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"Jurisdictional Grounds: Bombay HC Overturns Poona District Court's Decree, Grants Husband Mandate for Judicial Separation based on Adultery Complaint under English Laws"

Shivani Negi ,
  01 June 2023       Share Bookmark

Court :
The High Court of Bombay
Brief :

Citation :
(1923) 25 BOMLR 945

Case title:

Alfred Wilkinson vs Grace Emily Wilkinson  

Date of Order:

4th April 1923

Bench:

Norman Macleod, Kt., Crump, Marten

OVERVIEW

Questions regarding the adultery of respondent, the divorce act of India and the jurisdiction power of Indian courts with regards to English laws were raised. The court concluded that the husband can obtain a decree of judicial separation from the wife and have custody of the children decided by the District Court of Poona. The term "reside" in Section 2 should be interpreted accordingly, and Section 7 should be read in accordance with the English courts' guidelines for granting judicial separation to non-domiciled parties.

IMPORTANT PROVISIONS

  • The Indian Divorce Act of 1869 is a legislation governing divorce and marriage dissolution in India. It provides a legal framework for various aspects related to divorce, including grounds for divorce, procedures, and legal consequences. The Act was enacted during the British colonial period and continues to be relevant in present-day India.
  • Section 2 of the Indian Divorce Act of 1869 allows a court to grant relief under the Act only in cases where the petitioner is a practicing Christian residing in India at the time of filing the petition.
  • According to Section 7 of the Act, the High Courts and District Courts should base their decisions on principles and rules that closely align with those of the Court for Divorce and Matrimonial Causes in England.
  • Section 10 of the Act permits a husband to petition for the dissolution of his marriage on the grounds of his wife's adultery, while a wife can seek dissolution based on any of the mentioned grounds in the section.
  • Section 22 of the Act enables either the husband or the wife to obtain a decree for judicial separation by citing any of the grounds specified in the section.

ISSUES RAISED

  • Whether plaintiff proves adultery between respondents 1 and 2?
  •  If plaintiff proves adultery, has he condoned it by his subsequent conduct?
  • Did the Indian legislature intend to confer jurisdiction in and whether the legislature had the power to do the same?

BRIEF FACTS

  • This is a case referred to the High Court of Bombay under Section 17 of the Indian Divorce Act IV of 1869 for confirmation of a decree of marriage dissolution. The petitioner, Alfred Wilkinson, filed a suit in the Court of the District Judge of Poona against his wife, Norah Wilkinson, and Captain D'Arcy as the co-respondent.
  • The petitioner asserts that a lawful marriage took place between him and the respondent on August 8, 1914, in Poona. During their cohabitation in Poona, the respondent allegedly entered an extramarital relationship with the co-respondent, engaging in acts of adultery on multiple occasions. The respondent refuted the accusation of committing adultery, claiming that on August 23, the petitioner expelled her from their shared residence and the co-respondent arranged a room for her at the Apollo Hotel. In his written statement, the co-respondent corroborated the respondent's defense.
  •  The petitioner's statement that he had given up his English domicile was prompted by the occasion, so it is assumed that he was not domiciled in India. 
  • It was argued that The District Court of Poona lacked jurisdiction to issue the decree due to the Indian Councils Act of 1861 and the Indian Divorce Act. However, since the enactment of Act IV of 1869, Indian courts have assumed jurisdiction over divorces involving non-domiciled parties, and divorce decrees in such cases are valid in India and recognized as valid in England.
  • The Attorney-General raised the question of whether, considering the explicit language of Section 7 of Act IV of 1869, the term 'resides' in Section 2 should be interpreted to mean simply residing or with the more significant implication of being domiciled. It is worth noting that the jurisdiction of English Courts was not contingent upon residence, but rather on domicile. 
  • The question arose in the case of Keyes v. Keyes in 1921, when the petitioner obtained a decree for dissolution of marriage from the Chief Court of the Punjab. The President of the Probate, Divorce, and Admiralty Division of the High Court of Justice of England held that the Indian Divorce Act 1869 was ultra vires of the Indian legislature in so far as it purported to give jurisdiction to decree dissolution of marriage between parties not domiciled in India. The decision lays down in express terms that such decrees are invalid even in India.
  • Sir Erie Richards, representing the Secretary of State, highlighted that the principle that divorce jurisdiction must be based on domicile was not applicable in 1861 when the Indian Councils Act was enacted. He relied on the longstanding usage over the past fifty years and emphasized that the Indian Divorce Act fell within the authority granted by the Imperial Parliament, thereby holding binding force throughout the entirety of the British Empire.

ARGUMENTS ADVANCED BY THE APPELLANT

  • Because respondent Grace Emily Norah Wilkinson had committed adultery in British India with the other respondent D'Arcy, petitioner Alfred Wilkinson filed a petition in the Court of the District Judge of Poona asking for the dissolution of their marriage.
  • The petitioner asserts that he entered matrimony with the respondent on August 8, 1914, in Poona. Subsequently, he resided in Poona until 1317 and then in Bombay until 1920, when he departed for England accompanied by his wife and two children. Upon their return on March 18, 1921, they settled in Poona. However, starting from May 1, the petitioner secured employment in Bombay, while his wife continued to reside in Poona. 
  •  During their time in Poona, the respondent developed a relationship with the co-respondent and engaged in acts of adultery with him on multiple occasions. On August 22, the respondent travelled to Bombay to join the petitioner, but on the following day, she abandoned him to elope with the co-respondent, who left her that same night at the Apollo Hotel.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • The respondent denied committing various acts of adultery while she was in Poona. She claimed that the petitioner kicked her out of the house on August 23 when the co-respondent assisted her and found a room for her at the Apollo Hotel where the woman stayed until her father picked her up and drove her back to Poona.
  •  The co-respondent used the same defence as the respondent in his written response.

JUDGEMENT ANALYSIS

  • The wife committed adultery with the co-respondent.
  • The husband's matrimonial domicile is English, although both spouses were residents in India and professed the Christian religion.
  • Since the spouses' domicile is English, the court lacks jurisdiction to dissolve their marriage, despite it being solemnized in India and the adultery occurring there.
  • The District Court of Poona had no jurisdiction to pass a decree for dissolution of marriage.
  • However, the court has jurisdiction to grant the husband a decree for judicial separation and determine custody of the children. The term "reside" in Section 2 should be interpreted as such and not as "domiciled," and the English courts' principles for granting judicial separation to non-domiciled parties should be applied under Section 7.
  •  Our courts follow the principles of jurisdiction established in English courts under Section 7 when granting or withholding relief. This practice is not objectionable.
  • The co-respondent should bear the entire cost of the confirmation proceedings, taking into account Section 35 of the Act. The appropriate jurisdiction is to grant a decree for judicial separation.
  • The husband must petition the English Courts for a divorce, if needed.
     
 
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