P L D 1961 Supreme Court 616 (PLP)

HAMOODUR RAHMAN, J.‑This is a certificated appeal from the decision of the High Court of West Pakistan in a Letters Patent Appeal. The said appeal arose out of proceedings under section 10 of the Divorce Act for the dissolution of a Christian marriage which were initiated in the Court of the District Judge, Rawalpindi, by the appellant before us. The petition was opposed by the respondent upon, inter alia, the ground that the Court had no jurisdiction to dissolve the marriage, as the parties were neither citizens of, nor domiciled in, Pakistan. The said question was tried as a preliminary issue. The District Judge came to the conclusion that the parties were not domiciled in Pakistan and dismissed the suit. On appeal, a learned single Judge of the High Court of West Pakistan reversed the said decision and held that the parties were domiciled in Pakistan, and sent back the petition for disposal on merits. In the Letters Patent Appeal, however, this decision was again reversed and it was held that the Courts in Pakistan had no jurisdiction to dissolve the marriage, as the parties had not acquired Pakistani domicile. The only question for determination in this appeal, therefore, is as to what was the domicile of the parties at the date of the ;initiation of the proceedings for the dissolution of marriage. It appears that in the objection petition filed in the Court of the District Judge the respondent pleaded "that the parties mentioned herein are not domiciled in this Dominion and were not Pakistan citizens when the petitioner filed the suit as they have declared themselves as citizens of the U. K. and have taken out Passports for the purpose of leaving Pakistan per manently." Again in his evidence he stated : "I am domicile of U. K. and not of Pakistan. I have got .a certificate to that effect from the High Commissioner of U. K. I do not intend to live permanently in Pakistan." In an affidavit filed by the respondent's father in support of this case it was still more clearly asserted as follows :‑‑ "I was at that time (and since) of British domicile and he therefore was born of my domicile, i.e., of English domicile and to the best of my knowledge and belief neither I nor he nor my parents and grand‑fathers and great grand‑fathers ever changed our and their domicile or intention to retire to England." On the basis of these assertions the District Judge came to the finding that the respondent struck no root either in India or in Pakistan; and before the learned single Judge in the High Court also it appears the parties proceeded upon the basis that the respondent claimed to be domiciled in U. K. The learned single Judge upon the evidence, which we shall presently discuss, came to the finding that the respondent neither at his birth nor during his minority possessed the English domicile but that he had acquired the British Indian domicile soon after attaining his majority. Hence, since it was a sub‑continental domicile, the question as to which domicile he had after the partition of the sub‑continent presented no difficulty. As he himself did not claim the Indian domicile, his domicile after the partition of the country and his option for service in Pakistan must be held to be a Pakistani domicile. In the Letters Patent Appeal, however, the claim to the United Kingdom domicile was altogether abandoned and the only plea pressed was that the domicile of the respondent herein remained Indian and never became Pakistani. It is difficult to appreciate how this plea was permitted to be raised, for, in the Courts below and even before the learned single Judge of the High Court the respondent did not claim the Indian domicile and what was found was that the respondent had required the Indian sub‑continental domicile soon after attaining his majority. The clear evidence in this case was that he joined the service of the North‑Western Railway on the 27th of April 1922, and was posted at Kotri in the Karachi Division. Since then he remained permanently in the service of the said Railway and from 1930 was posted at Rawalpindi. He opted for Pakistan at the time of Partition. Thereafter, on the 21st of June 1948, he married the appellant herein at Sacred Heart Church, Westridge, Rawalpindi, and they continued to live as husband and wife in Rawalpindi. His only brother, who was employed in the Burmah Shell Company in Karachi, also died there. The learned single Judge of the High Court had, however, held that the respondent's father, who too like the respondent herein was born in British India, had been permanently residing in India, had actually built a house for himself at Banglore and was running a Billiard Saloon there. He had, therefore, acquired a British Indian domicile. The evidence in support of this finding was so overwhelming that it was held to have belied the state ments in the affidavit affirmed by the father himself to the effect that he intended to return to the United Kingdom and to reside there permanently. Presumably, accepting these findings, the Letters Patent Bench also took the view that the domicile of the respondent followed, that domicile of his parents, which became his domicile of origin at birth and did not change even by his employment in the North‑Western Railway or by his option for service in Pakistan. With great respect to the learned Judges constituting the Letters Patent Bench we find ourselves unable to agree with their conclusions. Even assuming that the respondent's domicile of origin was British Indian, we are of the opinion that he changed that domicile of origin when he opted for service in Pakistan and this intention was further confirmed by his marriage in 1948 and setting up of a home in Rawalpindi. It seems to us that this evidence clearly indicated that the respondent had voluntarily fixed the habitation of himself and his family at Rawalpindi not for a mere special or temporary purpose but with a present intention of making it his principal establishment to which whenever he was absent he had the intention to return It was for all intents and purposes his permanent home for an indefinite period. Whatever might be the difficulties in giving a precise legal definition to the word "domicile" it appears to us that it must have some relation to the word from which it is derived, namely, domes home. The two most important conditions, which have been generally accepted to be the conditions that must be fulfilled for effecting a. change of domicile, namely, the physical fact of residence and the present intention of making that place a permanent home, were fulfilled in the present case and whatever might have been the domicile of origin of the respondent upon the satisfaction of these conditions; he acquired a legal domicile in Pakistan. Even assuming for the present that mere option for service in Pakistan does not by itself amount to an abandon ment of a British Indian domicile of origin, it seems to us that in the present case the further facts