David C. Arumainayagam vs Geetha C. Arumainayagam on 23 November, 1994

    David C. Arumainayagam vs Geetha C. Arumainayagam on 23/11/1994

JUDGMENT

   Jayasimba Babu, J.

   1. This application is for direction to the respondent to hand over and
settle the immovable property of Plot No. 1151 First Block Lane 33, Anna Nagar,
Madras measuring one ground and 975 sq,. ft. in the names of the two daughters
of the applicant and the respondent--Sumangala born on 18.3.73 and Suganya born
on 17.9.74,

   2. "The Original Matrimonial Suiit No. 19/93 has been filed by the applicant
herein against the respondent under Section 10 of the Indian Divorce Act for
dissolution of his marriage with the respondent on the ground of adultery.
Applicant is a Christian, Indian Citizen resident in India and is presently
employed as Professor of Medicine at the Annamalai University at Chidambaram.
Respondent who is also a Doctor was a Hindu and had converted to Christianity
prior to her marriage with the petitioner which was solemnised at the St.
Mathais Church, Vepery Madras on 20th May, 1971, has reverted to her original
religion, and though still an Indian National is now stated to be domiciled in
England,

   3. It is not in dispute that the property which is a house was purchased by
the respondent under a registered sale deed dated 6.8.80 for a sum of Rs.
1,00,000/- with the aid of funds borrowed by her from the Madras Port Trust
while she was employed as a Doctor at the Madras port Trust Hospital. A sum of
Rs. 70,000/-, towards the consideration was paid by the Port Trust as security
for which the property had been mortgaged to the Madras Port Trust under a
mortgage deed dated 9.10.80 which was discharged in 1987. The recitals in the
sale deed show that the balance of consideration was paid by the respondent. It
is the case of the respondent that the cost of constructing the first floor was
met out of the amounts realised by her mother from the sale on 13.9.86 for a sum
of Rs. 3 lakhs of a property of which her mother was a co-owner. The respondent
has been paying the property taxes and the property stands in her name.

   The applicant has contended that he has also contributed to the acquisition
of this property. He has however failed to place any material before the Court
to substantiate his claim.

   4. The applicant however relying on Section 39 of the Indian Divorce Act,
contends that the property belonging to the wife may be directed by the Court to
be settled on the children of the marriage when a decree for dissolution of
marriage is made on the ground of adultery of the wife, and therefore, even if
the property is the exclusive property of the respondent, the Court can direct
that the property be settled on the children of the marriage.

   5. According to the applicant, the respondent has committed adultery with the
co-respondent who is also a doctor and whom she has married during the pendency
of these proceedings and therefore, the case of the applicant that the
respondent has committed adultery is made out. The Original Matrimonial Suit has
not so far been tried by this Court on merits.

   6. This Original Matrimonial Suit was filed in this Court by the applicant
herein on 25.6.93 after the applicant bad received a notice from the County
Court at Scunthrope in England, in matter 1993/B/719 which was a proceeding for
divorce instituted by the respondent under the Matrimonial Causes Act, 1973, of
U.K. on the ground that her marriage with the applicant had irretrievably broken
down and the parties had lived apart for more than five years. The respondent
has produced into Court the photo copies of the decree nisi passed by the
Scunthrope County Court in England on 9.8.93, and the subsequent decree absolute
passed by the same Court on 22.9.1993, by which the marriage between the
applicant and the respondent was dissolved by the County Court at Scunthrope in
England.

   7. The effect of that decree on these proceedings is required to be
considered at the outset in view of the submissions made for the respondent that
the marriage between the applicant and the respondent has already been dissolved
and therefore, this O.M.S. can no longer continue.

   8. The applicant has contended that the decree made by the English Court is
not a valid decree. It is submitted that the applicant had not submitted himself
to the jurisdiction of the U.K. Court. Although the applicant contends that he
sent his objections to the said proceedings to the Solicitor for the respondent
at U.K. as also to the Country Court, the applicant has not produced any record
to show that such objections had in fact reached either the Solicitor or the
English Court. The respondent has produced a letter from her Solicitors in which
it is stated that no objections were received from the respondent (applicant
herein) either by the English Court or by the Solicitors. The decree made by the
English Court is obviously an experte decree. The copy of the decree produced
does not set out the evidence on the basis of which the reason for making the
decree was made-It is however stated in the letter of the Solicitors that
evidence had been recorded before that decree was passed.

   9. Mrs. Ammu Balchandran, learned Counsel appearing for the applicant
submitted that even if the decree made by the English Court is to be regarded as
one made in accordance with the laws in force in England, nevertheless, suce a
decree in a matrimonial proceedings cannot be recognised and enforced by the
Courts in India and the decree passed by the English County Court would not
constitute res judiaata and is in fact required to be ignored altogether for the
purpose of determining the rights of the parties in these proceedings, as that
decree has been made on a ground not recognised under the Indian Divorce Act and
the applicant had not consented to such a decree being made by the English
Court.

