Earnest Charles Ormond, J.

1. This is a suit filed on the original side of this HighCourt by the plaintiff claiming a declaration under S. 42, Specific Relief Act,Act IX [9] of 1877, that the marriage between the plaintiff and the defendanthas been dissolved and that the plaintiff is not the wife of the defendant. Itis an undefended suit in which the facts are simple and in a small compass, butit raises complicated questions of law, the decision of which is offar-reaching importance. Amongst these are general questions, to what extentthis High Court is bound to, or entitled to, administer the personal law of theparties in a suit, where there is a question relating to marriage; and on whatprinciples; also special questions relating to both Hindu and Mahomedan law. Itherefore thought it proper that, in addition to the argument of counsel forthe plaintiff, the Court should have also the assistance of counsel as anamicus curiae; and on my invitation the Advocate-General, Mr. S.M. Bose, wasgood enough to appear as an amicus curiae. Then at a later date when theAdvocate-General was away from Calcutta, when final argument on certain furtherpoints in respect of Hindu law had arisen from the argument of Mr. S. Chowdhuryfor the plaintiff, I invited Mr. S.B. Sinha, a well-known advocate of thisCourt who has had considerable experience in matters of Hindu law, to appearand address me further as an amicus curiae in the matters of Hindu lawinvolved; and he was good enough to accede to my request. I have to thank theAdvocate-General and Mr. S.B. Sinha for the trouble they have gone to for thepurpose of assisting the Court, I should also add that Mr. S. Chowdhuryappearing for the plaintiff has been at great pains to go through the wholematter very carefully and assist me in every possible way.

2. The plaintiff and the defendant were legally marriedaccording to Hindu rites at Krishnagar in the district of Nadia in Bengal on31st July 1941. Both parties were then Hindu Brahmins.

3. The plaintiff is the only child of an educated andcultured Brahmin gentleman who was previously Manager in the office of theCourt of Wards. He for some time lived at Krishnagar. He is the nephew of awell known Bengali author, the late Mr. D.L. Roy. The defendant, who has notappeared, is another Hindu Brahmin who lived at a village in Joyrampur in thesame district; and was selected by the plaintiffs father to be her husband.Both plaintiff and the defendant had lived there all their lives; as theirparents had before them. The petitioner has said in evidence, that she has nointention of living anywhere outside British India; and has spoken also as tothe defendants domicile. It is clear without any room for any suggestion ofdoubt that both parties were at the time of their marriage and at the time ofthe institution of the suit, and in fact have been all their lives, and arestill, of Indian domicile. There is no question involved in this case withregard to the parties, or either of them, of any foreign domicile or anydomicile other than India or any change from their Indian domicile. I haveemphasised this point because there seems to be a vital difference between thiscase and for example the case of Noor Jehan v. Eugene Tiscenko, 45 C.W.N. 1047at p. 1052 : (A.I.R. (28) 1941 Cal. 582) [LQ/CalHC/1941/3] as to jurisdiction.

4. The plaintiff was apparently little more than 15 years ofage at the time of her marriage. Though her own evidence as to age would makeher rather younger than that, her father whose evidence I accept, has statedthat she was over 18 years of age on 12th September 1944; which would make herabout 15 years of age at the time of her marriage.

5. At the time of the marriage the defendant was unemployed.The plaintiffs father got him employment in the Krishnagar Electric Supply Co.at Krishnagar. The defendant did not after the marriage seek to establish ahousehold of his own. Nor did he take the plaintiff to live with his ownfamily. But he lived as, what is in India sometimes described as, a"domesticated son-in-law" with his wife the plaintiff in hisfather-in-laws house. The defendant was in fact a man of no means of his own.The plaintiffs father has stated in effect that he chose him as the husband ofhis daughter thinking, that as she was his only child, he (the father) wouldmake a home for her and her husband; and, as he puts it, "would keep themboth with him, and train them up." At no time after the marriage did thehusband contribute anything towards the maintenance of his wife. In fact whileliving with his father-in-law he paid nothing towards the cost of board andlodging either on his wifes account or on his own account.

6. The defendant from immediately after the marriage usedcontinuously to be demanding money from his wife, the plaintiff. In order toget it for him she used secretly to ask her mother. Then, as the demandsincreased, the plaintiffs mother reported the true position to the plaintiffsfather. He then took strong exception to these demands; and refused furthersupplies. When the defendant found that he could not obtain more money from hiswife, he at once began to treat her badly. He used to abuse her and frequentlystrike her and kick her. Out of fear at that time she kept this ill treatmentsecret from her parents.

7. In about January 1942, about six months only after themarriage, the defendant took his wife with him for a visit to his own family atJoyrampur. On that occasion she stayed there about seven days. While there herhusbands people, and in particular her mother-in-law, used to ask her to writeletters to her parents for money. When she could not procure any money for themthey treated her very badly and with cruelty, confining her in her room, andcurtailing her food. After that visit her husband returned with her to herfathers house. A month or two after their return, one day the husband (thedefendant) beat her or struck her so violently that she fell down senseless.Her father found her in this condition, made enquiries into the matter and thenfound out how badly and cruelly her husband was treating her; both as to theway in which he was harassing her for money and as to how he used to beat her.The plaintiff has said that it was at the time of this incident that she foundit was no use keeping the matter secret any longer; so she then told her fathereverything.

