M. Barnard vs G.H. Barnard on 31 January, 1928

    M. Barnard vs G.H. Barnard on 31/1/1928

JUDGMENT

   Costello, J.

   1. This is a petition by Margaret Barnard praying for a dissolution of her
marriage with the respondent George Henry Barnard on the ground of his adultery
with a woman unknown on 17th November 1927. The petitioner was married to the
respondent on 18fch October 1917 according to the rights of the Christian Church
at the Wesleyan Churoh at Jhansi. At the time of the marriage the respondent was
domiciled in England and before her marriage the petitioner was also domiciled
in England and after the marriage they retained their English domicile. It was
duly averred in the petition that the respondent at the time of the presentation
of the petition was domiciled in England. It may therefore be taken that when
this petition was filed both the parties to the marriage were domiciled in
England. Both the parties to the marriage profess the Christian religion. It
appears from the evidence of the petitioner that after her marriage she and the
respondent lived and cohabited together first of all at Jhansi and afterwards at
No. 5, Carnac Street, Calcutta and finally at No. 9 Rawdon Street in Calcutta,
and therefore the place where the parties last resided together was within the
jurisdiction of this Court.

   2. The suit was brought under the Statute 16 and 17, Geo. V. Ch. 40, which is
the Indian and Colonial Divorce (Jurisdiction) Act, 1926, and accordingly the
petition was in the form required by the rules made under that Act which form is
similar to that of the petition for dissolution of marriage in use in England.
The petitioner as required by Prov. (a), Section 1, Sub-section (1) of the
Statute (16 and 17 Geo. V. Ch. 40) stated in para. 9 of her petition that in the
interest of justice it is desirable that this suit should be determined in India
inasmuch as the petitioner

     for want of sufficient means was prevented from taking proceedings in the
Courts in England and the witnesses to the charge of adultery are in Calcutta.

   3. So far as the facts of the case are concerned the petitioner has
established to my satisfaction all the necessary formal averments in her
petition and she has proved before me that the respondent has been guilty of
adultery as alleged in para. 8 of the petition.

   4. At the end of the first day's hearing I was some what dubious as to
whether or not adultery on the part of the respondent has been sufficiently
established. At that stage of the case the evidence merely came to this : that
the respondent on the evening of 17th November 1927 had come to the Continental
Hotel in Calcutta and had there entered in the Registration Book the names "Mr.
and Mrs. Barnard" and the evidence of a clerk from the hotel indicated that the
respondent stayed for the night at that hotel with a lady who was not the
petitioner. The khansama from the hotel in question was called to say that on
the next morning, somewhere about 9-30, he was summoned to room No. 77 (which
was the number of the room set against the names of Mr. and Mrs. Barnard) and
that there he found the respondent and a lady seated in the bed-room; both of
them were however fully dressed. The khansama further stated that in pursuance
of an order given to him by the respondent he served breakfast to the respondent
and the lady in the bed-room in question.

   5. Counsel for the petitioner-invited me to infer from those facts alone that
the respondent had in fact committed adultery, but I was inclined to take the
view that had the case stopped at that point the matter would have fallen within
the decision of Lord Merivale in the case of Farnham v. Farnham (1925) 41 T.L.R.
543. There the learned President said:

     It was impossible to make a decree on the case as first presented to me. It
came before the Court as if a married man who wished to he divorced had only to
go to an hotel with a woman to achieve that end, and that, if he did so, the
Court was of necessity obliged to grant a decree. If the Court were so to hold
it would be the greatest possible encouragement to collusive proceedings.
Divorce by consent is not part of the law in England.

   6. In that case the learned President gave an opportunity to the petitioner
in the case to call further evidence and following that precedent I allowed the
petitioner in the present suit to be recalled on the second day's hearing in
order to give additional evidence, and having heard that evidence of the
petitioner I came to the same sort of conclusion as Lord Merivale finally
arrived at in Farnham v. Farnham (1925) 41 A.L.T. 543, and I was then fully
satisfied that the joint presence of the respondent and the woman at the hotel
was

     an incident in the course of a liaison and not a mere farce played for the
purpose of obtaining the divorce.