   10. Learned Counsel for the applicant referred to and relied upon a judgment
of the Supreme Court in the case of, in this connection we wish to republish and
bring to the notice of our readers the following Editorial Note published by us
while reporting the said judgment of the Supreme Court Y. Narsimha Rao & Ors. v.
Y. Venkatalakshmi & Anr. at page 646 in 1991-2- L.W.

   The judgment which is being reported below appears to us to be indeed an
epoch-making one. The Supreme Court has, as it were, broken out of the cocoon
into which it had got enmeshed all these days, of following English Law
(whenever it has some doubt) though on occasions it was asserting as
independence (vide A.I.R. 1960 S.C. 737 at 743, Column 1, reading "Decisions of
the English Courts are not binding on Courts of India, )", and it has given to
Indian Private

   International Law a bold lead (Editor)" 'Y. Narasimha Rao and Ors. v. Y.
Venkatalakshmi and Anr. , wherein the

   Court examined the effect of a decree of divorce made by a foreign Court in
U.S.A. dissolving the marriage between two Indian Nationals and one of whom
invoked the jurisdiction of the foreign Court, against the other party to the
marriage, who was residing in India, and had not submitted herself to the
jurisdiction of the Court in U.S.A.

   11. The Supreme Court in that case examined the legal position on the
assumption that the foreign Court by its rules of jurisdiction had rightly
entertained the dispute and granted a valid decree of divorce, according to its
laws, and addressed itself as to whether even in such cases the Courts in this
country should recognise the foreign divorce decrees.

   It is useful to set out rather extensively portions of that judgment as the
law laid down therein, signifies a departure from the position that prevailed
prior to that judgment, regarding the recognition and enforcement of a decree
made by a foreign Court in their matrimonial jurisdiction and affecting the
parties who are Indian Nationals and bad been married according to the laws
inforce in India.

   Para 11 : "The rules of Private International Law in this country are not
codified and are scattered in different enactments such as the Civil Procedure
Code, the Contract Act, Indian Succession Act, Indian Divorce Act, Special
Marriage Act, etc. In addition, some rules have also been evolved by judicial
decisions in matters of status or legal capacity of natural persons, matrimonial
disputes, custody of children, adoption, testamentary and intestate succession
etc. The problem in this country is complicated by the fact that there exist
different personal laws and no uniform rules can be laid down for all citizens.
The distinction between matters which concern personal and family affairs and
those which concern commercial relationships, civil wrongs, etc. is well
recognised in other countries and legal systems. The law of former area tends to
be primarily determined and influenced by social, moral and religious
considerations, and public policy plays a special and important role in shaping
it. Hence, in almost all the countries the jurisdictional procedural and
substantive rules which are applied to disputes arising in this area are
significantly different from those applied to claims in other areas. That is, as
it ought to be. For, no country can afford to sacrifice its internal unity,
stability and tranquility for the sake of uniformity of rules and comity of
nations which considerations arc important and appropriate to facilitate
international trade, commerce, industry, communication, transport, exchange of
services technology, manpower etc. This glaring fact of national life has been
recognised both by the Hague Convention of 1968 on the Recognition of Divorce
and Legal Separations as well as by the Judgments Convention of the European
Community of the same year. Article 10 of the Hague Convention expressly
provides that the contracting States may refuse to recognise a divorce or legal
separation if such recognition is manifestly incompatible with their public
policy. The Judgments Convention of the Europe of Community expressly excludes
from its scope, (a)status or legal capacity of natural persons,

     (b) rights in property arising out of a matrimonial relationship,

     (c) wills and succession, (d) social security, and (e) bankruptcy, A
separate convention was contemplated for the last of the subjects.

   Para 12 : We are in the present case concerned only with the matrimonial law
and what the State here will apply strictly to matters arising out of and
ancillary to matrimonial disputes. The Courts in this country have so far tried
to follow in these matters the English rule of Private International Law whether
common law rules or statutory rules. The dependence on English law even in
matters which are purely personal, has however, time and again, been regretted.
But nothing much has been done to remedy the situation. The labours of the Law
Commission poured in its 65th Report on this very subject have not fructified
since April, 1976 when the report was submitted. Even the British were
circumspect and hesitant to apply their rules of law in such matters during
their governance of this country and had left the family law to be governed by
the customary rules of the different communities. It is only where there was a
void that they had stepped in by enactments such as Special Marriage Act, Indian
Divorce Act, Indian Succession Act, etc. In spite, however, of more than 43
years of Independence we find that the Legislature has not thought fit to enact
rules of Private International Law in this area and in the absence of such
initiative from the Legislature the Courts in this country have been forced to
fall back upon precedents which have taken their inspiration, as stated earlier,
from the English rules. Even in doing so they have not been uniform in practice
with the result that we have some conflicting decisions in the area.