8. Towards the end of June 1943 the plaintiff paid a secondvisit with her husband to his family for the occasion of the marriage of herhusbands brother. On that occasion she stayed about eight days there. On thatoccasion also her husband and his family pressed her for money. When they didnot get it, they began to treat her with cruelty. They beat her, and took herornaments away from her; and turned her out of the house. She sent a message bya person who was a daily passenger to Krishnagar, to her father. Her fathercame at once himself, and took her away with him back to his own house. Herhusband did not accompany her. He came however later, soon after, and suggestedto her father that he (the defendant) should take her back again to Joyrampur.But out of fear she did not agree to go with him. The defendant stayed only theday at Krishnagar on that occasion. Since that date the plaintiff has continuedto live alone with her father. And the plaintiff and the defendant have neverlived together since.

9. It will be borne in mind that, the evidence in this casebeing partly given in English, which the plaintiff and her father do nothabitually speak, and partly translated, certain phrases have, I think, in thetranscript of the evidence been recorded, if not with a shade of inaccuracy, atleast in rather more stilted wording than actually persons would habitually usein English, when describing events of the same sort. The word,"assaulting" has repeatedly been used in the transcript in placeswhere I understood the witness to mean, "beating." These minor mattersof phrasing are only such as those for which slight allowance often has to bemade in the ordinary every day business of these Courts. There is really nodirect question arising in this case as to cruelty. That was why I did not taketime in pursuing the matter further to have the record minutely connected oramplified, so as to clear up the exact meaning of the witnesses answersprecisely. I need only say, after having seen these witnesses, were itnecessary for the decision of the case, I would definitely hold on the evidencegiven, as a finding of fact, that there was ample proof of cruelty in thiscase; such as would constitute a matrimonial ground for divorce in any systemof law, in which divorce is granted for cruelty either as a sole ground or asone of other grounds. I should also have held, that in view of such cruelty theplaintiff was excused from her obligation to live with her husband; who thushas in fact deserted her at least since June 1943. I have gone in some detailinto the facts as to the relationship of the parties and also into thetreatment of the plaintiff by the defendant; since these may have some bearingon the exercise by the Court of its discretion under S. 42 in the event of myholding that the Court has power to make a declaration as claimed in this case;and if there is then any room for refusing the exercise of its discretion insuch a matrimonial case as this.

10. On 12th September 1943 the plaintiff was converted toIslam. Both she and her father as well as the Imam of the Nokada Mosque, whereshe was converted, have given evidence of her conversion having taken place.

11. It has been pertinently observed by Lord MacNaughtenthat no Court can test or gauge the sincerity of religious belief: Abdul Razackv. Aga Md. Jafeer Bindani, 21 I.A. 56 at p. 64 : (21 Cal. 666 P.C.). It hasalso been held that in arriving at a decision, whether there has or has notbeen a conversion, the motives of the convert are immaterial: see Mt. RoshanBibi v. Khuda Buksh, I.L.R. (1988) 19 Lah. 277, in particular at pp. 285 and286 : (A.I.R. (25) 1938 Lah. 482). See also the several case referred to in thejudgment in that case. Reference may also be made on the subject of whatamounts to religious belief and how it should be proved to In re: Samuel,(1942) 1 Ch. 1 at p. 174: (111 L.J. Ch. 6) and the same case on appeal to theHouse of Lords reported in (1913) A.C. 320.

12. The evidence that the plaintiff herself considers thatshe has changed her religion and as to the fact of the process or rite ofconversion having been performed is uncontradicted and clear. In my opinion,therefore, on proof of these facts alone I should hold at once that there hasbeen an effective conversion with all the legal consequences that follow fromsuch conversion; and I should so bold without going at all into the question ofmotives for the conversion or their relative religious or ethical values; andin my view it is not open to me to do so.

13. I will state nevertheless briefly the facts of thepresent case relating to the conversion; both as to the manner in which it wasmade and as to the reasons given for it by the plaintiff herself, I do this notonly in case it may be thought on a view, opposite to mine, that it was properto examine the motives; but also in case it may be thought necessary toconsider all the circumstances surrounding the conversion, which may have abearing on the exercise by the Court of its discretion, if any question ofdiscretion in this case arises.

14. Regarding her reasons for making up her mind to be converted,the plaintiff has said that she had discussed matters concerning Islam with herfriends. And that when she was so badly treated by her husband, and did not getany sympathy from the Hindu society to which she belonged, some of her Muslimfriends began to talk to her about their religion; and also gave her books ontheir religion to read. She says also that at that time she began to thinkfuriously, that if she lived in such a state as she was in at that time, shewould be a perpetual burden to her parents. Then, as she puts it, she"came to the conclusion that in the Muslim faith and society the positionof unfortunate girls like herself was not so low as that." She says, ineffect, she found that in Muslim society, there existed a sufficient degree offreedom and independence of thought and action for women. (The way in which theinterpreter has translated it is, "sufficient freedom to girls to actindependently.") She says that first she discussed these mattersconcerning the Islamic religion with Muslim ladies who had been her schoolfriends, some of whose names she has mentioned. Then afterwards she studied thereligion of Islam with certain men friends of her father as well. She says thatshe told her mother of her intention to be converted to Islam. Her mother inher turn told her father. That her father at first objected. But after holdinglong discussion with her, when he found that she was adamant in her resolution,he gave her consent.

15. Her father, who gave evidence in a very straightforwardmanner, said that at first be hesitated and objected: but the plaintiff toldhim "straightway" (meaning perhaps "straightout"):

you have spoilt my life once, you have no right to spoil mylife any longer, you should allow me in all fairness to act according to mydetermination.

Ultimately he agreed. And in fact he himself took her fromher home in Krishnagar to the Nakoda Mosque in Calcutta and helped her to makearrangements for her conversion; and was present with her himself at theoccasion of her conversion.

