P L D 1963 (W (PLP)

3. The petitioner's case is that she was married to the respondent on the 20th of December 1952 before the Registrar of Marriages at Karachi under the Christian Marriages Act, 1872. They lived together as husband and wife for six years and a daughter was born to them from this marriage on the 15th of August 1956. Her counsel pointed out that it was the duty of the Registrar not to issue a certificate of marriage "until one of the parties intending marriage appears personally before such Registrar and makes oath:‑ (a) that he or she believes that there is not any impediment of kindred or affinity, or other lawful hindrance, to the said marriage." This was done but according to counsel, a lawful hindrance that existed did not come to light. The respondent had a spouse to whom he was married at New Jersey, U. S. A., but the respondent represented that he had obtained divorce from her. The divorce was alleged to have been obtained from a Mexican Court, but it was obtained by collusion between the respondent and his wife Lilian Ricketts at a time when the respondent was living at Goa and his wife was residing "at New Jersey or New York". These facts, according to the petitioner's counsel, made the divorce "repugnant to the principles and laws of England and to the principles of the Divorce Act, 1869". He, therefore, took the stand that the marriage between the petitioner and the respondent, which was solemnized at Karachi was a nullity.

4. The learned District Judge framed the following four issues (1) Is the defendant's wife by the former marriage still living ? (2) Whether, therefore, the previous marriage of the defendant is still subsisting ? (3) Whether the divorce obtained in New Mexico by the defendant from his former wife is void and illegal ? (4) Whether the marriage of the plaintiff with the defendant on 20‑12‑52, before the Registrar of Marriages, Karachi is illegal, null and void ? and decided them in her‑ favour, granting by the same order to the petitioner the custody of the minor child, Veronice Margaret, who was born of the marriage which took place at Karachi and ordered in terms of section 20 of the Act that his decision was subject to confirmation by the High Court of West Pakistan.

5. The case of the respondent is that he had married Lilian Ricketts, who was a resident of Jersey Pennsylvania (U. S. A), but the marriage was dissolved by a decree of a Court of Mexico, which was granted in October/November 1952. He had not gone to Mexico and the divorce was obtained by a "mail order". At that time he was in Karachi and Lilian Ricketts was in New York, but they had moved the Mexican Court jointly. The original copy of the order had been filed according to him before the Registrar of Marriages at Karachi, but was withdrawn for obtaining its photostat copies and returned thereafter. No photostat copy is available now and no copy of the order was received from Mexico although he had written for it to that Court. He stated on the 24th March, 1960 that he "had no objection to dissolution of marriage" with the petitioner and had therefore not raised the question of her "misbehaviour", although her misbehaviour would have disentitled her to alimony.

6. The main question to be decided by us is as to whether the order of the Mexican Court, by which the marriage of the respondent with Lilian Ricketts was dissolved was valid. Counsel for the petitioner argued that the order was not valid because it did not, in terms of section 7‑ read with section 19 (4) of the Divorce Act, 1869, conform to those principles and rules relating to the domicile of the parties to the order on which the Courts in divorce and matrimonial causes in England would act and give relief. Counsel referred to rule 43 of the Dicey's Conflict of Laws, and cited the judgment in Russ v. Russ ((1962) 3All E R 193) of the English Court of Appeal in support of this contention. Rule 43 of Dicey's Conflict of Laws lays down that the Courts of a foreign country have no jurisdiction to dissolve the marriage of parties not domiciled in such foreign country at the commencement of the proceedings for divorce, but that there are certain exceptions to this Rule. The first exception is that in England Courts will recognise the divorce granted in a country where the parties were not domiciled if the divorce could be recognised as valid in the country where they were domiciled at the time of the decree. This exception should be read with the judgment in Russ v. Russ. In that case, 1913, an English spinster married in England a Muhammadan who was domiciled in Egypt. They went together to Egypt where they went through a Muhammadan ceremony of marriage. Their marriage was dissolved by a `talaq' according to Muhammadan law and the dissolution was also recorded in Court of Records. Later on, she went through a ceremony of marriage in Cairo with another man according to the rites of the Church of Scotland. In subsequent proceedings in which the validity of her second marriage was impugned on the ground that the previous marriage was subsisting, evidence was given to establish that by Muhammadan Law, which was the law of her domicile, the `talaq' was effective. I reproduce, for the sake of convenience, the gist of the decision of the English Court of Appeal in the language of the head‑note that appears above the judgment in the above‑mentioned report "The English Court would recognise as valid the marriage of R in 1942 in Egypt, for the burden of proving that that marriage was invalid lay on him as also, therefore, lay the burden of proving that the divorce by talak in 1932 was invalid and R had not established the invalidity or that divorce or that E was not free in 1942 to contract marriage in Egypt for the following reason‑ (i) although the divorce was effected without former judicial pronouncement of divorce, the proceedings took place in the presence of and were recorded in the Court of Records, and the divorce was judicially recognised by the Court of the domicile in the subsequent maintenance order ; (ii) notwithstanding that the marriage of 1913 was a Christian marriage, the evidence showed that the `talaq' divorce was effective in the country of the domicile to dissolve any marriage of whatever nature; and this was not a case in which the Court its discretion should withhold recognition of the law of the domicile by which E was free to marry in 1942."

7. Thus the first Exception to rule 43 of the Dicey's Conflict of Laws and the decision in Russ v. Russ exposes the argument of the petitioner's counsel to the objection that the order of the Mexican Court cannot be said to be ineffective for the purposes of this Court unless the petitioner can show that it was ineffective in the country of domicile of the husband. The burden of proving its ineffectiveness is on the petitioner, but the parties and particularly she has failed to produce evidence to establish the facts which could lead to a conclusion in her favour. The evidence is so unsatisfactory that we cannot even discover as to which was the country in which the husband resided at the time of the order of the Mexican Court. The petitioner has stated in paragraph 5 of her petition that he was at Goa, but the husband, that is, the respondent, has stated on the 12th of March 1959, before the District Court that he was in Karachi when he obtained the divorce. We are called upon to pronounce judgment on the validity of an order of the Mexican Court without enabling us to discover the country of domicile of the respondent and without affording us an opportunity to have a look at a copy of the order itself. Our duty in these circumstances is clear, and it is to pronounce our judgment that the petitioner, on whom the burden of proof lay, has failed to discharge it and consequently fails.

8. The decree of nullity granted by the learned District Judge by his order, dated the 23rd of May, 1959, is, therefore, set aside in terms of section 17 of the Divorce Act. The parties are left to bear their own costs throughout. K. B. A.