Sosetta Evelyn Attaullah vs Justin Attaullah and Another

Mookerjee, J.—The petitioner wife filed an application u/s 10 of the Indian Divorce Act for dissolution of her marriage with the respondent. Neither the respondent nor the co-respondent appeared before the lower Court. The decree nisi was passed ex parte by the Additional District Judge,'' Alipore. When the proceedings came up before this Court for confirmation, appearance was entered on behalf of the husband respondent. On his behalf it was contended that the Alipore Court had no jurisdiction to entertain the application. In the petition for dissolution of marriage it was stated that the parties were domiciled in India at the time of their marriage in 1948. Evidence was led to this effect on behalf of the petitioner and the learned Judge came to a finding that it was so. u/s 2 of the Indian Divorce Act, it is necessary that there should be a definite finding that the parties were domiciled in India at the time when the petition for dissolution was presented. During the ex parte hearing no evidence was adduced in support of such a case and no finding was recorded by the Judge. The attention of this Court having been drawn to this matter by the respondent the following issue was sent down for derision by the trial Court:

Were the parties domiciled in India at the time when the petition was presented ?

After this issue had been sent down evidence was led by the parties and on a consideration of such evidence the Additional District Judge has recorded the finding that at the time when the application for dissolution of marriage was presented on the 2nd May, 1950, the parties were domiciled in the dominion of Pakistan and not in the Republic of India.

At the final hearing before us it has been strenuously argued on behalf of the petitioner wife that since the 15th August, 1947, the domicile of the parties was the Indian domicile. In the alternative it is contended that even if the domicile of the Respondent husband had not since the 15th August, 1947, been the Indian domicile he had adopted thereafter the domicile of India and both the parties had acquired the domicile of India before the date of the presentation of the application by the wife for dissolution of marriage.

For a proper appreciation of the questions raised before us it is necessary to refer to the facts as elicited from the evidence adduced by the parties.

Both the parties admittedly professed the Christian faith. The petitioner and both her parents were residents of Calcutta or near about from long before 15th August, 1947, and continued thereafter. The place where the petitioner''s parents stayed have, since 15th August, 1947, been included in the Indian Dominion. The petitioner was of Indian domicile from after 15th August, 1947. Whether after her marriage the same domicile continued would depend on the question whether her husband was of Indian domicile.

The respondent husband was born in 1912 at Mardan, an area which then within the North-West Frontier Province was situate within the then British India. Since 15th August, 1947," this area has been within the Dominion of Pakistan.

The respondent''s father lived at Peshawar and died there in 1940. The respondent was baptized at Mardan and was educated at different places in the North-West Frontier Province. In 1933 he entered Government service at Peshawar in the office of the local Secretariat. In 1946, his services were lent by the British Indian Government to the British Embassy at Kabul within Afghanistan. He has ever since been working at Kabul and has also been residing there. It also appears that since 1946 the respondent husband had not resided for any length of time in the North-West Frontier Province or in any other part of Pakistan.

The respondent had never even visited any other part of British India before 1948. He came to what has become Western Bengal for the first time in December 1948. He came from Kabul to marry the petitioner. The respondent''s brother had from before been staying at Konnagar in the District of Hooghly in West Bengal, and it was he who had arranged for this marriage. The petitioner and the respondent were married at St. John''s Church. Calcutta, on the 15th December, 1948. Within a week thereafter the respondent husband left for Kabul with his newly married wife.

The petitioner wife returned to West Bengal alone in April, 1949. The respondent came from Kabul on the 7th July, 1949, and stayed with his wife in the house of the father of the latter in We Bengal and both left for Kabul on the 27th July following. Within two months thereafter the petitioner wife again returned in September, 1949, to her father''s place after having. obtained a temporary permit from the authorities for staying in India temporarily on the ground that her brother was seriously ill. The petitioner wife has ever since stayed in India after obtaining extensions of the temporary permit.

