P L D 1957 Dacca 363 (PLP)

AMIN AHMED, C. J.‑--No one appears in this case. Under section 17 of the Divorce Act as adopted in Pakistan (Act IV of 1869) the District Judge of Chittagong has made this Reference to this Court for confirmation of a decree for dissolution of marriage passed by him on the 25th of September 1954. When this matter came up before this Court on the 20th of April 1955, although none appeared, on a scrutiny of records, it was found that the marriage of the petitioner with the respondent No. 1, and also the domicile of the petitioner were not satisfactorily proved before the District Judge. So, the case was remanded to him for further enquiry, and finding on those two points. The District Judge has since taken additional evidence, and with his findings has sent the records. The facts alleged by the petitioner for dissolution of marriage may be briefly stated as follows: The petitioner who was an Accountant in Messrs. River Steam Navigation Company, Chittagong, in February 1951, married the respondent No. 1 Margaret Eileen Neale at Rangoon, Burma; that both of them professed Christianity; that he and the respondent No. 1 lived as husband and wife at Rangoon and also in Calcutta, and lastly, in Calcutta; that they have issues of their marriage, a son and a daughter; that during the two years immediately preceding the 14th of April 1951, the co‑respondent Mr. Nick Morris of 46B, Wellesley Street, Calcutta, who used to reside in the house of the petitioner, took advantage, and the respondent No. 1 committed adultery with the said co‑respondent ; that even at the time the petition was filed, she was living in Calcutta with the said co‑respondent, and even a child was born on account of the said adultery ; and that the applicant was born in India, and after partition he was residing at Chittagong. The application for dissolution of marriage,, was not contested, and after examination of the petitioner and another witness of the name of A. E. O. Jewell, the learned District Judge passed a decree for dissolution of marriage on the 25th of September 1954, and sent the case to this Court for confir mation. As already indicated, the further findings on the two points mentioned above have now been placed before us. We have gone through the further evidence and findings of the District Judge, and as to the point whether the marriage of the petitioner and the respondent No. 1 has been duly proved or not, we are satisfied on a perusal of the records that there is sufficient evidence of the marriage of the petitioner and the respondent No. 1, but we cannot say the same as to the finding of the District Judge relating to the second point of domicile. It appears from the facts that we have set out at length and the evidence on record that neither in the petition nor in the evidence that have been placed before us, there is anything to show as required by section 2 of the Divorce Act (IV of 1869), that at the time the petition for dissolution of marriage was presented to the Court of the District Judge, Chittagong, the petitioner and the respondent No.1 were domiciled in Pakistan. After the remand the learned District Judge has sought to meet this point as follows:

‑ "With regard to point No. 2, the plaintiff has filed the Passport which has been marked Exh.

2. The plaintiff stated in his deposition that he is in Pakistan for the last five years. In the Passport in National Status of the plaintiff has been described as 'British Subject'. Under section 3 of the Pakistan Citizenship Act, 1951, every person shall be deemed to be a citizen of Pakistan who is a person naturalized as a British Subject in Pakistan. The plaintiff being a British Subject residing in Pakistan has acquired Pakistan domicile by naturalization. I accordingly find this point in favour of the plaintiff." We fail to see how section 3 of Act II of 1951, that is the Pakistan Citizenship Act gives a person who is a British subject the domicile of Pakistan automatically because of the provisions of section

3. Presumably the learned District Judge relied on clause (c) of section 3 which runs thus:‑ "

3. At the commencement of this Act every person shall be deemed to be a citizen of Pakistan‑ (a) ... ... ... ... ... (b) ... ... ... ... ... (c) who is a person naturalized as a British Subject in Pakistan; and who, if before the date of the commencement of this Act he has acquired the citizenship of any foreign State, has before that date renounced the same by depositing a declaration in writing to that effect with an authority appointed or empowered to receive it Provided that if any person, being at the commencement of this Act ordinarily resident in a country outside Pakistan makes to the prescribed authority a declaration in the pres cribed form within one year of the commencement of this Act‑-- (a) that he is not a national or citizen of that or any other country outside Pakistan, and (b) that on the faith of that declaration, and by reason of his own birth, or that of any of his parents or grand parents, he claims to be a citizen of Pakistan, he may, if the authority is satisfied that he is not a national or citizen of such country as aforesaid, and that he or any of his parents or grand parents was born in the territory now included in Pakistan, be granted a certificate in the prescribed form by the authority, and shall thereupon be deemed under this a section to be a citizen of Pakistan." It will appear from the above provisions that even according to clause (c) of section 3 of the Pakistan Citizenship Act only one who is naturalized as a British Subject in Pakistan will be deemed to be a citizen of Pakistan. The word naturalized or naturalization has a technical meaning according to International Law and the terms of naturalization vary in different States, and every Sovereign State can prescribe the mode and forms of naturalization. There is nothing to show nor is it the case of the petitioner himself that he and his wife though British Subjects, were subse quently naturalized in this country by virtue of which they claimed Pakistan as their domicile of choice. Further mere residence in a country does not prove a domicile of choice. For the latter two essential conditions must co‑exist, namely, (i) that a person has abandoned his domicile or origin or that his domicile of origin is in abeyance, and (ii) that he has adopted the country in which he resides as his home, that it to say, he intends living in the country in which he resides as his home, and does not intend going back to his country of origin. This has been ably dealt with by S. C. Manchanda in his book "The Law and Practice of Divorce", 1945 edition at page 11: "Any person who is sui juris may at any time abandon the domicile of origin, and adopt a domicile of choice o upon fulfilling two conditions laid down by Kindersely Vice‑Chancellor in Lord v. Colvin (28 L J Ch. 361 (366)), that is by‑ (i) Voluntarily fixing his and his family's habitation in the new place, and (ii) With the present intention of making it ;his perma nent home. There must therefore be both the factum of residence and the animus manendi and there must be no animus revertendi to the former domicile. Residence or animus manendi by itself will not be enough to confer a new domicile. A person continues to retain his domicile of origin until a domicile of choice is acquired and even then the domicile of origin merely remains in abeyance." This position of law is also discussed by the Special Bench of this Court presided over by Ellis, Ispahani and Afzal, JJ. in the case of Ralph Wiliam Bagley v. Elizabeth Bagley (P L R 2 Dacca 647: P L D 1953 Dacca 147). Reference may also be made to the case of William K. Hewson v. Ethel M, Hewson (A I R 1924 Bom. 397). In this case MacLeod, C. J, observed as follows "In the first place, we may point out that there is no allegation in the petition that the parties are domiciled in British India. Unless it is shown that they are domiciled in British India, the Indian Divorce Act gives no jurisdiction to hear the petition." So, as we are not at all satisfied on the evidence on the record and according to the provisions of law that the petitioner and the respondent No.1 were domiciled in Pakistan on the date of the presentation of the petition for dissolution of marriage, we reject this Reference for confirmation of the decree for dissolution of marriage between the parties. As on one appears, there will be no order as to costs. ISPAHANI, J.‑

I agree. RAHMAN, J.‑

I agree.