Musstt. Ayesha Bibi v. Subodh Ch. Chakra Varty.

The Judgment of the Court was as follows:—

Ormond, J.:— This is a suit filed on the Original Side of this High Court by the Plaintiff claiming a declaration under sec. 42 of the Specific Relief Act, Act IX of 1877, that the marriage between the Plaintiff and the Defendant has been dissolved and that the Plaintiff is not the wife of the Defendant. It is an undefended suit in which the facts are simple and in a small compass, but it raises complicated questions of law, the decision of which is of far-reaching importance. Amongst these are general questions, to what extent this High Court is bound to, or entitled to, administer the personal law of the parties in a suit, where there is a question relating to marriage and on what principles also special questions relating to both Hindu and Mahomedan Law should be administered. I therefore thought it proper, that, in addition to the argument of Counsel for the Plaintiff, the Court should have also the assistance of Counsel as an amicus curiae; and on my invitation the Advocate-General, Mr. S.M Bose, was good enough to appear as an amicus curiae. Then at a later date when the Advocate-General was away from: Calcutta, when final argument on certain further points in respect of Hindu Law had arisen from the argument of Mr. S. Chowdhury for the Plaintiff, I invited Mr. S.B Sinha, a well-known Advocate of this Court who has had considerable experience in matters of Hindu Law, to appear and address me further as an amicus curiae in the matters of Hindu Law involved; and he was good enough to accede to my request. I have to thank the Advocate-General and Mr. S.B Sinha for the trouble they have gone to for the purpose of assisting the Court. I should also add that Mr. S. Chowdhury appearing for the Plaintiff has been at great pains to go through the whole matter very carefully and assist me in every possible way.

2. The Plaintiff and the Defendant were legally married according to Hindu rites at Krishnagar in the District of Nadia in Bengal on the 31st July, 1941. Both parties were then Hindu Brahmins.

3. The Plaintiff is the only child of an educated and cultured Brahmin gentleman who was previously manager in the office of the Court of Wards. He for some time lived at Krishnagar. He is the nephew of a well known Bengali author, the late Mr. D.L Roy. The Defendant, who has not appeared, is another Hindu Brahmin who lived at a village in Joyrampur in the same District; and was selected by the Plaintiff's father to be her husband. Both Plaintiff and the Defendant had lived there all their lives; as their parents had before them. The Petitioner has said in evidence, that she has no intention of living anywhere outside British India and has spoken also as to the Defendant's domicile. It is clear without any room for any suggestion of doubt that both parties were at the time of their marriage and at the time of the institution of the suit, and in fact have been all their lives, and are still, of Indian domicile. There is no question involved in this case with regard to the parties, or either of them, of any foreign domicile or any domicile other than India or any change from their Indian domicile. I have emphasised this point because there seems to be vital difference between this case and for example the case of Noor Jahan v. Eugene Tiscenko . 45 C.W.N 1047 1941. as to jurisdiction.

4. The Plaintiff was apparently little more than 15 years of age at the time of her marriage. Though her own evidence as to age would make her rather younger than that, her father, whose evidence I accept, has stated that she was over 18 years of age on the 12th September, 1944, which would make her about 15 years of age at the time of her marriage.

5. At the time of the marriage the Defendant was unemployed. The Plaintiff's father got him employment in the Krishnagar Electric Supply Co. at Krishnagar. The Defendant did not after the marriage seek to establish a household of his own. Nor did he take the Plaintiff to live with his own family. But he lived as, what is in India sometimes described as, a “ domesticated son-in-law” with his wife (the Plaintiff) in his father-in-law's house. The Defendant was in fact a man of no means of his own. The Plaintiff's father has stated in effect that he chose him as the husband of his daughter thinking, that as she was his only child, he (the father) would make a home for her and her husband; and, as he puts it, “ would keep them both with him, and train them up.” At no time after the marriage did the husband contribute anything towards the maintenance of his wife. In fact, while living with his father-in-law he paid nothing towards the cost of board and lodging either on his wife's account or on his own account.

6. The Defendant from immediately after the marriage used continuously to be demanding money from his wife, the Plaintiff. In order to get it for him, she used secretly to ask her mother. Then, as the demands increased, the Plaintiff's mother reported the true position to the Plaintiff's father. He then took strong exception to these demands, and refused further supplies. When the Defendant found that he could not obtain more money from his wife, he at once began to treat her badly. He used to abuse her and frequently strike her and kick her. Out of fear at that time she kept this ill-treatment secret from her parents.

7. In about January, 1942, about six months only after the marriage, the Defendant took his wife with him for a visit to his own family at Joyrampur. On that occasion she stayed there about 7 days. While there her husband's people, and in particular her mother-in-law, used to ask her to write letters to her parents for money. When she could not procure any money for them they treated her very badly and with cruelty, confining her in her room, and curtailing her food. After that visit her husband returned with her to her father's house. A month or two after their return, one day the husband (the Defendant) beat her or struck her so violently that she fell down senseless. Her father found her in this condition, made enquiries into the matter and then found out how badly and cruelly her husband was treating her; both as to the way in which he was harassing her for money and as to how he used to beat her. The Plaintiff has said that it was at the time of this incident that she found it was no use keeping the matter secret any longer; so she then told her father everything.

8. Towards the end of June, 1943, the Plaintiff paid a second visit with her husband to his family for the occasion of the marriage of her husband's brother. On that occasion she stayed about 8 days there. On that occasion also her husband and his family pressed her for money. When they did not get it, they began to treat her with cruelty. They beat her, and took her ornaments away from her; and turned her out of the house. She sent a message by a person who was a daily passenger to Krishnagar, to her father. Her father came at once himself; and took her away with him back to his own house. Her husband did not accompany her. He came however later soon after and suggested to her father that he (the Defendant) should take her back again to Joyrampur. But out of fear she did not agree to go with him. The Defendant stayed only the day at Krishnagar on that occasion. Since that date the Plaintiff continued to live alone with her father. And the Plaintiff and the Defendant have never lived together since.

9. It will be borne in mind that the evidence in this case being partly given in English, which the Plaintiff and her father do not habitually speak; and partly translated, certain phrases have I think in the transcript of the evidence been recorded, if not with a shade of inaccuracy at least in rather more stilted wording than actually persons would habitually use in English, when describing events of the same sort. The word, “ assaulting” has repeatedly been used in the transcript in places where I understood the witness to mean, “beating.” Those minor matters of phrasing are only such as those for which slight allowance often has to be made in the ordinary every-day business of these Courts. There is really no direct question arising in this case as to cruelty. That was why I did not take time in pursuing the matter further to have the record minutely corrected or amplified so as to clear up the exact meaning of the witnesses’ answers more precisely. I need only say, after having seen these witnesses, were it necessary for the decision of the case, I would definitely hold on the evidence given as a finding of fact, that there was ample proof of cruelty in this case, such as would constitute a matrimonial ground for divorce in any system of law in which divorce is granted for cruelty either as a sole ground or as one of other grounds. I should also have held that in view of such cruelty the Plaintiff was excused from her obligation to live with her husband, who thus has in fact deserted her at least since June, 1943. I have gone in some detail into the facts as to the relationship of the parties and also into the treatment of the Plaintiff by the Defendant, since these may have some bearing on the exercise by the Court of its discretion under sec. 42, in the event of my holding that the Court has power to make a declaration as claimed in this case; and if there is then any room for refusing the exercise of its discretion in such a matrimonial case as this.

10. On the 12th September, 1943, the Plaintiff was converted to Islam. Both she and her father as well as the Imam of the Nakoda Mosque, where she was converted, have given evidence of her conversion having taken place.

11. It has been pertinently observed by Lord Macnaughten that no Court can test or gauge the sincerity of religious belief: [Abdul Razack v. Aga Md. Jafeer Bindaneem . L.R 21 I.A 36 at p. 64 1894.]. It has also been held that in arriving at a decision, whether there has or has not been a conversion, the motives of the convert are immaterial: [see Musstt. Rashan Bibi v. Khuda Buksh . I.L.R 19 Lah. 277 1937. in particular at p. 285 and 286]. See also the several cases referred to in the judgment in that case. Reference may also be made on the subject of what amounts to religious belief and how it should be proved to In re Samuel4 and the same case on appeal to the House of Lords (4a).

12. The evidence that the Plaintiff herself considers that she has changed her religion and as to the fact of the process or rite of conversion having been performed is uncontradicted and clear. In my opinion therefore on proof of these facts alone I should hold at once that there has been an effective conversion with all the legal consequences that follow from such conversion; and I should so hold without going at all into the question of motives for the conversion or their relative religious or ethical values; and in my view it is not open to me to do so.

13. I will state nevertheless briefly the facts of the present case relating to the conversion, both as to the manner in which it was made and as to the reasons given for it by the Plaintiff herself. I do this not only in case it may be thought on a view, opposite to mine, that it was proper to examine the motives; but also in case it may be thought necessary to consider all the circumstances surrounding the conversion, which may have a bearing on the exercise by the Court of its discretion, if any question of discretion in this case arises.

14. Regarding her reasons for making up her mind to be converted, the Plaintiff has said that she had discussed matters concerning Islam with her friends. And that when she was so badly treated by her husband, and did not get any sympathy from the Hindu society to which she belonged, some of bar Muslim friends began to talk to her about their religion, and also gave her books on their religion to read. She says also that at that time she began to think furiously, that if she lived in such a state as she was in at that time, she would be a perpetual burden to her parents. Then, as she puts it, she “ came to the conclusion that in the Muslim faith and society the position of unfortunate girls like herself was not so low as that.” She says, in effect, she found that in Muslim society, there existed a sufficient degree of freedom and independence of thought and action for women. (The way in which the Interpreter has translated it is, “sufficient freedom to girls to act independently.”) She says that at first she discussed these matters concerning the Islamic religion with Muslim ladies who had been her school friends, some of whose names she has mentioned. Then afterwards she studied the religion of Islam with certain men friends of her father as well. She says that she told her mother of her intention to be converted to Islam. Her mother in her turn told her father. That her father at first objected. But after holding long discussion with her, when he found that she was adamant in her resolution, he gave his consent.