16. The ceremony of conversion took place at the NakodaMosque in Calcutta, which is within the ordinary civil jurisdiction of thisCourt, before the Imam of the Mosque. She went through certain solemn andcareful formalities. She voiced her expression of the Muslim faith by recitingthe Kalma Shahadat (the Muslim confession of faith) as is recorded in thecertificate, a translation of which was tendered, accorded her by the Imam ofthe Mosque and signed by him. That itself establishes a change in religiousfaith, if this is to be treated at all as a matter which can be kept separatefrom a mere change from one social system to another. The language of thecertificate was as follows:

No. 657, 1944, Present residence, Krishnagar. In the name ofGod the merciful the compassionate. I declare to this effect that Atreyee Devidaughter of Birendra Lal Roy, age 18 years of Krishnagar, without any force orcompulsion, of her own will and accord having expressed her disgust at theBrahmanic religion, renounced the game, and recited the Kalma Shahadat (theMoslem confession of faith) and embraced the Islamic religion. The Islamic nameof Ayesha Bibee has been given to her. Musulmans should henceforth behavetowards her as a Mussulman, and teach her the injunctions of the Islamicreligion (precepts like prayer and fasting etc). I have granted this sanad(certificate) that it may be of use in time. May the God Almighty keep her firm(in the path of religion). (Signed by the Iman-Jamai Musjit). Nakoda Mosque, Calcutta,dated the 11th of the month of Ramazan year 1362 of the Hejira 12th September1942 (sic).

17. The words, "in time" obviously mean, in timeof need. The translation of the copy annexed to the plaint states "so thatit may come to use when necessary." The figure 2 in the typed copy of thedate is a mere clerical error for 3.

18. At the same time she also made a signed declaration,which was witnessed and signed also by a recognised official of the mosque andregistered among the records of the mosque. A copy of this declaration isannexed to the plaint and reads as follows:

Declaration-I Atreyee Debi, daughter of Birendra Lal Roy, anative of Krishnagar, and of the age of 18 years, do hereby declare on solemnoath that I am neither induced or influenced nor persuaded or compelled torenounce my present faith, but the teachings of Islam having impressed upon mymind I this day 12th September 1943 embrace the religion of Islam on my ownfree will in the presence of the Imam of Nakoda Mosque. I do promise that forthe remaining part of my life I shall lead the life of a true Muslim and Ifurther declare from this day I shall be known by the Islamic name of AyeshaBibi - registered in the office of the Nakoda Mosque, (Signed by the Manager,Nakoda Mosque, Calcutta). (Signed by the plaintiff in the name of Atreyee Devi)dated 12th September 1943.

19. It is abundantly clear from the above account of thecircumstances in which the conversion took place and in view of the discussionswith her friends and with her mother and father, and the long journey toCalcutta and the formalities, that the decision was no hasty unconsidereddecision but one come to after due thought and with the full weight of her ownintent. Although the motives were not gone into in detail in evidence, for thereasons given, it can be seen that there were varied threads of motives runningthrough the plaintiffs mind, which led her to take this decision. A change oftheological conviction in the form of a positive spiritual or intellectualprocess of a change in religious or ethical faith or belief is not in the forefront. But it may be recognised, I suppose, as common knowledge, that for greatmasses of the people in India, Hinduism or Islam is not something dependentupon any mental process in which they have exercised their minds, involvinglong sustained deep theological reasoning: any more than this would be the casefor most people in Europe or America. Persons capable of sustained, deep andaccurate reasoning on the ethcis and theology of comparative religions or whohave even the fundamental basic knowledge on which to begin such mentalprocesses are few and far between.

20. It is important, I think, to recognise also that inIndia the social code for conduct in society and the legal principles attachingto it, both in regard to Hinduism and Mohamedanism, are interwoven with, andwrapped up in, the religious side of these systems to an extent, which in manyrespects goes much deeper than would be the case as between any social andlegal system on the one hand and any religious system on the other, I think, inmany European or American countries. In England for example where the legalsystem is separate from the religious system the position is very different. InEngland it is possible for the view of the law Courts to differ in particularrespects from the view of the Church on matters of marriage. In India the legalsystem and the religious system of Hinduism are largely the flame thing. Oneillustration will suffice. If this were not so, the Court could not enforce asthey do the legal principles as to custom in connection with marriages. Proofof custom, which, be it noted, will be essentially in fact religious custom,operates as law. So also with the religious system and legal system of Islam:the two are inextricably inter-woven and operate substantially as one. Itbecomes thus extremely difficult in India on matters of personal law orpersonal religion in many cases to say where the religious principles end andwhere legal principles begin. Take for example the principle of inheritance.These are laid down in the Koran itself having behind them all the force andthe full religious sanction of being essentially part of the principle of thereligion of Islam. But they are equally also essentially part of thefundamental principles of the law administered in the law Court throughoutBritish India to Muslims in cases of succession. The position as it seems to meis the same in regard to the principles of conduct of men and women, whetherMusulmans or Hindus, in relation to marriage and generally in regard to therelationship of women with the rest of society and their position in the socialsystem. These principles for them are as much part of their religion as theyare part of their legal system and personal law; and as much part of theirlegal system and personal law as they are of their religion.

