Madras High Court
Dr. David Chakravarthy Arumainayagam ... vs Geetha Chakravathy Arumainayagam And ... on 18 March, 2000
Equivalent citations: II(2001)DMC276
ORDER
1. Application filed by the applicant/defendant under Order 14, Rule 8 of Original Side Rules read with Order 14, Rule 2 of Civil Procedure Code to decide the maintainability of the O.M.S. before this Court on the ground of jurisdiction based on domicilary requirement as a preliminary issue.
2. The case in brief is as follows:
The applicant is the defendant in the main original matrimonial suit. The respondent filed the main case under section 10 of the Indian Divorce Act. Even in para. 3 of the main petition, the respondent had conceded that the applicant is domiciled in the United Kingdom. It is also conceded that the co-respondent is in Ireland and the alleged matrimonial wrong took place in Malaysia. The applicant sent a notice for grant of divorce from England where she is domiciled. k The respondent also filed an Application as 4438 of 1993 under section 39 of the Indian Divorce Act. He also filed O.A.No.107 of 1993 to restrain the applicant from alienating her property. There is a candid admission on the part of the respondent that the applicant is no longer in India and she is domiciled in United Kingdom. The marriage solemnized between the parties was already dissolved by a decree passed by the County Court in United Kingdom where she is domiciled. Under section 2 of the Indian Divorce Act, domicile is the relevant factor for exercising jurisdiction, it goes to the root of the case. There is no need to waste the judicial time of this Court. The respondent is only interested in usurping her property situated at Anna Nagar. The daughters are majors and have their lives to lead independently. A petition for dissolution of the marriage under the Indian Divorce Act envisages that the parties should be domiciled in India. In this case, the matrimonial suit is not maintainable. The question is a pure question of law. In the event, this Court decides that the suit is not maintainable, the entire case can be finally decided. No prejudice can be caused to the respondent if the jurisdictional issue is decided as a preliminary issue and hence, the petition.
3. The respondent filed a counter denying the various allegations. The affidavit has not been attested in a manner known to law. The petitioner questioning the jurisdiction of the court is out of time and should have been filed prior to framing of issues. He had contributed towards the property and he never wanted to grab others property. The explanation to Section 10 of Civil Procedure Code makes it clear that the pendency of the foreign suit does not preclude the Courts in India from trying a suit founded on the same cause of action. It is clear from section 13 of Civil Procedure Code that a foreign judgment is not conclusive where the judgment is not given on the merits of the case or where it has been obtained by fraud. He had not submitted to the jurisdiction of this Court. Further, the law applied by the county court is the irretrievable break down of the marriage which is not available under the Indian Divorce Act. Moreover, the question of domicile is a question of fact and law to be decided by the Court only after adducing evidence.
4. Heard the learned counsel of both sides.
5. The point that arises for consideration is whether the Original Matrimonial Suit 19 of 1993 is maintainable before this Court on the ground of jurisdiction based on domicile requirement ?
6. Point: It is admitted that the respondent as plaintiff filed the original matrimonial suit against the applicant under section 10 of the Indian Divorce Act. The applicant/defendant has filed this application under Order 14, Rule 9 of Original Side Rules read with Order 14, Rule 2 of Civil Procedure Code to try the maintainability of this case as a preliminary issue on the ground of jurisdiction. Learned counsel for the applicant/defendant stated that even in the O.M.S. petition in para. 3, the respondent had conceded that the applicant is domiciled in United Kingdom; the co-respondent is in Ireland and the alleged matrimonial wrong took place in Malaysia. According to the learned counsel, under section 2 of the Indian Divorce Act, domicile is the relevant factor for exercising jurisdiction, it goes to the root of the matter relating to the maintainability of the suit itself and on the admitted facts, the court can easily come to the conclusion that the main suit itself is not maintainable before this Court.
7. Per contra, learned counsel for the respondent mainly contended that the question of domicile depends upon the question of fact and law and as it requires evidence, it cannot be tried as a preliminary issue. Learned counsel further stated that the main suit itself was filed in the year 1993 and after lapse of seven years only, the applicant had filed this application raising the ground of jurisdiction to be tried as a preliminary issue and on the ground of delay, the application has to be dismissed.
8. It is just and necessary to reproduce section 2 of the Indian Divorce Act in order to appreciate the rival contentions of the parties. Section 2 reads, as follows:
2. Extent of Act.-This Act extends to the whole of India except the State of Jammu and Kashmir.
Extent of power to grant relief-generally. Nothing hereinafter contained shall authorise any Court to grant any relief under this Act except where the petitioner or respondent professes the Christian religion and to make decrees of dissolution-or to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented, or of nullity or to make decrees of nullity of marriage except where the marriage has been solemnized in India and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act, other than a decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition.
