Report No. 65
V. Rules Applied by Courts
4.19. English law followed.-
Indian case-law on the specific question of recognition of foreign divorces it not so abundant as in England, but a perusal thereof shows that English rules are generally followed in this field. An examination of the case law indicates that it would be correct to say that, in general, Indian courts will, in matters pertaining to the field of conflict of laws, follow the view taken by English courts at common law. It may also be noted that the judgment of the Supreme Court in Satya v. Teja Singh, AIR 1975 SC 105 to which we have already referred1, contains an extensive discussion of the English law, besides various other materials. Most of the judicial decisions give primary importance to domicile in matters of status.
1. Chapter 1, supra.
4.20. A case of divorce.-
In Noorjehan Begum v. Eugena Tiscence, ILR (1942) 2 Cal 185 a Russian woman, after leaving her Russian husband in Europe, arrived in India, embraced Islam, and, on the husband's refusal to get converted to Islam, sought, under section 42 of the Specific Relief Act (1 of 1877) (the Act then in force), a declaration from the High Court to the effect that her marriage had been dissolved in accordance with her personal law. She relied, for this purpose, on a rule of Mohammedan Law under which a convert to Islam is entitled to a dissolution of his or her marriage, if on an offer by him or her, the other spouse refuses to become a Muslim.
The Court held that it had no jurisdiction to declare a marriage between parties not domiciled in India to be dissolved, and further characterised the rule of Muslim law as being neither the general law of India not in accordance with the rules of private international law. This decision shows1 that jurisdiction to divorce is not in general, assumed by Indian Courts in the absence of domicile.
1. As to jurisdiction under Indian matrimonial legislation; see chapters 5-6, infra.
4.21. Domicile material in other cases.-
Even in proceedings other than for divorce, domicile may be material. In regard to adoption, reference may be made to the decision of the Bombay High Court in Vasant v. Dattaba, AIR 1956 Born 49 and that of the Privy Council in Nataraj v. Subbrayn, AIR 1050 PC 34 (36), para. 11 (appeal from AIR 1939 Mad 693) (Section 13, Evidence Act). In both these cases, the judgments of that foreign courts relating to the declaration that the claimant in each case had been validly adopted according to the law of domicile of the widow making the adoption.
In the privy Council case, it was held that the judgment of the Court at Pondicherry, recognising the validity of the adoption as having been duly made in accordance with the law of domicile of the widow, was "to be weightly in all the matters with which it dealt" in the suit at Madras. As the appellants were not parties to the suit at Pondicherry, there was no question of res judicata. In the circumstances of the case their Lordships were of the opinion that "the French judgment has to. be regarded as strong and uncontradicted evidence". Apparently, this conclusion was reached with reference to section 12 of the Evidence Act, under which a, "transaction or instance" by which a right is exercised or asserted etc. is relevant.
4.22. Inter-State conflict of law in India and relevance of domicile.-
The question of domicile is sometimes raised in India in regard to inter-State conflict of laws also. Thus, in Lachminarain v. Fateh Bahadur, (1902) ILR 25 All 195 the question arose whether a person belonging to the Oudh Province, who was disqualified from contracting by being declared a 'disqualified proprietor' under the provisions of the Oudh Land Revenue Act (17 of 1876) could validity alienate property in the North Western Province, within the jurisdiction of the Allahabad High Court. Applying the principles of private international law and after discussing views of Dicey, Story and other writers, the High Court of Allahabad held that the incapacity under the, 'lex domicilli' extended to contracts entered into by the person concerned, even though the contract there relating to property outside the province of Oudh.
Again, in the Bombay case of Shankar Vishnu v. Maneklal Haridas, AIR 1940 Born 362 a debt incurred in Bombay was held not to be discharged under proceedings which took place in accordance with the Central Provinces Debt Conciliation Act, 1933, as the Bombay law was the proper law of the contract, and hence a discharge was not possible by a method not recognised by the proper law. To quote the observations of Beaumont, C.J. in Shankar Vishnu's case. "No doubt, the Provinces of Bombay and the Central Provinces are both parts of British India, but in my opinion, where 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 (of proper law) as foreign countries inter se".
4.23. Cases where Domicile is not material.-
There may be, on the other hand, situations where domicile is not material. Reference may in this connection, be made to the judgment of Venkatasubba Rao J. in Ratansi Morarji v. Adm. Gen. of Madras, (1938) 55 MLJ 478 (Venkatasubba Rao J.). A European lady1 became converted to the Hindu faith, married the petitioner, a Hindu, according to Vedic rites, and, when she died, was cremated according to Hindu custom. She had left an unattested Will, and the question arose in the probate proceedings, whether the testatrix was a 'Hindu'-in which case alone, the unattested will would have been valid, (Before 1927, the will of a Hindu executed in a mofussil place was valid, even if it was unattested).
The Court, answering the question in the affirmative, held that a European who becomes a Hindu, becomes also subject to the Hindu law, the test in such a case being not of domicile, but of religion. In Ratanshaw v. Bamanji, AIR 1938 Born 238 (240, 241) (N.J. Wadia J.) the plaintiff claimed land on the basis of a gift-deed from the second of a Parsi, who had died domiciled in Baroda.
The first marriage of the Parsi was dissolved by 'fargat' or 'mutual release', in accordance with a lawful custom prevalent among Parsis domiciled in Baroda. Such a divorce was not, however, recognised by the 'personal law of Parsis in British India. The court held, that for the purposes of succession to land in India, the validity of the divorce should be tested by Indian law. Of course, this decision is not directly concerned with the recognition of divorces. Indian law was applied because the land in issue was situated in India. The principle applied2 was that the "lex loci rei sitai governs exclusively the tenure, title and descent of immovable property."
1. For a discussion of the cases, see T.S. Rama Rao in (1955) 4 Ind Year Book of International Affairs, 219 (232).
2. Fenton v. Wingston, (1859) 115 RR 1062.
4.24 Domicile in one State.-
The much discussed case of Kamlabai v. Devaram, AIR 1955 Born 300 was a Bombay one. The Bombay Hindu Divorce Act, 1947 (Bombay Act 22 of 1947), allowed divorce among Hindus on certain grounds, but there was no similar Act in the State of Madhya Pradesh. A husband, resident of Madhya Pradesh, had deserted his wife, who thereupon settled in Bombay with her father. The wife sued for divorce under the Bombay Act. It was not applicable to her case, as her husband and hence she herself was 'domiciled' in Madhya Pradesh. We are not concerned with the knotty problem whether there can be domicile in a State as much. But this case shows that the concept of domicile is material.
4.25. Relevance of English law.-
The above resume of selected Indian judicial decisions in the field of divorce and in other fields of family law shows that English rules in these fields have been generally followed in India, so far as conflict of laws is concerned. It, therefore, becomes material to examine the English common law on the subject, and it is permissible to proceed on the assumption that in general, though not necessarily in every detail, the English common law would, in the absence of specific statutory provisions enacted in India on the subject, be followed by Indian courts.