HILLA MANEKSHA PANTHAKY Vs. MANEKSHA DARASHA PANTHAKY

JUDGEMENT

(1.) THIS is a chamber summons taken out by the defendant for revocation of the leave granted by this Court to the plaintiff on December 12, 1940, under Section 29(3) of the Parsi Marriage and Divorce Act of 1936 for the purpose of enabling her to file this suit in this Court.

(2.) THE suit is filed by the plaintiff against her husband for judicial separation, for permanent alimony, and for the custody of the children of the marriage. In paragraph 30 of the plaint it is alleged that the marriage cere mony was performed in Jalna in the Nizam State, that the defendant is a railway servant at Upalwai also in the Nizam State, and is residing there, that the plaintiff has now been residing in Bombay, and that it would be a - great hardship to her if she was compelled to institute this suit in a Court outside Bombay. THE application to the Court was made under Rule 782(2) of the Rules and Regulations for the Parsi Chief Matrimonial Court of Bombay. THE application has according to that rule to be supported by the affidavit of the plaintiff in which she has to set out the grounds on which the leave is asked for. That affidavit was made on December 12, 1940, in which she has stated inter alia that she is at present residing in Bombay, that some of her witnesses are in Bombay, that it would be a great hardship for her and her Bombay witnesses to go to Upalwai where the defendant is residing, and further that there is no Parsi Matrimonial Court either at Secunderabad or at Hyderabad for the purpose of trying suits filed under the Parsi Marriage and Divorce Act. THE defendant has made an affidavit under Rule 782(5), as he desires to contest the evidence on which the Couit granted leave to the plaintiff. His application has also to be supported by an affidavit, and the summons is to be taken out before filing the written statement or before the time to file the written statement expires, whichever is earlier. Defendant denies that there will be any hardship to the plaintiff in filing the suit in the Nizam, State. He. denies also that she is at present residing in Bombay for the purposes of the Act. Defendant also in paragraph 8 of his affidavit states that the plaintiff admits that she has not been residing in Bombay as required under the Act. I do not know where this admission has been made, nor what particular admission is referred to; none at any rate has been pointed out to the Court. It is, however, admitted that there is no Parsi Matrimonial Court in - the Nizam State for the purpose of trying suits under the Act. It is alleged that there is a Court in Secunderabad for trying suits between husbands and wives, but it is nowhere alleged that there is any Court at Secunderabad or in any part of the Nizam's dominions for trying a suit between a Parsi husband and a Parsi wife under the Parsi Marriage and Divorce Act of 1936. I quite agree that if this Court has no jurisdiction otherwise, the fact that there is no Court in the Nizam's dominions for the purpose of determining the suit may be no answer. THE defendant has put in a supplemental affidavit in which he further alleges that he is not a Parsi subject of His Majesty the King Emperor and is not a Parsi subject within the provisions of Section 1(2) of the Parsi Marriage and Divorce Act of 1936, and that therefore this Court has no jurisdiction to entertain the suit. THE defendant should have asked for leave to put in the supplemental affidavit before it was filed, but since it raises only a point of law which can be argued even without an affidavit, I have allowed both the supplemental affidavit and the plaintiff's affidavit in reply thereto to be taken on file.

(3.) THE expression "subject of His Majesty" is not defined, but I do not think there is any difference betweeni "subject of His Majesty" and "British subject". Under Section 2(a) of the Indian Naturalization Act, VII of 1926, "British subject" means a British subject as denned in Section 27 of the British Nationality and Status of Aliens Act, 1914. Under Section 27(2) of that Act "British subject" means a person who is a natural-born British subject,or a person to whom a certificate of naturalization has been granted, or a per son who has become a subject of His Majesty by reason of any annexation of territory. A British subject, therefore, unless a certificate of naturalization in a foreign country has been granted to him, means a person who is a natural-born British subject. Under Section 1 of the same Act certain persons are deemed to be natural-born British subjects, amongst them being, "(a) Any person born within His Majesty's dominions and allegiance." I need not refer to the other sub-sections, as they are not necessary for the purpose of this summons.