspects, the Hague Convention1 requires certain other safeguards to be complied with where recognition on the ground of nationality is dealt with.
1. Article 2, para. 14.12, supra.
14.16. Aspect of nationality.-
Nationality has a political aspect, and may involve various methods, such as place of birth, formal allegiance to a sovereign, race or ancestry and many other facts which are not necessarily related to domicile. As Leffar has pointed out1, "It is entirely possible for a citizen of one country to be domiciled in another."
1. Leffar American Conflict Laws, (1968), p. 31, para. 16.
14.17. Domicile and nationality.-
The difference between nationality and domicile is of interest. In Roman times, the two ideas, (nationality and domicile), were not clearly separated. The relationship of a person to the laws of a community could be regarded
(i) from the point of view of his domestic home being located within the community, or
(ii) from the point of view of political ties binding him in common with other members of the community.
14.18. Roman Law.-
The Romans did not regard domicile as unitary, in the sense that a person could be domiciled in only one jurisdiction at a given time. The idea was introduced later1. An important factor causing certain countries to derive personal law from nationality, while causing other countries to derive it from domicile, has been the development of federalism2.
1. See Story Conflict of Laws, (8th Edn., 1883) Ch 3.
2. Cf. Cook The Logical and Legal Bases of the Conflict of Laws, (1942) Ch 8.
14.19. Test of nationality discussed in the context of recognition by Indian Courts.-
The test of nationality may now be considered in the Indian context. It can be stated that the majority of the cases coming up before Indian courts for recognition, directly or indirectly, will of Indians who, before their return to India, were residing in foreign countries, such as the United Kingdom, some of the Far Eastern countries, the United States and Canada. As to such cases, the test of nationality, even if inserted as a ground for recognition, of the foreign divorce, will be merely academic. The nationality of the parties, in the vast majority of such cases, would be Indian, and the test of nationality would not add anything to the competence of the foreign courts.
However, in a small number of cases, where the parties are not Indian nationals, or at least one of the parties is not an Indian national, the acceptance or rejection of the test of nationality, in relation to recognising the jurisdiction of the foreign court, could be material. If the foreign country exercised jurisdiction on the basis of nationality and the parties, though of Indian origin, are its nationals, such a decree may be passed by the foreign court. Utility of recognition of the decree in such cases is obvious.
14.20. Points in favour of recognising on the ground of nationality-Position regarding Christians.-
Adoption of the test of nationality has another consideration to commend itself, namely, that the test is applied by many of the civil law countries for exercising their matrimonial jurisdiction. It follows that if the test is not accepted and incorporated into our law for recognising the decrees of divorce granted by those countries, than divorces granted by those countries would not be valid in India. The parties would then have to institute proceedings for solution again in India. Assuming that this situation will not often arise in practice because of the small number of non-Indians1 whose marriage, having been dissolved by a foreign court, would be the subject-matter of litigation in Indian courts, it is still to be borne in mind that if the situation arise, there will be practical inconvenience, because the question of divorce will have to be re-litigated.
In addition to this aspect of practical inconvenience, there is a theoretical aspect which cannot be brushed aside, namely, the parties, unless they are domiciled in India-may not even be able to invoke the jurisdiction of an Indian court, at least when they are Christians. This is for the reason that under the Indian Divorce Act, 1869, which is the principal enactment for Christians, jurisdiction2 in relation to divorce is exercised exclusively on the basis of domicile.
If this be the correct position, then it means that, non-domiciled Christians would neither have a foreign decree to stand back upon-if it is not recognised-nor can they seek the aid of our courts for establishing the ground of divorce (whatever that ground may be), and seeking appropriate matrimonial relief. Even if they are prepared to undergo the inconvenience of instituting fresh proceedings in India, the scheme of the Indian Divorce Act would come in their way if they are Christians, as explained above.
1. See para. 14.19, supra.
2. See discussion as to section 2, Indian Divorce Act, 1869 (Chapter 6, supra).
14.21. Difficulties of the situation where parties are Hindus.-
Even where, in the above situation1, the parties are Hindus, though not of Indian nationality, a similar difficulty could arise, because the provision2 in the Hindu Marriage Act relating to the jurisdiction of courts is ambiguous. It is not clear beyond doubt whether the provision is intended simply to deal with the internal venue, i.e., the particular Indian court that should exercise jurisdiction, or whether it is intended to deal with the broader question of the jurisdiction of Indian courts in general with reference to private international law.
1. Paras. 14.19 and 14.20, supra.
2. Section 19, Hindu Marriage Act, 1955 (see Chapter 5, supra).
14.22. Test of nationality recommended.-
Having regard to the difficulties which would result if the decrees of the court of nationality are not recognised, we are inclined to take the view that such recognition should be accorded. If this principle is accepted, the next question to be considered is one of detail, namely, whether the principle of nationality should be subjected to any such additional requirements as are contemplated by Article 2 of the Hague Convention1-2 or whether nationality simpliciter should be enough. In either case, another question of detail will also require to be considered, namely, whether the nationality of both parties should be the test, or whether the nationality of one party should suffice. We think that a simple test is enough.
1. Para. 14.21, supra.
2. Article 2.
14.23. We note that in England, this test has been adopted without any further qualifications1. On the other hand, in the International Convention2, the test has been inserted with certain restrictive provisions. The former is preferable, in our view, as simpler to apply, and it does not suffer from any juristic infirmity.
1. Section 3(1)(b) of the English Act. of 1971.
2. Article 2 of the Convention.
14.24. Whether other considerations should be incorporated.-
On the question whether the test of nationality should be encumbered with the various qualifications that are found in Article 2 of the International Convention1, we repeat our view2 that it should not be so encumbered for two reasons. In the first place, such restrictions are not recognised by the civil law countries, and in the second place, such restrictions might reduce the practical utility of the provisions for recognition. In practice, this test is not likely to be invoked often in relation to persons of Indian origin and will be mostly invoked in relation to persons of foreign origin. Such cases are not likely to be many.
1. Article 2, para. 14.21, supra.
2. Para. 14.23, supra.