JUDGMENT
1. The petitioner Alfred Stanley Barett filed a petition under Section 10, Divorce Act for dissolution of his marriage with the respondent, Mrs. Kathleen Barett, on the ground of her adultery with the co-respondent Lachhmi Chand Srivastava. It was stated that the parties were married on 19th August 1937, at the Catholic Church, Cawnpore, that they were domiciled in India and that both of them were Roman Catholic Christians. The petitioner alleged that he and his wife lived together happily till 1938 when he noticed a strange change in the behaviour of his wife and that she finally left him in October 1944 from Partabgarh where the petitioner was posted. The petitioner alleged that there was an exchange of love letters between his wife, the respondent, and the co-respondent; that his wife stayed at the Royal Hotel, Lucknow, with the co-respondent on 31st August 1943; that both of them stayed at the Hotel under the name of Mr. and Mrs. S. P. Singh; that the respondent and the co-respondent used to go about in trains as husband and wife and that after his wife left him in October 1944, the petitioner put in an advertisement in the Statesman of 4th July 1945, disclaiming any responsibility for the debts incurred by his wife as she had left his protection. It was stated that the cause of action accrued on 31st August 1943 and on other dates at Lucknow. A decree for dissolution of marriage was prayed for and damages to the extent of Rs. 10,000 were claimed against the co-respondent.
2. The respondent, in spite of an opportunity having been given to her, did not file any written statement, but her counsel contended before the Court that on the allegations in the petition the trial Court, that is, the District Judge of Lucknow, had no jurisdiction. In this he was joined also by the learned counsel for the co-respondent. Adultery on 31st August 1943, was denied.
3. The following four issues were framed:
(1) Whether the respondent committed adultery with the co-respondent at the Royal Hotel, Lucknow, on 31st August 1943.
(2) Whether there is any connivance or collusion between the petitioner and the respondent No. 1?
(3) Is the petitioner entitled to a decree for damages against the co-respondent? If go, to what amount?
(4) Has this Court jurisdiction to try the suit?
4. On issue No. 1 as to adultery, the finding was in the affirmative.
5. On the issue of connivance and collusion the answer was in the negative.
6. On the question of jurisdiction the learned trial Court held that the petitioner and his wife last resided together at Lucknow, and so the Court had jurisdiction. The Court accordingly awarded on 17th December 1946, the petitioner a decree for dissolution of marriage subject to confirmation by the Hon'ble Chief Court (now High Court of Judicature at Allahabad, Lucknow Bench). He also granted against the co-respondent a decree for Rs. 5,000 as damages along with all the cost of the suit. The learned District Judge sent up the proceedings to this Court for confirmation of the decree for dissolution on 9th July 1947. The petitioner himself on 10th/12th July 1947 applied for confirmation of the decree for dissolution of the marriage.
7. On behalf of the co-respondent it has been strenuously urged before us that the finding of the learned District Judge that the petitioner and his wife last resided together in Lucknow was wrong and that from the allegations in the plaint it was clear that the last residence was in Partabgarh, and that in these circumstances the District Judge of Lucknow had no jurisdiction but the District Judge of Rae Bareli had jurisdiction. This is a question which goes to the very root of the matter and it must be decided first. Under Sub-section (3) of Section 3, Divorce Act "District Court" means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together. In the petitions under Section 10, Divoce Act, the petitioner has given his permanent residence at Dehra Dun and his residence at the time of making the petition at Police Lines, Lucknow. In the same petition he has given the permanent (sic) of his wife air Cawnpore and her residence at the time of the petition at Calcutta. It is clear therefore that the petitioner and his wife were at the time of the petition not living within the jurisdiction of the same District Judge, that is, the District Judge of Lucknow. In these circumstances it was for the petitioner to show, to give jurisdiction to the District Judge, Lucknow, that he and his wife last resided together in Lucknow. Having considered the evidence on the record we are satisfied that the parties last resided together not in Lucknow but at Partabgarh.
8. The petitioner stated that he was stationed at Lucknow for over a year from 1941, to October 1942, and that he was then transferred to Partabgarh. When he went to Partabgarh his wife did not accompany him, but she stayed behind in Lucknow with the wife of Inspector Ayub Hasan Khan at Hazratganj Kotwali. He stated that he used to come to Lucknow off and on and stay for 3 or 4 days with his wife and that his wife also used to go and stay with him off and on at Partabgarh and sometimes she used to stay with her father in Cawnpur. He also stated that in October 1944, he was transferred to Sitapur and on his way to Sitapur be stayed together with his wife in Lucknow for three days and then his wife left him and went away to Cawnpur. Inspector Ayub Hasan Khan also stated that when the petitioner was transferred to Partabgarh he left his wife at the house of the witness and that the petitioner used to come off and on to Lucknow and stay with his wife and that his wife also used to go to Partabgarh and stay with him. He also stated that he himself was transferred from Hazratganj Kotwali to Police Station Mandison in November 1943 and that after his transfer the respondent went to stay with some evacuee in Lucknow. Babu Khan a witness for the petitioner, who used to be in the service of the petitioner, and his wife, also stated that, after the petitioner was transferred to Partabgarh, his wife the respondent continued to live in Lucknow at the Hazratganj Kotwali. There is no evidence to the contrary to show that after the petitioner was transferred to Partabgarh the respondent did not live off and on at Kotwali Hazratganj, Lucknow. The story of the petitioner that be and his wife last resided together for three days in Lucknow while he was on his way to Sitapur on transfer cannot, however, be accepted. The petitioner is the only witness who speaks about it. Ayub Hasan Khan states that some time later, that is, after October 1944, when the happened to meet the petitioner in Partabgarh the petitioner had told him that while on his way to Sitapur on his transfer he had stayed with his wife in Lucknow. This sort of story is really no independent corroboration of the fact that the petitioner and his wife stayed together last in Lucknow in October 1944. The whole story about this last stay together in Lucknow appears to be an after-thought and invented when the issue of jurisdiction was raised. In the petition for divorce in para. 2 it is clearly stated that the petitioner and his wife last resided together in Partabgarh and that it was from there that his wife left him. This statement in the petition was specifically brought to the notice of the petitioner. He admitted that he had verified the contents of the petition, but he says that possibly he did not notice the contents of para. 2 due to worry and confusion. We cannot possibly accept that explanation. We are in the circum-stances satisfied that the petitioner and his wife, the respondent, resided together last at Partabgarh. Accordingly, the District Judge who has jurisdiction in that place, namely, the District Judge of Rae Bareli, is the one who had jurisdiction to try this case. The decree of dissolution, therefore, given in this case has been given by a Court having no jurisdiction. The decree is in the circumstances a nullity and we cannot confirm it. The reference for confirmation and the petition for confirmation must accordingly be rejected.
