PREMCHAND HIRA Vs. BAI GALAL

JUDGEMENT

(1.) This is another instance of the apparent difficulty of the mofussil Courts in appreciating the essentials for a valid decree under the Indian Divorce Act. In a case from Poona not long ago Walsh V/s. Walsh, (1926) 29 Bom, L.R. 308 we had to send the case back no less than twice for remands in order to have the essential evidence before the Court. In the present case from Nadiad, I regret that it is also necessary to send the case to the learned District Judge for a remand to determine essential points. I also regret that like several other divorce cases from the mofussil we have not had the benefit of the assistance of counsel, and that the time of no less than three Judges is occupied in doing work that should properly have been done in the trial Court.

(2.) Now in the first place the learned Judge here has never had the marriage proved properly. There is no certificate of marriage. There is a statement in the petition that the marriage was solemnized in a Salvation Army Hall. Whether that was a duly licensed place for the performance of Christian marriages, and whether the marriage was performed by a duly licensed person in pursuance of the requirements of the Indian Christian Marriage Act 1872, we do not know. But I do unhesitatingly say that in every divorce case that has hitherto come before me in this High Court-and I believe the same is true of the Divorce Court in England-one principal element is that the marriage should be proved strictly and that in general a certificate of marriage should be produced. The learned Judge will, therefore, take that course in the present ease, and he will he careful to see that the requirements of the Indian Christian Marriage Act 1872 have been carried out in this particular case. In this connection I would draw his attention to the fact that in her evidence before the Court the wife describes herself as a Hindu and that both parties have Hindu names. But under Section 4 of that Act it is essential to prove that one or both of the parties were Christians. Further, under Section 2 of the Indian Divorce Act 1869, it is essential to prove that the petitioner professed the Christian religion at the date of presenting the petition.

(3.) A further point which the learned Judge has not dealt with notwithstanding the directions that have from time to time been given by this Court, is as to the domicile of the parties. (See Hewson V/s. Hewson (1924) 26 Bom. L.R. 467). It was laid down by this Court in Wilkinson V/s. Wilkinson (1923) 25 Bom. L.R. 945 that the Indian Courts have no jurisdiction to dissolve the marriages of persons who are not domiciled in India. By the recent Indian Divorce (Amendment) Act 1926 this is now enacted as part of the statutory law of this country. Consequently, the learned Judge should record a finding, if it be the fact, that the parties were domiciled in India at the date of the presentation of the petition. Having regard to their names there should be no difficulty about that. So it is only a technical point in the present case.