R.P. Mookerjee, J.
1. The petitioner wife filed an' application under Section 10, Divorce Article for dissolution of her marriage with the respondent. Neither the respondent nor the co-respondent appeared before the lower Court. The decree nisi was passed ex parte by the Additional District Judge, Alipore. When the proceeding came up before this Court for confirmation appearance was entered on behalf of the husband respondent. On his behalf it was contended that the Alipore Court had no jurisdiction to entertain the application.
2. In the petition for dissolution of marriages it was stated that the parties were domiciled in India at the time of their marriage in 1948. Evi-deuce was led to this effect on behalf of the petitioner and the learned Judge came to a finding that it was so. Under Section 2, Divorce Act, it is necessary that there should, be a definite finding that the parties were domiciled in India at the time when the petition for dissolution was presented. During the ex parte hearing no evidence was adduced in support of such a case and no finding was recorded by the Judge. The attention, of this Court having been drawn to this matter by the respondent the following issue was sent down for decision by the trial Court:
'Were the parties domiciled in India at the time when the petition was presented'.
3. After this issue had been sent down evidence was led by the parties and on a consideration of such evidence the Additional District Judge has recorded the finding that at the time when the application for dissolution of marriage was presented on 2-5-1950, the parties were domiciled in the dominion of Pakistan and not in the Republic of India.
4. At the final hearing before us it had been strenuously argued on behalf of the petitioner wife that since 15-8-1947 the domicil of the parties was the Indian domicil. In the alternative it is contended that even if the domicil of the respondent husband had not since 15-8-1947 been the Indian domicil he had adopted thereafter the domicil of India and both the parties had acquired the domicil of India before the date of the presentation of the application by the wife for dissolution of marriage.
5. For a proper appreciation of the questions raised before us it is necessary to refer to the facts as elicited from the evidence adduced by the parties.
6. Both the parties admittedly professed the Christian faith. The petitioner and both her parents were residents of Calcutta or near about from long before 15-8-1947 and continued thereafter. The place where the petitioner's parents stayed have since 15-8-1947 been included in the Indian Dominion. The petitioner was of Indian domicil from after 15-8-1947. Whether after her marriage the same domical continued would depend on the question whether her husband was of Indian domicil.
7. The respondent husband was born in 1912 at Mardan, in area which then within the North-West Frontier Province was situate within the then British India. Since 15-8-1947 this area has beeen within the Dominion of Pakistan. The respondent's father lived at Peshawar and died there in 1940. The respondent was baptized at Mar-dan and was educated at different places in the North-West Frontier Province. In 1933 he entered Government service at Peshawar in the office of the local Secretariat. In 1946 his services were lent by the British Indian Government to the British Embassy at Kabul within Afganis-than. He has ever since been working at Kabul and has also been residing there. It also appearsthat since 1946 the respondent husband had not resided for any length of time in the North-West Frontier Province or in any other part of Pakis-tan.
8. The respondent had never even visited any other part of British India before 1948. He came to what has become Western-Bengal for the first time in December 1948. He came from Kabul to marry the petitioner. The respondent's in-other had from before been staying at Kon-nagar in the District of Hooghly in West Bengal, and it was he who had arranged for this marriage. The petitioner and the respondent were married at St. John's Church, Calcutta, on 15-12-1948.Within a week thereafter the respondent husband left for Kabul with his newly married wife.
9. The petitioner wife returned to West Bengal alone in April 1949. The respondent came from Kabul on 7-7-1949, and stayed with his wife in the house of the father of the latter in West Bengal and both left for Kabul on 27th July following. Within two months thereafter the petitioner wife again returned in September 1949 to her father's place after having obtained a temporary permit from the authorities for staying in India temporarily on the ground that her brother was seriously ill. The petitioner-wife has ever since stayed in India after obtaining extensions of the temporary permit.
10. On or about 6-4-1950 the respondent husband came to West Bengal and stayed for some time either with his father-in-law or his brother until he returned to Kabul the next month. He has since then been staying at Kabul except for the temporary period when he had come to Calcutta to depose in the present proceedings after the order of remand by this Court.
