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Hilla Maneksha Panthaky Vs. Maneksha Darasha Panthaky - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Matrimonial Suit No. 16 of 1940
Judge
Reported in(1941)43BOMLR569
AppellantHilla Maneksha Panthaky
RespondentManeksha Darasha Panthaky
Excerpt:
.....in a foreign country has been granted to him, ordinarily means a person who is a natural-born british subject.;the real meaning to be attached to the term 'resides', as used in section 29(3) of the parsi marriage and divorce act, depends upon the circumstances of each case. if a person resides permanently at a particular place, that place is his or her residence; but the residence need not necessarily be permanent. it is enough for the purposes of the section if the residence is bona fide, with an element of continuity about it, so that even if it is not permanent, it cannot be said to be merely casual or for a temporary or passing purpose. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special..........act, 1914. under section 27(2) of that act 'british subject' means a person who is a natural-born british subject,or a person to whom a certificate of naturalization has been granted, or a per son who has become a subject of his majesty by reason of any annexation of territory. a british subject, therefore, unless a certificate of naturalization in a foreign country has been granted to him, means a person who is a natural-born british subject. under section 1 of the same act certain persons are deemed to be natural-born british subjects, amongst them being, '(a) any person born within his majesty's dominions and allegiance.' i need not refer to the other sub-sections, as they are not necessary for the purpose of this summons.6. it is in evidence that the defendant was born in.....
Judgment:

B.J. Wadia, J.

1. This is a chamber summons taken out by the defendant for revocation of the leave granted by this Court to the plaintiff on December 12, 1940, under Section 29(3) of the Parsi Marriage and Divorce Act of 1936 for the purpose of enabling her to file this suit in this Court.

2. The suit is filed by the plaintiff against her husband for judicial separation, for permanent alimony, and for the custody of the children of the marriage. In paragraph 30 of the plaint it is alleged that the marriage cere mony was performed in Jalna in the Nizam State, that the defendant is a railway servant at Upalwai also in the Nizam State, and is residing there, that the plaintiff has now been residing in Bombay, and that it would be a - great hardship to her if she was compelled to institute this suit in a Court outside Bombay. The application to the Court was made under Rule 782(2) of the Rules and Regulations for the Parsi Chief Matrimonial Court of Bombay. The application has according to that rule to be supported by the affidavit of the plaintiff in which she has to set out the grounds on which the leave is asked for. That affidavit was made on December 12, 1940, in which she has stated inter alia that she is at present residing in Bombay, that some of her witnesses are in Bombay, that it would be a great hardship for her and her Bombay witnesses to go to Upalwai where the defendant is residing, and further that there is no Parsi Matrimonial Court either at Secunderabad or at Hyderabad for the purpose of trying suits filed under the Parsi Marriage and Divorce Act. The defendant has made an affidavit under Rule 782(5), as he desires to contest the evidence on which the Couit granted leave to the plaintiff. His application has also to be supported by an affidavit, and the summons is to be taken out before filing the written statement or before the time to file the written statement expires, whichever is earlier. Defendant denies that there will be any hardship to the plaintiff in filing the suit in the Nizam, State. He. denies also that she is at present residing in Bombay for the purposes of the Act. Defendant also in paragraph 8 of his affidavit states that the plaintiff admits that she has not been residing in Bombay as required under the Act. I do not know where this admission has been made, nor what particular admission is referred to; none at any rate has been pointed out to the Court. It is, however, admitted that there is no Parsi Matrimonial Court in - the Nizam State for the purpose of trying suits under the Act. It is alleged that there is a Court in Secunderabad for trying suits between husbands and wives, but it is nowhere alleged that there is any Court at Secunderabad or in any part of the Nizam's dominions for trying a suit between a Parsi husband and a Parsi wife under the Parsi Marriage and Divorce Act of 1936. I quite agree that if this Court has no jurisdiction otherwise, the fact that there is no Court in the Nizam's dominions for the purpose of determining the suit may be no answer. The defendant has put in a supplemental affidavit in which he further alleges that he is not a Parsi subject of His Majesty the King Emperor and is not a Parsi subject within the provisions of Section 1(2) of the Parsi Marriage and Divorce Act of 1936, and that therefore this Court has no jurisdiction to entertain the suit. The defendant should have asked for leave to put in the supplemental affidavit before it was filed, but since it raises only a point of law which can be argued even without an affidavit, I have allowed both the supplemental affidavit and the plaintiff's affidavit in reply thereto to be taken on file.