   Para 13: We cannot also lose sight of the fact that to-day more than ever in
the past, the need for definite rules for recognition of foreign judgments in
personal and family matters particularly in matrimonial disputes has surged to
the surface. Many a man and woman of this land with different personal laws have
migrated and are migrating to different countries either to make heir permanent
abode there or for temporary residence. Likewise there is also immigration of
the nationals of other countries The advancement in communication and
transportation has also made it easier for individuals to hop from one country
to another. It is also not unusual to come across cases where citizens of this
country have been contracting marriages either in this country or abroad with
nationals of other countries or among themselves, or having married here, either
both or one of them migrate to other countries. There are also cases where
parties having married here have been either domiciled or residing separately in
different foreign countries. The migration, temporary or permanent has also
given rise to various kinds of matrimonial disputes destroying in its turn the
family and its peace. A large number of foreign decrees in matrimonial matters
to becoming the order of the day. A time has, therefore, come to ensure
certainty in the recognition of the foreign judgments in these matters. The
minimum rules of guidance for securing the certainty need not wait legislator
initiative. This Court can assemption in the modest job within the framework of
the present statutory provisions if they are rationally interpreted and extended
to achieve the purpose. It is with this intention that we are undertaking this
venture. We are aware that unaided and left solely to our resources the rules of
guidance which we purpose to lay down in this area may prove inadequate or miss
some aspects which may not be present to us at this juncture But a beginning has
to be made as best as one can, the lacunae and errors being left to be filled in
and corrected by future judgments.

   Para 14 : We believe that the relevant provisions of Section 13 of the Code
are capable of being interpreted to secure the required certainty in the sphere
of this branch of law in conformity with the public policy, justice, equity and
'good conscience, and the rules so evolved will protect the sanctity of the
institution of marriage and the unity of family which are the cornerstones of
our social life.

   Para 15: Clause (a) of Section 13 states that a foreign judgment shall not be
recognised if it has not been pronounced by a Court of competent jurisdiction.
We are of the view that this clause should be interpreted to mean that only that
Court will be a Court of competent jurisdiction which the Act or the law under
which the parties are married recognised as a Court of competent jurisdiction to
entertain the matrimonial dispute. Any other Court, should be held to be a Court
without jurisdiction unless both parties voluntarily and unconditionally subject
themselves to the jurisdiction of that Court. The expression 'Competent Court'
in Section 41 of the Indian Evidence Act has also to be construed likewise.

   Para 16 : Clause (b) of Section 13 states that if a foreign judgment has not
been given on the merits of the case, the Courts in this country will not
recognise such judgment. This clause should be interpreted to means, (a) that
the decision of the foreign Court should be on ground available under the law
under which the parties are married, and (b) that the decision should be a
result of the contest between the parties. The latter requirement is fulfilled
only when the respondent is duly served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the Court and contests the claim
or agrees in the passing of the decree with or without appearance. A mere filing
of the reply in the claim under protest and without submitting to the
jurisdiction of the Court or an appearance in the Court either in person or
through a representative for objecting to the jurisdiction of the Court should
not be considered as a decision on the merits of the case. In this respect the
general rules of the acquiescence to the jurisdiction of the Court which may be
valid in other matters and areas should be ignored and deemed inappropriate.

   Para 17 : The second part of Clause (c) of Section 13 states that where the
judgment is founded on a refusal to recognise the law of this country in cases
in which such law is applicable, the judgment will not be recognised by the
Courts in this country. The marriages which takes place in this country can only
be under either the customary or the statutory law in force in this country.
Hence, the only law that can be applicable to the matrimonial disputes is the
one under which the parties are married, and no other law. When, therefore, a
foreign judgment is founded on a jurisdiction or on a ground not recognised by
such law, it is a judgment, which is indefience of the law. Hence, it is not
conclusive of the matters adjudicated therein and, therefore, unenforceable in
this country. For the same reason, such a judgment will also be unenforceable
under Clause (f) of Section 13, since such a judgment would obviously be in
breach of the matrimonial law in force in this country.

   Para 18 : Clause (d) of Section 13 which makes a foreign judgment
unenforceable on the ground that the proceedings in which it is obtained are
opposed to natural justice, states no more than an elementary principle on which
any civilised system of justice rests. However, in matters concerning the family
law such as the matrimonial disputes, this principle has to be extended to mean
something more than compliance with the technical rules of procedure. If the
rules of audi alteram partem has any meaning with reference to the proceedings
in a foreign Court, for the purposes of the rule it should not be deemed
sufficient that the respondent has been duly served with the process of the
Court. It is necessary to ascertain whether the respondent was in a position to
present or represent himself/herself and contest effectively the said
proceedings if and when they are filed by either party. If the foreign Court has
not ascertained and ensured such effective contest by requiring the petitioner
to make all necessary provisions for the respondent to defend including the
costs of travel, residence and litigation where necessary, it should be held
that the proceedings are in breach of the principles of natural justice. It is
for this reason that we find that the rules of Private International Law of some
countries insist, even in commercial matters that the action should be filed in
the forum where the defendent is either demiciled or is habitually resident. It
is only in special cases which is called special jurisdiction where the claim
has some real link with other Forum that a judgment of such forum is recognised.
The jurisdictional principle is also recognised by the Judgments Convention of
the European Community. If, therefore, the Courts in this country also insist as
a matter of rule that foreign matrimonial judgment will be recognised only if it
is of the Forum where the respondent is domiciled or habitually and permanently
residents, the provisions of Clause (d) may be held to have been satisfied.