11. It was first contended on behalf of the petitioner wife that before 15-8-1947 the respondent was domiciled in British India as it then was. As he had left the North-West Frontier Province for Kabul before 15-8-1947, and he had ever since been employed in the British Embassy at Kabul without returning to the North-West Frontier Province the respondent continued to have the domicil of British India even after the Dominion of India and Pakistan had been brought into existence under the Indian Independence Act.
12. The patent fallacy in this line of argument is that it is overlooked that on and from 15-8-1947 'British India' had ceased to exist.
13. Under Section 1 (1), Indian Independence Act, 1947 (10 & 11 Geo. VI C. 30)
'(1) As from the 15th day of August Nineteen hundred and fortyseven, two independent Dominions shall be set up in India, to be known respectively as 'India' and 'Pakistan'.
(2) The said dominions are hereafter in this Act referred to as the 'new Dominions' and the said 15th day of August is hereafter in this Act referred to as the appointed day'.
14. Section 2, Indian Independence Act, further made it clear that:
'the territories of India shall be the territories under the sovereignty of His Majesty's which, immediately before the appointed date, were included in British India except the territories which under Sub-section (2) of this Section are to be the territories of Pakistan'.
15. Sub-section (2) of Section 2, Indian Independence Act, further provided subject to the provisions of sub-sections (3) and (4) of this section, which are not relevant for the purpose of the question now before us, that:
'The territories of Pakistan shall be
(a) The territories which, on the appointed day are included in the Province of East Bengal and West Punjab as constituted under the two following sections:
(b) The territories which, at the date of the passing of this Act, are included in the Province of Sind and the Chief Commissioners Province of British Baluchistan; and.
(c) If, whether before or after the passing of this Act but before the appointed day, the Governor-General declares that majority of the valid votes cast in the referendum which, at the date of the passing of this Act, is being or has reasonably been held in that behalf under his authority in North Western Frontier Province are in favour of represen-tatives of that Province taking part in the Constituent Assembly of Pakistan the territories which, at the date of the passing of this Act are included in that Province'.
16. The Referendum taken in the North-West Frontier Province resulted in favour of its joining Pakistan.
17. Under the provisions of the Indian Independence Act, 1947, all rights, authority and jurisdiction exercisable fay the King of England over the territories constituting British India under Section 2, read with Section 311(1), Government of India Act, 1935 (25 and 28 Geo. V. c. 42) came to an end. This will become abundantly clear if we refer to the provisions of Section 19 (1) Indian Independence Act, read with Sub-section (4) of that section. Under the latter Sub-section the term 'India' when we refer to a state of affairs existing before the appointed day or which would have been existing but for the passing of this Act has the meaning assigned to it by Section 311, Government of India Act, 1935. This is further clarified when in Section 7, Indian Independence Act, the consequences of the setting up of the two new Dominions are set out. The British Parliament in England will have no responsibility as from the appointed date so far as the Government of any of the territories which immediately before that day were included in British India. The Parliament of the United Kingdom also gave the assent to the omission from the Royal style and title of the King of England the words 'Emperor of India'.
18. The territories which had previously beenknown as British India were divided under thethen sovereign authority of the British Parliament into two new sovereign Dominions viz:India and Pakistan. We are not concerned hereas to the legal status under the provisions contained in the Indian Independence Act, so faras the States under the Indian rulers are concerned.
19. It is contended that although British India has ceased to exist, a person who had originally a domicil of British India will continue to have the same. This is not possible. As a result of the provisions contained in the Indian Independence Act a person who had originally the domicil of British India, unless he had subsequently acquired the domicil of some other country outside the ambit of the territories which were originally British India, he would automatically acquire the domicil either of India or of Pakistan.
20. The limited question for our decision is whether on 2-5-1950, the parties were domiciled in the Republic of India If they were' so domiciled the conditions imposed under Section 2, Divorce Act, (as adapted by the Adaptation Orders of 1948 and 1950) would be satisfied If on the other hand we reach the conclusion that the parties were not domiciled in the Republic of India on the date when the application for dissolution of marriage was filed it will not be necessary to enter into a discussion far less to find specifically, of what domicil the parties were on the relevant date.
