{"id":68762,"date":"2009-06-05T00:00:00","date_gmt":"2009-06-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/james-k-avaran-vs-jancy-ritamma-george-jancy-on-5-june-2009"},"modified":"2018-05-18T22:23:16","modified_gmt":"2018-05-18T16:53:16","slug":"james-k-avaran-vs-jancy-ritamma-george-jancy-on-5-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/james-k-avaran-vs-jancy-ritamma-george-jancy-on-5-june-2009","title":{"rendered":"James K.Avaran vs Jancy Ritamma George @ Jancy … on 5 June, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
James K.Avaran vs Jancy Ritamma George @ Jancy … on 5 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMat.Appeal.No. 364 of 2007()\n\n\n1. JAMES K.AVARAN, S\/O.KUNJUVAREED,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. JANCY RITAMMA GEORGE @ JANCY AVARAH,\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.RAMESH CHANDER\n\n                For Respondent  :DR.SEBASTIAN CHAMPAPPILLY\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :05\/06\/2009\n\n O R D E R\n                                                          C.R.\n\n                R.BASANT & M.C. HARI RANI,JJ\n\n         ==============================\n\n                   MAT.A. NO. 364 OF 2007\n\n           ============================\n\n          DATED THIS THE 5TH DAY OF JUNE 2009\n\n                          JUDGMENT\n<\/pre>\n
Basant,J.\n<\/p>\n
      What constitutes domicile under Section   2 of the Indian<\/p>\n
Divorce Act?    Who is to plead and prove      that domicile of<\/p>\n
birth\/origin has been abandoned and a fresh domicile of choice<\/p>\n
has been acquired by the spouses? Does long residence in an<\/p>\n
alien country where one is employed with prospects of continued<\/p>\n
residence    for a further long period in connection with such<\/p>\n
employment lead to a ready inference of change of domicile?<\/p>\n
Should both spouses (and not either) be domiciled in India for<\/p>\n
the Family court to assume jurisdiction in a Divorce application?<\/p>\n
Is the expression of intention of one spouse in the course of<\/p>\n
proceeding to acquire domicile by choice in an alien country<\/p>\n
sufficient to divest Indian courts of their jurisdiction in<\/p>\n
matrimonial proceedings for divorce under Section 2 of the<\/p>\n
MAT.A.364\/2007                   -2-<\/span><\/p>\n
Indian Divorce Act?     These interesting questions are thrown up<\/p>\n
for consideration in this appeal.\n<\/p>\n
      2. This appeal under Section 19 of the Family Courts Act is<\/p>\n
directed against an order passed under Section 10 of the Indian<\/p>\n
Divorce     Act    dissolving   the    marriage    between      the<\/p>\n
appellant\/husband and the respondent\/wife       on the ground of<\/p>\n
cruelty.\n<\/p>\n
      3.    Marriage is admitted.     Separate residence is also<\/p>\n
admitted. Allegations of mental and physical cruelty are raised<\/p>\n
by the wife. It is alleged that the husband has been tormenting<\/p>\n
the wife perpetually raising allegations of unchaste and<\/p>\n
adulterous conduct. It is further alleged that physical cruelty was<\/p>\n
also inflicted on the wife by the husband while they were residing<\/p>\n
together raising such allegations.\n<\/p>\n
      4.    The matrimonial discord has a long history behind it.<\/p>\n
 Sans unnecessary details, crucial skeletal facts can be narrated<\/p>\n
thus:\n<\/p>\n
      5.    The marriage took place on 26-11-1989. The marriage<\/p>\n
MAT.A.364\/2007                   -3-<\/span><\/p>\n
was solemnized in accordance with the Christian religious rites at<\/p>\n
Thrissur District in Kerala. The wife was employed as a Nurse in<\/p>\n
the Indian Army at that time. The wife went to Switzerland on<\/p>\n
5-9-1990. The brother of the husband was employed and living<\/p>\n
there at that time. Long later, the husband who was a lawyer<\/p>\n
practising in Kerala also left for Switzerland and joined the wife<\/p>\n
on 13-11-1993. Matrimonial discord developed and admittedly<\/p>\n
separate residence commenced on 17-8-2002. There were certain<\/p>\n
proceedings initiated before the courts at the place where the<\/p>\n
spouses reside – in Switzerland. The wife contends that the court<\/p>\n
had granted police protection for her peaceful separate residence<\/p>\n
whereas the husband claims that such police protection was<\/p>\n
granted in his favour. Be that as it may, there is no dispute that<\/p>\n
the parties are residing separately from 17-8-2002 and that a<\/p>\n
court in Switzerland has afforded police assistance for them to<\/p>\n
reside separately.    The wife has permanent employment as a<\/p>\n
Nurse there whereas the husband does not appear to have any<\/p>\n
such permanent employment. He lives on social security which is<\/p>\n
MAT.A.364\/2007                  -4-<\/span><\/p>\n
available for persons residing in Switzerland. In the proceedings<\/p>\n
before the Switzerland Court, maintenance\/support has been<\/p>\n
ordered to be paid by the wife to him. There is, of course, the<\/p>\n
assertion and evidence that he is employed            for   some<\/p>\n
newspapers in Kerala as their local correspondent in Switzerland.<\/p>\n
      6. The wife claimed divorce under Section 10 of the Indian<\/p>\n
Divorce Act on the ground of cruelty.      As stated earlier, she<\/p>\n
alleged that the husband has been guilty of mental cruelty<\/p>\n
he having incessantly raised false allegations of unchaste and<\/p>\n
adulterous behaviour. He had also assaulted her physically and<\/p>\n
verbally. These acts of his amounted to matrimonial cruelty, it<\/p>\n
was alleged. The claim for divorce was made on the plank of<\/p>\n
these allegations of matrimonial cruelty.\n<\/p>\n
      7. The husband entered appearance and resisted the claim<\/p>\n
for divorce. It would appear that the husband is not in principle<\/p>\n
against the dissolution of the marriage. He denies the allegations<\/p>\n
of cruelty but asserts unambiguously that the wife has been<\/p>\n
MAT.A.364\/2007                   -5-<\/span><\/p>\n
guilty of adultery and unchaste behaviour as also licentious<\/p>\n
conduct even before        and after the marriage.          Specific<\/p>\n
