1. This is a husband's petition for divorce, and Mr. O'Gorman has drawn my attention to a question as to jurisdiction arising from a decision of the Judicial Commissioner of Sind in AIR 1933 Sind 70,1 in which the learned Judicial Commissioner expressed the view not only that he had no jurisdiction to divorce persons domiciled in England who last resided together in Sind, but that no other Court in India had such jurisdiction. If that view is right, it discloses a serious omission in the Indian and Colonial Divorce Jurisdiction Act 1926, but I think the view cannot be supported.
2. Under Section 1 of the Indian and Colonial Divorce Jurisdiction Act 1926, a High Court in India to which Fart IX of the Government of India Act applies (and that would include this High Court) shall have jurisdiction to make a decree for the dissolution of a marriage, and give incidental relief, where the parties to the marriage are British subjects domiciled in England or Scotland, in any case where a Court in India would have such jurisdiction if the parties to the marriage were domiciled in India. So I have to see whether a Court in India would have jurisdiction if the parties were domiciled in India. They are in fact domiciled in Scotland. The difficulty arises-from the fact that by an amendment to the Indian Divorce Act of 1869 which was passed in 1926, in the definition of a “High Court” is included these words—“In Sind the Chief Court of Sind”. Apart from those words there is no doubt, I think, that this Court would have jurisdiction to divorce persons domiciled in India and residing in Sind. In fact there is no Chief Court of Sind, and there may be a question whether the reference to the Chief Court of Sind, which does not exist, takes away from this Court jurisdiction previously vested in it. However, apart from that point, it seems to me clear that having regard to the definition of “District Judge” in S. 3, Cl. (2), and the provisions of S. 10 of the Act, a District Court in Sind would have jurisdiction to divorce the parties if they were domiciled in India. That being so, there is a Court, in India which has jurisdiction, and therefore in my opinion under Section 1 of the Indian and Colonial Divorce Jurisdiction Act, this Court has jurisdiction to divorce persons domiciled in England or Scotland who reside or last resided together in Sind.
3. With regard to the evidence, the case clearly establishes adultery on the part of the wife. She has written a letter to her husband admitting that she stayed with the co-respondent in Bombay at the Taj Mahal Hotel on 1st September 1936. That fact is corroborated by the reception clerk and the floor waiter has identified the photograph of the wife as being the lady who occupied the bed-room at the Taj Mahal Hotel on that night with a man who was not the petitioner. There will therefore be a decree nisi with costs against the co-respondent and custody of the children.
D.S/R.K
4. Decree nisi ordered.