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8. The definitions of "alien" and of "alien enemy" are given in vol. I of Halsbury's Laws of England (Hailsham Edition). An alien is a person who is not a British subject (para. 750). A British subject is a person who is a natural, born British subject, or to whom a certificate of naturalisation has been granted, or who has become a subject of His Majesty by reason of any annexation of territory, or who is the wife of a British subject while he remains a British subject (para. 751). An alien enemy is one whose sovereign or state is at war with the Sovereign of England, or one who is voluntarily resident or who carries on business in an enemy's country even though a natural-born British subject or a naturalised British subject (para. 754).

'The doctrine that the domicil is necessarily that of the husband...is founded on the duty of the wife to live with her husband, but also on the presumption that he will be faithful to his marriage vow' Le Sueur v. Le Sueur (1876) 1 P.D. 139 at p. 141). Applying this e reasoning, Sir B.J. Phillimore expressed the opinion that after the husband's desertion the wife may acquire an independent domicil; and see Dolphin v. Robins (1859) 7 H.L.C. 390, per Lord Cranworth, at pp. 416-419.

We consider it sufficient to say that the footnote does not support the argument and that neither Sir Robert Phillimore nor Lord Cranworth have said anything upon which an argument, that as soon as the husband chooses to desert his wife the domicile which the wife has acquired as a result of her marriage ceases to exist and her pre-marriage domicile automatically comes into existence, can be rested. As has been stated in the footnote itself, all that has happened is that an opinion has been expressed that after the husband's desertion the wife is at liberty to acquire an independent domicile, and not that she goes back to her own domicile by operation of law. It is further to be noted that, even if that opinion is looked upon as settled law, the independent domicile which the wife may acquire need not necessarily be the domicile which she had before her marriage. We have examined both the cases mentioned in the footnote relied upon and we are unable to see that there is anything in those cases which can support the argument advanced before us. Reference may in this connexion be made to the elaborate and instructive judgment of their Lordships of the Privy Council in Attorney-General for Alberta v. Reata E. Cook (1926) 1926 A.C. 444. The second argument of Mr. Mukhtar Ahmad was that the plaintiff-respondent has been interned by the Government of India and must therefore be now treated as an alien enemy. The first answer to this argument is that there is nothing on the record to substantiate the allegation that the plaintiff-respondent has been interned. In the second place, we are not able to see what justification there is for the contention that the mere fact--if there be such a fact--that a person has been interned converts that person into an alien enemy. Learned Counsel has sought to derive support for his proposition from a sentence in the judgment of Walsh J., in Angelina Reiffsteck v. Joseph George Reiffsteck (17) 4 A.I.R. 1917 All. 374. That was a case in which the wife had petitioned this Court for judicial separation on the grounds of cruelty and desertion. In the course of the proceedings the wife applied for an order directing the summons, together with a copy of the petition which had been filed for judicial separation, to be sent to the Divorce and Admiralty Division of the High Court of Judicature in England for transmission to the foreign office for service upon the respondent who was a German. The learned Judge stated in his order that the wife was of course a German by reason of her marriage and that he had some doubt as to whether he ought to make an order in her favour, she being the subject of a state at war with Great Britain. The learned Judge then referred to the decisions in England and to Section 83, Civil P.C., and proceeded:

The petitioner is carrying on business on her own account in Lucknow in the name of her husband, and I think I am entitled to take judicial notice of the fact that she has not been interned and is therefore residing in Lucknow with the permission of the Government of India.

It is the latter half of this sentence on which reliance is placed, the argument Being that the present is a converse case and that as the plaintiff-respondent has been interned she must be treated as an alien enemy. We are not able to see how the observation of Walsh J. quoted above can support the argument presented to us. Learned Counsel was also not able to make it clear to us what, according to him, should be done even if it is taken for granted that the plaintiff-respondent is an alien enemy. He had to concede that all that Section 83, Civil P.C., lays down, so far as this point is concerned, is that alien enemies residing in British India without the permission of the Governor-General, or residing in a foreign country, shall not sue in the Courts of British India, and that it is settled law that an alien enemy is entitled to defend if any proceedings are instituted against him. Even if the respondent is an alien enemy, it is Mr. Mukhtar Ahmad's client who has instituted an appeal against her. Mr. Mukhtar Ahmad admits that the respondent is entitled to defend the appeal. He argues, however, that even though the respondent must be allowed the right to defend the appeal, the decree of the Court below must be set aside and the appeal of the defendant must be allowed and the suit dismissed on the sole ground that the respondent is an alien enemy. This is a position which we have not been able to appreciate. An alternative argument was put forward to the effect that, in any event, the operation of whatever decree is passed in favour of the respondent should be postponed until after the termination of the war. No authority has been cited in support of this contention and, in our opinion, it has no force.

10. It may be mentioned that by the time the respondent's arguments were finished Dr. Sen was instructed by the appellant and he addressed us in reply to the respondent's arguments. He merely endorsed Mr. Mukhtar Ahmad's arguments on the question whether the plaintiff-respondent should be treated as an alien enemy and did not throw any fresh light on the point.

11. As has already been stated, the whole argument really fails on the preliminary ground that there is absolutely no foundation for the allegation that the respondent is an alien enemy. Learned Counsel for the plaintiff, respondent has referred to the illuminating judgment of Lord Reading in the leading case in Porter v. Freudenberg (1915) 1 K.B. 857. In view of the fact, however, that there is nothing to show that the plaintiff-respondent is an alien enemy, we do not consider it necessary to say anything further on the point.