allegations   to that   effect are raised in the objections filed.<\/p>\n
However, the husband asserted that he was also interested in<\/p>\n
getting the matrimonial tie dissolved. But according to him not<\/p>\n
the courts in India but the Courts in Switzerland alone have<\/p>\n
jurisdiction to entertain such plea for divorce.   He also wants<\/p>\n
divorce, which is not in dispute. According to him, the parties<\/p>\n
were not domiciled in India at the time of presentation of the<\/p>\n
application for divorce and consequently courts in India have no<\/p>\n
jurisdiction to entertain the claim for divorce. According to him,<\/p>\n
the wife had approached the courts in Switzerland for a decree<\/p>\n
for separation, and having approached the courts in Switzerland<\/p>\n
for a decree for separation, her subsequent conduct of rushing to<\/p>\n
India and filing an application for divorce was not justified. It is<\/p>\n
calculated to avoid the fiscal liability for payment of support to<\/p>\n
the dependent husband which under the law in Switzerland, the<\/p>\n
claimant wife would be exposed to. Preliminary objection was<\/p>\n
MAT.A.364\/2007                  -6-<\/span><\/p>\n
raised against maintainability of the petition for divorce before<\/p>\n
Indian Courts.\n<\/p>\n
     8. The husband denied the allegations of physical and<\/p>\n
mental cruelty but asserted unambiguously that the wife was<\/p>\n
guilty of adulterous and unchaste behaviour after marriage. He<\/p>\n
raised allegations of licentious behaviour and conduct on the<\/p>\n
part of the wife prior to marriage also.\n<\/p>\n
     9. We cut a long story short.    We are not referring to the<\/p>\n
acrimonious proceedings between the parties after the filing of<\/p>\n
the application for divorce. Before the court below, the claimant<\/p>\n
wife examined     herself as PW1 and her father as PW2.       The<\/p>\n
respondent-husband examined himself as RW1. Exts.A1 to A31<\/p>\n
were marked on the side of the claimant-wife whereas Exts.B1 to<\/p>\n
B16 were marked on the side of the respondent-husband. We<\/p>\n
note that Ext.B series are not marked properly by the Family<\/p>\n
Court.   Registry shall ensure   that this inadequacy is rectified<\/p>\n
immediately by the Family Court.\n<\/p>\n
     10. The learned Judge of the Family Court on an anxious<\/p>\n
MAT.A.364\/2007                   -7-<\/span><\/p>\n
consideration of all the relevant material came to the conclusion<\/p>\n
that it cannot be said that the parties were not domiciled in India<\/p>\n
on the date of presentation of the application. The contention of<\/p>\n
the husband that the parties were domiciled in Switzerland was<\/p>\n
not accepted by the Family Court.       The Family Court did not<\/p>\n
proceed to consider in detail the allegations of physical cruelty,<\/p>\n
but came to the conclusion that the allegations of mental cruelty<\/p>\n
and torture by the husband by raising unsubstantiated allegations<\/p>\n
of adulterous, unchaste and licentious conduct are sufficient by<\/p>\n
themselves to justify the plea for divorce on the ground of mental<\/p>\n
matrimonial cruelty. Accordingly, the Family court proceeded to<\/p>\n
pass the impugned order.\n<\/p>\n
      11. Before us, the learned counsel for the appellant-<\/p>\n
husband and respondent-wife have advanced detailed arguments.<\/p>\n
The learned counsel for the appellant assails the impugned order<\/p>\n
on the following three specific grounds:\n<\/p>\n
      (1) The court below erred grossly in coming to the<\/p>\n
conclusion that the parties were domiciled in India at the time<\/p>\n
MAT.A.364\/2007                  -8-<\/span><\/p>\n
when the petition was presented.\n<\/p>\n
     (2)The learned Judge of the Family Court did not advert<\/p>\n
properly to the allegations of matrimonial cruelty and the finding<\/p>\n
that cruelty to justify dissolution of marriage is proved is not<\/p>\n
acceptable.\n<\/p>\n
     (3)The impugned order        is bad for the reason that no<\/p>\n
counselling has been attempted by the Family Court before<\/p>\n
permitting the parties to lead evidence.\n<\/p>\n
     12. Ground No.1. Counsel points out that under Section 2<\/p>\n
of the Indian Divorce Act, a decree for dissolution of marriage<\/p>\n
cannot be passed “except where the parties to the marriage are<\/p>\n
domiciled in India at the time when the petition is presented”.<\/p>\n
We extract Section 2 of the Act for the purpose of easy reference.<\/p>\n
     “Section2: Extent of Act.-This Act extends to the<\/p>\n
     whole of India except the State of Jammu and<\/p>\n
     Kashmir.\n<\/p><\/blockquote>\n
           Extent of power to grant relief generally.-<\/p>\n
     Nothing hereinafter contained shall authorise any<\/p>\n
MAT.A.364\/2007                 -9-<\/span><\/p>\n
    Court to grant any relief under this Act, except where<\/p>\n
    the petitioner [or respondent] professes the Christian<\/p>\n
    religion.\n<\/p><\/blockquote>\n
           and to make decrees of dissolution.- or to<\/p>\n
    make decrees of dissolution of marriage except where<\/p>\n
    the parties to the marriage are domiciled in India at<\/p>\n
    the time when the petition is presented.\n<\/p><\/blockquote>\n
           or of nullity.-or to make decrees of nullity of<\/p>\n
    marriage except where the marriage has been<\/p>\n
    solemnized in India, and the petitioner is resident in<\/p>\n
    India at the time of presenting the petition<\/p>\n
    or to     grant any relief under this Act other than a<\/p>\n
    decree of dissolution of marriage or of nullity of<\/p>\n
    marriage, except where the petitioner resides in India<\/p>\n
    at the time of presenting the petition.<\/p><\/blockquote>\n
                                  (emphasis supplied)<\/p>\n
    13. The learned counsel for the petitioner points out that no<\/p>\n
MAT.A.364\/2007                   -10-<\/span><\/p>\n
relief   whatsoever can be granted except         where either the<\/p>\n
petitioner or the respondent professes the Christian religion. No<\/p>\n
decree for nullity can be granted unless the marriage has been<\/p>\n
solemnized in India and the petitioner is resident in India at the<\/p>\n
