Muncherji Cursetji Khambata vs Jessie Grant Khambata on 20 April, 1934

    Muncherji Cursetji Khambata vs Jessie Grant Khambata on 20/4/1934

JUDGMENT

   Blackwell, J.

   1. In this case the petitioner sues for a divorce by reason of the
respondent's alleged adultery and cruelty. Among other defences, the respondent
pleads that a previous marriage of the petitioner with one Gulam Mahomed Ebrahim
has never been dissolved or annulled by any Court of competent jurisdiction and
is still subsisting. The question, whether the first marriage had been validly
dissolved before the marriage in suit took place, was tried as a preliminary
issue. The learned Chief Justice answered that issue in the affirmative, and
this is an appeal from his decision.

   2. The issue was tried upon an agreed statement of facts. From this it
appears that on December 4, 1906, the petitioner, who was domiciled in Scotland,
married at the General Registry Office in Edinburgh Gulam Mahomed Ebrahim, who
was a Sunni Mahomedan domiciled in India (which includes not only British India,
but the various Native States). In 1912, the petitioner became a convert to the
Mahomedan religion, and continued to profess that religion up to the middle of
April, 1923. Between the years 1914 and 1933 Gulam Mahomed Ebrahim permanently
resided at Secunderabad, and is still permanently residing there. On June 27,
1922, Ebrahim pronounced talak against the petitioner in accordance with
Mahomedan law. On April 10, 1923, the petitioner obtained a declaration from the
District Court at Secunderabad that she was no longer the wife of Ebrahim. On
April 24, 1923, the petitioner was married to the respondent under the Special
Marriage Act (III of 1872).

   3. In his judgment, the learned Chief Justice says that at the time of the
marriage Ebrahim was domiciled in British India, and that in 1912, when the
petitioner embraced the Mahomedan faith, both Ebrahim and the petitioner were
domiciled in British India. There is no evidence as to this, and no evidence
where Ebrahim was domiciled when he pronounced talak, or what his domicile of
origin was, or whether that was ever changed. Mr. Engineer for the respondent
says that Ebrahim at the time when he pronounced talak was domiciled in British
India, but he admits that there is no evidence as to this. Mr. Carden Noad for
the petitioner says that Ebrahim at the time when he pronounced talak was
domiciled in Secunderabad, which is in a Native State; but he admits that the
only evidence in support of this assertion is the statement in the agreed facts
that between the years 1914 and 1933 Ebrahim was a permanent resident of
Secunderabad. However, the parties have agreed that at all material times
Ebrahim was domiciled either in British India or in Secunderabad, and have also
agreed for the purposes of this suit and appeal that the law applicable in
Secunderabad is the same as in British India. The appeal has accordingly been
argued and decided upon that assumption.

   4. It may here be mentioned that Secunderabad is a British Cantonment, but
that it still remains part of the Hyderabad State and is the property of the
Nizam see Hossain Ali Mirza v. Abid Ali Mirza (1893) I.L.R. 21 Cal. 177 and
Ananta-padmanabhaswami v. Official Receiver of Secunderabad (1933) L.R. 60 I.A.
167 : S.C. 35 Bom. L.R. 747. By virtue of the Indian (Foreign Jurisdiction)
Order in Council 1902, which was made under the Foreign Jurisdiction Act, 1890,
the Governor General in Council has applied to the Cantonment of Secunderabad
various enactments, subject to any amendments to which the enactments are for
the time being subject in British India. The notification, which is dated March
22, 1913, is to be found at p. 227 of Vol. I of Macpherson's British Enactments
in force in Native States. Among the Acts applied are the Indian Divorce Act, IV
of 1869, the Special Marriage Act, III of 1872, the Indian Christian Marriage
Act, XV of 1872, and the Specific Relief-Act, I of 1877. As regards the Indian
Divorce Act it appears from the notification that "District Court" in Section 3
of the Act means the First Assistant to the Resident at Hyderabad. The power of
the Governor General in Council to apply Acts by notification in this manner is
recognised by their Lordships of the Privy Council in Dattatraya Krishna Rao
Kane v. Secretary of State for India (1930) L.R. 57 I.A. 318 : S.C. 33 Bom. L.R.
6.

   5. There is no evidence as to what the law of Scotland is in reference to a
marriage entered into in Scotland before a Registrar. The learned Chief Justice
has assumed for the purposes of his judgment that the Scotch law is the same as
the English law. Whether the law is the same or not, I do not know. Before us
counsel for the respondent wished to argue that the law was not the same, and
that the marriage in Scotland should be regarded as equivalent to a marriage in
Mahomedan form, but, in the absence of evidence upon the subject, we declined to
allow him to do so, and as the case was argued in the Court below upon the
assumption that the law was the same, we have decided this appeal upon that
assumption.

