Isharani Nirupoma Devi vs Victor Nitendra Narain on 24 June, 1925

    Isharani Nirupoma Devi vs Victor Nitendra Narain on 24/6/1925

JUDGMENT

   Gregory, J.

   1. In this case the petitioner sues for a dissolution of her marriage with
the respondent on the ground of his cruelty and adultery. The respondent has
entered appearance under protest, and in his answer denies these charges and in
the alternative pleads condonation. He takes objection to the jurisdiction of
this Court to entertain the petition on the ground that he is a foreign subject
domiciled in Cooch Behar; he also denies that he was residing within the
appellate jurisdiction of this Court when, the petition was presented, and it is
consequently contended that the petition cannot be entertained by this High
Court. After taking evidence bearing on the question of jurisdiction, I
intimated to the parties that, in my opinion, this Court has jurisdiction. The
petitioner's case then proceeded on the merits but the respondent took no
further part in the proceedings.

   2. The respondent is a member of the Cooch Behar family and his marriage with
the petitioner was contracted in Calcutta on the 18th April, 1916, under the
Special Marriage Act (III of 1872). There is issue of the marriage, two sons;
the elder Nidhendra Narayan born in July, 1917, and Gautam Narayan born in
August, 1918. Between 1916 and 1923 the petitioner and respondent lived at
Darjeeling, Ranchi, Cooch Behar and Calcutta. The correspondence indicates that
in 1923 there was trouble brewing; matters went from bad to worse and ultimately
in or about March, 1924, it was arranged between the parties that the petitioner
should have a separate residence provided for her in Calcutta. This arrangement
was carried out by the petitioner renting a house in Lansdowne Road, Calcutta,
where she lived with her children. Though the parties separated, letters that
passed between them show there was further friction on account of the children;
the elder boy had been ill, and the petitioner and the respondent apparently
held different views as to the advisability of their being sent to Darjeeling.
On the 12th August, 1924, the respondent took both the children from the
petitioner's custody and took them to Darjeeling. The petition in this case was
filed on the 26th August, 1924, when the respondent was living at Darjeeling.

   3. I shall first deal with the question of jurisdiction and state my reasons
for the view that I have already intimated that this Court has jurisdiction to
entertain this petition. I shall then deal with the question whether the
respondent was residing within the appellate jurisdiction of the Court when the
petition was filed, and finally, with the charges on which the petition is
based.

   4. The contention that the Court has no jurisdiction inasmuch as the
respondent has a foreign domicile is founded on the authority of the case of
Keyes v. Keyes (1921) P. 204 : 90 L.J.P. 242 : 124 L.T. 797 : 65 S.J. 435 : 37
T.L.R. 499; and the point involves the construction of the Indian Divorce Act
and of the Indian Councils Act, 1861. On behalf of the petitioner it has been
argued that residence is the basis of jurisdiction under the Indian Divorce Act,
and that as the parties were married under the provisions of the Special
Marriage Act (III of 1872) which provides that the Indian Divorce Act shall
apply to all marriages contracted under it, and that such marriages may be
dissolved in the manner therein provided and for the causes therein mentioned,
the question of domicile does not enter into this case at all. I cannot take
this view of the matter since the argument raised does not meet the objection
that the Indian Divorce Act is ultra vires of the Indian Councils Act. It will
be necessary, therefore, to examine and decide this question.

   5. I think, it is correct to say that before the decision in 1921 in the case
of Keyes v. Keyes (1921) P. 204 : 90 L.J.P. 242 : 124 L.T. 797 : 65 S.J. 435 :
37 T.L.R. 499 the jurisdiction of the Courts in India to make decrees of
dissolution of marriage on the basis of residence, and irrespective of the
domicile, of the parties, has never been questioned. Such decrees have
consistently been made since the Indian Divorce Act was passed. In the case of
Giordano v. Giordano 20 Ind. Cas. 512 : 40 C. 215 : 17 C.W.N. 491, the parties
had an Italian domicile Jout were residing in India. Fletcher, J., held that
case proved, the Court was bound to grant a divorce although it would have no
effect outside India; and reported cases show that the validity of Indian
decrees has not been challenged by the Courts in England. The cases of Thornton
v. Thornton (1886) 11 P.D. 176 : 55 L.J.P. 40 : 54 L.T. 774 : 34 W.R. 509,
Warter v. Warter (1890) 15 P.D. 152 : 59 L.J.P. 87 : 63 L.T. 250 : 54 T.P. 631
and In re Norton's Settlement (1908) 1 Ch. 471 : 77 L.J. Ch. 312 : 99 L.T. 257
may be cited as instances.

