P L D 1960 (W (PLP)

KAIKAUS, J.‑

This is an appeal under Clause 10 of the Letters Patent against the judgment of Constantine, J., dismissing the petition for divorce in limine on the ground that the parties were not domiciled in Pakistan. The appellant T. M. L. Bessent and the respondent Mrs. Nell Mary Bessent are domiciled in England. They were married in Karachi on 12th March 1956, and lived at Karachi from the date of their marriage till June, 1957. The appellant still resides at Karachi being the Manager of Pakistan Security Printing Cor poration Ltd. The matrimonial offences which are the basis of the petition are alleged to have been committed at Karachi. The petition is accompanied by an affidavit showing that it would be very inconvenient for the appellant to file a petition for divorce in England. Section 2 of the Divorce Act of 1869, under which Act the petition for divorce has been filed provides that nothing in that Act shall authorise any Court to make a decree of dissolution of marriage except where the parties to marriage were domiciled in Pakistan at the time when the petition is presented. If the jurisdiction of the High Court to entertain a petition for divorce' was based only on the Divorce Act obviously it could not entertain the present petition. Learned counsel for the appellant has, however, put forward two arguments to support the existence of such jurisdiction in the High Court:‑ (1) The jurisdiction in matrimonial cases granted by Clause 25 of the Letters Patent of the High Court is not restricted to persons domiciled in Pakistan. (2) Section 1 of the Indian and Colonial Divorce Jurisdiction Act conferring jurisdiction on the Judges of the Indian High Courts to make decrees for dissolution of marriage in respect of persons domiciled in England and Scotland continues in spite of a provision to the contrary in section 17 of the Indian Independence Act. Clause 25 of the Letters Patent runs:‑ "

25. And we do further ordain that the High Court of Judicature at Lahore shall have jurisdiction, within the Provinces of the Punjab and Delhi, in matters matrimonial between Our subject professing the Christian religion:‑ Provided always that nothing herein contained shall be held to interfere with the exercise of any jurisdiction in matters matrimonial by any Court, not established by Letters Patent within the said Provinces which is lawfully possessed of that jurisdiction." It is urged that this clause grants jurisdiction to the High Court in matters matrimonial with respect to our subjects professing the Christian religion " and does not make a condition that the subjects professing Christian religion should also he domiciled in India or Pakistan. There is a well recognised rule of the international Law stated as rules 31 and 72 of Dicey's Conflict of Laws which enables the Courts of the country to make decrees of divorce only in cases of persons domiciled in that country. Any decree for divorce made by a foreign Court in respect of persons domiciled in England would not be recognised by the English Courts. The question is as to what is the effect of this rule upon the jurisdiction granted by clause 25 of the Letters Patent. Before proceeding it would be proper to refer to the history of the legislation relating to divorce. Section 2 of the Divorce Act 1869, as it originally stood did not impose the condition of domicile and enabled the Indian Courts to pass decrees for dissolu tion in a case where the parties were residing in India. It ran:‑ "

2. This Act shall extend to the whole of British India, and (so far only as regards British subjects within the dominions hereinafter mentioned) to the dominions of Princes and States in India in alliance with Her Majesty. Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except in cases where the petitioner professes the Christian religion and resides in India at the time of presenting the petition; or to make decrees of dissolution of marriage except in the following cases:‑ (a) where the marriage shall have been solemnized in India; or (b) where the adultery, rape or unnatural crime complained of shall have been committed in India; or (c) where the husband has, since the solemnization of the marriage, exchanged his profession of Christianity for the profession of some other form of religion or to make decrees of nullity of marriage except in cases where the marriage has been solemnized in India." By virtue of the jurisdiction granted by this section the Indian Courts continued making decrees for dissolution of marriage in respect of persons domiciled in England if the condition of residence was satisfied till the case of Keys v. Keyes and Gray (1921 P D 204) was decided. In that case the parties had been married at Calcutta and a petition for divorce had subsequently been filed in the Chief Court of Punjab. A decree for divorce had been granted. The husband who had returned to England, having