   Para 19 : The provision of Clause (e) of Section 13 which requires that the
Courts in this country will not recognise a foreign judgment if it has been
obtained by fraud, is self evident. However, in view of the decision of this
Court in Smt. Satya v. Teja Singh, it must be understood that the fraud need not
be only in relation to the merits of the matter but may also be in relation to
jurisdictional facts.

   Para 20 : From the aforesaid discussion the following rule can be deduced for
recognising a foreign matrimonial judgment in this country. The jurisdiction
assumed by the foreign country as well as the grounds on which the relief is
granted must be in accordance with the matrimonial law under which the parties
are married. The exceptions to this rule may be as follows :

     "(i) where the matrimonial action is filed in the Forum where the
respondent is domiciled or habitually and permanently resides and the relief is
granted on a ground available in the matrimonial law under which the parties are
married, (ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the Forum as discussed above and contests the claim which is
based on a ground available under the matrimonial law under which the parties
are married, (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the Forum is not in accordance with the provisions
of the matrimonial law of the parties".

     Para 21 : "The aforesaid rule with its stated exceptions has the merit of
being just and equitable. It does not do injustice to any of the parties. The
parties do and ought to know their rights and obligations when they marry under
a particular law. They cannot be heard to make a grievance about it later or
allowed to bypass it by subterfuges as in the present case. The rule has also an
advantage of rescuing the institution of marriage from the uncertain make of the
rules of the Private International Law of the different countries with regard to
jurisdiction and merits based variously on domicile, nationality, residence--
permanent or temporary or adhoc, forum, proper law etc. and ensuring certainty
in the most vital field of national life and conformity with public policy. The
rule further takes account of the needs of modern life and makes due allowance
to accommodate them. Above all, it gives protection to women, the most
vulnerable section of our society, whatever the strata to which they belong. In
particular it frees them from the bondage of the tyrannical and servile rule
that wife's domicill follows that of her husband and that it is the husband's
domiciliary law which determines the jurisdiction and judges the merits of the
case."

   12. Thus, the pre-requisites for recognition and enforcement of a decree in a
matrimonial matter passed by a foreign Court is the voluntary and effective
submission to the jurisdiction of the foreign Court by the respondent and the
decree being made by that Court, either on the consent freely given by the
respondent or on a ground which is recognised as a ground available to the
parties under the matrimonial law in India under which, they were married.

   13. In view of the law so laid down by the Supreme Court, the numerous
authorities cited by the learned Counsel for the respondent Mr. M.K. Kabir in
support of his submissions that the foreign judgment even if it be an Ex parte,
is a judgment to be recognised and applied by the Courts in India; that the
Foreign Court would have jurisdiction to entertain proceedings where the person
invoking the jurisdiction was domiciled within that jurisdiction; and that the
matrimonial judgment is a judgment in rem, are not of any assistance to the
respondent to contend that the decree of divorce made by the English Court is a
judgment in rent and that the same has to be recognised and enforced by the
Courts in India.

   14. Mr. M.K. Kabir referred to the decisions reported in Sankaran v. Lakshmi,
; Brijlal v. Govindan A.I.R. 1946 P.L. 192; A.I.R. 1950 P.C. 34=63 L.W. 34;
Nataraj v. Subbaraya A.I.R. 1950 P.C. 34, and Vasanth Atmaram v. Dattoba
Rajarani, in

   support of his contention that foreign judgments are binding on the Courts in
India unless they fall under exceptions contemplated under Section 13(1)(b) of
the Code of Civil Procedure. These judgments are not of any assistance to the
respondent in view of the law laid down in the case of Y. Narasimha Rao and Ors.
v. Y. Venkata-Lakshmi and Anr., . The decisions in S. Jayam. Sundar Rajaratnam
v. K. Muthuswami Kangani, A.I.R. 1958 Mad. 203 = 71 L.W. 1., Trilakchand
Choudhry v. Dayanidhi Patra, by Abdul Wazid v.

   Viswsnathan, cited and relied on by the learned

   Counsel for the respondent in support of his submission that the judgment
rendered after the opposite party is served and after evidence is recorded, is
valid and binding, is also of no assistance to the respondent as even though the
decree made by the English Court may be valid in accordance with the provisions
of the Matrimonial Cause Act, 1973 of U.K. that judgment cannot have any binding
effect so far as the Courts in India are concerned, as the respondent herein had
not submitted to the jurisdiction of the English Court and the ground on which
that decree was made is not a ground for dissolution of the marriage, under the
Indian Divorce Act.

