IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 364 of 2007()
1. JAMES K.AVARAN, S/O.KUNJUVAREED,
... Petitioner
Vs
1. JANCY RITAMMA GEORGE @ JANCY AVARAH,
... Respondent
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :DR.SEBASTIAN CHAMPAPPILLY
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :05/06/2009
O R D E R
C.R.
R.BASANT & M.C. HARI RANI,JJ
==============================
MAT.A. NO. 364 OF 2007
============================
DATED THIS THE 5TH DAY OF JUNE 2009
JUDGMENT
Basant,J.
What constitutes domicile under Section 2 of the Indian
Divorce Act? Who is to plead and prove that domicile of
birth/origin has been abandoned and a fresh domicile of choice
has been acquired by the spouses? Does long residence in an
alien country where one is employed with prospects of continued
residence for a further long period in connection with such
employment lead to a ready inference of change of domicile?
Should both spouses (and not either) be domiciled in India for
the Family court to assume jurisdiction in a Divorce application?
Is the expression of intention of one spouse in the course of
proceeding to acquire domicile by choice in an alien country
sufficient to divest Indian courts of their jurisdiction in
matrimonial proceedings for divorce under Section 2 of the
MAT.A.364/2007 -2-
Indian Divorce Act? These interesting questions are thrown up
for consideration in this appeal.
2. This appeal under Section 19 of the Family Courts Act is
directed against an order passed under Section 10 of the Indian
Divorce Act dissolving the marriage between the
appellant/husband and the respondent/wife on the ground of
cruelty.
3. Marriage is admitted. Separate residence is also
admitted. Allegations of mental and physical cruelty are raised
by the wife. It is alleged that the husband has been tormenting
the wife perpetually raising allegations of unchaste and
adulterous conduct. It is further alleged that physical cruelty was
also inflicted on the wife by the husband while they were residing
together raising such allegations.
4. The matrimonial discord has a long history behind it.
Sans unnecessary details, crucial skeletal facts can be narrated
thus:
5. The marriage took place on 26-11-1989. The marriage
MAT.A.364/2007 -3-
was solemnized in accordance with the Christian religious rites at
Thrissur District in Kerala. The wife was employed as a Nurse in
the Indian Army at that time. The wife went to Switzerland on
5-9-1990. The brother of the husband was employed and living
there at that time. Long later, the husband who was a lawyer
practising in Kerala also left for Switzerland and joined the wife
on 13-11-1993. Matrimonial discord developed and admittedly
separate residence commenced on 17-8-2002. There were certain
proceedings initiated before the courts at the place where the
spouses reside – in Switzerland. The wife contends that the court
had granted police protection for her peaceful separate residence
whereas the husband claims that such police protection was
granted in his favour. Be that as it may, there is no dispute that
the parties are residing separately from 17-8-2002 and that a
court in Switzerland has afforded police assistance for them to
reside separately. The wife has permanent employment as a
Nurse there whereas the husband does not appear to have any
such permanent employment. He lives on social security which is
MAT.A.364/2007 -4-
available for persons residing in Switzerland. In the proceedings
before the Switzerland Court, maintenance/support has been
ordered to be paid by the wife to him. There is, of course, the
assertion and evidence that he is employed for some
newspapers in Kerala as their local correspondent in Switzerland.
6. The wife claimed divorce under Section 10 of the Indian
Divorce Act on the ground of cruelty. As stated earlier, she
alleged that the husband has been guilty of mental cruelty
he having incessantly raised false allegations of unchaste and
adulterous behaviour. He had also assaulted her physically and
verbally. These acts of his amounted to matrimonial cruelty, it
was alleged. The claim for divorce was made on the plank of
these allegations of matrimonial cruelty.
7. The husband entered appearance and resisted the claim
for divorce. It would appear that the husband is not in principle
against the dissolution of the marriage. He denies the allegations
of cruelty but asserts unambiguously that the wife has been
MAT.A.364/2007 -5-
guilty of adultery and unchaste behaviour as also licentious
conduct even before and after the marriage. Specific
allegations to that effect are raised in the objections filed.