been advised that the validity of the decree was doubtful, filed a petition for divorce in England and at the same time relied upon the decree which he had already obtained. The case was not opposed on behalf of the wife but the King's Proctor appeared through the Attorney‑General to oppose the petition while the Secretary of State for India appeared in support of the petition. It was stated on behalf of the Secretary of State that the question was of importance on account of its effect on the legitimacy of the children of subsequent marriages and it was urged that for a long time Indian High Courts had been making decrees of dissolution of marriage in respect of persons not domiciled in India without such decrees having been objected to. However, it was held that the Divorce Courts in India had no jurisdiction to decree dissolution of marriage in respect of persons. domiciled in England even though the marriage was celebrated in India and the acts of adultery were committed in India. The learned Judge who decided the case said that in 1861, when the Indian Councils Act was enacted it was a rule well recognised by jurists that a country could only deal with the status of its own subjects and therefore, it could not be the intention of the Parliament to grant jurisdiction to the Indian Legislature (Section 22 of the Indian Council Act enabled the legislature " to make laws and regulations for all persons whether British or native, foreigners or others") to make laws granting Indian Courts power to pronounce decrees for divorce of persons not domiciled in India. The learned Judge further pointed out that this rule which had been well accepted by jurists in 1861, had been afterwards established in Le Mesurier v. Le. Mesurier (1895 A C 517). The Secretary of State being only amicus curiae had not a right of appeal and there was no appeal against the judgment in this case but considering probably the effects on children of subsequent marriages the Secretary of State asked the British Parliament to validate the decrees already granted and the Parlia ment in consequence passed the Indian Divorce Validity Act, the effect of which was to validate decrees in all cases where proceed ings had been commenced before the passing of that Act. Courts differed in India after the decision in Keys v. Keys as to the jurisdiction and the power of the Indian Courts to make decrees in respect of persons not domiciled in India. In Alfred Wilkinson v. Grace Emily Norah Wilkinson and another (A I R 1923 Bom. 321) a Full Bench of the Bombay High Court held that there was no power in the Indian Courts, inspite of section 2 of the Divorce Act which referred to only residence, to make decrees of divorce in respect of persons not domiciled in India. The learned Judges relied upon section 7 of the Divorce Act which applies the principle of English Law to proceedings under the Divorce Act. The High Court of Judicature at Lahore on the other hand in Lee v. Lee (A I R 1924 Lah. 513) held that the Indian Courts had jurisdiction when the condition of residence was satisfied to make decrees for divorce in respect of persons not domiciled in India. The learned Judges held that section 7 of the Divorce Act could not exclude such jurisdic tion because it was by the words of that section " subject to the provisions contained in this Act " and section 2 contained an express provision granting jurisdiction in cases of residence, without the condition of domicile. In spite of the decision in Keys v. Keys the High Courts in India continued making decrees for divorce in respect of persons not domiciled in India. It is to be observed that the Indian Divorce Validity Act had validated divorces only in cases where proceedings had started before the commencement of the Act and it could not have validated any decree passed in a proceeding instituted after the commencement of that Act. In view of the situation thus created the Indian Legislature amended section 2 of the Divorce Act on 25th March 1926, substituting for residence the condition of domicile. Nine months later i.e., on 15th December 1926, was passed the Indian and Colonial Divorce Jurisdiction Act which conferred on the Judges of Indian High Courts jurisdiction, subject to some limitations, to grant decree of divorce in respect of persons domiciled in England or Scotland. This jurisdiction continued till was enacted the Indian Independence Act, section 17 of which provided:‑ "17 (1) No Court in either of the new Dominions shall, by virtue of the Indian and Colonial Divorce Jurisdiction Acts, 1926 and 1940, have jurisdiction in or in relation to any pro ceedings for a decree for the dissolution of a marriage, unless those proceedings were instituted before the appointed day, but, save as aforesaid and subject to any provision to the contrary which may hereafter be made by any Act of the Parliament of the United Kingdom or by any law of the