   7. I came to that conclusion because the petitioner produced and proved
before me two letters written to her by the respondent whilst she was away in
England from which it seemed quite clear that the respondent had committed
adultery with a certain woman and that that woman had had a child by him. The
further evidence of the petitioner put an entirely different complexion upon the
case from that which it bore after the first day's hearing and her evidence
showed that the real facts were as follows: The petitioner had proceeded to
England in the year 1923 expecting the respondent to follow her shortly
afterwards which, however, he failed to do and thereafter owing apparently to
financial stringency the petitioner was unable to return to India at the time
she had intended but was obliged to remain on in England. It appears that
letters from her husband as time went on became less and less frequent and he
soon ceased to afford her any financial assistance whatever. Thereafter she
received the first of the two letters to which I have already referred (dated
4th June 1925) in which her husband made definite confession of adultery and
subsequently she received the second letter (which was dated 2nd September 1925)
in which her husband informed her that the woman with whom he had been
associating had given birth to a child. Apparently the petitioner made up her
mind that it would be easier to prosecute divorce proceedings in India rather
than in England, and accordingly she returned to this country in the latter part
of the year 1926. For a time she stayed with her brother somewhere upcountry and
then in the early part of 1947 she came down to Calcutta and instead of there
and then commencing divorce proceedings against her husband she managed to
effect a reconciliation with him and in fact not only forgave him for the
misconduct which he had admitted but also in law condoned the adultery which had
taken place by resuming cohabitation with her husband and living with him for
some months at the address which I have already mentioned namely 9, Rawdon
Street. Subsequently, however, she discovered that her husband was still
associating and carrying on a correspondence with the woman with whom he had
committed adultery and consequently the petitioner left the respondent and went
to reside ones more with her brother up country. Towards the latter part of 1927
the petitioner came down to Calcutta, apparently because another brother of hers
was ill, and she thereupon or soon after discovered that the respondent had
stayed at the Continental Hotel with a woman on the night of 17th November as I
have already described. It was clear to me from the evidence of the Hotel clerk
that the lady with whom the respondent stayed on the night of the 17th was the
same person with whom he had previously confessed to having committed adultery.
It was manifest, therefore, as I have already stated, that the joint presence of
the respondent and the lady at the Continental Hotel was part of an association
of long standing and not a mere sporadic incident merely staged for the purpose
of allowing the petitioner to institute divorce proceedings. Accordingly, so far
as the facts of this case are concerned, no difficulty arises. I find as a fact
that the respondent did commit adultery as set forth in the petition. I am also
satisfied from the evidence of the petitioner that in the words of proviso (d),
Sub-Clause 1, Section 1 of the Act of 1926 there was sufficient cause which
prevented the petitioner from taking proceedings in the Court of the country in
which she is domiciled, i.e., England, and I am satisfied that in the interest
of justice that it is desirable that this suit should be determined in India.

   8. The real question, however, which I have to determine in this case is
whether or not on the proper construction of the statute (16 and 17 Geo. V.C.
40) read in conjunction with the existing law with regard to dissolution of
marriage in India the petitioner is entitled to a decree for the dissolution of
her marriage upon the ground of the respondent's adultery alone. No other ground
was alleged in the petition and as far as the evidence goes it appears that the
petitioner is not in a position to make a charge of any matrimonial offence
against the respondent other than that of adultery. The whole question,
therefore, is whether or not under the existing law it is sufficient for a wife
petitioner domiciled in England to establish to the satisfaction of the Court in
India the adultery of a respondent husband.

   9. This question which I have to decide is of some public importance because
apparently this is the first suit arising under the provisions of the Indian and
Colonial Divorce (Jurisdiction) Act of 1926. The point for decision is a matter
which may affect the matrimonial rights of all British subjects resident in
India but domiciled in England or in Scotland. It is, therefore, to be regretted
that a point of such far reaching effect should have arisen for decision in an
undefended suit. Having regard to the importance of the matter I indicated that
in my view the Advocate-General, as the authority appointed to give instructions
to the Proctor under the provisions of the Act, ought to be represented at the
hearing of this suit. Accordingly at the adjourned hearing Mr. R.C. Bannerjee
appeared to represent the Advocate-General of Bengal in order that the other
side of the case might be fully put before the Court. I have derived great
assistance from Mr. Bannerjee as well as from Mr. Charles Bagram who appeared
for the petitioner.

