LINTON Vs. GUDERIAN

JUDGEMENT

(1.) In this case, we have to deal with a husband's petition for divorce filed in this Court under the Indian Divorce Act, on 20 January 1928. The petitioner was apparently born in a part of Poland, which has been referred to as being at that time German Poland. It appears that when he was very young, only 2 or 3 years old, his family removed to Berlin and when the petitioner was about 27, namely, in 1912, he went to London. In 1914, he was married in London to the respondent. It appears that for a time he went to New York, and afterwards to Honolulu. In 1916, he went to New Zealand, where, apparently, his wife's people had some property or connexions. His evidence is that he had been endeavoring to do business in New Zealand in connexion with exportation of goods from Germany. But, as the political condition after the war was not favourable for that kind of business, he, in 1923, abandoned all hopes of continuing that business in New Zealand and accordingly he removed with his family from New Zealand to Berlin. He seems to have gone to Berlin in 1920 and gone back to New Zealand in 1921. He appears to have abandoned definitely New Zealand and gone back to Germany in 1923. He went back to Germany with the idea that he would go to some, other part of the world and make his living in connexion with exportation of goods from Germany. According to him, in 1926, he made up his mind to go to India and take his wife and two children with him. As they were starting out from Europe, he learned of the possibility of business in Sweden and went to Stockholm-his wife and children going out to India meanwhile. Apparently he expected them to go to Colombo, but, in fact, they came to Calcutta and the wife was living in the Grand Hotel. The husband followed soon after and arrived there towards the end of November 1926. It appears that, when he left Europe, he had two agreements-one of which only is in evidence -one for the sale of German typewriters and other for the sale of motors, I understand, Swedish motors.

(2.) The agreements - both of them - were of a preliminary and temporary character, lasting only for one year. In this way, the petitioner came out to start life in business in India. To put the matter quite shortly, at the Grand Hotel at the e November, there was staying the co- respondent. It appears that he made acquaintance of the respondent in the hotel. Before very long, namely, by 10 January, one way or another, he took the respondent to his flat at the Galstaun Mansions and there misconduct occurred and from that time onward it would appear that these parties committed misconduct at various places. More than one visit to Darjeeling was made by them and it would appear that the respondent was constantly living with the co- respondent at his flat. This appears to have gone on for the best part of the year and at the time when the citation under this petition was served upon the wife in 1928, she was living with the co-respondent at Galstaun Mansions. The husband, it would appear, having come to the Grand Hotel at the end of 1926, had a quarrel with his wife, because, according to him, his wife's reference to the co-respondent made him suspicious. He says that he told his wife that she must leave the hotel, but she refused. He went away, taking with him both the children and it does not appear that until the time when these divorce proceedings were commenced, he saw anything of his wife. That matters little to our present purpose. He appears to have travelled about in India in the endeavour to open agencies for the sale of these German typewriters. He appears to have been ill and he had gone during the course of 1927 to Kashmir to recover. It does not appear that he had any fixed abode in India. He had taken, I think, an office in Bombay and the evidence as to his living and conduct in India is within a very narrow compass. It would seem that, in February 1927, he had been expecting to go to Europe either to London or Berlin to settle about one of his agencies. He expected that this arrangement would take a substantial time. He thought it that would be a year or more before he could come back to India, in any event, and he wanted his wife to go back with him, but she was unwilling. In these circumstances, he brings his petition for divorce on the ground of adultery and he asks for damages against the co-respondent.

(3.) The first question that arises for decision in this case is whether or not this is a case in which the Courts in British India have any right to give a decree for dissolution of marriage. Upon the face of the amendment made in 1926 to Section 2, Divorce Act, nothing in the Divorce Act authorizes any Court to make a decree for dissolution of marriage, except where the parties to the marriage are domiciled in India at the time when the petition is presented. There appears to be a certain amount of confusion upon the subject. It seems to me necessary to point out that domicile in India at the time of the presentation of the petition is an absolutely necessary condition of jurisdiction so far as regards divorce. We are in no way concerned whether or not a person not domiciled in India is put to hardship for lack of facilities in obtaining divorce from British Indian Courts. It is manifest that, so long as the matrimonial laws of different countries vary widely, as they do, it is necessary that for every marriage there should be an ascertainable forum for the purpose of adjudicating upon the question of divorce. All countries do not take same view of international law. But the view of international law which obtains in England and in these Courts as that the power to grant divorce rests with the Court of the country in which the parties are domiciled at the date of the petition. Other countries may take different views of international law in that respect. But it is well settled now that that is the view upon which the English law proceeds and that view, for all purposes of this Court, is the law without exception or qualification by the command of the Indian Legislature.