   15. The applicant and the respondent were married according to Christian
rites at Madras. The respondent who was a Hindu converted to Christianity prior
to her marriage with the applicant. The marriage was thus one which was
solemnised under the provisions of Indian Christian Marriage Act. The law
regulating Christian marriages in India is not to be found in a single enactment
but is scattered over saveral enactments. The statutory provisions regarding the
divorce in Christian Marriages are to be found in Indian Divorce Act, The law
applicable to the applicant and the respondent in matrimonial matter is
therefore the Indian Divoice Act and the marriage can only be dessolved under
the provisions of that Act in India, and even in case the parties submit to the
juritdiction of a Foreign Court, the dissolution of the marriage can only be on
a ground recognised under Indian Divorce Act, unless the parties to the marriage
freely consent to the marriage being dissolved under the provisions of the law
administered by the Foreign Court and on that basis, the foreign Court proceed
to grant a decree for dissolution.

   16. The decree of dissolution of the marriage by the Scunthrope Country Court
was not made on the basis of any consent given by the respondent/husband who had
only been served with notice of the petition for divorce. It is the case of the
respondent that the decree for divorce was made ex parte as the husband did not
participate in those proceedings. Such non-participation cannot be regarded as
consent freely given for the divorce being made, The decree made by the U.K.
Court was on the ground of irretrievable break down of the marriage, which is
not a ground recognised by the Indian 'Divorce Act. A decree for dissolution of
marriage made by an English Court on the ground of irretrievable breakdown of
marriage cannot be regarded as one binding on the parties in India, as such a
ground is not recognised under the Indian Divorce Act.

   17. Learned Counsel for the respondent however submitted that by reason of
Section 7 of the Indian Divorce Act, the decree made by the English Court should
be recognised, as that Section makes the principles and rules applied by the
English Courts of Divorce and Matrimonial Causes, applicable to proceedings
under the Indian Divorce Act. subject to the provisions of that Act. The Supreme
Court in the case of Reynold Rajamani and Anr. v. Union of India and Anr., , has
held that mutual consent, which is not recognised as a ground under the Indian
Divorce Act for dissolution of marriage cannot be regarded as a permissible
ground for dissolution of the marriage by reason of Section 7 of the Indian
Divorce Act. Section 7 is subject to the other provisions of the Act and does
not make substantive provisions of the English Statute, part of the Indian
Divorce Act.

   18. The objection raised by the respondent to the maintainability of the
Original Matrimonial Suit and the application on the ground that the marriage
between the parties had already been dissolved by a valid decree passed by a
Foreign Court has therefore to be rejected.

   19. There is however yet another objection to the maintainability of the
proceedings. The applicant, has in his petition, stated that "the respondent is
domiciled in U.K. but is an Indian citizen and within the jurisdiction of this
Honourable Court". The respondent has also claimed that he is domiciled in U.K.
and in the petition filed before the Scunthrope County Court, she has stated in
para 3 of that petition as follows:

     "The petitioner is domiciled in England and Wales and by occupation
Chemical Pathologist and resides at Nurses Home, Lewisham Hospiled Lewisham,
London SE 13 6LH and the respondent is by occupation a Professor of Medicine and
resides, at B10 Rani Seethai Achi Housing Complex, Kumara Raja Muthiah Avenue
Annamalai Nagar, Chidambaram 608 002, India". The address given by the
petitioner in this petitioner for service of notice on the respondent is "Nurses
Home, Lewisham Hospital, Lewisham London SE 13 6LH'i. That is also the address
at which the respondent served with notice of these proceedings.

   20. The question of domicile of the respondent is of great significance for
the purpose of deciding the maintainability of the Original Matrimonial Suit
filed by the applicant herein as the jurisdiction of this Court to make a decree
for dissolution of the marriage under Indian Divorce Act can be invoked only
when both the parties to the marriage are domiciled in India at the time when
the petition is presented. The relevant portions of Section 2 of that Act reads
as under:

     "Nothing hereinafter contained shall authorise any Court to grant any
relief under the Act except where the petitioner or respondent professes the
Christian religion, or to make a decree for dissolution of marriage except where
the parties to the marriage are domiciled in India at the time when the petition
is presented".

   The requirement of Indian domicile of the parties was introduced by the
Amending Act 55 of 1926. The Statement of Objects and Reasons appended to the
Bill shows that as the English Courts had held that the power of the Courts in
India to dissolve the marriage of the Christians resident in India do not extend
to dissolving the marriage of persons domiciled in England, and the decree so
made by the Indian Courts would not be regarded as binding in U.K,. it wat
considered necessary to introduce the requirement of domicile of the parties
being in India, at the time of the petition for dissolution is presented under
the Indian Divorce Act. The requirement of domicile for maintaining a petition
for dissolution is to be found only in the Indian Divorce Act and there is no
such pre-condition under any of the other marriage laws in force in this
country. "Domicile" in different from nationality. Though the parties to the
proceedings may be citizens of India, it does not necessarily follow that they
are domiciled in India. The domicile of the petitioner is undoubtedly in India
as he resides and works in India. The domicile of the respondent though she is a
citizen of India, is no longer in India, but is in U.K. as admitted by the
petitioner/applicant and asserted by the respondent.

