Judgement - 09KLC-3068

Before R.Basant & M.C.Hari Rani, JJ)
The 5th day of June 2009

Party Array / Case No.

                                         Mat.Appeal.No. 364 of 2007


                                     James K.Avaran     :       Petitioner




Jancy Ritamma George @ Jancy Avarah   :      Respondent








          What constitutes domicile under Section   2 of the Indian


    Divorce Act?    Who is to plead and prove      that domicile of


    birth/origin has been abandoned and a fresh domicile of choice


    has been acquired by the spouses? Does long residence in an


    alien country where one is employed with prospects of continued


    residence    for a further long period in connection with such


    employment lead to a ready inference of change of domicile?


    Should both spouses (and not either) be domiciled in India for


    the Family court to assume jurisdiction in a Divorce application?


    Is the expression of intention of one spouse in the course of


    proceeding to acquire domicile by choice in an alien country


    sufficient to divest Indian courts of their jurisdiction in


    matrimonial proceedings for divorce under Section 2 of the


    Indian Divorce Act?     These interesting questions are thrown up


    for consideration in this appeal.


          2. This appeal under Section 19 of the Family Courts Act is


    directed against an order passed under Section 10 of the Indian


    Divorce     Act    dissolving   the    marriage    between      the


    appellant/husband and the respondent/wife       on the ground of




          3.    Marriage is admitted.     Separate residence is also


    admitted. Allegations of mental and physical cruelty are raised


    by the wife. It is alleged that the husband has been tormenting


    the wife perpetually raising allegations of unchaste and


    adulterous conduct. It is further alleged that physical cruelty was


    also inflicted on the wife by the husband while they were residing


    together raising such allegations.


          4.    The matrimonial discord has a long history behind it.


     Sans unnecessary details, crucial skeletal facts can be narrated




          5.    The marriage took place on 26-11-1989. The marriage


    was solemnized in accordance with the Christian religious rites at


    Thrissur District in Kerala. The wife was employed as a Nurse in


    the Indian Army at that time. The wife went to Switzerland on


    5-9-1990. The brother of the husband was employed and living


    there at that time. Long later, the husband who was a lawyer


    practising in Kerala also left for Switzerland and joined the wife


    on 13-11-1993. Matrimonial discord developed and admittedly


    separate residence commenced on 17-8-2002. There were certain


    proceedings initiated before the courts at the place where the


    spouses reside - in Switzerland. The wife contends that the court


    had granted police protection for her peaceful separate residence


    whereas the husband claims that such police protection was


    granted in his favour. Be that as it may, there is no dispute that


    the parties are residing separately from 17-8-2002 and that a


    court in Switzerland has afforded police assistance for them to


    reside separately.    The wife has permanent employment as a


    Nurse there whereas the husband does not appear to have any


    such permanent employment. He lives on social security which is


    available for persons residing in Switzerland. In the proceedings


    before the Switzerland Court, maintenance/support has been


    ordered to be paid by the wife to him. There is, of course, the


    assertion and evidence that he is employed            for   some


    newspapers in Kerala as their local correspondent in Switzerland.


          6. The wife claimed divorce under Section 10 of the Indian


    Divorce Act on the ground of cruelty.      As stated earlier, she


    alleged that the husband has been guilty of mental cruelty


    he having incessantly raised false allegations of unchaste and


    adulterous behaviour. He had also assaulted her physically and


    verbally. These acts of his amounted to matrimonial cruelty, it


    was alleged. The claim for divorce was made on the plank of


    these allegations of matrimonial cruelty.


          7. The husband entered appearance and resisted the claim


    for divorce. It would appear that the husband is not in principle


    against the dissolution of the marriage. He denies the allegations


    of cruelty but asserts unambiguously that the wife has been




    guilty of adultery and unchaste behaviour as also licentious


    conduct even before        and after the marriage.          Specific


    allegations   to that   effect are raised in the objections filed.