However, the husband asserted that he was also interested in
getting the matrimonial tie dissolved. But according to him not
the courts in India but the Courts in Switzerland alone have
jurisdiction to entertain such plea for divorce. He also wants
divorce, which is not in dispute. According to him, the parties
were not domiciled in India at the time of presentation of the
application for divorce and consequently courts in India have no
jurisdiction to entertain the claim for divorce. According to him,
the wife had approached the courts in Switzerland for a decree
for separation, and having approached the courts in Switzerland
for a decree for separation, her subsequent conduct of rushing to
India and filing an application for divorce was not justified. It is
calculated to avoid the fiscal liability for payment of support to
the dependent husband which under the law in Switzerland, the
claimant wife would be exposed to. Preliminary objection was
MAT.A.364/2007 -6-
raised against maintainability of the petition for divorce before
Indian Courts.
8. The husband denied the allegations of physical and
mental cruelty but asserted unambiguously that the wife was
guilty of adulterous and unchaste behaviour after marriage. He
raised allegations of licentious behaviour and conduct on the
part of the wife prior to marriage also.
9. We cut a long story short. We are not referring to the
acrimonious proceedings between the parties after the filing of
the application for divorce. Before the court below, the claimant
wife examined herself as PW1 and her father as PW2. The
respondent-husband examined himself as RW1. Exts.A1 to A31
were marked on the side of the claimant-wife whereas Exts.B1 to
B16 were marked on the side of the respondent-husband. We
note that Ext.B series are not marked properly by the Family
Court. Registry shall ensure that this inadequacy is rectified
immediately by the Family Court.
10. The learned Judge of the Family Court on an anxious
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consideration of all the relevant material came to the conclusion
that it cannot be said that the parties were not domiciled in India
on the date of presentation of the application. The contention of
the husband that the parties were domiciled in Switzerland was
not accepted by the Family Court. The Family Court did not
proceed to consider in detail the allegations of physical cruelty,
but came to the conclusion that the allegations of mental cruelty
and torture by the husband by raising unsubstantiated allegations
of adulterous, unchaste and licentious conduct are sufficient by
themselves to justify the plea for divorce on the ground of mental
matrimonial cruelty. Accordingly, the Family court proceeded to
pass the impugned order.
11. Before us, the learned counsel for the appellant-
husband and respondent-wife have advanced detailed arguments.
The learned counsel for the appellant assails the impugned order
on the following three specific grounds:
(1) The court below erred grossly in coming to the
conclusion that the parties were domiciled in India at the time
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when the petition was presented.
(2)The learned Judge of the Family Court did not advert
properly to the allegations of matrimonial cruelty and the finding
that cruelty to justify dissolution of marriage is proved is not
acceptable.
(3)The impugned order is bad for the reason that no
counselling has been attempted by the Family Court before
permitting the parties to lead evidence.
12. Ground No.1. Counsel points out that under Section 2
of the Indian Divorce Act, a decree for dissolution of marriage
cannot be passed “except where the parties to the marriage are
domiciled in India at the time when the petition is presented”.
We extract Section 2 of the Act for the purpose of easy reference.
“Section2: Extent of Act.-This Act extends to the
whole of India except the State of Jammu and
Kashmir.
Extent of power to grant relief generally.-
Nothing hereinafter contained shall authorise any
MAT.A.364/2007 -9-
Court to grant any relief under this Act, except where
the petitioner [or respondent] professes the Christian
religion.
and to make decrees of dissolution.- or to
make decrees of dissolution of marriage except where
the parties to the marriage are domiciled in India at
the time when the petition is presented.
or of nullity.-or to make decrees of nullity of
marriage except where the marriage has been
solemnized in India, and the petitioner is resident in
India at the time of presenting the petition
or to grant any relief under this Act other than a
decree of dissolution of marriage or of nullity of
marriage, except where the petitioner resides in India
at the time of presenting the petition.
(emphasis supplied)
13. The learned counsel for the petitioner points out that no
MAT.A.364/2007 -10-
relief whatsoever can be granted except where either the
petitioner or the respondent professes the Christian religion. No
decree for nullity can be granted unless the marriage has been
solemnized in India and the petitioner is resident in India at the
time of presenting the petition. But so far as the decrees for
dissolution are concerned,a different stipulation is made that such
petition for dissolution can be filed only when the parties to the
marriage are domiciled in India at the time of presenting the
petition.