   10. Now, in order to ascertain what the present legal position is, it is
perhaps desirable to consider for a moment the matter in its historical aspect.
By the Divorce Act of 1869 (which is Act 4 of 1869), passed by the Indian
Legislature on 26th February 1869, for the purpose of conferring on certain
Courts jurisdiction in matters matrimonial, it was enacted that that Act should
extend to the whole of British India and also to British subjects in dominions
mentioned in the Act, that is, certain Dominions of Princes and States in India
in alliance with the British Crown, but nothing in that Act contained authorized
any Court to grant any relief under the Act except in the cases where the
petitioner professes the Christian religion and resides in India at the time of
presenting the petition, or to make decrees of dissolution of a marriage except
in the following cases:

     (a) Where the marriage shall have been solemnized in India; and

     (b) where the adultery, rape or unnatural crime complained of shall have
been committed in India; or

     (c) where the husband has since the solemnization of the marriage exchanged
his profession of Christianity for the profession of some other form of
religion, or to make decrees of nullity of marriage except in cases where the
marriage has been solemnized in India.

   11. Accordingly under that Act the power to grant relief other than divorce
was limited to cases where the petitioner professed the Christian religion and
resided in India, and in cases of dissolution of marriage it was necessary that
a marriage should have been solemnized in India or the matrimonial offence
committed in India or that the husband should have exchanged Christianity for
some other form of religion.

   12. It is to be observed, therefore, that the basis of the jurisdiction
conferred by the Act of 1869 was the residence of the petitioner at the time of
presenting the petition, and upon that footing for a space of something like 50
or 60 years, apparently, decrees for dissolution of marriage were from time to
time granted by the various High Courts in India. The validity of such decrees
was, however, challenged in 1921 in the case of Keyes v. Keyes and Gray (1921)
P. 204 and it was there decided by Sir Henry Duke, President of the Divorce
Court in England, that the Courts in India had in fact no jurisdiction to make
decrees for dissolution of marriage in the case of parties not domiciled in
India, even though the marriage was celebrated in India and the parties were
resident in India, and the acts of adultery relied on were committed within the
jurisdiction of the Indian Courts. The learned President in the course of his
judgment pointed out that Lord Westbury in the case of Shand v. Gould (1868) 3
H.L. 55 stated it to be one of the rules generally observed by Christians and
civilized states that questions of personal status depend on the law of the
actual domicile of the party concerned, and the learned President came to the
conclusion that the Indian Councils Act of 1861, which was then the statute
empowering the Governor-General in Council in India to make laws and
regulations, does not warrant the making of a law to empower Courts in India to
decree dissolution of the marriage of persons not domiciled within their
jurisdiction. In other words, the effect of the decision in Keyes v. Keyes and
Gray (1921) P. 204 is that the power to decree a dissolution of marriage even in
India must be based upon the domicile of the parties and not upon the question
of residence only. The effect of Keyes v. Keyes and Gray (1921) P. 204 was to
invalidate a very large number of decrees for dissolution of marriage which had
been made by the Indian Courts upon the footing of the residence of the parties.
Accordingly it became necessary that an Act of Parliament should be passed in
order to validate such decrees. Such an Act was passed in the year 1921 under
the title of the Indian Divorce Act whereby it was enacted that any decree
granted under the Act of the Indian Legislature known as the Indian Divorce Act
of 1869 was confirmed and made absolute under the provisions of that Act for
dissolution of marriage, the parties to which at the time of the commencement of
the proceedings were domiciled in the United Kingdom, and any order made by the
Court in relation to any such decree was to be valid and to be deemed always to
have been valid in all respects as though the. parties to the marriage had been
domiciled in India.

   13. The case of Keyes v. Keyes and Gray (1921) P. 204 also in effect decided
that if and in so far as it purported to confer jurisdiction to grant decrees
for dissolution of marriage based on residence only the Divorce Act of 1869 was
ultra vires the Indian Legislature under the powers conferred upon it by the
Indian Councils. Act of 1861. The Indian Divorce Validating Act of 1921 remedied
that defect, so far as decrees already made were concerned. Despite the decision
of Keyes v. Keyes and Gray (1921) P. 204 various Courts in India continued to
make decrees for dissolution of marriage in the case of persons who were
resident in India, but not domiciled in India, and to my mind there is no doubt
that such decrees had no legal effect on the status of the parties at any rate
outside India. One of such cases was that of Miller v. Miller which was decided
by Mr. Justice Pearson in 1921. The head note of that case, is as follows:

     On a petition by the wife for dissolution of marriage it appearing that the
husband was a. subject of the United States of America and domiciled in that;
and that the marriage was celebrated and both parties resided in India up to
January 1923, until which time the married., life lasted (when the husband had
left for America where he since remained) proof was given of adultery and
cruelty committed within the jurisdiction of the Court sufficient to entitle the
petitioner to a decree nisi:

     Held : that the Court had jurisdiction to pass the decree. Semble : The
result may be that the decree will hold good in India, but that everywhere else
the parties will remain, still legally married.