    However, the husband asserted that he was also interested in


    getting the matrimonial tie dissolved. But according to him not


    the courts in India but the Courts in Switzerland alone have


    jurisdiction to entertain such plea for divorce.   He also wants


    divorce, which is not in dispute. According to him, the parties


    were not domiciled in India at the time of presentation of the


    application for divorce and consequently courts in India have no


    jurisdiction to entertain the claim for divorce. According to him,


    the wife had approached the courts in Switzerland for a decree


    for separation, and having approached the courts in Switzerland


    for a decree for separation, her subsequent conduct of rushing to


    India and filing an application for divorce was not justified. It is


    calculated to avoid the fiscal liability for payment of support to


    the dependent husband which under the law in Switzerland, the


    claimant wife would be exposed to. Preliminary objection was


    raised against maintainability of the petition for divorce before


    Indian Courts.


         8. The husband denied the allegations of physical and


    mental cruelty but asserted unambiguously that the wife was


    guilty of adulterous and unchaste behaviour after marriage. He


    raised allegations of licentious behaviour and conduct on the


    part of the wife prior to marriage also.


         9. We cut a long story short.    We are not referring to the


    acrimonious proceedings between the parties after the filing of


    the application for divorce. Before the court below, the claimant


    wife examined     herself as PW1 and her father as PW2.       The


    respondent-husband examined himself as RW1. Exts.A1 to A31


    were marked on the side of the claimant-wife whereas Exts.B1 to


    B16 were marked on the side of the respondent-husband. We


    note that Ext.B series are not marked properly by the Family


    Court.   Registry shall ensure   that this inadequacy is rectified


    immediately by the Family Court.


         10. The learned Judge of the Family Court on an anxious


    consideration of all the relevant material came to the conclusion


    that it cannot be said that the parties were not domiciled in India


    on the date of presentation of the application. The contention of


    the husband that the parties were domiciled in Switzerland was


    not accepted by the Family Court.       The Family Court did not


    proceed to consider in detail the allegations of physical cruelty,


    but came to the conclusion that the allegations of mental cruelty


    and torture by the husband by raising unsubstantiated allegations


    of adulterous, unchaste and licentious conduct are sufficient by


    themselves to justify the plea for divorce on the ground of mental


    matrimonial cruelty. Accordingly, the Family court proceeded to


    pass the impugned order.


          11. Before us, the learned counsel for the appellant-


    husband and respondent-wife have advanced detailed arguments.


    The learned counsel for the appellant assails the impugned order


    on the following three specific grounds:


          (1) The court below erred grossly in coming to the


    conclusion that the parties were domiciled in India at the time


    when the petition was presented.


         (2)The learned Judge of the Family Court did not advert


    properly to the allegations of matrimonial cruelty and the finding


    that cruelty to justify dissolution of marriage is proved is not




         (3)The impugned order        is bad for the reason that no


    counselling has been attempted by the Family Court before


    permitting the parties to lead evidence.


         12. Ground No.1. Counsel points out that under Section 2


    of the Indian Divorce Act, a decree for dissolution of marriage


    cannot be passed "except where the parties to the marriage are


    domiciled in India at the time when the petition is presented".


    We extract Section 2 of the Act for the purpose of easy reference.


         "Section2: Extent of Act.-This Act extends to the


         whole of India except the State of Jammu and




               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




               and to make decrees of dissolution.- or to


        make decrees of dissolution of marriage except where


        the parties to the marriage are domiciled in India at


        the time when the petition is presented.


               or of nullity.-or to make decrees of nullity of


        marriage except where the marriage has been


        solemnized in India, and the petitioner is resident in


        India at the time of presenting the petition


        or to     grant any relief under this Act other than a


        decree of dissolution of marriage or of nullity of


        marriage, except where the petitioner resides in India


        at the time of presenting the petition.


                                      (emphasis supplied)


        13. The learned counsel for the petitioner points out that no



    relief   whatsoever can be granted except         where either the


    petitioner or the respondent professes the Christian religion. No


    decree for nullity can be granted unless the marriage has been


    solemnized in India and the petitioner is resident in India at the


    time of presenting the petition. But so far as the decrees for


    dissolution are concerned,a different stipulation is made that such


    petition for dissolution can be filed only when the parties to the


    marriage are domiciled in India at the time of presenting the




          14. The learned counsel contends that this stipulation is


    made in the interest of the parties and to enable them to adduce


    proper evidence before the courts. Unless parties are domiciled


    in India, it would be difficult for the parties to adduce evidence


    about the ground for dissolution of marriage. If they are


    domiciled elsewhere, it would be hazardous to insist that they


    must adduce evidence before the court at a place where they are


    not residing. This is the reason why the requirement of domicile


    is insisted, contends the learned counsel.