time of presenting the petition. But so far as the decrees for<\/p>\n
dissolution are concerned,a different stipulation is made that such<\/p>\n
petition for dissolution can be filed only when the parties to the<\/p>\n
marriage are domiciled in India at the time of presenting the<\/p>\n
petition.\n<\/p>\n
      14. The learned counsel contends that this stipulation is<\/p>\n
made in the interest of the parties and to enable them to adduce<\/p>\n
proper evidence before the courts. Unless parties are domiciled<\/p>\n
in India, it would be difficult for the parties to adduce evidence<\/p>\n
about the ground for dissolution of marriage. If they are<\/p>\n
domiciled elsewhere, it would be hazardous to insist that they<\/p>\n
must adduce evidence before the court at a place where they are<\/p>\n
not residing. This is the reason why the requirement of domicile<\/p>\n
is insisted, contends the learned counsel.\n<\/p>\n
MAT.A.364\/2007                   -11-<\/span><\/p>\n
      15. We are unable to agree. The insistence is not that the<\/p>\n
parties must be residents in India when the petition is presented<\/p>\n
or at the time     where the grounds for dissolution arose. The<\/p>\n
insistence is only on domicile of the parties. The concept of<\/p>\n
domicile is distinct and different from residence.<\/p>\n
      16. That takes us to the larger question as to what is<\/p>\n
domicile to attract jurisdiction under Section 2 of the Indian<\/p>\n
Divorce Act.\n<\/p>\n
      17. The relevant precedents       have been brought to our<\/p>\n
attention.   There is no litmus test to decide the question of<\/p>\n
domicile, when rival contestants conveniently assert contra.<\/p>\n
After having perused all the relevant precedents and decisions<\/p>\n
which have been placed before us, it appears to be easy to state<\/p>\n
generally that “residence with the intention of permanent or<\/p>\n
indefinite residence constitutes domicile”. The principle generally<\/p>\n
so stated may not help the court to find out with felicity and ease<\/p>\n
as to what is the domicile of either of the contestants.<\/p>\n
      18. The concept of residence, permanent residence,<\/p>\n
MAT.A.364\/2007                  -12-<\/span><\/p>\n
nationality, citizenship and domicile are definitely over lapping<\/p>\n
concepts.   These will    have to be    approached carefully in a<\/p>\n
matter like this where the very jurisdiction of this      court is<\/p>\n
challenged on the ground of domicile.\n<\/p>\n
      19. Before proceeding to advert to the question in detail it<\/p>\n
will only be apposite    to note that every person must have a<\/p>\n
domicile of birth\/origin.   It is usually easier to ascertain the<\/p>\n
domicile of birth\/origin as there could be little scope for dispute<\/p>\n
on that concept of domicile of birth\/origin. That makes our task<\/p>\n
easy as both sides unambiguously concede that their domicile of<\/p>\n
birth\/origin is India and no other country at all. For generations<\/p>\n
from the known past the parties are Indians, domiciled in India<\/p>\n
following the laws of India. It is one of the accepted principles<\/p>\n
relating to the law of domicile that the burden rests squarely<\/p>\n
and heavily on the shoulders of the party who asserts and pleads<\/p>\n
that he as well as his spouse have abandoned the domicile of<\/p>\n
birth\/origin and have embraced another domicile of choice. The<\/p>\n
burden must, in these circumstances, heavily rest on the<\/p>\n
MAT.A.364\/2007                  -13-<\/span><\/p>\n
appellant-husband to show that the domicile of origin in India has<\/p>\n
been abandoned and the domicile of choice has been acquired by<\/p>\n
both spouses at Switzerland.\n<\/p>\n
      20. We shall straight away deal with the contention that<\/p>\n
there is no specific assertion of the domicile of the parties in the<\/p>\n
petition for divorce filed by the wife. A reading of the petition<\/p>\n
clearly shows (and that     crucial circumstance is not denied or<\/p>\n
disputed) that the domicile of birth\/origin of both parties is India.<\/p>\n
In these circumstances, it must certainly be held that if the<\/p>\n
appellant-husband has a case that the admitted domicile of<\/p>\n
birth\/origin has subsequently been abandoned and a domicile of<\/p>\n
choice has been acquired, the burden is on him to plead, prove<\/p>\n
and establish that fact. The alleged inadequacy of pleadings does<\/p>\n
not impress us at all as sufficient circumstances indicating the<\/p>\n
undisputed domicile of birth\/origin are clearly averred in the<\/p>\n
petition. Reliance on Order VII, Rule 1(f) of the Code of Civil<\/p>\n
procedure and the decision in Murphy v. Murphy, A.I.R.1929<\/p>\n
Lahore 419 cannot be        of any help to the appellant in this<\/p>\n
MAT.A.364\/2007                  -14-<\/span><\/p>\n
context.   We repeat that the domicile of birth\/origin is clearly<\/p>\n
brought out in the pleadings.        That is admitted also.    An<\/p>\n
insistence on specific pleadings of domicile as held in the Full<\/p>\n
Bench decision of the Lahore High Court (supra) is definitely not<\/p>\n
there in the relevant rules and precedents applicable to Kerala.<\/p>\n
In these circumstances we are satisfied that the maintainability<\/p>\n
cannot be disputed on the ground of want of sufficient averments<\/p>\n
regarding domicile in the petition.\n<\/p>\n
      21. The starting point of the     discussion must be the<\/p>\n
undisputed    domicile of birth\/origin.  Is there any pleadings,<\/p>\n
evidence or circumstances to suggest that the domicile of<\/p>\n
birth\/origin has been abandoned and a domicile of choice has<\/p>\n
been acquired by the parties to justify the contention that they<\/p>\n
were both domiciled in Switzerland and not in India on the date<\/p>\n
of presentation of the petition? As held by the supreme court in<\/p>\n
Sankaran Govindan v. Lakshmi Bharathi, AIR<\/a> 1974<\/p>\n
S.C.1764 no single circumstance can be held to be conclusive.<\/p>\n
No litmus paper or touch stone is available to the Court to answer<\/p>\n
MAT.A.364\/2007                    -15-<\/span><\/p>\n