On or about the 6th April, 1950, the respondent husband came to West Bengal and stayed for some time either with his father-in-law or his brother until he returned to Kabul the next month. He has since then been staying at Kabul except for the temporary period when he had come to Calcutta to depose in the present proceedings after the order of remand by this Court.

It was first contended on behalf of the petitioner wife that before the 15th August, 1947, the respondent was domiciled in British India as it then was. As he had left the North-West Frontier Province for Kabul before the 15th August, 1947, and he had ever since been employed in the British Embassy at Kabul without returning to the North-West Frontier Province the respondent continued to have the domicile of British India even after the Dominions of India and Pakistan had been brought into existence under the Indian Independence Act.

The patent fallacy in this line of argument is that it is overlooked that on and from 15th August, 1947, "British India" had ceased to exist.

u/s 1(1) of the Indian Independence Act, 1947 (10 & 11 Geo. VI c. 30)-

As from the 15th day of August Nineteen hundred and forty-seven, two independent Dominions shall be set up in India, to be known respectively as ''India'' and ''Pakistan''.

(2) The said dominions are hereafter in this Act referred to as the ''new Dominions'' and the said 15th day of August is hereafter in this Act referred to as the ''appointed day''.

Section 2 of the Indian Independence Act further made it clear that- "the territories of India shall be the territories under the sovereignty of His Majesty which, immediately before the appointed date, were included in British India except the territories which under sub-section 2 of this section are to be territories of Pakistan."

Sub-sec. 2 of sec. 2 of the Indian Independence Act further provided, subject to the provisions of sub-sees. 3 and 4 of this section, which are not relevant for the purpose of the question now before us, that-

The territories of Pakistan shall be

(a) The territories which, on the appointed day, are included in the Province of East Bengal and West Punjab as constituted under the two following sections:

(b) The territories which, at the date of the passing of this Act, are included in the province of Sind and the Chief Commissioner''s Province of British Baluchistan; and

(c) If, whether before or after the passing of this Act but before the appointed day, the Governor-General declares that majority of the valid votes cast in the referendum which, at the date of the passing of this Act, is being or has reasonably been held in that behalf under his authority in North-Western Frontier Province are in favour of representatives of that Province taking part in the Constituent Assembly of Pakistan the territories which, at the date of the passing of this Act, are included in that Province.

The referendum taken in the North-West Frontier Province resulted in favour of its joining Pakistan.

Under the provisions of the Indian Independence Act, 1947, all rights, authority and jurisdiction exercisable by the King of England over the territories constituting British India under section2 read with section 311(1) of the Government of India Act, 1935, (25 and 26 Geo. V c. 42), came to an end. This will become abundantly clear if we refer to the provisions of section 19(1) of the Indian Independence Act, read with sub-section 4 of that section. Under the latter sub-section the term "India" when we refer to a state of affairs existing before the appointed day or which would have been existing but for the passing of this Act has the meaning assigned to it by section 311 of the Government of India Act. 1935. This is further clarified when in section 7 of the Indian Independence Act the consequences of the setting up of the two new Dominions are set out. The British Parliament in England will have no responsibility as from the appointed date so far as the Government of any of the territories which immediately before that day were included in British India. The Parliament of the United Kingdom also gave the assent to the omission from the Royal style and title of the King of England the words "Emperor of India."

The territories which had previously been known as British India were divided under the then sovereign authority of the British Parliament into two new sovereign Dominions, viz., India and Pakistan. We are not concerned here as to the legal status, under the provisions contained in the Indian Independence Act, or so far as the States under the Indian rulers are concerned.

It is contended that although British India has ceased to exist a person who had originally a domicile of British India will continue to have the same. This is not possible. As a. result of the provisions contained in the Indian Independence Act a person who had originally the domicile of British India, unless he had subsequently acquired the domicile of some other country outside the ambit of the territories which were originally British India, would automatically acquire the domicile either of India or of Pakistan.