          15. We are unable to agree. The insistence is not that the


    parties must be residents in India when the petition is presented


    or at the time     where the grounds for dissolution arose. The


    insistence is only on domicile of the parties. The concept of


    domicile is distinct and different from residence.


          16. That takes us to the larger question as to what is


    domicile to attract jurisdiction under Section 2 of the Indian


    Divorce Act.


          17. The relevant precedents       have been brought to our


    attention.   There is no litmus test to decide the question of


    domicile, when rival contestants conveniently assert contra.


    After having perused all the relevant precedents and decisions


    which have been placed before us, it appears to be easy to state


    generally that "residence with the intention of permanent or


    indefinite residence constitutes domicile". The principle generally


    so stated may not help the court to find out with felicity and ease


    as to what is the domicile of either of the contestants.


          18. The concept of residence, permanent residence,


    nationality, citizenship and domicile are definitely over lapping


    concepts.   These will    have to be    approached carefully in a


    matter like this where the very jurisdiction of this      court is


    challenged on the ground of domicile.


          19. Before proceeding to advert to the question in detail it


    will only be apposite    to note that every person must have a


    domicile of birth/origin.   It is usually easier to ascertain the


    domicile of birth/origin as there could be little scope for dispute


    on that concept of domicile of birth/origin. That makes our task


    easy as both sides unambiguously concede that their domicile of


    birth/origin is India and no other country at all. For generations


    from the known past the parties are Indians, domiciled in India


    following the laws of India. It is one of the accepted principles


    relating to the law of domicile that the burden rests squarely


    and heavily on the shoulders of the party who asserts and pleads


    that he as well as his spouse have abandoned the domicile of


    birth/origin and have embraced another domicile of choice. The


    burden must, in these circumstances, heavily rest on the


    appellant-husband to show that the domicile of origin in India has


    been abandoned and the domicile of choice has been acquired by


    both spouses at Switzerland.


          20. We shall straight away deal with the contention that


    there is no specific assertion of the domicile of the parties in the


    petition for divorce filed by the wife. A reading of the petition


    clearly shows (and that     crucial circumstance is not denied or


    disputed) that the domicile of birth/origin of both parties is India.


    In these circumstances, it must certainly be held that if the


    appellant-husband has a case that the admitted domicile of


    birth/origin has subsequently been abandoned and a domicile of


    choice has been acquired, the burden is on him to plead, prove


    and establish that fact. The alleged inadequacy of pleadings does


    not impress us at all as sufficient circumstances indicating the


    undisputed domicile of birth/origin are clearly averred in the


    petition. Reliance on Order VII, Rule 1(f) of the Code of Civil


    procedure and the decision in Murphy v. Murphy, A.I.R.1929


    Lahore 419 cannot be        of any help to the appellant in this


    context.   We repeat that the domicile of birth/origin is clearly


    brought out in the pleadings.        That is admitted also.    An


    insistence on specific pleadings of domicile as held in the Full


    Bench decision of the Lahore High Court (supra) is definitely not


    there in the relevant rules and precedents applicable to Kerala.


    In these circumstances we are satisfied that the maintainability


    cannot be disputed on the ground of want of sufficient averments


    regarding domicile in the petition.


          21. The starting point of the     discussion must be the


    undisputed    domicile of birth/origin.  Is there any pleadings,


    evidence or circumstances to suggest that the domicile of


    birth/origin has been abandoned and a domicile of choice has


    been acquired by the parties to justify the contention that they


    were both domiciled in Switzerland and not in India on the date


    of presentation of the petition? As held by the supreme court in


    Sankaran Govindan v. Lakshmi Bharathi, AIR 1974


    S.C.1764 no single circumstance can be held to be conclusive.


    No litmus paper or touch stone is available to the Court to answer


    that question. All the relevant circumstances have to be taken


    into consideration    to come to a conclusion as to what is the


    domicile of the parties.      The Supreme Court through Justice


    K.K.Mathew spoke thus in Sankaran Govindan's case(supra).