   14. Mr. Justice Pearson in the course of his judgment said this:

     Upon the question of jurisdiction, my attention has been drawn to the
judgment of Sir Henry Duke in Keyes v. Keyes (1921) P. 204 which decided that
the Courts administering the divorce law in India have no jurisdiction to decree
dissolution of a marriage between parties not domiciled in India; it also
decided that the East India Councils Act of 1861 does not warrant the making of
a law to empower Courts in India to decree dissolution of the marriage of
persons not domiciled within their jurisdiction.

     That decision has since met with discussion in two reported cases in India,
namely, Wilkinson v. Wilkinson A.I.R. 1923 Bom. 321 and Lee v. Lee A.I.R. 1924
Lah. 513. It has been pointed out that it would have been enough for the
decision in Keyes v. Keyes (1921) P. 204 to say that since LeMesurier's case
(1895) A.C. 517 or at any rate since Bater v. Bater (1906) P. 209 the
jurisdiction to decree dissolution of marriage depended according to English law
upon the domicile of the parties and that as the domicile in Keyes v. Keyes
(1921) P. 204 was English, the English Courts would not recognise as valid in
England a decree pronounced by a Court in India whose jurisdiction was baaed on
a principle that of the residence of the parties at the time not accepted
according to English Law as conferring jurisdiction. That this is so appears, I
think, from the language used in an early part of the judgment, where the
learned President says (at p. 211) : "The petitioner has brought this suit to
determine the validity; at any rate in England, of the decree made at his
instance in India." It wa3, therefore, as it appears to me, the extra-
territorial invalidity of the Indian decree that was in question in the suit,
and that question was sufficiently and completely answered by the decision above
set out, so that it was not necessary to go further to the extent of enquiring
whether the powers conferred by the East India Councils Act, 1861, had been
exceeded in the enactment of the Indian Divorce Act, 1869.

   15.Then Mr. Justice Pearson continues:

     But if that enquiry is to be made, th9n I think it is of great importance
to recognize that in the case of Niboyet v. Niboyet (1878) 4 A.P. 1 in 1878 the
Court of appeal did accept residence and not domicile to found the jurisdiction,
and that that decision remained good at any rate until LeMesurier's case.

   16. It may well be that the decision of Pearson, J., is right in so far as he
says that

     the result may be that the decree will hold good in India, but that
everywhere else the parties will remain still legally married.

   17. With all respect to my learned brother I think there may be some doubt as
to whether Miller v. Miller was rightly

   decided, but whether that was so or not is now quite immaterial, having
regard to the provisions of Section 3 of the Statute 16 and 17 George V, Ch. 40,
which provides that any decree granted under the Act of the Indian Legislature
known as the Indian Divorce Act of 1869 and confirmed or made absolute under the
provisions of that Act for the dissolution of a marriage, the parties to which
were at the time of the commencement of the proceedings domiciled in England or
in Scotland, and any order made by the Court under any such decree which, if the
proceedings were commenced before the commencement of this Act, shall be valid
and deemed always to have been as valid in all respects as though the parties to
the marriage had been domiciled in India. It is, therefore, quite clear that so
far as decrees for the dissolution of marriage, the parties to which were
domiciled in England or Scotland are concerned they are for all purposes to be
regarded as valid.

   18. It is, however, to be observed that the validating clause in the Act of
1926, only applies to decrees for the dissolution of marriage between persons
domiciled in England and Scotland and therefore even at the present time,
assuming the decision in Keyes v Keyes to have been correct (and apparently it
was accepted as correct by the Imperial Legislature, seeing that it thought fit
to pass the Validating Act of 1921) decrees for the dissolution of marriage
pronounced by the Courts in India in regard to the marriage of persons who are
not domiciled and resident in India or who are not domiciled in England or
Scotland and resident in India as for example the parties in the case which has
been referred to as the Cooch Behar case, would still not be valid. That case is
reported in Isharani Nirupoma v. Victor Nitendra Narayan A.I.R. 1926 Cal. 871
where Gregory, J., did not follow the decision in Keyes v. Keyes (1921) P. 204.
In my view, and with all possible respect to the learned Judge who decided that
case, the decision was not in accordance with the law as it then stood or now
stands. The next stage was this : having regard to the decision of Keyes v.
Keyes (1921) P. 204, the Indian Legislature in 1926 passed an Act (being Act 25
of 1926) bringing the law in India, so far as jurisdiction in matrimonial suits
is concerned, into line with that decision and by that Act, which is called the
Indian Divorce (Amendment).Act of 1926, it is provided in Section 2:

     For paras. 2, 3 and 4, Section 2, Divorce Act the following shall be
substituted namely : Nothing hereinafter contained shall authorize any Court to
grant any relief under this Act except where the petitioner or respondent
professes the Christian religion or to make decrees of dissolution of marriage
except where the parties to the marriage are domiciled in India at the time when
the petition is presented, or to make decrees of nullity of marriage except
where the marriage has been solemnized in India and the petitioner is resident
in India and the petitioner is resident in India at the time of presenting the
petition, or to grant any relief under this Act, other than a decree of
dissolution of marriage or of nullity of marriage, except where the petitioner
resides in India at the time of presenting the petition.

   19. It is, therefore, abundantly clear that under the Indian Divorce
(Amendment) Act of 1926, in order to found jurisdiction to grant relief, the
parties must be domiciled in India at the time when the petition is presented,
and in order to determine in which Court the proceedings should be taken, they
must also be resident in India by reason of the provisions of Section 3 of the
Act of 1869.

   20. The Act with which we are concerned in the present suit, however, extends
the jurisdiction of the Courts in India in that it confers upon them by Section
1, Sub-section (1), jurisdiction to make a decree for dissolution of marriage
(and as incident thereto make any order as to damages, alimony or maintenance,
custody of children, and costs) in cases where the parties to the marriage are
British subjects domiciled in England or in Scotland, in any case where a Court
in India would have such jurisdiction if the parties to the marriage were
domiciled in India. With regard to the latter part. of that section the Courts
in India, as I have already stated, will have such jurisdiction where the
parties to the marriage are domiciled in India and resident within the
jurisdiction of one or other of the Courts in India as set forth in Section 3 of
the Act of 1869. Now it has from time to time been argued that Section 7 of the
Act of 1869 is sufficiently wide in its scope to enable the Courts in India to
grant relief and even to make decrees for the dissolution of marriage upon any
ground which from time to time would be sufficient in England. The marginal note
of that section is "the Court to act on principles of English Divorce Court." In
my view, however, Section 7 has no real application in a matter of this kind in
that it cannot be read as interfering with or extending the grounds for
dissolution of marriage as set forth; in Section 10 of the Act of 1869 and I am
off opinion that Section 7, which says that

     subject to the provisions contained in this Act; the High Courts shall in
all suits and proceedings hereunder act and give relief on principles and rules
which in the opinion of the said Courts are as nearly as may be conformable to
the principles and rules on which the Court for Divorce and Matrimonial Causes
in England for the time being acts and gives relief

   can only have reference to matters of machinery and questions of procedure
and the amount of proof required in matters of this kind. That is apparently the
view taken by Pearson, J., in the case to which I have already referred Miller
v. Miller . the learned Judge says;

     it is unnecessary perhaps to discuss the question whether in any event the
principles and rules referred to in Section 7 would include the question of
residence as a basis of jurisdiction or whether that section is not designed
rather as a residuary section to provide for matters that may not be otherwise
specially mentioned in the Act.