that question. All the relevant circumstances have to be taken<\/p>\n
into consideration    to come to a conclusion as to what is the<\/p>\n
domicile of the parties.      The Supreme Court through Justice<\/p>\n
K.K.Mathew spoke thus in Sankaran Govindan’s case(supra).<\/p>\n
     “Domicile is a mixed question of law and fact and there is<\/p>\n
     perhaps no chapter in the law that has            from such<\/p>\n
     extensive discussion received less satisfactory settlement.<\/p>\n
     This is no doubt attributable to the nature of the subject,<\/p>\n
     including as it does, inquiry into the animus of persons who<\/p>\n
     have either died without leaving any clear record of their<\/p>\n
     intentions, but allowing them to be collected by inference<\/p>\n
     from acts often equivocal, or who, being alive and<\/p>\n
     interested, have a natural tendency to give their bygone<\/p>\n
     feelings a tone and colour suggested by their present<\/p>\n
     inclinations.  The traditional statement that, to establish<\/p>\n
     domicile, there must be a present intention of permanent<\/p>\n
     residence merely means that so far as the mind of the<\/p>\n
     person at the relevant time was concerned, he possessed<\/p>\n
     the requisite intention. The relevant time varies with the<\/p>\n
     nature of the inquiry. It may be past or present. If the<\/p>\n
MAT.A.364\/2007                   -16-<\/span><\/p>\n
    inquiry relates to the domicile of the deceased person, it<\/p>\n
    must be ascertained whether at some period in his life he<\/p>\n
    had formed and retained a fixed and settled intention of<\/p>\n
    residence in a given country.      One has to consider the<\/p>\n
    tastes, habits, conduct, actions, ambitions, health, hopes<\/p>\n
    and projects of a person because they are all considered<\/p>\n
    to be keys to his intention to make a permanent home in a<\/p>\n
    place. It is impossible to lay down any positive rule with<\/p>\n
    respect to the evidence necessary to prove intention. All<\/p>\n
    that can be said is that every conceivable event and<\/p>\n
    incident in a man’s life is a relevant and an admissible<\/p>\n
    indication of his state of mind. It may be necessary to<\/p>\n
    examine the history of his life with the most scrupulous<\/p>\n
    care, and to resort even to hearsay evidence where the<\/p>\n
    question concerns the domicile that a person now<\/p>\n
    deceased, possessed in his life-time.      Nothing must be<\/p>\n
    overlooked that might possibly show the place which he<\/p>\n
    regarded as his permanent home at the relevant time. No<\/p>\n
    fact is too trifling to merit consideration. Nothing can be<\/p>\n
    neglected which can possibly indicate the bent of a<\/p>\n
MAT.A.364\/2007                    -17-<\/span><\/p>\n
     person’s mind.      His aspirations, whims, prejudices and<\/p>\n
     financial expectation, all must be taken into account.<\/p>\n
     Undue stress cannot be laid upon any single fact, however<\/p>\n
     impressive it may appear when viewed out of its context,<\/p>\n
     for its importance as a determining factor may well be<\/p>\n
     minimised when considered in the light of other qualifying<\/p>\n
     event. It is for this reason that it is impossible to formulate<\/p>\n
     a rule specifying the weight to be given to particular<\/p>\n
     evidence.”<\/p><\/blockquote>\n
     22. It is in this context that we first noted that the admitted<\/p>\n
domicile of origin\/birth of both parties is India. It is true that<\/p>\n
the wife had shifted to Switzerland on 5-9-1990 and the husband<\/p>\n
had followed her to that country on 13-11-1993. Admittedly,<\/p>\n
she has been employed as a Nurse there and the employment<\/p>\n
does appear to be lucrative going by the undisputed evidence.<\/p>\n
For the past about two decades, the wife has been there. She had<\/p>\n
worked and studied there.      She had acquired better qualification<\/p>\n
there. She had secured a lucrative employment there.                Her<\/p>\n
MAT.A.364\/2007                 -18-<\/span><\/p>\n
husband had followed her to Switzerland. But in these days<\/p>\n
where employment opportunities abroad are many, the mere<\/p>\n
taking up employment in a country outside India cannot certainly<\/p>\n
be assumed lightly       to lead to the conclusion that such<\/p>\n
employment seeker has lost his claim for permanent residence<\/p>\n
in India or that such person has abandoned the domicile of<\/p>\n
origin\/birth.   Lack of employment opportunities in India and the<\/p>\n
availability of greener pastures abroad may prompt many an<\/p>\n
Indian to take up employment outside the country. In connection<\/p>\n
with such employment, he will be compelled to remain abroad.<\/p>\n
Many may be nostalgic and may entertain the desire to return to<\/p>\n
India as quickly as possible, but the lure of lucrative employment<\/p>\n
and the want of equivalent or comparable opportunities at home<\/p>\n
may compel such person to postpone the date of his return.     He<\/p>\n
may opt to continue to live there and be employed there until<\/p>\n
law and circumstances in which he is placed permit him          to<\/p>\n
continue such employment.      But according to us, it would be<\/p>\n
puerile, premature and myopic from         such    circumstance of<\/p>\n
MAT.A.364\/2007                -19-<\/span><\/p>\n
continued residence in connection with ones employment alone<\/p>\n
to assume that he has given up his claim          for permanent<\/p>\n
residence in India much less that he has abandoned the domicile<\/p>\n
of birth\/origin and has opted for a different domicile of choice.<\/p>\n
Strong and clinching evidence must be placed before court to<\/p>\n
prove abandonment of the domicile of origin\/birth.<\/p>\n
     23. The wife as PW1 asserted that she has no intention to<\/p>\n
permanently settle down at Switzerland or abandon her domicile<\/p>\n
of birth in India. We have no reason not to take her seriously.<\/p>\n
Several other circumstances are also pressed into service by the<\/p>\n
respondent-claimant to assert that her domicile of birth\/origin in<\/p>\n