The limited question for our decision is whether on the 2nd May, 1950, the parties were domiciled in the Republic of India. If they were so domiciled the conditions imposed u/s 2 of the Act (as adapted by the Adaptation Orders of 1948 and 1950) would be satisfied. If on the other hand we reach the conclusion that the parties were not domiciled in the Republic of India on the date when the application for dissolution of marriage was filed it will not be necessary to enter into a discussion far less to find specifically of what domicile the parties were on the relevant date.

On behalf of the petitioner it was contended that the territorial sovereignty will not affect the question of domicile in the present case. As observed by Oppenheim (International Law-Volume I- Peace, 6th Edition), at page 408 that the importance of "State territory" lies in the fact that it is the space within which the State exercises, its supreme authority.'' It must however "be emphasised that the territory of a State is totally independent of the racial character of the inhabitants of the State." The State community may consist of different nations.

Nations lay down in their respective municipal law as to how nationality can be acquired as also for determining the grounds on which individuals obtain their nationality. Two of the different modes of acquisition of nationality are-by subjugation after conquest and by cession of territory. The inhabitants of the subjugated and the ceded territory acquire ipso facto by such subjugation or cession the nationality of the State which acquires the territory.

The circumstances under which Britain withdrew from India, though of a unique character, are not altogether without precedent. From the territory which was under the sovereignty of the British King and Parliament, viz., British India, the latter withdrew such sovereign authority and after division of the territory into two different parts ceded such territory to two new independent States which were brought into existence under a Parliamentary Statute, viz., the Indian Independence Act. Oppenheim in section 219 at page 503 observes-

As the object of cession is sovereignty over the ceded territory, all such individuals domiciled therein as are subjects of the ceding state become ipso facto by the cession subjects of the acquiring State.

If the old State does not disappear altogether it is possible to mitigate the hard ship of the inhabitants being handed over to a new sovereign State against their will by a stipulation in the treaty of cession, if any, which binds the acquiring State, to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration.

Reference is made in Vol. 38 of the American Journal of International Law (1944), pages 363-374, to options which were allowed in treaties concluded by Germany between 1939 and 1942 about the evacuation of German minorities from Soviet Russia, Italy and some other countries. It has been pointed out by Oppenheim in section 219(a),pages 504-505, that-

failing a stipulation expressly forbidding it, the acquiring State may expel those inhabitants who have made use of the option and retained their old citizenship, since otherwise the whole population of the ceded territory might actually consist of aliens and endanger the safety of the acquiring State.

In some cases therefore an option is stipulated in favour of the inhabitants of the ceded territory and thus avert the charge that inhabitants are handed over to a new sovereign against their will. The terms of option may vary from case to case but the general principle applied has been that a person habitually resident in a ceded territory acquires ipso facto the nationality of the State to which the territory has been transferred, and loses the nationality of the ceding State". (Page 5o6-Oppenheim)

From the principles referred to above it will be significant that a person habitually resident within a particular ceded territory acquires ipso facto, as a result of the cession, the nationality of the State to which the territory is transferred.

On an examination of the provisions contained in the Indian Independence Act it has already been pointed out that British India had ceased to exist after two new independent States having sovereign authority over particular portions of the original territory which constituted British India had been brought into existence. In this case therefore there was no possibility of a British Indian subject retaining his nationality after 15th August, 1947. Even if it were possible for a British Indian subject to retain (after 15th August, 1947) the British Indian nationality the respondent husband was not one habitually resident within that portion of British India which became the Indian Dominion and was subsequently declared to be the Indian Republic. He cannot, therefore, even on the principles applied to cession of territories, acquire after the 15th August, 1947, the nationality of the Dominion of India or the Republic of India that is Bharat.

Whether the respondent husband was a person, habitually resident of the North-West Frontier Province, i.e., within Pakistan from after 15th August, 1947, and also whether he had acquired ipso facto the Pakistan nationality does not require consideration by us; as we have already indicated, we do not express any opinion on this point.

