P L D 1958 (W (PLP)

KAYANI, J.‑Mrs. M. A. Palmer of 16 Victoria Park, Lahore, instituted a petition against her husband under the Divorce Act for dissolution of her marriage or, in the alternative, judicial separation, on the ground of adultery, cruelty and desertion. The husband, Mr. Oswald Robert Joseph Palmer, was shown as residing at 27, Rivaz Gardens. No issue was struck in respect of domicile or residence, but, after the case had been heard and argued, Ortcheson J., who tried it came to the conclusion that the parties were not domiciled in Pakistan and the petitioner was not resident in Pakistan for the purposes of section 2 of the Divorce Act. The petition having been dismissed on this ground, the petitioner lodged an appeal, which was heard by Kaikaus and Akhlaque Husain, JJ., who remanded the case for the framing of proper issues in respect of domicile and residence and for evidence to be led on these points.

2. Ortcheson, J., after complying with the order in appeal, has not altered his finding, and the petitioner has again appealed.

3. For the determination of domicile and residence, it will be necessary to examine the following material. The marriage took place in Lahore in 1925 and since then the parties have resided in Lahore, mostly in Rivaz Gardens. The respondent was born in Calcutta and was employed as a Superintendent in the Public Works Department, Punjab, until his retirement in Nov ember 1955. His father, whose place of birth is not stated, had unquestionably an Indian domicile before the Partition, and has lived for forty‑five years in what is now Pakistan territory, serving at Peshawar, Rawalpindi and Lahore in the Posts and Telegraphs department and retiring in 1929. From 1925 to 1932, he lived with the parties in Lahore, and then went to serve in Sabathu (Simla States) until 1947 or 1948, when he returned to Lahore and took up employment as dietician in the. Mayo Hospital. His wife‑the respondent's mother ‑however, remained in Simla and in 1949 left for England with two other sons, having apparently settled there. On that occasion, the respondent and his father went to Simhi to see them off, and this was perhaps the only occasion, so far as the present record goes, on which the respon dent went to India after the Partition.

4. It seems that as the respondent was not holding a parti cularly lucrative post‑he was an Assistant in office at the time of marriage‑his wife either took paying guests or worked from time to time as a tutoress or school mistress. She became infatuated with one of the paying guests, Mr. Fred Saldane, who subsequently went to Delhi. In the summer of 1930, when the parties were in Simla in connection with the temporary movement of the respondent's office to Simla. the petitioner left her husband and went to Delhi, ostensibly taking a job in the Swiss Hotel, but staying for the most part with Saldane In December, she returned to Lahore and stayed with her sister, for her husband was, accord ing to tier, having an affair with a Mrs. Ross. In 1931 or 1932 there was a reconcilement, but, soon after, the petitioner found a pretext for visiting Delhi again for a short period, on two separate occasions, In December 1933, she became a tutoress to the Rani of Sheikhupura. She went about with the Rani, first to Nainital, then to Mussoorie. In 1935, when she returned with the Rani to Lahore, she found her husband occupying himself with a Mrs. Navarra, and filed a petition for maintenance, withdrawing it later at her husband's instance. In 1940 or 1941, she again left her husband, who inserted an advertisement in a paper that he would not be responsible for her debts. 5. 'Between 1945 and 1947, the parties lived together after the respondent's return from Military Service. The respondent's father came to live with them in 1947 as he did not get on well with his wife in Simla ; so says the petitioner.

6. In August 1953, the petitioner went to Dehra Dun to take employment and returned in December. About this time the respondent began associating with Mrs. Perris, the intervener, and their relations grew until in August 1954 the petitioner's counsel, Mr. Norman Edmunds, sent a notice to the respondent, threaten ing the institution of a suit arid also migration to Delhi to take an appointment, as the respondent was not supporting her. Not hearing from him, she went to Delhi in September and was employed as a school mistress in St. Columba's High School. In July 1955, while she was in Delhi, her counsel in Lahore again wrote to her husband, repeating the threat in respect of the institution of a suit. In August 1955 and again in January 1956, she visited Lahore for a few days, but not finding the domestic atmosphere ‑congenial, (this is her version) she returned to Delhi. In September that year, as we have seen, the respondent retired from service and exactly a year later he booked passages to England for himself, his father and Mrs. Perris. Thereupon the petitioner filed the present suit on the 25th October 1956, and obtained a stay order against his movement to England.

7. We can now attend to the question of domicile and residence. Section 2 of the Divorce Act requires that the parties must be domiciled in Pakistan if the relief asked for is dissolution of marriage ; and if the relief asked for is judicial separation, the petitioner must be residing in Pakistan at the time of presenting the petition.