         "Domicile is a mixed question of law and fact and there is


         perhaps no chapter in the law that has            from such


         extensive discussion received less satisfactory settlement.


         This is no doubt attributable to the nature of the subject,


         including as it does, inquiry into the animus of persons who


         have either died without leaving any clear record of their


         intentions, but allowing them to be collected by inference


         from acts often equivocal, or who, being alive and


         interested, have a natural tendency to give their bygone


         feelings a tone and colour suggested by their present


         inclinations.  The traditional statement that, to establish


         domicile, there must be a present intention of permanent


         residence merely means that so far as the mind of the


         person at the relevant time was concerned, he possessed


         the requisite intention. The relevant time varies with the


         nature of the inquiry. It may be past or present. If the


        inquiry relates to the domicile of the deceased person, it


        must be ascertained whether at some period in his life he


        had formed and retained a fixed and settled intention of


        residence in a given country.      One has to consider the


        tastes, habits, conduct, actions, ambitions, health, hopes


        and projects of a person because they are all considered


        to be keys to his intention to make a permanent home in a


        place. It is impossible to lay down any positive rule with


        respect to the evidence necessary to prove intention. All


        that can be said is that every conceivable event and


        incident in a man's life is a relevant and an admissible


        indication of his state of mind. It may be necessary to


        examine the history of his life with the most scrupulous


        care, and to resort even to hearsay evidence where the


        question concerns the domicile that a person now


        deceased, possessed in his life-time.      Nothing must be


        overlooked that might possibly show the place which he


        regarded as his permanent home at the relevant time. No


        fact is too trifling to merit consideration. Nothing can be


        neglected which can possibly indicate the bent of a


         person's mind.      His aspirations, whims, prejudices and


         financial expectation, all must be taken into account.


         Undue stress cannot be laid upon any single fact, however


         impressive it may appear when viewed out of its context,


         for its importance as a determining factor may well be


         minimised when considered in the light of other qualifying


         event. It is for this reason that it is impossible to formulate


         a rule specifying the weight to be given to particular




         22. It is in this context that we first noted that the admitted


    domicile of origin/birth of both parties is India. It is true that


    the wife had shifted to Switzerland on 5-9-1990 and the husband


    had followed her to that country on 13-11-1993. Admittedly,


    she has been employed as a Nurse there and the employment


    does appear to be lucrative going by the undisputed evidence.


    For the past about two decades, the wife has been there. She had


    worked and studied there.      She had acquired better qualification


    there. She had secured a lucrative employment there.                Her


    husband had followed her to Switzerland. But in these days


    where employment opportunities abroad are many, the mere


    taking up employment in a country outside India cannot certainly


    be assumed lightly       to lead to the conclusion that such


    employment seeker has lost his claim for permanent residence


    in India or that such person has abandoned the domicile of


    origin/birth.   Lack of employment opportunities in India and the


    availability of greener pastures abroad may prompt many an


    Indian to take up employment outside the country. In connection


    with such employment, he will be compelled to remain abroad.


    Many may be nostalgic and may entertain the desire to return to


    India as quickly as possible, but the lure of lucrative employment


    and the want of equivalent or comparable opportunities at home


    may compel such person to postpone the date of his return.     He


    may opt to continue to live there and be employed there until


    law and circumstances in which he is placed permit him          to


    continue such employment.      But according to us, it would be


    puerile, premature and myopic from         such    circumstance of


    continued residence in connection with ones employment alone


    to assume that he has given up his claim          for permanent


    residence in India much less that he has abandoned the domicile


    of birth/origin and has opted for a different domicile of choice.


    Strong and clinching evidence must be placed before court to


    prove abandonment of the domicile of origin/birth.


         23. The wife as PW1 asserted that she has no intention to


    permanently settle down at Switzerland or abandon her domicile


    of birth in India. We have no reason not to take her seriously.


    Several other circumstances are also pressed into service by the


    respondent-claimant to assert that her domicile of birth/origin in


    India continues and has not been abandoned notwithstanding


    the fact of her long residence in Switzerland and probability of


    her continued residence in Switzerland for such further period


    that she can be employed there.