Legisla ture of the new Dominion. concerned, all Courts in the new Dominions shall have the same jurisdiction under the said Acts as they would have had if this Act had not been passed. (2) Any rules made on or after the appointed day under subsection (4) of section 1 of the Indian and Colonial Divorce Jurisdiction Act, 1926, for a Court in either of the new Dominions shall, instead of being made by the Secretary of State with the concurrence of the Lord Chancellor, be made by such authority as may be determined by the law of the Dominion concerned, and so much of the said subsection and of any rules in force thereunder immediately before the appoint ed day as require the approval of the Lord Chancellor to the nomination for any purpose of any Judges of any such Court shall cease to have effect. (3) The reference in subsection (1) of this section to proceed ings for a decree for the dissolution of a marriage include reference to proceedings for such. a decree of presumption of death and dissolution of a marriage as is authorised by section 8 of the Matrimonial Causes Act, 1937. (4) Nothing in this section affects any Court outside the new Dominions, and the power conferred by section 2 of the Indian and Colonial Divorce Jurisdiction Act, 1926, to apply certain provisions of that Act to other parts of His Majesty's dominions as they apply to India shall be deemed to be power to apply those provisions as they would have applied to India if this Act had not been passed." The result was that as from the appointed day the jurisdiction of the Indian High Courts under the Indian and Colonial Divorce Jurisdiction Act disappeared. We now proceed to consider the effect of clause 25 of the Letters Patent. The simple question to ask is: could it be the intention of His Majesty when conferring matrimonial jurisdiction on the High Court of Judicature at Lahore by this Clause to invest it with jurisdiction to pronounce decrees of divorce in cases of persons not domiciled in India? As pointed out in Keys v. Keys the rule that Courts of a country could pronounce divorces only in cases of persons domiciled in that country was a rule well recognised by the jurists in 1861, but in any case this rule was fully established in Le Mesurier v. Le Mesurier where their Lordships held: " that the permanent domicile of the spouses within the territory is necessary to give to its Courts jurisdiction so to divorce a vinculo as that its decree to that effect shall by the general law of nations possess extra‑territorial authority and that " a so‑called matrimonial domicile said to be created by a bona fide residence of the spouses within the territory of a less degree of permanence than is required to fix their true domicile, cannot be recognised as creating such jurisdiction." The situation, therefore, in 1919, when the Letters Patent was granted, was that Courts in England had no jurisdiction to make decrees of divorce in cases of persons domiciled in Canada, Australia, New Zealand, etc., nor had the Courts of the Colonies any jurisdiction to make decrees of divorce in respect of persons domiciled in England. Did His Majesty intend to confer wider jurisdiction on Indian Courts? We see no ground for answering the question in the affirmative nor would we impute to His Majesty an intention to grant a jurisdiction in conflict with the Interna tional Law unless there were clear words showing such intention. As was pointed out in Keys v. Keys as between two possible constructions, that which is conformable to international law as declared in our own tribunals is to be preferred to that which would involve infringement of the rights of other communities. There is even a simpler argument. We asked learned counsel for the appellant whether the Lahore High Court would have jurisdiction to pronounce decrees of divorce by virtue of clause 25 even in respect of persons not resident in Pakistan. He was obliged to give an answer in the negative. According to him a condition of residence is necessary but the condition of residence is not mentioned in the Letters Patent. According to clause 25 jurisdiction is granted in respect of all Christian subjects of His Majesty. When we asked learned counsel as to how he introduced the condition of residence he was unable to give any satisfactory reply. He could only refer for this limitation to international law but international law provides for domicile and not for residence. Learned counsel then refers to the fact that there is some bill which according to his information is now before the House of Lords and which would recognise a decree passed by a Court in Pakistan if the condition of residence was satisfied. Learned counsel in this connection refers to Exception I to Rule 72 of Dicey's Conflict of Laws according to which there should be no "' objection to pass a decree which will be recognised by the Courts of the country where the parties are domiciled. But