21. The sources of Mahomedan law are the following foursources only: (1) The Koran itself, (2) The Hadis, that is the precepts, actionsand sayings of the Prophet Mahomed, not written down during his lifetime butprescribed by tradition and handed down by authorised persons. (3) The Ijmaa,that is a concurrence of opinion and tenets of Faith of the companions ofMahomed and his disciples, (4) The Kiyas, being analogical deductions derivedfrom a comparison of the first three sources when they did not apply to theparticular case : (See Mullas Mahomedan Law, Edn. 12th p. 24).

22. This is in itself, briefly, enough to show that theprinciples of law enforced among Muslims today are all derived more or lessdirectly solely from their holy book and the holy sayings of the prophetMahomed which themselves form the very basis of their religion. It seems to meimpossible then to say that the principles of social conduct laid down in theseauthoritative sources are not as much part of the Mahomedan religion as theyare part of their legal system. Any principles of conduct by which theplaintiff would be governed in regard to marriage or other social relationshipsaffecting her position as a woman with the rest of human society on conversionto Islam, therefore, would govern her equally with the force of religion aswith the force of law.

23. If she chooses to consider that the principles of conductgoverning the relations in human society of a woman with her fellow men andwomen are superior in merit as ordained under Islam to those ordained underHinduism and chooses to be converted to Islam, principally for that reason,then since those social principles are themselves part of the very fabric ofthe Islamic religion, she is, to my mind, making an effective change ofreligion: and for entirely bona fide reasons: and moreover reasons which it isimpossible not to describe as bona fide religious reasons. To my mind she isjust as entitled to come to a bona fide decision to be converted for thesereasons, as for any other reasons of mystical faith or belief, or any otherreasonings of theoretical theology or intellectual processes, or disputations ofhigher criticism.

24. Apart also from any reasons of preference on the groundof any consideration by her of any supposed superior merit in the social sideof the religious system, I have before me her solemn declaration of adherenceas a matter of faith to the Mahomedan religion. Having seen the plaintiff andher father in the witness-box I am fully satisfied, that, having regard to themanner in which they gave their evidence, in any event in view of thecircumstances of this case, even if it were necessary or proper for the Courtto go at all into the reasons for the plaintiffs conversion (which in my viewit is not proper for the Court to do) I find and hold that the plaintiffsconversion was an effective change from one religion to another, with all thelegal consequences, which may flow from that; and that her conversion in thiscase was made bona fide.

25. This matter of conversion calls for consideration alsofrom another angle. It has been suggested that no matter whether the conversionfrom this point of view was bona fide the Court should not support a Hindu wifein by-passing her obligations under the Hindu law, the obligations of a Hinduwife, by making a detour of conversion. It comes to this: that the Court evenif it cannot undo the conversion as a process having the legal consequencesattaching to it, at any rate acting on general principles of equity orotherwise, should refuse to give any relief in such cases to convertedplaintiff.

26. As to this argument I should say this: that if it werein fact the policy of the Crown or the Indian Government or of the Legislatureto prevent dissolution of marriage or such other possible legal results inconsequence of conversion, such as those which have taken place in this case,then steps should be taken to make the conversion of a Hindu wife illegal, oran offence under the criminal law. If the conversion is legal, if there is nostatutory restriction, then the Court is to my mind free, and not only that butis bound, to give legal effect to its consequences if any. In connection withany question of policy of the Crown in this matter it will not be out of placeto refer to Her Majesty the late Queen Victorias Proclamation as bearing onthis topic, to which I was referred by Mr. Chowdhary. The material extract fromthat Proclamation made in 1857 is as follows. (I quote from speeches andDocuments on Indian Policy 1750-1921 edited by Professor A. Berriedale Keith,Vol. 1 at p. 382):

Firmly relying ourselves on the truth of Christianity, andacknowledging with gratitude the solace of religion, we disclaim alike theright and the desire to impose our convictions on any of oar subjects. Wedeclare it to be our royal will and pleasure that none be in any wise favoured,none molested or disquieted, by reason of their religious faith or observances,but that all shall alike enjoy the equal and impartial protection of the law;and we do strictly charge and enjoin all those who may be in authority under usthat they abstain from all interference with the religious belief or worship ofany of our subjects on pain of our highest displeasure.

27. The freedom of thought and religion inherent in theabove proclamation is, as is well known, and has been the policy of the Crownin the administration of British India since 1858. This freedom of thought andreligion must, as a moments reflection will show, include not only a right ofa person to go on thinking as before without interference, but also to adoptnew or different thoughts to the extent of becoming converted to a new ordifferent religion, if a person so desires, without interference. To forbid orpenalise conversions (whether generally or for a particular class of citizen,such as for example that of married Hindu women), would obviously be aretrograde step inconsistent with the objective of freedom of religious thoughtas declared in the above proclamation; and should not, in my view, be the viewthat the Court should adopt in the disposal of a suit in the absence of veryclear statutory directions. There are no statutory directions preventing theCourt in this case giving effect to this conversion. In view of the clearlyproved fact of conversion this case clearly falls to be decided on the footingthat at the time of her petition, and today, the petitioner is and was aMuslim.

28. The conversion having taken place on 12th September1943, on the next day, 13th September 1943, the plaintiff caused a letter to bewritten to the defendant (a certified copy of which is exhibited) calling uponhim to embrace Islam and concluding:

If I fail to get your opinion in this matter within threedays from this date I shall conclude you are incapable of embracing Islam.

This letter was sent by registered post; and was received bythe defendant on 17th September 1943.

29. On 30th October 1943, the plaintiff caused a secondnotice to the same effect to be sent to him by registered post, with a copyalso under certificate of posting. Then on 4th February 1944, a further noticewas sent: also sent by registered post: this, though tendered to him by thepost office, the defendant refused to accept. The defendant sent no reply toany of these three notices. He has not embraced Islam; and has remained aHindu.

