Kamlabai vs Devram Sona Bodgujar on 15 February, 1955

    Kamlabai vs Devram Sona Bodgujar on 15/2/1955

JUDGMENT

   Gajendragadkar, J.

   1. This appeal raises a short question under Section 5, Sub-section (3),
Bombay Hindu Divorce Act, 22 of 1947. The plaintiff, who is a Hindu wife,
brought a suit against her husband and prayed that the marriage between her and
the defendant should be dissolved on the ground that she had been deserted by
her husband continuously for a period exceeding four years before the date of
the suit and that on or about 18-3-1952, the defendant had married again another
wife with whom he was living.

   2. It appears that the father of the plaintiff originally belonged to Madhya
Pradesh, but he came to the State of Bombay for maintenance and has been
residing within the State of Bombay for several years before the institution of
this suit. His place of residence during this period has been Amalner, where he
is working as a millhand in a local mill. The marriage between the plaintiff and
the defendant took place in Madhya Pradesh at Fopnar in or about 1945. The
defendant has always been a resident of the village of Fopnar. Unfortunately,
this marriage has turned out to be a failure right up from the start.

   It appears that, when the plaintiff was married to the defendant, the
defendant's sister was married to the plaintiff's brother. Soon after the
marriage the defendant's sister died. Either because of this mishap or because
of circumstances which are not apparent on the record, the plaintiff has never
gone to the defendant and the defendant has never cared to persuade the
plaintiff to join him. On 18-3-1952, the defendant has married another wife, and
it is the plaintiff's case that she is entitled to claim divorce and alimony
from the defendant because she has been deserted by her husband for the period
prescribed by the statute and that she is entitled to the same relief also on
the ground that her husband has married a second wife.

   When the plaintiff applied to the learned District Judge at Dhulia under
Section 5, Sub-section (3) for leave to sue her husband before the learned
District Judge, her request was rejected. The learned District Judge held that
in the present case he would have no jurisdiction to grant any relief to the
plaintiff and so it would not be competent to him to grant her relief to sue her
husband in his Court. It is this order which is challenged before us by Mr.
Kotwal on behalf of the plaintiff, and that is the genesis of the short question
which arises before us under Section 5, Sub-section (3).

   3. Mr. Kotwal contends that the order passed by the learned District Judge
refusing leave to the plaintiff to sue the defendant in his Court is plainly
inconsistent with the provisions of the said sub-section. Section 5 of the Act
deals with Courts in which suits under the Act can be instituted. Sub-section
(1) provides that every suit under this Act shall be instituted in the Court
within the limits of whoso jurisdiction the defendant resides at the time of the
institution of the suit. Sub-section (2) provides that, where the defendant
shall at such time have left the State or his whereabouts are unknown, such suit
shall be instituted in the Court at the place where the plaintiff and the
defendant last resided together.

   It would be noticed that under Sub-section (1) it would be open to the
plaintiff to sue in the Court within whose jurisdiction the defendant resides.
That would he the normal procedure to adopt in filing such suits. Where the
defendant has left the State or his whereabouts are unknown, liberty is given to
the plaintiff to sue in the Court at the place where the husband and wife last
resided together. The present case does not fall under either of these two sub-
sections.

   Sub-section (3) provides that, in any case, whether the defendant resides in
the State or not, such suit may be brought in the Court at the place where the
plaintiff resides or at the place where the plaintiff and the defendant last
resided together, if such Court, after recording its reasons, grants leave so to
do. This sub-section is clearly intended to provide facilities for the
institution of a suit under this Act to the plaintiff and the granting of such
facilities is left to the discretion of the Court. The plaintiff may sue either
at the place where the plaintiff himself or herself resides, or at the place
where the husband and wife last resided together, and the fortum can thus be
chosen by the plaintiff whether or not the defendant resides in the State,
provided of course that while granting leave the Court records its reasons for
so doing.

   Mr. Kotwal argues that, if this sub-section is literally construed, it would
clearly justify the claim for relief which the plaintiff had made before the
learned District Judge. When a claim is made for leave under Section 5, Sub-
section (3), it is no answer to the claim, says Mr. Kotwal, that the defendant
did not reside or never resided in the State. Leave can be granted even where
the defendant does not reside in the State, and so Mr. Kotwal's contention is
that the learned Judge was in error in not granting leave to the plaintiff
solely on the ground that he would not be able to give relief to the plaintiff
on the merits.