   21. The Supreme Court in the case of D.P. Joshi v. State of Madhya Bharat and
Anr., , has held.

     "Citizenship and domicile represent two different conceptions. Citizenship
has reference to political status of a person and domicile to his civil rights.
Domicile has reference to the system of law by which a person is governed, and
when we speak of the domicile of a country, we assume that the same system of
law prevails all over that country".

   22. As pointed out by Mr. G.G. Chesire in his Private International Law (7th
Edition):

     "It is a settled principle that nobody shall be without a domicile and in
order to make this effect in the law assigns what is called a domicile of origin
to every person at his birth, namely, to a legitimate child the domcile of the
father, to an illegitimate child, the domicile of the mother, and to a founding
the place where he is found. This prevails until a new domicile has been
acquired, so that if a person leaves the country of his origin with an undoubted
intention of never returning to it again, nevertheless, his domicile of origin
adheres to him until the actually settles the requisite intention in some other
country".

     "A person cannot have two domiciles. Since the object of the law in
insisting that no person shall be without a domicile is to establish a definite
legal system by which certain of his rights and obligations may be governed, and
since the facts and events of his life frequently impinge upon several
countries, it is necessary on practical grounds to hold that he cannot possess
more than one domicile at the same time".

   23. As regards the burden of proving the change of domicile, as pointed in
Chesire at page 151, "there is a presumption in favour of the continuance of an
existing domicile. Therefore, the burden of proving a change lies in all cases
upon those who allege that a change has occurred".

   24. The well known requisites for acquisition of a domicile are residence and
intention. Residence i n question of fact and intention may be inferred from
residences Cheshire at page 152 of the book above referred to, has observed
''this much is clear, however, that a person's residence in a country is prima
facte evidence that he is domiciled there. There is presumption in favour of
domicile which grows in strength with length of the residence. Indeed, a
residence may be so long and so continuous, that despite declarations of a
contrary intention, it will raise a presumption that is rebuttable only by
actual removal to a new place...... On the other hand, time is not the sole
criterion of domicile. Long residence does not constitute nor does brief
residence negative domicile. Everything depends upon the attendant circumstances
for, they alone disclose the nature of person's presence in a country. In short,
the residence must answer a qualitative as well as a quantitative test...".

   25. Domicile is thus mixed question of law and fact. As observed by the
Supreme Court in the case of Sunkaran v. Lakshmi,

   "domicile is a mixed question of law and fact and there is perhaps no chapter
in the law has from such extensive discussion received less satisfactory
settlement. This is no doubt attributable to the nature of the subject,
including as it does inquiry into the animus of persons who have either died
without leaving any clear record of their intentions but allowing them to be
collected by inference from acts often equivocal; or who, being alive and
interested, have a natural tendency to give their bygone feelings a tone and
colour suggested by their present inclinations. The traditional statement that,
to establish domicile there must be a present intention of permanent residence
merely means that so far as the mind of the person at the relevant time was
concerned, he possessed the 'reqisite intention. The relevant time varies with
the nature of the inquiry. It may be past or present".

   26. The traditional Private International Law assumes that the domicile of
the wife is the domicile of the husband. In the case of Mrs. Rasatta Evelyn
Attaullah v. Justin Attaullah and Anr., A.I.R. 1953 Cal. 531, it was held:

     "In determining the domicile of the parties in a proceeding for dissolution
of marriage ft is the domicile of the husband alone which is to be considered
inasmuch as a wife takes the domicile of her husband upon her marriage. The
Court has to rigidly apply the test of domicile as on the date when the
application for the dissolution of a marriage is filed. It is not open to the
Court to import considerations of personal difficulties or problems which may
arise on applying the statutory provisions".

   27. Similarly, in the case of A.I.R. 1936 Mad. 324 =43 L.W. 312 (F.B.);
Agnes, Sumathi Ammal v. D. Paul it was held, "Domicile of the wife is the
domicile of the husband and the nationality of the wife is the nationality of
the husband".

   28. The applicant in this case could have rightly contended that this
petition for dissolution of marriage is maintainable in this Court, if the
domicile of the respondent had been in India He could have also successfully
maintained the petition if the traditional concept of International Law that the
domicile of the wife follows that of the husband had remained the law enforced
by the Courts in India. The law has changed, after the judgment of the Supreme
Court in the case of Y. Narasimha Rao and Ors. v Y. Venkatalakshmi and Anr. ,
wherein the Court has held in para 21 of that judgment after formulating the
rule enunciated at para 20 of the judgment, that the rule "above all, it gives
protection to women, the most vulnerablr section of our society, whatever the
strata to which they may belong. In particular, it frees them from the bondage
of hyrannical and servile rule that wife's domicile follows that of her husband
and that it is the husband's domiciliary law which determines the jurisdiction
and ludges the merits of the case".