No doubt domicile and nationality are two quite different conceptions as had been pointed out by Lord Westbury in Udny v. Udny (1) [ (1869) L.R. 1 Sc. & Div. 441 at page 457] :

The law of England, and of almost all civilised countries, ascribes to each individual at his birth two distinct legal states or conditions : One by virtue of which he becomes the subject of some particular country binding him by the tie of national allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country and as such possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status. This political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must depend.

A man may change his domicile without divesting himself of his nationality [Boldrini v. Boldrini (2), (1932) 2 Probate 9]. Similarly there may be a change of nationality without a change of domicile.

A change of domicile is not a condition of naturalisation and naturalisation does not necessarily involve a change of domicile" [Wahl v. A. G. (3), (1952) 147 L.T. 382].

But in the present case, where the State known as British India disappears, from after a particular date, from the map of the world, it is impossible for a person to retain either the nationality or the domicile of British India. In the case of a complete merger or cession of a State it is not open to a person, who was a citizen of that State, which is now non-existent, or was domiciled therein, to continue to arrogate, even after its disappearance, either a citizenship or a domicile with reference to that quondam State.

On the conclusion reached by us that the respondent husband had not ipso facto acquired either the nationality or the domicile of the Indian Dominion after the 15th August, 1947, it remains to be considered whether the respondent had adopted the domicile of India subsequently and before the date of the presentation of the application for dissolution of marriage. The law as to the acquisition of a new domicile is now well settled. It is open to a person to "acquire a domicile of choice, by the combination of residence (factum) and intention of permanent or indefinite residence (animus manendi), but not otherwise" (Dicey''s Conflict of Laws, 6th Edition, page 89).

So far as the factum of residence is concerned, to constitute residence need not be long in point of time.

If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a domicile" [Bell v. Kennedy (4), (1868) L.R. 1 Sc. & Div. 307 at 319].

In determining the nature of domicile of choice therefore the animus or the character of the necessary intention requires careful scrutiny. Dicey refers to the four following essential conditions for determining the character of necessary intention-

(1) The intention must amount to a purpose or choice. There is some divergence of judicial opinion as to how far this intention or choice must be definite or conscious. According to some it is not necessary, in order to establish a domicile, that a person should have absolutely made up his mind which of the two countries is the place where he intends to make his permanent home [Attorney-General v. Pottinger (5), (1861) 30 L.J. Ex. 284 at 292].

The other view is that somewhat more distinct intention must be proved specifically : "it must be shown that the intention required actually existed; or made reasonably certain that it would have been formed or expressed if the question of change of domicile had arisen in a form requiring a deliberate or solemn determination." [Douglas v. Douglas (6), (1871) L.R. 12 Eq. 617, see also Ramsay v. Liverpool Royal Infirmary (7), (1930) A. C 588]. Thus the latter view seems to have been stressed in the more recent cases.

(2) The intention must be an intention to reside permanently or for an indefinite period. If a person goes to a foreign country with the intention to finish a piece of business or even with the intention of staying there until he has made a fortune, he still retains his domicile of origin and is not proved to have adopted the domicile of choice [Jopp v. Wood (8), (1865) 4 De G. J. & S. 616]. The intention to reside temporarily may afterwards be shown to have become unlimited. As soon as there is such a change of purpose or animus the fact of domicile will be taken to have been established, but not until then [Udny v. Udny (1), (1869) L.R. 1 Sc. & Div. 441 at 458].

(3) The intention must be an intention of abandoning, i.e.; of ceasing to reside permanently in the country of the former domicile. Difficulty arises when the intention to leave the country of former domicile is dependent on some purpose which may subsequently be frustrated. The intention to abandon must be a real one and not a make-belief one. Reference may be made to the observations of the Court of Appeal in Fasbender v. Attorney-General (9) [ (1922) 1 Chan. 232; 2 Chan, (C.A.) 850].

(4) It is not necessary that the intention of the person should be an intention to change allegiance. This view has however been shaken by the more recent decision, Winans v. Attorney-General (10) [ (1904) A.C. 287 at 299-300].