   6. In Keyes v. Keyes (1921) P. 204 : 90 L.J.P. 242 : 124 L.T. 797 : 65 S.J.
435 : 37 T.L.R. 499 the President of the Court of Divorce held that the Courts
in India have no jurisdiction to decree dissolution of a marriage between
parties not domiciled in India. This ruling was not necessary for the purpose of
deciding that case, but the decision of the President has occasioned a conflict
of judicial opinion. In Wilkinson v. Wilkinson 77 Ind. Cas. 654 : 47 B. 843 : 25
Bom. L.R. 945 : A.I.R. 1923 Bom. 321 it was held by Macleod, C. J. and Martin,
J., Crump, J. dissenting, that the Indian Divorce Act did not confer
jurisdiction on Indian Courts to decree dissolution of marriage between parties
domiciled in England, and the decision in Jones v. Jones 79 Ind. Cas. 719 : L.R.
705 : A.I.R. 1924 Rang. 193 is to the same effect. On the other hand, the Full
Bench of the Lahore High Court in Lee v. Lee 81 Ind. Cas. 686 : 5 L. 147 :
A.I.R. 1924 Lah. 513 adopted the opposite view which was also taken by Pearson,
J., in Miller v. Miller 89 Ind. Cas. 611 : 52 C. 566 : A.I.R. 1925 Cal. 874
which was an undefended case and by Chotzner, J., in Gillies v. Gillies Mat.
Suit No. 1 of 1924 (unrep.) also an undefended case not yet reported. So far as
the decision in Keyes v. Keyes (1921) P. 204 : 90 L.J.P. 242 : 124 L.T. 797 : 65
S.J. 435 : 37 T.L.R. 499 is concerned, I do not regard it as clearly deciding
that on its construction the Indian Divorce Act does not confer the jurisdiction
on the Courts in India, or that Indian decrees are invalid outside India. I
regard the decision that the Indian Courts have no jurisdiction, to be based on
the view that the Indian Councils Act, 1861, did not warrant the making of a law
empowering Courts in India to decree dissolution of marriage in cases where the
parties, are not domiciled within their jurisdiction. It is contended on behalf
of the respondent, that having regard to the rule of English Law as ultimately
laid down in the case of LeMesurier v. LeMesurier (1895) A.C. 517 : 64 L.J.P.C.
97 : 72 L.T. 873 : 11 R. 527, the decision in Keyes v. Keyes (1921) P. 204 : 90
L.J.P. 242 : 124 L.T. 797 : 65 S.J. 435 : 37 T.L.R. 499 ought to be followed in
the present case, and the Indian Divorce Act construed subject to limitations,
in order to avoid the consequences following on decrees of Indian Courts not
receiving recognition outside India, and in support of this principle of
construction the case of Macleod v. Attorney-General of New South Wales (1891)
A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox. C. C. 341 was referred to.

   7. The two broad questions raised in the present case are: (1) whether the
Indian Divorce Act confers jurisdiction on the Courts in India to make decrees
of dissolution of marriage in cases where the parties are not domiciled in India
and (2) if so, whether the Act is to that exent ultra vires of the Indian
Councils Act, 1861.