   6. Mr. Garden Noad contended that the declaration made by the District Court,
Secunderabad, that the petitioner was no longer the wife of Ebrahim operated as
a judgment in rent. He relied upon Section 41 of the Indian Evidence Act, under
which a final decree of a competent Court in the exercise of matrimonial
jurisdiction which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to such character, is
relevant and conclusive proof that any legal character which it takes away from
any such person ceased at the time from which such decree declared that it had
ceased or should cease. There is no evidence that the District Court was
exercising matrimonial jurisdiction, or that it had such jurisdiction, and from
the notification earlier referred to, jurisdiction under the Indian Divorce Act
of 1869 is to be exercised by the First Assistant to the Resident at Hyderabad.
The prayer in the plaint in that suit is for a declaration that the plaintiff is
no longer the wife of the defendant and the words used in the body of the plaint
indicate that it was a suit brought under Section 42 of the Specific Relief Act.
In my opinion, the District Court was not exercising matrimonial jurisdiction,
and Section 41 of the Indian Evidence Act does not apply. The learned Chief
Justice held that having regard to the terms of Section 43 of the Specific
Relief Act (the illustration to which is in point), the declaration does not
operate in rem. I agree with him.

   7. Two points have been argued, namely, (1) whether the husband could have
divorced his wife by talak while she remained a Christian, and (2) whether he
could do so after she became a convert to Mahomedanism.

   8. The contentions of the appellant upon the first point may be summarised as
follows :- This was a Christian marriage, which is a voluntary union for life of
one man to one woman to the exclusion of all others Hyde v. Hyde and Woodmansee
(1866) L.R. 1 P. & D. 130 and Nachimson v. Nachimson [1930] P. 217. The English
Courts have refused to recognise talak as applicable to Christian marriage Rex
v. Hammersmith Superintendent Registrar of Marriages : Mir-Anwaruddin, Ex parte
[1917] 1 K.B. 634 and the Courts in India, where the husband is domiciled, which
alone have jurisdiction over the rights and obligations arising out of the
marriage Nachimson v. Nachimson, above cited and Harvey v. Farnie (1880) 6 P.D.
35 on appeal (1882) 8 App Cas. 43, will apply the same principle to a Christian
marriage. If this marriage had been entered into in India, it would have been
void unless solemnised in accordance with the provisions of the Indian Christian
Marriage Act (see Section 4 of Act XV of 1872). A marriage solemnised under this
Act is essentially a monogamous marriage, involving an implied obligation not to
marry another wife while that marriage subsists, and although a Mahomedan under
his personal law is allowed four wives, he must be deemed to have abandoned his
rights under that law by contracting marriage with a Christian, and would be
guilty of bigamy if he married again while the first marriage subsisted. In any
event a marriage solemnised under Act XV of 1872 is not a Mahomedan marriage,
and cannot be dissolved by talak at the instance of the husband. The grounds
upon which a Christian wife in India may divorce and be divorced are regulated
by the Indian Divorce Act (IV of 1869). Those grounds being defined in that Act,
she could not claim to divorce her Mahomedan husband and he could not claim to
divorce her upon grounds applicable to a Mahomedan marriage. It is true that as
he did not profess the Christian religion a Mahomedan husband could not have
petitioned for a divorce against his wife under the Indian Divorce Act until by
an amendment in 1926 the Court was given jurisdiction "where the petitioner or
respondent professes the Christian religion ", but this was a casus omissus when
the Act was passed in 1869, and as the grounds and the procedure upon which a
Christian wife might be divorced were defined in that Act, divorce by talak
would not apply to her.

   9. The contentions of the respondent upon this point were shortly as follows
:- A marriage in Scotland between a Mahomedan, who is domiciled in British
India, and a Christian woman is not monogamous by the law of the husband's
domicile applicable to Mahomedans. Even if the marriage had been solemnised in
India under Act XV of 1872, the husband could still by his personal law have
married as many as three other wives. If it had been intended by that Act to
constitute a marriage under it monogamous, the Act would have so provided. By
the Special Marriage Act (III of 1872), under which the marriage sought to be
dissolved by the present suit was celebrated, " neither party must, at the time
of the marriage, have a husband or wife living" (Section 2 (1)), every person
married under the Act who, during the lifetime of his or her wife or husband,
contracts any other marriage, is punishable for bigamy, "whatever may be the
religion which he or she professed at the time of such second marriage" (Section
16), and the Indian Divorce Act is in terms made applicable to all marriages
contracted under the Act (Section 17). There are no such provisions in Act XV of
1872, and the personal law of a Mahomedan husband marrying under that Act is not
affected. The Indian Divorce Act of 1869 no doubt gave a Christian wife as
petitioner rights of divorce against her Mahomedan husband, but it did not,
until 1926, give any rights of divorce to him, and whatever may be the position
since the Act was amended in 1926 by conferring rights of divorce upon the
husband, the Act as it was originally framed did not in terms deprive him of his
rights as a Mahomedan to divorce his wife by talak, and ought not to be treated
as having done so by implication. Under Section 10 of the Act a wife may present
a petition for divorce upon the grounds ( among others) that her husband has
been guilty of bigamy with adultery, or of marriage with another woman with
adultery. The Act, therefore, appears to contemplate that by his personal law a
man who in India marries a Christian wife may marry another, and the Christian
wife is for this reason given the right to petition for a divorce in such an
event. A Mahomedan who married a kitabia, that is, a Jewess or a Christian,
could always divorce her by talak, and he can do so still. A marriage between a
Mahomedan and a Christian woman must of course be solemnised in India in
accordance with the provisions of Act XV of 1872, or the marriage would be void.
But it is a marriage recognised by Mahomedan law, by which no particular form of
marriage is required, and it is not a monogamous marriage, and in dealing with
the status of the parties and the rights and obligations arising out of the
marriage, the Courts in India will apply the personal law of the Mahomedan
husband. They will equally apply that law to a marriage between a Mahomedan and
a Christian woman celebrated in Scotland, and will hold that the husband has a
right to divorce by talak.