30. On 3rd March 1944, the plaintiff filed the plaint inthis suit on the original side of this High Court. Leave under Cl. 12 wasgranted by the Court because part but not the whole of the cause of actionpleaded or stated arose within the jurisdiction of this Court; and as thedefendant resided outside the jurisdiction.

31. As to jurisdiction it is clear, in my view, that thisCourt has been accorded ample jurisdiction to entertain this suit by virtue ofCl. 12, Letters Patent; and also that the plaintiff has a cause of actionarising under S. 42, Specific Relief Act, which it is within the jurisdictionof this Court to entertain and determine.

32. In Tiscenkos case, (45 C.W.N. 1047 : A.I.R. (28) 1941Cal. 582), which like the present case, was also a suit for declaration underS. 42, Specific Relief Act, although with an alternative prayer for a decreefor dissolution of his marriage, apart from that section, it was held by theCourt of appeal, upholding the judgment of the trial Judge, that, the merefact, that the suit was brought under S. 42, Specific Relief Act, for adeclaration that the marriage had already been dissolved according to thepersonal law of the parties, did not take the case out of the operation of thefundamental principle of private international law, that the Court had notjurisdiction to pass an order having the effect of divorce, if the parties werenot domiciled at the time of the proceedings in the country to which the Courtbelonged.

33. Here as already mentioned the parties are of Indiandomicile. This is an Indian Court. This case is accordingly entirely free fromany objection as to jurisdiction such as was held to be a bar to theentertainment of the suit on the ground of domicile in Tiscenkos case, (45C.W.N. 1047 : A.I.R. (28) 1941 Cal. 582) [LQ/CalHC/1941/3] .

34. Before proceeding it may, however, be pertinent to thequestion of domicile to consider how far, if at all, the ordinary principlesregarding choice of law based on domicile such as commonly operate in case of amarriage, where there is a conflict of laws as between the laws of twodifferent European countries, apply at all to this case. Where there is adifference in the law of a national of one European country from that of anational of another country, and the parties have changed their domicile fromone country to another, it is now well established, that, in an action fordivorce, the law of the domicile of the parties at the date of the institutionof the legal proceedings in Court, is the law which the Court has to apply tothe case. How far is this principle applicable to the present case Domicile asunderstood in the European or American cases is dependent upon geographicalconsiderations. It is dependent upon an intention to remain or live and diewithin a particular geographical area representing a country or state which hasdifferent laws to another. For application of law (where there is room for achoice of one of different laws) to nationals or peoples of India, those samegeographical considerations regarding domicile may apply in certain cases asbetween India itself and countries outside India: that is for a choice of lawdependent either on an Indian domicile or a non-Indian domicile: but not inrelation to any conflict of personal laws inside India. No matter how far aparty may move about inside India, or how much he may change his intention asto the place where he wants to make his home from one geographical area insideBritish India to another, that does not affect his domicile which remains aBritish Indian domicile. In the present case both parties are and have remainedof the same domicile and with the same domicile as each other; yet they arenow, and were at the time of the filing of the suit, of different religious andsocial systems, having each a different personal law. Little help can beobtained from European or American cases, so far as they are based upongeographical domicile. No question of domicile as the basis of any choice oflaw to be applied to this case in my view arises in the present case.

35. The personal law applicable to a person in India, to theextent that it is applicable, will depend not on any geographical location ofthe permanent home of his choice but upon the religious system to which he isattached.

36. It may be remarked that there is one similarity in thisto the doctrine of domicile. While a person is presumed for the purpose of thelaw to have a particular religion from birth, so a man is presumed to have aparticular domicile from birth. He has also the right at his own choice tochange his religion, just as a man has the right at his own choice to changehis domicile. So in both cases the result is, that the personal law by which hewill be governed is to this extent dependent upon his own intention or choice.In view of the policy of freedom of religious thought already referred to it seemsclear, and it follows from this, that every individual must be treated underthe law of British India as having an untrammelled right to change his religionat any time and to his own free choice. What is more, it follows from what Ihave already said that he will then have all the rights and obligationsaccruing to him of the personal law attaching to that religious and socialsystem which he chooses to adopt; with all the legal consequences of itsapplication to himself. He will then be governed by that personal law, eitheras a system of law supplementary to the standard law of British India, where soordained, or as the only system of law governing his case in particular matterseven to the exclusion of the standard law of British India.

37. One important difference, particularly may be remarked,however, between the application of the doctrine of domicile as appliednormally in English Courts between English or European nationals regardingmarriage and the application of the personal law peculiar to a particularcommunity in India. While there is a clearly established principle to beapplied in Courts in England that a wife shall automatically have the samedomicile as her husband, no matter where she may live or intend to live, therecan be, I think, no place for any idea that a wife in India cannot be free toadopt a different religion to that of her husband. The English doctrineregarding geographical domicile of only one common domicile for both husbandand wife has avoided to a certain extent an undesirable result that they mightbe held to be married in one country and not married in another. In certainEuropean countries and in the U.S.A. I understand, this principle of commondomicile for husband and wife is not of universal operation: in parts ofAmerica and also Russia the law provides that an American or Russian womanmarried to a person of foreign nationality and domicile shall so long as she isin her own country retain her domicile irrespective of her husband. If such awoman is married to an Englishman who has an English domicile, and if she thenobtains a divorce in her own country (as a person domiciled in her own countryand through that domicile entitled to have her case governed by the law of herown country though different from the law of her husband) on grounds notrecognised under English law, the Courts in England may not recognise suchdivorce, It follows from that, she would be an unmarried woman in her owncountry but a married woman in England. There may be cases also where a wifemight obtain a decree for divorce in a Court in the United States of Americabut might be refused such a decree by a Court in England. In either system,however, whether the wife is permitted in law a domicile different to herhusband or not, for a choice of law dependent on geographical domicile thegeneral principle is, so far as I understand generally and universally applied,that the law to govern the case will be the law of the country of domicile atthe time of the proceedings rather than at the date of marriage.