9. On behalf of the co-respondent it is urged that if we were not confirming the decree for dissolution then the decree in so far as it relates to the damages should also be set aside. On behalf of the petitioner it was, on the other hand, urged that the decree for dissolution had nothing to do with the decree relating to damages, that if the co-respondent thought that the decree for damages was bad the law had provided him with a right of appeal under Section 55, Indian Divorce Act and, as no appeal has been filed, this Court should not look into the decree so far as the question of damages was concerned. The learned counsel for the co-respondent relied upon Kyte v. Kyte, 20 Bom. 362. In that case also it was contended that the decree having awarded damages against the co-respondent, and he not having appealed on the question of damages, the High Court could only deal with that part of the decree which dissolved the marriage. It was, however, held--overruling the objection--that the Court had the fullest power to deal with the case according as justice might require, including the award of damages by the Court below. The learned Judges purported to follow Ravenscroft v. Ravenscroft, (1872) L. R. 2 P. 376 : (41 L. J. Mat. 28) Its head note is as follows;
"In a suit for dissolution of marriage heard before the Court and a common jury, a verdict was found against the respondent and co-respondent for adultery, and damages were assessed. A decree nisi was there-upon made with coats against the co-respondent. The queen's Proctor intervened; and ultimately it was proved that the petitioner had also been guilty of adultery. The Court reversed the whole decree nisi including the order for costs, and dismissed the petition."
In the body of the judgment at 378 occurs the following passage:
"Then it was said that the reversal of the decree nisi ought not to affect the question of damages, and that the petitioner should have time to apply to the Court for an order that they be paid into the registry. As that is not before me at present, I need say nothing about it; but to save the parties having to argue the matter over again on a subsequent occasion, I will give my opinion now."
The Judge Ordinary finally held:
"I think, therefore, that the husband has no legal right to the damages; and that even if an order were made for the payment or application of them, the Court would certainly not in this case direct that they should be paid to him.
The decree nisi will be entirely reversed, and the petition will be dismissed."
It will be noticed that, this English case is baaed on the Matrimonial Causes Act, 1857 (20 and 21 V. C. 85) and Matrimonial Causes Act, 1860 (23 and 24 V. C. 144). The Bombay authority was followed later in Charles Wakehearst Peyton v. Mrs. Ada Peyton, A. I. R. (24) 1937 Lah 417 : (169 I. C. 654 S. B.). The learned Judges there gave no reasons except to say that they were following the view in Kyte, 20 Bom. 362. It seems to us that the English precedents cannot help us in the present case as the English law iw not the same as the Indian law. The procedure instituted by Section 17, Indian Divorce Act is a new procedure which has no parallel in English law and is specific in itself and contains a specific procedure for confirmation of a decree passed by a District Judge. In the Matrimonial Causes Act, 1857 (20 and 21 V. C. 85) and Matrimonial Causes Act, 1860 (23 and 24 V. C. 144), there is no procedure for trial of petitions of divorce by any Court like that of a District Judge and for confirmation of such a decree by the High Court, Section 17, Indian Divorce Act provides that the decree for dissolution of marriage passed by the District Judge shall be subject to confirmation by the High Court. The procedure necessary for the purpose is described in that section. The only matter dealt with in the section is the matter relating to the dissolution of marriage and nothing mere. Under Section 34, Divorce Act, it is permissible for the husband either in a petition for dissolution of a marriage or in petition to the District Court or High Court limited to such object only, to claim damages from any person on the ground of his having committed adultery with the wife of such petitioner. The, Divorce Act does not require that the order regarding damages should be subject to confirmation by the High Court if passed by the District Judge. If anybody is aggrieved against the order, the remedy by way of appeal has been provided under Section 56. In these circumstances we respectfully disagree with the view expressed by the Bombay High Court in Kyte v. Kyte, 20 Bom. 362, which was followed later by the Lahore High Court in Peyton v. Mrs. Ada Peyton,( A. I. R. (24) 1937 Lah. 417 : (169 I. C. 654 S. B.). In our opinion, we cannot look into the validity or propriety of the decree for damages in confirmation proceedings without any specific appeal by the aggrieved party against such a decree.
10. The result is that we set aside the decree of the learned District Judge in so far as it relates to the dissolution of the marriage. We leave the decree for damages and costs untouched. The petitioner is directed to seek his remedy, if he wants it, in the proper Court. The parties shall bear their own costs incurred in this Court.