learned counsel is only relying upon a bill which has not yet been passed. If there be passed a law in England the effect of which would be that a decree for divorce granted by a Pakistani High Court in respect of persons domiciled in England would be recognised in England it may still be open to the appellant to file a second petition for divorce. The intention of clause 25 of the Letters Patent obviously was to grant the Court's jurisdiction to pronounce decrees of divorce in accord with international law and if interna tional law allowed a decree to be passed in a case where it would be recognised by the Courts of the Country where the parties were domiciled, Clause 25 would operate so to invest the High Court with power to grant such decrees. The second argument, i.e., the one relating to the jurisdiction conferred by the Indian and Colonial Divorce Jurisdiction Act is based on the High Court of Lahore Order passed on 11th August 1947, by the Governor‑General by virtue of his power under section 9 of the Indian Independence Act. According to clause 3 of this Order the jurisdiction of the High Court of Judicature at Lahore which it possessed before the "appointed day " was to continue. The contention is that the jurisdiction as it existed on the appointed day included the jurisdiction under section 1 of the Indian and Colonial Divorce Jurisdiction Act, and, therefore, on account of the Order of the Governor General this jurisdiction continued in spite of section 17 of the Independence Act. For a number of reasons this contention should fail. Clause 3 is just an ordinary provision for continuation of powers of Courts which is enacted wherever the source of the power of Courts is affected, and is not intended to repeal any law which expressly takes away a part of those powers. If the intention of the Governor‑General were to restore the jurisdiction under section 1 of the Indian and Colonial Divorce Jurisdiction Act he would have said so in express terms. This jurisdiction had been taken away expressly by section 17 of the Indian Independence Act and we would not infer an intention to restore it by mere implication. Provisions similar to clause 3 exist in the Orders relating to all the High Courts and there is j no reason for assuming that the Governor‑General was undoing what had been done by section 17 of the Independence Act. The Governor‑General would in fact not have the power to repeal section 17 of the Independence Act. The jurisdiction granted to him under section 9 of the Indian Independence Act in the exercise of which he passed the Order was a limited one. Under that section he could only pass orders for the purpose of meeting the situation that is created by the partition of India. It certainly could not be said that the partition of India necessitated the grant of jurisdiction to Courts in Pakistan to pronounce decrees of divorce in respect of persons not domiciled in Pakistan. At the same time it is to be remembered that the jurisdiction granted by the Indian and Colonial Divorce Jurisdiction Act depended on the recognition of the decrees of the Indian Courts in England. If the English Courts were not prepared to accept those decrees the jurisdiction could not exist. It was not for any Indian or Pakistani Legislative authority to continue the authority granted to Indian Judges to act as if they were English Judges. The Parliament had granted the authority and had withdrawn it. In view of all this we hold that there is no jurisdiction in the West Pakistan High Court, as the law stands at present, to enter tain an application for divorce in respect of a person who is not domiciled in Pakistan. As we hive already observed it may be possible to entertain such a petition m case the Courts in England f are prepared to recognise a decree for dissolution granted by this Court. That appears to us to be possible on our interpreta tion of clause 25 but if there be any doubt it should be removed by appropriate legislation which may provide for entertaining petitions for divorce in case of persons domiciled in countries which would be prepared to accept decrees of dissolution granted by this Court. We would take this opportunity of bringing to the notice of the Government another defect which exists in the Divorce Act and which results in serious hardship. As the Act stands at present there is no forum to which parties domiciled in Pakistan can have recourse for a divorce, if they are domiciled in Pakistan but are not residing in Pakistan. The requirements of the Divorce Act for the jurisdiction of the High Court or the District Court are not only that the patties be domiciled in Pakistan but also that they be residing in Pakistan with the result that in a case where the parties are not residing in Pakistan but are domiciled here a petition for divorce cannot be filed at all. The appeal is dismissed with no order as to costs. M. S. Appeal dismissed.