38. This principle has been acted upon in numerous casesregarding marriage. It has been put in this way: that legal incidents affectingthe question of dissolution of marriage will be governed by the personal law ofthe parties at the time of the institution of legal proceedings and will not begoverned by the personal law of the parties at the time of the marriage or bythe law of marriage when it took place. This principle has certainly beenapplied and fully established in the English cases where the personal law ofthe parties is dependent upon domicile. This was decided in Nachimson v.Nachimson, 1930 probate 217; and has since been followed in many other cases.(See also Harvey v. Farnie, (1882) 8 A.C. 43 : (52 L.J.P. 33)). The questionthen is, is there any reason why the same principle should not apply in caseswhere the personal law of the parties depends upon a religious system to whichthey are attached Suppose a man and woman who are both Hindus are marriedunder Hindu rites, they then both become Muslims; and one of them files a suitfor dissolution of marriage in India. Is the Court to apply Hindu law, thepersonal law of the parties at the date of marriage or to apply the Mahomedanlaw, the law of the parties at the time of the filing of the suit fordissolution I have found no reported decision of the case in that simple formbut there have been various discussions and observations bearing on this pointin reported cases; and the actual point was definitely decided in the case ofMuncherji Cursetji Khambatta v. Jessie Grant Khambatta, 59 Bom. 278 : (A.I.R.(22) 1935 Bom. 5) [LQ/BomHC/1934/55] , in which is reported both the judgment of the learned ChiefJustice and that of two experienced learned Judges on appeal from his decision.

39. That was a case where a Scotch woman, who was thendomicile in Scotland and professing the Christian religion, married, inScotland and according to the ceremonies requisite under the Scotch law, a man,who was a Muslim domiciled in India, Sometime after the marriage the partiescame to live in India where the woman became converted to Islam. The husband,on a date after that, purported to divorce his wife by talak under Mahomedanlaw. The question was whether this divorce was valid. It was held that it was.The same point there raised is one of the important points for decision in thepresent case. At p. 281 of the cape, while mentioning certain principles of lawas firmly established in the realm of private international law, the learnedJudge makes the following observations:

(3) The status of spouses and their rights and obligationsarising under the marriage contract are governed by the lex domicilii , that isby the law of the country in which for the time being they are domiciled (SeeHarvey v. Farnie (1882) 8 A.C. 43 : (52 L.J.P. 33) and Nachimson v. Nachimson(1930) Probate 217); (4) the rights and obligations of the parties relating tothe dissolution of the marriage do not form part of the marriage contract, butarise out of, and are incidental to, such contract, and are governed by the lexdomicilii (see Nachimson v. Nachimson (1930 Probate 217)).

40. Again at p. 285:

As soon as she took that step, the law applicable toChristiana ceased to be applicable to her, and she became subject to the lawapplicable to Mahomedans and that law entitled the husband to divorce her bytalak.

41. On appeal Blackwell J. deals with the point further atp. 293, where he observes:

The second question is whether the husband could divorce hiswife by talak, she being at the time a convert to the Mahomedan religion. Thisquestion has been discussed but not decided.

Then after discussing the case of Robert Skinner v.Charlotte Skinner, 25 I.A. 34 : (25 Cal. 537 P.C.) and Charlotte Abraham v.Frencis Abraham, 9 M.I.A. 195 : (2 Sar. 10 P.C.) and Mitar Sen Singh v. MaqbulHasan Khan, 57 I.A. 313 : (A.I.R. (17) 1930 P.C. 251), he observed at p. 296 asfollows:

These cases show that in India, personal status, rights andobligations and questions of succession and inheritance are frequently governedby religious creed, and that they may be affected by a change of religion asthey might be affected by a change of domicile. It has been argued for theappellant that the status imposed by operation of law upon persons who marry inChristian form cannot be altered by the voluntary act of the parties. But, if achange of domicile, which is a voluntary act, may result in a change of statusby reason of the application of a different system of law, it is difficult tosee why a change of religion, the domicile remaining unchanged, may not alsoresult in a change of status, if the law to be applied, is then different byreason of the difference of religion.

42. In that case it is to be noted that a considerableweight of the argument was directed to the point that the legal rights andobligations as to dissolution should be judged by the law in which the originalmarriage was made relying largely on the point of the monogamous character of aChristian marriage. It was suggested that for this reason it should not bedissolved under a system of law attaching to polygamous marriages. In spite ofthat distinction that argument was rejected by the Court. In the present casethe original marriage was not a monogamous marriage but one polygamous incharacter. It is material therefore to note that in the present case anyargument on the monogamous character of the marriage has no application; norhave any decisions in such cases as were based upon that consideration. Thisdistinction is important. This was in effect pointed out by the then ActingChief Justice in his judgment on the hearing of the appeal in Tiscenkos caseat p. 479 of the report which begins at p. 465 of the report in 46 C.W.N. :(A.I.R. (29) 1942 Cal. 325 [LQ/CalHC/1941/190] S.B.). The observations at p. 470 show clearly, Ithink, though made obiter to the actual facts of that case, that the learnedActing Chief Justices view coincided with the view taken by the Court inKhambatta v. Khambatta (59 Bom. 278 : A.I.R. (22) 1935 Bom. 5) [LQ/BomHC/1934/55] ; and that if theparties are domiciled in India so as to allow the Indian Court jurisdiction incases where both parties are Muslims at the time of the proceedings the ActingChief Justice would have held that the Indian Courts would be entitled to granta divorce under the Mahomedan law, irrespective of whether the originalmarriage was a Christian monogamous or not. That is to say, the Court would beentitled to administer the personal law of the parties at the time of theinstitution of the suit in adjudicating on a question of the dissolution of themarriage.

