ALFRED WILKINSON Vs. GRACE EMILY WILKINSON

JUDGEMENT

(1.) This is a reference under Section 17 of the Indian Divorce Act IV of 1869 to the High Court of Bombay for the confirmation of a decree for dissolution of marriage in a suit filed in the Court of the District Judge of Poona by the petitioner Alfred Wilkinson against his wife Norah Wilkinson as the respondent and a Captain D Arcy as co-respondent.

(2.) The petitioner alleged that he was married to the respondent on August 8, 1914, at Poona. That he resided in Poona till 1317 and in Bombay until 1920 when he went to England with his wife and two children. That he returned on March 18, 1921, and resided at Poona. From May 1, he was employed in Bombay while his wife remained at Poona and they last resided together at Poona. In Poona the respondent became familiar with the co-respondent and on various occasions committed adultery with him. On August 22, the respondent came to Bombay to the petitioner and on the 23 left him to go away with the co-respondent who left her that night at the Apollo Hotel. On September 1, the respondent wrote to him that she was going away altogether. The petition was filed on September 7. The respondent denied that she had committed adultery on various occasions at Poona. She alleged that on August 23 the petitioner turned her out of the house when the co-respondent gave her a helping hand and found a room for her at the Apollo Hotel where she stayed till her father arrived and took her back to Poona. The co-respondent in his written statement adopted the same defence as the respondent. When the case came on for trial, the following issues were raised: 1. Whether plaintiff proves adultery between respondents 1 and 2? 2. If plaintiff proves adultery, has he condoned it by his subsequent conduct?

(3.) Although no issues were raised with regard to the domicil of the petitioner or the jurisdiction of the Court to deal with the petition, it appears that the question of jurisdiction was argued on the basis that the parties were domiciled in England. The learned Judge said: The jurisdiction depends on the Indian Divorce Act, 1869, and so long as that Act is in force, this Court cannot decline jurisdiction. Moreover the Courts in India are not subject to the Probate Division of the High Court of Justice in England. As apparently divorces granted in India between parties of non-Indian domiciles are not recognised in England, now, the present position of the law is anomalous but that is a matter for the Legislature and not for the Courts in India.