   4. In dealing with the provisions ' of Section 5, it is necessary to bear in
mind that the effect of these provisions is to amend the corresponding
provisions contained in Section 20, Civil P. C. Under the provisions of Section
20, the suits to which the said section applies have to be instituted in a Court
within the local limits of whose jurisdiction the defendant or each one of the
defendants resides at the time of the commencement of the suit or carries on
business or personally works for gain; or any of the defendants, where there are
more than one, at the time of the commencement of the suit, actually; and
voluntarily resides, or carries on business or personally 'works for gain; or
the cause of action, wholly or in part, arises. It would be clear that the
provisions of Sub-section (3) are intended to modify the procedural law which is
laid down in Section 20 of the Code. Wherever the marriage may have taken place
and wherever the defendant may be residing at the commencement of the suit, it
would be open to the plaintiff to ask for leave to begin his or her action in
the Court within whose jurisdiction the plaintiff himself or herself resides or
within whose jurisdiction the husband and wife last resided together. Therefore,
it may be conceded that on a literal construction of the provisions of Section
5, Sub-section (3), it may be that the plaintiff was entitled to make a request
for leave to sue the defendant in the Court of the District Judge at Dhulia.

   5. But, in my opinion, it would clearly be wrong to give effect to this
literal construction of the provisions of Section 5, Sub-section (3), Section 5,
Sub-section (3), undoubtedly enables the Court to grant leave for reasons to be
recorded in the manner mentioned by the said sub-section. But when "Section 5,
provides for the institution of suits in certain specified Courts, it
necessarily postulates that the suits to be filed in these Courts would and
could be entertained by the respective Courts. In other words, it is clear that
the whole scheme of the Act is to make provisions in respect of marriages
amongst Hindus to which the Act applies. If the provisions of the Act do not
apply to the marriage of the plaintiff, it would be idle for her to request the
Court to grant her leave to sue the defendant; and leave, even if it is granted,
would be wholly ineffective if the marriage between the plaintiff and the
defendant fails outside the provisions of this Act.

   It is because the learned District Judge held that the marriage between the
plaintiff and the defendant was outside the provisions of this Act and that the
plaintiff was not entitled to claim any relief under any of the provisions of
this Act against the defendant, that he refused to give leave to the plaintiff;
and so the question of substance which we have to consider is whether the
learned District Judge was right in holding that the provisions of the Bombay
Hindu Divorce Act, 1947, did not apply to the marriage between the parties
before him. If the answer to this question is in favour of the defendant, the
learned District Judge was clearly right in refusing to grant leave to the
plaintiff under Section 5, Sub-section (3).

   6. The question as to whether the provisions of this Act will apply to the
marriage between the parties in the present suit does not, in my opinion,
present 'any difficulty. It would be platitudinous to say that the Bombay
Legislature, when it enacted this Act in 1947, was fully conscious and must be
deemed to have been fully conscious of its territorial limits within the meaning
of Section 99, Government of India Act, 1935. It is perfectly true that in a
sense the Bombay Legislature was sovereign in respect of the topics mentioned in
the Provincial or Concurrent list and it was competent to the Bombay Legislature
to legislate on the subject of marriage. But the territorial limits are
inexorable and the Bombay Legislature could never have intended to legislate on
the topic of marriage so as to make the provisions of its statute applicable to
marriages outside the territorial limits of Bombay. It would, therefore, be
obvious that the Bombay Hindu Divorce Act applies, and is intended to apply,
only to marriages between Hindus where the parties to the marriage are and can
be governed by the laws passed by the Bombay Legislature.

   Mt. Kotwal contends, that in considering this matter, regard must he had to
the fact that the plaintiff has always been a resident of the State of Bombay;
and that no doubt is true. But, on the other hand, the defendant has never been
a resident of Bombay and the marriage between the parties has taken place
outside the limits of the State of Bombay. So far as the husband is concerned,
he has never been governed by the laws of the Bombay State; and so far as the
marriage between the defendant and the plaintiff is concerned, since it did not
take place within the limits of the Bombay State, but it took place within the
limits of the Madhya Pradesh State, the marriage itself would not be governed by
the provisions of this Act. Mr. Kotwal contends -- and perhaps may be, with some
force -- that there cannot be two domiciles in respect of citizens of India, and
be, therefore, resists the application of any principle which is based on
considerations of domicile.