15. Her father, who gave evidence in a very straightforward manner, said that at first he hesitated and objected: but the Plaintiff told him “ straightaway “ (meaning perhaps “ straight-out”): “ you have spoilt my life once, you have no right to spoil my life any longer, you should allow me in all fairness to act according to my determination.” Ultimately he agreed. And in fact he himself took her from her home in Krishnagar to the Nakoda Mosque in Calcutta and helped her to make arrangements for her conversion; and was present with her himself at the occasion of her conversion,

16. The ceremony of conversion took place at the Nakoda Mosque in Calcutta, which is within the Ordinary Civil Jurisdiction of this Court, before the Imam of the Mosque. She went through’ certain solemn and careful formalities. She voiced her expression of the Muslim faith by reciting the Kalma Shahadat (the Muslim confession of faith) as is recorded in the certificate, a translation of which was tendered, accorded her by the Imam of the Mosque and signed by him. That itself establishes a change in religious faith, if this is to be treated at all as a matter which can be kept separate from a mere change from one social system to another. The language of the certificate was as follows:—

“No. 657. 1944 Present residence, Krishnagar. In the name of God the merciful, the compassionate, I declare to this effect that Atreyee Devi daughter of Birendra Lal Roy, age 18 years of Krishnagar, without any force or compulsion, of her own will and accord, having expressed her disgust at the Brahmania religion, renounced the same, and recited the Kalma, Shahadat (the Moslem confession of faith) and embraced the Islamic religion. The Islamic name of Ayesha Bibi has been given, to her. Musulmans should henceforth behave towards her as a Musulman, and teach her the injunctions of the Mamie religion (precepts like prayer and fasting, etc.) I have granted this sanad (certificate) that it may ibe of use in time. May the God Almighty keep her firm (in the path of religion). (Signed toy the Imam—Jamai Musjid). Nakoda Mosque, Calcutta, dated the 11th 12th the month of Ramazan year 1362 of the Hejira, 12th September, 1942. (sic).”

17. The words, “in time” obviously mean, in time of need. The translation of the copy annexed to the plaint states “so that it may come to use when necessary.” The figure 2 in the typed copy of the date is a mere clerical error for 3.

18. At the same time she also made a signed declaration, which was witnessed and signed also by a recognised official of the Mosque and registered among the records of the Mosque. A copy of this declaration is annexed to the plaint and reads as follows:—

“Declaration—I Atreyee Debi, daughter of Birendra Lal Roy, a native of Krishnagar, and of the age of 18 years, do hereby declare on solemn oath that I am neither induced or influenced nor persuded or compelled to renounce my present faith, but the teachings of Islaan having impressed upon my mind I this day 12th September, 1943, embrace the religion of Islam on my own free wiil in the presence of the Imam of Nakoda Mosque. I dot promise that for the remaining part of my life I shall lead the life of a true Muslim and I further declare from this day I shall be known by the Islamic name of Ayesha Bibi—registered in the office of the Nakoda Mosque, (Signed by the Manager, Nokada Mosque, Calcutta). (Signed by the Plaintiff in the name of Atreyee Delta) dated 12th September, 1943.”

19. It is abundantly clear from the above account of the circumstances in which the conversion took place and in view of the discussions with her friends and with her mother and father, and the long journey to Calcutta and the formalities, that the decision was no hasty unconsidered decision but one come to after due thought and with the full weight of her own intent. Although the motives were not gone into in detail in evidence, for the reasons given, it can be seen that there were varied threads of motives running through the Plaintiff's mind, which led her to take this decision. A change of theological conviction in the form of a positive spiritual or intellectual process, or a change in religious or ethical faith or belief is not in the forefront. But it may be recognised, I suppose, as common knowledge that for great masses of the people in India, Hinduism or Islam is not something dependent upon any mental process in which they have exercised their minds, involving long sustained deep theological reasoning, any more than this would be the case for most people in Europe or America. Persons capable of sustained, deep and accurate reasoning on the ethics and theology of comparative religions or who have even the fundamental basic knowledge on which to begin such mental processes are few and far between.

20. It is important, I think, to recognise also that in India the social code for conduct in society and the legal principles attaching to it both in regard to Hinduism and Mohamedanism are interwoven with, and wrapped up in, the religious side of these systems to an extent, which in many respects goes much deeper than would be the case as between any social and legal system on the one hand and any religious system on the other, I think, in many European or American countries. In England for example where the legal system is separate from the religious system the position is very different. In England it is possible for the view of the law Courts to differ in particular respects from the view of the Church on matters of marriage. In India the legal system and the religious system of Hinduism are largely the same thing. One illustration will suffice. If this were not so the Court could not enforce as they do the legal principles as to custom in connection with marriages. Proof of custom, which, be it noted, will be essentially in fact religious custom, operates as law. So also with the religious system and legal system of Islam: the two are inextricably interwoven and operate substantially as one. It becomes thus extremely difficult in India on matters of personal law or personal religion in many cases to say where the religious principles end and where legal principles begin. Take for example the principle of inheritance. These are laid down in the Koran itself having behind them all the force and the full religious sanction of being essentially part of the principle of the religion of Islam. But they are equally also essentially part of the fundamental principles of the law administered in the law Courts throughout British India to Muslims in cases of succession. The position as it seems to me is the same in regard to the principles of conduct of men and women, whether Musulmans or Hindus, in relation to marriage and generally in regard to the relationship of women with the rest of society and their position in the social system. These principles for them are as much part of their religion as they are part of their legal system and personal law; and as much part of their legal system and personal law as they are of their religion.

21. The sources of Mahomedan Law are the following four sources only:—

1. The Koran itself.

2. The Hadis, that is the precepts, actions and sayings of the Prophet Mahomed, not written down during his life-time but prescribed by tradition and handed down by authorised persons.

3. The Ijmaa, that is a concurrence of opinion and tenets of faith of the companions of Mahomed and his disciples.

4. The Kiyas being analogcial deductions derived from a comparison of the first three sources when they did not apply to the particular case. [See Mulla's Mahomedan Law, (12th Edn., page 24)].

22. This is in itself, briefly enough to show that the principles of law enforced among Muslims to-day are all derived more or less directly solely from their holy book and the holy sayings of the prophet Mahomed which themselves form the very basis of their religion. It seems to me impossible then to say that the principles of social conduct laid down in these authoritative sources are not as much part of the Mahomedan religion as they are part of their legal system. Any principles of conduct by which the Plaintiff would be governed in regard to marriage or other social relationship affecting her position as a woman with the rest of human society on conversion to Islam therefore would govern her equally with the force of religion as with the force of law.

23. If she chooses to consider that the principles of conduct governing the relation in human society of a woman with her fellow men and women are superior in merit as ordained under Islam to those ordained under Hinduism and chooses to be converted to Islam, principally for that reason, then since those social principles are themselves part of the very fabric of the Islamic religion, she is to my mind making an effective change of religion: and for entirely bona fide reasons: and moreover reasons which it is impossible not to describe as bona fide religious reasons. To my mind she is just as entitled to come to a bona fide decision to be converted for these reasons, as for any other reasons of mystical faith or belief, or any other reasonings of theoretical theology or intellectual processes, or disputations of higher criticism.

24. Apart also from any reasons of preference on the ground of any consideration by her of any supposed superior merit in the social side of the religious system, I have before me her solemn declaration of adherence as a matter of faith to the Mahomedan religion. Having seen the Plaintiff and her father in the witness box I am fully satisfied that, having regard to the manner in which they gave their evidence, in any event in view of the circumstances of this case, even if it were necessary or proper for the Court to go at all into the reasons for the Plaintiff's conversion (which in my view it is not proper for the Court to do) I find and hold that the Plaintiff's conversion was an effective change from one religion to another, with all the legal consequences, which may flow from that; and that her conversion in this case was made bond, fide.

25. This matter of conversion calls for consideration also from another angle. It has been suggested that no matter whether the conversion from this point of view was bona fide, the Court should not support a Hindu wife in bye-passing her obligations under the Hindu Law, the obligations of a Hindu wife, by making a detour of conversion. It comes to this: that the Court even if it cannot undo the conversion as a process having the legal consequences attaching to it, at any rate acting on general principles of equity or otherwise, should refuse to give any relief in such cases to the converted Plaintiff.

26. As to this argument I should say this: that if it were in fact the policy of the Crown or the Indian Government or of the Legislature to prevent dissolution of marriage or such other possible legal results in consequence of conversion, such as those which have taken place in this case, then steps should be taken to make the conversion of a Hindu wife illegal, or an offence under the criminal law. If the conversion is legal, if there is no statutory restriction, then the Court is, to my mind, free, and not only that but is bound, to give legal effect to its consequences if any. In connection with any question of policy of the Crown in this matter it will not be out of place to refer to Her Majesty the late Queen Victoria's Proclamation as bearing on this topic, to which I was referred by Mr. Chowdhury. The material extract from that proclamation made in 1857 is as follows:— (I quote from Speeches and Documents on Indian Policy 1750–1921 edited by Professor A. Berrie-dale Keith, Vol. I at page 382):—

“Firmly relying ourselves on the truth of Christianity, and acknowledging with gratitude the solace of religion we disclaim alike the right and the desire to impose our convictions on any of our subjects. We declare it to he our royal will and pleasure that none be in any wise favoured, none molested or disquieted by reason of their religious faith or observances, but that all shall alike enjoy the equal and impartial protection of the law; and we do strictly charge and enjoin all those who may be in auhority under us that they abstain from all interference with the religions (belief or worship of any of our subjects on pain of our highest displeasure.”

27. The freedom of thought and religion inherent in the above proclamation is and as is well known, has been the policy of the Crown in the administration of British India since 1858. This freedom of thought and religion must, as a moment's reflection will show, include not only a right of a person to go on thinking as before without interference, but also to adopt new or different thoughts: to the extent of becoming-converted to a new or different religion, if a person so desires, without interference. To forbid or penalise conversions (whether generally or for a particular class of citizens, such as for example that of married Hindu women) would obviously be a retrograde step inconsistent with the objective of freedom of religious thought as declared in the above proclamation; and should not in my view be the view that the Court should adopt in the disposal of a suit in the absence of very clear statutory directions. There are no statutory directions preventing the Court in this case giving effect to this conversion. In view of the clearly proved fact of conversion in this case, this case clearly falls to be decided on the footing that at the time of her petition and to-day, the Petitioner is and was a Muslim.

28. The conversion having taken place on the 12th September, 1943, on the next day the 13th September, 1943, the Plaintiff caused a letter to be written to the Defendant (a certified copy of which is exhibited) calling upon him to embrace Islam and concluding “If I fail to get your opinion in this matter within three days from this date I shall conclude you are incapable of embracing Islam.” This letter was sent by registered post; and was received by the Defendant on the 17th September, 1943-

29. On the 30th October, 1943, the Plaintiff caused a second notice to the same effect to be sent to him by registered post, with a copy also under certificate of posting. Then on the 4th February, 1944, a further notice was sent: also sent by registered post: this, though tendered to him by the post office, the Defendant refused to accept. The Defendant sent no reply to any of these three notices. He has not embraced Islam, and has remained a Hindu.