3. There are thus two grounds on which the defendant contends that leave ought not to have been granted to the plaintiff to file this suit. The first is that the plaintiff does not, as required by Section 29(3), reside in Bombay, and the second is that this Court has no jurisdiction to entertain the suit. Section 1(2) defines the extent of the Act and it says that it extends to the whole of British India, and, in respect of the Parsi subjects of His Majesty, to the whole of India. The effect therefore is to extend the Act even to Native States in India in its application to Parsis, provided the Parsis are subjects of His Majesty. A Parsi is denned in the Act as a Parsi Zoroastrian. The Act thus applies to Parsi Zoroastrians residing in any of the Native States, if they are subjects of His Majesty. There is a proviso under which the Act could be modified in its application to territories in India beyond the limits of British India by notification in the Gazette of India.

4. I will take up the second ground first, for if this Court has no jurisdiction, then the Act cannot apply, and no question of leave under Section 29(3) of the Act can arise. The terms 'British India' and 'India' are not denned in the Act, but they are denned in the General Clauses Act: see Section 1(7) and Section 1(27). I do not think there can be any dispute that the Native States including the Nizam's State are not a part of British India, but they would be. still a part of India. It is pointed out by Halsbury, Hailsham's edn., Vol. VI, paragraph 242, at page 199, that

Every person at birth becomes a member both of a political and of a civil society. The former determines his political status or nationality, on which depends his allegiance to a sovereign; the latter determines his civil status.

A person's civil status depends upon the law of his domicil according to which his municipal rights and obligations are determined. It is pointed out that every person has a domicil at every period of his life, and that, no person can have more than one domicil at one time. That is also laid down in Udny v. Udny (1869) L.R. 1 Sc. & Div. 441, where Lord Westbury at p. 457 observes as follows:--

The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct, legal states or conditions; one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural, allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to' certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the) civil status is governed universally by one single principle, namely, that of domicil, which is the criterion established by law for the purpose of determining civil status.

The words in Section 1(2) of the Act, namely, 'Parsi subjects of His Majesty' refer to the political status of such subjects as opposed to their civil status. Therefore the jurisdiction of the Court depends upon the political status of the Parsi subject, that is his nationality and his allegiance, and not upon his domicil.

5. The expression 'subject of His Majesty' is not defined, but I do not think there is any difference betweeni 'subject of His Majesty' and 'British subject'. Under Section 2(a) of the Indian Naturalization Act, VII of 1926, 'British subject' means a British subject as denned in Section 27 of the British Nationality and Status of Aliens Act, 1914. Under Section 27(2) of that Act 'British subject' means a person who is a natural-born British subject,or a person to whom a certificate of naturalization has been granted, or a per son who has become a subject of His Majesty by reason of any annexation of territory. A British subject, therefore, unless a certificate of naturalization in a foreign country has been granted to him, means a person who is a natural-born British subject. Under Section 1 of the same Act certain persons are deemed to be natural-born British subjects, amongst them being, '(a) Any person born within His Majesty's dominions and allegiance.' I need not refer to the other sub-sections, as they are not necessary for the purpose of this summons.

6. It is in evidence that the defendant was born in Bombay in 1898. He was therefore born within his Majesty's dominions and allegiance, and he is a natural-born British subject. His father was born at Surat and therefore he too would be a natural-born British subject within His Majesty's dominions and allegiance. The question arises whether the defendant by going over to and taking service in the Nizam's State and remaining there for a number of years has ceased to be a British subject, or, to put it shortly, has lost or changed his political status. The political status of a British born subject can only be lost if a person goes to a. Foreign State and there obtains a certificate of naturalization, or by any other voluntary and formal act, becomes naturalized therein. It is also pointed out in Halsbury, Vol. VI, Hailsham's edn., paragraph 461 at p. 415, that natural allegiance is due from, all natural-born British subjects, and a natural-born British subject cannot, apart from statute, divest himself of his British nationality so as to free himself from the duty of allegiance. If such a subject becomes naturalised in a foreign country, he would cease to be a British subject. It is therefore necessary for the defendant to show that he has become naturalised in the Nizam's State. There is no statute existing in the Nizam's State under which any certificate of naturalization is granted to a subject owing allegiance to the British sovereign going over and settling down in the Nizam's territory. The only piece of evidence which the defendant relies on is art. 39 of the Hyderabad Civil Service Regulations which provides that

