John Beaumont, Kt., C.J.
1. This is a reference Under Section 17 of the Indian Divorce Act to confirm a decree nisi for dissolution of marriage pronounced at the instance of the wife. In cases under the Indian Divorce Act District Judges do not, in our experience, pay sufficient attention to the terms of the Act, particularly as to domicile. We have to deal to-day with four cases all of which will have to be returned to the trial Court for a further finding as to domicile, thereby occasioning waste of time and money to the parties. It is, therefore, desirable to make some general observations for the guidance of District Judges.
2. In order that the Court may have jurisdiction to grant a decree for dissolution of marriage, the parties must profess the Christian religion, and they must also be domiciled in India at the date of the presentation of the petition. The domicile of the wife is the same as that of the husband, and it is his domicile which has to be considered. The first question to be determined is whether the domicile of origin of the husband was Indian. The domicile of origin of a legitimate child whose parents are living at the date of birth is the domicile of the father at that date. In the case of an illegitimate child, or a posthumous child, the domicile of origin is the domicile of the mother at the date of the birth. The domicile of origin remains until it is changed and a domicile of choice is acquired, and the burden of proving a change of domicile is upon the person who asserts it. Where, therefore, the domicile of origin pf the husband is Indian, the only question is whether there is any evidence that that domicile has been changed. But where the domicile of origin is not Indian, then it is necessary to ascertain whether there is any evidence that that domicile had been changed in favour of an Indian domicile at the date of the presentation of the petition. Residence in a country affords a prima facie presumption as to domicile, but that presumption is rebutted when the nature of the residence is such as to indicate that there was no intention to reside permanently. It is to be remembered that domicile depends on two things, the fact of residence and the intention to reside permanently. Where the husband is an Englishman who comes to India in the service of the Crown, or to join some business concern, the circumstances in which he comes to India are such as to rebut the presumption arising from the residence that India is his permanent home, and in such a case it is necessary to see what evidence there is that he has abandoned his domicile of origin and formed an intention to make India his permanent home. In that connection various facts have to be considered. The length of residence in this country, expressions of intention that that residence shall be permanent, marriage with a wife domiciled in India, the acquisition of property or business interests in India, the presence in India of many of the husband's friends and relations, are all matters which are relevant, though none of them is conclusive upon the point. We think that in all cases under the Indian Divorce Act, in addition to issues of fact relating to adultery, cruelty, or desertion, appropriate to the particular case the Court should always raise the following issues:
1. Is the marriage between the parties proved?
2. Do the parties profess the Christian religion?
3. Was the domicile of origin of the husband Indian? (a) If yes, is it proved that he had changed such domicile at the date of the presentation of the petition? (b) If no, is it proved that at the date of the presentation of the petition he had acquired an Indian domicile?
4. Do the parties reside or did they last reside together within the local limits of the ordinary jurisdiction or the jurisdiction under the Indian Divorce Act of this Court?
3. Dealing with the facts of the present case the evidence is that the husband came to India as a soldier in the British Army. That circumstance would rebut the presumption, arising from his actual residence in India, that India is his permanent home, and the learned Judge will have to consider the circumstances of the case, and whether they show that the husband had, at the date of the presentation of the petition, acquired an Indian domicile. In addition to the matters which I have indicated above, the circumstances in which the husband obtained his discharge from the Army, and whether he abandoned a free passage home, will be relevant. We must return the papers to the District Judge with directions to him to answer an issue in the form No. 3 given above, and return his finding to this Court by April 7, 1934.
4. I agree.
5. I agree.