Modi, J.:— This is a miscellaneous first appeal against an order of the learned District Judge, Jodhpur, dated the 2nd December, 1958, under sec. 39 of the Special Marriage Act, 1954, (No. XLIII of 1954) (hereinafter referred to as the Act of 1954) read with sec. 96 of the Code of Civil Procedure in a divorce matter.
2. The petitioner is the husband Chistopher Andrew Neelakantan. His case is that he is a citizen of India and is an officer in the Air Force of the Government of India, and has been holding the post of Wing Commander in the Air Force at Jodhpur for the past several years. It is further alleged that the petitioner and the respondent Mrs. Anne Neelakantan were married in England on the 20th February, 1955 and a copy of the certificate of marriage (Annexure I) is produced in support of this. Among other allegations, which it is unnecessary to mention at this stage, the petitioner's case further was that when he wanted the respondent to come over to India and live as his wife, she flatly refused. Consequently, the petitioner made the present application in the court of the District Judge, Jodhpur, on the 1st May, 1958, in which he prayed for a decree for the dissolution of his marriage with the respondent. It may be mentioned at once that the application for divorce is thus principally based on the ground of desertion. The learned District Judge has, by his order under appeal, dismissed this application summarily. Hence the present appeal.
3. The reason which prevailed with the learned District Judge in coming to the conclusion to which he did appears to be that he had no jurisdiction to deal with the matter under sec. 31 of the Act of 1854. The relevant portion of sec. 31 is in these terms:—
“31. Court to which petition should be made— (1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. (2)…………”
Chapter VI deals with the subject of divorce. It is admitted by the petitioner that the marriage was solemnized in England and not within the jurisdiction of the learned District Judge. It is also conceded that at no time during their marriage, the petitioner and his wife ever resided together within the jurisdiction of the said court. In these circumstances, the position seems to me to be inescapable that so far as sec. 31 of the Act of 1954 is concerned, the present application cannot lie.
4. The contention of learned counsel, however, is that the matter should not be held to be concluded by this. His submission is that it is well-established that on general principles it is the court of domicile which has or can have jurisdiction in matters of divorce. It is further argued that a woman on her marriage acquires the domicile of her husband. From this it is contended that the respondent acquired an Indian domicile in spite of the fact that she is an English woman and has never been to India. It is further submitted that the general principle being that it is only a court of domicile of the two spouses which can grant a decree for dissolution of the marriage, it would not be open to the petitioner to seek any relief in the English courts, and that if the view adopted by the learned District Judge were accepted as correct, the petitioner would be left without any remedy whatsoever, although according to sec. 27 of the Act of 1954, which according to learned counsel fully applies to the petitioner, a petition for divorce could undoubtedly be made by him under clause (b) thereof.
5. The question which emerges for determination, therefore, may be put somewhat like this:—
“whether an application for divorce by a husband domiciled in India and living within the jurisdiction of the District Judge, Jodhpur, can be made in the Jodhpur Court under the principles of Private International Law although admittedly the marriage between the parties was not solemnized within the jurisdiction of the said court, nor did the husband and wife reside at the time of the marriage or thereafter within the jurisdiction of that court as required by sec. 31 of the Special Marriage Act?”
It is to be regretted that in the decision of this interesting question, the learned District Judge did not have the assistance of any submission on the side of the respondent, and this Court also happens to be in no better situation. I have, however, given the matter my very careful and anxious consideration, and I am disposed to think that the decision of the question before me involves a consideration of the principles of private international law, as on the facts mentioned, by the petitioner, he is a citizen of India and the respondent is a national and resident of another country.
6. It is indeed well established that divorce is a matter of status. Dealing with jurisdiction over questions of status, Cheshire in his book on Private International Law, Fourth Edition, at page 107 makes the following observations:—
“If jurisdiction should not be arrogated unless it can be exercised effectively, what court is competent to entertain, for instance, a suit for divorce, for nullity of marriage, or for a declaration of legitimacy? English Law has answered this question on the principle that status is a res and that an action affecting status is an action in rem. Thus Lord Dunedin has referred to the status of marriage as follows:—
“Neither marriage nor the status of marriage is, in the strict sense of the word, a res as that word is used when we speak of a judgment in rem. A res is a tangible thing within the jurisdiction of the court, such as a ship or other chattel; A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it, to borrow a phrase, savours of a res and has all along been treatad as such.”
To discover, therefore, what rout has jurisdiction the only essential is to ascertain where this fictitious res is situated. Having no physical situation it is in general deemed to be situated in the country where the person or persons affected are comicited. Domicile is to status what local space is to a tangible thing. Thus, of course, is not entirely consistent with the principle of effectiveness, since physical presence & domicile in a country are not invariably co-existent.”
7. Again, in Dicey's Conflict of Laws, Seventh Edition, Chapter XII at page 289, it has been laid down that the principle now finally adopted by English courts is that jurisdiction in matters of divorce depends upon domicile, or, in other words, the question whether parties to a marriage ought to be divorced is one which concerns the community of the country where they live and have their legal home, and, therefore, it is the courts of the country, where the parties are so living at the time of the demand for divorce to which should be referred the question whether the marriage between the parties should or should not be dissolved.
8. This, to my mind, clearly establishes the principle that it is the court of domicile which will have jurisdiction to deal with a matter like the present. Thus again at page 103 of his book on Private International Law, Cheshire has said:—
“Thus, for instance, a husband or wife domiciled abroad is not permitted to institute a suit in England for the dissolution of marriage, since divorce jurisdiction resides exclusively in the court of the domicile.”
