Jogendra Nath Banerjee vs Elizabeth Banerjee and another

Jenkins, J.—This is a suit by a husband for dissolution of his marriage on the ground of his wife''s adultery. There is also a claim for damages against the co-Respondent. The wife and co-Respondent both deny the charge of misconduct, and further plead that the Petitioner is. not entitled to the relief provided by the Indian Divorce Act, because at the date of the petition he did not profess the Christian religion, or reside within the local limits of the ordinary appellate jurisdiction of this Court. As a decision on either of these preliminary points might obviate the necessity of any enquiry into the charges of misconduct, Mr. Bonnerjee, who appears for the Petitioner, has acceded to the suggestion that I should in the first instance dispose of these questions before taking evidence on the charge of adultery. This therefore I. will now do.

Did then the Petitioner reside at the time of presenting his petition within the local limits of the ordinary appellate jurisdiction of this Court?

The facts material to the decision of this point are as follows:--In 1889 the Petitioner went to England, and later to Scotland, to qualify himself as a medical practitioner. At Glasgow, he met and married the lady from whom he now seeks to be divorced.

In 1893 ho brought his wife out to India, and they took up their residence at Bhagulpore in a house belonging to the Petitioner''s father. I should hero state that the father had two houses at Bhagulpore, the one (which I will in future call the father''s residence) being that where ho and his family lived, the other (which I will call the lent house) being that where the Petitioner and his wife were allowed to live on their arrival in India. The young couple continued to live in the lent house, but ultimately, in consequence of, the Petitioner''s ill-health they left, and in February 1896, settled at Chandernagore.

It is contended on the part of the Petitioner that notwithstanding this fact ho still had a residence at Bhagulpore, and in support of this contention it is said he paid a number of visits there of such kind and number, as to constitute that place his residence, or at any rate one of his residences, having regard to the fact that his father''s residence was there. It will be necessary therefore shortly to refer to these visits. In March 1896 he went there with his wife, and stayed the whole of March, April and May, and part of June.

During these visits Mr. and Mrs. Banerjee lived in the lent house, not in the father''s residence, as according to the Petitioner''s own evidence, he could not well have taken his Scotch wife there It is a noteworthy fact, that on no subsequent occasion did Mrs. Banerjee visit Bhagulpore.

In June Mr. and Mrs. Banerjee returned to their house at Chandernagore, which they had kept on in the interval, and stayed there through the rest of June, the whole of July and August and part of September.

In this lastnamed month the Petitioner again went to Bhagulpore and stopped at his father''s residence, his visit extending until part of the way through October, when he once more returned to Chandernagore, but this time only for a month. Towards the end of November he returned to Bhagulpore and stayed there until Christmas day. That he spent with his wife at Chandernagore, where he remained until the following April.

He seems next to have gone to Bhagulpore in April 1897, and to have returned on the last day of the month. It was in this same month that his residence in Calcutta is alleged to have begun: for then it was, according to his case, that he for the first time took a room in Furiapooker Street. The Petitioner''s case is that he hired this room to assist him in his efforts to find a medical practice in Calcutta. This purpose however came to an end in the following June, when for the last time he made any enquiries on that subject. His object in still retaining the room, for this is what he alleges he did, was, he states, to carry on enquiries with regard to Mrs. Banerjee, who then had left him, enquiries, that is to say, for the purposes of this suit. The rent said to have been paid was Rs. 8 per month, and in support of this receipts have been produced, admittedly obtained after the commencement of these proceedings, and only to be used as evidence in it. The Petitioner''s visits to this room, oven on his own statement were of a most casual character, once a month or so, and then generally only for one night, occasionally (if his statement on the point notwithstanding its vagueness be accepted) extending to two or three days.

In addition to these visits it is said that the Petitioner on one occasion in September occupied the room for six or seven days; this was at the time of filing the petition, and this visit was necessitated by and was for the purpose of that step. The Petitioner swears that he kept on the room until December 1897, and it is further said that during all this time he continued to visit Bhagulpore.

It will thus be seen that the Petitioner to establish his residential qualification comes forward armed with two strings to his bow, and I will now consider whether either of them can bear the strain to which it is put.

Now it is provided by sec. 2 of the Indian Divorce Act that nothing shall authorize any Court to grant any relief under the Act, except in cases where the Petitioner (1) professes the Christian religion, and (2) resides in India at the time of presenting the petition. Then sec. 3 defining the High Court having jurisdiction in proceedings under the Act provides, that in the case of any petition under this Act " High Court" is that one of the Courts within the local limits of whose Ordinary Appellate Jurisdiction or whose jurisdiction under this Act the husband and wife reside or last resided together.

From this it will be seen that the Indian Legislature has not made domicile the test of the Court''s authority to grant a divorce. The departure from the test of domicile was deliberate, being influenced by the special circumstances of the residence in India of those who come to this country from Europe without the intention of permanently settling here, and it is important to bear this in mind when one comes to determine what force should be attributed to the provision as to residence contained in the Act. The word "reside" is by no means free from ambiguity; it is capable of a variety of meanings according to the circumstances to which it is applicable and the context in which it is found; that this is so, is at once obvious from a perusal of the many cases (some of which have been cited before me) where the force of the word has come under consideration, and I doubt whether any more definite rule is to be deduced from the decisions than that each case must be decided by reference to its own circumstances.

Taking the word in its ordinary acceptation, it conveys, I think, the idea, if not of permanence, at any rate of some degree of continuance : thus Bayley, J., in R. v. North Curry said, " I take it that that word where there is nothing to show that it is used in a more extensive sense, denotes the place where an individual eats, drinks and sleeps, or where his family or his servants eat, drink and sleep."

