Agnes Sumathi Ammal vs D. Paul

Mockett, J.—This is a petition under the Indian Divorce Act by a wife against her husband. She prays for a decree for nullity of her

marriage. It is conceded that the husband is a domiciled subject of H.H. The Maharaja of Mysore; that is to say, he is what is known as a

Mysorean. The marriage was in Mysore State, and the parties lived together in Mysore State. It is axiomatic that the domicile of the wife is the

domicile of the husband, and that the nationality of the wife is the nationality of the husband. Therefore the Petitioner must be regarded as a

domiciled subject of Mysore State. Apart from the facts, the defence to this case is one of jurisdiction. The Respondent says that this Court has no

jurisdiction under the Indian Divorce Act to grant the decree.

With regard to the facts, I have no difficulty whatever. The Respondent has not gone into the witness-box. The wife has gone into the box. I

shall first deal with the medical aspect. She has told me--and I accept her story--that from the very beginning of her marriage the Respondent had

some sort of physical aversion to any marriage relations with her and that in fact no marriage relations with her took place although she apparently

at least made some sort of advances to her husband. That evidence is not contested. I did not think it right, although I could have accepted it

uncorroborated, had I thought fit, to allow this case to be proved on the evidence of the wife alone [ AIR 1931 245 (Lahore) and cases cited

therein], and so Mr. Coelho who appears for the Petitioner, at my suggestion, has called a lady of high qualifications and she has told me that she

has examined the Petitioner"", and that, as far as it is possible to say, the Petitioner is a virgin. I did not appoint a special board in this I thought it

sufficient for the Petitioner to call a doctor of whom I approved and it is quite obvious that the evidence of Dr. Satur was such evidence as I could

accept without any question. Therefore, on the question as to whether this marriage was consummated, I am definitely of opinion that it was not,

and I am definitely of opinion that there was nothing on the part of the Petitioner which led to that state of affairs. I am entitled to infer and I find

that the Respondent is impotent quoad the Petitioner.

The only other question of fact is whether the Petitioner was resident in Madras. ""Residence"" means not residence for the purpose of invoking

the divorce law but bona fide residence. There is ample authority for that proposition and it only requires stating. Now what are the facts? The

wife, the Petitioner, lived with her husband for a short time only, and afterwards with her mother and father. The father died on 17th February

1934, and from the time of his death until November 1934 the Petitioner continued to live with her mother at a place called Doddaballapur, about

twenty-four miles from Bangalore. In November 1934 she came to Madras with her mother. Her action in coming here has been strongly criticised

by the learned Counsel for the Respondent, which he is quite entitled to do. He suggests that it was a move in order to get the advantage of suing in

this Court. But the Petitioner''s mother has told me--and I accept her evidence--that she herself was a Madrasee, and, that being so what is more

natural than that after the death of her husband, and after his properties, as she has told me, had been disposed of in Mysore State, she should

come back to Madras? There is a special reason for that because it appears that Mr. Asirvadam Pillai, an Honorary Magistrate in this city, who

has given evidence and who lives at ""Gifford House"", Kilpauk, had apparently offered them a home here, and there was very good reason to do so

because his son had married the Petitioner''s sister. A combination of the above circumstances seems to me to lead to the most natural conclusion

that these two women left alone, deliberately by the Petitioner''s husband and adventitiously by the death of her father, should go back to the place

where apparently the mother had been before and where she had kind friends. And I think it right to say that I can see no reason for criticising Mr.

Asirvadam Pillai''s behaviour at all; on the contrary, he seems to have taken a most commendable attitude in coming to the rescue of these two

women who, in the manner I have described, had found themselves without the assistance of any of their men-folk. He seems to have given them a

home in his house and generally has behaved as one would hope that most men would behave to women in some degree of distress. I therefore

find that so far as the residence is concerned the Petitioner is genuinely a resident in Madras and that from that point of view is entitled to invoke

the jurisdiction of this Court.

So much for the facts. ""With regard to the law, I am proposing to take time to consider the matter as a point of very great importance is raised.

At this stage I only desire to say this. The Respondent''s attitude is: you cannot get this marriage annulled in Mysore State because there is no

legislation there for that purpose; you cannot get this marriage annulled in the Madras Presidency (or anywhere else) because the Madras High

Court has no jurisdiction; and so, by inference, he says, you will remain married to me and unable to marry anybody else just as long as I live

although I am not prepared to live with you on the terms that are usual between husband and wife. That is an attitude that he is entitled to take up if

it is the law. What I have to consider is whether it is the law, and, as I have already said, that is a point that I propose to consider and will deal with

it at a later date.

The Respondent''s Counsel contends that this Court has no jurisdiction inasmuch as (i) the Respondent was and is domiciled in Mysore State,

(ii) the marriage was in Mysore State, and (iii) the Petitioner and Respondent have never resided in British India together. It is necessary therefore

to consider the provisions of the Divorce Act IV of 1869 as amended by Acts XX of 1926 and XXX of 1927. The object of these last two Acts

was to clarify the position in India owing to the uncertainty which had arisen with regard to the power of Indian Courts to dissolve marriages of

persons not domiciled in India, a doubt which was brought to a head by the decision of the President of the Probate, Divorce and Admiralty