14. The learned counsel contends that this stipulation is
made in the interest of the parties and to enable them to adduce
proper evidence before the courts. Unless parties are domiciled
in India, it would be difficult for the parties to adduce evidence
about the ground for dissolution of marriage. If they are
domiciled elsewhere, it would be hazardous to insist that they
must adduce evidence before the court at a place where they are
not residing. This is the reason why the requirement of domicile
is insisted, contends the learned counsel.
MAT.A.364/2007 -11-
15. We are unable to agree. The insistence is not that the
parties must be residents in India when the petition is presented
or at the time where the grounds for dissolution arose. The
insistence is only on domicile of the parties. The concept of
domicile is distinct and different from residence.
16. That takes us to the larger question as to what is
domicile to attract jurisdiction under Section 2 of the Indian
Divorce Act.
17. The relevant precedents have been brought to our
attention. There is no litmus test to decide the question of
domicile, when rival contestants conveniently assert contra.
After having perused all the relevant precedents and decisions
which have been placed before us, it appears to be easy to state
generally that “residence with the intention of permanent or
indefinite residence constitutes domicile”. The principle generally
so stated may not help the court to find out with felicity and ease
as to what is the domicile of either of the contestants.
18. The concept of residence, permanent residence,
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nationality, citizenship and domicile are definitely over lapping
concepts. These will have to be approached carefully in a
matter like this where the very jurisdiction of this court is
challenged on the ground of domicile.
19. Before proceeding to advert to the question in detail it
will only be apposite to note that every person must have a
domicile of birth/origin. It is usually easier to ascertain the
domicile of birth/origin as there could be little scope for dispute
on that concept of domicile of birth/origin. That makes our task
easy as both sides unambiguously concede that their domicile of
birth/origin is India and no other country at all. For generations
from the known past the parties are Indians, domiciled in India
following the laws of India. It is one of the accepted principles
relating to the law of domicile that the burden rests squarely
and heavily on the shoulders of the party who asserts and pleads
that he as well as his spouse have abandoned the domicile of
birth/origin and have embraced another domicile of choice. The
burden must, in these circumstances, heavily rest on the
MAT.A.364/2007 -13-
appellant-husband to show that the domicile of origin in India has
been abandoned and the domicile of choice has been acquired by
both spouses at Switzerland.
20. We shall straight away deal with the contention that
there is no specific assertion of the domicile of the parties in the
petition for divorce filed by the wife. A reading of the petition
clearly shows (and that crucial circumstance is not denied or
disputed) that the domicile of birth/origin of both parties is India.
In these circumstances, it must certainly be held that if the
appellant-husband has a case that the admitted domicile of
birth/origin has subsequently been abandoned and a domicile of
choice has been acquired, the burden is on him to plead, prove
and establish that fact. The alleged inadequacy of pleadings does
not impress us at all as sufficient circumstances indicating the
undisputed domicile of birth/origin are clearly averred in the
petition. Reliance on Order VII, Rule 1(f) of the Code of Civil
procedure and the decision in Murphy v. Murphy, A.I.R.1929
Lahore 419 cannot be of any help to the appellant in this
MAT.A.364/2007 -14-
context. We repeat that the domicile of birth/origin is clearly
brought out in the pleadings. That is admitted also. An
insistence on specific pleadings of domicile as held in the Full
Bench decision of the Lahore High Court (supra) is definitely not
there in the relevant rules and precedents applicable to Kerala.
In these circumstances we are satisfied that the maintainability
cannot be disputed on the ground of want of sufficient averments
regarding domicile in the petition.
21. The starting point of the discussion must be the
undisputed domicile of birth/origin. Is there any pleadings,
evidence or circumstances to suggest that the domicile of
birth/origin has been abandoned and a domicile of choice has
been acquired by the parties to justify the contention that they
were both domiciled in Switzerland and not in India on the date
of presentation of the petition? As held by the supreme court in
Sankaran Govindan v. Lakshmi Bharathi, AIR 1974
S.C.1764 no single circumstance can be held to be conclusive.