   10. On these rival contentions, I incline to the opinion that the appellant
is right. As at present advised, I think that the marriage in Scotland was a
monogamous marriage, and that a Court in India should, so long as the wife
remains a Christian, hold that the grounds upon which such a marriage can be
dissolved are laid down in the Indian Divorce Act of 1869, and should refuse to
recognise a divorce by talak. If it had been necessary to decide this question,
I should have taken further time to consider it. But, having regard to the
conclusion at which I have arrived upon the second question, I do not think it
necessary to decide the first, and I refrain from doing so.

   11. The second question is, whether the husband could divorce his wife by
talak, she being at the time a convert to the Mahomedan religion. This question
has been discussed, but not decided. In Skinner v. Orde (1871) 14 M.I.A. 309, a
case relating to the custody of a child, the issue of a Christian marriage,
whose Christian father had died, the child's mother, the widow, lived and
cohabited with one John Thomas John, who was already the husband in Christian
marriage of a living Christian wife. They both became Mahomedans for the
purpose, as it appeared, of giving legal effect to a Mahomedan marriage between
them, but that marriage was not proved to have been duly celebrated. At p. 324
of the report, their Lordships of the Privy Council said:

     It is suggested that this union was sanctified and legalized in this way-
that the Widow became a Mahomedan, that John Thomas John became a Mahomedan, and
that having thus qualified himself for the enjoyment of polygamous privileges,
he contracted in Mahomedan form a valid Mahomedan marriage with the Widow, the
Appellant.

     The High Court expressed doubts of the legality of this marriage; which
their Lordships think they were well warranted in entertaining.

   Skinner v. Skinner (1897) L.R. 25 I.A. 34 was a suit to obtain a widow's
share under Mahomedan law in the estate of the deceased. The plaintiff and the
deceased who were originally Mahomedans had been married in 1855 as professing
Christians, and having reverted to Mahomedanism, they were married a second time
according to Mahomedan law in nikah form. One of the issues in the suit was :
Whether the deceased had divorced the plaintiff by a divorce according to
Mahomedan law? The District Judge answered that issue in the affirmative, but
held as a matter of law that the regular Christian marriage celebrated between
two persons domiciled in India, could not, upon the spouses subsequently
embracing Mahomedanism be divorced by a Mahomedan divorce. The learned Judges of
the Chief Court expressed no opinion on that finding of law, but held that there
had been no Mahomedan divorce. After purporting to divorce the plaintiff, the
deceased had lived with another woman as his wife until his decease. At the
beginning of the litigation the plaintiff disputed that there had been any
marriage between the deceased and that other woman, and disputed the legitimacy
of their offspring, who were the appellants in the case, but that contention was
abandoned. The deceased had made a will, by which he purported to exclude the
plaintiff from a share in his estate, but the District Judge held that as the
deceased continued to live as a Mahomedan and died professing that faith, he was
bound by the provisions of the Mahomedan law, and the will was invalid, and a
decree of partition was given to the plaintiff which assigned to her, as one of
the two legal wives of the deceased, one half of the eighth share allotted to
the widow, or widows, as the case may be, under the Mahomedan law of intestacy.
In the course of their judgment, their Lordships of the Privy Council said (p.
40):

     The decree made by the District Judge, and ultimately approved of by the
Chief Court, is framed upon the footing that the personal status of Stuart
Skinner, at the time of his death in 1886, was that of a Mahomedan, and that the
rights of succession to his estate, including the right of his first wife, who
had become and was then a Mahomedan, were governed by the rules of Mahomedan
law.

   In an earlier passage, their Lordships had expressed the opinion that upon
the assumption on which it proceeds the Mahomedan law laid down by the District
Judge appeared to be correct. In a later passage their Lordships said (p. 41):

     One of the many peculiar features of this suit arises from the circumstance
that, in the case of spouses resident in India, their personal status, and what
is frequently termed the status of the marriage, is not solely dependent upon
domicil, but involves the element of religious creed. Whether a change of
religion, made honestly after marriage with the assent of both spouses, without
any intent to commit a. fraud upon the law, will have the effect of altering
rights incidental to the marriage, such as that of divorce, is a question of
importance and, it may be, of nicety. In the present case that question does not
arise for decision, unless it is shewn that Stuart Skinner did, in fact, divorce
Badshah Begum according to Mahomedan form.

