HARTENCIA DE SOUZA Vs. JOHN SEBASTIAN DE SOUZA

JUDGEMENT

(1.) THIS is a petition by the wife under the Indian Divorce Act for judicial separation, and a preliminary point is taken by the husband as to the jurisdiction of the Court. The facts with regard to that are that the parties were married in Bombay in 1919, and they soon after went to Nairobi in East Africa. They returned to Bombay in 1921, and in 1922 the husband went back to Nairobi and the wife followed in 1923. They lived then for two years in Nairobi, and in 1925 they returned to Bombay, and lived together at Dadar. Then in 1926 they returned separately to Nairobi, and lived there until October, 1933, when the wife left her husband and came back to Bombay, where she has since resided, and she was residing in Bombay at the time of the presentation of this petition. Section 2 of the Indian Divorce Act provides that nothing thereinafter contained shall authorize any Court to grant any relief under that Act other than a decree of dissolution of marriage or of nullity of marriage, (which decrees are dealt with in an earlier part of the section), except where the petitioner resides in India at the time of presenting the petition. Although that provision is expressed in a negative form, it seems plainly to imply that in the case of relief other than a decree of dissolution or nullity, the Court can act where the petitioner resides in India at the time of presenting; the petition. Mr. Guido, for the respondent, says that a different rule prevails in England, that in that country it is necessary for both parties to reside within the jurisdiction of the Court in order to found jurisdiction to grant a decree of judicial separation, and he points out that under Section 7 of the Indian Divorce Act this Court has to grant relief on principles and rules similar to those acted upon in England. But Section 7 commences with the words "subject to the provisions contained in this Act", and if this Act authorizes the Court to act when the petitioner only is resident in India, that, to my mind, renders the English rule inapplicable. Then Section 22 of the Act provides that the husband or wife may obtain a decree of judicial separation on the ground of adultery or cruelty, and other grounds mentioned ; and Section 23 provides that application for judicial separation on any one of the grounds aforesaid may be made by the husband or wife by petition to the District Court or the High Court. The "High Court" is defined in Section 3, and for the purpose of assuming jurisdiction under the Act it is provided that in the case of any petition under the Act, the High Court is that one of the aforesaid Courts within the local limits of whose ordinary appellate jurisdiction, or of whose jurisdiction under the Act, the husband and wife reside or last resided together. That provision deals with competing jurisdictions of different High Courts, and provides that it is the High Court within whose jurisdiction the parties last resided together, and no other High Court, which is to have jurisdiction. It is clear on the evidence that of all the High Courts in India the High Court within whose jurisdiction, the parties last resided together is this High Court. The fact that after residing together within the jurisdiction of this Court, they resided together somewhere else outside the jurisdiction of any High Court seems to me to be irrelevant. I think that under Section 2 of the Act, read with Section 3, this Court has jurisdiction to grant a decree. [After dealing with the case on its merits, his Lordship concluded:] I, therefore, grant a decree for judicial separation with costs. Liberty to apply with regard to the custody of children and with regard to alimony.