MILLER Vs. MILLER

JUDGEMENT

(1.) This is a wife's petition for divorce. It is not defended. The marriage took place before a marriage Registrar in Bombay in November 1922. The husband was a subject of the United States of America and domiciled in that country: the wife before marriage had her domicile in India, where her family had been for several generations. The married life only lasted until January 1923, when the husband sent the wife back to her relations and himself left for America, where he has since remained.

(2.) Proof has been given of adultery and cruelty sufficient to entitle the petitioner to a decree nisi. Upon the question of jurisdiction, my attention has been drawn to the judgment of Sir Henry Duke in Keyes V/s. Keyes [1921] P. 204, which decided that the Courts administering the divorce law in India have no jurisdiction to decree dissolution of a marriage between parties not domiciled in India: it also decided that the East India Councils Act of 1861 does not warrant the making of a law to empower Courts in India to decree dissolution of the marriage of persons not domiciled within their jurisdiction.

(3.) That decision has since met with discussion in two reported oases in India, namely, Wilkinson V/s. Wilkinson A.I.R. 1923 Bom. 821 and Lee V/s. Lea A.I.R. 1924 Lah, 513. It has been pointed out that it would have been enough for the decision in Keyes V/s. Keyes [1921] P. 204 to say that since Lemesurier's case [1895] A.C. 517 or at any rate since Bater V/s. Bater [1906] P. 209 the jurisdiction to decree dissolution of marriage depends according to English law upon the domicile of the parties, and that as the domicile in Keyes V/s. Keyes [1921] P. 204 was English, the English Courts would not recognise as valid in England a decree pronounced by a Court in India whose jurisdiction was based on a principle-that of the residence of the parties at the time not accepted according to English Law as conferring jurisdiction. That this is so appears, I think, from the language used in an early part of the judgment, where the learned President says (at p. 211): "The petitioner has brought this suit to "determine the validity, at any rate in "England, of the decree made at his "instance in India." It was, therefore, as it appears to me, the extra-territorial validity of the Indian decree that was in question in the suit, and that question was sufficiently and completely answered by the decision above set out, so that it was not necessary to go further to the extent of enquiring whether the powers conferred by the East India Councils Act, 1861, had been exceeded in the enactment of the Indian Divorce Act, 1869. But if that enquiry is to be made, then I think it is of great importance to recognise that in the case of Niboyet V/s. Niboyet [1878] 4 P.D. 1 in 1878 the Court of Appeal did accept residence and not domicile to found the jurisdiction, and that that decision remained good at any rate until Lemesurier's case [1895] A.C. 517 in 1895. It cannot, therefore, be successfully urged that at the time of the Indian Councils Act in 1861 or at the time of the passing of the Indian Divorce Act, 1869, the jurisdiction to entertain a suit for dissolution was recognised in the English law air that time as depending upon domicile and not upon residence, and that, for that reason, the Legislature went beyond its powers in making the jurisdiction under the Indian Divorce Act dependants upon residence.