   Whether or not the Constitution of India permits a plea of dual citizenship
and dual domicile to be raised, in dealing with questions pf the application of
laws passed by different States it would, we think, be permissible to take
resort to the theory of domicile, though the different domiciles to which resort
would be taken may, in a sense, be fictitious. In -- 'Shankar Vishnu v. Maneklal
Haridas', AIR 1940 Born 362 (A), a Division Bench of this Court had to consider
a similar question. Beaumont C. J., who delivered the judgment of the Bench,
observed that where questions arise as to whether incidents of a contract should
be governed by the law of one country or of another, the general rule is that
all the rights and incidents arising under the contract are governed by the law
of the place where the contract was made; and where, therefore, the law of one
Province of British India is distinct from, the law of another province, the two
provinces must be regarded, for the purposes of this rule, as analogous to
foreign countries. The conflict of laws which posed this problem before the
Division Bench in 'Shankar's case (A)', arose from different laws in respect of
the conciliation of debts due by the debtors mentioned in the two Acts and this
Court held that the question as to which law applies to a particular transaction
would have to be decided on the basis that the two Provinces which have passed
somewhat conflicting laws are, for the purpose of deciding the application of
the law to a particular transaction, in the position of foreign countries.

   In my opinion, it would be permissible to apply this principle while deciding
the question as to the law which governs the marriage between the parties before
us. It cannot be disputed that on marriage the wife takes the domicile of her
husband; and it is common ground that the husband has always been a resident of
Madhya Pradesh and not of the State of Bombay. Therefore, it seems to me that
the learned District Judge was right in holding that the marriage between the
plaintiff and the defendant could not claim the protection of the Bombay Hindu
Divorce Act, 1947.

   7. If that be so, it would serve no useful purpose whatever to grant leave to
the plaintiff to sue n this State. When Section 5, Sub-section (3) provides for
the granting of leave, to the plaintiff to sue at the place chosen by her, it
postulates that the Court where the suit is intended or proposed to be filed has
jurisdiction to deal with the merits of the dispute. In other words, Courts that
are contemplated by Section 5 for the purpose of institution of suits under this
Act must have inherent jurisdiction to deal with the disputes themselves; they
must have inherent jurisdiction to pass appropriate orders & give effect to the
several provisions of the Act. Where it appears that the substantive provisions
of the Act do not apply to the marriage between the parties, it is no good
invoking Section 5, Sub-section (3) and relying upon the literal construction of
its provisions for the purpose of obtaining leave to bring a suit which must
obviously be regarded as an infructuous and entirely misconceived suit. It has
been observed by the Privy Council in -- 'Le Mesurier v. Le Mesuricr', 1895 AC
517 (B), that (p. 528);

     "....a decree of divorce a vinculo, pronounced by a Court whose
jurisdiction is solely derived from some rule of municipal law peculiar to its
forum, cannot, when it trenches upon the interests of any other country to whose
tribunals the spouses were amenable, claim extra-territorial authority."

   If this principle is applied to the facts before us, in the light of the test
laid down by Beaumont C. J. to which I have just referred, the answer
unambiguously must be that the Court at Dhulia would have no jurisdiction to
grant relief on the merits of the claim made by the plaintiff in the present
suit.

   8. Mr. Kotwal, however, contends that the mere fact that the marriage between
the parties took place outside the limits of the Bombay State would, not mean
that the marriage is not governed by the provisions of the Bombay Hindu Divorce
Act. In the present case we are not dealing with a marriage between two Hindus
who were normally residents of the State of Bombay but who chose to solemnise
their marriage outside the limits of Bombay State. We are dealing with a
marriage between the plain-tiff, who is a resident of Bombay, and the defendant
who was never a resident of Bombay. If this distinction is borne in mind, it
would not be difficult to hold that the decision in -- 'Dorabji Rustomji Madon
v. Jerbai', 16 Bom 136 (C), on which Mr. Kotwal purports to rely, does not
really assist his contention.

   Birdwood J. had, in this case, to consider the question as to whether the
provisions of the Parsi Marriage and Divorce Act, 15 of 1865, were applicable to
the marriage between a Parsi husband and his Parsi wife, where the marriage
between the parties had taken place at Akola in the Berar, which was a foreign
country in those days. The statute with which the Court was concerned was an
all-India statute. Even so, its provisions did not extend to the Berar and the
argument urged before Bird-wood J. was that since the marriage itself had taken
place outside the limits of India, the provisions of the Parsi Marriage and
Divorce Act could not be invoked in respect of [his marriage.