43. This is precisely what the Court held in Khambatta v.Khambatta (59 Bom. 278 : A.I.R. (22) 1935 Bom. 5) [LQ/BomHC/1934/55] ; as was observed further byBlackwell J. at p. 297:

.... in considering in a divorce suit in India the questionwhether a previous marriage of one of the parties is or is not stillsubsisting, it seems to me that the Court must apply the law in Indiaapplicable to that marriage, at the time when that question arises.

44. Once it is established, as I consider it clearly is,that the rights and obligations of parties relating to dissolution of marriagedo not form part of the marriage contract, then it must follow, in my opinion,that the Court adjudicating on whether a marriage is dissolved or subsistingmust apply the personal law of the parties at the time of the institution ofthe suit. In a Court in India, where the parties have an Indian domicile, inaddition to such general law of India, if any, as is applicable to the case,the Court will apply the personal law of the religion of the parties, wherethis is applicable to the case.

45. In this respect I respectfully agree with the decisionof the Bombay High Court in the case of Khambatta v. Khambatta, (59 Bom. 278 :A.I.R. (22) 1935 Bom. 5) [LQ/BomHC/1934/55] and with the observations, even if obiter, of the thenActing Chief Justice of this Court, in the hearing of the appeal in Tiscenkoscase, (46 C.W.N. 465 : A.I.R. (29) 1942 Cal. 325 [LQ/CalHC/1941/190] S.B.). In dealing with thepresent case I shall proceed therefore to apply the law applicable to theparties at the time of the institution of the suit rather than the lawapplicable to them at the date of the marriage.

46. The further question then arises, in such a case as thepresent, where one party at the time of filing of the suit is a Hindu and oneMuslim, what personal law is to be administered

47. I will now proceed to consider certain aspect ofMahomedan law as affecting this case, if this Court were to apply Mahomedan lawto the petitioner. After that I will deal with certain aspects of Hindu law;then certain general considerations; and then come to what I conceive to be thedecision.

48. It will be seen that the position under Mahomedan law isdifferent in certain important respects according as to whether the law is tobe applied in a country under Islamic rule or in a country under non Islamicrule. The former is Dur-ul-Islam, and the latter is Dur-ul-Harb. A perusal ofmany of the standard works of Mahomedan law will show that provisions are madein considerable detail for the legal position and rights and status ofnon-Muslims in a Government under Islamic rule. A non-Muslim of a certaincategory living in a Muslim State under the protection of a Muslim Governmentis known as a Moostamin. He has a defined legal status; and there are speciallaws expressly laying down the legal relationship in a Muslim State betweenMahomedan citizens and Moostamins living in the State.

49. A non-Muslim of another category, if he has bysubmission to the Muslim State signified his subject or agreement to abide bythe laws of the Muslim State, is termed a Zimmee. Such persons are then treatedas having cut off their connection with their own Dur in the eyes of Muslim lawand as free to exercise their own religion, and generally to have the same privilegesas their Muslim fellow citizens; and in the character of a Zimmee to havebecome members of the Dur-ul-Islam. As to the position of other foreigners, whoshould come to stay under the Dur-ul-Islam, the strict Mahomedan law is statedby Baillie to be as follows:

If a foreigner should enter the Dur-ul-Islam withoutprotection, he may be slain, or reduced to slavery, or protection may begranted to him. His acts in the meantime are in suspense....

50. And the passage continues giving details of the warningto be given to such persons and what consequences will follow. As an indicationof the difference between the legal system for purposes of Mahomedan law in aMuslim State or country which is Dur-ul-Islam from that in a country which isDur-ul-Harb, it may be noted that all non-Muslims in a Muslim State being partof the Dur-ul-Islam will derive their legal rights in that State from theirlegal status either as Moostamins or Zimmees. The Church and State in a MuslimState in the Dur-ul-Islam are to a great extent thus regarded as one. I havenever heard it suggested that all persons who are, say, Hindus or Englishpeople resident in this country, had only the restricted legal status of rightsof Moostamins or Zimmees in British India as it exist at present.

51. I cannot see how it can rightly be said of the presentBritish Government in India either in respect of the Central Government or aProvincial Government, even if it may allow full freedom of religious thought,and the full enjoyment by Mahomedans of their social culture and theapplication so far as practicable of Muslim personal law, can be correctlytermed a Muslim Government; or how India or Bengal could be said to be a Stateunder Islamic rule, or how either India or Bengal could be correctly classed asforming (within the meaning given to that term under Muslim law) a part of theDur-ul-Islam. On this point reference may be made to Baillie in his note at p.171; he says:

While there was a Mussalman King, in name at least at Delhi,and the revenues were collected under the authority of a firman by one of hispredecessors, and the current coin bore his name, there was certainly someground for the doubt which I have frequently heard expressed by learnedMahomadans whether the territories were so completely severed (that is to say,territories after British occupation) from the Dar-ul-Islam as to have legallybecome Dur-ul-Hurb.