         24. Nationality and domicile may be subtly different.


    Citizenship and domicile may also not be synonymous. But in a


    situation like this no court can     ignore the fact that     the



    respondent as well as the appellant herein are both holders of


    Indian passports. They continue to reside in Switzerland on the


    basis of visas issued to them. They have not so far acquired


    citizenship in Switzerland. There is an interesting claim of half


    citizenship but except to show that work permit has been issued


    to the claimant wife entitling her to work in Switzerland, there is


    nothing to indicate that she has abandoned Indian citizenship,


    nationality or domicile. Where a person has acquired citizenship


    of another country that may be a compelling indication of


    abandonment of domicile of birth and acquisition of a domicile of


    choice.    By the     same reasoning, continuance          of Indian


    citizenship and holding of the Indian passport must be held to be


    indicative of the desire of the parties to cling on to the domicile of


    birth/origin in India. The evidence shows that her parents are


    living in India. Evidence confirms that she has been visiting her


    parents as frequently as possible.       Evidence reveals that her


    name even now continues to be held in the ration card issued to


    her parents.     She claims and her father,PW2 asserts           that


    ancestral property is available and the father intends to set apart


    the property for her eventual return and residence in India. It is


    interesting, though that is not the specific case of the claimant-


    wife, that the husband asserts that the claimant-wife had


    purchased properties in India in the name of her father. No one


    has a case      and at any rate       such a case has not been


    substantiated that the wife has acquired any landed property or


    real estate in Switzerland. She was born here; she was educated


    here; she took up         employment here; she proceeded to


    Switzerland to take up an employment,            that employment


    opportunity is still available; she continues there; she intends to


    continue until such opportunity for employment is available; she


    asserts that she wants to return to India; she has properties here


    and there is nothing        to show that she has severed her


    connection with her home land. We have no hesitation in these


    circumstances to hold that the available indications do not


    suggest that she has so far abandoned her domicile of


    birth/origin in India and has accepted any domicile of choice in


    Switzerland.   The wife cannot by any stretch of imagination be


    held to have lost her claim for domicile in India.


           25. As against this, the learned counsel for the appellant


    contends that the wife has initiated proceedings before the courts


    in Switzerland and has made crucial and vital admissions in such


    proceedings about her present domicile. We are unable to secure


    authentic material about the nature of the proceedings initiated


    or the nature of the specific pleadings raised.


          26. From the materials available what is gatherable safely is


    that the wife had alleged improper behaviour on the part of her


    husband and had claimed separation        and police protection to


    secure her interest. Though there is a contention that such a


    relief would not have been available unless the wife had admitted


    domicile in Switzerland, no authentic material is placed before us


    to come to such a conclusion. At any rate, nothing has been


    brought to our notice to show that she had specifically asserted


    before any authority in Switzerland that she has abandoned her


    domicile of origin/birth and has opted         for her domicile in


    Switzerland. Counsel points out that a statement has been filed


    by her lawyer on her behalf     in which the lawyer had made


    statements which, according to the counsel for the appellant,


    amounts to an unambiguous admission          of her domicile at


    Switzerland. We extract the same which is available in Ext.B5.


    It reads as follows:


       "She has a permanent job,   is very well integrated here in


       Switzerland and she has absolutely no intention to leave this




    We shall assume for the sake of arguments that this is part of


    her judicial pleadings though Ext.B5 shows that it is only a note


    made by her counsel. But we are unable to find any crucial


    admission on the question of domicile from the statement


    extracted above.    That a person has a permanent job or is


    residing in   Switzerland in  connection   with   that job is not


    synonymous with domicile.      That a person has well integrated


    in Switzerland which is a claim made       by the lawyer in the


    submissions made by him cannot also amount to any crucial


    admission        about     the     abandonment          of      the


    domicile of birth and the acquisition of a domicile of choice. The


    statement that she has absolutely no intention to leave        the


    country cannot also be reckoned as any admission about the


    domicile. She has a permanent job and the statement that she


    has no intention to leave the country cannot be assumed or


    reckoned as an admission to continue indefinite or permanent


    residence in that country or to abandon and give up the domicile


    of birth/origin.   That statement made by the lawyer in the


    submissions before court cannot in these circumstances be


    construed as any vital admission on the question of domicile as


    to offset or displace the circumstances referred above.