8. Since the wife takes the domicile of her husband,:‑all that is necessary to prove is the domicile of the latter. The petitioner stated in the third paragraph of her petition that although the, respondent was born in Calcutta, he and his father had resided for the past thirty years or more in Lahore, the respondent having opted for Pakistan at the time, of the Partition, and that "the country and domicile of the parties is Pakistan". In the written statement, the respondent admitted these allegations. In paragraph 8 (k) of the petition, the petitioner stated, as an instance of the respondent's desertion, that he and Mrs. Perris had booked their passages to England. The respondent replied that this was correct, but that it was the petitioner herself who has given up her status as wife. He did not say teat there was no question of any desertion on his part, and that he was only giving effect to an already expressed intention to settled in England after retirement. In para. 12, the petitioner stated that, the came of action, consisting of adulteries, having arisen to Lahore, the High Court had jurisdiction to try the case. The respondent replied that the petitioner had no cause of action, but said nothing as to jurisdiction.

9. In her statement as a witness, the petitioner said that her husband had not expressed to her an intention to settled in England, but had expressed an intention to settle in the territories now comprising Pakistan. The context does not show in what connec tion these questions were put to her by her counsel, but considering that similar questions were put by the same counsel to the respondent in cross‑examination, it seems probable that the inten tion was to elicit a reason from him for taking Mrs. Perris to England. The respondent replied to these questions that he and Mrs. Perris had intended to go to England with his father, but that "the position appears to have now altered, and if I can get a yob here, I will cancel the visit". After the evidence, had been closed, and at the next hearing, the learned Single Judge recalled the respondent and put to him questions which elicited the follow ing answer. "I intended to, live permanently in England. When I stated previously that circumstances had altered, I meant that if I could get a good job here, I would settle in Pakistan." This was naturally taken by the petitioner's counsel as an effort which threatened the Pakistan domicile, and he therefore cross‑examined the respondent, who then admitted that he had not mentioned this intention to' anybody, not even to his father, with whom he dis cussed everything, the reason being that his father was ill. But his father could not have continued to be ill, and at least after the passages` to 'England had been booked, there should have been some discussion as to whether they were going to settle in England.

10. The respondent further admitted that he had not mentioned this intention in the written' statement, and that "up to the date of the filing of the petition my domicile was Pakistan."

11. It should thus be clear that at no stage before the remand did the respondent claim his domicile to be that of any country other than Pakistan. When Ortcheson, J., recalled him for further examination, although the intention of Ortcheson, J., was, to satisfy himself as to domicile, the respondent thought he was being questioned on his desertion to England, and replied that, as a matter of fact, he had booked passages to England because he intended to live there permanently. That this, however was not his intention, was disclosed by him unwillingly when he stated that if to obtained a good job in Pakistan, he would settle here. In cross‑examination he completely betrayed himself by hating what should lead to a clear inference that the intention to settled in England had never existed in his mind.

12. It was argued by the 'respondent's counsel that the question of domicile being both a question of law and fact, the respondent could not be bound down to his admissions, which he had made in ignorance of what constituted a domicile accord to law. So far as the legal aspect of the matter goes, this argument is plausible, but the intention to live in a country is and of fact on which he requires no legal training, and further cannot be overlooked that the written statement was drafted for the respondent by Mr. Jeremy a counsel of some experience in matters pertaining to the of divorce. It would appear that the question of domicile was so clear to the respon dent's counsel that he made no effort at joining issue on it‑until Ortcheson,‑J.; came to a contrary conclusion.

13. Ortcheson, J., thought that the parties could not claim a domicile of origin in Pakistan because, both were born in places situated in what is now India. It was true observed, that the respondent had opted for Pakistan, but by his own "admission" he had no definite intention of making Pakistan his home. "He had stated in reply to a Court question that he intended to live permanently in England. No doubt he added that if he could obtain a good situation in Pakistan, he would settle here, but it is significant that the respondent's mother and three brothers are ready sailed in England and that before the filing of the present petition the respondent had blocked passages to the, United Kingdom for himself and his aged father,

14. I have already observed that the context in which the respondent made his statement about his intention to settle in England was not that of domicile, and further, that the statement in question had been shown by himself to be unreliable. I cannot agree that a statement which a person makes in his own favour can be regarded an "admission". In the circumstances stated earlier by me, it seems reasonable to assume that the respondent was being persistently pursued by the petitioner with threats of a suit, and that he thought it would ease the situation if lie left for England. The petitioner would neither undertake the expense of, a journey to England nor the expenses of a suit in England.

