Report No. 65
III. Indian Law
3.13. Decisions under the Indian Law.-
As regards Indian law, we shall first refer to the Act applicable to Christians. There are numerous decisions under the Indian Divorce Act, 1869, where the courts in India have granted divorce on the basis of a ground specified in that Act, irrespective of the question whether that ground was, or was not, recognised as a ground of divorce in some other country having a connection with the marriage, such as, the country where the marriage was solemnised1, or where the matrimonial misconduct took place2 or the country of the nationality of the parties3.
1. Rose Hill's case, (para. 3.14, infra).
2. Nan Greenwood's case, (para. 3.14, infra).
3. Giordano's case, (para. 3.15, infra).
3.14. A study of the following illustrative cases under the Indian Divorce Act relating to divorce or judicial separation, shows that the grounds of relief were taken as entirely governed by the Indian law, even though a foreign element was involved. Existence of the requisite head of jurisdiction was considered enough.
Selected Cases on the Indian Divorce Act
1. Hartencia v. John Sebastian, AIR 1935 Bom 121 (Beaumont, C.J.).
(Parties lived in Bombay together-Then went to Nairobi-Wife returned to Bombay-Judicial separation granted-Foreign law not considered).
2. Rose Hill v. Luck C. Hill, AIR 1923 Born 284 (285)
(Adultery of wife on ship at Marseilles was enough to justify grant of divorce).
3. W.D. v. E.D., AIR 1933 Sind 27.
(It was observed that the parties must have been married under the 1872 Act, but this was obiter).
4. Mrs. Nan Greenwood v. L.V. Greenwood, AIR 1928 Oudh 218(1) (Pullan, J.).
(Parties not domiciled in India-Married in Ireland-Divorce granted).
5. Giordano's case, 1912 ILR 40 Cal 215 (Italian couple).1
5A. Shireen Mall2, AIR 1952 Punj 217.
6. Bright v. Bright, ILR 36 Cal 964.
7. Grant v. Grant, AIR 1937 Pat 82.
(Adultery outside India-Parties domiciled in India).
1. See para. 3.15, infra.
2. See para. 3.16, infra.
3.15. In Giordano v. Giordano, 1912 ILR 40 Cal 215 the husband was an Italian subject, with an Italian domicile, and instituted proceedings in India for divorce on the ground of his wife's adultery. The marriage had been solemnised in India, and the parties were residing in British India. (As the Indian Divorce Act then stood, residence was enough to confer jurisdiction for dissolution). It was held that under the provisions of the Indian Divorce Act, the Court was bound to grant a divorce on proof of adultery, although the divorce would have no effect outside India. It may be noted that Italy had no provision for divorce at that time.
3.16. In Shireen Mall v. Tayler, AIR 1952 Punj 277 (279) (Boni, J.) (British soldier) the respondent husband was a British soldier, though temporarily he lived in British India. The High Court observed that only the Indian law was applicable. Section 7 of the Indian Divorce Act, 1869 (Court to follow the English practice) made no difference, because it was expressly stated to be-"Subject to the provisions contained in this Act....."
The High Court added-
"Hence, if the provisions which are given in section 10 of this Act give only certain ground on which a marriage can be dissolved, I am of the view that the grounds of dissolution of marriage cannot be extended by virtue of section 7 to grounds which might be prevailing for the time being in England. I, therefore, must hold that the provisions of the amended section 176 of the Act prevailing in England (Supreme Court etc. Act, 1925), which allow dissolution of marriage on the ground of desertion of the wife by the husband without cause for a period of three years or upwards would not apply to this country. In this country, "desertion by a husband of his wife without cause would be a ground for dissolution of marriage if the desertion is for a period of two years and upwards and is coupled with adultery."
No doubt, in this case, the marriage was found to be void, but the above dicta show the trend.
317. Indian decisions.-
Thus, it is clear that in various decisions under the Indian Divorce Act, 18691, Indian courts have, while exercising their jurisdiction under that Act, confined themselves to a consideration of the grounds of divorce as given in that Act. Of course, the proceedings must be within their competence, and, in this regard, the test laid down in section 2 of the Act must be satisfied. But, once the court in India is competent to exercise jurisdiction under section 2 of the Act, then the grounds for relief are to be sought only in that Act.
1. Chapter 6, infra.
3.18. Act of 1926.-
It. may be stated that the Indian and Colonial Divorce Jurisdiction Act, 19261, empowered courts in India or elsewhere in his Majesty's dominions, as laid down by order in council, to grant divorce to persons domiciled in the United Kingdom as if they were domiciled in the territory in question. While domicile was, thus, nominally or notionally, retained as the basis, jurisdiction was exercisable on the ground of residence of the petitioner at the time of presenting his petition and of the last residence together by the parties. The substantive law to be applied was the English law. This very provision, which is exceptional in character, helps to bring out clearly the general rule.
1. Halsbury's Statutes, (2nd Edn.) 1158.
3.19. Hindu Marriage Act.-
It may, next, be noted that under the Hindu Marriage Act1, the fact that the marriage was performed outside those territories or the matrimonial misconduct took place outside those territories, is immaterial. In other words, once it is established that the parties are Hindus and are domiciled in India, the provisions of the Act relating to matrimonial relief come into play. The Act not contain any express provisions as to choice of law; but it appears that relief has to be given according to, and only according to, the provisions of the Act, if the proceedings are filed in India and if the Court in India is otherwise competent. Had the legislative intention been different, the legislature would have said so. We do not pause to discuss in detail the provisions of the Special Marriage Act and other laws; but it would be enough for our purpose to state that that Act and other laws relating to marriage and divorce, do not provide for applying a foreign law.
1. Sections 1(2), 2 and 10 to 13, Hindu Marriage Act, 1955.
3.20. Dissolution of Muslim Marriages Act, 1939.-
It may be noted that the Dissolution of Muslim Marriages Act, 1939, does not impose any restriction that the marriage to be dissolved at the instance of the wife under that Act should have been solemnised in India, or that the matrimonial misconduct which constitutes the basis of the relief sough by the wife should have occurred in India. In substance, it is enough if the parties are governed by Muslim law. It may be presumed that by "Muslim law" is meant that portion of the Islamic law which is applied in India to Muslims as a personal law.