ROSETTA EVELYN ATTAULLAH Vs. JUSTIN ATTAULLAH

JUDGEMENT

(1.) The petitioner wife filed an' application under Section 10, Divorce Article for dissolution of her marriage with the respondent. Neither the respondent nor the co-respondent appeared before the lower Court. The decree nisi was passed ex parte by the Additional District Judge, Alipore. When the proceeding came up before this Court for confirmation appearance was entered on behalf of the husband respondent. On his behalf it was contended that the Alipore Court had no jurisdiction to entertain the application.

(2.) In the petition for dissolution of marriages it was stated that the parties were domiciled in India at the time of their marriage in 1948. Evi- deuce was led to this effect on behalf of the petitioner and the learned Judge came to a finding that it was so. Under Section 2, Divorce Act, it is necessary that there should, be a definite finding that the parties were domiciled in India at the time when the petition for dissolution was presented. During the ex parte hearing no evidence was adduced in support of such a case and no finding was recorded by the Judge. The attention, of this Court having been drawn to this matter by the respondent the following issue was sent down for decision by the trial Court: "Were the parties domiciled in India at the time when the petition was presented".

(3.) After this issue had been sent down evidence was led by the parties and on a consideration of such evidence the Additional District Judge has recorded the finding that at the time when the application for dissolution of marriage was presented on 2-5-1950, the parties were domiciled in the dominion of Pakistan and not in the Republic of India.