India continues and has not been abandoned notwithstanding<\/p>\n
the fact of her long residence in Switzerland and probability of<\/p>\n
her continued residence in Switzerland for such further period<\/p>\n
that she can be employed there.\n<\/p>\n
     24. Nationality and domicile may be subtly different.<\/p>\n
Citizenship and domicile may also not be synonymous. But in a<\/p>\n
situation like this no court can     ignore the fact that     the<\/p>\n
MAT.A.364\/2007                   -20-<\/span><\/p>\n
respondent as well as the appellant herein are both holders of<\/p>\n
Indian passports. They continue to reside in Switzerland on the<\/p>\n
basis of visas issued to them. They have not so far acquired<\/p>\n
citizenship in Switzerland. There is an interesting claim of half<\/p>\n
citizenship but except to show that work permit has been issued<\/p>\n
to the claimant wife entitling her to work in Switzerland, there is<\/p>\n
nothing to indicate that she has abandoned Indian citizenship,<\/p>\n
nationality or domicile. Where a person has acquired citizenship<\/p>\n
of another country that may be a compelling indication of<\/p>\n
abandonment of domicile of birth and acquisition of a domicile of<\/p>\n
choice.    By the     same reasoning, continuance          of Indian<\/p>\n
citizenship and holding of the Indian passport must be held to be<\/p>\n
indicative of the desire of the parties to cling on to the domicile of<\/p>\n
birth\/origin in India. The evidence shows that her parents are<\/p>\n
living in India. Evidence confirms that she has been visiting her<\/p>\n
parents as frequently as possible.       Evidence reveals that her<\/p>\n
name even now continues to be held in the ration card issued to<\/p>\n
her parents.     She claims and her father,PW2 asserts           that<\/p>\n
MAT.A.364\/2007                   -21-<\/span><\/p>\n
ancestral property is available and the father intends to set apart<\/p>\n
the property for her eventual return and residence in India. It is<\/p>\n
interesting, though that is not the specific case of the claimant-<\/p>\n
wife, that the husband asserts that the claimant-wife had<\/p>\n
purchased properties in India in the name of her father. No one<\/p>\n
has a case      and at any rate       such a case has not been<\/p>\n
substantiated that the wife has acquired any landed property or<\/p>\n
real estate in Switzerland. She was born here; she was educated<\/p>\n
here; she took up         employment here; she proceeded to<\/p>\n
Switzerland to take up an employment,            that employment<\/p>\n
opportunity is still available; she continues there; she intends to<\/p>\n
continue until such opportunity for employment is available; she<\/p>\n
asserts that she wants to return to India; she has properties here<\/p>\n
and there is nothing        to show that she has severed her<\/p>\n
connection with her home land. We have no hesitation in these<\/p>\n
circumstances to hold that the available indications do not<\/p>\n
suggest that she has so far abandoned her domicile of<\/p>\n
birth\/origin in India and has accepted any domicile of choice in<\/p>\n
MAT.A.364\/2007                   -22-<\/span><\/p>\n
Switzerland.   The wife cannot by any stretch of imagination be<\/p>\n
held to have lost her claim for domicile in India.<\/p>\n
       25. As against this, the learned counsel for the appellant<\/p>\n
contends that the wife has initiated proceedings before the courts<\/p>\n
in Switzerland and has made crucial and vital admissions in such<\/p>\n
proceedings about her present domicile. We are unable to secure<\/p>\n
authentic material about the nature of the proceedings initiated<\/p>\n
or the nature of the specific pleadings raised.<\/p>\n
      26. From the materials available what is gatherable safely is<\/p>\n
that the wife had alleged improper behaviour on the part of her<\/p>\n
husband and had claimed separation        and police protection to<\/p>\n
secure her interest. Though there is a contention that such a<\/p>\n
relief would not have been available unless the wife had admitted<\/p>\n
domicile in Switzerland, no authentic material is placed before us<\/p>\n
to come to such a conclusion. At any rate, nothing has been<\/p>\n
brought to our notice to show that she had specifically asserted<\/p>\n
before any authority in Switzerland that she has abandoned her<\/p>\n
domicile of origin\/birth and has opted         for her domicile in<\/p>\n
MAT.A.364\/2007                -23-<\/span><\/p>\n
Switzerland. Counsel points out that a statement has been filed<\/p>\n
by her lawyer on her behalf     in which the lawyer had made<\/p>\n
statements which, according to the counsel for the appellant,<\/p>\n
amounts to an unambiguous admission          of her domicile at<\/p>\n
Switzerland. We extract the same which is available in Ext.B5.<\/p>\n
It reads as follows:\n<\/p>\n
   “She has a permanent job,   is very well integrated here in<\/p>\n
   Switzerland and she has absolutely no intention to leave this<\/p>\n
   country.”\n<\/p>\n
We shall assume for the sake of arguments that this is part of<\/p>\n
her judicial pleadings though Ext.B5 shows that it is only a note<\/p>\n
made by her counsel. But we are unable to find any crucial<\/p>\n
admission on the question of domicile from the statement<\/p>\n
extracted above.    That a person has a permanent job or is<\/p>\n
residing in   Switzerland in  connection   with   that job is not<\/p>\n
synonymous with domicile.      That a person has well integrated<\/p>\n
in Switzerland which is a claim made       by the lawyer in the<\/p>\n
submissions made by him cannot also amount to any crucial<\/p>\n
admission        about     the     abandonment          of      the<\/p>\n
MAT.A.364\/2007                  -24-<\/span><\/p>\n
domicile of birth and the acquisition of a domicile of choice. The<\/p>\n
statement that she has absolutely no intention to leave        the<\/p>\n
country cannot also be reckoned as any admission about the<\/p>\n
domicile. She has a permanent job and the statement that she<\/p>\n
has no intention to leave the country cannot be assumed or<\/p>\n
reckoned as an admission to continue indefinite or permanent<\/p>\n
residence in that country or to abandon and give up the domicile<\/p>\n