   21. A similar view was taken by Crump, J., in Wilkinson v. Wilkinson A.I.R.
1923 Bom. 321. There is moreover the opinion of Sir Lawrence Jenkins, Bailey v.
Bailey (1903) 30 Cal. 490 n., as an authority for saying that the language of
Section 7 of the Act of 1869 points rather to the rules and principles on which
the Court should deal with matrimonial causes in the way requiring a certain
degree of evidence and other cognate matters. Pearson, J., referred also to
Ramsay v. Boyle (1903) 30 Cal. 489. My own view of the matter is that Section 7
has no sort of application to the present suit. In my opinion it cannot be said
that there is anything like sufficient virtue in Clause 7 of the Act of 1869 to
import into Indian Divorce Jurisprudence any fresh ground for relief other than
those set forth in Section 10. It is quite clear to my mind that under the
Indian Act of 1869 (and the extending Act of 1872) the only grounds on which
marriage may be dissolved are those set forth in Section 10 of the Act of 1869.
If the petitioner therefore in the present suit is entitled to the relief which
she seeks solely on the ground of her husband's adultery her right to such
relief must in my opinion be derived entirely from the provisions of the Indian
Colonial and Divorce Jurisdiction Act of 1926 itself. That Act has to a large
degree introduced a new principle into the administration of law in that it has
conferred a jurisdiction on the Courts of one country that is to say, India, to
grant a decree for dissolution of marriage in the case of persons who are
domiciled in another country or rather in either one of two countries England or
Scotland. I have no doubt that the word "jurisdiction" as used in the main part
of Sub-section 1, Section 1 of the Act refers solely to the question of the High
Courts in India having authority and the right to entertain and to try suits
between British subjects in certain circumstances. The main part of the section
does not in fact affect the question one way or the other as to what are the
grounds upon which relief can be granted. If the first part of Section 1, Sub-
section 1, stood alone and no proviso had been added the only grounds of relief
would have been those set forth in Section 10 of the Act of 1869 unless it could
be successfully argued that by virtue of Section 7 of the Act of 1869 other
grounds might be added. I have already dealt with that aspect of the matter and
I am clearly and definitely of opinion that Section 7 does not affect this
question one way or the other. That section, as I have already stated, is
concerned in matters of procedure only and not substantive law at all.

   22. Mr. Bagram has invited me to say that the terms of the proviso to Section
1, Sub-section 1 of the Act of 1926 are sufficiently definite to enable the
petitioner herein to obtain a decree for dissolution of her marriage. That
proviso is as follows:

     provided that (a) the grounds on which a decree for the dissolution of such
a marriage may be granted by any such Court shall be those on which such a
decree might be granted by High Court in England according to the law for the
time being in force in England.

   23. Now the law for the time being in force in England with regard to
dissolution of marriage is contained in Section 176 of the Supreme Court of
Judicature (Consolidation) Act of 1925. That section really reenacts the
material provisions of the Matrimonial Causes Act of 1857 and the Matrimonial
Causes Act of 1923 which latter Act for the first time conferred upon a woman
the right to obtain a dissolution of her marriage on the ground of her husband's
adultery alone. Section 176 of the Act of 1925 reads as follows:

     A petition for divorce may be presented to the High Court (in this part of
this Act referred to as the Court) by a husband on the ground that his wife has
since the celebration of the marriage been guilty of adultery and (b) by a wife
on the ground of her husband has since the celebration of the marriage been
guilty of rape, or of sodomy or bestiality or that he has since the celebration
of the marriage and since the seventh day of July nineteen hundred and twenty
three been guilty of adultery; provided that nothing in this Act shall affect
the right of a wife to present a petition for divorce on any ground on which she
might, if the Matrimonial Causes Act, 1923, had not passed, have presented such
a petition.

   24. If therefore there is no adultery available or provable as having been
committed since 17th July 1923 a wife can still petition for divorce on the
ground of adultery coupled with cruelty or desertion just as she could have done
if the Act of 1923 had not been passed. That section (Section 176) as I have
said sets out what the law is at the present time in force in England with
regard to the grounds on which a decree for dissolution of marriage may be
granted. It was argued and argued very cogently by Mr. Bagram that the whole
scheme of the Act, the Indian and Colonial Jurisdiction Act of 1926, is to
assimilate the law in India with that of England so far as regards British
subjects resident in India but not domiciled there bat domiciled in England or
Scotland and therefore seeing that divorce jurisdiction has been conferred on
the High Courts in India where the parties are domiciled in England or Scotland
it is only reasonable to suppose that the Imperial Legislature intended that
that jurisdiction should be exercised on exactly the same grounds as the
jurisdiction of the High Court in England would be exercised in similar
circumstances. In support of that view of the matter Mr. Bagram pointed out that
by Section 1, Sub-section 4 of the Act of 1926 it is provided that

     the proceedings before a High Court in India in exercise of the
jurisdiction conferred by this Act shall be conducted in accordance with rules
made by the Secretary of State in Council of India with the concurrence of the
Lord Chancellor