30. On the 3rd March, 1944, the Plaintiff filed the plaint in this suit on the Original Side of this High Court. Leave under cl. 12 was granted by the Court because part but not the whole of the cause of action pleaded or stated arose within the jurisdiction of this Court; and as the Defendant resided outside the jurisdiction.

31. As to jurisdiction it is clear, in my view, that this Court has been accorded ample jurisdiction to entertain this suit by virtue of cl. 12 of the Letters Patent; and also that the Plaintiff has a cause of action arising under sec. 42 of the Specific Relief Act, which it is within the jurisdiction of this Court to entertain and determine.

32. In Tiscenko's case, which, like the present case, was also a suit for declaration under sec. 42 of the Specific Relief Act, although with an alternative prayer for a decree for dissolution of the marriage, apart from that section, it was held by the Court of Appeal, upholding the judgment of the trial Judge, that, the mere fact that the suit was brought under sec. 42 of the Specific Relief Act for a declaration that the marriage had already been dissolved according to the personal law of the parties, did not take the case out of the operation of the fundamental principle of private international law, that the Court had not the jurisdiction to pass an order having the effect of divorce, if the parties were not domiciled at the time of the proceedings in the country to which the Court belonged.

33. Here as already mentioned the parties are of Indian domicile. This is an Indian Court. This case is accordingly entirely free from any objection as to jurisdiction such as was held to be a bar to the entertainment of the suit on the ground of domicile in Tiscenko's case.

34. Before proceeding it may however be pertinent to the question of domicile to consider how far, if at all, the ordinary principles regarding choice of law based on domicile such as commonly operate in a case of marriage, where there is a conflict of laws as between the laws of two different European countries, apply at all to this case. Where there is a difference in the law of a national of one European country from that’ of a national of another country, and the parties have changed their domicile from one country to another, it is now well established, that in an action for divorce, the law of the domicile of the parties at the date of the institution of the legal proceedings in Court, is the law which the Court has to apply to the case. How far is this principle applicable to the present case? Domicile as understood in the European or American cases is dependent upon geographical considerations. It is dependent upon an intention to remain or live and die within a particular geographical area representing a country or state which has different laws to another. For application of law (where there is room for a choice of one of different laws) to nationals or peoples of India, those same geographical considerations regarding domicile may apply in certain cases as between India itself and countries outside India: that is for a choice of law dependent either on an Indian domicile or a non-Indian domicile; but not in relation to any conflict of personal laws inside India. No matter how far a party may move about inside India, or how much he may change his intention as to the place where he wants to make his home from one geographical area inside British India to another, that does not affect his domicile which remains a British-Indian domicile. In the present case both parties are and have remained of the same domicile and with the same domicile as each other; yet they are now, and were at the time of the filing of the suit, of different religious and social systems having each a different personal law. Little help can be obtained from European or American cases, so far as they are based upon geographical domicile. No question of domicile as the basis of any choice of law to be applied to this case in my view arises in the present case.

35. The personal law applicable to a person in India, to the extent that it is applicable, will de pend not on any geographical location of the permanent home of his choice but upon the religious system to which he is attached.

36. It may be remarked that there is one similarity in this to the doctrine of domicile. While a person is presumed for the purpose of the law to have a particular religion from birth, so a man is presumed to have a particular domicile from birth. He has also the right at his own choice to change his religion, just as a man has the right at his own choice to change his domicile. So in both cases the result is, that the personal law by which he will be governed is to this extent dependent upon his own intention or choice. In view of the policy of freedom of religious thought already referred to, it seems clear, and it follows from this, that every individual must be treated under the law of British India as having an untrammelled right to change his religion at any time and to his own free choice. What is more, it follows from what I have already said that he will then have all the rights and obligations accruing to him of the personal law attaching to that religious and social system which he chooses to adopt, with all the legal consequences of its application to himself. He will then be governed by that personal law, either as a system of law supplementary to the standard law of British India, where so ordained, or as the only system of law governing his case in particular matters even to the exclusion of the standard law of British India.

37. One important difference particularly may be remarked however between the application of the doctrine of domicile as applied normally in English Courts between English or European nationals regarding marriage and the application of the personal law peculiar to a particular community in India. While there is a clearly established principle to be applied in Courts in England that a wife shall automatically have the same domicile as her husband, no matter where she may live or intend to live, there can be think no place for any idea that a wife in India cannot be free to adopt a different religion to that of her husband. The English doctrine regarding geographical domicile or only one common domicile for both husband and wife has avoided to a certain extent an undesirable result that they might be held to be married in one country and not married in another. In certain European countries and in the U.S.A I understand this principle of common domicile for husband and wife is not of universa operation: in parts of America and also Russiar the law provides that an American or Russiar woman married to a person of foreign nationality and domicile shall so long as she is in her own country retain her domicile irrespective of her husband. If such a woman is married to an Englishman, who was of an English domicile, and if she then obtains a divorce in her own country (as a person domiciled in her own country and through that domicile entitled to have her case governed by the law of her own country though different from the law of her husband) on grounds not recognised under English Law, the Courts in England may not recognise such divorce. It follows therefrom that, she would be an unmarried woman in her own country but a married woman in England. There may be cases also where a wife might obtain a decree “ for divorce in a Court in the United States of America but might be refused such a decree by a Court in England. In either system however whether the wife is permitted in law a domicile different to her husband or not, for a choice of law dependent on geographical domicile the general principle is, so far as I understand, generally and universally applied that the law to govern the case will be the law of the country of domicile at the time of the proceedings rather than at the date of marriage.

38. This principle has been acted upon in numerous cases regarding marriage. It has been put in this way: that legal incidents affecting the question of dissolution of marriage will be governed by the personal law of the parties at the time of the institution of legal proceedings and will not be governed by the personal law of the parties at the time of the marriage or by the law of marriage when it took place. This principle has certainly been applied and fully established in the English cases where the personal law of the parties is dependent upon domicile. This was decided in Nachimson v. Nachimson . [1930] Probate 217. and has since been followed in many other cases. [See also Harvey v. Fermie . [1882] 8 A.C 143.]. The question then is, is there any reason why the same principle should not apply in cases where the personal law of the parties depends upon a religious system to which they are attached. Suppose a man and woman who are both Hindus are married under Hindu rites, they then both become Muslims; and one of them files a suit for dissolution of marriage in India. Is the Court to apply Hindu Law, the personal law of the parties at the date of marriage or to apply the Mohamedan Law, the law of the parties at the time of the filing of the suit for dissolution? I have found no reported decision of the case in that simple form but there have been various discussion and observations bearing on this point in reported cases; and the actual point was definitely decided in the case of Khambatta v. Khambatta . I.L.R 59 Bom. p. 278 1934. in which are reported both the judgment of the learned Chief Justice and that of two experienced learned Judges on appeal from his decision.

39. That was a case where a Scotch woman, who was then domiciled in Scotland and professing the Christian religion, married, in Scotland and according to the ceremonies requisite under the Scotch Law, a man, who was a Muslim domiciled in India. Sometime after the marriage the parties came to live in India where the woman became converted to Islam. The husband, on a date after that, ‘purported to divorce his wife by talak under Mahomedan Law. The question was whether this divorce was valid. It was held that it was. The same point there raised is one of the important points for decision in the present case. At p. 281 of that case, while mentioning certain principles of law as firmly established in the realm of private international law, the learned Judge makes the following observations:—

“(3) The status of spouses and their rights and obligations arising under the marriage contract are governed by the lex domicilii…’ that is by the law of the country in which for the time being they are domiciled [See Harvey v. Fermie and Nachimson v. Nachimson];M (4) the rights and obligations of the parties relating to the dissolution of marriage do not form part of the marriage contract, but arise out of, and are incidental to, such contract, and are’ governed by the lex domicilii [see Nachimson v. Nachimson].”

40. Again at p. 285:— “As soon as she took that step, the law applicable to Christians ceased to be applicable to her, and she became subject to the law applicable to Mahomedans and that law entitled the husband to divorce her by talak.”

41. On appeal Blackwell, J.,??? with the point further at p. 293’, where he observes:—” The second question is whether the husband could divorce his wife by talak, she being at the time a convert to the Mahomedan religion. This question has been discussed but not decided.” Then after discussing the cases of Skinner v. Skinner . L.R 25 I.A 34 1897. Abraham v. Abraham . 9 Moore's Indian Appeals 195 1863. and Mitar Sen Singh v. Maqbul Hasam Khan . L.R 57 IA 313 he observed at p. 296 as follows:—

‘These cases show that in India, personal status, rights and obligations and questions of succession and inheritance are frequently governed by religious creed, and that they may be affected by a change of religion as they might be affected by a change of domicile.” It has been argued for the Appellant that the status imposed by operation of law upon persons who marry in Christian form cannot foe altered by the voluntary act of the parties. But, if a change of domicile, which is a voluntary act, may result in a change of status by reason of the application of a different system of law, it is difficult to see why a change of religion, the domicile remaining unchanged, may not also result in a change of status, if the law to be applied, is then different by reason of the difference of religion.”

42. In that case it is to be noted that a considerable weight of the argument was directed to the point that the legal rights and obligations as to dissolution should be judged by the law in which the original marriage was made relying largely on the point of the monogamous character of a Christian marriage. It was suggested that for this reason it should not be dissolved under a system of law attaching to polygamous marriages. In spite of that distinction that argument was rejected by the Court. In the present case the original marriage was not a monogamous marriage but one polygamous in character. It is material therefore to note that in the present case any argument on the monogamous character of the marriage has no application; nor have any decisions in such cases as were based upon that consideration. This distinction is important. This was in effect pointed out by the Acting Chief Justice (Ameer Ali, J.,?) in his judgment on the hearing of the appeal in Tiscenko's case(1a) at page 469 of the report which begins at p. 465 of the report in Noor Jehan v. Tiscenko. The observations at p. 470 show clearly, I think, though made obiter to the actual facte of that case, that the learned Acting Chief Justice's (Ameer Ali, J.,?) view coincided with the view taken by the Court in Khambatta v. Khambatta; and that if the parties are domiciled in India so as to allow the Indian Court jurisdiction in cases where both parties are Muslims at the time of the proceedings the Acting Chief Justice (Ameer Ali, J.?) would have held that the Indian Courts would be entitled to grant a divorce under the Mahomedan Law, irrespective of whether the original marriage was Christian and monogamous or not. That is to say, the Court would be entitled to administer the personal law of the parties at the time of the institution of the suit in adjudicating on a question of the dissolution of the marriage.

43. This is precisely what the Court held in Khambatta v. Khambatta; as was observed further by Blackwell, J., at p. 297:—”….. in considering in a divorce suit in India the question whether a previous marriage of one of the parties is or is not still subsisting, it seems to me that the Court must apply the law in India applicable to that marriage, at the time when that question arises.”