of birth\/origin.   That statement made by the lawyer in the<\/p>\n
submissions before court cannot in these circumstances be<\/p>\n
construed as any vital admission on the question of domicile as<\/p>\n
to offset or displace the circumstances referred above.<\/p>\n
     27. That she has sought relief from the Swiss courts to save<\/p>\n
herself from her husband while           both were residing in<\/p>\n
Switzerland at the relevant time cannot also be held to amount<\/p>\n
to any abandonment of the domicile of birth.     She was residing<\/p>\n
there. She needed assistance from the local authorities to enable<\/p>\n
her to live in peace and pursue her employment. For this, she<\/p>\n
sought separation and police assistance for peaceful residence.<\/p>\n
MAT.A.364\/2007                  -25-<\/span><\/p>\n
Indian Courts could not have granted her that relief.      We are<\/p>\n
unable to agree that, that conduct of hers – of approaching the<\/p>\n
Swiss court to secure peaceful residence in Switzerland can be<\/p>\n
reckoned as indication of an intention to give up her domicile of<\/p>\n
birth and acquire a new domicile of choice.\n<\/p>\n
      28. We now come to the case of the husband. His parents<\/p>\n
are no more. He has a brother here in India. The father had<\/p>\n
properties. We have no clue as to what has happened to those<\/p>\n
properties, though the husband asserts that he has no properties<\/p>\n
in India. He has a permanent address in India and that appears<\/p>\n
to be indisputable in the light of the sequence of events that has<\/p>\n
taken place.   In the vakalath filed by him, his address, (we<\/p>\n
assume that to be his permanent address) shown is that at his<\/p>\n
ancestral home at Irinjalakuda.      He also does not have any<\/p>\n
properties acquired in Switzerland. Nay, he cannot even claim<\/p>\n
that he has any permanent, durable or reasonable employment in<\/p>\n
Switzerland as it is his very contention that under law he will be<\/p>\n
able to claim support from his wife consequent to his inferior<\/p>\n
MAT.A.364\/2007                  -26-<\/span><\/p>\n
financial status and position of dependence on his wife. He also<\/p>\n
continues to be an Indian national having Indian citizenship. He<\/p>\n
holds an Indian Passport and lives in Switzerland on the basis of<\/p>\n
visa secured by him as an Indian national. He asserts that he<\/p>\n
has given up his domicile of birth and has acquired the domicile<\/p>\n
of his choice in Switzerland. There is nothing to show to the<\/p>\n
satisfaction of the Court, such abandonment of the domicile of<\/p>\n
origin and acquisition of a new domicile of choice.<\/p>\n
      29. It is true that he has asserted in the pleadings in this<\/p>\n
case that he is not domiciled in India. Too much significance<\/p>\n
and importance cannot be attached to such assertions made by<\/p>\n
him after the initiation of proceedings.     He is engaged in a<\/p>\n
desparate bid to contend that the courts in India have no<\/p>\n
jurisdiction and the Courts in Switzerland alone have jurisdiction.<\/p>\n
Even his conduct of having filed an application for divorce before<\/p>\n
the court in Switzerland after admitted commencement of the<\/p>\n
instant proceedings before the Family Court        (and after his<\/p>\n
knowledge of such proceedings) knocks the bottom out of his<\/p>\n
MAT.A.364\/2007                  -27-<\/span><\/p>\n
claim for significance for his own assertion in the course of the<\/p>\n
proceedings about abandonment of domicile of            birth and<\/p>\n
acquisition of domicile of his choice. That assertion made by him<\/p>\n
is obviously with an intention to frustrate the claim filed by the<\/p>\n
claimant\/wife for divorce before the Indian courts and to drive<\/p>\n
her to Switzerland Courts where the appellant\/husband expects<\/p>\n
to secure a better decree for support\/maintenance as per the<\/p>\n
personal laws applicable to citizens\/persons of domicile of that<\/p>\n
country. We are in these circumstances of the opinion that the<\/p>\n
appellant has not succeeded in showing that even he has lost or<\/p>\n
given up his domicile of birth and has acquired the domicile of<\/p>\n
choice on the date of presentation of the petition as to non-suit<\/p>\n
the claimant\/wife in this proceedings.\n<\/p>\n
     30. The learned counsel for the respondent\/wife contends<\/p>\n
that even if it be found that the domicile of the husband is not in<\/p>\n
India it would be hazardous to hold that the wife domiciled in<\/p>\n
India cannot seek relief from the Indian Courts.      The counsel<\/p>\n
contends that the expression ‘parties to the marriage’ in Section<\/p>\n
MAT.A.364\/2007                  -28-<\/span><\/p>\n
2 of the Indian Divorce Act should not be read in any pedantic or<\/p>\n
hyper technical manner.     To advance the interests of justice the<\/p>\n
expression, ‘parties to the marriage’ in Section 2 must be read<\/p>\n
and understood to mean “either party to the marriage”, contends<\/p>\n
counsel.   Counsel argues that High Court of Madras has already<\/p>\n
taken a view in this matter and this Court may be pleased to<\/p>\n
adopt a similar approach to that question.\n<\/p>\n
      31. That question does not really arise for consideration in<\/p>\n
the light of the conclusion that we have reached already that<\/p>\n
both spouses continue to be domiciled in India notwithstanding<\/p>\n
their residence abroad for a long period of time and their<\/p>\n
probable future residence there until the opportunity for<\/p>\n
continuing the present employment there ceases. But, we make<\/p>\n
it clear that if we were to choose to take a view on the question,<\/p>\n
we would have definitely concurred with the decision of the<\/p>\n
Madras High Court dated 17-11-2008 in W.P.No.12816 of 1995<\/p>\n
(Indira Rachel v. Union of India and<\/a> another) and the views<\/p>\n
expressed there in paragraph 5 which we extract below.<\/p>\n
MAT.A.364\/2007                   -29-<\/span><\/p>\n
    “5. Though the provisions of the Act can be interpreted in<\/p>\n
    a literal manner, to conclude that both parties must be<\/p>\n
