Report No. 65
III. Position After 1926
6.9. Amendments of 1926 and 1927.-
Section 2 of the Indian Divorce Act, 18691 was amended by Act 25 of 1926 and Act 30 of 1927. The effect of the amending Act of 1926, broadly stated, has been to limit the power of the Indian Courts, in respect of granting decrees for dissolution of marriage under the Act, to persons who are domiciled in India.
1. Para. 6.4, supra.
6.10. Domicile sole test.-
Now, the jurisdiction of the Indian Courts (under the Indian Divorce Act), in the matter of dissolving marriages, is expressly limited by section 2 to persons domiciled in India at the time of presentation of the petition. Therefore, if the domicile of the parties is not Indian, there can be no dissolution by the Courts1 in India.
1. (a) Wilson v. Wislon, AIR 1931 Lah 245 (Nullity);
(b)Pyatt v. Pyatt, AIR 1929 Lah 565 (1); (c)Hall v. Hall, AIR 1933 Sind 70;
(d)Walter v. Walter, ILR 10 Lah 64: AIR 1928 Lah 557;
(e) Grant v. Grant, AIR 1937 Pat 82.
6.11. Present section 2.-
Present section 2 of the Divorce Act reads-
"2. This Act extends to the whole of India except the State of Jammu and Kashmir. Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the petitioner or respondent professes the Christian religion, or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, or to make decrees of nullity of marriage except where the marriage has been solemnised in India, and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition."
6.12. U.K. Acts from 1926 to 1947.-
Certain statutes of the U.K. Parliament relevant to the above discussion may also be noted. The divorces granted in the past were validated in 1921 by an Act of Parliament.1 Under the Indian -and Colonial Divorce Jurisdiction Act, 1926,2 as amended by the Government or India (Adaptation of Acts of Parliament) Order, 1937, and the Indian and Colonial Divorce Jurisdiction Act, 1940,3 a High Court in British India, was given jurisdiction to. make a decree for a dissolution of a marriage, and other incidental reliefs in certain cases not covered by amended section 2 of the Indian Divorce Act of 1869. The law to be applied by the High Court was the English law.
Section 17 of the Indian Independence Act, 1947,4 provided that no Court in the newly created Dominion of India should have jurisdiction under the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, in or in relation to any proceedings for a decree for dissolution of a marriage (except for pending proceedings, but all Courts in India should have the same jurisdiction under the said Acts, as they would have had if the Act had not been passed, subject to any further amendment of the law, either by an Act of British Parliament or by India. The U.K. Statutes are, therefore, of no practical importance now. But they have been referred to here as illustrating the proposition that in the absence of special statutory provisions, domicile came to be accepted as the only criterion for exercising jurisdiction under the Indian Divorce Act, 1869.
1. Act of 1921.
2. Indian & Colonial Divorce Jurisdiction Act, 1926 (16 & 17 Geo. 5, C. 40).
3. Indian & Colonial Divorce Jurisdiction Act, 1926 (3 & 4 Geo. 6, C. 35).
4. Indian Independence Act, 1947 (10 & 11 Geo. 6, C. 30).