44. Once it is established, as I consider it clearly is, that the rights and obligations of parties relating to dissolution of marriage do not form part of the marriage contract, then it must follow in my opinion that the Court adjudicating on whether a marriage is dissolved or subsisting must apply the personal law of the parties at the time of the institution of the suit. In a Court in India, where the parties have an Indian domicile, in addition to such general law of India, if any, as is applicable to the case, the Court will apply the personal law of the religion of the parties, where this is applicable to the case.

45. In this respect I respectfully agree with the decision of the Bombay High Court in the case of Khambatta v. Khambatta and with the observations, even if obiter, of the then Acting Chief Justice of this Court (Ameer Ali, J.?) in the hearing of the appeal in Tiscenko's case. In dealing with the present case I shall proceed therefore to apply the law applicable to the parties at the time of the institution of the suit rather than the law applicable to them at the date of the marriage.

46. The further question then arises, in such a case as the present, where one party at the time of filing of the suit is a Hindu and one Muslim, what personal law is to be administered?

47. I will now proceed to consider certain aspects of Mahomedan Law as affecting this case, if this Court were to apply Mahomedan Law to the Petitioner. After that I will deal with certain aspects of Hindu Law, then certain general considerations and then come to what I conceive to be the decision.

48. It will be seen that the position under Mahomedan Law is different in certain important respects according as to whether the law is to be applied in a country under. Islamic rule or in a country under non-Islamic rule. The former is Dur-ul-Islam; and the latter is Dur-ul-Harb. A perusal of many of the standard works of Mahomedan Law will show that provisions are made in considerable detail for the legal position and rights and status of non-Moslems in a Government under Islamic rule. A non-Muslim of a certain category living in a Muslim State under the protection of a Muslim Government is known as a Moostamin. He has a defined legal status; and there are special laws expressly laying down the legal relationship in a Muslim State between Mahomedan citizens and Moostamins living in the State.

49. A non-Muslim of another category, if he has by submission to the Muslim State signified his subjection or agreement to abide by the laws of the Muslim State, is termed a Zimmee. Such persons are then treated as having cut off their connection with their own Dur in the eyes of Muslim Law and as free to exercise their own religion, and generally to have the same privileges as their Muslim fellow citizens; and in the character of a Zimmee to have become members of the Dur-ul-Islam. As to the position of other foreigners, who should come to stay under the Dur-ul-Islam, the strict Mahomedan Law is stated by Baillie to be as follows:

“if a foreigner should enter the Dur-ul-Islam without protection, he may be slain, or reduced to???lavery, or protection may be granted to him. His acts in the meantime are in suspense…”

50. And the passage continues giving details of the warning to be given to such persons and what consequences will follow. As an indication of the difference between the legal system for purposes of Mahomedan Law in a Muslim State or country which is Dur-ul-Islam from that in a country which is Dur-ul-Harb, it may be noted that all non-Muslims in a Muslim, State being part of the Dur-ul-Islam will derive their legal rights in that State from their legal status, either as Moostamins or Zimmees. The Church and State in a Muslim State in the Dur-ul-Islam are to a great extent thus regarded as one. I have never heard it suggested that all persons who are, say, Hindus or English people resident in this country, had only the restricted legal status or rights of Moostamins or Zimmees in British India as it exists at present.

51. I cannot see how the present British Government in India either in respect of the Central Government or a Provincial Government, even if it may allow full freedom of religious thought, and the full enjoyment by Mahomedans of their social culture and the application so far as practicable of Muslim personal law, can be correctly termed a Muslim Government; or how India or Bengal could be said to be a State under Islamic rule; or how either India or Bengal could be correctly classed as forming (within the meaning given to that term under Muslim Law) a part of the Dur-ul-Islam. On this point reference may be made to Baillie in his note at p. 171: he says:

“While there was a Mussalman King, in name at last at Delhi, and the revenues were collected, under the authority of a firman by one of his predecessors, and???rent coin bore his name, there was certainly some ground for the doubt which I have frequently heard expressed by learned Mahomedans whether the territories were so completely severed, (that is to say, territories after British occupation) from the Dur-ul-Islam as to have legally become Dur-ul-Harb”.

He goes on to observe, “The deposition of the King, and the assumption of the Government by Her Majesty the Queen in her own name “ must in his opinion have removed every trace olf this doubt from the Mahomedan mind “.

52. I respectfully agree with that view.

53. It may be noted that in an old case In the matter of Ram Kumari12, it was observed in the course of the judgment at p. 270:—

“(But we cannot hold that British India is a foreign country within the meaning and intention of the above rules (meaning the rules off Mahomedan Law), so that a (Hindu marriage would here become dissolved by the conversion of the wife to Islam, on the expiration of a certain interval without any notice to the husband”.

54. There appears to have been no detailed argument on the point nor any reasons given for that conclusion. It is to be noticed also that the Court there did not come to any opposite findng that India is an Islamic country. In the absence of any discussion on this aspect of the matter or any reason being given, I do not feel bound to follow the conclusion on this point which was only to some extent a subsidiary point in In the matter of Ram Kumari. As a matter of mere illustration I may be permitted to refer to the current constitutional controversy about the proposals of the Muslim League political party, which they have put forward under the heading of a proposed establishment of an independent sovereign State in India to be known as Pakistan. If British India or any part of it were already Dur-ul-Islam, there could be no room for any such controversy or proposals. The mere fact of the non-existence at present of any area fulfilling the conditions of the suggested Pakistan is in itself a clear illustration of the extent to which the present British Government is not a Government of Islamic rule. I shall proceed therefore on the basis that British India is not Dur-ul-Islam: at least for the matters of law and procedure concerned in the present case.

55. In considering therefore the Mahomedan Law as applicable to the present case, I propose to take into account the law and procedure applicable under Mahomedan Law in a country which is considered as being in the Dur-ul-Harb, that is a country under non-Islamic Government, and not in one which is in the Dur-ul-Islam, a country under the Islamic Government.

56. The two principal authorities in the English language relied on for application of Mahomedan Law for the use in the Courts of British India have been Hamilton's Translation of the Hedaya (1870, Edn.) and Baillie's Digest of Mahommedan Law being a translation of the Fatwa-Al-Am-Giri (2nd Edn., 1875). Even if the opinion expressed about the former by the author of the latter work himself at p. ix of his introduction is somewhat harsh, (where he quotes the observation of Sir William Mac-naughten that “the work is of little utility as a work of reference to indicate the law on any particular point, which may be submitted to judicial decision”) I should nevertheless say that where there is any conflict of opinion between the two I would prefer the view of the law as set out in Baillie's Fatwa-Al-Am-Giri to the other: having regard to the fact that Baillie's work was written for the expressed object of affording assistance to Courts in adjudicating on matters, where questions of Mahomedan Law were concerned, and because of the critical care with which it has evidently been compiled. For the matters arising out of the present case, however, there would appear no substantial difference.

57. At p. 180 Baillie states as follows:—

“When one of the two spouses embraces the Mussulman faith, Islam is to be presented to the other and if the other adopt it, good and well, if not, they are to foe separated. If the party is silent and says nothing, the Judge is to present Islam to him, time after time, till the completion of three by way of caution.”

58. and thereafter details are given as to the position of persons who are not adults and in respect of the wife's dower.

59. It will be seen that under that passage Islam is to be presented by the Judge, who is directed to present it three times, (which I take to be the meaning of the words “time after time till the completion of three by way of caution”); this is in the nature of an ordinary precaution concerning procedure to ensure that a proper notice has been given. (The provision is similar to the “three unsuccessful attempts” stipulated for in the practice of this High Court before substituted service of summons may be resorted to). All that is stipulated in effect is that the husband is given notice to the satisfaction of the Kazi (or Court) in the form of an invitation to him also to embrace Islam to enable him to take that course if he so desires. As soon as the Kazi is satisfied that he does not desire to embrace Islam, the Kazi may at once pass necessary orders declaring the marriage dissolved; without waiting for any further lapse of time. As I read that passage, where presentment of Islam is by the Judge in an Islamic country, there is no stipulation for any lapse of time after the conversion of the wife or her application to the Kazi before the Kazi can declare the marriage dissolved.

60. As I read it, it is important to observe that these foregoing passages relate to the legal position under Mahomedan Law where the parties are in the Dur-ul-Islam and as to the general principle. It is important to emphasise the difference between the passage expressed in general terms and for the normal contigency of the parties being resident in Dur-ul-Islam from the passage which next follows it; which deals with the position where the parties are in the Dur-ul-Harb.

61. This next passage is as follows:—

“When one of the married parties adopts the Mussalman faith in a foreign country, the cutting off of their marriage is suspended for the completion of three menstrual periods, whether consummation have taken place or not. And if the other party should also adopt the faith before their completion, the marriage remains subsisting.”

62. In this case no presentment by the Judge is contemplated. Instead of this, the husband is given a fixed period of time running from the date of the wife's conversion, in which to embrace Islam if he chooses. The rest of the passage I need not quote, since it has no direct bearing to the facts of the present case. It is, however, fully understandable as throwing light on the position, where there cannot be a presentation by a Muslin Judge. The whole sense of the passage and the reference more than once to persons going out of the Dur-ul-Harb to the Dur-ul-Islam shows that the procedure is applicable to a non-Islamic country in contrast to the earlier case of a proceeding in an Islamic country. The result of this is, as I understand it, that the position under Muslim Law in India will be that after the conversion of the wife, the marriage is “cut off”—that is, dissolved— after a fixed period of time being either the expiration of three menstrual periods of the wife or alternatively in certain circumstances (as will be seen from other authorities) after the lapse of three months; unless only the husband has, before the expiration of that period, adopted the Muslim faith.

63. Reference to other authorities is to the same effect. See Hamilton's translation of the Hedaya at p. 64, and the work of the Hon'ble Mr. Md. Yusuf Khan Bahadur in the Tagore Lectures, 1891–1892 on Moslem Law, 1898, Edn., Arts. 2814 in particular and 2815 which explains and endorses this principle. It will be observed that the passage at p. 65 mentions the reason for the difference in the procedure, between that in the Dur-ul-Islam and that in the Dur-ul-Harb, where it states (speaking of the position in the Dur-ul-Harb) that “the reason of this is that Islam cannot be made an occasion of separation (as has been observed); and the requiring the other party to embrace the faith is impracticable, as the authority of the Magistrate does not extend to a foreign land, nor is it acknowledged there; yet separation is indispensable for the removal of evil; the condition, therefore of separation (to wit, the lapse of three terms of the women's courses), must stand in the place of separation effected by the Magistrate.”