   Birdwood J. rejected this contention and held that the jurisdiction of the
Court was not barred merely by the circumstance that the parties were married at
Akola. In fact, Section 30 of the Act expressly provided that its provisions
would apply to marriages wherever they were celebrated. Besides, it is necessary
to remember that the parries to the marriage were both domiciled within the
territorial jurisdiction of this Court at the time of the marriage and were
still so domiciled at the time of the suit and the adultery complained of was
also committed within the jurisdiction of this Court. In other words, the
parties to the marriage were residing in a territory which was within the
territorial jurisdiction of the Court, and it is clear that in tenns the parties
to the marriage were governed by the provisions of the Act, and that the cause
of action had accrued within the territorial limits of the Court itself.

   The only fact on which reliance was placed for excluding the application of
the provisions of the said Act was that the marriage had taken place outside the
limits of India; and the answer to the plea was provided by the tenns of Section
30 itself. It was the case of a marriage which otherwise was governed by the
provisions of the Act and the decision merely said that the fact that the
marriage took place at a place outside the limits of India, cannot succeed in
excluding the application of the provisions of the said Act. In my opinion, this
decision cannot afford any assistance to Mr. Kotwal in the contention which he
has raised before us.

   9. Therefore, we must hold that the marriage between the parties is entirely
outside the provisions of this Act and so the learned District Judge was right
in refusing leave to the plaintiff to sue the defendant in his Court.

   10. Mr. Kotwal has no doubt drawn our attention ,to the hardship from which
the plaintiff would suffer on the view that we are disposed to take. Mr. Kotwal
points out that the plaintiff has always been a resident of the State of Bombay
and, as such, she is entitled to claim the benefit of the Act. That no doubt is
one aspect of the matter. But there is another aspect of this matter which
cannot be ignored. The husband was never governed by the provisions of this Act
and the marriage that took place between die parties in Madhya Pradesh was a
marriage which must be deemed to have been solemnised under the provisions of
the ordinary personal law applicable to the parties in Madhya Pradesh. That is
not to deny that the plaintiff may have to suffer some hardship. But such
hardships in rare cases are the inevitable consequence of provincial legislation
in regard to a subject which is all-India in character.

   The Bombay Legislature may well claim to have taken long strides in the
matter of legislation for social reform. But where social reform is intended to
be made in personal law governing Hindus all over the Union of India, until
legislation on an all-India basis is undertaken, cases of such hardship cannot
perhaps be avoided. Therefore, however much we may sympathise with the hardship
of the plaintiff to which Mr. Kotwal invited our attention we do not see how it
would be possible to hold that in circumstances of this case the marriage
between the plaintiff and the defendant can attract the provisions of the Act.
If that be so, it would serve no useful purpose whatever to grant leave to the
plaintiff to sue in the Court of the District Judge at Dhulia.

   11. The order passed by the learned District Judge must, therefore, be
confirmed, and the appeal dismissed. There would be no order as to costs.

   Shah, J.

   12. This appeal raises a question of some importance as to the jurisdiction
of the Courts in the State of Bombay to grant decrees for dissolution of
marriage under the Bombay Hindu Divorce Act of 1947, when the marriage has been
solemnised outside the State of Bombay and the husband is domiciled at a place
not within the Bombay State. It is not disputed that the marriage between the
plaintiff and the defendant took place at a village Called Fopnar in Madhya
Pradesh. The defendant, who is the husband, has always lived at Fopnar and is
domiciled in Madhya Pradesh. The father of the plaintiff was originally a
resident of Madhya Pradesh, but has migrated to the Bombay State - and for the
last several years has been residing at Amalner in the East Khandesh District.
The marriage having taken place at Fonnar, and the defendant being a resident of
Madhya Pradesh, the domicile of the plaintiff must follow the domicile of the
husband, and the law which governs the parties in their matrimonial relations is
the law prevailing in Madhya Pradesh. But the plaintiff has filed this suit
relying upon the provisions of the Bombay Hindu Divorce Act, 1947, which in
terms is extended to the whole of the State of Bombay but not elsewhere.

   13. The plaintiff claims that because she resides within the State of Bombay
she is entitled, relying upon the provisions of Section 5, Sub-section (3),
Bombay Hindu Divorce Act, 1947, to file a suit against the defendant for a
decree for dissolution of marriage even though the defendant is not a resident
of the State of Bombay and under the law of domicile of the defendant a decree
for divorce cannot be granted by the Courts. The learned trial Judge refused to
grant permission to the plaintiff to file the suit because in his view the
marriage between the plaintiff and the defendant was not governed by the law of
the State of Bombay.

