Report No. 224

Amendment of Section 2 of Divorce Act 1869 Enabling Non-domiciled Estranged Christian wives to seek Divorce

I. Introduction

1.1 The Law Commission was requested by the Government of India in the Ministry of Law and Justice (Department of Legal Affairs) to examine the suggestion of the Madras High Court contained in its Order dated 17.11.2008 in Indira Rachel v. Union of India [W.P. No. 12816 of 1995] that suitable amendment of Section 2 of the Divorce Act 1869 be considered,videtheir DO letter No. A-60011/25/2009- Admn.III(LA) dated 30.03.2009.

1.2 Section 2 of the Divorce Act 1869, which provides for the extent of the Act as well as the power to grant relief generally, reads:

"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,

and 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 solemnized 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."

1.3 The Divorce Act 1869 can also be invoked to dissolve Christian marriages performed outside India.1 However, this Act does not confer jurisdiction on the Indian courts to dissolve Christian marriages of non-domiciled parties.2 Further, 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.3

1. A.G. Gupte, Law of Marriage and Divorce, 1st edition, Premier Publishing Company, Allahabad (2007), p. 1049

2. H.K. Saharay, Laws of Marriage and Divorce, 5th edition, Eastern Law House, Kolkata (2007), p. 368

3. R.E. Attaullah v. J. Attaullah, AIR 1953 Cal 530

1.4 Paragraphs 4 and 5 of the aforesaid Order of the Madras High Court read:

"4. The learned counsel appearing for the petitioner submitted that if Section 2 of the Act is given a literal interpretation, it would mean that the courts in India will be unable to entertain the proceedings for dissolution of the marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented.

He apprehends that if a literal meaning is given, it would mean that unless both the parties are domiciled in India at the time of presentation of the petition, the Courts shall be unable to entertain such matter, which would result in grave injustice to either of the parties and it would defeat the very purpose of the Act.

To amplify the said submission, the learned counsel for the petitioner pointed out that if in a given case, either of the spouse migrates to another country on permanent basis and the question arises at that stage, such party can be considered as 'domicile' of a foreign country and therefore the party left behind in India would be left with no legal remedy. The petitioner therefore prays that in order to avoid such difficulties, section 2 of the Act has to be declared ultra vires.

5. Though the provisions of the Act can be interpreted in a literal manner, to conclude that both parties must be domiciled in India at the time of presentation of the petition, in our considered view, to effectuate the present intention of the Act, which had come into force in the year 1869, possibly, when such contingencies were not in contemplation, a purposive interpretation can be given to make it reasonable and more consistent with the principles enshrined in the Constitution.

If the aforesaid provision is construed to mean that a petition would be maintainable if at the time of presentation of the petition either party is domiciled in India, the difficulty projected by the petitioner would not arise and on the other hand, object can be achieved. Therefore, according to us, such provision should be interpreted to mean that the Courts in India shall be entitled to entertain petition for dissolution of marriage where either of the parties to the marriage is domiciled in India at the time when the petition is presented and such provision need not be construed as if both the parties must be domiciled in India at the time of presentation of the petition.

In our considered view, such an interpretation would bring it in consonance with the philosophy of the Constitution. Moreover, we suggest that in order to avoid any further controversy in the matter in different parts of the country, the Ministry of Law, the first respondent, may consider the question of making suitable amendment to the provisions in so far as Section 2 of the Act is concerned in the light of other provisions, if any, containing similar laws relating to Divorce."

1.5 Thus, it was for the Law Commission's consideration as to whether Section 2 of the Divorce Act needed suitable amendment to enable the Indian courts to entertain a petition for dissolution of a Christian marriage where husband has changed his Indian domicile and his wife is resident in India at the time of presenting the petition.