         27. That she has sought relief from the Swiss courts to save


    herself from her husband while           both were residing in


    Switzerland at the relevant time cannot also be held to amount


    to any abandonment of the domicile of birth.     She was residing


    there. She needed assistance from the local authorities to enable


    her to live in peace and pursue her employment. For this, she


    sought separation and police assistance for peaceful residence.



    Indian Courts could not have granted her that relief.      We are


    unable to agree that, that conduct of hers - of approaching the


    Swiss court to secure peaceful residence in Switzerland can be


    reckoned as indication of an intention to give up her domicile of


    birth and acquire a new domicile of choice.


          28. We now come to the case of the husband. His parents


    are no more. He has a brother here in India. The father had


    properties. We have no clue as to what has happened to those


    properties, though the husband asserts that he has no properties


    in India. He has a permanent address in India and that appears


    to be indisputable in the light of the sequence of events that has


    taken place.   In the vakalath filed by him, his address, (we


    assume that to be his permanent address) shown is that at his


    ancestral home at Irinjalakuda.      He also does not have any


    properties acquired in Switzerland. Nay, he cannot even claim


    that he has any permanent, durable or reasonable employment in


    Switzerland as it is his very contention that under law he will be


    able to claim support from his wife consequent to his inferior


    financial status and position of dependence on his wife. He also


    continues to be an Indian national having Indian citizenship. He


    holds an Indian Passport and lives in Switzerland on the basis of


    visa secured by him as an Indian national. He asserts that he


    has given up his domicile of birth and has acquired the domicile


    of his choice in Switzerland. There is nothing to show to the


    satisfaction of the Court, such abandonment of the domicile of


    origin and acquisition of a new domicile of choice.


          29. It is true that he has asserted in the pleadings in this


    case that he is not domiciled in India. Too much significance


    and importance cannot be attached to such assertions made by


    him after the initiation of proceedings.     He is engaged in a


    desparate bid to contend that the courts in India have no


    jurisdiction and the Courts in Switzerland alone have jurisdiction.


    Even his conduct of having filed an application for divorce before


    the court in Switzerland after admitted commencement of the


    instant proceedings before the Family Court        (and after his


    knowledge of such proceedings) knocks the bottom out of his


    claim for significance for his own assertion in the course of the


    proceedings about abandonment of domicile of            birth and


    acquisition of domicile of his choice. That assertion made by him


    is obviously with an intention to frustrate the claim filed by the


    claimant/wife for divorce before the Indian courts and to drive


    her to Switzerland Courts where the appellant/husband expects


    to secure a better decree for support/maintenance as per the


    personal laws applicable to citizens/persons of domicile of that


    country. We are in these circumstances of the opinion that the


    appellant has not succeeded in showing that even he has lost or


    given up his domicile of birth and has acquired the domicile of


    choice on the date of presentation of the petition as to non-suit


    the claimant/wife in this proceedings.


         30. The learned counsel for the respondent/wife contends


    that even if it be found that the domicile of the husband is not in


    India it would be hazardous to hold that the wife domiciled in


    India cannot seek relief from the Indian Courts.      The counsel


    contends that the expression 'parties to the marriage' in Section


    2 of the Indian Divorce Act should not be read in any pedantic or


    hyper technical manner.     To advance the interests of justice the


    expression, 'parties to the marriage' in Section 2 must be read


    and understood to mean "either party to the marriage", contends


    counsel.   Counsel argues that High Court of Madras has already


    taken a view in this matter and this Court may be pleased to


    adopt a similar approach to that question.


          31. That question does not really arise for consideration in


    the light of the conclusion that we have reached already that


    both spouses continue to be domiciled in India notwithstanding


    their residence abroad for a long period of time and their


    probable future residence there until the opportunity for


    continuing the present employment there ceases. But, we make


    it clear that if we were to choose to take a view on the question,


    we would have definitely concurred with the decision of the


    Madras High Court dated 17-11-2008 in W.P.No.12816 of 1995


    (Indira Rachel v. Union of India and another) and the views


    expressed there in paragraph 5 which we extract below.


