P L D 1960 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑

The facts given rise to this matrimonial reference have been fully set out in the order of the District Judge, Lahore, and need not be repeated in extenso.

2. Suffice it to say that Mrs. Yvonne Anna Carman sued her husband Mr. Leon Carman, respondent No. 1, for dissolution of marriage and for certain other reliefs under sections 10, 43 and 44 of the Divorce Act, 1869, on the grounds of adultery with respondent No. 2 and cruelty. Neither of the respondents has put in written statement nor appeared during the trial so that the proceedings have remained ex parte. In the absence of any rebuttal to the charges levelled against the respondents in para graphs 6, 9 and 10 of the petition and the oral and documentary evidence led by the petitioner during the trial, the learned District Judge has granted a decree nisi for the dissolution of marriage and certain other reliefs, which is laid before us for confirmation.

3. The principal question, which arises for consideration in this reference, is whether Courts in Pakistan had jurisdiction to entertain the petition for dissolution of marriage and the answer to it depends on determining the domicile of the petitioner and respondent No. 1 at the time of the presentation of the petition. Since there was some divergence of opinion on this point, we issued notice to the Advocate‑General, West Pakistan, to appear before us as amicus curiae, but in view of the order which we propose to deliver in this case it was not found necessary to call upon him.

4. The domicile of a person is primarily a question of fact though there are certain well‑established principles which govern its determination, e.g., in Dicey's Conflict of Laws, 1949, Edition, the following rules are set out:‑-- "1.

The domicile of any person is the country which is considered by English law to be his permanent home. This is‑ (1) in general the country which is in fact his permanent home‑-- (2) in some cases, the country which, whether it be in fact his home or not, is determined to be so by a rule of English law.

5. Every independent person has at any given moment B either. "(1) the domicile received by him at his birth (which domicile is hereinafter called the domicile of origin), or (2) a domicile (not being the same as his domicile of origin) acquired or retained by him while independent by his own act (which domicile is hereinafter called a domicile of choice).

7. Every independent person can acquire a domicile or choice by the combination of resident (factum) and intention of permanent or indefinite residence (animus maneddi) but not otherwise."

5. In Mrs. Marie Antoinette Palmer v. Mr. Oswald Robert Joseph Palmer, Ortcheson J. expressed ‑the view that the parties who were born in places situated in what is now India, could not claim a domicile by origin of Pakistan, though the respondent, who was in Government service, had at the time of Partition opted for Pakistan, On appeal re Mrs. Marie Antoinette Palmer v. Mr. Oswald Rabert Joseph Palmer (P L D 1958 Lah. 699), the decision was reversed by Kayani, C. J. and Muhammad Rafiq, J. with the observation that 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 India and 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 a person maintains that the option was for service only, the burden of proving this should be on him. In A. W. Carter v. Mrs. J. M. Carter (P L D 1958 Lah. 923), the same question came up for decision before a Division Bench of this Court. At page 925 of the Report, Kaikaus, J. laid down the criterion for determining the domicile of the parties in following words :‑ "There are, it will be observed, two requisites for the acquisition of a domicile, actual residence and an intention of permanent or indefinite resident. The appellant was actually residing in Pakistan at the time when the petition was filed and continues to reside here. Had he at the same time animus manendi, an intention of permanent or indefinite residents, or what is the same things, had he the intention of making Pakistan his home, or of settling in Pakistan ? All these expressions are synonymous as will appear on reference to any commentary on the subject of domicile. True, there are some conventional rules also which sometimes attribute to a person a domicile on account of a fiction of law but apart from such conventional rules, the question to ask always is whether the person concerned had an intention to make a country his home or to settle in that country."

6. In the matter of the petition of Alexander Howard Egan (1928 N I Report 159) the husband sued for divorce on the ground of his wife's adultery. He was born in part of Ireland, which afterwards became the Irish Free State, but his father had lived in various parts of Ireland, sometimes in what is now Northern Ireland and sometimes in what is now the Irish Free State, until the year 1925 when he came to live in Northern Ireland and purchased a house there with the object of providing a home for himself and son. The husband obtained a position in the Ceylon Civil Service in the year 1912, where the parties were married and had ever since resided there except for periods of leave. On these facts, Moore L. C. J. held that the plaintiff could elect either to be domiciled in Northern Ireland or in the Free State and that having elected to be domiciled in the former, the Court had the power to entertain the petition.

7. In paragraph 2 of the petition, it is alleged that on Partition respondent No. 1, who was then a Sergeant in the Punjab Police, had opted for service in Pakistan and took up permanent resident at Lahore and the parties acquired domicile in Pakistan. In paragraph 9, it is stated that during an earlier action brought by the petitioner for judicial separation respon dents No. 1 and 2 went away to Karachi and after staying there for five to six weeks clandestinely proceeded to United Kingdom in May 1953. In her statement during the trial, the petitioner added that since Partition the domicile of origin of respondent No. 1 and herself had been Pakistan and that while proceeding to United Kingdom in 1953, the former held a Pakistan passport. As pointed out earlier, none of these averments has been traversed and in the absence of any denial there is no good reason to disregard them as incorrect. The position, which emerges out, therefore, is that upto August 1947, the domicile of the parties was British India, respondent No. I having been born at Saharan pur but by opting to serve in Pakistan and acquiring a permanent dwelling in Lahore, they got domicile of origin in Pakistan or in any case acquired domicile of choice in this country. As to the present stay of respondent No. 1 in United Kingdom, there is no evidence that he has no animus revertendi to come back to Pakistan or that he has animus manendi to stay there permanently or indefinitely. The condition laid down in section 2 of the Divorce Act that no Court could make a decree for dissolution of marriage except where the parties to the marriage are domiciled in Pakistan when the petition is presented, is, therefore, satisfied in the case. As regards merits, the ex parte evidence has fully proved the charges of adultery and cruelty on the part of respondent No. 1 entitling the petitioner to a decree for dissolution of marriage. The decree nisi for dissolution of marriage and other reliefs granted to the petitioner is accordingly confirmed with costs throughout. K. M. A. Decree confirmed.