Report No. 65
IV. Meaning of 'Domicile' Under The Divorce Act
6.13. Domicile as on date of petition.-
Thus, domicile is the exclusive head of jurisdiction under the Indian Divorce Act, 1869 for dissolving a marriage. It has been held1 that for the purposes of the Act, the domicile must be decided as on the date of the petition for dissolution.
1. Attaullah v. Attaullah, AIR 1953 Cal 590 (SB).
6.14. Jurisdiction in nullity.-
Jurisdiction in regard to nullity is wider under the Act. In the case of Wilson v. Wilson, AIR 1931 Lah 245 jurisdiction was exercised in regard to a petition for nullity even though the petitioner was not domiciled in India, because the marriage was solemnized in India, and the petitioner was resident in India at the time of the petition. This is permitted by section 2 of the Divorce Act. On the other hand, it was held in Pyatt v. Pyatt, AIR 1929 Lah 565 (1), that after the amendment of 1926 Indian courts had no jurisdiction under the Indian Divorce Act to dissolve the marriage of persons who are not domiciled in India.
6.15. English Statute of 1926.-
Certain problems arose in regard to the Act of 1926-the Indian and Colonial Divorce Jurisdiction Act-16 & 17 Geo. 5, Ch. 14,1 for example, the question which High Courts are competent thereunder arose. But we are not concerned with those problems. In a Sind case2, the effect of the Indian and Colonial Divorce Jurisdiction Act of 1926, was noted and it was pointed out that while High Courts established by Letters Patent could exercise certain additional jurisdiction thereunder, other courts' jurisdiction was based exclusively upon domicile, and it was expressly held that the fact that the marriage was solemnized in India, or the adultery was committed in India, was of no consequence.
1. Waller v. Waller, AIR 1928 Lah 557.
2. Hall v. Hall, AIR 1933 Sind 72 (73).
6.16. Indian law under the Indian Divorce Act as to domicile of wife.-
In determining the domicile of the parties in a proceeding for dissolution of marriage, it is the domicile of the husband alone which is to be considered, inasmuch as a wife takes the domicile of her husband upon her marriage.1
1. Attaullah v. Attaullah, AIR 1953 Cal 530 (534, 535).
6.16A. Woman's domicile.-
If the husband has deserted his wife, the original domicile of the wife is not automatically revived, and the domicile acquired by her upon her marriage does not come to an end. This is well established by a series of decisions1 in India.
1. (a) Prem Pratap v. Jasat Poleg, AIR 1944 All 97 (100);
(b) Rooke v. Rooke, AIR 1934 Boni 230;
(c) Linton v. Guderian, AIR 1929 Cal 599 (601);
(d) Sumathi Ammo! v. D. Pant, AIR 1936 Mad 324, para. 9.10 (Mocket, J. in order of reference);
(e) Neelakantan v. Neelakantan, AIR 1959 Raj 133 (134).
6.17. Act of 1948.-
We have referred to the U.K. Acts supplementing the Divorce Act.1 The only other statutory exception to the requirement of Indian domicile by a party seeking a decree for divorce from an Indian Court under the Divorce Act is provided in the Matrimonial Causes (War Marriages) Act2, which has been adopted on the lines of the similar English Act of 1944. The Act enables a wife married to a person domiciled outside India, to have the marriage dissolved or annulled on the grounds mentioned in the Indian Divorce Act3, provided (a) the marriage was solemnised during the war period (Second World War), (b) the wife was immediately before the marriage domiciled in India, and (c) the parties have not, since the solemnisation of the marriage, resided together in the country of the husband's domicile.
In addition, the parties must be Christians. If these conditions (and certain other minor requirements not material for our purpose) are satisfied, the High Court shall have jurisdiction in, and in relation to, proceeding for nullity or divorce, 'as if both parties were at all material times' domiciled in India. The proceedings will be governed by the Indian Divorce Act. The Act also provides that the validity of any decree or order made in the U.K. under the U.K. Act of 1944-which is the corresponding U.K. Act-shall, by virtue of this Act, be recognised in all courts in India.
1. Para. 6.12, supra.
2. The Matrimonial Causes (War Marriages Act, 1948) (40 of 1948).
3. The Indian Divorce Act, 1869.