It is to be borne in mind that in determining the domicile of the parties in a proceeding for dissolution of marriage it is the domicile of the husband alone which is to be considered inasmuch as a wife takes the domicile of her husband upon her marriage. It has been repeatedly pointed out that in the submission by the parties to the jurisdiction of a Court their former domiciles are relevant. In view of the clear pro visions of section 2 of the Indian Divorce Act, no other consideration can influence the decision. The difficulties in which one or other party finds himself or herself arc not relevant for the decision. The problem of the deserted wife after the husband has acquired a new domicile and the tendency of earlier decisions in English Courts to remedy the peculiar position by relaxing the general principles has no relevancy in the face of the clear statutory provisions in the Indian Divorce Act. As in the more recent cases in England the Courts have been rigorously applying the test of domicile, even in hard cases special statutory pro visions have been made in England as Matrimonial Clauses Act of 1937 and 1944. In India however the Court has to rigidly apply the test of domicile as on the date when the application for the dissolution of a marriage is filed. It is not open to the courts to import considerations of personal difficulties or problems which may arise on applying the statutory provisions. That is a matter of policy which is the province of other competent authorities.

We shall now proceed to examine the evidence as adduced by the parties to prove the animus of residence as indicated by the husband.

It appears that the husband respondent had on the 14th April, 1948, applied through the British Embassy at Kabul to the Government of India in the Ministry of External Affairs and Commonwealth Relations regarding "adoption of Indian domicile and the possibility of his employment under the Government of India". It is with reference to that application that Deputy Secretary in the Ministry of External Affairs, New Delhi, intimated on the 27th May, 1948, the Secretary, British Embassy at Kabul [Exhibit 2(b) and Exhibit A] to the following effect :

Mr. J. Ataullah is free to come to India and settle clown here if he so desires His citizenship of the Dominion of India will, however, be determined according to the provisions of the Draft Constitution of India, recently published which are yet to be adopted by the Constituent Assembly of India with or without any modifications.

As regards employment under the Government of India, there is none which could be offered to him and he will have to revert to the Government of the North-West Frontier Province after the expiry of his deputation to the British Embassy, Kabul.

The Respondent husband in course of his deposition in the present proceedings states with reference to his application, dated 14th April, 1948, referred to above and the reply from the Ministry of External Affairs [Exhibit 2(b) and Exhibit A] :

Originally I had the intention of settling in India permanently, but I changed my mind as the Government of India could not promise any job under them. I finally changed my mind on the 16th June, 1948, when I received that letter (Exhibit A).

He states at another place that " Permission had been granted to me by the Government of India by their letter, dated 27th May, 1948, to reside in India permanently. Put I never resided in India permanently.

We have not before us any copy of the application, made by Attaullah, on the 14th April, 1948, but it is quite clear that his intention to reside permanently in India was dependent on his obtaining a job in India. The condition was not satisfied and he frankly admits that his earlier intention was abandoned on receipt of the letter, Exhibit A.

The evidence as furnished by Exhibit A is not under the circumstances sufficient to prove the adoption of a domicile of choice by Attaullah. The intention to reside permanently in India and also to leave permanently the then domicile, whatever it might have been, were contingent on his obtaining a job in India. This was frustrated. The original intention to abandon the then domicile cannot be deemed to be a real one but a conditional one.

On behalf of the Petitioner wife it was contended that the intention expressed in April, 1948, continued in November, 1950 and reliance is placed on Exhibit 2, a letter written by Attaullah to his father-in-law on the 18th November, 1950. If this letter is to be treated as an admission by the Respondent husband it has to be taken in its entirety.

It is to be noticed that the wife Petitioner has been residing in India on the strength of a temporary Permit from September, 1949. The husband respondent came to Bengal on or about 6th April, 1950, and the husband and wife lived together for a few days till the nth April, 1950, when they again fell out. The husband left for Kabul a few days later. The application for dissolution of marriage was filed on the 2nd May, 1950, and a decree nisi was passed ex parte on the 28th September, 1950.