64. In Noor Jehan v. Eugene Tiscenko's case the learned Judge held at p. 1056 that the proper procedure under Mahomedan law had not been in that case followed: on the ground that Islam had not actually been presented to the unconverted party by the Court acting as a Kazi. The learned Judge observes at p. 1056:—

“The main, distinction which has been drawn by the Muslim, jurists is between a conversion which takes place in an Islamic country, where both parties to the marriage may foe (brought before the Kadi, and a conversion which takes place in a country, which is not subject to the laws of Islam. In the former case it is laid down in the Hedaya, that Islam is to be presented to the unconverted party by the Kazi and, on refusal to embrace the faith, the Kazi must pronounce a decree of divorce. In the latter ease the dissolution of the marriage takes place automatically after the completion of three of the wife's ‘terms’ because the ‘requirinig of the other party to embrace the faith is impracticable, as the authority of the Magistrate does not extend to a foreign land nor is it acknowledged there.”

65. Since the learned Judge is there noting the main distinction drawn by Muslim jurists between the position in an Islamic country where presentment has to be made by the Kazi and in a non-Islamic country, where the dissolution of marriage takes place automatically after a period of time (that is without any presentment), I take it that the objection of the learned Judge to the proper procedure not having been followed (because of non-presentment of Islam by the Kazi) was based on a view that India was an Islamic country. I have referred to this aspect of the matter and indicated why I am not able to accept that view. In my view all that was required to be done before dissolution of the marriage, became complete under the Mahomedan Law, has been done in the present case. After the conversion, dissolution will follow automatically without the necessity for any presentment of Islam by either the Kazi or any Judge; and the marriage will have become automatically dissolved after the expiry of the period of time mentioned in the authorities, either three of the wife's terms or alternatively after three months; and in any event after whichever period of time is the longer. I would only add that even had it been necessary to hold, that the procedure for presentment of Islam as in an Islamic country was obligatory, I should have considered that direction might have been given by myself as the Judge hearing the suit to the Registrar for him to serve the requisite letters (repeated three times) calling on the Defendant to embrace Islam and notifying him that otherwise on the Petitioner's claim a declaration would be liable to be made by the Court of the marriage having become dissolved under Mohamedan, law. And in such a case as this if satisfied, as I am in the present case, that service of the letters had been satisfactorily effected by the Petitioner (or her attorney), herself instead of by the Registrar, I should have held such service of the notice to have been lawful and effective as being sufficient to satisfy this Court of the service having been made and as equivalent for the requirements of the Mohamedan Law to the stipulated presentment by the Kazi.

66. It is clear, therefore in the present case, if the matter were to be governed solely by Mahomedan Law, as applicable to the Petitioner herself, that the Petitioner is entitled to the declaration asked for that her marriage with the Respondent has been dissolved.

67. Reference to the nature of the separation mentioned in the authorities of Mahomedan Law shows clearly that the marriage is to be treated under Mahomedan Law as completely dissolved; and not merely that there is some state of separation of the parties corresponding to the English notion of judicial separation by which the marriage itself might legally be said to be continued though without its full obligations. This is to be noted that the Mahomedan Law precisely deals with and regulates cases such as this; and expressly lays down that the marriage itself is dissolved.

68. Before passing to consider the principles of Hindu Law which may be said to have a bearing on this case I should make certain observations of a general nature. It is clear that Hindu Law governs only Hindus. And it will be seen that there is little practical necessity why the Hindu lawgivers should legislate positively to provide for the dissolution of a marriage in circumstances such as those of the present case. One major consequence attached to dissolution of marriage, according to the conception of marriage in European countries, is that the parties are then free to marry again. Under the Hindu Law the husband has always been free to marry again: and his position in that respect is in no may affected whether the marriage is dissolved in the legal sense of that term or whether it is not. If the wife were a Hindu, the directions of the Hindu lawgivers as to her marrying again would be of the highest importance to her and indirectly to her husband. But, if, as I have held, her conversion is fully effective and she is no longer a Hindu, I find it impossible or difficult to sec how she might be affected by any directions given in Hindu lawgivers, even if they had chosen to purport to give any directions concerning her. I mention this aspect of the matter as showing, that there is no necessity to expect to find any express directions in the Hindu authorities, which have been necessarily compiled for the use and governance of Hindus, for the dissolution of a marriage in such a case as this. The absence of any such directions in Hindu Law may be found, I think, not to affect this Court's rights to declare the marriage dissolved, if Hindu Law does not contain any positive prohibition of such a marriage being dissolved: provided this Court is afforded the authority to make a declaration of its being dissolved under powers drawn from sources other than Hindu Law. Conception of divorce itself is not a focal point on which Hindu Law is based. From the point of view of the husband, since he is In any case free to marry again, dissolution has no bearing on his rights in that respect. In my opinion it is beside the point to consider how far Hindu Law sanctions or does not sanction the right of women in the position of the Petitioner, who has been converted to Islam, to marry again. She is now a Mahomedan; therefore Hindu Law will have no control over her. Considerations of the principles of Hindu Law as affecting the position of the wife (the Plaintiff) would, as I see the position, only have been useful and profitable, if this Court had held that her conversion had fallen short of full legal effect.

69. The real enquiry must now be centred, therefore, on the position under the Hindu Law of the Respondent, the husband; as to his rights and duties under the terms of Hindu Law in relation to the Plaintiff. It would be presumptuous of me to seek to lay down any abstruse principles of Hindu Law’ for the purpose of the present case; it is not necessary for me to do so.

70. As to the husband's position the fundamental principles of Hindu Law are, it would appear, clear and without controversy. Taking seriatim his various rights or obligations which normally attach to marriage it will be seen his position comes to this:—

Regarding remarriage this is fully open to him as before;

71. Regarding any right of co-habitation with his wife he clearly now can have none; since cohabitation by a Hindu with a non-Hindu is not allowed. It will be recollected the parties are Brahmins. Any co-habitation after the conversion is then clearly and unequivocally forbidden.

72. Regarding the performance of the sacraments which are ordinarily performed by married parties under the Hindu Law and religion, it is abundantly clear that his wife, since her conversion, can perform none of the usual sacraments for him. He is not entitled to ask her to do so; and he is unequivocably prohibited from sharing in any such sacrament with her when she is not a Hindu.

73. Regarding the preparation of his food, she can no longer take any part in this nor can he ask her to do so. He is unequivocably prohibited from taking any food prepared by her.

74. Regarding any future children the wife may have by a later Mohamedan spouse, it is obvious, no liabilities will attach to the Defendant. The application of any doctrine such as has been at times applied to European marriages, for making children born during the period of a subsisting marriage to be treated in law as children of the parties to that marriage, cannot it would seem affect him as a Hindu with any liability to maintain any child which may in future be born of the Petitioner.

75. Regarding his obligation for maintenance by him of his wife, it is clear, under Hindi. Law, that if a wife deserts her husband, the husband ceases to have any liability to maintain her. It is clear, that where the wife has deserted her husband and in addition to that forsaken his religion and his faith, he will no longer be regarded by any Court of law as continuing under any obligations to maintain her.

76. Clearly there is no right to restitution of conjugal rights in the sense used in relation to a Christian marriage.

77. There remains the only question about which there has been some controversy: whether the Hindu husband, in the position of the Defendant in this case, would be authorised (if he were to make the application) to claim custody of his wife after her conversion to Islam.

78. During the hearing I was referred to the case of Jumna Devi v. Mul Raj(12a), where it was held that a Hindu wife cannot deprive her husband of the legal rights, which accrued to him at the marriage, by simply renouncing Hinduism in favour of Islam. There the Hindu husband brought a suit for custody of his wife against firstly his wife and secondly the second Defendant who was a Mahomedan with whom she was residing. After argument the Court held that the husband was entitled to the custody of, his wife inspite of the conversion. The whole position, it will be seen from the passage at p. 201, was based on a refusal to apply Mahomedan Law to the position of the wife. What would have been the legal result if Mahomedan Law had been applied is clearly appreciated in the judgment, where it was stated that:—” If Mohammedan Law is applied the marriage is dissolved by the mere fact that the woman-is a Mussalman and the man a Hindu; this is not denied. But it must be taken that at the time of marriage the woman, marrying as a Hindu, knew and intended, as her husband did also, that the marriage could in no way what ever be dissolved.”

79. It will be seen that this amounts to a statement of a principle opposite to that which I have already accepted earlier in this judgment. Suppose the parties married as Hindus had both of them become converted to Islam. The trend of the remarks first quoted would seem to show that the Court in that case, if proceedings had been brought before it for divorce after the conversion, would have applied Hindu Law only (as being the law of the parties at the time of marriage) and not Mahomedan Law at all to the case. I have already earlier on in this judgment accepted as good law a contrary principle: that the rights and incidence of the marriage in regard to a claim for dissolution should properly be adjudicated on the personal law of the parties at the date when the proceedings are brought; and not at the date when the marriage is entered into. In that case the Court applying Hindu Law proceeded on the basis that the lady was still the Plaintiff's wife and on this basis allowed his claim for her custody. Had the Court applied Mahomedan Law it would have held she was no longer his wife; and would have dismissed his suit for her custody.

80. Apart from these considerations, any other case is of course a decision only on the facts of the particular case. In that Lahore case the Court took the view that there would be no injustice or inequity against the wife if the Court ordered her to return to live with her husband: even though as indicated at p. 202 it was conceded that, if he remained a Hindu, she could not live with him as his wife; could only do so, if, (of which there was no indication), he proposed to renounce the Hindu religion. In any event the Court on the facts of that case took the view that they were justified on the facts in exercising their discretion to give custody of the Respondent No. 1 to the Petitioner. I can only say that on the facts of the present case I would not hesitate in refusing custody of the Plaintiff to the husband (the Respondent in the present case), had there been any petition before me for such custody. It may be of some interest to observe that in this I would then be doing little more than acting on the same lines as in a previous decision in another case of this High Court, reported in Muchoo v. Arzoon Sahoo(12b). There a suit was brought by a Hindu to recover possession of his wife firstly, and secondly of the three children who were in her custody, all the children being minors. The answer of the wife was that the Plaintiff having been a Hindu had become a Christian and that she was not therefore bound to live with him. It will be seen in that case that it was the wife who remained a Hindu and the husband who became a Christian. All Courts agreed in dismissing his claim for custody of the wife. So it happens that the report of that case is mainly concerned with the disputes as to the custody of the children. There is a passage couched in general terms however at p. 236 as follows:—

“The pleader for the Appellant further argued that no one can be permitted so to use his right as to deprive any other person or persons of their rights. For instance, he says, a, husband who becomes a Christian will not lie permitted to claim the person of a wife who remains a Hindoo. This is so far true, and in this case, the claim of the wife was rightly dismissed, but I think, dismissed simply for the reason that, admitting the husband's prima fame claim to the custody of the wife, that claim may be defeated by a reasonable plea. If a wife pleads that her husband beats and ill-uses her in such a way that she cannot reasonably be required to live with him, and that plea is made out, doubtless the court wlli not enforce a restitution of conjugal rights”.