   8. Section 2 of the Indian Divorce Act is in these terms: "Nothing shall
authorise any Court to grant any relief under the Act except in 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 marriage except in
the following cases: (a) where the marriage shall have been solemnised in India;
(b) where the (matrimonial offences mentioned) shall have been committed in
India or (c) where the husband has, since the solemnising of the marriage,
exchanged his profession of Christianity for some other form of religion."
Section 10 sets out the causes for which any husband or wife may petition for
dissolution of the marriage to the District Court or High Court. "High Court" is
defined in Section 3 as being one of the Courts referred to within the local
limits of whose ordinary appellate jurisdiction, or of whose jurisdiction under
the Act, the husband and. wife reside or last resided together. The next
important section to consider is Section 7. That section is, in these words:
"Subject to the provisions contained in this Act, the High Courts and District
Courts shall, in all suits and proceedings here under, act and give relief on
principles and rules which, in the opinion of the said Courts, are, as nearly as
maybe, 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.

   9. Following the argument of Counsel in Keyes v. Keyes (1921) P. 204 : 90
L.J.P. 242 : 124 L.T. 797 : 65 S.J. 435 : 37 T.L.R. 499 it was suggested on
behalf of the respondent in the present case that the word "reside" in Section 2
should not be construed to mean reside in its ordinary sense, by reason of the
provisions of Section 7, and that the word should be construed as equivalent to
"domiciled". This Construction does not appear to have been adopted by the
President in Keyes v. Keyes (1921) P. 204 : 90 L.J.P. 242 : 124 L.T. 797 : 65
S.J. 435 : 37 T.L.R. 499 and as pointed out by Marten, J., in Wilkinson v.
Wilkinson 77 Ind. Cas. 654 : 47 B. 843 : 25 Bom. L.R. 945 : A.I.R. 1923 Bom.
321, if such a construction were accepted, it would prevent the Court from
exercising jurisdiction to grant decrees for judicial separation where the
parties reside, but are not domiciled, within the jurisdiction. Moreover, it
would not be possible to attach the meaning suggested, to the word "reside"
occurring in the definition of High Court in Section 3. In my opinion, the word
" reside" must be construed in its ordinary sense in Section 2 of the Act, and
taking it in this sense, it is clear that residence is the one and only
condition (apart from the Christian faith of the petitioners) which is expressly
prescribed for general jurisdiction, as well as for jurisdiction to make decrees
of dissolution of marriage.

   10. The argument raised that Section 27 of the Matrimonial Causes Act makes
no express provision for domicile as the basis of jurisdiction although under
the Law of England domicile is the foundation of jurisdiction, would have more
force had the English Statute contained a provision for residence to found
jurisdiction. In Jogendra Nath Banerjee v. Elizebeth Banerjee 3 C.W.N. 250, it
was held that the Indian Legislature made residence and not domicile the test of
the Court's authority to grant a divorce, and that the departure from the test
of domicile was deliberate. In this connection I would also refer to Dicey's
Conflict of Laws (3rd Edition, page 345) in support' of the same proposition.

