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Judgment
Application filed by the applicant/defendant under Order 14, Rule 8 of Original Side Rules read with Order 14, Rule 2 of CPC to decide the
maintainability of the O.M.S. before this Court on the ground of jurisdiction based on domicilary requirement as a preliminary issue.
The case in brief is as follows:
The applicant is the defendant in the main original matrimonial suit. The respondent filed the main case u/s 10 of the Indian Divorce Act. Even in
para. 3 of the main petition, the respondent had conceded that the applicant is domiciled in the United Kingdom. It is also conceded that the co-
respondent is in Ireland and the alleged matrimonial wrong took place in Malaysia. The applicant sent a notice for grant of divorce from England
where she is domiciled. k The respondent also filed an Application as 4438 of 1993 u/s 39 of the Indian Divorce Act. He also filed O.A.No.107
of 1993 to restrain the applicant from alienating her property. There is a candid admission on the part of the respondent that the applicant is no
longer in India and she is domiciled in United Kingdom. The marriage solemnized between the parties was already dissolved by a decree passed
by the County Court in United Kingdom where she is domiciled. u/s 2 of the Indian Divorce Act, domicile is the relevant factor for exercising
jurisdiction, it goes to the root of the case. There is no need to waste the judicial time of this Court. The respondent is only interested in usurping
her property situated at Anna Nagar. The daughters are majors and have their lives to lead independently. A petition for dissolution of the marriage
under the Indian Divorce Act envisages that the parties should be domiciled in India. In this case, the matrimonial suit is not maintainable. The
question is a pure question of law. In the event, this Court decides that the suit is not maintainable, the entire case can be finally decided. No
prejudice can be caused to the respondent if the jurisdictional issue is decided as a preliminary issue and hence, the petition.
The respondent filed a counter denying the various allegations. The affidavit has not been attested in a manner known to law. The petitioner
questioning the jurisdiction of the court is out of time and should have been filed prior to framing of issues. He had contributed towards the
property and he never wanted to grab others property. The explanation to Section 10 of CPC makes it clear that the pendency of the foreign suit
does not preclude the Courts in India from trying a suit founded on the same cause of action. It is clear from section 13 of CPC that a foreign
judgment is not conclusive where the judgment is not given on the merits of the case or where it has been obtained by fraud. He had not submitted
to the jurisdiction of this Court. Further, the law applied by the county court is the irretrievable break down of the marriage which is not available
under the Indian Divorce Act. Moreover, the question of domicile is a question of fact and law to be decided by the Court only after adducing
evidence.
Heard the learned counsel of both sides.
The point that arises for consideration is whether the Original Matrimonial Suit 19 of 1993 is maintainable before this Court on the ground of
jurisdiction based on domicile requirement ?
Point: It is admitted that the respondent as plaintiff filed the original matrimonial suit against the applicant u/s 10 of the Indian Divorce Act. The
applicant/defendant has filed this application under Order 14, Rule 9 of Original Side Rules read with Order 14, Rule 2 of CPC to try the
maintainability of this case as a preliminary issue on the ground of jurisdiction. Learned counsel for the applicant/defendant stated that even in the
O.M.S. petition in para. 3, the respondent had conceded that the applicant is domiciled in United Kingdom; the co-respondent is in Ireland and the
alleged matrimonial wrong took place in Malaysia. According to the learned counsel, u/s 2 of the Indian Divorce Act, domicile is the relevant factor
for exercising jurisdiction, it goes to the root of the matter relating to the maintainability of the suit itself and on the admitted facts, the court can
easily come to the conclusion that the main suit itself is not maintainable before this Court.
Per contra, learned counsel for the respondent mainly contended that the question of domicile depends upon the question of fact and law and as
it requires evidence, it cannot be tried as a preliminary issue. Learned counsel further stated that the main suit itself was filed in the year 1993 and
after lapse of seven years only, the applicant had filed this application raising the ground of jurisdiction to be tried as a preliminary issue and on the
ground of delay, the application has to be dismissed.
It is just and necessary to reproduce section 2 of the Indian Divorce Act in order to appreciate the rival contentions of the parties. Section 2
reads, as follows:
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 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.
It is admitted that the main suit itself has been filed u/s 10 of the Indian Divorce Act for dissolution of the marriage. A bare reading of section 2
clearly discloses that 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. The parties to the marriage is relevant to be considered because it is used in plural thereby indicating that they should
domicile in India. The respondent himself in para. 3 of the main petition candidly admitted as follows:
The petitioner states that the respondent is domiciled in U.K.,but is an Indian citizen and within the jurisdiction of this Hon''ble Court"".