9. The next question which then arises is which is the court of domicile in the present case. According to the case disclosed by the petitioner, he is an Indian citizen and is domiciled in India, and further, he has been living for several years past within the jurisdiction of the district court, Jodhpur. It does seem to me, therefore, that the Jodhpur district court is the court of his domicile.
10. The next question is what is the domicile of the respondent. Now, so far as that aspect of the matter is concerned, the law seems to me to be well-settled that a woman on her marriage, whatsoever her domicile of her origin might have been, acquires the domicile of her husband. It seems as if a married woman is under a sort of a disability in the matter of domicile, and the law imputes a domicile to a woman on her marriage, and she automatically acquires the domicile of her husband. Thus Cheshire at page 360 of his Private International Law observes that it is impossible for the wife to acquire during the subsistence of the marriage a different domicile from that of her husband. That being so, it clearly seems to me to follow that the domicile of the respondent cannot be any other than the domicile of the petitioner, her husband.
11. In these circumstances, the question is which court can properly grant the kind of relief which the petitioner is seeking, assuming of course that the conditions prerequisite to the grant of such relief are otherwise fufilled. So far as I am able to think at the moment, the petitioner could not and cannot get any relief from the English courts because, on his own showing, he is domiciled in India and not in England, and yet if sec. 31 of the Act of 1954 lays down the whole law on the point of jurisdiction, the result could only be that the petitioner must be left without a remedy, however his application for the dissolution of his marriage with the respondent may be otherwise well-founded in law. I find it extremely difficult for me to accept such a position for broadly speaking every wrong should have a remedy and therefore, as at present advised, I am inclined to hold the view that, on the principles of Private International Law to which I have made reference above, the Jodhpur district court within whose jurisdiction the petitioner lives should have a proper jurisdiction, if I may say so, entertain an application such as has been made in the present case.
12. In support of the conclusion at which I have arrived above, I wish to cite a few English cases. In Wilson v. Wilson(1) a Scotchman married a Scotchwoman in Scotland, and cohabited with her in Scotland until he discovered her adultery. He then broke up his home in Scotland and settled down in England, and after having done so instituted a suit in England for the dissolution of his marriage on the ground of adultery committed in Scotland. He deposed on oath that he had left Scotland with the intention of taking up his permanent abode in England. The English court, believing his evidence held that he had abandoned his domicile of origin and acquired an English domicile, and therefore, the English court had jurisdiction to dissolve the marriage. This is how Lord Penzance who decided the case dealt with the question of jurisdiction:—
“It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable, therefore, that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws.”
13. Again, in Niboyet v. Niboyet (2), it is laid down that—
“The only Court, which on principle ought to entertain the question of altering the relation in any respect between parties admitted to be married, or the status of either of such parties arising from their being married, on account of some act which by law is treated as a matrimonial offence, is a Court of the country in which they are domiciled at the time of the institution of the suit. If this be a correct proposition, it follows that the Court must be a court of the country in which the husband is at the time domiciled; because it is incontestable that the domicile of the wife, so long as she is a wife, is the domicile which her husband selects for himself, and at the commencement of the suit she is ex hypothesis still a wife.”
I consider it unnecessary to multiply cases, and, with respect, hold accordingly.
14. Before concluding this judgment, I may briefly dispose of a point which arose during the course of discussion in this Court as to whether the petitioner was entitled to make his application under the Act of 1954 or the Indian Divorce Act of 1869, (No. IV of 1869), hereinafter referred to as the Act of 1869) applied to him. The question assumes some importance because the ground of desertion which is a good ground for divorce under the Act of 1954, is not a valid ground for divorce in the case of a petition by the husband under sec. 10 of the Act of 1869. I may point out, however, that the Act of 1954 has been given a very wide application by the Legislature and it extends to the whole of India except the State of Jammu and Kashmir and has also been given an extra territorial effect inasmuch as it applies to Indian citizens domiciled in India but who may be living outside. It may also be pointed out in this connection that the preamble of the Act shows that so far as divorce is concerned, the Act is all embracing and would govern the dissolution of all marriages irrespective of the consideration whether the marriage is of the special form envisaged in the Act and whether it has been registered under the Act or not. In this view of the matter, I can see nothing in the Act of 1954 which would exclude the application thereof to the case of the petitioner, no matter that the provisions of the Act of 1869 in this respect are somewhat narrower.
15. The result of the above discussion is that in my view the application of the petitioner should not have been thrown out summarily by the learned District Judge as it has been, and, consequently, I allow this appeal and send the case back to the learned District Judge with a direction to restore it to its original number and dispose of it in accordance with law. I may add that as the question of jurisdiction has been decided by me without having the benefit of any assistance from the side of the respondent, and the question is by no means free from difficulty or complexity, the respondent would be at liberty to raise the question of jurisdiction before the learned District Judge, if she so desires, and it would be open to the learned District Judge in that event to give his considered opinion on the point in the light of any further submissions that might be made to him in this regard. I may also add that, for the purposes of the present appeal, I have assumed that the petitioner is domiciled in India, and it would be open to the respondent also to raise a question as to that, if and when she chooses to contest the present application for divorce in the court of the District Judge. I order accordingly. The appellant will bear his own costs in this Court.