NINA DALAL Vs. MERWANJI PHEEOZSHAW DALAL

JUDGEMENT

(1.) This appeal comes before us on the preliminary issue whether this High Court has jurisdiction to entertain the petition of the petitioner for restitution of conjugal rights. The learned trial Judge decided that issue in the negative feeling himself bound by a decision of the appellate Court in Nusserwanji Wadia V/s. Eleonora Wadia (1913) 15 Bom. L.R. 693, s.c. I.L.R. 38 Bom. 125. The petitioner now appeals, and as this is a Full Bench, we are not bound, as the learned Judge was, by that particular decision. So in effect this appeal is an appeal from the decision in Wadia V/s. Wadia. The sole ground on which it is contended by the respondent that the judgment should be upheld is that both parties to the petition are not Christians but only one, and that, consequently, the jurisdiction given or continued to this Court by the Indian Divorce Act 1869, as subsequently amended, does not apply.

(2.) As regards the facts, it is sufficient to say that the lady claims to be a Russian and a Christian who was married in Paris in June 1929 to the defendant, a Parsi, according to the law of France before the local mayor. A certificate of that marriage is annexed to the petition. She alleges that at her husband's invitation she subsequently came to Bombay, but has been neglected by him ; and accordingly she brings her petition for restitution of conjugal rights. Both parties at the date of the petition and previously were residing in Bombay, and so far as the evidence before us goes, are still residing in Bombay. So it is clear that at material dates they were residing within the jurisdiction of this High Court.

(3.) Now the petition, as I have already said, is one for the restitution of conjugal rights. That is based on Section 32 of the Indian Divorce Act of 1869 which runs :-- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, either wife or husband may apply, by petition to the District Court or the High Court, for restitution of conjugal rights, and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.