Zahoor Ahmad Beg v. Mst. Tahrabi

1. This judgment will also govern the decision of Second Appeal No. 659 of 1946.

2. Zahoor Ahmad, the appellant in both these appeals, is the husband of the respondent Mst. Tahrabi. The parties were married on 23-5-1938. After the marriage the wife went to live in her husband's house and stayed there till December 1938, though during this period she used to visit her father's house occasionally. On 28-5-1938 she executed in her husband's favour a deed of relinquishment of her dower. It is alleged by her that this deed was obtained from her by force by the husband and that he had actually pointed a loaded gun at her in order to secure her signature on the deed. It is also alleged that during the time the two lived together, the husband treated the wife with cruelty and even caned her. It is also said that the husband's family was dissatisfied with the looks of the wife and her capacity to do household work. A good deal of correspondence passed during this period between the husband and the girl's father Wahiduddin. The girl returned to her father's house about the middle of December 1938. On 21-12-1938 she lodged a complaint with the Police to the effect that she was made to execute the deed of relinquishment by force. At this stage, friends and well-wishers of the families of the parties intervened and the matter was compromised on 5-1-1939. Under that compromise, Zahoor Ahmad destroyed the deed of relinquishment executed in his favour by Mst. Tahrabi and solemnly undertook to live with her and treat her with love and affection. Wahiduddin on his part executed an agreement under which he agreed to destroy all the letters which were received by him from Zahoor and promised to send back Mst. Tahrabi to Zahoor's house the moment she was sent for by the latter. According to Mst. Tahrabi, despite the compromise, her husband did not take her to his house or maintain her and that she was therefore compelled to institute proceedings against him under Section 488 of the Cr PC and secure an order for maintenance from the Court. Further, according to her Zahoor declined to return to her the ornaments which were given to her by her father as dowry and that she was forced to sue him for the price of those articles. She states that she obtained a decree against Zahoor for Rs. 719/14/-. According to her, she was living with her father right from 5-1-1939 to the date of suit and she feels that there is no chance of her husband ever treating her with consideration or in accordance with the injunctions of the Quoran. On these grounds she sought dissolution of her marriage with Zahoor. She has also stated as follows in para. 4 of her plaint:

“The cause of action accrued in December 1938 and subsequently on every other occasion when plaintiff's life was made miserable by cruelty of conduct on the part of the defendant and in the year 1939 when the defendant refused to return the plaintiff's articles at Jabalpur within the jurisdiction of this Court.”

3. On the basis of this pleading it was argued in the Courts below that Mst. Tahrabi was entitled to obtain a divorce on the ground of her husband's cruelty.

4. Zahoor denied cruelty or his unwillingness to maintain Mst. Tahrabi. According to him, after the compromise she actually went to live with him at Jabalpur and then she accompanied him to Banda where he was posted as a Sub-Inspector of police. He says that she actually lived with him for about two months and then, while he was on tour, she of her own accord left his house and returned to her father's house at Jabalpur. It may be mentioned that after Mst. Tahrabi secured an order for maintenance in her favour, Zahoor married a second time and that this woman is still living with him as his wife. As a counter-blast to the suit for divorce, Zahoor brought a suit for restitution of conjugal rights against Mst. Tahrabi. To this suit he joined Wahiduddin as a defendant.

5. The trial Court dismissed the suit for divorce but decreed the suit brought by Zahoor for restitution of conjugal rights. The lower appellate Court reversed the decision of the trial Court in both the suits and granted a divorce to Tahrabi. Zahoor has therefore come to this Court in appeal against both the decisions of the lower appellate Court.

6. In September 1948, Zahoor admittedly migrated to Pakistan and he is still living there. It was stated before me by Shri Shareef that a few days before he left for Pakistan, Tahrabi left her father's house and joined him in his house at Jabalpur and actually went to Pakistan along with him. According to him, the two are living together as a man and wife ever since.

7. Shri Razak who had put in appearance on behalf of Tahrabi in this Court tried his best to obtain instructions on the point but was unable to do so, though he did state before me at one stage that he had heard that the girl had gone and joined her husband in Pakistan. It was then suggested by me that the matter should be settled and that both the parties should withdraw their respective suits. Shri Razak then tried to get into touch with his client Tahrabi, but without success. Ultimately he sought the permission of the Court to withdraw from both the appeals, and he has been accorded permission to do so.

8. When it was brought to my notice that both the parties had migrated to Pakistan, I felt some doubt as to the power of this Court to grant restitution of conjugal rights or to affirm the decree for divorce. I therefore requested counsel to address me on the question of the competence of this Court to decide these two matters. Both Shri Shareef as well as Shri Razak addressed arguments on this point and both were agreed that this Court had jurisdiction to decide these two matters.

9. Dicey in his Conflict of Laws, 6th edition, has formulated the following rule at page 216:

“The Court has jurisdiction to entertain proceedings for the dissolution of the marriage of any parties domiciled in England at the commencement of the proceedings.

This jurisdiction is not affected by—

(1) the residence of the parties; or

(2) the allegiance of the parties; or

10. Similarly, Dicey has said at page 368:

“The Courts of a foreign country have jurisdiction to dissolve the marriage of any parties domiciled in such foreign country at the commencement of the proceedings for divorce.”

11. At the commencement of the suit, both the parties were domiciled in India and therefore, according to this rule, this Court, though a foreign Court in relation to persons who have migrated to Pakistan, has jurisdiction to decide the suit for divorce. In this connection I may also refer to — ‘Salvesen v. Administrator of Austrian Property’, (1927) AC 641 at p. 665 (A), where following the decision in — ‘Le Mesurier v. Le Mesurier’, (1895) AC 517 (B), it has been laid down that it is established that the law of England recognizes the competence and the exclusive competence of the Court of the domicile to decree dissolution of a marriage. There is therefore no doubt whatsoever that this Court has jurisdiction to deal with the appeal arising out of a suit for divorce. Then as regards restitution of conjugal rights, it is clear from what is stated in Halsbury's Laws of England, Volume 6, paras. 356, 350 and 382, and in Volume 10, para. 1027, that what is material for giving jurisdiction to the Court is the residence of the parties within the jurisdiction the Court at the time of the institution of the suit. The parties were admittedly resident in India when the suit and when even the second appeal was filed. A decree that may now be passed in second appeal would be binding on the parties and can be executed even outside the jurisdiction of this Court or even outside this country.

C/M.K.S

12. Order accordingly.