No person unless specially authorised by His Exalted Highness can be appointed permanently or temporarily in the superior or inferior service of the Government, if he is not a natural born subject of His Exalted Highness or is not domiciled within the Dominions.

It is not suggested that the defendant was a natural-bom subject of His Exalted Highness. He is in the service of His Exalted Highness by reason of his domicil within his dominions, and Note (1) to the article points out that--

If a person has, permanently resided in the Dominons for 15 years or has continuously served under the Government for 12 years, he and his lineal male descendants to two. generations will be considered to be domiciled in the Dominions.

The defendant therefore is at best only domiciled in the Nizam's State, and by the fact of his having acquired a domicil in that State he cannot be said to have given up his allegiance to the British sovereign. His bare allegation in the box, that he is not a British subjecf but is a subject of His Exalted Highness the Nizam cannot carry him: any further. A mere statement is not proof of the allegation. Defendant has not ceased to be a British subject of His Majesty. He is therefore a Parsi, i.e. a Parsi Zoroastrian, subject of His Majesty. He has changed his domicil no doubt, but thereby has not in any way changed his nationality or his political status. It was pointed out also by Lord Westbury in the same case, namely, Udny v. Udny, that a change of domicil doesi not necessarily mean a change of nationality, that is, of natural allegiance. That would be, as he points out, to confound the political and civil states of an individual, and to destroy the difference between patria and domicium. In Dicey's Conflict of Laws, 5th edn., pages 891-892, the learned author says that--

The doctrine was at one time laid down that a change of domicil involves something like a change of allegiance, and that, for instance, an Englishman, in order to acquire a French domicil, must at any rate, as far as in him lies, endeavour to become a French citizen. This doctrine was strictly inconsistent with the theory, on which the received definitions of domicil are based, that a domicil is merely a permanent home. As long, therefore, as this doctrine was maintained, it was impossible for English Judges to treat as satisfactory any of the current definitions of domicil. The attempt, however, to identify change of domicil with change of allegiance; has now been pronounced on the highest authority a failure.

The condition of the law as it existed before the decision in Udny v. Udny is. also referred to by the House of Lords in Casdagli v. Casdagli. [1919] A.C. 145. Viscount Haldane pointed out that there was some obscurity at one time as to whether a change of allegiance was not also required in order to establish the acquisition of a new domicil, an obscurity which has now been removed, and a man can acquire a new domicil without in any way changing his allegiance as a natural-born subject of his sovereign.

7. Under the circumstances I hold that the defendant is a Parsi subject of His Majesty. There is no doubt that the plaintiff is also such a subject. It is not in evidence before me as to where she was born, but under Section 1(b)(l) of the British Nationality and Status of Aliens Act, 1914, even a person born out of His Majesty's dominions is deemed to be a natural-born British subject, if his or her father was born within His Majesty's allegiance, and there is evidence that her father was born within His Majesty's dominions and allegiance. Both the plaintiff and the defendant therefore are Parsi subjects of His Majesty, and the provisions of the Act apply to both of them.