The husband Respondent came to Bengal between October and November, 1950. The case for the husband is that during that visit certain terms for the settlement of the differences between them were accepted. The letter (Exhibit 2) which was written by the husband is the outcome of such terms of settlement.

In his letter dated 17th November, 1950, addressed to the Secretary, Embassy of India in Kabul -[with a copy sent to the Assistant Secretary to the Government of West Bengal, Home (Political) Department, Calcutta, Exhibit 2(a)], he had in doubt declared that he intended "returning to India and settling down there eventual permission for which has already been given by the Government of India, vide Memorandum No. D. 3309- E.I./48, dated 27th May, 1948, from the Deputy Secretary to the Government of India in the Ministry of External Affairs and Common-wealth Relations to the Secretary, British Embassy, Kabul. I shall be grateful if it please be recommended to the Government of India to allow my wife to stay in India permanently with her patents, who are Indian nationals being bona tide residents of Calcutta. My wife was born and brought up in Calcutta.

My wife will not be a burden to the Government of India in any way, as she will stay with her parents and I will support her.

I shall be highly obliged if an earlier action is taken on this application as Government of India have extended the period and validity of the temporary permit of my wife up to the 31st December, 1950.

If this declaration of intention be taken as valid and a bona fide one, as of abandoning the idea or desire to reside permanently in the country of the then domicile and to reside permanently in India, he would as from 17th November, 1950, be deemed to have adopted a domicile of choice-the Indian domicile.

As pointed out already, this expression of intention on the 17th November, 1950, was long after the date of the application by the wife for dissolution of marriage. A change in domicile subsequent to the date when the application for dissolution was presented will not validate the proceedings as the provisions contained in section 2 of the Indian Divorce Act are clear and specific. Taking into account this difficulty in the way of the petitioner wife it was attempted to be argued that the intention to adopt the Indian domicile was expressed on the 14th April, 1948, and this intention was continued till the 17th November, 1950, as evidenced by Exhibit A and Exhibit 2(a). As I have pointed out already, the expression of intention or animus as disclosed in the correspondence in 1948 cannot be regarded as having expressed the final intention to reside in India permanently and adopt the Indian domicile unconditionally and without any reservation.

Farther, Exhibit 2(a) has to be read along with Exhibit 2, viz., the letter which Attaullah wrote to his father-in-law on the 1st November, 1950, enclosing what is now marked as Exhibit 2(a). An attempt was being made at that stage to settle the differences between the husband and the wife by taking such steps as would make it possible for the wife to stay with her parents by expressing a make-belief intention of coming over to India by the husband. Exhibit 2 and 2(a) therefore cannot be regarded as expressing a real and bona fide intention by the husband to reside permanently in India or of ceasing to reside permanently in the country of his the then domicile. The tests indicated by Dicey in the 2nd and 3rd conditions referred to above are not satisfied.

The evidence as adduced in this case therefore leads to the irresistible conclusion that the husband had not acquired ipso facto the Indian domicile on the 15th August, 1947, and had not thereafter adopted the domicile of India as the domicile of his choice before the wife petitioner presented her petition for dissolution of marriage on the 2nd May, 1950. The condition laid down in section 2 of the Indian Divorce Act not having been satisfied the application for dissolution must be dismissed as not maintainable in the Court of the District Judge, 24-Parganas. The decree nisi passed by the Additional District Judge, Second Court, Alipore, on the 28th September, 1950, is accordingly set aside. As had been noticed in the order passed by this Court on the 30th August, 1951, the husband respondent raised for the first time in this Court an objection based upon section 2 of the Indian Divorce Act, questioning the jurisdiction of the Court to entertain the application. The question of costs was to be determined at the final hearing. In view of the fact that the objection had not been raised at the initial stage the proper order in the circumstances of this case will therefore be to direct that each party will bear the respective costs of both the Courts.

Chunder, J.

I agree.

Lahiri, J.

I agree.