   11. The contention that the Indian Divorce Act does not confer jurisdiction
to dissolve the marriage of persons not domiciled in India is based on the
provisions of Section 7 of the Act. This section, as noticed before, requires
the Court to act on principles and rules which are, as nearly as may be,
conformable to those on which the Court in England acts in matrimonial causes
and the contention is that Section 7 imports by implication the element of
domicile as the foundation of jurisdiction. I am unable to take this view of the
object and scope of Section 7. The only express condition laid down for
jurisdiction is contained in Section 2, and it is residence. The terms of
Section 2 point to this condition being one of general application to all
persons; and to read P. 7 as importing a different basis of jurisdiction in the
case of persons having an English or, foreign domicile is to qualify the
provisions of the Act, and make them subject to the provisions of Section 7.
Such a construction is opposed to the opening words of that section. The
decisions in Bailey v. Bailey 30 C. 490n and Ramsay v. Boyle 30 C. 490, which
are to the same effect, are authorities against the view contended for that
Section 7 controls the jurisdiction of the Court. In both of these cases the
question arose whether the Court had the same jurisdiction under Section 11,
read with Section 7, as the Court in England had under Section 28 of the
Matrimonial Causes Act; namely to allow a person with whom the husband is
alleged to have committed adultery to intervene and be made a respondent It was
held by Jenkins, J., in the first mentioned case, and by the Court of Appeal in
the second, that the Court had not the jurisdiction; there was no express power
given under Section 11 such as Section 28 of the English Act contained, and
Section 7 did hot operate to confer the jurisdiction. In discussing the meaning
of the words "rules and principles" Jenkins, J., expressed himself in these
words: "It appears to me clear the expression ' rules and principles' does not
apply in support of the applicants' contention here. They point rather to the
rules and principles on which the Court deals with these matrimonial causes in
requiring a certain degree of evidence and other cognate matters." The question
what constitutes cruelty may be instanced as a matter that would fall within the
scope of Section 7, and this question was considered in the case of Russell v.
Russell (1897) A.C. 395 at p. 444 : 66 L.J.P. 122 : 75 L.T. 249 : 61 J.P. 756
according to the principles and rules of the Ecclesiastical Courts upon which
the Court had to act in view of the provisions of Section 28 of the Matrimonial
Causes Act. Section 7 of the Indian Divorce Act is modelled on Section 28 of the
English Act. The conclusion I arrive at is that residence is the basis of
jurisdiction and that all Christian persons residing in India stand on a common
ground in relation to that jurisdiction under the Indian Divorce Act. The
provisions of Section 7 are subject to the provisions contained in the Act, and
the section does not operate to import domicile as the foundation of
jurisdiction in respect of cases where the parties have a non-Indian domicile.
I, therefore, hold that the Indian Divorce Act, on its construction, empowers
the Courts in India to make decrees of dissolution of marriage, though the
parties be not domiciled in India.