   12. Later their Lordships said (p. 41):

     ...having regard to the fact that the case has come before them in such a
shape as to make an exhaustive argument from the Bar on both sides of the
question impossible, they do not think it expedient to express any opinion as to
the effect of a change of religion by the spouses, their domicil remaining the
same, upon the rights of one or other of them which are incidental to marriage.

   13. The case of Skinner v. Skinner is, in my opinion, instructive as showing
how in India a man's right of disposition over property may be governed by the
religion which he professes. Similarly, it is clear from Abraham v. Abraham
(1863) M.I.A. 195, that if a Hindu becomes a convert to Christianity, the Hindu
law ceases to have any continuing obligatory force upon him, and that he may
either renounce the old law by which he was bound as he renounced his old
religion, or abide by the old law although he has renounced his old religion. In
the course of their judgment in the case their Lordships of the Privy Council
said (p. 244):

     The law has not, so far as their Lordships can see, prohibited a Christian
convert from changing his class. The inconvenience resulting from a change of
succession consequent on a change of class is no greater than that which often
results from a change of domicile. The argumentum at inconvenient cannot,
therefore, be used against the legality of such a change. If such change takes
place in fact, why should' it be regarded as non-existing in law? Their
Lordships are of opinion, that it was competent to Matthew Abraham, though
himself both by origin and actually in his youth a ' Native Christian',
following the Hindu Laws and customs on matters relating to property, to change
his class of Christian, and become of the Christian class to which his wife
belonged.

   Again, in Mitar Sen Singh v. Maqbul Hasan Khan (1930) L.R. 57 I.A. 313 : S.C.
Bom. L.R. 1 their Lordships of the Privy Council held that Section 1 of the
Caste Disabilities Removal Act 1850, protected only the actual person who either
renounces his religion, 'or has been excluded from the communion of any
religion, or has been deprived of caste, and that where the property of a
Mahomedan converted from Hinduism has passed according to Mahomedan law to his
descendants, Hindu collaterals cannot claim by virtue of the Act to succeed
under Hindu law. In the judgment their Lordships said (p. 317):

     In other words, when once a person has changed his religion and changed his
personal law, that law will govern the rights of succession of his children. It
may, of course, work hardly to some extent upon expectant heirs, especially if
the expectant heirs are the children and perhaps the unconverted children of the
ancestor who does in fact change his religion, but, after all, it inflicts no
more hardship in their case than in any other case 'where the ancestor has
changed the law of succession, as, for instance, by acquiring a different
domicil, and their Lordships do not find it necessary to consider any questions
of hardship that may arise. They will certainly, in their Lordships' view, be
outweighed by the immense difficulties that would follow if the wider view were
to prevail.

   14. These cases show that in India, personal status, rights and obligations,
and questions of succession and inheritance, are frequently governed by
religious creed, and that they may be affected by a change of religion as they
might be affected by a change of domicile It has been argued for the appellant
that the status imposed by operation of law upon persons who marry in Christian
form cannot be altered by the voluntary act of the parties. But, if a change of
domicile, which is a voluntary Act, may result in a change of status by reason
of the application of a different system of law, it is difficult to see why a
change of religion, the domicile remaining unchanged, may not also result in a
change of status, if the law to be applied is then different by reason of the
difference of religion. It is said for the appellant that as this question
arises in a divorce suit brought under the Indian Divorce Act of 1869, and
Section 7 of that Act enjoins the Court to " 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," the
Court here ought to refuse to recognise the divorce by talak, as that would not
be recognised by the Divorce Court in England. But, in considering in a divorce
suit in India the question whether a previous marriage of one of the parties is
or is not still subsisting, it seems to me that the Court must apply the law in
India applicable to that marriage at the time when that question arises.

   15. There is, I think, no doubt that a Mahomedan could divorce a kitabia by
talak under Mahomedan Law. In Ameer Ali's Mahommedan Law, 5th Edn., Vol. II, at
p. 393, the following passage occurs:

     But a Moslem can enter into a valid contract of marriage with a woman
following any of the Scriptural faiths. All the legal consequences (save as
regards the right of inheritance, the reason for which is to be found in another
principle) which flow from an union between two Islamists, arise out of such
marriage. Suppose, then, a Musulman wife abandons Islam and embraces Judaism or
Christianity, there is no inherent vice in the continuance of the contract as a
valid contract. It is only as a State offence that the ecclesiatical law
pronounces against her a forfeiture of civil rights. But when that law is
unenforceable, the union remains as valid as it would be were the wife a Jew or
a Christian at the time of marriage.

   Again, at p. 499 of the same volume, in dealing with the question of talak,
it is said:

     The iddat of a free woman, Moslemah or kitabia, is three full terms, but of
one who is too young or too old three months, counted by days; in other words,
ninety days.