21. On behalf of the petitioner it was contended that the territorial sovereignty will not affect the question of domicil in the present case. As observed by Oppenheim in 'International Law' --Volume 1 -- Peace 6th Edition, at page 408, that the importance of 'State territory' lies in the fact that it is the space within which the State exercises its supreme authority. it must however 'be emphasised that the territory of a State is totally independent of the racial character ofthe inhabitants of the State.' The State community may consist of different nations.
22. Nations lay down in their respective municipal law as to how nationality can be acquired as also for determining the grounds on which individuals obtain their nationality. The of the different modes of acquisition of nationality are by subjugation after conquest or by cession of territory. The inhabitants of the subjugated and the ceded territory acquire ipso facto by such subjugation or cession the nationality of the State which acquires the territory.
23. The circumstances under which Britain withdrew from India though of a unique character are not altogether without precedent. From the territory which was under the sovereignty of the British King and Parliament viz. British India, the latter withdrew such sovereign authority and after division of the territory into two different parts ceded such territory to two new independent States which were brought into existence uder a Parliamentary Statute viz. the Indian Independence Act. Oppenheim in Section 219 at page 563 observes -
'As the object of cession is sovereignty over the ceded territory, all such individuals domiciled thereon as are subjects of the ceding State become 'ipso facto' by the cession subjects of the acquiring State.'
24. If the old State does not disappear altogether it is possible to mitigate the hardship of the inhabitants being handed over to a new sovereign State against their will by a stipulation in the treaty of cession, if any, which bind the acquiring State, to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration.
25. Reference is made in Vol. 38 of theAmerican Journal of International Law (1944)pages 363-374 to options which were allowed intreaties concluded by Germany between 1939 and1942 about the evacuation of German minoritiesfrom Soviet Russia, Italy and some other countries. It has been pointed out by Oppenheim sBSection 219 (a) page 504-505 that -
'failing a stipulation expressly forbidding it, theacquiring State may expel those inhabitantewho have made use of the option and retainedtheir old citizenship, since otherwise the wholepopulation of the ceded territory might actuallconsist of aliens and endanger the safety of theacquiring State.'
26. In some cases therefore an option is stipulated lated in favour of the inhabitants of the ceded territory and thus avert the charge that inhabit tants are handed over to a new sovereign against their will. The terms of option may vary from case to case but the general principle applied has been that a person habitually resident in a ceded territory acquires 'ipso facto' the nationaly of the State to which the territory has been trasferred, and lose the nationality of the ceding State, (page 506 -- Oppenheim.)
27. From the principles referred to above it will be significant that a person habitually respondent within a particular ceded territory acquires 'ipso facto' as a result of the cession the nations lity of the State to which the territory is transferred.
28. On an examination of the provisions contained in the Indian Independence Act it ban already been pointed out that British India bad ceased to exist after two new independent States having sovereign authority over particular portions of the original territory which constituted British India had been brought into existence.in this case therefore there was no possibility of a British Indian subject retaining his nationality after 15-8-1947. Even if it were possible for a British Indian subject to retain (after 15-8-1947) the British Indian nationality the respondent husband was not one habitually resident within that proportion of British India which became the Indian Dominion and was subsequently declaredto be the Indian Republic. He cannot, therefore, been on the principles applied to cession of territories acquire after 15-8-1947 the nationality of the Dominion of India or the Republic of India that is Bharat.
29. Whether the respondent husband was aperson habitually resident of the North-WestProatier Province i.e. within Pakistan from after15-3-1947 and also whether he had acquired 'ipsofacto' the Pakistan nationality does not requireconsideration by us as we have already indicated;we do not express any opinion on this point.