No litmus paper or touch stone is available to the Court to answer
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that question. All the relevant circumstances have to be taken
into consideration to come to a conclusion as to what is the
domicile of the parties. The Supreme Court through Justice
K.K.Mathew spoke thus in Sankaran Govindan’s case(supra).
“Domicile is a mixed question of law and fact and there is
perhaps no chapter in the law that has from such
extensive discussion received less satisfactory settlement.
This is no doubt attributable to the nature of the subject,
including as it does, inquiry into the animus of persons who
have either died without leaving any clear record of their
intentions, but allowing them to be collected by inference
from acts often equivocal, or who, being alive and
interested, have a natural tendency to give their bygone
feelings a tone and colour suggested by their present
inclinations. The traditional statement that, to establish
domicile, there must be a present intention of permanent
residence merely means that so far as the mind of the
person at the relevant time was concerned, he possessed
the requisite intention. The relevant time varies with the
nature of the inquiry. It may be past or present. If the
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inquiry relates to the domicile of the deceased person, it
must be ascertained whether at some period in his life he
had formed and retained a fixed and settled intention of
residence in a given country. One has to consider the
tastes, habits, conduct, actions, ambitions, health, hopes
and projects of a person because they are all considered
to be keys to his intention to make a permanent home in a
place. It is impossible to lay down any positive rule with
respect to the evidence necessary to prove intention. All
that can be said is that every conceivable event and
incident in a man’s life is a relevant and an admissible
indication of his state of mind. It may be necessary to
examine the history of his life with the most scrupulous
care, and to resort even to hearsay evidence where the
question concerns the domicile that a person now
deceased, possessed in his life-time. Nothing must be
overlooked that might possibly show the place which he
regarded as his permanent home at the relevant time. No
fact is too trifling to merit consideration. Nothing can be
neglected which can possibly indicate the bent of a
MAT.A.364/2007 -17-
person’s mind. His aspirations, whims, prejudices and
financial expectation, all must be taken into account.
Undue stress cannot be laid upon any single fact, however
impressive it may appear when viewed out of its context,
for its importance as a determining factor may well be
minimised when considered in the light of other qualifying
event. It is for this reason that it is impossible to formulate
a rule specifying the weight to be given to particular
evidence.”
22. It is in this context that we first noted that the admitted
domicile of origin/birth of both parties is India. It is true that
the wife had shifted to Switzerland on 5-9-1990 and the husband
had followed her to that country on 13-11-1993. Admittedly,
she has been employed as a Nurse there and the employment
does appear to be lucrative going by the undisputed evidence.
For the past about two decades, the wife has been there. She had
worked and studied there. She had acquired better qualification
there. She had secured a lucrative employment there. Her
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husband had followed her to Switzerland. But in these days
where employment opportunities abroad are many, the mere
taking up employment in a country outside India cannot certainly
be assumed lightly to lead to the conclusion that such
employment seeker has lost his claim for permanent residence
in India or that such person has abandoned the domicile of
origin/birth. Lack of employment opportunities in India and the
availability of greener pastures abroad may prompt many an
Indian to take up employment outside the country. In connection
with such employment, he will be compelled to remain abroad.
Many may be nostalgic and may entertain the desire to return to
India as quickly as possible, but the lure of lucrative employment
and the want of equivalent or comparable opportunities at home
may compel such person to postpone the date of his return. He
may opt to continue to live there and be employed there until
law and circumstances in which he is placed permit him to
continue such employment. But according to us, it would be
puerile, premature and myopic from such circumstance of
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continued residence in connection with ones employment alone
to assume that he has given up his claim for permanent
residence in India much less that he has abandoned the domicile
of birth/origin and has opted for a different domicile of choice.
Strong and clinching evidence must be placed before court to
prove abandonment of the domicile of origin/birth.
23. The wife as PW1 asserted that she has no intention to
permanently settle down at Switzerland or abandon her domicile
of birth in India. We have no reason not to take her seriously.
Several other circumstances are also pressed into service by the
respondent-claimant to assert that her domicile of birth/origin in
India continues and has not been abandoned notwithstanding
the fact of her long residence in Switzerland and probability of
her continued residence in Switzerland for such further period
that she can be employed there.
