Report No. 15
Colonial jurisdiction
(1) The Indian and Colonial Divorce Jurisdiction Act, 19261 (as amended by the Indian and Colonial Divorce Jurisdiction Act, 1940)2 confers jurisdiction on Indian Courts to make decrees for dissolution of marriages where the parties to the marriage are British subjects domiciled in England or Scotland, in any case where a court in India would have such jurisdiction if the parties to the marriage were domiciled in India.
1. 16 and 17 Geo. 5, c. 40.
2. 3 and 4 Geo. 6, c. 35.
(2) The 1926 Act was passed in consequence of the decision in Keyes v. Keyes, (1921), p. 204. holding that Indian courts could not grant a divorce where the parties were not domiciled in India (even though the marriage was celebrated in India, the parties were resident in India and the acts of adultery were committed within the jurisdiction of Indian courts). The 1926 Act achieved, through an act of British Parliament, a result which, in view of the political subordination of India, could not be achieved then by Indian legislation.
(3) There are, of course, certain conditions which are applicable to a decree under the 1926 Act. The important conditions, stated briefly, are1.
(a) The grounds on which the decree may be granted should be such as those on which a decree may be granted by the High Court in England, according to the law for the time being in force in England.
(b) Relief will be given on principles and rules as nearly as may be conformable to those on which the High Court in England acts.
(c) The court cannot grant relief under the Act except in cases where the petitioner resided in India at the time of presenting the petition and the place where the parties last resided together was in India. Nor can the court dissolve a marriage on a ground of adultery, cruelty or any crime except where the marriage was solemnised in India or the adultery, cruelty or crime was committed in India.
(d) The court may refuse to entertain the petition unless it is desirable in the interests of justice that the suit should be determined in India.
1. Section 1(1), Proviso of the 1926 Act.
(4) There are certain other minor provisions which are not material for the present purpose.
(5) The 1926 Act was amended by the 1940 Act, which was enacted to remove certain doubts, and make certain modifications. Section 1 of the 1940 Act made it clear that the substantive amendments made in the English Law on divorce by the Matrimonial Causes Act, 1937 were to be taken into account by the Indian courts also while acting under the 1926 Act. Section 3 of the 1940 Act made it clear that where the wife is deserted by a husband and the pre-desertion domicile of the husband was in England or Scotland, then any change in the domicile of the husband after desertion could be disregarded for the purposes of jurisdiction under the Act. Other amendments are not material.
(6) The 1926 and 1940 Acts have not, in terms, been repealed so far. But it would seem from section 17(1) of the Indian Independence Act, 19471 that the jurisdiction under the 1926 Act can now be exercised only in respect of proceedings instituted before the "appointed day" (i.e., before the 15th August, 1947). Sections 17(1) and 17(2) of the Indian Independence Act are as follows:-
"17 (1). No court in either of the new Dominions shall, by virtue of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, have jurisdiction in or in relation to any proceedings for a decree for the dissolution of a marriage, unless those proceedings were instituted before the appointed day, but, save as aforesaid and subject to any provision to the contrary which may hereafter be made by any Act of the Parliament of the United Kingdom or by any law of the Legislature of the new Dominion concerned, all courts in the new Dominions shall have the same jurisdiction under the said Acts as they would have had if this Act had not been passed.
(2) Any rules made on or after the appointed day under sub-section (4) of section one of the Indian and Colonial Divorce Jurisdiction Act, 1926, for a court in either of the new Dominions shall, instead of being made by the Secretary of State with the concurrence of the Lord Chancellor, be made by such authority as may be determined by the law of the Dominion concerned, and so much of the said sub-section and of any rules in force thereunder immediately before the appointed day as require the approval of the Lord Chancellor to the nomination for any purpose of any judges of any such court shall cease to have effect."
[Section 17(3) (4) are not material]
1. 10 and 11 Geo. 6, r. 30.
(7) It may be of interest to note here that the 1926 and 1940 Acts were considered by the Law Commission in its Report relating to British Statutes applicable to India. The observations made are as follows:-
"(301) 1926 Indian & Colonial Divorce Jurisdiction Act (16 & 17 Geo. 5, c. 40).
1940 Indian & Colonial Divorce Jurisdiction Act (3 and 4 Geo. 6, c. 35)."
This statute (as amended in 1940) gives jurisdiction to the High Courts in India to try matrimonial causes where parties thereto are British subjects domiciled in England or Scotland.
Apparently, this jurisdiction is still beneficial to those British subjects who are coming to India for business and the like. But it is striking that this jurisdiction of our High Courts is to be governed by rules made by the Secretary of State, with the concurrence of the Lord Chancellor. [section 1(4)].
If this jurisdiction is to be maintained, it should be settled with the Government of the U.K. that the jurisdiction should be governed solely by our laws, and then we may adopt the provisions of this statute with necessary modifications".1
1. Fifth Report of the Law Commission, item 301.
(8) As these two Acts are now applicable only to proceedings pending in August 1947, they can be taken as repealed, for all practical purposes. However, a formal repeal is necessary, and the clause therefore seeks-
(a) to incorporate a saving provision in the new Act to the effect that the two Acts mentioned above shall continue to apply to pending proceedings, and
(b) to provide for a formal repeal of the two Acts.
For future, the cases of British subjects domiciled in England or Scotland and coming to India will be governed by the provisions of the new Act relevant to any other non-Indians. No special provisions will be necessary.
(9) With the proposed repeal of these two Acts, the repeal of a later Act-the Indian Divorce Act, 1945-a British Act,1 also becomes necessary. The Act was passed to validate certain proceedings for dissolution entertained by the High Court of Bombay (in relation to parties from the State of Hyderabad). It is essentially linked up with the Indian and Colonial Divorce Jurisdiction Act, 1940, and has no independent object of its own.2
1. 9 Geo. 6, Ch. 5.
2. Cf. Fifth Report of the Law Commission (British Statutes Applicable to India), item 393.
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