   12. I pass on to the further question whether this jurisdiction was within
the legislative powers vested in the Governor-General in Council by the Indian
Councils Act, 1861. The Indian. Divorce Act was passed by the Indian Legislature
under the legislative authority conferred by the Indian Councils Act, 1861 (24 &
25 Vict. c. 67). Section 22 of this Act is in these words: "The Governor-General
in Council shall have power...to make laws and regulations for all persons,
whether, British or native, foreigners or others, and for all Courts of Justice
whatever, and for all places and things whatever within the Indian territories
now under the dominion of Her Majesty...provided always that the said Governor-
General in Council shall not have the power of making any laws or regulations
which may affect the authority of Parliament, or the constitution and rights of
the East India Company, or any part of the unwritten laws or constitution of the
United Kingdom of Great Britain and Ireland, whereon may depend in any degree
the allegiance of any person to the Crown of the United Kingdom, or the
sovereignty or dominion of the Crown over any part of the said territories." The
Privy Council in the case of Empress v. Burah 4 C. 172 : 5 I.A. 178 : 3 C.L.R.
197 : 3 Sar. P.C.J. 834 : 3 Suth. P.C.J. 556 : 2 Ind. Jur. 618 : 2 Shome L.R. 63
: 2 Ind. Dec. (N.S.) 110 : (1878) 3 A.C. 889 (P.C.) considered the scope of the
powers of the Indian Legislature conferred. by the Act of the Imperial
Parliament (24 & 25 Vict. c. 104) which passed in the same sessions with the
Indian Councils Act and in the judgment of the Privy Council Lord Selborne laid
down the rule of construction for the guidance of Courts. That rule is binding
on this Court and on account of its importance in the present case, I quote it
at length: "The Indian Legislature has powers expressly limited by the Act of
the Imperial Parliament which created it, and it can, of course, do nothing
beyond the limits which circumscribe these powers. But, when acting within these
limits, it is not in any sense an agent or delegate of the Imperial Parliament,
but has, and was intended to have, plenary powers of legislation, as large, and
of the same nature, as those of Parliament itself. The established Courts of
Justice, when a question arises whether the prescribed limits have been
exceeded, must of necessity determine that question; and the only way in which
they can properly do so, is by looking to the terms of the instrument, by which,
affirmatively, the legislative powers were created, and by which, negatively,
they are restricted. If what has been done is legislation within the general
scope of the affirmative words which give the power, and if it violates no
express condition or restriction by which that power is limited (in which
category would, of course, be included any Act of the Imperial Parliament at
variance with it), it is not for any. Court of Justice to enquire further, to
enlarge constructively those conditions and restrictions." Matrimonial
jurisdiction was conferred in 1861 on the High Courts by Section 9 of 24 & 25
Vict. c. 104, an Act for establishing High Courts of Judicature in India and the
Indian Divorce Act was passed in 1869. Applying the rule in Burah's case 4 C.
172 : 5 I.A. 178 : 3 C.L.R. 197 : 3 Sar. P.C.J. 834 : 3 Suth. P.C.J. 556 : 2
Ind. Jur. 618 : 2 Shome L.R. 63 : 2 Ind. Dec. (N.S.) 110 : (1878) 3 A.C. 889
(P.C.), this legislation by the Indian Legislature comes affirmatively within
the scope of the powers created by Section 22 of the Indian Councils Act, 1861,
and it does not violate any express condition or restriction contained in the
proviso to Section 22. The learned President in Keyes v. Keyes (1921) P. 204 :
90 L.J.P. 242 : 124 L.T. 797 : 65 S.J. 435 : 37 T.L.R. 499, however, considered
that the enacting words in Section 1 22, taken by themselves in their ordinary
meaning, could not be deemed to warrant the making of laws by the Indian
Government to interfere with the status of subjects of the Crown, not domiciled
in India, and that the principles enunciated in the cases of Shaw v. Gould
(1868) 3 H.L. 55 : 37 L.J. Ch. 433 : 18 L.T. 833 : 148 R.R. 214 and LeMesurier
v. LeMesurier (1895) A.C. 517 : 64 L.J.P.C. 97 : 72 L.T. 873 : 11 R. 527, were
material in determining whether upon the true construction of the Indian
Councils Act, 1861, power was conferred to legislate for British subjects so as
to affect their Status as to marriage in the country of their domicile. I
venture to express it as a reasonable view of the cases decided between 1861,
when the Indian Councils Act was passed, and 1895 when the rule of English Law
relating to the basis of divorce jurisdiction was finally laid down in
LeMesurier v. LeMesurier (1895) A.C. 517 : 64 L.J.P.C. 97 : 72 L.T. 873 : 11 R.
527, that there was during that period no clear and definite rule that was
consistently followed by the Courts in England. In Brodie v. Brodie (1861) 2 Sw.
& Tr. 259 : 30 L.J. Mat. 185 : 4 L.T. 307 : 9 W.R. 815 : 104 E.R. 995 the
parties had their domicile in Australia where the wife was residing at the time
of the suit. It was considered that the bona fide residence of the husband in
England gave the English Court divorce jurisdiction over him and also over his
wife although she continued to reside in Australia. In Shaiu v. Gould (1868) 3
H.L. 55 : 37 L.J. Ch. 433 : 18 L.T. 833 : 148 R.R. 214 it was held that a
foreign tribunal had no authority so far as any consequences in England were
concerned, to pronounce a decree of divorce a vinculo in the case of an English
marriage between English subjects, unless they were domiciled in the country
where that tribunal had jurisdiction. In this case Lord Westbury held that a
foreign Court could settle the conditions on" which it would exercise its
jurisdiction, and that on those conditions being fulfilled, it might exercise
that jurisdiction, but that the judgment could not claim extra territorial
authority, unless pronounced in accordance with the rules of international
public law. Lord Colmsay favoured the view that a decree of dissolution of
marriage passed in Scotland on a bona fide residence for a considerable period
in Scotland, though not changing the domicile for all purposes, must be
recognized in England. It is to be noticed that the facts in this case were
strongly emphasized in all the judgments, so much so that Lord Chelmsford stated
that his opinion was founded entirely upon the peculiar circumstances attending
the case. The divorce in Scotland, he said, had been obtained by pre concerted
arrangement, the parties resorting to the Scotch Courts for the sole purpose of
making it instrumental to the attainment of their objects. In Wilson v. Wilson
(1872) 2 P. & D. 435 : 41 L.J. Mat. 74 : 27 L.T. 351 : 20 W.R. 891 the parties
were Scotch and were married in Scotland. The husband abandoned his domicile pf
origin, and acquired an English domicile and instituted a suit for dissolution
of his marriage. It was objected that the English Court had no jurisdiction as
the parties were married in Scotland, lived in Scotland and the adultery took
place in Scotland; in short the parties were really domiciled in Scotland.
Though Lord Penzance expressed it as his opinion that matrimonial matters should
be referred to the Courts of the country of the domicile, he did not decide the
question whether any residence in England short of domicile would give the Court
jurisdiction over parties whose domicile was elsewhere, but said that this was a
question upon which the authorities were not consistent. The next case is that
of Nihoyet v. Nihoyet (1879) 4 P. & D. 1 : 48 L.J.P. 1 : 39 L.T. 486 : 27 W.R.
203 which came before the Court of Appeal. The respondent, the husband, had a
French domicile but resided in England. It was held by James and Cotton, L.J.J.,
Brett, L.J., dissenting, that the English Court had jurisdiction to grant a
divorce. As Marten, J., in Wilkinson v. Wilkinson 77 Ind. Cas. 654 : 47 B. 843 :
25 Bom. L.R. 945 : A.I.R. 1923 Bom. 321 observes, the Court could not have
regarded the case of Shaiv v. Gould (1868) 3 H.L. 55 : 37 L.J. Ch. 433 : 18 L.T.
833 : 148 R.R. 214 as clear authority that, a bona fide residence was not
sufficient to give jurisdiction. Finally, in 1895 the rule, which has since been
settled law of England, was laid down in LeMesurier v. LeMesurier (1895) A.C.
517 : 64 L.J.P.C. 97 : 72 L.T. 873 : 11 R. 527 that the domicile of the parties
within the country is necessary to give to its Courts jurisdiction so to divorce
a vinculo as that its decree to that effect shall possess extra territorial
authority.

