MUNCHERJI CURSETJI KHAMBATA Vs. JESSIE GRANT KHAMBATA

JUDGEMENT

(1.) In this case the petitioner sues for a divorce by reason of the respondent's alleged adultery and cruelty. Among other defences, the respondent pleads that a previous marriage of the petitioner with one Gulam Mahomed Ebrahim has never been dissolved or annulled by any Court of competent jurisdiction and is still subsisting. The question, whether the first marriage had been validly dissolved before the marriage in suit took place, was tried as a preliminary issue. The learned Chief Justice answered that issue in the affirmative, and this is an appeal from his decision.

(2.) The issue was tried upon an agreed statement of facts. From this it appears that on December 4, 1906, the petitioner, who was domiciled in Scotland, married at the General Registry Office in Edinburgh Gulam Mahomed Ebrahim, who was a Sunni Mahomedan domiciled in India (which includes not only British India, but the various Native States). In 1912, the petitioner became a convert to the Mahomedan religion, and continued to profess that religion up to the middle of April, 1923. Between the years 1914 and 1933 Gulam Mahomed Ebrahim permanently resided at Secunderabad, and is still permanently residing there. On June 27, 1922, Ebrahim pronounced talak against the petitioner in accordance with Mahomedan law. On April 10, 1923, the petitioner obtained a declaration from the District Court at Secunderabad that she was no longer the wife of Ebrahim. On April 24, 1923, the petitioner was married to the respondent under the Special Marriage Act (III of 1872).

(3.) In his judgment, the learned Chief Justice says that at the time of the marriage Ebrahim was domiciled in British India, and that in 1912, when the petitioner embraced the Mahomedan faith, both Ebrahim and the petitioner were domiciled in British India. There is no evidence as to this, and no evidence where Ebrahim was domiciled when he pronounced talak, or what his domicile of origin was, or whether that was ever changed. Mr. Engineer for the respondent says that Ebrahim at the time when he pronounced talak was domiciled in British India, but he admits that there is no evidence as to this. Mr. Carden Noad for the petitioner says that Ebrahim at the time when he pronounced talak was domiciled in Secunderabad, which is in a Native State; but he admits that the only evidence in support of this assertion is the statement in the agreed facts that between the years 1914 and 1933 Ebrahim was a permanent resident of Secunderabad. However, the parties have agreed that at all material times Ebrahim was domiciled either in British India or in Secunderabad, and have also agreed for the purposes of this suit and appeal that the law applicable in Secunderabad is the same as in British India. The appeal has accordingly been argued and decided upon that assumption.