   and those rules shall provide for certain matters as set forth in that
subsection. The Indian and Colonial Divorce Jurisdiction Act, 1926 was passed on
15th December 1926, and rules under that Act (as provided for in Section 1, Sub-
section 4) were published in the Gazette of India on 20th August 1927. Amongst
the matters provided for in the rules as required by Sub-section 4, Section 1,
are these : (a) for petitions being heard before a Judge or one of the two or
more Judges of the Court nominated for the purpose by the Chief Justice of the
Court with the approval of the Lord Chancellor of England : (b) for the decree
or order made by such a Judge being subject to appeal to two Judges of the Court
similarly nominated without prejudice, however, to any right or ultimate appeal
to His Majesty in Council; (c) for prohibiting or restricting the exercise of
the jurisdiction where proceedings for the dissolution of the marriage have also
been instituted in England or Scotland; and then (g) for conferring on such
official as may be appointed for the purpose within the jurisdiction of each
High Court the like right of showing cause why a decree should not be made
absolute as is exercisable in England by the King's Proctor. Suits of this
character, i.e., suits for dissolution of marriage brought by a British subject
who is not domiciled in India are to be tried by a Judge nominated for that
purpose by the Chief Justice and approved by the Lord-Chancellor in England.

   25. The Lord Chancellor is to have some say with regard to the Judge who
shall exercise jurisdiction under this Act personally by reason of the fact that
it was intended that a portion of the jurisdiction of the High Court in England
with regard to matrimonial causes should be transferred to or at any rate
exercised in India Further it is clearly an innovation that machinery should be
instituted in this Court for setting up the office of a (King's) Proctor's
department in order to ensure that some sort of scrutiny will take place after a
decree has been obtained. I mention these matters solely by Way of illustration
as showing that no doubt the whole scheme of this Act is to assimilate the
position of British subjects in India to that of British subjects in England or
Scotland. I think Mr. Bagram rightly says that the Act was designed to place
British subjects in India for all purposes in the same position as they would be
as if they were bringing suits for divorce in England. That view is strengthened
by Prov. (c), Sub-section 4, Section 1, which provides:

     for prohibiting or restricting the exercise of the jurisdiction where
proceedings for the dissolution of the marriage have also been instituted in
England or Scotland.

   26. Further there is this aspect of the matter. It would seam on the face of
it somewhat unlikely that the Imperial Legislature intended one law to apply and
the wife petitioner to be clothed with one set of rights so long as she is in
England and yet to lose a portion of those rights as soon as she came back to
resume residence in India. Looking at the matter broadly therefore I think Mr.
Bagram is right in his contention that this Act was designed and intended to pat
British subjects on the same footing in India as they would be if they were
actually resident as well as domiciled in England. The only doubt which is cast
upon the matter arises from the fact that under the provisions of Section 1,
Sub-section 1, British subjects domiciled in Scotland and resident in India
would or might be in a different position from British subjects resident in
India and domiciled in England. I have not had before me any evidence as to what
the law with regard to divorce in Scotland is or with regard to the grounds upon
which dissolution of marriage can be obtained in that country. I do not feel
that I am entitled to take any judicial notice of or to use my own knowledge as
to the law of Scotland with regard to the dissolution of marriage. But I may put
the matter in this way that upon the assumption that there are in Scotland
grounds for divorce different from those obtaining in India it follows that
under Section 1, Sub-section 1, a Scotch woman resident in India but domiciled
in Scotland may have entirely different rights from an English woman resident in
India but domiciled in England, because it is clear that British subjects
proceeding under this statute and bringing suits under, the terms of Sub-section
1 of Section 1 of the Act if they have any rights other than those conferred by
Section 10, Divorce Act 1869, can only have such rights as existing according to
the law for the time being in force in England.

   27. I have already stated by reference to Section 176, Judicature Act 1925,
what the law is at the present time in England. What I have to decide is whether
or not that law is imported into India and made available to the petitioner in
the present suit by reason of the provisions of Section 1(i) of the Act of 1926,
and in particular by reason of the provisions, or rather the terms of the
various provisos therein set forth. It is to be observed that by proviso (c) no
such Court (that is, no High Court in India) shall grant any, relief under this
Act except in the cases where the petitioner resides in India at the time of
presenting the petition and the place where the parties married, or resided
together was in India, or make any decree of dissolution of marriage except
where either the marriage was solemnized in India or adultery or crime
complained of was committed in India. The petitioner in the present suit fulfils
all the requirements of that proviso because, as I have already stated, she was
residing in India at the time of presenting the petition, the place where the
parties (i.e., where the petitioner and her husband (the respondent) last
resided together) was in Calcutta, the marriage, was solemnised, as I have said,
at Jhansi, and the adultery complained of was committed in Calcutta, so that the
petitioner in this suit is within the terms of the provisos.

