Report No. 15
We shall now deal with questions relating to jurisdiction and procedure under the proposed Act. The provisions of the Indian Divorce Act, 1869, relating to jurisdiction fall under two categories: (1) Section 2 prescribes the conditions on which the court could pass decrees under the Act, such as for dissolution of marriage, for nullity and so forth, (2) The Act further specifies in the several sections relating to the different kinds of action, the courts in which they could be instituted. These two categories have reference to two distinct aspects of jurisdiction.
The former views the question from the standpoint of private international law, the latter from that of municipal law. Dealing first with the former, a Sovereign State can enact laws providing for the conditions on which its courts could grant relief by way of decree for divorce or nullity of marriage, and the decrees passed by the courts acting within the authority conferred by these provisions will be valid and enforceable within its territories.
But when the status of the parties to such a decree becomes the subject-matter of a dispute in a proceeding between them in another State, the question arises whether courts of that State are bound to recognise that decree. That is a matter regulated by rules of private international law, and recognition of decrees passed by one State has not seldom been refused on the ground that it is not in accordance with the accepted rules of private international law, with the result that "a man and woman are held to be man and wife in one country, and strangers in another"1.
1. Vide Le Mesurier v. Le Mesuier, 1895 AC 517; Vide also Mountbatten v. Mountbatten, (1959) 1 AER 99.
70. Section 2 of the Indian Divorce Act, 1869, as it stood prior to its amendment in 1926, provided that the court could pass a decree of divorce if the parties to the action resided within the jurisdiction of the court at the time of the presentation of the petition. But it is a rule of private international law, well-recognised, that a decree of dissolution of marriage could be passed by the courts of a country only if the parties thereto had the domicile of that country at the time of the application1.
In enacting that divorce could be granted if the petitioners were residing within jurisdiction at the time of the petition, irrespective of domicile, section 2 went beyond the bounds recognised by private international law, and in Keyes v. Keyes and Gray, 1921, p. 204 it was held that a decree of an Indian court dissolving a marriage of persons of British domicile could not be recognised in England. As a result of this decision, the British Parliament had to enact a law validating the decrees of Indian courts, and the Indian legislature passed an amendment Act2 so as to bring section 2 in accordance with the rules of private international law.
Under section 2, as amended, decrees for dissolution of marriages could be made only if the parties are domiciled in India at the time of the petition; decrees for nullity-if the marriage was solemnised in India and the petitioner was residing in India at the time of the petition; and other decrees-if the petitioner was residing in India at the time of the petition.
1. Vide Rule No. 31 in Dicey's Conflict of Laws, 6th Edn., p. 216 and rule No. 71, p. (368).
2. Act 25 of 1926.