   I think it is clear from these passages that in the opinion of the author a
Mahomedan could divorce a kitdbia by talak. It may well be that the husband's
right of pronouncing talak against a Christian wife was taken away when the
principles upon which the Courts in England would act became applicable in India
to a Christian wife, but if a Christian wife renounces Christianity by adopting
another religion, as the petitioner did in this case, those grounds and that
procedure cease to apply as between her and her Mahomedan husband, and I can see
no reason why his personal law should not then apply to the marriage. Otherwise,
no system of law would apply as regards divorce, and the marriage tie would
remain indissoluble.

   16. There are certain observations made by the learned Chief Justice in his
judgment with which, with respect, I do not agree. In one passage he says:

     If the Courts of the domicile allow to the husband more than one wife, and
the right to divorce any wife at his pleasure, and if the Courts of the country
where the contract was made do not recognise as marriage any union but that of
one man to one woman to the exclusion of all others, then the logical result
must be that the contract has conferred upon the parties the status of marriage
in their own country, but not in the country where the marriage took place; not
that the parties have acquired the status of marriage and the rights incidental
thereto under the law of the latter country, to which as married persons they
have never been subject.

   In my opinion, no such result follows. If parties are married according to
the forms of the lex loci contractus, it cannot, in my view, be suggested that
that is not a valid marriage in the country where the marriage took place,
whatever the status and the rights incidental to the marriage may be in the
country of the husband's domicile. Again, the learned Chief Justice suggests
that in the case of a marriage between husband and wife to whose respective
communities marriage does not denote the same thing, a case of ambiguity arises,
and evidence as to the true intention of the parties would be admissible. With
respect, I do not agree. Lord Brougham in Warrender v. Warrender (1835) 2 Cl. &
F. 488 said (p. 530):

     But when the Courts of one country consider the laws of another in which
any contract has been made, or is alleged to have been made, in construing its
meaning, or ascertaining its existence, they can hardly be said to act from
courtesy, ex comitate; for it is of the essence of the subject-matter to
ascertain the meaning of the parties and that they did solemnly bind themselves;
and it is clear that you must presume them to have intended what the law of the
country sanctions or supposes; it is equally clear that their adopting the forms
and solemnities which that law prescribes, shows their intention to bind
themselves, nay more, is the only safe criterion of their having entertained
such an intention.

   So far, therefore, as the lex loci contractus is concerned, neither of the
parties could, in my opinion, be heard to say that he or she intended a marriage
of a character other than that which the law of that country permits. So far as
the law of the husband's domicile is concerned, that governs the marriage status
by operation of law, regardless of the intention of the parties, and the status
might be altered by a change of domicile. In my opinion, therefore, evidence of
intention was in the present case inadmissible.

   17. For the reasons above given, I think that the marriage between the
petitioner and Gulam Mahomed Ebrahim was validly dissolved by talak before the
marriage in suit took place. In my opinion, the preliminary issue was rightly
decided, and this appeal must be dismissed with costs.

   Broomfield, J.

   18. The learned Chief Justice has set out certain principles which he takes
to be firmly established in the realm of private international law: (1) the
forms necessary to constitute a valid marriage and the construction of the
marrriage contract depend on the lex loci contractus; (2) on marriage the wife
automatically acquires the domicile of her husband ; (3) the status of the
spouses and their rights and obligations arising under the marriage contract are
governed by the lex domicilii, that is, by the law of the country in which for
the time being they are domiciled; (4) the rights and obligations of the parties
relating to the dissolution of the marriage do not form part of the marriage
contract, but arise out of, and are incidental to, such contract and are
governed by the lex domicilii.

   19. These propositions have not been challenged. The first and the third
follow the language of Lawrence L.J. in Nachimson v. Nachimson [1930] P. 217,
232. The fourth was decided in Harvey v. Farnie (1882) 8 App. Cas. 43, and is
the basis of the decision in Nachimson's case. The second is axiomatic, but is
subject to the qualification mentioned by Lord Reading in Rex v. Hammersmith
Superintendent Registrar of Marriages : Mir-Anwaruddin, ex parte [1917] 1 K.B.
634, 643, namely, that the wife does not acquire the husband's religion along
with his domicile and does not become subject to the law of his religion, except
in so far as it is part of the law of his domicile.

   20. But, though these propositions in themselves are not open to question,
the application of them and even the meaning of them in some respects are by no
means free from difficulty. Take the question, whether a man, who has contracted
a marriage with one woman, is entitled to marry a second wife, the first
marriage still subsisting. That might be described as a matter of the
construction of the contract. It might be regarded as an essential term and
condition of the contract that the marriage was to be a monogamous one, or not
so. If it is a matter of the construction of the contract, it will depend on the
lex loci contractus, and if the marriage was contracted in England or in any
other country which does not recognise polygamy, it would seem to follow from
proposition (1) that the husband would have no right to take a second wife. On
the other hand, this might also be described as a question of the status of the
spouses and of the rights and obligations arising under the marriage contract,
in which case the law of domicile will apply under proposition (3), and a
Mahomedan domiciled in a country which recognises the Mahomedan law will be
entitled to take other wives, no matter where or in what form he married the
first, assuming at any rate that no difficulty arises by reason of difference of
religion between the spouses.