81. The next passage is of interest:—

“So also, if she pleads that the husband, by change of religion, has placed himself in that position that she cannot live with him without doing extreme violence to her religious opinions and the social feelings in which she has been brought up, and in the enjoyment of which she married, that plea would also be a good plea”.

82. The case is in a sense the reverse on the facts of the present case. But I have no doubt from the reasons given by it, that the Court equally would have refused an order for custody had the husband in the present case been claiming the custody of the wife in the circumstances of the present case. I need not again refer to the facts on which I have found cruelty or the circumstances in which the husband had lived in the condition of a domesticated son-in-law and had never himself maintained his wife. Even apart from the ground of cruelty or special circumstances, I for myself would wish to be satisfied with very good reasons before I were to pass an order making it incumbent on a wife, who had become a Mahomedan, to go back to the custody of her husband, who had remained a Hindu, in conditions where she could only live not as a wife at all, but at best in conditions approaching those of an ordinary menial servant. It may be said that if the husband is a humane man he will not want to treat her as a menial servant; he is however prevented both because of his religion and because of hers from treating her substantially otherwise. He is wholly prevented from treating her as his wife; he is not bound to give her more than a starving maintenance, less than in the case of many servants. If out of generosity he wishes to increase her allowance above that scale it would of course be open to him to do so. In that event it might not be correct to say that she was in the position of a mere menial servant, but the position she would be in would be more like that of a foreign friend in a family whom the man she had once married chose, subject to his own whim and fancy, to support. He might or might not also consider it his duty to bring pressure or influence on her (by means which might be wholly unwelcome to her) to try to reconvert her. I need not go further into this aspect of the matter which does not directly arise in this case. But it is clear her position would be one of mental, if not of physical discomfort. Normally in such circumstances I should say that he would have no legal right to her custody.

83. The result is that under the undisputed Hindu Law as applied to the husband in this case he is left with none at all of the ordinary legal incidents or rights of marriage. Under English Law if the parties to a marriage want to be separated, a distinction is made between a judicial separation and dissolution of marriage. The primary feature of such a distinction, apart from any question of maintenance, is of course, that on a dissolution of the marriage both the parties are free to marry again; but not so where there has been a judicial separation. Under English Law the absence of a legal direction for dissolution of the marriage would make an enormous difference to a husband as to his legal rights and obligations which had, that is to say, if in particular case he were allowed no dissolution but only a judicial separation, resulted to him through the marriage. Here the position is very different. Let me assume for the moment that it is to be treated as settled law that Hindu law makes no provision for divorce. Even so, from the very moment of the conversion of the wife (the Plaintiff), without more, and without any legal proceedings, the husband (the Defendant) remaining a Hindu will find himself, in so far as he is governed by ordinary undisputed principles of Hindu Law, in no better position, for the purposes of any legal rights or incidents of his marriage with the Plaintiff, than if that marriage had been effectively and legally fully dissolved. The utmost that might be argued, on such a view that Hindu Law does not recognise dissolution of marriage, would be that this would entitle the Defendant to go about the world saying:—’“ I have a wife— on paper.”

84. Since Hindu Law does not use the language of the terms of “divorce” or “dissolution” as used in the European or Mahomedan systems of law, which terms are hardly applicable for a system of polygamous marriage such as that of Hindu law it is easy to understand why it had not laid down definitely that such a marriage in circumstances like those of this case had been dissolved or on the other hand that such a marriage had not been dissolved; especially in view of the fact that the only person affected by any such direction would be a person (the Plaintiff) no longer subject to Hindu Law.

85. I should make a brief reference to the distinction which is referred to in the Privy Council case in Sri Balusu Gurulingaswami v. Sri Balusu Ramalakhmamma . L.R 26 I.A 107 at p. 130 1899. between the directions of a religious nature on the conscience and morals and directions which may have the force of law. The matter is put there in this way.

“In the preface to his valuable work on Hindu Law Sir William Macnaughton says ‘ it toy no means follows that because an act has been prohibited it should therefore be considered as illegal. The distinction between the vinculum, juris and the vinculum pudoris is not always discernible.’ They now add that the further study of the subject necessary for the decision of these appeals has still more impressed them with the necessity of great caution in interpreting books a? mixed religion, morality and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original law-givers”.

86. Any controversy as to how far remarriage by a wife is permitted or prohibited under the principles of the Hindu religion is of course not a subject before this Court of law. Here again the question might be: how far a woman who was married as a Hindu but has since become by conversion a Mahomedan is subject after her conversion at all to the discipline of the Hindu religion? I need only remark: I cannot see how she can continue to be subject to the discipline of a religion to which she no longer belongs. The question here would not be so much whether the Hindu religion prohibits a Hindu wife from marrying again during the life-time of her husband; but whether the Hindu religion prohibits Hindus in general or Hindu wives in particular from being converted to another religion? And if so, what sanctions, if any, the Hindu religion can or does enforce under the discipline of its religion directly or indirectly against such persons either before they take the step of conversion or as a consequence of their taking that step. These are all however questions of religion, not of law: and are not before me for decision sitting here as a Court of law. The equally controversial subject as a question of law, as to how far remarriage by a wife is permitted or prohibited under the principles of Hindu Law also does not in my view arise as an issue for decision in this case now that the wife is a Mahomedan. The matter was however considerably discussed in argument. It may briefiy be stated that, as I understood them, the submissions both of Mr. Sinha and of Mr. Chaudhuri were that they were in agreement that the older authorities such as Manu did not contain any express prohibition against a woman marrying again.

87. Mr. Sinha submitted however, and I accept this as correct, that under the law and customs which have been superimposed on the original law given by the ancient lawgivers, it has come to be regarded that ordinarily Hindu marriage, at least as between Hindus, cannot be dissolved and that a Hindu woman ordinarily cannot remarry during the life-time of her husband.

88. In so far as the stricter, view contended for by Mr. Sinha as being the modern view is dependent on custom it may be noted in passing that no evidence of any particular custom has been given in this case. It is also to be emphasised that certain texts were quoted and relied upon by Mr. Choudhury in argument which clearly show that according to certain authorities even amongst Hindus governed by Hindu Law a woman was permitted to re-marry under certain conditions during the life-time of her husband.

89. I give here, as a matter of interest, the references to the authoritative texts or works on Hindu Law which were cited to me:—

As to re-marriage:—Manu Chap. IX verse 46 (at p. 335).

90. (No release by sale or repudiation). (The page references here given are to the Sacred Books of the East, edited by F. (Max Muller, Vol. 25, the Laws of Manu, translated by G. Buhler, (Oxford, Clarendon Press, 1886 Edition) Chap. V verse 162 (at p. 197) (no second husband for virtuous women) Chap. IX verses 72 and 73 (at p. 340) (abandonment in case of fraud): of. Chapter VIII verse 205 (at p. 291) and Chap. VIII verse 224 (at p. 294). Chap. IX verses 75 and 76 (at p. 341) (wife need wait for her husband who goes abroad only for a fixed period) t cf. Chap. IX verses 77-79 (at p. 341). Chap. IX verses 175 and 176 (at p. 363) (referring to a recognised son of a second marriage and contemplating remarriage of a woman abandoned—by her husband or a widow). Parasara Chap. IV verses 26 and 27 (also Narada Chap. XII verso 97) translated in the Treatise on Hindu Law by Golap Chandra Barker Sastri (7th Edition: 1936) (at p. 181) (Another husband is ordained for women in five calamities, if the husband be unheard of, or be dead, or adopt a religious order, or be impotent or become outcasted) See also Vishnu Chapter 35 verses 1-5.

91. For a general discussion o£ these and other texts:—

Mayne's Hindu Law & Usage (10th Edition: 1938) at p. 185 (Art. 131 that second marriages formerly allowed and explaining later glosses introduced in certain tests). The Law relating to the Hindu widow (by Trailokyanath (Mitra (Tagore Law Lectures) (1881 Edition) at p. 193 (particularly as to the verse of Parasara quoted above and in relation to custom as affecting its force). ‘The Government Oriental Series Class B No. 3, History of Dharmasastra (ancient and mediaeval religions and civil law) by Pandurang Vaman Kane, Vol. II, Part I, (1941 Edition) at pp. 610-611, 612-617 and. 619-622 Gooroodas Banerjee on (Marriage and Stridhan (5th Edition: 1923) at pp. 204 and 207. (See also 12. Moo. I.A 396 at pp. 435 and 436).

92. As to prohibition of intercourse by a Brahmin with persons of very low caste or non-Hindus and nature of severe penances imposed:—

Yajnavalkya verse 294, translated in the Vyavahara (Mayukha and the Yajnavalkya Smriti by Rao Saheb Vishvanath Narayan Mandlik (1880 Edition) at p. 242. Manu Chap. XI verses 176 and 180 et seq at p. ‘466) (prohibition against approaching or eating food with! a person of very, low caste including as explained in the footnote a Mahomedan; which also states that if he does it unintentionally no penance can be prescribed). Manu Chap. II verse 142 (at p. 56) (as to who is a Guru); and Chap. IX verses 237 to 240 (at p. 383) (punishment for violating a Guru's bed).

93. The only point arising from any consideration of Hindu Law relating to the matters discussed in argument before me which has any direct ‘bearing, as I see the position, on the legal issues before me is this: After consideration of any question of Hindu Law arising in this case through, its applicability, to the husband (the Plaintiff) I have found no prohibition or direction in any of the authorities cited to me which militates against this Court making the declaration now asked for that the marriage is dissolved: or which gives the husband any legal rights under Hindu Law which would be prejudiced or affected by the declaration.

94. I will pass now to another point on which there has been a considerable discussion. That is as to the jurisdiction and powers of this Court to administer personal laws to parties in such a case as this, where the question of marriage is concerned. At the outset I would emphasise the vital distinction between the question of jurisdiction and the question of what law is to be administered by the Court. As to this the vital character of the distinction is emphasised for example in such a book as Dicey's Conflict of Laws; where he divides his work into two separate books, one of which is devoted, to considerations of jurisdiction and another different book is devoted to the question concerning Choice of Law. He very aptly remarks there in consideration of the rules he is laying down on the subject of Choice of Law as follows:—

“The object is the determination of the body of law, which is to, be selected by the High Court (meaning the English Court), when called upon to decide any case, which has in it a foreign element. The rules contained in Book III (i.e, this book) have nothing to do with the jurisdiction either of the High Court (meaning the English Court) or of foreign Courts. But though a question as to the choice of law is in itself a totally different thing from a question Of jurisdiction, there exists occasionally a difficulty in discriminating at a glance between the two inquiries; for a question as to the choice of law may look like a question, as to jurisdiction. That this is so may (be shown by the following illustration: A brings in England an action, against X for am assault at Paris; X's defence is that the assault was by French Law justifiable, and that A therefore cannot, in an English Court, recover damages for it. The defence looks like an objection to the jurisdiction of the Court; but this appearance will be found on examination to be delusive. Whatever toe the technical form of X's defence, he in substance pleads, not that the High Court has no right to adjudicate upon an assault committed in France, but that the question whether X was or was not guilty of an assault, i.e, of an unlawful attack upon A, must be determined in England lb; reference, not to the law of) England, but to the law of France.”