Division in Keyes v. Reyes and Gray [1921] P. 204., and it will be seen that since the amending Statute of 1926 this Court has power only to

dissolve marriages of persons domiciled in India at the time when the petition was presented. The Act followed on a conflict of judicial decisions in

this country, of which Wilkinson v. Wilkinson ILR (1923) 47 Bom. 843, Lee v. Lee ILR (1924) Lah. 147 (F.B.) and Miller v. Miller ILR (1924)

Cal. 566 are examples. The result now is that, so far as the statute law in India relating to dissolution is concerned, it is in accord with the

established rule of Private International Law, but so far as decrees for nullity are concerned the Indian Statute still confers upon the Indian Courts

jurisdiction under certain circumstances. This would appear also to be according to the rules of Private International Law as enunciated by Jeune

P. in Roberts v. Brennan [1902] P. 143 with this variation that under the Indian Divorce Act it is the Petitioner''s residence which is material. I am

however bound to point out that, since the decision in Salvesen or von Lorang v. Administrator of Austrian Property [1927] A.C. 641--a decision

of the House of Lords--and Inverclyde v. Inverclyde [1931] P. 29, it is open to argument whether according to Private International Law domicile

is not essential to give a Court jurisdiction in suits for nullity based on grounds of impotence, as distinct from other grounds. In other words, it

would appear that the rule, as recognized at least in England, is that suits for nullity on grounds of impotence and suits for dissolution of marriage

are, so far as jurisdiction is concerned, identical, i.e., that only a decree of the forum domicilii will be recognized. This of course is only relevant if

and when the recognition of this Court''s decree of nullity by a Foreign State arises. It is clear that under the Indian Divorce Act as amended I have

express jurisdiction conferred upon me to grant a decree for nullity which is unquestionably binding in British India even though the parties are

domiciled elsewhere. Whether Foreign Courts will recognise such a decree is of course another matter and will depend on whether the decision in

Salvesen''s case and Inverclyde v. Inverclyde [1931] P. 29 is adopted as stating the rules of Private International Law.

It is however contended on behalf of the Respondent that the Divorce Act expressly or by implication excludes the Petitioner from its operation.

Section 2 of the Act reads as follows:

This Act shall extend to the whole of British India, and (60 far only as regards British subjects within the dominions hereinafter mentioned) to the

dominions of Princes and States in India in alliance with Her Majesty.

Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the Petitioner (or Respondent) professes

the Christian religion,

or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is

presented,

or to make decrees of nullity of marriage except where the marriage has been solemnised in India, and the Petitioner is resident in India at the time

of presenting the petition,

or to grant any relief under this Act other than a decree of dissolution of marriage or of nullity of marriage, except where the Petitioner resides in

India at the time of presenting the petition.

It should be noted that residence must be in India ""not"" in British India"". It is conceded that the Petitioner''s husband is not a British subject but a

subject of Mysore State. The Petitioner however relies on that part of Section 2 which confers jurisdiction in suits for nullity when the marriage has

been solemnised in India and the Petitioner is resident in India at the time of presenting the petition. Both those conditions are satisfied in this case.

The Respondent still contends that those words only apply to parties governed by the Act, which he contends does not apply to Indian subjects of

Mysore State. I agree that the wording of the Act is at the least difficult to interpret; but the principal statute has by amendment deliberately

introduced into it the words ""and the Petitioner is resident in India"". It must be noted also that the marriage need not be solemnised in British India

but simply ""in India"". Section 2 seems to mean this, that so far as a suit for dissolution is concerned a domiciled British subject but resident in

Mysore State can invoke this Court''s jurisdiction, but that so far as a suit for nullity is concerned any person resident in India who has been

married in India can bring a suit for nullity. In Roberts v. Brennan [1902] P. 143 the President held that it (the Court) had power to annul the

marriage of a domiciled Irishman; and I imagine that the object of the Indian Divorce Act was to enact rules of Private International Law as then

generally recognized. I am told that there is no Court in Mysore which can dissolve or annul the marriage of an Indian Christian. It is difficult to

suppose that the intention of the Legislature was to leave the Indian Christians resident in India who are subjects of a Foreign State without any

remedy whatsoever. The whole object of the Act, as stated in the preamble, is ""to amend the law relating to the divorce of persons professing the

Christian religion"". In two cases in England, Stathatos v. Stathatos [1913] P. 46 and DeMontaigu v. DeMontaigu [1913] P. 154, where the party

before the Court had no apparent remedy, Judges of the Probate, Divorce and Admiralty Division assumed for themselves jurisdiction, the

Petitioner''s position being, as stated in one of the cases, ""intolerable."" I do not think it is necessary for me to do that as I think that jurisdiction is

expressly given me by the Act--and I am governed by the Act--not by rules of Private International Law.

I have only to add that I think it is clear from Section 3 of the Indian Divorce Act and Sections 3 and 4 of the Code of Criminal Procedure that

this High Court is the proper tribunal for petitions emanating from Mysore State.

The result therefore will be, there will be a decree for nullity with costs.

A question has arisen as to whether this decree should be nisi or absolute. It is unquestionably the practice in this High Court to make decrees

of nullity nisi. This however appears contrary to the practice in the other High Courts and to the Act, and I think this is a matter of importance

which should be finally determined. I therefore refer this point to a Bench for decision. I may say that I am not at all satisfied with my own judgment

in Original Matrimonial Suit No. 5 of 1934 on this point. The point I wish to refer is whether a decree under the Indian Divorce Act for nullity

should be a decree nisi or a decree absolute.

I direct that the papers be placed before the Chief Justice.

[The judgment of the Full Bench on this point is reported at page 518 et seq.]