JESSIE GRANT KHAMBATTA Vs. MANCHERJI CURSETJI KHAMBATTA

JUDGEMENT

(1.) In this case the wife-petitioner is suing for a divorce, and the husband-respondent has taken the preliminary point that at the date of the marriage, which was April 24, 1923, the petitioner was already married, so that the marriage in suit was a nullity, and cannot be dissolved. I agreed to try as preliminary issue the question whether the first marriage of the petitioner was legally dissolved before the marriage in suit took place.

(2.) The relevant facts have been admitted for the purpose of the preliminary issue, and are as follows: On December 4, 1906, the petitioner, who was a Scotch National, married one Gulam Ibrahim by civil marriage in Scotland according to the requirements of Scotch law. At the time of the marriage the husband was a Muhammadan domiciled in British India, and the wife was a Christian domiciled in Scotland. In the year 1912 the wife embraced the Muhammadan faith, both husband and wife being at that time domiciled in British India, and she remained in that faith until April 1923. On June 27, 1922, the husband Gulam Ibrahim pronounced talak, that is to say, he purported to divorce his wife by declaration of his intention to that effect; which is a form of divorce valid according to Muhammadan law. In February 1923, a few months before the marriage in suit took place, the petitioner obtained a declaration from the District Court, Secunderabad, to the effect that she was no longer married to Gulam Ibrahim. It has been argued by Mr. Carden Noad on behalf of the petitioner that this declaration operates as a judgment in rem, and concludes the question. But, in my opinion, having regard to the terms of Section 43 of the Specific Relief Act, the declaration does not operate in rem, and is not binding upon the respondent. I must, therefore, consider the question whether the petitioner was validly divorced from her first husband by talak without regard to this declaration.

(3.) 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 lex domicilli, that is, by the law of the country in which for the time being they are domiciled (see Harvey V/s. Farnie (1882) 8 App. Cas. 43 and Nachimson V/s. Nachimson [1930] p. 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 domicilli (see Nachimson V/s. Nachim son).