30. No doubt domicil and nationality are twoquite different conceptions as had been pointedout by Lord Westbury in -- 'Udny v. Udny',(1889) LR 1 Sc and Div 441 at p. 457 (A) -
The law of England, and of almost all civilisedcountries ascribes to each individual at hisbirth two distinct legal states or conditions:one by virtue of which he becomes the sub-ject of some particular country binding him bythe tie of national allegiance, and which may be called his political status; another by virtueof' 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. This political status maydepend 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. For it is on this basis that the personal rights of the party, that is to say, the law which determines Ms majority or minority, his marriage, succession, testacy or intestacy, must depend.'
A man may change his domicil without divesting himself of his nationality -- 'Boldrini v. Boldrini', (1962) Probate 9 (B). Similarly there may be a change of nationality without a change of domicil.
'A change of domicil is not a condition of naturalisation and naturalisation does not necessarily involve a change of domicil.(--'Wahl v. Att.-Gen', (1932) 147 LT 382) (C).'
31. But in the present case where the State known as British India disappears, from after a particular date, from the map of the world, it is impossible for a person to retain either the nationality or the domicil of British India. In the case of a complete merger or cession of a State is not open to a person, who was a citizen of that State, which is now non-existent, or was domiciled therein, to continue to arrogate, even after its disappearance, either a citizenship or a 'domicil with reference to that quondum State.
32. On the conclusion reached by us that the respondent's husband had not 'ipso facto' acquired either the nationality or the domicil of the Indian Duration after 15-8-1947, it remains to be considered whether the respondent had adopted the domicil of India subsequently and before the date of the presentation of the application for dissolution of marriage. The law as to the acquisition of a new domicil is now well settled. It is open to a person to 'acquire a domicil of choice, by the combination of residence ('factum') andintention of permanent or indefinite residence ('animus manendi'), but not otherwise' (Dicey's Conflict of Laws, 6th Edition, page 89).
33. So far as the factum of residence is concerned to constitute residence it need not be long in point of time.
'If the intention of permanently residing in a place exists, a residence in pursuance to that intention, however short, will establish a domicil' -- 'Bell v. Kennedy', (1868) LR 1 Sc. & Div 307 at p. 319 (D).
34. In determining the nature of domicil of choice therefore the 'animus' or the character of the necessary intention requires careful scrutiny. Dicey refers to the four following essential conditions for determining the character of necessary intention-
(1) The intention must amount to a purpose or choice. There is some divergence of judicial opinion as to how far this intention or choice must be definite or conscious. According to some it is not necessary in order to establish a domicile, that a person should have absolutely made up his mind which of the two countries is the place where he intends to make his permanent home --'Attorney General v. Pottinger', (1861) 30 LJ Ex. 284 at p. 292 (E). The other view is that somewhat more distinct intention must be proved specifically:
'it must be shown that the intention requiredactually existed, or made reasonably certainthat it would have been formed or expressed ifthe question of change of domicil had arisenin a form requiring a deliberate or solemndetermination.' -- 'Douglas v. Douglas', (1871)LR 12 Eq 617 (P). See also -- 'Ramsay v. LiverpoolRoyal infirmary1, (1930) AC 588 (G). This latter viewseems to have been stressed In the more recentcases.
(2) The intention must be an intention to reside permanently or for an indefinite period. If a person goes to a foreign country with the intention to finish a piece of business or even with the intention of staying there until he has made a fortune he still retains his domicil of origin and is not proved to have adopted the domicil of choice -- 'Jopp v. Wood', (1865) 4 De GJ & Sm. 616 (H). The intention to reside temporarily may afterwards be shown to have become unlimited. As soon as there is such a change of purpose or 'animus' the fact of domicil will be taken to have been established, taut not until then '(1869) LB 1 Sc & Div 441 at p. 458 (A)'.
(3) The intention must be an intention of abandoning i.e. of ceasing to reside permanently in the country of the former domicil. Difficulty arises when the intention to leave the country of former domicil is dependent on some purpose which may subsequently be frustrated. The intention to abandon must be a real one and not a make-believe one. Reference may be made to the observations of the Court of Appeal in --'Fasbender v. Attorney General', (1922) 1 Ch 232 (I); -- 'Fasbender v. Att. Gen.', (1922) 2 Ch 850 (J).