   21. The learned Chief Justice appears to take the view that the question of
the number of wives a man may have, as well as his right to divorce his wife or
wives, depends simply on the law of his domicile and that the lex loci
contractus has nothing to do with the matter. He says:

     Once it be established that a man and woman have entered into a valid
marriage contract, that is, have contracted to become husband and wife, it is
for the Courts of the country in which they elect to make their home, and not
for the Courts of the country in which they may chance to have been married, to
determine the status which attaches to the marriage, and the rights which flow
therefrom. If the Courts of the domicile allow to the husband more than one
wife, and the right to divorce any wife at his pleasure, and if the Courts of
the country where the contract was made do not recognise as marriage any union
but that of one man to one woman to the exclusion of all others, then the
logical result must be that the contract has conferred upon the parties the
status of marriage in their own country, but not in the country where the
marriage took place; not that the parties have acquired the status of marriage
and the rights incidental thereto under the law of the latter country, to which
as married persons they have never been subject.

   22. In the authorities, which have been cited to us, dicta may be found which
appear prima facie to support this view. I may mention the observations of Lord
Brougham in Warrender v. Warrender (1835) 2 Cl. & F. 488, quoted and relied upon
by all the Judges in Nachimson's case, the observations of Lord Campbell in
Brook v. Brook (1861) 9 H.L.C. 193, and those of Lord Reading in Mir-
Anwaruddin's case at p. 641. But all such pronouncements to the effect that it
is the law of the domicile which governs "the contract and all its incidents and
the rights of the parties to it," "the essentials of the contract," "the
consequences of the matrimonial relation", and so on, must, I should think, be
read subject to the English law conception of what marriage is, that being
accepted as fundamental in all the cases. I find nothing in the judgments of
these eminent Judges which goes so far as to justify the inference that they
would for a moment have countenanced the idea of a Christian marriage contracted
in England or Scotland being treated as a polygamous one in some other part of
the world. There is a passage in Lord Brougham's judgment (cited in Nachimson's
case at p. 237) which suggests the contrary (p. 531):

     If indeed there go two things under one and the same name in different
countries-if that which is called marriage is of a different nature in each-
there maybe some room for holding that we are to consider the thing to which the
parties have bound themselves, according to its legal acceptance in the country
where the obligation was contracted.

   And if it be objected that this is an old case, and that the ideas of English
Judges as to the extent of the operation of the lex domicilii have developed
since then, I may point out that in Salvesen or Von Lorang v. Administrator of
Austrian Property [1927] A.C. 641 Lord Haldane suggested that it might be going
too far to assert that questions as to what married status implies and how far
rights or acts are affected by it are all recognised in England as referable
only to the law of the domicile. The ratio decidendi of Mr. Justice Darling, as
he then was, and of the Court of Appeal in Mir-Anwaruddin's case, undoubtedly,
was that the nature of the marriage relationship, the question, whether a
marriage is of the Christian kind or of some other kind, depends on the lex loci
contractus (p. 647):

     The status acquired by Ruby Hudd on her marriage with Dr. Mir-Anwaruddin is
inconsistent with his claim that she became his wife during his pleasure and not
for life, and that she became merely one of four possible wives.

   That implies that for the purpose of determining the nature of the marriage
which results from the contract the law of the domicile is irrelevant.

   23. In Mir-Anwaruddin's case it was held as a fact that the parties intended,
or that it must be presumed that they intended, a marriage in the Christian
sense. In many of the cases importance has been attached to this question of
intention (though usually, I think, for the purpose of determining whether a
marriage not contracted in England was a Christian marriage and therefore to be
recognised in England). The learned Chief Justice has suggested that the present
case can be distinguished in that respect, because at the hearing before him the
petitioner gave evidence that when she married Ebrahim she knew he was a
Mahomedan and intended to be a wife according to his law. Assuming that
intention is relevant at all on a point of this kind, the matter could hardly be
determined by a statement made by the petitioner herself twenty-seven years
after the event in support of the case she is now interested to set up. On the
materials before us, I think, the reasonable presumption is that the parties
intended a marriage as understood by the law to which in the transaction they
purported to conform.