   13. Having regard to the above cases, it is not possible to say that when the
Indian Councils Act, 1861, was passed and for over 30 years afterwards until the
decision in LeMesurier v. LeMesurier (1895) A.C. 517 : 64 L.J.P.C. 97 : 72 L.T.
873 : 11 R. 527, the Courts; of England were acting definitely or consistently
on, the principles enunciated in 1868 and 1895, and I am unable to take the view
that the decision in Shaw v. Gould (1868) 3 H.L. 55 : 37 L.J. Ch. 433 : 18 L.T.
833 : 148 R.R. 214 and LeMesurier v. LeMesuriar (1895) A.C. 517 : 64 L.J.P.C. 97
: 72 L.T. 873 : 11 R. 527 should be relied on to construe Section 22 of the
Indian Councils Act of 1861. The conclusion to which I have come is that the
jurisdiction conferred by the Indian Divorce Act on the Courts in India to make
decrees of dissolution of marriage on the basis of residence, is not restricted
to the cases of persons domiciled in India, and that this jurisdiction is not
beyond the authority given by the Indian Councils Act. With all the respect due
to the high authority of the President, I have found myself unable to follow the
decision in the case of Keyes v. Keyes (1895) A.C. 517 : 64 L.J.P.C. 97 : 72
L.T. 873 : 11 R. 527.

   14. Lastly, it is contended that assuming there is jurisdiction, the Courts
ought not to make decrees which will be of no effect outside the territorial
limits of their jurisdiction. I think, however, that as. their decrees are valid
and operative within British India, the Courts are bound to exercise their
jurisdiction if the conditions and requirements prescribed by the Indian Divorce
Act are satisfied and this was the view expressed by Fletcher, J., in Giordano
v. Giordano 20 Ind. Cas. 512 : 40 C. 215 : 17 C.W.N. 491.