The degree of continuance is not capable of precise definition, but I take it, that to serve as a foundation for this important branch of the Court''s jurisdiction, a jurisdiction dealing with vital interests and leading to most important consequences on a matter in which there is a conflict in the law of nations, the residence to which the Act points must be something more than occupation during the occasional and casual visits within the local limits of the Court, more especially where there is a residence outside those limits marked with a considerable measure of continuance.

Now, in the present case, the Petitioner had a residence at Chandernagore, and that a residence which was capable of being properly described as his home. And so in his deposition in the course of the alimony proceeding the Petitioner stated that his residence was at Chandernagore. At the same time it may well be that he had a residence elsewhere, but the only question is whether the facts justify such a conclusion.

Can it then with any show of reason be said that the Petitioner was at the date of presenting the petition residing at Bhagulpore ? The first question that suggests itself is, where in Bhagulpore did he reside? Now Mr. Bonnerjee has argued that he resided at his father''s residence, urging that this was a family residence, and that therefore the Petitioner being a Hindu by race though not by religion, his permanent residence must be taken to have been there, more especially as his living at Chandernagore was merely for the sake of his health. Even it be assumed that the facts on which this argument is based were established, there still would be serious difficulties in the way of this contention.

The whole fabric of this theory rests upon the notion, that the Petitioner looked on his father''s residence as the place where he ultimately was going to live and make his homo.

Unfortunately for the argument the facts do not fit in as they should.

First, as I have already pointed out according to the Petitioner''s own evidence, the father''s residence was not a place where he could have taken his Scotch wife, so that he could not have had the intention of living there with her. It was for this very reason that he lived with his wife at the lent house while they both were at Bhagulpore, and that Mrs. Banerjee never, at any rate so far as the evidence discloses, lived at the father''s residence.

Then again, the Petitioner''s own evidence is singularly at variance with the mental attitude on his part which Mr. Bonnerjee''s argument demands : for he himself has stated that he regarded the lent house as his residence, a view quite in accord with the fact that the father''s residence was not suited to be his wife''s home.

Mr. Bonnerjee did not suggest, at least with any seriousness, that the lent house was in any way capable of being regarded as the place where the Petitioner resided at the date of the petition, nor could he well have done so in the face of the facts established by the evidence. In fact I can find none of those incidents in relation to the lent house which would go to constitute it the Petitioner''s residence at the crucial time. So far was the Petitioner from treating it as his residence that he did not even allow the trifling items of furniture, which he did not take to Chandernagore to remain in the lent house.

I have not overlooked the visits alleged to have been paid, from time to time, to Bhagulpore, but to place on them their true value and to give them their proper weight, it must be borne in mind in how large a measure they were made solely for the purpose of recovering the fees he claimed in the Law Courts at Bhagulpore, while even the first visit when Mrs. Banerjee accompanied him seems to have been for the purpose of a sister''s wedding.

The conclusion then to which I come is that Bhagulpore was not in any sense the place where the Petitioner resided when he presented his petition.

It now remains for me to consider whether the Petitioner had a sufficient residence at Calcutta. The evidence of the alleged tenancy is of a most unsatisfactory character and even the receipts that have been produced in my opinion have no evidentiary value, when regard is had to the circumstances under which they were obtained; indeed one can only wonder that it should have been thought worthwhile to procure these documents, or to tender them in evidence when procured.

Now it will be noticed that the Petitioner is said to have paid for the one room he took from Monmotho, the tenant under Kangali, Rs. 8, i.e., the amount paid by Monmotho for the two rooms he hold under Kangali. The Petitioner''s explanation is that he paid that amount because of the inconvenience to which he put Monmotho and his family, that is to say, the inconvenience of giving up this room --a room ordinarily occupied by some members of Monmotho''s family--whenever the Petitioner required to sleep there on the occasions of his visits to Calcutta. It would seem therefore that the Petitioner was not in exclusive occupation of this room, but that he was only accommodated there when he came to Calcutta, the room for that purpose being given up to him from time to time. This is still further borne out by the fact that the Petitioner was not permitted to cook in this room, and that (so far as the evidence disclosed) he never did anything beyond sleep there.

It has been said by James, L. J., in one of those cases where its widest meaning was given to the word, that man might be said to reside " where he is to be found daily;" but if one were to try even by that liberal test the alleged residence of the Petitioner in Calcutta, how little it would avail is made manifest by the evidence of Nagendra Nath Mazumdar.

This witness seems to have been the intimate friend of the Petitioner, and yet he stated here in Court that he had never even heard that the Petitioner had an address in Calcutta other than his attorney''s office.

Weighing then all the circumstances I cannot come to the conclusion that the Petitioner had such a residence in Calcutta as the Act requires. In my opinion the Petitioner has failed to discharge the burden of proof imposed on him by the Act, and he has not established his qualification to ask for the relief which the Act gives.

But then it was suggested by Mr. Bonnerjee in the course of his opening that he was entitled to rely on a wider jurisdiction which the Court possessed apart from the Act, He argued that such a jurisdiction existed by virtue of the Charter of 1774 and the Letters Patent of 1862 and 1865. It appears to me however clear that there is no such jurisdiction as Mr. Bonnerjee suggests, which would enable me to make a decree for dissolution of marriage in this case.

From the conclusion at which I have arrived on the question of the Petitioner''s residence it is not necessary that I should enter into the further question as to the profession by the Petitioner of the Christian religion. The result then is that the petition must be dismissed with costs on Scale No. 2.