   24. It appears to me that on the whole the better view is that the meaning of
the marriage relation, the status of the parties in that sense, is to be
determined by the lex loci contractus, as being a matter of construction of the
contract, and that in the present case the effect of the marriage in Scotland
was to make the parties man and wife in the Christian sense and not in the
Mahomedan sense. In that case, and to that extent, the lex domicilii would be
irrelevant. But so long as we are merely considering what kind of a marriage it
must be taken to have been, it seems that it would make no difference at all
whether we were to apply the lex loci contractus or the lex domicilii. The
position under the law of the domicile applicable to the parties would have been
precisely the same. Neither in British India nor in Secunderabad, where the
parties resided after they came to India, could they have been married except
under the Indian Christian Marriage Act (XV of 1872). Section 4 of that Act
provides that every marriage between persons one or both of whom is or are a
Christian or Christians which is not solemnised under the provisions of the Act
shall be void. There are no provisions corresponding to Sections 15 and 16 of
the Special Marriage Act (III of 1872) making punishable for bigamy any person
getting married under the Act, being already married, or marrying again, being
already married under the Act. But this may have been thought to be unnecessary.
The Act was passed to consolidate and amend the law relating to the
solemnisation in India of the marriages of persons professing the Christian
religion. One of the parties is required to make a declaration that he or she
believes that there is not any impediment of kindred or affinity or other lawful
hindrance to the marriage : Section 18. In the case of Native Christians
(converts and the descendants of converts, who might have non-Christian wives)
it is expressly provided as a necessary condition for marriage under the Act
that neither party shall have a wife or husband still living : Section 60. The
Act has been held to apply only to marriage in the Christian sense : Emperor v.
Maha Ram (1918) I.L.R. 40 All. 393. The Indian Divorce Act, which necessarily
applies to marriages contracted under the Christian Marriage Act, makes the
subsistence of a former marriage a ground for a petition for nullity : Section
19 ; and allows the wife to petition for divorce on the grounds, inter alia,
that 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,
or has been guilty of bigamy with adultery or of marriage with another woman
with adultery. The Indian Divorce Act, it has been held, is not concerned with
any marriages except those founded on the Christian principle of a union of one
man and one woman to the exclusion of others : Thapita Peter v. Thapita Lakshmi
(1894) I.L.R. 17 Mad. 235 F.B. The basis of the decision was Section 7 of the
Act, which directs that the Courts in India shall 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 acts and gives relief. The Calcutta High Court
has held, on. the other hand, that a Hindu convert to Christianity can sue under
the Indian Divorce Act for dissolution of his Hindu marriage : Gobardhan Dass v.
Jasadamoni Dassi (1891) I.L.R. 18 Cal. 252. But our own High Court has followed
the Madras case : Magania v. Premsingh .

   25. Even if the law of the domicile were to be applied, therefore, there can
be little doubt, in my opinion, that the marriage which these parties contracted
must be regarded as a marriage in the Christian sense, a monogamous marriage. It
did not seem to me that the learned Counsel for the petitioner seriously
disputed this position. According to him the Court is not concerned with any
question of monogamy or polygamy in this case. Divorce has nothing to do with
the marriage contract. The authorities clearly show that the dissolution of a
marriage, and the determination of the manner in which a marriage may be
dissolved, are matters for the lex. domicilii. Therefore, he says, all that the
Court has to consider in the present case is, whether the lex domicilii permits
the husband to divorce his. wife by talak.

   26. I quite agree that that is the point to be decided, though I cannot agree
that the nature of the marriage which the parties contracted is irrelevant. It
is certainly an initial difficulty in Mr. Carden Noad's way that he cannot show
that the law of the domicile ever has permitted a Christian marriage to be
dissolved by talak in any recorded case. The point arose in Skinner v. Skinner
(1867) L.R. 25 I.A. 34, but was left undecided in view of the fact that the
talak had not been proved. That was a case in which, as in the case before us,
the parties were both Mahomedans at the material time. But Mr. Carden Noad has
not based his case solely, or principally even, upon the petitioner's conversion
to Mahomedanism. His argument was this. The Indian Divorce Act must be looked at
as it stood before the amendment of 1927, by which the words "or the respondent"
were added after the word "petitioner" in Section

   2. That is to say, only one party, the Christian party, to a marriage between
a Christian and a non-Christian, could exercise the right of divorce. A
Christian husband could divorce his wife, on the grounds laid down in the Act,
whether she were Christian or not. A Christian wife could divorce her husband,
whether Christian or not. A non-Christian husband was given no rights of divorce
under the Act. Therefore, as no rights were given to him, no rights can be said
to have been taken away by mere implication; it cannot have been intended that
he should be left with no law applicable to him at all. He must have been able
to fall back upon his personal law, and if he was a Mahomedan, he must have his
Mahomedan right of divorcing his wife by talak.