    domiciled in India at the time of presentation of the<\/p>\n
    petition, in our considered view, to effectuate the present<\/p>\n
    intention of the Act, which had come into force in the year<\/p>\n
    1869, possibly, when such contingencies were not in<\/p>\n
    contemplation, a purposive interpretation can be given to<\/p>\n
    make it reasonable and more consistent with the principles<\/p>\n
    enshrined in the Constitution. If the aforesaid provision is<\/p>\n
    construed to mean that a petition would be maintainable if<\/p>\n
    at the time of presentation of the petition either party is<\/p>\n
    domiciled in India, the difficulty projected by the petitioner<\/p>\n
    would not arise and on the other hand, object can be<\/p>\n
    achieved.    Therefore, according to us, such provision<\/p>\n
    should be interpreted to mean that the Courts in India<\/p>\n
    shall be entitled to entertain     petition for dissolution of<\/p>\n
    marriage where either of the parties to the marriage is<\/p>\n
    domiciled in India at the time when the petition is<\/p>\n
    presented and such provision need not be construed as if<\/p>\n
    both the parties must be domiciled in India at the time of<\/p>\n
MAT.A.364\/2007                    -30-<\/span><\/p>\n
      presentation of the petition. In our considered view, such<\/p>\n
      an interpretation would bring it in consonance with the<\/p>\n
      philosophy of the Constitution.      Moreover, we feel to<\/p>\n
      suggest that in order to avoid any further controversy in<\/p>\n
      the matter in different parts of the Country, the Ministry of<\/p>\n
      Law, the fist respondent, may consider the question of<\/p>\n
      making suitable amendment to the provisions in so far as<\/p>\n
      Section 2 of the Act is concerned in the light of other<\/p>\n
      provisions, if any, containing similar laws relating to<\/p>\n
      Divorce.<\/p><\/blockquote>\n
     32. Counsel for the respondent\/wife has placed before us<\/p>\n
materials to show that suggestion of the High Court of Madras in<\/p>\n
paragraph 5 of that decision is being pursued by the Law<\/p>\n
Commission to avoid unnecessary hardship and difficulty, if any<\/p>\n
court were to take a technical and literal view of the expression –<\/p>\n
“parties” to the marriage. Singular expressions in a statute can<\/p>\n
take in the plural and vice versa, it is trite.        The expression<\/p>\n
“the marriage” in the third part of Section 2 must be held to<\/p>\n
refer to the marriages sought to be dissolved and the “parties to<\/p>\n
MAT.A.364\/2007                  -31-<\/span><\/p>\n
the marriage” must include the petitioning party to the marriage.<\/p>\n
Wives residing and domiciled in India and who have not ever<\/p>\n
moved out of India cannot be forced to undertake hazardous<\/p>\n
trips to alien lands merely for securing       divorce from their<\/p>\n
husbands, who mischievously assert that they have taken up<\/p>\n
domicile of choice in such     alien lands.   That   injustice was<\/p>\n
certainly not intended while enacting Section. The stipulation in<\/p>\n
Section 2 of the Indian Divorce Act a pre-constitutional law<\/p>\n
intended to ensure justice for the wife in England – to ensure that<\/p>\n
she is not dragged to the Indian court to contest a plea for<\/p>\n
divorce must receive a reasonable interpretation in the post<\/p>\n
constitutional era. The text, in the new context,must receive an<\/p>\n
interpretation with emphasis on the Indian spouses and not on<\/p>\n
the spouses left behind in their home nation by alien soldiers or<\/p>\n
personnel who had come to India for service in the          bygone<\/p>\n
imperial era.    The expression “parties to the marriage”must<\/p>\n
hence be held to refer only to the parties (including the singular<\/p>\n
party) to the marriage sought to be dissolved. ‘marriage’ there<\/p>\n
MAT.A.364\/2007                 -32-<\/span><\/p>\n
refers only generally to the marriages sought to be dissolved<\/p>\n
and not the marriage between the spouses to the               given<\/p>\n
marriage. One of the parties to the marriage domiciled in India<\/p>\n
can hence seek divorce under Section 2 of the Indian Divorce Act.<\/p>\n
We concur with the Madras High Court on the need to adopt a<\/p>\n
liberal interpretation.\n<\/p>\n
      33. We do in these circumstances uphold the finding of the<\/p>\n
court below that the court has jurisdiction to consider the claim of<\/p>\n
divorce as both parties to the marriage were domiciled in India<\/p>\n
at the relevant time; i.e; on the date of presentation of the<\/p>\n
petition.\n<\/p>\n
      Ground No.2<\/p>\n
      34. We now come to ground No.2. It is perhaps crystal<\/p>\n
clear that both parties do not want to continue the marital tie.<\/p>\n
The respondent has filed a petition here claiming divorce whereas<\/p>\n
the appellant also has subsequently filed a petition for divorce<\/p>\n
before the Switzerland Courts.    That the marriage continues in<\/p>\n
its shell only and not in its substance is transparently evident<\/p>\n
MAT.A.364\/2007                  -33-<\/span><\/p>\n
from the totality of circumstances.\n<\/p>\n
      35. It is in this context that the plea of the wife     that<\/p>\n
physical and mental cruelty was inflicted      on her has to be<\/p>\n
considered. We shall deal with the question of physical cruelty<\/p>\n
first though the Family Court does not appear to have considered<\/p>\n
that question in great detail. Wife had made specific allegations<\/p>\n
of infliction of physical cruelty consequent to allegations of<\/p>\n
unchaste and adulterous behaviour. Her evidence on that aspect<\/p>\n
remains virtually unchallenged.     Specific contra assertions or<\/p>\n
denials of such allegations are not decipherable in the evidence<\/p>\n
tendered by the husband. If a prudent mind were to choose<\/p>\n
between the rival contentions on the basis of the evidence<\/p>\n
available,   the conclusion appears to be inevitable that the<\/p>\n
alleged physical cruelty must also be held to be clearly proved. It<\/p>\n
would be     puerile    for any court to expect     specific ocular<\/p>\n