95. Similarly in the present case there may be a tendency to confusion between the question, whether this Court has jurisdiction to entertain the present suit for a declaration that the marriage of the Petitioner has been dissolved, and the different question, whether when the Court has jurisdiction to entertain this suit the Petitioner has under the particular personal law to be administered in the case any legal right to be given the declaration.

96. In regard to jurisdiction the matter is now governed by sec. 223 of the Government of India Act. It is there enacted that the jurisdiction of this High Court should be “the same as immediately before the commencement of Part III of this Act.” This provision corresponds to sec. 106 of the Government of India Act of 1915. There it is enacted, somewhat to the same effect, that this High Court should have such original jurisdiction and powers as are vested in it by Letters Patent; and subject to the provisions of any such Letters Patent all such jurisdictions, powers and authority “as are vested in it at the commencement of the Act.” This provision in its turn thus relates back to the Act establishing the High Courts of 1861, and to the Letters Patent of 1862 made thereunder for a period of three years only, and thereafter to the Letters Patent of 1865 still in force. It will be seen that sec. 9 of the Act of 1861 expressly lays down that this High Court should “ have and exercise all such civil, criminal…. and matrimonial jurisdiction,” as original jurisdiction, and all powers and authority as may be by Letters Patent granted; and save as by such Letters Patent may be otherwise directed “ all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under the Act at the time of the abolition of such last-mentioned Courts.”

97. Clause 35 does not appear to touch the present case.

98. Under clause 12 of the Letters Patent of 1865 it is expressly laid down that this High Court “ in the exercise of its Ordinary Original Civil Jurisdiction shall be empowered to receive and determine suits of every description.” It is clear from the heading or the marginal note to the clause, “ Original urisdiction as to suits,” that by the use of the word “ empowered,” jurisdiction is conferred on the Court. Since this is done in terms of sec. 9 and without the exclusion of causes of action relating to Hindu and Mahomedan marriages, it is also dear that the words “ suits of every description “ are not cut down in any respect as to the subject-matter of jurisdiction. It is true they are cut down in certain respects as to locality; but that is a totally different matter. In my view the question of jurisdiction is clearly concluded by clause 12 of the Letters Patent and there is no need to look further hack. The present suit is one in which the claim is for a declaration under sec. 42 of the Specific Relief Act. There is no doubt that a part of the cause of action has arisen within the local limits. The meaning of clause 12 of the Letters Patent in regard to the subject-matter of the causes of action, of which this Court is given jurisdiction, seems to me clearly beyond doubt that for all persons who come within the local jurisdiction of the High Court as defined for its local limits or for the extension of its local limits Where leave has been granted, the Court is given full and complete jurisdiction to entertain such a suit as this concerning the marriage between parties who were originally Hindus but of whom one now is a Hindu and another a Mahomedan.

99. In regard to the other question as to the law to be administered by this Court in such a case as this, where the question is one concerning the marriage, the enactments are not so clear. The matter is now governed by sec. 223 of the Government of India Act, 1935, where it is stated that the lows to be administered in this High Court shall be the same as immediately before the commencement of Part III of this Act. This provision again relates back to sec. 112 of the Government of India Act, 1915. The directions of that clause require careful consideration. It will be seen that it is there enacted that this High Court shall in matters of inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal law or customs having the force of law, decide according to the law or customs to which the Defendant is subject. The present case is clearly not one of inheritance or succession. There is no comma after the word “ contract” and the phrase “ in matters of contract and dealing between party and party” appears to be a single category so that the words “dealing between party and party” are used ejusdem generis to the phrase “matters of contract.” If this is so, the question in the present case is clearly not within that category. It was submitted by both Mr. Choudhury and the Advocate General that the words “ dealing between party and party “ were ejusdem generis with the preceding words the “matters of contract.” I agree with this view. Even however if the words “dealings between party and party” were not so used, and were intended to include additional matters, they are not such a phrase by which it can be intended in my view to include a question relating to the marriage. I cannot take the view that if it had been meant to include matrimonial matters or questions of marriage such as are the subject-matter of the present case in the directions given under sec. 112, then this would have been done only by the use of the words “ dealing between party and party” and not by some more apt phrase. It follows that the provision contained in sec. 112 for the law to be applied has no application in the present case. It follows furthermore that, since the matter falls outside this section, there are no express directions contained in the Government of India Act, 1915 as to any particular law, which is to be applied by this Court in a suit such as the present concerning a question of a marriage either of Hindus or Mahomedans. ‘We are then thrown back to the Letters Patent of 1865 clause 19, which lays down that this High Court shall in its Ordinary Original Civil Jurisdiction apply “ such law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued.” This means to say the law or equity, which would have been applied by the Supreme Court. This then takes us back to the Charter establishing the Supreme Court of 1774. Though the words are expressed in general terms it is of the utmost importance to observe that in clause 14 of that Charter it is ordained that the Supreme Court should “give judgment……… according to justice and right.” The only other directions contained in that Charter, which might have any bearing on the present case are those contained in clause 18; ordaining that the Supreme Court should be a Court of equity and should have full power and authority to administer justice in a summary manner as nearly as may be according to the rules and procedure of the High Court of Chancery in Great Britain. The result is that the only express direction given to this High Court as to the law to be administered in the present case is the direction to administer justice and right.

100. I should mention that attention was called by the Advocate-General to secs. 17 and 18 of the Act of Settlement, 1781 (East India Company's Act?), (21 Geo. III C. 70). The provisions in these sections must clearly’ be taken into account. In regard to sec. 17 the wording is the same as that already discussed and in “matters of contract and dealing between party and party “ which I have already held to be outside the present case. The question remains whether sec. 18 affects the present matter. There it is laid down as follows: “ In order that regard should be had to the civil and religious usages of the said natives; Be it enacted that the rights and authorities of fathers of families, and masters of families according as the same might have been exercised by the Gentoo or Mahomedan Law, shall be preserved to them respectively, within their said families….” This section has normally been taken as protecting for example the rights of a karta of a Hindu joint family, to save him from any danger of prosecution for criminal conversion, where he is dealing with the property of the family under the well-known authority of Hindu Law as its manager. The Advocate-General, without pressing any contention either way, places the matter for consideration as to whether sec. 18 is not to be taken as imposing a legal direction on this Court making it necessary to protect the Defendant in such a case as this, from being deprived of the rights in relation to his marriage in respect of the Petitioner even after she had become a Mahomedan. So far as I know the section has never been interpreted in such a way. Apart from this absence of any authority in any previous decisions favouring such a view, the wording itself of the section shows in my view that this section is not intended to govern the present case. It will be seen from what has already been stated, that where the Petitioner has become a Mahomedan it is difficult to see how she can remain a part of her former Hindu family; in any sense which would allow this Court to restore to the Hindu husband his rights over her as a Hindu wife. Furthermore the section may be said to beg the very question which has to be decided in the present case: for if the Court has no legal right to make the declaration of dissolution of marriage, then the section is not needed and the husband will retain his rights. If the Court has power and authority to make the declaration, then the Petitioner has had her marriage with her husband dissolved; and she is no longer his wife or a part of his family or in any respect within the protection of the section. Sec. 18 cannot therefore in my view be invoked as making it obligatory for this Court to decide this case only by Hindu Law. The section in my view has no bearing on the present case and affords no assistance in the choice of law to be administered in this case.

101. We come now therefore finally to the question what, if any, personal law is this Court to administer in this case having regard to the direction contained in the Charter of the Supreme Court that this Court is to administer “justice and right.” The question how far this High Court was entitled to administer personal law (being in that case Jewish Law) to the parties in a dispute regarding succession was elaborately considered recently by Das, J., in the case of Jacob v. Jacob . 48 C.W.N 513 1943.. The question there was whether the Jewish Law or the English Law should be administered for the decision of the case by this High Court. Being a matter of succession it was clear that either law could effectively be applied. If the English law were applied the right of primogeniture would be applied with the result that the eldest son would take the estate to the exclusion of his younger brothers. If on the other hand the Jewish Law were to be applied, the right of primogeniture would not apply and the elder would share the estate with his younger brothers.

102. I have followed with interest the careful account given by Das, J., of the course of the successive enactments governing the law to be administered by this High Court. And the interesting extension which was noted by him (at p. 526 left column of the report) as contained in sec. 112 of the Government of India Act, 1915, in its express directions for the application in matters of contract and the other matters there mentioned, of the personal laws of all communities, including Jewish Law (in preference to the standard law generally in force throughout British India): in contrast to previous directions, which had been confined to the application of personal law, in those matters, only in the case of Hindus and of Mahomedans.

103. I fully agree, respectfully, with his decision in that case; as also with the main conclusion arrived at by him, in so far as I understand it to be this. That where there is a general law expressly laid down or settled for British India for adjudication of certain subject-matters, then unless there is an express direction contained in some statute making it incumbent on a Court to apply, in place of that general law, a different special personal law of a particular community, the Court may be bound to apply only the general law.

104. But I do not wish to be taken to accord my complete adherence to the language of certain passages of his judgment, if read strictly as being of universal effect. The observations in those passages were obiter to the matter, which had to be decided in that case, which was one of contract (and|or succession) and not of marriage; and were not necessary for the decision of that case. They may be found to be entirely correct in dealing with some other case, in which a question of marriage is directly or indirectly concerned, where there is a residue of general law which can be applied in the event of the special personal law of a particular community not being applied. I do not however feel bound to accept those passages as universally applicable to all cases, or to the present case. To make my view clear, I will quote here three of such passages:—

“If the Letters Patent of 1862 and of 1865 did not allow any personal laws other than those of Mahomedans and Hindus to be applied at all (and) if the Government of India Act, 1915 did not allow the application of any personal law to any matter not specified therein, it is not for this Court to apply the same” (at p. 527, right column).

