1. This is an appeal by the husband against a decree for divorce to the plaintiff-respondent granted by the trial Court, and confirmed in appeal by the District Court.
2. Both the Courts found that the appellant husband had falsely charged the respondent wife with adultery. The parties are Bohras and Sunni Mahomedans. Both the Courts held that a alse charge entitled the wife to divorce.
3. Three grounds are taken for the appellant. Firstly, that he should have been given express opportunity of retracting this false charge in the trial Court and this appeal should be remanded for that purpose. Secondly, the appellant resided at Petlad in the Baroda territory and the British Courts had therefore DO jurisdiction. Thirdly, the respondent wife was sixteen and not eighteen at the time of the date of the suit and she was not therefore competent to sue without a guardian.
4. On the first point, it is true that the marriage was celebrated at Nadiad, the appellant made the charge of adultery now held to be false at Nadiad, and he lodged a complaint for adultery against the wife in Nadiad which was dismissed. In the present suit, so far from retracting the false charge, he re-affirmed it and sought to establish it by further evidence but failed. This express opportunity of retractation, even if necessary under the strict forms of Li'an as laid down under Mahomedan law, has no place in the procedure in British Courts On the contrary, the decisions in Zafar Husain v. Ummat-ur-Rahman ILR (1919) All. 278 and Rahima Bibi v. Fasil ILR (1926) All. 834 have expressly confirmed the right to divorce of a Mahomedan wife falsely charged with adultery. In the latter case the view of the District Judge that the husband was entitled to have an opportunity to retract was negatived. This view was approved of in a recent decision of this Court in Khatijabi v. Umwrsaheb Anseraaheb ILR (1927) 52 Bom. 295 : 30 Bom. L.R. 447. Moreover, the appellant must have been aware that he had an opportunity if he chose to retract, but on the contrary he chose to re-affirm and to support with further evidence the false charge already made. We are unable to uphold the contention that the Court itself should have expressly asked him if he wished to retract or that the appeal should be remanded for the purpose.
5. On the second point, in the case of marriages contracted in foreign territory, the general rule of international law stated by Dicey undoubtedly is that the British Courts would not have jurisdiction unless the parties were domiciled in British territory. In the present case, however, the marriage was celebrated at Nadiad, and under Mahomedan law a marriage is a contract between the parties to live together as husband and wife for the term of their lives. The cause of action, viz., the false charge of adultery was made both before the relatives and in the evidence of the complaint to the criminal Court at Nadiad. It is doubtful whether the Baroda Court would have power to dissolve a marriage celebrated in British territory. On the other hand, following the principle of decisions such as Lalitagar Keshargar v. Bai Suraj ILR (1893) 18 Bom. 316, the marriage having been celebrated in British territory, the cause of action having also arisen there, the British Courts and not the Baroda Courts have jurisdiction. To grant a divorce would mean, in effect, that the wife terminates the contract by which otherwise she would be bound, and is free to contract a second marriage if she chooses.
6. On the third point, the Mahomedan law entitles a woman of sixteen and over to sue for a divorce. Under Section 2 (a) of the Indian Majority Act, nothing in that Act shall affect the capacity of any person to act in marriage, dower, divorce and adoption. The wife suing for a divorce acts in the matter of divorce. Therefore she is entitled to sue without a guardian. The case of Parsis is different. The Parsi Marriage and Divorce Act XV of 1865 treats every Parsi under the age of twenty-one as a minor. The principle of decisions affecting Parsis, Sorabji Cawasji Polishvala v. Buchoobai ILR (1804) 18 Bom. 366 and Bai Shirinbai v. Kharshedji ILR (1896) 22 Bom. 430, has, therefore, no application to the present case of Mahomedans, It is rather governed by principles laid down in cases such as Abi Dhunimsa Bibi v. Mahammad Fathi Uddin ILR (1917) Mad. 1026. It is not, therefore, necessary to consider the further fact that before the hearing of the appeal in the District Court, the wife had attained the age of eighteen,
7. The contentions for the appellant, therefore, fail, and the appeal is dismissed with costs.
8. I should like to add a few words on the second point put forward by the. learned advocate for the appellant. Objection No. 5 in the memorandum of appeal is that the lower Courts have erred in holding that they have jurisdiction to decide the subject-matter of this suit. It is not specified in what way they had no jurisdiction. It is now contended at the bar that the want of jurisdiction was due to the fact that the husband was domiciled in the Baroda State. This appears to be based on the statement in the judgment of the learned Assistant Judge beginning. ' The appellant is a resident of Petlad in Gaekwar territory.' But it is not residence which governs the jurisdiction in divorce matters but domicile, and I do not find it stated anywhere that at any time the domicile of the defendant was in Baroda. The judgment of the first Court merely stated tersely that the plea was that he was residing outside the Court's jurisdiction, and there is nothing about domicile. In the grounds of appeal it was urged that the Court had no jurisdiction as no cause of action had arisen in Nadiad, and this was the point which the learned Assistant Judge had to decide and decided. It appears to me that it was never the husband's case that there was any defect in the suit because of domicile and I would not allow this point to be taken for the first time in second appeal.