   29. The domicile of the wife, therefore, can no longer be regarded as the
domicile of the husband from the mere fact of subsistence of the marriage. It is
possible for the wife to have a different domicile and if she has in fact
changed her domicile, the same, must be recognised and given effect to.

   30. It is the case of the applicant himself that the domicile of the
respondent is no longer in India but is in U.K. Though the domicile is a mixed
question of law and fact, it is always open to a person to make an admission
which renders it unnecessary for the other party to prove the fact. Change of
domicile is brought about by a combination of change of residence and intention
to permanently reside in that country. As it is the common case of the applicant
and the respondent that the respondent is domiciled in U.K. the Original
Matrimonial Suit in which the applicant is filed is not maintainable and
consequently the application also is not maintainable.

   31. Mr. Kabir learned Counsel for the respondent further contended that the
application as also the petition for dissolution should be dismissed on the
ground of delay. The submission was that the alleged adultery having taken place
while the parties to the marriage were residing in Malaysia more than six years
prior to the presentation of this petition, the petitioner should not be granted
any relief in this proceedings.

   32. Learned Counsel relied upon the case of Mohinder Pal Singh v. Julwant
Kaur, , Manohar Bapajl Ramble v. Chandrawati, A.I.R. 1936 Nag. 26; and G.
Ammanna v. Mrs. Epsey Gidion Ammanna, A.I.R. 1949 Mad. 7=(1948) 61 L W. 492
(F.B.), for the prosition that long delay in instituting proceedings disentitles
the petitioner from obtaining relief of dissolution. The delay in the case of
Mohinder Pal Singh v. Julwant Kaur, was 21 years; in the case of Manohar Bapuji
Kamble v. Chandrawati, A.I.R. 1936 Nag. 26 was 7 years and in the case of G.
Ammanna v. Mrs. Epsey Gidion Ammanna, A.I.R. (36) 1949 Mad. 7 was 12 years. In
the case of Manohar Bapuji Kamble and G. Ammanna the Special Benches of the
Nagpur High Court and this Court emphasised that long delay must be
satisfactorily explained by the petitioner.

   33. The case pleaded by the applicant in this case is that during the stay of
the couple in Malaysia the respondent/wife developed intimacy with the co-
respondent. But the petitioner has not stated the year in which such
relationship developed between the first respondent and the co-respondent. It
has been further asserted by him in the affidavit subsequently filed in this
proceedings that the first respondent has married the co-respondent some time in
December 1993 The petitioner has filed a draft of Divorce petition which had
been sent to him by the wife from Malaysia in the year 1990. The present
petition for dissolution was filed in this Court in the year 1993. In the
context of these facts, it cannot be said that the period of delay is so great
as to lead to an inference of either connivance or condonation of the alleged
matrimonial misconduct. The petition is not liable to be dismissed on the ground
of delay.

   34. Learned Counsel for the respondent contended that the separate property
of the wife cannot be the subject matter of an application under Section 39 of
the Indian Divorce Act, Section 39 reads as under :

     "Whenever the Court pronounces a decree of dissolution of marriage or
judicial separation for adultery of the wife, it is made to appear to the Court
that the wife is entitled to any property, the Court may, if it thinks fit,
order such settlement as it thinks reasonable to be made of such property or any
part thereof, for the benefit of the husband, or of the children of the
marriage, or of both.

     Any instrument executed pursuant to any order of the Court at the time of
or after the pronouncing of a decree of dissolution of marriage or judicial
separation, shall be deemed valid notwithstanding the existence of the
disability of coverture at the time of execution thereof.

     The Court may direct that the whole or any part of the damages recovered
under Section 34 shall be settled for the benefit of the children of the
marriage, or as a provision for the maintenance of the wife."

   It is evident that the Section does not make any distinction between the
separate property of the wife or the property which belonged jointly to the
husband and wife. The Section on the other hand, specifically refers to the
entitlement of the wife to any property. The section is applicable to all
properties to which the wife is entitled. Exclusive property of the wife can be
the subject matter of an order under Section 39 of the Act.

   35. Section 39 of the Indian Divorce Act is a provision which stands apart
from the provision contained in the several statutes in force in the country
regulating the law of marriage and divorce. While a provision is made for
alimony in all such statutes, it is only in the Divorce Act that the property of
the wife can be made over to the children or the husband or on both in the event
of the Court granting a decree of divorce on the ground of adultery on the part
of the wife. The Section clearly is in the nature of penalty for matrimonial
offence and must be strictly construed so as not to cause hardship or injustice
to any of the parties to the marriage.