corroboration for the matrimonial physical cruelty. More often,<\/p>\n
than not, that question has to be decided by evaluating the rival<\/p>\n
evidence tendered by the spouses. To corroborate the evidence<\/p>\n
MAT.A.364\/2007                   -34-<\/span><\/p>\n
of the wife, we have the admitted circumstance that the husband<\/p>\n
persists and goes on making allegations of adultery, matrimonial<\/p>\n
infidelity as also licentious behaviour prior and subsequent to the<\/p>\n
marriage on the part of the wife. We have also the circumstance<\/p>\n
that the wife had been compelled and driven to            courts in<\/p>\n
Switzerland to seek separation and police protection to save<\/p>\n
herself from the matrimonial cruelty allegedly heaped on her by<\/p>\n
her husband.     On the evidence available, the alleged physical<\/p>\n
cruelty must also be held to be satisfactorily established.<\/p>\n
     36. On the aspect of matrimonial mental cruelty, according<\/p>\n
to us, there is ample evidence for a conclusion beyond doubt .<\/p>\n
The wife alleged that         the husband was making reckless<\/p>\n
allegations of pre-marital licentious behaviour and post marital<\/p>\n
adulterous and unchaste behaviour. We find no reason not to<\/p>\n
accept her evidence on that aspect. We have convincing support<\/p>\n
for such evidence of hers from the objections filed by the<\/p>\n
husband before the Family Court.           He continues to make<\/p>\n
assertions of such licentious behaviour pre-marital and post-<\/p>\n
MAT.A.364\/2007                  -35-<\/span><\/p>\n
marital on the part of the wife and significantly, it is not even<\/p>\n
attempted to substantiate those allegations before court. Except<\/p>\n
his vague evidence, there is absolutely nothing even to indicate,<\/p>\n
suggest or probabilise such allegations of improper marital<\/p>\n
conduct and behaviour on the part of the wife.\n<\/p>\n
     37. It is trite and it is unnecessary to go to precedents on<\/p>\n
that aspect that unsubstantiated allegations of       unchaste and<\/p>\n
adulterous behaviour by a husband against the wife in the Indian<\/p>\n
context do amount to matrimonial cruelty. The learned counsel<\/p>\n
for the appellant contends that even the wife states that she was<\/p>\n
prepared to condone such allegations raised by him and she had<\/p>\n
invited him to join her in Switzerland after he allegedly made the<\/p>\n
allegations initially. Therefore, such alleged act of cruelty has<\/p>\n
been condoned by her, contends the learned counsel for the<\/p>\n
appellant.    We find absolutely no merit in this theory of<\/p>\n
condonation of matrimonial cruelty. We will assume that she<\/p>\n
had once condoned such alleged earlier indiscretion.      But what<\/p>\n
has come out in evidence is that after such alleged condonation<\/p>\n
MAT.A.364\/2007                   -36-<\/span><\/p>\n
also, the husband goes on making reckless allegations.          The<\/p>\n
alleged prior condonation of such past indiscretion cannot in any<\/p>\n
way be assumed to cover all        prospective allegations of such<\/p>\n
unchaste behaviour.\n<\/p>\n
     38. Going by the version of the husband he was aware of<\/p>\n
the alleged improper behaviour, pre-marital and post-marital. He<\/p>\n
had chosen in spite of all that to continue to live with her.  If he<\/p>\n
persists and continues to make such allegations afresh after they<\/p>\n
decide to live together ignoring such allegations, that must<\/p>\n
certainly be held to amount to fresh acts of matrimonial cruelty.<\/p>\n
In that view of the matter also the plea that          the wife has<\/p>\n
condoned all such matrimonial mental cruelty cannot be<\/p>\n
sustained at all.\n<\/p>\n
     39. The learned counsel for the respondent submits that the<\/p>\n
doctrine of revival applies and even assuming that the wife has<\/p>\n
chosen to condone such reckless allegations made earlier, the<\/p>\n
repetition of such allegations after the alleged event of<\/p>\n
condonation must give rise to a revived cause of action.         We<\/p>\n
MAT.A.364\/2007                  -37-<\/span><\/p>\n
agree with the learned counsel for the respondent.<\/p>\n
      40. We are in these circumstances unable to find any error,<\/p>\n
discrepancy or fault in the finding of the court below that<\/p>\n
sufficient cruelty has been established to justify a prayer for<\/p>\n
dissolution of marriage under section 10 of the Indian Divorce<\/p>\n
Act. The challenge on the second ground must also fail.<\/p>\n
      Ground No.3<\/p>\n
      41. It is pointed out that no attempt to conciliate was<\/p>\n
undertaken by the Family Court. Indications galore to show that<\/p>\n
it was the husband who did not co-operate. Even ignoring that,<\/p>\n
the fact   remains that the parties went to trial with the full<\/p>\n
awareness that attempt at conciliation had not allegedly taken<\/p>\n
place.   They did not object to the      trial progressing.  Even<\/p>\n
otherwise the mere fact that attempt for conciliation or sufficient<\/p>\n
attempt for conciliation had not taken place cannot in law be held<\/p>\n
to be a sufficient or valid reason to invalidate the verdict of the<\/p>\n
Family Court in such a contested proceedings. The challenge on<\/p>\n
MAT.A.364\/2007                  -38-<\/span><\/p>\n
the third ground must also hence fall to the ground. No     other<\/p>\n
contention is urged.\n<\/p>\n
     42. In the result, this appeal is dismissed. No costs.<\/p>\n
                                 R. BASANT, JUDGE<\/p>\n
                                 M.C. HARI RANI, JUDGE<\/p>\n
ks.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court James K.Avaran vs Jancy Ritamma George @ Jancy … on 5 June, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-68762","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJames K.Avaran vs Jancy Ritamma George @ Jancy ... on 5 June, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/james-k-avaran-vs-jancy-ritamma-george-jancy-on-5-june-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"James K.Avaran vs Jancy Ritamma George @ Jancy ... on 5 June, 2009 - 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