8. The next ground is that the plaintiff cannot be said for the purposes of leave to be a person residing in Bombay. It may be noted that the Parsi Marriage and Divorce Act makes residence and not domicil a condition of jurisdiction. It was pointed out by Sir Charles Sargent as far back as 1878 in Mahomed Shuffli v. Laldin Abdula (1878) I.L.R. 3 Bom. 227. that the meaning to be given to the word 'residence' in legislative enactments depends upon the intention of the legislature in framing the particular provision in which the word is used, and that the word 'reside' is for all practical purposes the same as the word 'dwell', 'Reside', therefore, is an elastic term and has a variety of meanings according to circumstances or the statute or the document in which it is used. In Ex parte Breull: In re Bowie 3 (1880) 16 Ch. 484 a debtor was held for the purposes of the Bankruptcy Rules, 1870, to reside in the City of London where he was employed in a bank, though he lived with his mother at a place outside the jurisdiction of the London Court. 'Residence' signifies a person's abode. In an old English case Blackburn J. observed that 'a man's residence is where he habitually sleeps'. But I doubt whether this test would apply to modern conditions of living. It is, however, not essential that for the purpose of residence a person should have a house, of his own. The question still remains what length of time is requisite to constitute residence in law. The residence which the learned Judge was considering in Mahomed Shuffli's case was residence under Section 380 of the old Civil Procedure Code of 1877 for the purpose of claiming security for costs from the plaintiff residing outside British India. He has further pointed out at p. 229 that neither the expression 'reside' nor 'dwell' necessarily implies a permanent state of things. Counsel for the defendant argued that the word 'resides' in Section 29(3) must mean 'reside' both permanently and bona fide. There is no doubt that the residence must be bona fide. A mere temporary sojourn which is casual, or to use the words of Kenyan C.J. in The King v. The Duke of Richmond (1796) 6 T.R. 560 'mere passage residence', or the residence of a traveller passing from one place to another on his travels, is not such residence as is sufficient in law. That was pointed out in Arthur Flowers v. Minnie Flowers (1910) I.L.R. 32 All. 203, and also by our Appeal Court in Nussenvanji Wadia v. Eleonmu Wadia (1913) I.L.R. 38 Bom. 125. The question is whether bona fide residence must also be permanent. If that was so, no residence which is temporary, even though not casual and even though not for a passing purpose, can ever be bona fide, merely because it is not permanent. Some degree of continuity of residence is, however, necessary. There must be something more than a mere passing temporary occupation. If, however, it was the intention of the Legislature in the Act of 1936 to mean by the word 'resides' a permanent residence, there was nothing to prevent it from having said so clearly. Plaintiff in her evidence stated that she intends to stay in Bombay permanently for the reasons given by her. Her intention in itself is immaterial, for she can change it at any time. But the evidence with regard to her intention is still relevant for the purpose of determining whether her residence is merely casual or for a temporary purpose. She stated that she left her husband's house at Upalwai sometime in November, 1939, and never intended for some reason or the other to return to it. Her permanent residence during her married life would naturally be that of her husband. Having broken away from his home and having gone with the intention of not returning to it, the question is what was really her place of residence. The mere fact that her father has a permanent residence in Secunderabad and that she went and stayed with him for some time, especially for the purpose of her confinement, as she always used to do before, does not make her father's place her permanent residence. She denied that she was residing in Bombay merely for the purpose of this suit. I need not point out that there are various cases on either side of the line in which a short period of a few days has been in some Courts considered sufficient to establish residence and by some Courts considered insufficient. Many of the earlier ones are mentioned in Shri Gosvami v. Shri Govardkanlalji (1890) I.L.R. 14 Bom. 541. In Srinivasa Moorthy v. Venkatavarada -lyengar? the appellant who at the date of the suit had taken a house on hire in Madras and intended staying there with his family for some months was held by the Privy Council to be residing in Madras. But as I have said, there are cases on either side of the. line, and the meaning of the term 'residence' must depend upon the circumstances of each case. If a person resides permanently at a particular place, there can be no doubt that that is his or her residence. But the residence need not necessarily be permanent. It is enough if it is bona fide, with an element of continuity about it, so that even if it is not permanent, it cannot be said to be merely casual or for a temporary or passing purpose. I am satisfied, therefore, that the plaintiff is residing in Bombay for the purpose of Section 29(3), and that the leave which was asked for was properly granted.

9. Under the circumstances the chamber summons must be dismissed with costs.

10. I have heard both counsel on the question of costs. The heading of this summons has lasted for more than a day and has also involved the taking of evidence on both sides. The Court now has power under Rule 785(R) to give any special direction as it chooses in its discretion with regard to the payment of costs. I direct the defendant to pay the plaintiff's costs of this summons as if the summons was adjourned into Court and the costs were taxed as of a summons adjourned into Court on the Original Side, refresher being allowed.


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