24. Nationality and domicile may be subtly different.
Citizenship and domicile may also not be synonymous. But in a
situation like this no court can ignore the fact that the
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respondent as well as the appellant herein are both holders of
Indian passports. They continue to reside in Switzerland on the
basis of visas issued to them. They have not so far acquired
citizenship in Switzerland. There is an interesting claim of half
citizenship but except to show that work permit has been issued
to the claimant wife entitling her to work in Switzerland, there is
nothing to indicate that she has abandoned Indian citizenship,
nationality or domicile. Where a person has acquired citizenship
of another country that may be a compelling indication of
abandonment of domicile of birth and acquisition of a domicile of
choice. By the same reasoning, continuance of Indian
citizenship and holding of the Indian passport must be held to be
indicative of the desire of the parties to cling on to the domicile of
birth/origin in India. The evidence shows that her parents are
living in India. Evidence confirms that she has been visiting her
parents as frequently as possible. Evidence reveals that her
name even now continues to be held in the ration card issued to
her parents. She claims and her father,PW2 asserts that
MAT.A.364/2007 -21-
ancestral property is available and the father intends to set apart
the property for her eventual return and residence in India. It is
interesting, though that is not the specific case of the claimant-
wife, that the husband asserts that the claimant-wife had
purchased properties in India in the name of her father. No one
has a case and at any rate such a case has not been
substantiated that the wife has acquired any landed property or
real estate in Switzerland. She was born here; she was educated
here; she took up employment here; she proceeded to
Switzerland to take up an employment, that employment
opportunity is still available; she continues there; she intends to
continue until such opportunity for employment is available; she
asserts that she wants to return to India; she has properties here
and there is nothing to show that she has severed her
connection with her home land. We have no hesitation in these
circumstances to hold that the available indications do not
suggest that she has so far abandoned her domicile of
birth/origin in India and has accepted any domicile of choice in
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Switzerland. The wife cannot by any stretch of imagination be
held to have lost her claim for domicile in India.
25. As against this, the learned counsel for the appellant
contends that the wife has initiated proceedings before the courts
in Switzerland and has made crucial and vital admissions in such
proceedings about her present domicile. We are unable to secure
authentic material about the nature of the proceedings initiated
or the nature of the specific pleadings raised.
26. From the materials available what is gatherable safely is
that the wife had alleged improper behaviour on the part of her
husband and had claimed separation and police protection to
secure her interest. Though there is a contention that such a
relief would not have been available unless the wife had admitted
domicile in Switzerland, no authentic material is placed before us
to come to such a conclusion. At any rate, nothing has been
brought to our notice to show that she had specifically asserted
before any authority in Switzerland that she has abandoned her
domicile of origin/birth and has opted for her domicile in
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Switzerland. Counsel points out that a statement has been filed
by her lawyer on her behalf in which the lawyer had made
statements which, according to the counsel for the appellant,
amounts to an unambiguous admission of her domicile at
Switzerland. We extract the same which is available in Ext.B5.
It reads as follows:
“She has a permanent job, is very well integrated here in
Switzerland and she has absolutely no intention to leave this
country.”
We shall assume for the sake of arguments that this is part of
her judicial pleadings though Ext.B5 shows that it is only a note
made by her counsel. But we are unable to find any crucial
admission on the question of domicile from the statement
extracted above. That a person has a permanent job or is
residing in Switzerland in connection with that job is not
synonymous with domicile. That a person has well integrated
in Switzerland which is a claim made by the lawyer in the
submissions made by him cannot also amount to any crucial
admission about the abandonment of the
MAT.A.364/2007 -24-
domicile of birth and the acquisition of a domicile of choice. The
statement that she has absolutely no intention to leave the
country cannot also be reckoned as any admission about the
domicile. She has a permanent job and the statement that she
has no intention to leave the country cannot be assumed or
reckoned as an admission to continue indefinite or permanent
residence in that country or to abandon and give up the domicile
of birth/origin. That statement made by the lawyer in the
submissions before court cannot in these circumstances be
construed as any vital admission on the question of domicile as
to offset or displace the circumstances referred above.