   28. Mr. Bannerjee in a very able and full argument upon this matter pointed
out to me that it is unlikely that the Imperial Legislature should have
introduced what in effect is a new cause of suit - a new ground for obtaining a
decree for dissolution of marriage - into the law in India without making a
definite and perfectly clear and express provision to that effect. He argued,
and in my view there is considerable degree of force in the argument, that it is
improbable that the Imperial Legislature which apparently for the first time in
history, confers a direct jurisdiction upon the Courts in India with regard to a
particular matter, would have extended the grounds upon which decrees for
dissolution can be obtained simply by means of a number of provisos to a sub-
section, and Mr. Bannerjee put forward for the consideration of the Court the
contention that the proviso contained in Clause A was inserted merely for the
purpose of excluding the petitioner who is a British subject not domiciled in
India from obtaining a decree on a ground which would not be sufficient for
obtaining a decree in England as for example, the ground set out in para. 2,
Section 10 of the Act of 1869, which provides that any wife may present a
petition to the District Court or to the High Court praying that her marriage
may be dissolved on the ground that since the solemnization thereof the husband
has exchanged his profession of Christianity for the profession of some other
religion and gone through a form of marriage with another woman.

   29. It seems obvious that seeing that the provisions of the Act of 1869 were
applicable only to British subjects professing the Christian religion, that
provision was intended to safeguard a Christian wife from finding herself in the
unfortunate and invidious position of having a husband who changed his religion
merely for the purpose possibly of adopting some other religion which permits or
countenances polygamy, which recognized polygamy so as to enable him to take to
himself a second wife, and thereby act in derogation of the original wife's
position. As I have already stated, Mr. Bannerjee argued that the proviso in (a)
of Section 1(i) of the Act of 1926 is solely designed to shut out that ground
for a dissolution of marriage. I think that argument would have had more force
had the word "only" appeared after the word "shall" in the third line of the
proviso, which would have made the proviso read as follows:

     The grounds on which a decree for dissolution of such a marriage may be
granted by any such Court shall only be those on which such a decree might be
granted by the High Court in India according to the law for the time being in
force in England;

   and even so, I am not at all sure that it would have seriously affected the
contention put forward by Mr. Bagram on behalf of the petitioner.

   30. Looking at the whole scheme of this Act having regard, as I have already
said, to the fact that it provides that rules should be made thereunder
containing the provisions to which I have already referred and having regard to
the fact that such rules have already been made on the same lines as the English
rules which are The Matrimonial Causes Rules, 1924, I think I ought to come to
the conclusion that the contention of the petitioner is well founded, and that
it was the intention of the Imperial Legislature to put as far as possible a
British subject, domiciled in England or Scotland resident in India, upon the
same footing for the purpose of obtaining a dissolution of marriage as he or she
would be if they were bringing such suit not in India, but in England or
Scotland as the case might be. One is fortified in that view by the terms of
Prov. (d) of (1) which seems to imply, or rather more than imply, that it is in
no sense a question of the ground of relief which is to determine the form in
which the suit is brought, but the question of whether or not the petitioner can
reasonably bring the suit in England, and whether it is in the interests of
justice that the matter should be determined in India. It seems to me it would
work great hardship to a wife petitioner if the Court were bound to say:

     It is true that there is a sufficient cause for preventing you from taking
proceedings in the Courts of the country in which you are domiciled, and it is
in the interests of justice, desirable, that the suit should be determined in
India, but despite all that because the suit is to be determined in India, you
have less rights in the way of obtaining disolution of your marriage than if you
had started instituting the suit in the country of your domicile.

   31. Having heard the very full and able argument of both counsel in this
matter, and having considered the question very carefully, I have come to the
conclusion that the words in Prov. (a) of Section 1(1) are intended to mean that
the grounds on which a decree for the dissolution of marriage of a British
subject domiciled in England may be granted by a High Court in India shall be
those on which such a decree might be granted by the Divorce Court in England,
according to the law for the time being in force in England, i.e., at the
present time, according to the law laid down in Section 176, Supreme Court of
Judicature (Consolidation) Act of 1925. That being the case the petitioner in
this suit having established to the satisfaction of the Court the adultery of
the respondent, and the Court being satisfied as to the other matters referred
to in Prov. C and D of Section 1(1) the petitioner is entitled to the relief
which she claims in this suit.

   32. I accordingly pronounce a decree for dissolution of marriage of the
petitioner and respondent. There will be the usual decree nisi with costs
against the respondent and also an order that the respondent shall pay to the
petitioner alimony at the rate of Rs. 250 per mensem pending further order.