“Thus although the jurisdiction of this High Court in exercise of Ordinary Original Civil Jurisdiction was by cls. 11 and 12 made flexible and enlarged, yet in the matter of the laws to be administered by it in exercise of its Ordinary Original Civil Jurisdiction it was relegated to the position of the Supreme Court of Calcutta. This statutory restriction cannot ‘be ignored and must be recognised and accepted by the Court. ‘The result may be paradoxical tout it appears to ‘be that a ‘Court was bound to entertain all civil suits but that Court was not provided with all the necessary laws” (at p. 523, right column).

“Thus the personal law or custom of all communities can now (i.e, since the Government of India Act, 1915), in the special matters, be applied whereas previously only the personal law and custom of Mahomedans and Gentoos in those specified matters could be applied, by this High Court in the exercise of its Ordinary Original Civil Jurisdiction. It will be noticed however that the specified matters are matters of inheritance and succession to lands, rents and goods and contracts and dealings between party and party. Marriage and caste and religious usages and institutions which were included in the Regulations governing the Moifussil Courts were not included in the Act of Settlement in connection with Hindu or Mahomedan laws and are not included in the matters specified in the Government of India Act, 1915. Therefore personal laws relating to marriage or caste or religious usages and institutions of none of the communities are even now to be recognised by any of the High Courts in exercise of its Original Civil Jurisdiction except in so far as they may be material for the purpose off determining matters of inheritance and succession to lands, rents, goods, contracts and dealings Ibetween party and party. In this respect the Mofussil Courts of Bengal have wider power to apply, as principles of justice equity and good conscience, the personal laws of all communities in all matters under sec. 37 of the Bengal, Agra and Assam Civil Courts Act of 1887; and this Court, in exercise of its Civil Appellate Jurisdiction, under cl. 21 of the Letters Patent of 1865 is empowered to apply the same personal law of marriage and caste of all communities” (at page 526).

105. That was as the learned Judge found a case concerning a question of contract (see p. 515). In that case the question substantially was whether there was a special statutory enactment providing for a special personal law (Jewish Law) to be administered, when, in the absence of such a special statutory provision, the general provisions would govern the case; and the standard law of the Court for British India (English Law) would be administered. Here the question is not the same. There is no general provision existing, which would have the effect that English Law would be administered as standard in the absence of any special statutory provision making an exception to it. Here the position is: if a personal indigenous law of some sort (either Hindu or Mahomedan or both) is not administered, the effect will be that the Court will be deprived of jurisdiction altogether; since there will be no law which it can administer at all.

106. The correct position in my view is this Where a Court is given jurisdiction, it will be for the Court, as I see the position, to make the choice of law to be applied by it to the case. If there are statutory directions making a particular choice of law obligatory, it will be bound to make the choice of law in accordance with these directions. Where there are no statutory directions, it will make its own choice of law in accordance with general juristic principles as best it can.

107. It is of interest to note that in the judgment in that case it is conceded that the personal law of a community was correctly administered in the Mofussil Courts only by virtue of general directions for administering the principle of “ justice, equity and good conscience “ without any specific direction in the case of the personal laws of communities other than Hindu and Mahomedan. A passage to this effect is as follows (at page 519):—

“On the other hand the Mofussil Courts under their Regulations freely administered the Mahomedan law where (both the parties were Mahomedans or the Hindu law where both the parties were Hindus and in all other cases they applied what they considered to he rules of justice, equity and good conscience. The only prohibition enjoined on those Courts was that they were not to import any English or foreign law. It was therefore open to and easy for the Mofussil Courts to apply, not only in some matters but in all matters, the personal laws, not only of Mahomedans and Gentoos but of all communities as principles of justice, equity or good conscience just as the Supreme Court in exercise of its civil jurisdiction let in the English law and equity as rules of justice and right.”

108. It will be seen therefore that even prior to the Act of 1915 the position with regard to the Mofussil Courts was this: Firstly, it was clear that the Court had jurisdiction. Secondly, there was an absence of any express statutory enactment giving positive direction as to any specific personal law to be applied. Thirdly, the Mofussil Courts were prohibited by their Regulations from administering English law. Fourthly, the Mofussil Courts under the general guise of justice, equity and good conscience freely and habitually administered Jewish Law or other personal laws in addition to Hindu and Mahomedan Laws in their Courts. Now the position here as I see it in this High Court in regard to the present case regarding the question of marriage is very similar. Firstly, this High Court has clearly jurisdiction for the reasons I have already shown. Secondly, there is the absence of an express direction as to what specific personal law has to be administered. Thirdly, this High Court is prevented from administering in the present case English Law not as the Mofussil Courts are by reason of any enactment or regulation, but by the inherent impossibility arising from the nature of the English Law as to marriage and the nature of the subject-matter of this suit which is a question between a Hindu and a Mahomedan regarding their marriage. In passing I would say with con-fidence, that no enunciation of law can make it possible for me, either where there might be two Hindu parties (man and wife) or where there might be two Mahomedan parties (man and wife) or in a case such as the present, namely, where there is one Hindu party the husband and one Mahomedan party the wife, in any question connected with their marriage, to adjudicate the case according to English Law. I can no more do this than I could decide a question between an Englishman and his wife as to a Christian marriage by applying either the Hindu or the Mahomedan Law. Therefore the application of plain English Law of Marriage to the present case is out of the question. Fourthly, this High Court has been given the general direction of statutory force to administer “ justice and right.” In these circumstances I conceive it to be open to this Court and the duty of this Court to administer their personal law to the parties in the guise of justice and right. The only question that would remain is, whether that law should be the Mahomedan Law of the Petitioner, or the Hindu Law of the Respondent, or such a consideration of the inter-reaction of both laws as will not commit a violation to the legal rights of either and as will be in conformity with justice and right.

109. I have followed, and with great respect, fully agree with the distinction drawn by his Lordship Mr. Justice Das between the indigenous laws which were administered (in preference to English Law which was prohibited) by the Mofussil Courts in the guise of justice, equity and good conscience and the English law which was administered in preference to personal laws by this High Court as a successor to the Supreme Court. I see however nothing inconsistent with the judgment in that case in this Court administering personal Hindu or Mahomedan Law in a question of marriage, when the matter cannot be governed at all by English Law.

110. The only previous case in this High Court to which my attention has been drawn, or which I have been able to trace, which is any authority to the contrary of the granting of a decree in the present case is the case reported in In the matter of Ram Kumari cited above. There the Petitioner, originally a Hindu woman, had originally married according to Hindu rites. Subsequent to the marriage she had become a convert to Islam and had married a Mahomedan. She was then charged with, and convicted of, an offence under sec. 494 of the Indian Penal Code for bigamy. It was held on the particular facts of that case that her original Hindu marriage had not been dissolved; and that as the validity of her second marriage depended on the Mahomedan Law and as that law would not allow plurality of husbands the second marriage must be void if the first marriage was valid. It was held accordingly that the conviction was right. It will be seen that there are various important matters in which that case differs from the present case. One of the grounds on which the Court came to this decision was firstly that the Petitioner had never given any notice to her former husband and secondly that she had never obtained the intervention of the Courts of Justice, as she might have done, by instituting a suit after notice to the husband for a declaratory decree that under the Mahomedan Law, which was her personal law since her conversion, her former marriage was dissolved and that she was competent to marry again. It was in these circumstances only that it was held that her previous marriage was not dissolved. It will be further seen as I have already noticed that it was there held that British India was not a foreign country within the meaning of Islamic Law. As the consequence of this, it would have been necessary for her to give notice to her husband to embrace the Mahomedan faith; and it was therefore held that she could only have had her marriage declared dissolved by a Kazi or a Judicial Court of this country; and as that had not been done her marriage was not dissolved. Having regard to these various matters I do not consider that the decision in that case stands in the way of my passing a declaratory decree as asked for in the present case.

111. Since that case, there has recently been the decision of the trial Court and the Court of Appeal in the Tiscenko case. The observations of the Court of Appeal in that case are directly relevant to such a case as the present. While the case was decided on the sole point of want of domicile, their Lordships in the Appeal Court expressly reserved their opinion on such matters as have arisen directly in the present case. As I understand, however, the observations in the judgments of all the three members of the Court, even though these may have been obiter, seem clearly to indicate that in a case such as this, where the parties are domiciled in India, they would have held that a suit under sec. 42 for a declaration of dissolution of marriage would lie. My decision in the present case as I read those judgments is therefore fully in consonance with the observations of all the three learned Judges in the Court of Appeal.

112. I want furthermore to record that my present decision is only following what has been, as far as I know, the established practice of this High Court: to grant declarations of dissolution of marriage in such cases as the present. In this respect I follow with pleasure the separate decisions of two eminent previous Judges of this Court, that of his Lordship Mr. Justice Buck-land and his Lordship Mr. Justice Panckridge. The decision of the last-mentioned Judge in 1929 in Musst. Ayesha Bibi v. Bireswar Ghosh Mazumdar . 1928-29 33 C.W.N CLXXIX will be found reported in 33 C.W.N. (notes section at clxxix) while the unreported decision in the other, case of Chelimut-nessa v. Surendra Nath Sen . Unreported in 1924 is there referred to. Reference in passing may also be made to 33 C.W.N. (Notes Section) at page clxxxvii, where there was discussion of certain aspects of the matter by a correspondent. It may be emphasised that the declaration now sought for and being made by me is a declaration under sec. 42 of the Specific Relief Act subject to all the limitations as to the, parties who will be bound thereby which are imposed by the terms of the Specific Relief Act itself. On the point of a party being entitled to come to this High Court by virtue of sec. 42 of the Specific Relief Act for a declaration regarding his or her rights in relation to a question of marriage it was expressly observed by his Lordship Mr. Justice Nasim Ali in Tiscenko's case on appeal (cited above) that in his: opinion such a suit would lie. From the perusal of the judgment of his Lordship the former Acting Chief Justice Ameer Ali it will readily be seen that there is considerable thought and learning underlying the observations briefly given by him in the judgment in that case. From the trend of his observations he would appear to have said enough to indicate that his opinion also, had it been necessary to decide such a case as the present case, would clearly have been the same as the decision I have arrived at; and furthermore that the administration of the personal Mahomedan Law to parties in such a case as this would be in no sense contrary to public policy. It is to be observed that in this case the husband the Defendant has offered no objection to the declaration being made as prayed for by the Plaintiff. Having regard to the foregoing considerations I have accordingly to grant the decree in favour of the Plaintiff as prayed for.

113. The Plaintiff has asked for a formal order giving her the costs of this suit although it has been indicated on her behalf that she does not propose to press for it. I make the order that the Plaintiff is to have the costs of this suit but as of an ordinary undefended suit only so that the Defendant will not be liable for any extra costs entailed by the extra hearings when the Advocate-General and Mr. Sinha appeared as amicus curiae.

S.C.S