27. That she has sought relief from the Swiss courts to save
herself from her husband while both were residing in
Switzerland at the relevant time cannot also be held to amount
to any abandonment of the domicile of birth. She was residing
there. She needed assistance from the local authorities to enable
her to live in peace and pursue her employment. For this, she
sought separation and police assistance for peaceful residence.
MAT.A.364/2007 -25-
Indian Courts could not have granted her that relief. We are
unable to agree that, that conduct of hers – of approaching the
Swiss court to secure peaceful residence in Switzerland can be
reckoned as indication of an intention to give up her domicile of
birth and acquire a new domicile of choice.
28. We now come to the case of the husband. His parents
are no more. He has a brother here in India. The father had
properties. We have no clue as to what has happened to those
properties, though the husband asserts that he has no properties
in India. He has a permanent address in India and that appears
to be indisputable in the light of the sequence of events that has
taken place. In the vakalath filed by him, his address, (we
assume that to be his permanent address) shown is that at his
ancestral home at Irinjalakuda. He also does not have any
properties acquired in Switzerland. Nay, he cannot even claim
that he has any permanent, durable or reasonable employment in
Switzerland as it is his very contention that under law he will be
able to claim support from his wife consequent to his inferior
MAT.A.364/2007 -26-
financial status and position of dependence on his wife. He also
continues to be an Indian national having Indian citizenship. He
holds an Indian Passport and lives in Switzerland on the basis of
visa secured by him as an Indian national. He asserts that he
has given up his domicile of birth and has acquired the domicile
of his choice in Switzerland. There is nothing to show to the
satisfaction of the Court, such abandonment of the domicile of
origin and acquisition of a new domicile of choice.
29. It is true that he has asserted in the pleadings in this
case that he is not domiciled in India. Too much significance
and importance cannot be attached to such assertions made by
him after the initiation of proceedings. He is engaged in a
desparate bid to contend that the courts in India have no
jurisdiction and the Courts in Switzerland alone have jurisdiction.
Even his conduct of having filed an application for divorce before
the court in Switzerland after admitted commencement of the
instant proceedings before the Family Court (and after his
knowledge of such proceedings) knocks the bottom out of his
MAT.A.364/2007 -27-
claim for significance for his own assertion in the course of the
proceedings about abandonment of domicile of birth and
acquisition of domicile of his choice. That assertion made by him
is obviously with an intention to frustrate the claim filed by the
claimant/wife for divorce before the Indian courts and to drive
her to Switzerland Courts where the appellant/husband expects
to secure a better decree for support/maintenance as per the
personal laws applicable to citizens/persons of domicile of that
country. We are in these circumstances of the opinion that the
appellant has not succeeded in showing that even he has lost or
given up his domicile of birth and has acquired the domicile of
choice on the date of presentation of the petition as to non-suit
the claimant/wife in this proceedings.
30. The learned counsel for the respondent/wife contends
that even if it be found that the domicile of the husband is not in
India it would be hazardous to hold that the wife domiciled in
India cannot seek relief from the Indian Courts. The counsel
contends that the expression ‘parties to the marriage’ in Section
MAT.A.364/2007 -28-
2 of the Indian Divorce Act should not be read in any pedantic or
hyper technical manner. To advance the interests of justice the
expression, ‘parties to the marriage’ in Section 2 must be read
and understood to mean “either party to the marriage”, contends
counsel. Counsel argues that High Court of Madras has already
taken a view in this matter and this Court may be pleased to
adopt a similar approach to that question.
31. That question does not really arise for consideration in
the light of the conclusion that we have reached already that
both spouses continue to be domiciled in India notwithstanding
their residence abroad for a long period of time and their
probable future residence there until the opportunity for
continuing the present employment there ceases. But, we make
it clear that if we were to choose to take a view on the question,
we would have definitely concurred with the decision of the
Madras High Court dated 17-11-2008 in W.P.No.12816 of 1995
(Indira Rachel v. Union of India and another) and the views
expressed there in paragraph 5 which we extract below.