15. But apart f roan these considerations the mere intention to settle in a country does not change, domicile; and previous domicile drapes a person like his clothes until the intention is carried into effect. If, therefore, the respondent was domiciled in Pakistan, his intention to settle in England would not alter it:

16. Ortcheson, J., thought that Pakistan domicile could not be claimed because both parties were born in places situated in what is now India. I think, with respect that before the Partition the domicile of the parties was British India and not any particular part of British India. The respondent's domicile was not that of Calcutta because he was born there and the petitioner's domicile was not that of Simla because she was born there : in both cases it was British India. For the same reason the domicile would not have been of Lahore if the parties had been born here. After the Partition of the country, the domicile was split. For people who chose to stay in Pakistan, it became of Pakistan ; for those who chose India, it became Indian. The fact that the occasion for the exercise of option was service in any particular case should make no difference. For those in service, that was the only way in which option to live in India or Pakistan could be exercised, and if person maintains that the option was for service only, the burden of proving this should be on him. This burden is not discharged in the respondent's case by his booking passages to England, for, firstly, that booking was influenced by the appearance of Mrs. Perris on the scene, and Mrs. Perris appeared very long after the Partition ; secondly, when the question of option comes to be considered in 1947, the option is between living in India and Pakistan, not between living in India and England. England is, therefore, irrelevant in this context.

17. It is sometimes argued on the strength of the Explana tion to section 10, Succession Ac;, that service in a country does not constitute domicile. Section 10 says that a man acquires new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. The Explanation adds that a man has no "fixed habitation" in British India by reason of residing there in service etc. 1 t is obvious that this was intended , to cover Europeans who came to India for service or trade and had no intention of settling here. This cannot, however, apply to the class which came to be known as "Anglo‑Indian", and which settled here permanently. Most of them, like the respon dent, had no immovable property to encumber their movements, and some of them paid occasional visits to England to refresh parental memories of the "father‑land"‑by which I mean memories of England which belonged, not to themselves, but to their parents or grand‑parents. It is true that on their return they talked of things "at home", but that was not enough to confer on them a British domicile and it was never claimed in pre‑Partition India. In the case of the respondent, if the Explanation is to be applied, it will be assumed that he belonged to India and that he was returning to India after his retirement from service in Pakistan. That assumption would be without foundation, for the intention to return to India has neither been alleged nor become apparent from any past conduct.

18. In respect of the petitioner's residence also, I am respect fully of a different view. Section 2 does not attempt to define "residence", and the ordinary sense in which the word is used is understood by everybody. If a person has no permanent residence, we cannot possibly say that he does not "reside" anywhere : his residence will be the place where he is found to dwell at any particular time. Of course some necessary precautions ought to be taken, so as not to confer on the petitioner an undue advantage and not to put the respondent at a disadvantage which may lead to harassment. Thus a casual traveller belonging to England and passing through Lahore should not be allowed to file a petition in Lahore, and a person who goes to a place expressly to confer jurisdiction on a Court should also not be held to reside in that place.

19. It must have been noticed from the history of the peti tioner's movements that she has been visiting India, particularly Delhi, sometimes to meet Mr. Fred Saldana, sometimes to take up an appointment, and that, invariably, she has returned to Lahore, whether her husband was available to her or to some other woman. In the fifth paragraph of the petition it was stated that except for the first six months of the marriage the parties had resided together at Rivaz Gardens right up to August 1954, when the petitioner was forced by the respondent's behaviour to leave him, and seek employment in Delhi, that they had "thus last resided together in Lahore at 27, Rival Gardens", that the petitioner had now returned to Pakistan and was residing at the address given in the plaint and that the High Court had, therefore, jurisdiction to hear the petition. In the written statement it as alleged that "Para 4 is to this extent correct that the parties last resided together at 27, Rivaz Gardens, Lahore," but that "the allegation that the petitioner was compelled by the respondent to leave for Delhi is denied" Other things including the petitioners return to Pakistan and residence at the address given were not denied. But even if this toad been denied, the fact remains that the, petitioner was returning to Lahore from time to time as though that place were her permanent abode. It is, therefore, unreasonable to say that she came to Lahore only to file her petition. It would be more reasonable to say that she had come to Lahore as she used to come in the past, and that upon learning of the respondent's intention to desert the scene she at once filed this petition.

20. Ortcheson, J., thought that her roots were in New Delhi. He was not referring to her birth in Simla, and apparently he had in mind her frequent visits to Delhi, whether before or after the Partition. I am inclined to think that it is her heart that is in New Delhi, and that her roots are nowhere firmly planted.

21. I hold that the domicile of the parties is that of Pakistan and that the petitioner resided in Pakistan when she lodged her petition. The appeal is accepted with costs and the case remanded for trial on other issues MUHAMMAD RAFIQ, J.‑I agree. A. H.