(4) It is not necessary that the intention of the person should be an intention to change allegiance. This view has, however, been shaken by the more recent decision in --'Winans v. Attorney General', (1904) AC 287 at pp. 299-300 (K).
35. It is to be borne in mind that in determining the domicil of the parties in a proceeding for dissolution of marriage it is the domicil of the husband alone which is to be considered inasmuch as a wife takes the domicil of her husband upon her marriage. It has been repeatedly pointedout that in the submission by the parties to the jurisdiction of a Court their former domicils are relevant. In view of the clear provisions of Section 2, Divorce Act no other consideration can influence the decision. The difficulties in which one or other party finds himself or herself are not relevant for the decision. The problem of the deserted wife after the husband has acquired a new domicil and the tendency of earlier decisions in English Courts to remedy the peculiar position by relaxing the general principles has no relevancy in the face of the clear statutory provisions in the Indian Divorce Act. As in the more recent cases in England the Courts have been rigorously applying the test of domicil even in hard cases special statutory provisions have been made in England as Matrimonial Clauses Act of 1937 and 1944. In India, however, the Court has to rigidly apply the test of domicil as on the date when the application for the dissolution of a marriage is filed. It is not open to the Courts to import considerations of personal difficulties or problems which may arise on applying the statutory provisions. That is a matter of policy which is the province of other competent authorities.
36. We shall now proceed to examine the evidence as adduced by the parties to prove the 'animus' of residence as indicated by the husband.
37. It appears that the husband respondent had on 14-4-1948 applied through the British Embassy at Kabul to the Government of India in the Ministry of External Affairs and Commonwealth Relations regarding 'adoption of Indian domicil 'and the possibility of his employment under the Government of India'. It is with reference to that application that the Deputy Secretary in the Ministry of External Affairs, New Delhi, intimated on 27-5-1948 the Secretary, British Embassy at Kabul (Ex. 2 (b) and Ex, A) to the following effect:
'Mr. J. Ataullah is free to come to India and settle down here if he so desires. His citizenship of the Dominion of India will, however, be determined according to the provisions of the Draft Constitution of India, recently published which are yet to be adopted by the Constituent Assembly of India with or without any modifications. As regards employment under the Government of India, there is none which could fee offered to him and he will have to revert to the Government of the North West Frontier Province after the expiry of his deputation to the British Embassy, Kabul.'
The respondent husband in course of his deposition in the present proceedings states with reference to his application dated 14-4-1948 referred to above and the reply from the Ministry of External Affairs (Ex. 2(b) and Ex. A):
'Originally I had the intention of settling in India permanently, but I changed my mind as the Government of India could not promise any job under them. I finally changed my mind on 16-6-1948 when I received that letter' (Ex. A).
He states at another place that
'Permission had been granted to me by the Government of India by their letter dated 27-5-1948 to reside in India permanently. But I never resided in India permanently.'
We have not before us any copy of the application made by Attaullah on 14-4-1948 but it is quite clear that his intention to reside permanently in India was dependent on his obtaining a job in India. The condition was not satisfied and he frankly admits his earlier intention was abandoned on receipt of the letter Ex. A.
38. The evidence as furnished by Ex. A is not under the circumstances sufficient to prove theadoption of a domicil of choice by Attaullah. The intention to reside permanently in India and also to leave permanently the then domicil, whatever it might have been, were contingent on his obtaining a job in India. This was frustrated. The original intention to abandon the then domicil cannot be deemed to be a real one but a conditional one.
39. On behalf of the petitioner's wife it was contended that the intention expressed in April 1948 continued in November 1950 and reliance is placed on Ex. 2 a letter written by Attaullah to his father-in-law on 18-11-1950. If this letter is to be treated as an admission by the respondent husband it has to be taken in its entirety. It is to be noticed that the wife petitioner has been residing in India on the strength of a temporary Permit from September 1949. The husband respondent came to Bengal on or about 6-4-1950 and the husband and wife lived together for a few days till 11-4-1950 when they again fell out. The husband left for Kabul a few days later. The application for dissolution Of marriage was filed on 2-5-1950, and a decree nisi was passed ex parte on 28-9-1950. The husband respondent came to Bengal between October and November 1950. The case for the husband is that during that visit certain terms for the settlement of the differences between them were accepted. The letter (Ex. 2) which was written by the husband is the outcome of such terms of settlement.
