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Phylis Claire Carroll Vs. Charles James Carroll - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Matrimonial Suit No. 1313 of 1940
Judge
Reported in(1940)42BOMLR1083
AppellantPhylis Claire Carroll
RespondentCharles James Carroll
Excerpt:
.....indian and colonial divorce jurisdiction act, 1926, confers on any chartered high court in british india jurisdiction to divorce british subjects domiciled in england where any court in india would have such jurisdiction if the parties to the marriage were domiciled in india.;hence the high court of bombay has jurisdiction to try a suit brought under the aforesaid act for dissolution of marriage by the wife of a domiciled englishman who resides in bombay, though the parties last resided together within the appellate jurisdiction of the lahore high court, and had never resided together within the appellate-jurisdiction of the bombay high court. - - then it is provided in sub-clause (c):-no such court shall grant any relief under this act except in cases where the petitioner resides in..........1869. it seems to me that the former act plainly confers on any chartered high court in british india jurisdiction to divorce british subjects domiciled in england where any court in india would have such jurisdiction if the parties to the marriage were domiciled in india. the suit having been filed in this court, i have jurisdiction to try it, and in my opinion i am bound to do so. even if i may think that lahore would be a more convenient forum, it is not competent for me to transfer the case to lahore.4. my attention has been drawn to rule 24 of the rules made by the secretary of state, with the concurrence of the lord chancellor, under section 1(4) of the indian and colonial divorce jurisdiction act of 1926. that rule provides:-subject to the provisions of these1 rules all.....
Judgment:

John Beaumont, Kt., C.J.

1. In this case a preliminary objection is raised that I have no jurisdiction to try the suit. The suit is one for dissolution of marriage by the wife of a domiciled Englishman, and is brought under the Indian and Colonial Divorce Jurisdiction Act, 1926. The parties last resided together within the appellate jurisdiction of the Lahore High Court, and the respondent still so resides, though the petitioner resides in Bombay. It is argued that in the circumstances it is only the Lahore High Court which can grant a decree of dissolution of marriage, since the High Court which has jurisdiction under the Act of 1926 should be held to be the High Court which would have jurisdiction under the Indian Divorce Act of 1869 if the parties were domiciled in India.

2. Under the Indian Divorce Act of 1869 ' High Court' is defined by Section 3, but that definition has been altered by an Order in Council dated March 18, 1937, called the Government of India (Adaptation of Indian Laws) Order, 1937, and ' High Court' is there defined so as to include both this High Court and the High Court of Lahore. The Act further provides that in the case of any petition under such Act ' High Court' means the High Court for the area where the husband and wife reside or last resided together. So that under that Act the High Court, which would have jurisdiction, would undoubtedly be the High Court of Lahore. The Indian and Colonial Divorce Jurisdiction Act of 1926 provides in Section l(i) as follows:

Subject to the provisions of this Act, a High Court in India to which, Part IX of the Government of India Act applies shall have jurisdiction to make a decree for the dissolution of marriage,. .. where the parties to the marriage are British subjects domiciled in England or in Scotland, in any case where a court in India would have such jurisdiction if the parties to the marriage were domiciled in India.

Then it is provided in Sub-clause (c):-

no such court shall grant any relief under this Act except in cases where the petitioner resides in India at the time of presenting the petition and the place where the parties to the marriage last resided together was in India, or make any decree of dissolution of marriage except where either the marriage was solemnized in India or the adultery or crime complained of was committed in India.

That seems to be the only territorial limitation on the jurisdiction of the Court, and it refers only to India. Under another Order in Council also dated March 18, 1937, called the Government of India (Adaptation of Acts of Parliament) Order, 1937, for the words ' High Court in India to which Part IX of the Government of India Act applies' in Sub-Section (1) of Section 1 have been substituted the words ' High Court in British India constituted by his Majesty by Letters Patent.' As far as I know, the High Court of Lahore has been constituted by his Majesty by Letters Patent, though I believe, apart from the jurisdiction conferred by the Act in question, it has no original jurisdiction. At least, so I 'am told. But I apprehend that being constituted by His Majesty by Letters Patent, jurisdiction is conferred upon the High Court of Lahore to grant a decree for dissolution of marriage, and the only question is whether the High Court of Lahore has exclusive jurisdiction in this case, as it would have if the case fell under the Indian Divorce Act, 1869.

3. It is argued that it may cause grave inconvenience if any High Court in India has jurisdiction to deal with these matters, and that a petitioner anxious to harass a respondent may select the most inconvenient Court. That, no doubt, is a possibility; but the question is not of much general importance because after January 1, 1941, the matter will be governed by Section 6 of the Indian and Colonial Divorce Jurisdiction Act, 1940. As the law is at present, I cannot construe the Indian and Colonial Divorce Jurisdiction Act, 1926, in this matter by reference to the Indian Divorce Act, 1869. It seems to me that the former Act plainly confers on any Chartered High Court in British India jurisdiction to divorce British subjects domiciled in England where any Court in India would have such jurisdiction if the parties to the marriage were domiciled in India. The suit having been filed in this Court, I have jurisdiction to try it, and in my opinion I am bound to do so. Even if I may think that Lahore would be a more convenient forum, it is not competent for me to transfer the case to Lahore.

4. My attention has been drawn to Rule 24 of the Rules made by the Secretary of State, with the concurrence of the Lord Chancellor, under Section 1(4) of the Indian and Colonial Divorce Jurisdiction Act of 1926. That rule provides:-

Subject to the provisions of these1 rules all proceedings under the Act between party and party shall be regulated by the Indian Divorce Act and the rules made thereunder.

On the language of that rule alone, it might, I think, be contended that proceedings under the Act between party and party include a suit for divorce, and as such proceedings are to be regulated by the Indian Divorce Act, the suit must be brought in the High Court which would have jurisdiction under the latter Act. But if Rule 24 be construed to go as far as that, I think it is outside the power of the rule-making authority; because under Section 1(4) it is only proceedings before a High Court in India in exercise of the jurisdiction conferred by the Act which are to be conducted in accordance with the rules. If the Act confers jurisdiction upon a High Court, in my opinion that jurisdiction cannot be taken away by the rules. In my view, Rule 24 must be construed as extending only to matters of procedure, and not as affecting jurisdiction.

5. I overrule the preliminary objection and hold that I have jurisdiction to try the suit. I answer the issue in the affirmative.

6. The husband should pay Rs. 400 into Court for costs by September 23, 1940.


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