MAT.A.364/2007 -29-
“5. Though the provisions of the Act can be interpreted in
a literal manner, to conclude that both parties must be
domiciled in India at the time of presentation of the
petition, in our considered view, to effectuate the present
intention of the Act, which had come into force in the year
1869, possibly, when such contingencies were not in
contemplation, a purposive interpretation can be given to
make it reasonable and more consistent with the principles
enshrined in the Constitution. If the aforesaid provision is
construed to mean that a petition would be maintainable if
at the time of presentation of the petition either party is
domiciled in India, the difficulty projected by the petitioner
would not arise and on the other hand, object can be
achieved. Therefore, according to us, such provision
should be interpreted to mean that the Courts in India
shall be entitled to entertain petition for dissolution of
marriage where either of the parties to the marriage is
domiciled in India at the time when the petition is
presented and such provision need not be construed as if
both the parties must be domiciled in India at the time of
MAT.A.364/2007 -30-
presentation of the petition. In our considered view, such
an interpretation would bring it in consonance with the
philosophy of the Constitution. Moreover, we feel to
suggest that in order to avoid any further controversy in
the matter in different parts of the Country, the Ministry of
Law, the fist respondent, may consider the question of
making suitable amendment to the provisions in so far as
Section 2 of the Act is concerned in the light of other
provisions, if any, containing similar laws relating to
Divorce.
32. Counsel for the respondent/wife has placed before us
materials to show that suggestion of the High Court of Madras in
paragraph 5 of that decision is being pursued by the Law
Commission to avoid unnecessary hardship and difficulty, if any
court were to take a technical and literal view of the expression –
“parties” to the marriage. Singular expressions in a statute can
take in the plural and vice versa, it is trite. The expression
“the marriage” in the third part of Section 2 must be held to
refer to the marriages sought to be dissolved and the “parties to
MAT.A.364/2007 -31-
the marriage” must include the petitioning party to the marriage.
Wives residing and domiciled in India and who have not ever
moved out of India cannot be forced to undertake hazardous
trips to alien lands merely for securing divorce from their
husbands, who mischievously assert that they have taken up
domicile of choice in such alien lands. That injustice was
certainly not intended while enacting Section. The stipulation in
Section 2 of the Indian Divorce Act a pre-constitutional law
intended to ensure justice for the wife in England – to ensure that
she is not dragged to the Indian court to contest a plea for
divorce must receive a reasonable interpretation in the post
constitutional era. The text, in the new context,must receive an
interpretation with emphasis on the Indian spouses and not on
the spouses left behind in their home nation by alien soldiers or
personnel who had come to India for service in the bygone
imperial era. The expression “parties to the marriage”must
hence be held to refer only to the parties (including the singular
party) to the marriage sought to be dissolved. ‘marriage’ there
MAT.A.364/2007 -32-
refers only generally to the marriages sought to be dissolved
and not the marriage between the spouses to the given
marriage. One of the parties to the marriage domiciled in India
can hence seek divorce under Section 2 of the Indian Divorce Act.
We concur with the Madras High Court on the need to adopt a
liberal interpretation.
33. We do in these circumstances uphold the finding of the
court below that the court has jurisdiction to consider the claim of
divorce as both parties to the marriage were domiciled in India
at the relevant time; i.e; on the date of presentation of the
petition.
Ground No.2
34. We now come to ground No.2. It is perhaps crystal
clear that both parties do not want to continue the marital tie.
The respondent has filed a petition here claiming divorce whereas
the appellant also has subsequently filed a petition for divorce
before the Switzerland Courts. That the marriage continues in
its shell only and not in its substance is transparently evident
MAT.A.364/2007 -33-
from the totality of circumstances.