   27. This argument is ingenious, but, in my opinion, not convincing. It does;
not get rid of the difficulty that the Courts of this country in applying the
Indian Divorce Act have to apply English rules and principles so far as may be.
The English authorities on which the learned Chief Justice's proposition (4) is
based do not really lay down more than this, that any form of divorce may be
recognised which is allowed by the law of the domicile in respect of a marriage
in the Christian sense. It would, I think, be straining these authorities to an
unreasonable extent to hold that they afford any sanction for the view that a
marriage of that description may be dissolved by a form of divorce provided or
allowed by the law of the domicile in respect of a different kind of marriage.
The Indian Divorce Act was passed to amend the law relating to the divorce of
persons professing the Christian religion. It purports to be, and one would
expect that it was intended to be, complete in that respect. The grounds on
which marriage may be dissolved by the Court are set out in Section 10. If the
legislature had intended that other grounds and other methods of obtaining
divorce should be available to the parties, one would have expected a proviso-
saving the operation of the personal law. It is no doubt a remarkable fact that
before the amendment in 1927, the non-Christian party to a mixed marriage had no
right to petition for divorce under the Act, and, therefore, no right of divorce
at all, unless he or she could fall back on the personal law. But, on the whole,
it seems easier to regard this as a casus omissus than to suppose that the
legislature, in dealing with marriages according to the Christian conception,
left it open for such marriages to be affected by the personal law of one of the
parties, and that not expressly but by mere implication. If it were necessary to
decide the matter, I should certainly not be prepared to hold that Gulam Mahomed
Ebrahim could have legally divorced the petitioner by talak, if she had remained
a Christian, governed by and entitled to the protection the Indian Divorce Act.
But she did not remain a Christian, and the question is, whether her abandonment
of Christianity and adoption of the religion professed by her husband from the
beginning gave him the right to divorce her according to the law of that
religion. That question admittedly has to be determined by the law of the
domicile. The difficulty is to discover what is the law of the domicile as to
the effect of a change of religion in such a case, and it can hardly be said
that the position is altogether free from doubt, even after the further argument
which we thought it desirable to have on this part of the case. But, on the
whole, I am of opinion that the better view is that the law of the domicile
admits the right of the Mahomedan husband to divorce his wife by talak in the
circumstances of this case. It is clear, of course, that the petitioner's
conversion left the marriage still subsisting. It is equally clear that as the
result of it all rights of divorce appropriate to a Christian marriage were
lost. The husband never possessed any such rights. The wife ceased to possess
them by ceasing to profess the Christian religion. In view of the decision in
Skinner v. Skinner, cited by my learned brother, it is at least a possible view
that the husband became entitled to take an additional wife or wives in
accordance with the law of his own religion. But, even if we assume that it
remained a monogamous marriage, there is nothing inconsistent with the Mahomedan
law in that. A Muham-madan wife may stipulate for the right to divorce her
husband if he marries again : see Mulla's Principles of Mahomedan Law, 10th
Edn., para. 233, and cases there referred to. Presumably the husband would have
the right of divorce by talak nevertheless. It is difficult to see why he should
not have that right in the present case also, there being no method of divorce
open to either party, except under the Mahomedan law. It is recognised that the
law of the religion is a part of the law of the domicile, and change of religion
does affect legal rights in some respects, e.g., as regards property and
succession : see Abraham v. Abraham (1863) M.I.A. 195, 238, Raj Bahadur v.
Bishen Dayal (1882) I.L.R. 4 All. 343 347, and the other cases discussed by my
learned brother. In the peculiar circumstances of the present case, I think, it
is open to this Court to apply the law of the parties' religion in the matter of
divorce, since it does not appear that there is anything in the law of the
domicile as expounded by the Courts of this country to prevent it, and on the
other hand justice and common sense appear to require it.

   28. The learned Counsel for the appellant has naturally relied strongly on
Mir-Anwaruddin's case. But there the question for decision was, whether a
declaration of divorcement made by a Mahomedan, who had married an English woman
before a Marriage Registrar in England, had the effect in England of dissolving
the marriage so as to entitle him to marry again in England. Moreover, the wife
in that case remained a Christian. In the Court of first instance, Reading C.J.
and Bray J. expressed the opinion that English Courts would recognise no divorce
except by judicial decree. That ground of decision, however, does not seem to
have been relied upon by the Court of Appeal. It must be said to be at least
doubtful whether that is still the law even in England : see Nachimson v.
Nachimson [1930] P. 217 232 and Sasson v. Sasson [1924] A.C. 1007. In any case
it is difficult to see why the Courts in India should limit themselves by, such
a rule, where the law of the domicile (as in the case of Mahomedan Law) does not
ordinarily provide for the dissolution of marriage by decree of Court.

   29. Mr. Engineer's other main ground of appeal is that talak only applies in
the case of a Mahomedan marriage. The answer to that seems to me to be that this
was a Mahomedan marriage, though not an ordinary one. It was validly contracted
according to Mahomedan law, which recognises the lex loci contractus as to forms
and ceremonies: Ameer Ali's Mahommedan Law, Vol. II, p. 155. It was a marriage
consistent with Mahommedan law, even on the footing that the husband by marrying
a Christian woman according to the Christian law had debarred himself from
marrying another wife.

   30. For these reasons, I hold that the learned Chief Justice's finding as to
the validity of the divorce of the petitioner by her Mahomedan husband should be
upheld. As to the other matters, which have been the subject of argument, I
agree with my learned brother and have nothing to add.