        "5. Though the provisions of the Act can be interpreted in


        a literal manner, to conclude that both parties must be


        domiciled in India at the time of presentation of the


        petition, in our considered view, to effectuate the present


        intention of the Act, which had come into force in the year


        1869, possibly, when such contingencies were not in


        contemplation, a purposive interpretation can be given to


        make it reasonable and more consistent with the principles


        enshrined in the Constitution. If the aforesaid provision is


        construed to mean that a petition would be maintainable if


        at the time of presentation of the petition either party is


        domiciled in India, the difficulty projected by the petitioner


        would not arise and on the other hand, object can be


        achieved.    Therefore, according to us, such provision


        should be interpreted to mean that the Courts in India


        shall be entitled to entertain     petition for dissolution of


        marriage where either of the parties to the marriage is


        domiciled in India at the time when the petition is


        presented and such provision need not be construed as if


        both the parties must be domiciled in India at the time of


          presentation of the petition. In our considered view, such


          an interpretation would bring it in consonance with the


          philosophy of the Constitution.      Moreover, we feel to


          suggest that in order to avoid any further controversy in


          the matter in different parts of the Country, the Ministry of


          Law, the fist respondent, may consider the question of


          making suitable amendment to the provisions in so far as


          Section 2 of the Act is concerned in the light of other


          provisions, if any, containing similar laws relating to




         32. Counsel for the respondent/wife has placed before us


    materials to show that suggestion of the High Court of Madras in


    paragraph 5 of that decision is being pursued by the Law


    Commission to avoid unnecessary hardship and difficulty, if any


    court were to take a technical and literal view of the expression -


    "parties" to the marriage. Singular expressions in a statute can


    take in the plural and vice versa, it is trite.        The expression


    "the marriage" in the third part of Section 2 must be held to


    refer to the marriages sought to be dissolved and the "parties to


    the marriage" must include the petitioning party to the marriage.


    Wives residing and domiciled in India and who have not ever


    moved out of India cannot be forced to undertake hazardous


    trips to alien lands merely for securing       divorce from their


    husbands, who mischievously assert that they have taken up


    domicile of choice in such     alien lands.   That   injustice was


    certainly not intended while enacting Section. The stipulation in


    Section 2 of the Indian Divorce Act a pre-constitutional law


    intended to ensure justice for the wife in England - to ensure that


    she is not dragged to the Indian court to contest a plea for


    divorce must receive a reasonable interpretation in the post


    constitutional era. The text, in the new context,must receive an


    interpretation with emphasis on the Indian spouses and not on


    the spouses left behind in their home nation by alien soldiers or


    personnel who had come to India for service in the          bygone


    imperial era.    The expression "parties to the marriage"must


    hence be held to refer only to the parties (including the singular


    party) to the marriage sought to be dissolved. 'marriage' there


    refers only generally to the marriages sought to be dissolved


    and not the marriage between the spouses to the               given


    marriage. One of the parties to the marriage domiciled in India


    can hence seek divorce under Section 2 of the Indian Divorce Act.


    We concur with the Madras High Court on the need to adopt a


    liberal interpretation.


          33. We do in these circumstances uphold the finding of the


    court below that the court has jurisdiction to consider the claim of


    divorce as both parties to the marriage were domiciled in India


    at the relevant time; i.e; on the date of presentation of the




          Ground No.2


          34. We now come to ground No.2. It is perhaps crystal


    clear that both parties do not want to continue the marital tie.


    The respondent has filed a petition here claiming divorce whereas


    the appellant also has subsequently filed a petition for divorce


    before the Switzerland Courts.    That the marriage continues in


    its shell only and not in its substance is transparently evident


    from the totality of circumstances.


