Report No. 15
72. Course adopted as to jurisdiction.-
Section 31(1) of the Special Marriage Act and section 19 of the Hindu Marriage Act, deal with the second of the two aspects mentioned above. As for the first, there is nothing about it in section 19 of the Hindu Marriage Act, possibly because questions of marriage under that Act with persons of foreign domicile are likely to be of merely academic interest. Section 31(2) of the Special Marriage Act does deal with the first aspect to a limited extent, but it is not exhaustive of the law on the subject.
Having regard to the scope of the Indian Divorce Act, 1869, as already stated1, and to the fact that Christians form an international community, we consider it desirable to lay down the law on the subject from the points of view of both private international law and municipal law. On the former aspect, while generally adopting section 2 of the Indian Divorce Act, we have introduced a new provision under. which a decree for dissolution could also be passed in favour of a petitioner, who, being the wife, was domiciled in India before marriage, and has been residing in India for a period of not less than three years preceding the presentation of the petition.
The purpose of this enactment is to empower Indian courts to grant relief to Indian women who may marry persons having foreign domicile. As in law the wife will acquire on marriage the domicile of the husband, such a provision is necessary to clothe the Indian court with jurisdiction to dissolve such a marriage. There is, it may be mentioned, a similar provision in section 18 of the Matrimonial Causes Act, 1950.
4. Para. 69, supra.
73. Then as regards decrees for nullity of marriage, they can be made under section 2, paragraph 4, of the Indian Divorce Act, 1869, only if the marriage was solemnised in India, and the petitioner is residing in India at the time of the petition. But it is now recognised that the courts of a country have jurisdiction to grant such decrees, even though either of those conditions is absent, if at the time of the petition, both the parties1, or even the petitioner alone2, is domiciled in that country. We have accordingly enlarged the scope of section 2 of the Indian Divorce Act, by providing that decrees of nullity could be made if the parties are, or, in certain events, even the petitioner is, domiciled in India.
1. Dicey's Conflict of Laws, 6th Edn., p. 244, Rule 35; Tolstoy on Divorce, 4th Edn., p. 18.
2. De. Reneville v. De Reneville 1948, p. 100.