It is admitted that the parties already filed Application No.4438 of 1993 in O.M.S.19 of 1993 and the same was disposed of by"" this court
and was reported in 1995 (1) L.W. 53 and some passages of the same are relevant to be extracted for giving disposal of this application.
The domicile of the wife, can no longer be regarded as the domicile of the husband from the mere fact of subsistence of the marriage. It is possible
for the wife to have a different domicile and if she has in fact changed her domicile, the same must be recognised and given her domicile, the same
must be recognised and given effect to. It is the case of the applicant himself that the domicile of the respondent is no longer in India but is in U.K.
Though the domicile is a mixed question of law and fact, it is always open to a person to make an admission which renders it unnecessary for the
other party to prove the fact. Change of domicile is brought about by a combination of change of residence and intention to permanently reside in
that country. As it is the common case of the applicant and the respondent that the respondent is domiciled in U.K. the Original Matrimonial Suit in
which the application is filed is not maintainable and consequently the application also is not maintainable"".
Learned counsel for the applicant relied on Wright Vs. Wright, , wherein it was observed that it is of the highest importance that in cases under
the Act the question of domicile should be treated with care, for, unless the parties to the marriage are domiciled in India at the time when the
petition is. presented, there is no jurisdiction in a District Court to dissolve the marriage. The same view has been reiterated in (Peter William)
Cresswell Vs. (Olive Catherine) Cresswell, and also in Nihal Chand v. Pritam Singh AIR 1932 Lah. 468.
Learned counsel for the applicant relied on Mitsubishi France Vs. Neyveli Lignite Corporation Ltd. and Another, , a Bench decision of this
Court, which relates to a suit to recover damages for breach of contract filed in High Court. The defendant raised a plea for want of jurisdiction in
High Court. It was held that the said issue should be tried as a preliminary issue. Similar view has also been reiterated in Hyderabad Asbestos
Cement Products Ltd. Vs. Mohamad Argobasi Enterprises and Another, that under Order 14, Rule 2 any point pertaining either to the jurisdiction
of the Court of a law which bars the suit has to be tried as a preliminary point. The normal rule is that the Court shall pronounce judgment on all
issues, which mandate, however, is subject to the provisions of sub-rule (2). It is essentially based on an object which has been deliberately
introduced by the amendment Act, 1976 in order to see that the lie unnecessarily is not protracted and would not cause any harassment to the
parties"" if it could be decided that lis itself is not maintainable in the Court and thus avoiding the avoidable litigation in the Court. The same view has
also been reiterated in Kranti Mohan Guruprasad Mebra and Another Vs. Fatehchand Vasuram Behal, , State of Andhra Pradesh and Another
Vs. Bandalam Srinivasulu and Others, and also in Mahabir Sahni Vs. Babu Lal Sahni and Others, .
Per contra, learned counsel for the respondent relied on Moina Khosla Vs. Amardeep Singh Khosla, , wherein it was observed that since
strong evidence was required to prove abandonment of domicile of origin and the best evidence that could be had was of the individual himself, it
was held in the case that merely, because the wife deposed that the husband was a permanent resident of Canada he could not be treated as not of
Indian domicile. There Is no dispute about this proposition but it has no application to the case on hand in view of the averments made by the
respondent in para 3 of the main petition itself. Reliance was also placed upon our Gour Gopal Roy Vs. Smt. Sipra Roy, that domiclie of choice is
dependent of (a) residence and (b) intention of person who resides and it is a question of fact in which intention plays a vital role.
The decisions relied on above clearly indicate that the question of jurisdiction can be tried as a preliminary issue and although it is a mixed
question of fact and law, in view of the clear averments made in the main suit itself is not maintainable before this Court. As adverted to, the
language employed in section 2 of the Indian Divorce Act, wherein it is categorically stated that the parties to the marriage should domicile in India
is a condition precedent for filing a petition before this Court. When once it is admitted by the respondent himself that the applicant is domiciled in
United Kingdom, I am of the view that the question of jurisdiction goes to the root of the matter and it can be tried as a preliminary issue. When
once the court comes to the conclusion that the main suit itself is not maintainable on the ground of jurisdiction, it is not necessary that the parties
have to be directed to undergo an ordeal of the trial in respect of other issues also."" Hence, the point is answered accordingly.
For the reasons stated above, the application is allowed and O.M.S.19 of 1993 is dismissed as not maintainable.