   36. Similar provision in the English Matrimonial Causes as then existing,
which was reproduced in this Act, 1869 has undergone changes in England and the
property orders to be made by the Courts in England after dissolution of the
marriage by a decree of divorce, are no longer made by way of penalty for any
matrimonial offence but to secure a Just and equitable distribution .of all the
available assets of the parties to the marriage to the members of the family
which is disrupted on account of the divorce. The provisions for such financial
settlement are to be found now in Sections 23 to 25 of the English Matrimonial
Causes Act, 1973. Section 39 of the Indian Divorce Act as also several other
provisions of the Indian Divorce Act have remained frozen, for over a century
and have failed to keep pace with the vastly changed social and economic
conditions and has ignored the fact that marriage is now regarded as a
partnership in which men as well women have equal rights and the rights of the
wife are not in any way less valuable than that of her husband.

   37. The order under Section 39 of the Indian Divorce Act can only be made at
the time or subsequent to the pronouncement of the decree of the dissolution of
the marriage or for judicial separation and only if such a decree is made, on
the ground of adultery of the wife. Any order for settlement under that Section
can only be made if the Court in its discretion considers it reasonable to
effect settlement of the property belonging to the guilty wife, for the benefit
of the children or the husband or on both. The Section does not spell out the
considerations to be taken into account in making an order and a large
discretion is vested in the Court in the matter of making an order of
settlement.

   38. Section 39 has to be applied with care and circumspection so as not to
unjustly deprive the wife of her property. It is the case of the respondent that
when the applicant returned to India from Malaysia he brought away 40 sovereigns
of gold jewellery which belonged to her besides appropriating the amounts of
fixed deposits which stood in the name of the respondent's mother and her
daughter. The applicant/husband is employed as a Professor of Medicine. He had
been employed in Malaysia for some years. The property acquired by the wife was
acquired by her out of her funds as also the funds provided by her mother and
the contribution of the acquisition of that property by the husband if any could
only have been marginal. These facts as also the fact that the children of the
marriage, both of whom are girls, are now over eighteen years of age and are now
studying in Colleges, would have to be kept in view if the occasion arises for
making an order under Section 39.

   39. The present application besides having been made in a suit which is prima
facie not maintainable is patently premature even if it is assumed that the suit
is maintainable, as the occasion for making an order under Section 39 can arise
only if, after trial is established that the wife is guilty of adultery and the
marriage has to be dissolved on that ground.

   40 It is the case of the respondent that this proceeding for divorce is only
aimed at snatching away her property, even after she had been cruelly illtreated
by the petitioner. Considering the fact that the petitioner instituted this
proceeding only after he received notice of the divorce petition filed by the
wife in the Country Court in U.K., the case pleaded by the wife that this
petition is mainly directed at her property cannot be said to be without
substance.

   41 Though the petitioner and respondent have parted company, there is no
reason to believe that the respondent as a mother is not interested in the
welfare of her daughters. In fact, it is admitted that one of the daughters in
living in this house with the respondent's mother. Respondent is evidently
interested in the welfare of her children and will no doubt keep their present
and future needs in view and suitable provide for the same. The respondent is
economically better placed than the applicant, on account of the fact that she
has been working as a Doctor in England for some years. Respondent's aged mother
is living in that house and the apprehension of the applicant that respondent
would alienate the property and thus deprive her children does not appear to be
justified.

   42. The legal position in relation to this marriage, at the present time is
most unenviable. The marriage has clearly broken down and neither party wishes
to retain the marital tie. Both the parties have invoked the Courts--the wife in
England and the husband in India for dissolution of marriage. Though the English
Court has granted a divorce that decree cannot be recognised or enforced in
India, as the husband had not submitted to the jurisdiction of the English
Court, and the ground on which that divorce was granted is not a ground for
dissolution under the Indian Divorce Act. The Court in India, though in normal
circumstances the proper forum to entertain the petition for dissolution, cannot
do so by reason of the domiciliary requirements, introduced into the Act during
the colonial era, after the English Courts had ruled with reference to British
nationals that dissolution of marriage granted under the Indian Divorce Act
would not be recognised in England unless the parties to such marriage were
domiciled in India.

   43. The domicile of the respondent in U.K., while enabling her to invoke the
jurisdiction of the Court in England, also constitutes the stumbling block for
the applicant invoking the jurisdiction of the Court in India, resulting in a
situation where the Court which can grant a decree which would be universally
recognised as valid and effective of prevented from entertaining the petition.
The requirement of domicile in the Indian Divorce Act has thus brought a wholly
unintended stalemate.

   44. While there is good reason to insist upon Indian domicile in respect of
foreign nationals moving Indian Courts for dissolution of their marriage, to
deprive Indian Courts of jurisdiction to grant the relief of dissolution to
Indian Nationals married in India in accordance with Indian Laws solely on the
ground of change of domicile by one of the parties to the marriage, does not
stand to reason. However, in these proceedings the Court is not called upon to
determine the constitutional validity of para 2 of Section 2 or Section 39 of
the Indian Divorce Act. These provisions have to be applied as they are to the
facts of the case before the Court, and the consequences flowing therefrom given
effect to.

   45. In the result, this application has to fail and is dismissed. The
Original Matrimonial Suit will now be posted before Court for passing
appropriate orders thereon.