9. It is admitted that the main suit itself has been filed under section 10 of the Indian Divorce Act for dissolution of the marriage. A bare reading of section 2 clearly discloses that to make decrees of dissolution of marriage except where the parties to the marriage are domiciled in India at the time when the petition is presented. The parties to the marriage is relevant to be considered because it is used in plural thereby indicating that they should domicile in India. The respondent himself in para. 3 of the main petition candidly admitted as follows:
"The petitioner states that the respondent is domiciled in U.K.,but is an Indian citizen and within the jurisdiction of this Hon'ble Court".
10. It is admitted that the parties already filed Application No.4438 of 1993 in O.M.S.19 of 1993 and the same was disposed of by" this court and was reported in 1995 (1) L.W. 53 and some passages of the same are relevant to be extracted for giving disposal of this application.
"The domicile of the wife, can no longer be regarded as the domicile of the husband from the mere fact of subsistence of the marriage. It is possible for the wife to have a different domicile and if she has in fact changed her domicile, the same must be recognised and given her domicile, the same must be recognised and given effect to. It is the case of the applicant himself that the domicile of the respondent is no longer in India but is in U.K. Though the domicile is a mixed question of law and fact, it is always open to a person to make an admission which renders it unnecessary for the other party to prove the fact. Change of domicile is brought about by a combination of change of residence and intention to permanently reside in that country. As it is the common case of the applicant and the respondent that the respondent is domiciled in U.K. the Original Matrimonial Suit in which the application is filed is not maintainable and consequently the application also is not maintainable".
11. Learned counsel for the applicant relied on Wright. v. Wright, AIR 1931 Cal.383, wherein it was observed that it is of the highest importance that in cases under the Act the question of domicile should be treated with care, for, unless the parties to the marriage are domiciled in India at the time when the petition is. presented, there is no jurisdiction in a District Court to dissolve the marriage. The same view has been reiterated in Cresswell v. Cresswell, AIR 1933 Cal. 524 and also in Nihal Chand v. Pritam Singh, AIR 1932 Lah. 468.
12. Learned counsel for the applicant relied on Mitsubishi France v. Neyveli Lignite Corporation Ltd., , a Bench decision of this Court, which relates to a suit to recover damages for breach of contract filed in High Court. The defendant raised a plea for want of jurisdiction in High Court. It was held that the said issue should be tried as a preliminary issue. Similar view has also been reiterated in M/s.H.A.C.Products Ltd. v. Mohd, Argobasi Enterprises, that under Order 14, Rule 2 any point pertaining either to the jurisdiction of the Court of a law which bars the suit has to be tried as a preliminary point. The normal rule is that the Court shall pronounce judgment on all issues, which mandate, however, is subject to the provisions of sub-rule (2). It is essentially based on an object which has been deliberately introduced by the amendment Act, 1976 in order to see that the lie unnecessarily is not protracted and would not cause any harassment to the parties" if it could be decided that lis itself is not maintainable in the Court and thus avoiding the avoidable litigation in the Court. The same view has also been reiterated in Kranti Mohan v. Fatehchand Vasuram, , State v. B.Srinivasulu, and also in Mahabir v. Babu Lal, .
13. Per contra, learned counsel for the respondent relied on Moina v. Amardeep, , wherein it was observed that since strong evidence was required to prove abandonment of domicile of origin and the best evidence that could be had was of the individual himself, it was held in the case that merely, because the wife deposed that the husband was a permanent resident of Canada he could not be treated as not of Indian domicile. There Is no dispute about this proposition but it has no application to the case on hand in view of the averments made by the respondent in para 3 of the main petition itself. Reliance was also placed upon our Gopal Roy v. Sipra Roy, that domiclie of choice is dependent of (a) residence and (b) intention of person who resides and it is a question of fact in which intention plays a vital role.
14. The decisions relied on above clearly indicate that the question of jurisdiction can be tried as a preliminary issue and although it is a mixed question of fact and law, in view of the clear averments made in the main suit itself is not maintainable before this Court. As adverted to, the language employed in section 2 of the Indian Divorce Act, wherein it is categorically stated that the parties to the marriage should domicile in India is a condition precedent for filing a petition before this Court. When once it is admitted by the respondent himself that the applicant is domiciled in United Kingdom, I am of the view that the question of jurisdiction goes to the root of the matter and it can be tried as a preliminary issue. When once the court comes to the conclusion that the main suit itself is not maintainable on the ground of jurisdiction, it is not necessary that the parties have to be directed to undergo an ordeal of the trial in respect of other issues also." Hence, the point is answered accordingly.
15. For the reasons stated above, the application is allowed and O.M.S.19 of 1993 is dismissed as not maintainable.