NOOR JEHAN BEGUM Vs. EUGENE TISCENKO

JUDGEMENT

(1.) In this case a lady who describes herself as Noor Jehan Begum sues for a decree for the dissolution of her marriage with Eugene Tiscenko, a Russian subject, at present residing at Edinburgh in Great Britain. In the alternative, she asks for a declaration that her marriage with the defendant stands dissolved. The plaintiff's suit first appeared in the undefended list but, having regard to certain legal points of far-reaching importance which arise in connexion with this matter, I thought it desirable that the law relating to the case should be discussed in full, and I therefore asked Mr. S. M. Bose to appear as amicus curiae. He has been assisted by Mr. Clough and Mr. Das, and I am very grateful to these gentlemen for the help which they have given me in deciding this ease. In her plaint the plaintiff states that she is of Russian parentage and until recently was a Christian. She was born in Poland and, on 28 May 1931, was married in Berlin according to civil rites to the defendant, who is a Russian. She goes on to state that she lived with her husband at various places in Europe until June 1938, during which period her life with her husband was unhappy. The parties last resided in Rome whence the plaintiff came to Calcutta, while the defendant went to Great Britain in order to qualify himself for a British medical degree. The plaintiff arrived in Calcutta at the beginning of September 1938, where she has been residing ever since, and the defendant has not joined her. She states that her husband has not been maintaining her or her son since their arrival in India and she has been living partly on her own earnings and partly on help received from her mother from time to time. In para. 7 of her plaint she states that, on 27 June 1940, she 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 19 Chowringhee Road, Calcutta. In para. 8 of the plaint the plaintiff states that upon her conversion as aforesaid she sent a message by telegram on 28 June 1940 to the defendant informing him of her conversion to Islam and calling upon him to accept the Islamic faith. The defendant however did not comply with the plaintiff's request and indignantly refused to embrace Islam. The defendant informed the plaintiff of that fact by a telegraphic message which was delivered to the plaintiff at her place of residence aforesaid on 2 July, 1940.

(2.) If it be the law that the plaintiff by reason of her conversion to Islam is entitled either to a decree for the dissolution of her marriage with the defendant on the ground that the latter has refused to adopt Islam, or a declaration to the effect that the marriage stands dissolved by reason of her conversion, it is of course, essential in the first place for her to satisfy the Court that her conversion is of a bona fide character. She has given evidence on this point, which indicates prima facie that her conversion was bona fide. It is unfortunate that it has not been possible for Mr. Bose to test this evidence by means of cross-examination as, in his capacity as amicus curiae, he has no instructions upon which such cross-examination could be based. In certain respects the plaintiff's testimony cannot be regarded as being very convincing in its nature, but in view of the fact that it stands unrebutted, I am not in a position to hold that she was not a bona fide convert to Islam. The plaintiff's suit must therefore be decided on the footing that she has been converted from Christianity to Islam, but the question must be examined whether the fact of her conversion coupled with her husband's refusal to adopt her new faith, constitutes a ground sufficient in law to enable this Court to grant the plaintiff the relief which she seeks. At the outset I think it is desirable to formulate certain general principles relating to matrimonial suits, which appear to be firmly established according to private international law. Those principles have been concisely summarized by Sir John Beaumont C. J. in Muncherji Kursetji Khambatta V/s. Jessie Grant Khambata ( 35) 22 AIR 1935 Bom 5 as follows: Certain principles of law relevant to the determination of this question are, in my opinion, firmly established in the realm of private international law: (1) The forms necessary to constitute a valid marriage and the construction of the marriage contract depend on the lex loci contractus, that is, the law of the place where the marriage ceremony is performed; (2) on marriage the wife automatically acquires the domicile of her husband; (3) the status of spouses and their rights and obligations arising under the marriage contract are governed by the lea domicilii, that is by the law of the country in which for the time being they are domiciled : see Harvey V/s. Farnie (1883) 8 AC 43 and Nachimson V/s. Nachimson (1930) LRP 217; (4) the rights and obligations of the parties relating to the dissolution of the marriage do not form part of the marriage contract, but arise out of, and are incidental to, such contract, and are governed by the lex domicilii : see Nachimson V/s. Nachimson (1930) L R P 217.

(3.) In addition to the four general principles formulated above, there is a fifth rule of general application, which has been stated by Sir Shadilal C. J. in Lee V/s. Lee ( 24) 11 AIR 1924 Lah 513 at p. 157 in the following terms: It is the duty of the Court before which an action of this description is brought to decide, in accordance with the rules of its own municipal law, whether it has jurisdiction to entertain the action. If the lex fori contains a definite rule governing jurisdiction over the case, that rule must be followed irrespective of the question whether it is in accordance with the corresponding rule of other countries or not, and whether the decree granted by the Court would or would not be recognized by the tribunals of a foreign country.