          35. It is in this context that the plea of the wife     that


    physical and mental cruelty was inflicted      on her has to be


    considered. We shall deal with the question of physical cruelty


    first though the Family Court does not appear to have considered


    that question in great detail. Wife had made specific allegations


    of infliction of physical cruelty consequent to allegations of


    unchaste and adulterous behaviour. Her evidence on that aspect


    remains virtually unchallenged.     Specific contra assertions or


    denials of such allegations are not decipherable in the evidence


    tendered by the husband. If a prudent mind were to choose


    between the rival contentions on the basis of the evidence


    available,   the conclusion appears to be inevitable that the


    alleged physical cruelty must also be held to be clearly proved. It


    would be     puerile    for any court to expect     specific ocular


    corroboration for the matrimonial physical cruelty. More often,


    than not, that question has to be decided by evaluating the rival


    evidence tendered by the spouses. To corroborate the evidence


    of the wife, we have the admitted circumstance that the husband


    persists and goes on making allegations of adultery, matrimonial


    infidelity as also licentious behaviour prior and subsequent to the


    marriage on the part of the wife. We have also the circumstance


    that the wife had been compelled and driven to            courts in


    Switzerland to seek separation and police protection to save


    herself from the matrimonial cruelty allegedly heaped on her by


    her husband.     On the evidence available, the alleged physical


    cruelty must also be held to be satisfactorily established.


         36. On the aspect of matrimonial mental cruelty, according


    to us, there is ample evidence for a conclusion beyond doubt .


    The wife alleged that         the husband was making reckless


    allegations of pre-marital licentious behaviour and post marital


    adulterous and unchaste behaviour. We find no reason not to


    accept her evidence on that aspect. We have convincing support


    for such evidence of hers from the objections filed by the


    husband before the Family Court.           He continues to make


    assertions of such licentious behaviour pre-marital and post-


    marital on the part of the wife and significantly, it is not even


    attempted to substantiate those allegations before court. Except


    his vague evidence, there is absolutely nothing even to indicate,


    suggest or probabilise such allegations of improper marital


    conduct and behaviour on the part of the wife.


         37. It is trite and it is unnecessary to go to precedents on


    that aspect that unsubstantiated allegations of       unchaste and


    adulterous behaviour by a husband against the wife in the Indian


    context do amount to matrimonial cruelty. The learned counsel


    for the appellant contends that even the wife states that she was


    prepared to condone such allegations raised by him and she had


    invited him to join her in Switzerland after he allegedly made the


    allegations initially. Therefore, such alleged act of cruelty has


    been condoned by her, contends the learned counsel for the


    appellant.    We find absolutely no merit in this theory of


    condonation of matrimonial cruelty. We will assume that she


    had once condoned such alleged earlier indiscretion.      But what


    has come out in evidence is that after such alleged condonation


    also, the husband goes on making reckless allegations.          The


    alleged prior condonation of such past indiscretion cannot in any


    way be assumed to cover all        prospective allegations of such


    unchaste behaviour.


         38. Going by the version of the husband he was aware of


    the alleged improper behaviour, pre-marital and post-marital. He


    had chosen in spite of all that to continue to live with her.  If he


    persists and continues to make such allegations afresh after they


    decide to live together ignoring such allegations, that must


    certainly be held to amount to fresh acts of matrimonial cruelty.


    In that view of the matter also the plea that          the wife has


    condoned all such matrimonial mental cruelty cannot be


    sustained at all.


         39. The learned counsel for the respondent submits that the


    doctrine of revival applies and even assuming that the wife has


    chosen to condone such reckless allegations made earlier, the


    repetition of such allegations after the alleged event of


    condonation must give rise to a revived cause of action.         We


    agree with the learned counsel for the respondent.


          40. We are in these circumstances unable to find any error,


    discrepancy or fault in the finding of the court below that


    sufficient cruelty has been established to justify a prayer for


    dissolution of marriage under section 10 of the Indian Divorce


    Act. The challenge on the second ground must also fail.


          Ground No.3


          41. It is pointed out that no attempt to conciliate was


    undertaken by the Family Court. Indications galore to show that


    it was the husband who did not co-operate. Even ignoring that,


    the fact   remains that the parties went to trial with the full


    awareness that attempt at conciliation had not allegedly taken


    place.   They did not object to the      trial progressing.  Even


    otherwise the mere fact that attempt for conciliation or sufficient


    attempt for conciliation had not taken place cannot in law be held


    to be a sufficient or valid reason to invalidate the verdict of the


    Family Court in such a contested proceedings. The challenge on


    the third ground must also hence fall to the ground. No     other


    contention is urged.


         42. In the result, this appeal is dismissed. No costs.