elicited in evidence clearly manifested such an intention. The respondent was residing in what is now West Pakistan since 1922, and even after exercising his option he chose to marry in West Pakistan and setup a home there. Up to that stage in June 1948, therefore, there was no question that he intended to permanently reside in Pakistan and had no animus revertendi to his domicile of origin. The intention to settle in the United Kingdom came to be manifested much later, for, it was on the 20th of July 19.48, that the respondent applied for registration as a citizen of the United Kingdom under the British Nationality Act, 1948. The learned Judges of the Letters Patent Bench have treated this as a sufficient manifestation of his intention not to remain in Pakistan, but with respect it appears to us that in doing so they have not only confused domicile with naturalization or nationality but also failed to take into account the fact that this intention may well have developed after the British Nation‑ ality Act, 1948, came on to the statute book. The question that had to be decided was as to whether prior to this date the respondent had acquired a Pakistani domicile, and could that have been effectually altered by the here expression of an intention to go away to the United Kingdom and settle there? So far as the acquisition of a domicile of choice is concerned, it will appear from Rule 7, Chapter II of Dicey's Conflict of Laws, 6th Edition, page 89, that there must be a combination of residence and intention of permanent or indefinite residence before that change can become effective. In the present case all the evidence that has been led. is that the respondent expressed an intention to go away to the United Kingdom but that intention was never put into effect and on his own admission he never even once went to the United Kingdom from the time of his birth. No change was, therefore, effected by the mere expression of intention. Reverting now to the question of the respondent's domicile of origin we are constrained to observe that the learned Judges of the Letters Patent Bench have fallen into error in thinking that a person cannot be domiciled in a country unless his domicile can 'be fixed at some particular place in that country and, there fore, have not taken into account the fact that the Indian domicile which the respondent is said to have acquired on birth was really a British Indian domicile and not a domicile confined to any particular place in British India or to any particular territory which is now comprised in India. Thus persons, whether born at Bombay or Calcutta or Rawalpindi, had the same domicile, namely, the British Indian domicile up to the 15th of August 1947. At that point of time persons, who were sui juris, had to choose as to which of the domiciles they would take up, namely whether the Pakistani domicile or the post‑partition Indian domicile. There was no difficulty in the case of persons born in a particular portion of British India who continued to reside in the same portion but could it be said that persons born in territories which now happen to be situated in a separate independent country were automatically to be treated as being domiciled in the territories of their birth, although they continued to reside in the territory of the other country. Clearly, this could not be so. Such a person had to make a choice as to whether he would continue to remain where he was residing or would adopt the domicile of the territory in which he was born. Such choice could have been manifested by a person who was sui juris, either by option for service in one or the other country or by some other act clearly indicating an intention to remain permanently where he happened to be residing. In this sense, if a person at that point of time residing in territories which are now in Pakistan also opted for service in Pakistan, we are of the opinion that he thereby sufficiently manifested an intention to remain for an indefinite period in Pakistan. The expression of such an intention coupled with the physical fact of residence in Pakistan did also sufficiently fulfil the conditions necessary for effecting a change in the domicile of that person. Residence for purposes of employ ment, though not by itself conclusive evidence of an intention to settle in 'the country of employment, may well be prima facie proof a change of domicile, particularly where the nature of the service‑ requires the employee to make his home there or the em ployment is chosen in circumstances which indicate a voluntary intention of effecting a change of domicile. In the case under consideration it was the division of the country into two independent States which necessitated that persons in the service of the undivided country should choose as to which of the divided States they would serve. The option in such circumstances was not a mere option to serve but also an option to change one's allegiance, political rights and even nationality. Thus it was clearly an option also to adopt the domicile of the country of service and a voluntary manifestation of an animus manendi in the country of service In the present case this inference was in no small measure, confirmed by the fact that the respondent subsequently also married there set up a home for his family and later expressed a desire to settle in England and not India, the country of domicile of his parents. We may also here mention that our attention has been drawn to another earlier decision of a Division Bench of the same High Court in the case of Mrs. Marie nt-Aoniette Palmer vo Mr. Oswald Robert Joseph (P L D 1958 Lah. 699), where a view contrary td the one in the judgment under consideration was taken. The saih decision was announced on the 1st of April 1958, but unfortunatel it was not cited before the learned Judges constituting the Letters Patent Bench. With regard to the principle enunciated thereiny we would like to point out that although we are unable to accept that "after the Partition of the country the domicile was split," we agree that "for those in service, that was the only way in which option to live in India Pakistan could be exercised, and it person maintains that the option was for service only, the burden of proving this should be on him." For the reasons given above we are of the opinion that this appeal must succeed and the judgment and order of the High Court must be set aside. The respondent had, in our view, clearly acquired Pakistani domicile at the relevant date and had not effectually abandoned the same at any material point of time. The Court of the District Judge, Rawalpindi, therefore, had the jurisdiction to try the petition for the dissolution of marriage filed by the appellant. This appeal is accordingly allowed, the judgment and order of the High Court dismissing the petition are set aside and the case is sent back to the District Judge for disposal in accordance with law The costs of this appeal will be costs in the cause. A. H. Appeal allowed.