NOOR JEHAN BEGUM Vs. EUGENE TISCENKO

JUDGEMENT

(1.) This is an appeal against the judgment of Edgley J., dated 3 January 1941 ( 41) 28 A.I.R. 1941 Cal. 582 dismissing the plaintiffs suit. The plaintiff asked for a declaration that her marriage with the defendant stands dissolved, alternatively a decree of dissolution of her marriage. The plaintiff-appellant, who sues as Noor Jehan Begum, was born in Poland. She married the defendant-respondent Eugene Tiscenko, a Russian subject (at present said to be residing at Edinburgh in Great Britain) on 20 May 1931, in Berlin according to civil rites. The parties lived together at various places in Europe until June 1938 and had one son Oleg. The plaintiff and the defendant last resided together Jn Rome from which place the plaintiff came to Calcutta while the defendant went to Edinburgh to qualify himself for a British Medical Degree. The plaintiff arrived in Calcutta on or about 1 September 1938 where she has resided ever since; the defendant has not joined her. The plaintiff states that her husband, the defendant, has not maintained her or her son since their arrival in India and that she has been living partly on her own earnings and partly on help received from her mother. The plaintiff further states that her married life with the defendant has been unhappy, and rinding whilst in Calcutta, relief and solace in the teachings of Islam on 27 June 1940, of her own free will and after due deliberation, embraced the Islamic faith and took the name of Noor Jehan. The conversion took place at the Nakoda Mosque at No. 19, Chowringhee Road in Calcutta. Upon her conversion, the plaintiff states that she sent a cable to her husband on 28 June 1940 informing him of her conversion to Islam and requested him also to accept the Islamic faith. The telegram reads as follows: To Tiscenko, 24, Montepelier Park, Edinburgh. Have become Mohamedan. Call upon you become Mohamedan. Wire consent or refusal 19, Chowringhee Calcutta. From Tiscenko. On 2 July, 1940 a telegraphic message from the defendant was delivered to the plaintiff at her place of residence in Calcutta which runs as follows: My religious convictions unshakable. I refuse absolutely change my faith as you have done. Oleg must remain Greek Orthodox. Tiscenko. The plaintiff brought the present proceedings on 5 August 1940; the plaint was served by post on the defendant in Edinburgh. In reply to the service the defendant wrote the following letter to the plaintiff: 24, Montepelier Park,Edinburgh 1019-9-40. Dear Vera, I received the papers and was amazed on reading their contents. I hope you fully realise how much you have asked of me. The future will prove whether you do or not. For your sake and Oleg's I have acknowledged the receipt of the Writ and shall put forward no defence but I shall be glad to have your immediate assurance regarding costs. In this I trust you to fulfil your promise. I still hold all your correspondence. Yours sincerely,E. Tiscenko.

(2.) The suit first appeared in the undefended list and the learned Judge on 13 December 1940 pronounced a decree in her favour in Court, but the same day before the decree was drawn up and -signed withdrew it on a further consideration of the matter. The matter then came on for further shearing on 20 December 1940 when at the Judge's request Mr. S.M. Bose, a former standing counsel appeared as amicus curiae. After talking further evidence and hearing counsel for the plaintiff, and Mr. Bose, the learned Judge dismissed the plaintiff's suit. From that decision she now appeals. In these proceedings, Mr. S.M. Bose has again appeared as amicus curiae at the request of the Court, and the Court is deeply indebted to him for his assistance. The learned Judge has accepted the plaintiff's bona fides in the matter of conversion. Having regard to the legal view I take of our jurisdiction in this case I make no comment on this finding, nor on the actions of the plaintiff since 27 June. The proceedings are not brought under Clause 35 of the Letters Patent since the plaintiff does not profess the Christian religion. They apparently have been brought under Clause 12 of the Letters Patent, that is to say in the exercise of the Court's ordinary civil Jurisdiction. The first question is as the Court jurisdiction to grant the relief the plaintiff seeks? She is seeking relief either by way of a declaration that her marriage with the defendant stands dissolved or in the alternative a decree for dissolution of her marriage. She also seeks the custody of her child. In Le Mesurier V/s. Le Mesurier (1895) A.C. 517, an Englishman born and domiciled in England but living and working in Ceylon sought a dissolution of his marriage in a Court in Ceylon on the ground of the adultery of his wife. The wife contested the jurisdiction of the Court to entertain the proceedings. Eventually the matter came before the Privy Council. Lord Watson gave the judgment of the Board, and after reviewing all the then authorities and the pronouncement of several writers of authority on Private International law concluded with these words: Their Lordships have in these circumstances, and upon these considerations, come to the conclusion that, according to international law the domicil for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage. They concur, without reservation, in the views expressed by Lord Penzance in Wilson V/s. Wilson (1872) 2 P.& D. 4422 which were obviously meant to refer, not to questions arising in regard to the mutual rights of married persons, but to jurisdiction in the matter of divorce : It is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled. Different communities have different views and laws respecting matrimonial obligations, and a different estimate of the causes which should justify divorce. It is both just and reasonable therefore that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws. An honest adherence to this principle, moreover, will preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another .

(3.) In my opinion, this Court can do no other than exercise its jurisdiction in accordance with the principles so laid down. The wife's domicil is that of her husband. What the husband's domicil in this case is, is very difficult to say. He appears to have been born in a part of Bussia which probably was included in Poland after the War of 1914-18; was married in Germany; obtained a passport at Nancy in France; and lived in Borne until he went to Edinburgh in June 1938 with the intention of qualifying there in medicine, his wife coming to India. His wife says he intended to join her in India. As he contemplated taking a British medical degree it may be that he intended settling in some part of the British Empire, but at the time of these proceedings he was in Edinburgh and, as far as one can gather, has never been nearer India than Borne a matter of some six thousand miles away. Again the defendant is not within the jurisdiction of this Court and never has been. Beyond acknowledging the receipt of the plaint to the Sheriff and writing the letter of 19 September 1940, to his wife, the defendant has had no contact with Calcutta or dealings here. He has not entered appearance in this suit or taken any steps in these proceedings. I am unable to draw the inference that the defendant has submitted to the jurisdiction of this Court. Even if he had done so, it would not have availed the plaintiff because as Cozens-Hardy, M.R., said in Harriman V/s. Harriman (1909) L.R.P. 1233 at p. 131 : "The jurisdiction in matters of divorce is not affected by consent." Wherever Eugene Tiscenko, the plaintiff's husband is domiciled he is not domiciled in India, and never has been. As the plaintiff's domicile is that of her husband's she is not domiciled in India. As the parties are not domiciled in India, it is clear that we cannot entertain this suit either in respect of dissolution of marriage or a declaration that the marriage status of the parties has been changed. I therefore agree with the learned Judge that this Court has no jurisdiction to entertain these proceedings. Had I thought that the question of jurisdiction was open to some doubt I should have been prepared to deal with the rest of the judgment appealed from; but in my view there is no doubt that we have no jurisdiction in this matter. The rest of the judgment appealed from deals with certain matters upon which my learned brothers and I myself experienced some difficulties and doubts in places, and must be regarded as obiter dicta. This appeal must be dismissed. No order as to costs. Ameer Ali, J.