35. It is in this context that the plea of the wife that
physical and mental cruelty was inflicted on her has to be
considered. We shall deal with the question of physical cruelty
first though the Family Court does not appear to have considered
that question in great detail. Wife had made specific allegations
of infliction of physical cruelty consequent to allegations of
unchaste and adulterous behaviour. Her evidence on that aspect
remains virtually unchallenged. Specific contra assertions or
denials of such allegations are not decipherable in the evidence
tendered by the husband. If a prudent mind were to choose
between the rival contentions on the basis of the evidence
available, the conclusion appears to be inevitable that the
alleged physical cruelty must also be held to be clearly proved. It
would be puerile for any court to expect specific ocular
corroboration for the matrimonial physical cruelty. More often,
than not, that question has to be decided by evaluating the rival
evidence tendered by the spouses. To corroborate the evidence
MAT.A.364/2007 -34-
of the wife, we have the admitted circumstance that the husband
persists and goes on making allegations of adultery, matrimonial
infidelity as also licentious behaviour prior and subsequent to the
marriage on the part of the wife. We have also the circumstance
that the wife had been compelled and driven to courts in
Switzerland to seek separation and police protection to save
herself from the matrimonial cruelty allegedly heaped on her by
her husband. On the evidence available, the alleged physical
cruelty must also be held to be satisfactorily established.
36. On the aspect of matrimonial mental cruelty, according
to us, there is ample evidence for a conclusion beyond doubt .
The wife alleged that the husband was making reckless
allegations of pre-marital licentious behaviour and post marital
adulterous and unchaste behaviour. We find no reason not to
accept her evidence on that aspect. We have convincing support
for such evidence of hers from the objections filed by the
husband before the Family Court. He continues to make
assertions of such licentious behaviour pre-marital and post-
MAT.A.364/2007 -35-
marital on the part of the wife and significantly, it is not even
attempted to substantiate those allegations before court. Except
his vague evidence, there is absolutely nothing even to indicate,
suggest or probabilise such allegations of improper marital
conduct and behaviour on the part of the wife.
37. It is trite and it is unnecessary to go to precedents on
that aspect that unsubstantiated allegations of unchaste and
adulterous behaviour by a husband against the wife in the Indian
context do amount to matrimonial cruelty. The learned counsel
for the appellant contends that even the wife states that she was
prepared to condone such allegations raised by him and she had
invited him to join her in Switzerland after he allegedly made the
allegations initially. Therefore, such alleged act of cruelty has
been condoned by her, contends the learned counsel for the
appellant. We find absolutely no merit in this theory of
condonation of matrimonial cruelty. We will assume that she
had once condoned such alleged earlier indiscretion. But what
has come out in evidence is that after such alleged condonation
MAT.A.364/2007 -36-
also, the husband goes on making reckless allegations. The
alleged prior condonation of such past indiscretion cannot in any
way be assumed to cover all prospective allegations of such
unchaste behaviour.
38. Going by the version of the husband he was aware of
the alleged improper behaviour, pre-marital and post-marital. He
had chosen in spite of all that to continue to live with her. If he
persists and continues to make such allegations afresh after they
decide to live together ignoring such allegations, that must
certainly be held to amount to fresh acts of matrimonial cruelty.
In that view of the matter also the plea that the wife has
condoned all such matrimonial mental cruelty cannot be
sustained at all.
39. The learned counsel for the respondent submits that the
doctrine of revival applies and even assuming that the wife has
chosen to condone such reckless allegations made earlier, the
repetition of such allegations after the alleged event of
condonation must give rise to a revived cause of action. We
MAT.A.364/2007 -37-
agree with the learned counsel for the respondent.
40. We are in these circumstances unable to find any error,
discrepancy or fault in the finding of the court below that
sufficient cruelty has been established to justify a prayer for
dissolution of marriage under section 10 of the Indian Divorce
Act. The challenge on the second ground must also fail.
Ground No.3
41. It is pointed out that no attempt to conciliate was
undertaken by the Family Court. Indications galore to show that
it was the husband who did not co-operate. Even ignoring that,
the fact remains that the parties went to trial with the full
awareness that attempt at conciliation had not allegedly taken
place. They did not object to the trial progressing. Even
otherwise the mere fact that attempt for conciliation or sufficient
attempt for conciliation had not taken place cannot in law be held
to be a sufficient or valid reason to invalidate the verdict of the
Family Court in such a contested proceedings. The challenge on
MAT.A.364/2007 -38-
the third ground must also hence fall to the ground. No other
contention is urged.
42. In the result, this appeal is dismissed. No costs.
R. BASANT, JUDGE
M.C. HARI RANI, JUDGE
ks.