40. In his letter dated 17-11-1950 addressed to the Secretary Embassy of India in Kabul (with a copy sent to the Assistant Secretary to the Government of West Bengal, Home (Political) Department Calcutta (Ex. 2(a) ) he had no doubt declared that he intended
'... .To go to India and settling down there eventual permission for which has already been given by the Government of India vide Memorandum No. D. 3309-EI/48 dated 27-5-1948 from the Deputy Secretary to the Government of India in the Ministry of External Affairs and Commonwealth Relations to the Secretary, British Embassy, Kabul I shall be grateful if It please be recommended to the Government of India to allow my wife to stay in India permanently with her parents who are Indian nationals being bona fide residents of Calcutta. My wife has been born and brought up in Calcutta.
My wife will not be a burden to the Govt., of India in any way as she will stay with her parents and I will support her.
I shall be highly obliged if an earlier action is taken on this application as Government of India have extended the period and validity of the temporary permit of my wife up to 31-12-1950.'
If this declaration of intention be taken as valid and a bona fide one as of abandoning the idea or desire to reside permanently in the country of the then domicil and to reside permanently in India he would as from 17-11-1950 be deemed to have adopted a domicil of choice -- the Indian domicil.
41. As pointed out already this expression of intention on 17-11-1950 was long after the date of the application by the wife for dissolution of marriage. A change in domicil subsequent to the date when the application for dissolution was presented will not validate the proceedings as the provisions contained in Section 2, Divorce Act, are clear and specific. Taking into account this difficulty in the way of the petitioner wife it was attempted to be argued that the intention to adopt the Indian domicil was expressed on 14-4-1948 and thisintention was continued till 17-11-1950 as evidenced by Ex. A and Ex. 2 (a). As I have pointed out already that the expression of intention or animus as disclosed in the correspondence in 1948 cannot be regarded as having expressed the final intention to reside in India permanently and adopt the Indian domicil unconditionally and without any reservation.
42. Further Ex, 2(a) has to be read along with Ex. 2 viz., the letter which Attaullah wrote to his father-in-law on 1-11-1950 enclosing what is now marked as Ex. 2 (a). An attempt was being made at that stage to settle the differences between the husband and the wife by taking such steps as would make it possible for the wife to stay with her parents by expressing a make believe intention of coming over to India by the husband. Exhibits 2 and 2(a), therefore, cannot be regarded as expressing a real and bona fide intention by the husband to reside permanently in India or of ceasing to reside permanently in the country of his the then domicil. The tests indicated by Dicey in the 2nd and 3rd conditions referred to above are not satisfied.
43. The evidence as adduced in this case, therefore, leads to the irresistible conclusion that the husband had not acquired ipso facto the Indian domicil on 15-8-1947 and had not thereafter adopted the domicil of India as the domicil of his choice before the wife petitioner presented her petition for dissolution of marriage on 2-5-1950. The condition laid down in Section 2, Divorce Act, not having been satisfied the application for dissolution must be dismissed as not maintainable in the Court of the District Judge. 24-Parganas. The decree nisi passed by the Additional District Judge, Second Court Alipore on 28-9-1950 is accordingly set aside.
44. As had been noticed in the order passed by this Court on 30-S-1951 the husband respondent raised for the first time in. this Court an objection based upon Section 2, Divorce Act, questioning the Jurisdiction of the Court to entertain the application. The question of costs was to be determined at the final hearing. In view of the fact that the objection had not been raised at the initial stage the proper order in the circumstances of this case will, therefore, be to direct each party will bear the respective costs of both the Courts.
45. I agree.
46. I agree.