Report No. 65
II. Position Before 1926
6.2. Section 2, Divorce Act.-
The principal provision of the Act, relating to the conditions to be satisfied for the exercise of jurisdiction, is in section 2. Before the amendment of the section in 1926, there was no restriction under the Act that the parties should be domiciled in (British) India, in order that the court may grant a divorce. Residence in British India was enough. After its amendment, the section does insert such a requirement. We shall deal with section 2 in detail, later.1
1. See paras. 6.4 and 6.11, infra.
6.3. Section 45, Divorce Act.-
Section 20 of the Code of Civil Procedure, 1908, which is the general provision as to venue in personal actions, brings in the test of either residence on the part of the defendant or the accrual of the cause of action or part of it within the jurisdiction of the Court, in order to enable the Court to entertain the suit. However, section 45 of the Indian Divorce Act, which makes the Code of Civil Procedure applicable, expressly makes it 'subject to the provisions herein contained'. We need not, therefore, discuss the provisions of the Code of Civil Procedure as to jurisdiction.
Thus, in determining questions as to the jurisdiction of the Court to entertain a matrimonial suit, no reference can be made to section 20 of the Code of Civil Procedure, 1908, even if that section can be construed as dealing with proceedings having a foreign element. Jurisdiction to entertain a matrimonial suit between Christians, is to be decided solely by a reference to sections 2 to 4 of the Indian Divorce Act. This position seems to have been accepted for a long time.
6A. Provision in Indian Divorce Act, 1869 before amendment of 1926.-
Section 2 of the Indian Divorce Act (before its amendment in 1926), so for as is material, was in these terms:
"2. Nothing hereinafter contained shall authorise any Court to grant any relief except in cases where the petitioner professes the Christian religion, and resides in India at the time of presenting the petition."
or to make decree for dissolution of marriage except in the following cases:
(a) where the marriage shall have been solemnized in India, or
(b) the adultery complained of shall have been committed in India."
6.5. Previous cases.-
Some of the cases on this section decided before 1926 laid down that residence was enough under the Act to confer jurisdiction on the court to try suits for dissolution of marriage.1
1. (a) Giordano v. Giordano, 1912 ILR 40 Cal 215;
(b) Warwick v. Warwick, 64 PR 1900.
6.6. Test of domicile.-
Before the amendment1 of 1926, thus, the view taken by Courts in India was that they could dissolve the marriage of spouses who were not domiciled in India. The result was, that the dissolution of a marriage by Indian Courts, of parties not domiciled in India, was valid so far as Indian statutory framework was concerned, but it had no effect on the status of the ,parties in the country of their domicile. This gave rise to a deplorable state of affairs, and to "scandals" of the nature mentioned by their Lordships of the Privy Council in the concluding sentence of their judgment in Le Mesurier v. Le Mesurier, 1895 AC 517 (PC).: "the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another."
1. Vide amending Act 25 of 1926.
6.7. Keyes v. Keyes, and its criticism.-
The question of recognising such a divorce, granted in India, arose in England. Sir Henry Duke, president of the Probate Division, decided in Keyes v. Keyes, 1921 Probate 204 that the Courts administering the divorce law in India had no jurisdiction to decree dissolution of a marriage where the parties were not domiciled in India. He also decided that the Indian Councils Act, 1861, did not warrant the making of a law by the Indian Legislature to empower Courts in India to decree dissolution of the marriage of persons not domiciled within their jurisdiction.
That decision was discussed in several reported cases in India1-2 It was pointed out that it would have been enough for the Court in Keyes v. Keyes to say that since Le Mesurier v. Le Mesurier, 1895 AC 517 (PC) or, at any rate, since Bater v. Bater, 1906 Probate 209 the jurisdiction to decree dissolution of marriage depends, according to English law, upon the domicile of the parties, and that as the domicile of the parties in Keyes v. Keyes was English, English Courts would not recognise, as valid in England, a decree pronounced by a Court in India whose jurisdiction was based on a principle-that of the residence of the parties at the time-which according to English law was not accepted as conferring jurisdiction.
In fact, in an early part of the judgment, the President said: "The petitioner has brought this suit to determine the validity at any rate in England, of the decree made at his instance in India." It was therefore, the extra-territorial validity of the Indian decree that was primarily in question in the suit. It was not necessary to go further to the extent of enquiring whether the power conferred by the Indian Councils Act, 1861, had been exceeded in enacting the Indian Divorce Act, 1869.
However, the decision in Keyes v. Keyes had the effect of rendering vulnerable, in England, the validity of many divorces granted by Indian Courts between parties who were resident, though not domiciled, in (British) India. This position was dealt with later by legislation, to which we shall refer in due course3. That legislation changed the basis of jurisdiction by substituting domicile for residence. As to the past, validating legislation was also enacted4.
1. Wilkinson v. Wilkinson, AIR 1923 Born 321.
2. Lee v. Lee, AIR 1924 Lah 513.
3. Para. 6.9, infra.
4. Para. 6.12, infra.
6.8. Courses open to High Courts after Keyes v. Keyes.-
After the decision in Keyes v. Keyes, 1921 Probate 2041 there were three courses open to the High Courts in India-
(a) to follow the decision in Keyes v. Keyes that the Indian Legislature had no power to give the Courts jurisdiction to grant decrees for dissolution of marriage to non-domiciled parties; or
(b) to hold that the Indian Legislature had the power, but had not exercised it; or
(c) to hold that the Indian Legislature had the power, and had exercised it. For some time, uncertainty and conflict prevailed as to which of these courses should be adopted. The position was clarified by the Indian Legislature, by amending section 2 of the Act.2
1. Para. 6.7, supra.
2. Para. 6.9, infra.