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  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

 

                                                                  Vs

 

Jancy Ritamma George @ Jancy Avarah   :      Respondent

 

Judgement



              

                                   JUDGMENT

     

    Basant,J.

     

          What constitutes domicile under Section   2 of the Indian

     

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

     

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

     

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

     

    alien country where one is employed with prospects of continued

     

    residence    for a further long period in connection with such

     

    employment lead to a ready inference of change of domicile?

     

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

     

    the Family court to assume jurisdiction in a Divorce application?

     

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

     

    proceeding to acquire domicile by choice in an alien country

     

    sufficient to divest Indian courts of their jurisdiction in

     

    matrimonial proceedings for divorce under Section 2 of the

     

    Indian Divorce Act?     These interesting questions are thrown up

     

    for consideration in this appeal.

     

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

     

    directed against an order passed under Section 10 of the Indian

     

    Divorce     Act    dissolving   the    marriage    between      the

     

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

     

    cruelty.

     

          3.    Marriage is admitted.     Separate residence is also

     

    admitted. Allegations of mental and physical cruelty are raised

     

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

     

    the wife perpetually raising allegations of unchaste and

     

    adulterous conduct. It is further alleged that physical cruelty was

     

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

     

    together raising such allegations.

     

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

     

     Sans unnecessary details, crucial skeletal facts can be narrated

     

    thus:

     

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

     

    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

     

    acceptable.

     

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

     

    counselling has been attempted by the Family Court before

     

    permitting the parties to lead evidence.

     

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

     

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

     

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

     

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

     

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

     

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

     

         whole of India except the State of Jammu and

     

         Kashmir.

     

               Extent of power to grant relief generally.-

     

         Nothing hereinafter contained shall authorise any

     

        Court to grant any relief under this Act, except where

     

        the petitioner [or respondent] professes the Christian

     

        religion.

     

               and to make decrees of dissolution.- or to

     

        make decrees of dissolution of marriage except where

     

        the parties to the marriage are domiciled in India at

     

        the time when the petition is presented.

     

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

     

        marriage except where the marriage has been

     

        solemnized in India, and the petitioner is resident in

     

        India at the time of presenting the petition

     

        or to     grant any relief under this Act other than a

     

        decree of dissolution of marriage or of nullity of

     

        marriage, except where the petitioner resides in India

     

        at the time of presenting the petition.

     

                                      (emphasis supplied)

     

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

     

     

    relief   whatsoever can be granted except         where either the

     

    petitioner or the respondent professes the Christian religion. No

     

    decree for nullity can be granted unless the marriage has been

     

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

     

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

     

    dissolution are concerned,a different stipulation is made that such

     

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

     

    marriage are domiciled in India at the time of presenting the

     

    petition.

     

          14. The learned counsel contends that this stipulation is

     

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

     

    proper evidence before the courts. Unless parties are domiciled

     

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

     

    about the ground for dissolution of marriage. If they are

     

    domiciled elsewhere, it would be hazardous to insist that they

     

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

     

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

     

    is insisted, contends the learned counsel.

     

          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

     

         evidence."

     

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

     

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

     

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

     

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

     

    she has been employed as a Nurse there and the employment

     

    does appear to be lucrative going by the undisputed evidence.

     

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

     

    worked and studied there.      She had acquired better qualification

     

    there. She had secured a lucrative employment there.                Her

     

    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

     

       country."

     

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

     

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

     

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

     

    admission on the question of domicile from the statement

     

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

     

    residing in   Switzerland in  connection   with   that job is not

     

    synonymous with domicile.      That a person has well integrated

     

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

     

    submissions made by him cannot also amount to any crucial

     

    admission        about     the     abandonment          of      the

     

    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

     

          Divorce.

     

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

     

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

     

    paragraph 5 of that decision is being pursued by the Law

     

    Commission to avoid unnecessary hardship and difficulty, if any

     

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

     

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

     

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

     

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

     

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

     

    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

     

    petition.

     

          Ground No.2

     

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

     

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

     

    The respondent has filed a petition here claiming divorce whereas

     

    the appellant also has subsequently filed a petition for divorce

     

    before the Switzerland Courts.    That the marriage continues in

     

    its shell only and not in its substance is transparently evident

     

    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.

    ..

     



     
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