   Now, there is no doubt as to the rule of International law which applies to
the Courts in the exercise of jurisdiction to dissolve marriages between spouses
domiciled in another country. In 1895 AC 517 (B), the Privy Council, in deciding
an appeal from the Supreme Court of Ceylon, observed that (p. 528):

     ".... .a decree of divorce a vineulo, pronounced by a Court whose
jurisdiction is solely derived from some rule of municipal law peculiar to its
forum, cannot, when it trenches upon the interests of any other country to whose
tribunals the spouses were amenable, claim extra-territorial authority.' .

   That rule is not challenged before us. But it is contended that the rule can
only apply to those cases where the domicile of the parties is in a foreign
country. It is urged that, where the dispute is sought to be litigated in a
Court of the country in which the parties are domiciled, the rule enunciated by
the Privy Council in 'Le Mesurier's case (B)', will have no application, even
though the personal law applicable in the place where the parties are domiciled
is different from! the personal law applicable in the area in which the Court is
functioning. In other words, it is urged that when the Bombay Hindu Divorce Act,
1947, has conferred jurisdiction upon the Courts functioning in the State of
Bombay to grant relief in certain specified circumstances for divorce or
dissolution, of marriage, which may not he granted by Courts functioning in
other parts of the country, exercise of that jurisdiction is not conditioned by
the parties having a domicile within the territory over which the Legislature of
the State of Bombay has authority to legislate.

   Now, it is true that by Sections 3 and 4, Bombay Hindu Divorce Act
jurisdiction is conferred upon Courts in the State of Bombay to pass decrees for
divorce and judicial separation in respect of marriages between parties who are
Hindus within the meaning of the Act. There is also no express provision in the
Act which prohibits the Courts from granting decrees for dissolution of marriage
on the ground that the parties have a domicile outside the State of Bombay. But
the Bombay Hindu Divorce Act is a special legislation which applies to a certain
class and though legislation has been enacted by a Legislature, which, within
its domain supreme in respect of certain matters, is not competent to legislate
beyond tbe limits of the Bombay State.

   The Bombay Legislature is obviously not competent to enact laws having force
outside the State. If the argument advanced on behalf of the plaintiff, that the
Courts in the State of Bombay have, irrespective of the question of the
defendant's domicile, jurisdiction to dissolve the marriage because the
plaintiff is resident within the limits of the State of Bombay, is accepted, we
would have the anomalous result that the marriage between the plaintiff and the
defendant would be dissolved within the State of Bombay, but not dissolved
outside the State, and especially in Madhya Pradesh where the defendant has his
domicile.

   In my judgment, in order that a Court authorised under the Bombay Hindu
Divorce Act, 1947, can pass a decree for dissolution of marriage, it must be
established that the spouses are amenable to the matrimonial jurisdiction of the
Court. In this case, it cannot be said that the plaintiff and the defendant are
amenable to the jurisdiction of the Courts in the Bombay State which exercise
jurisdiction peculiar to those Courts under a statute which has no extra-
territorial operation.

   Strictly speaking, the rules of private international law apply when there is
conflict of laws of different sovereign States. But there is authority for the
proposition that where the law in one province in India is different from the
law in another province, the two provinces must be regarded as analogous to two
sovereign, states (See AIR 1940 Bom 362 (A)).

   14. Strong reliance was sought to be placed by the plaintiff upon Section
5(3) of the Act in support of the plea that the District Court has jurisdiction
to hear the suit. In my judgment, that provision only confers territorial
jurisdiction upon certain Courts and is intended only to amend Section 20, Civil
P. C., which, but for that provision, would have applied by the operation of
Section 12 of the Act to suits filed for divorce or for judicial separation.
Under the Civil Procedure Code, except where the suit relates to land or is one
of the suits mentioned in Section 19, a suit can be filed either at the place
where the defendant or one of the defendants resides, or where the cause of
action or a part of the cause of action arises. But the Legislature has enabled
a spouse to file a suit, even if the defendant has left the State or his
whereabouts are not known, in the Court of the place where the spouses have last
resided together; and in other cases, with the leave of the Court, whether the
defendant has resided in the State or not, in the Court within the jurisdiction
of which the plaintiff is residing, or at the place where the plaintiff and the
defendant had last resided together. Section 5(3) of the Act does not confer
upon the Courts jurisdiction over all marriages irrespective of the domicile of
the husband. Jurisdiction conferred by Section 5 of the Act is only territorial
in character. When the Court is otherwise competent to try the suit, the
territorial jurisdiction of the Court will be determined by Section 5.

   15. Appeal dismissed.