He goes on to observe: "The deposition of the King, andthe assumption of the Government by Her Majesty the Queen, in her ownname" must in his opinion "have removed every trace of this doubtfrom the Mahomedan mind." I respectfully agree with that view.

52. It may be noted that in an old case In the matter of RamKumari, reported in 18 cal. 264 [LQ/CalHC/1891/13] , it was observed in the course of the judgmentat p. 279:

But we cannot hold that British India is a foreign countrywithin the meaning and intention of the above rules (meaning the rules ofMahommedan law), so that a Hindu marriage would here become dissolved by theconversion of the wife to Islam, on the expiration of a certain intervalwithout any notice to the husband.

There appears to have been no detailed argument on the pointnor any reasons given for that conclusion. It is to be noticed also that theCourt there did not come to any opposite finding that India is an Islamiccountry. In the absence of any discussion on this aspect of the matter or anyreason being given, I do not feel bound to follow the conclusion on this pointwhich was only to Borne extent a subsidiary point in the case reported in Inthe matter of Ram Kumari, 18 Cal. 264 [LQ/CalHC/1891/13] . As a matter of mere illustration I maybe permitted to refer to the current constitutional controversy about theproposals of the Muslim League political party, which they have put forwardunder the heading of a proposed establishment of an independent (sovereignState in India to be known as Pakistan. If British India or any part of it werealready Dur-ul-Islam, there could be no room for any such controversy orproposals. The mere fact of the non-existence at present of any area fulfillingthe conditions of the suggested Pakistan is in itself a clear illustration ofthe extent to which present British Government is not a government of Islamicrule. I shall proceed therefore on the basis that British India is notDar-ul-Islam: at least for the matters of law and procedure concerned in thepresent case.

53. In considering, therefore, the Mahomedan law asapplicable to the present case, I propose to take into account the law andprocedure applicable under Mahomedan law in a country which is considered asbeing in the Dar-ul-Harb, that is a country under non-Islamic government, andnot in one which is in the Dar-ul-Islam, a country under the Islamicgovernment.

54. The two principal authorities in the English languagerelied on for application of Mahommedan law for the use in the Courts ofBritish India have been Hamiltons Translation of the Hedaya (1870 Edn.) andBaillies Digest of Mahomedan Law being a translation of the Fatwa-Alamgiri (2ndEdn. 1875). Even if the opinion expressed about the former by the author of thelatter work himself at p. 9 of his introduction is somewhat harsh, (where hequotes the observation of Sir William Macnaughten that "the work is oflittle utility as a work of reference to indicate the law on any particularpoint, which may be submitted to judicial decision") I should neverthelesssay that where there is any conflict of opinion between the two I would preferthe view of the law as set out in Baillies Fatwa-Alamgiri to the other: havingregard to the fact that Baillies work was written for the expressed object ofaffording assistance to Courts in adjudicating on matters, where questions ofMahomedan laws were concerned, and because of the critical care, with which ithas evidently been compiled. For the matters arising out of the present case,however, there would appear no substantial difference.

55. At p. 130 Baillie states as follows:

When one of the two spouses embrace the Musalman faith,Islam is to be presented to the other, and it the other adopt it, good andwell, if not, they are to be separated, If the party is silent and saysnothing, the Judge is to present Islam, to him time after time, till thecompletion of three by way of caution.

and thereafter details are given as to the position ofpersons who are not adults and in respect of the wifes dower.

56. It will be seen that under that passage Islam is to bepresented by the Judge, who is directed to present it three times, (which Itake to be the meaning of the words "time after time till the completionof three by way of caution"). This is in the nature of an ordinaryprecaution concerning procedure to ensure that a proper notice has been given.(The provision is similar to the "three unsuccessful attempts"stipulated for in the practice of this High Court before substituted service ofsummons may be resorted to.) All that is stipulated in effect is that thehusband is given notice to the satisfaction of the Kazi (or Court) in the formof an invitation to him also to embrace Islam to enable him to take that courseif he so desires, As soon as the Kazi is satisfied that he does not desire toembrace Islam, the Kazi may at once pass necessary orders declaring themarriage dissolved; without waiting for any further lapse of time. As I readthat passage, where presentment of Islam is by the Judge in an Islamic country,there is no stipulation for any lapse of time after the conversion of the wifeor her application to the Kazi before the Kazi can declare the marriagedissolved.

57. As I read it, it is important to observe that theseforegoing passages relate to the legal position under Mahomed an law where theparties are in the Dur-ool-Islam and as to the general principles. It isimportant to emphasise the difference between the passage expressed in generalterms and for the normal contingency of the parties being resident inDur-ul-Islam from the passage which nest follows it; which deals with theposition where the parties are in the Dur-ul-Hurb.

58. This next passage is as follows:

When one of the married parties adopts the Mussulman faithin a foreign country, the cutting off of their marriage is suspended for thecompletion of three menstrual periods, whether consummation have taken place ornot. And if the other party should also adopt the faith before theircompletion, the marriage remains subsisting.

In this case no presentment by the Judge is contemplated.Instead of this, the husband is given a fixed period of time running from thedate of the wifes conversion, in which to embrace Islam if he chooses. Therest of the passage I need not quote, since it has no direct bearing to thefacts of the present case. It is, however, fully understandable as throwinglight on the position, where there cannot be a presentation by a Muslim Judge.The whole sense of the passage and the reference more than once to personsgoing out of the Dur-ul-Hurb to the Dur-ul-Islam shows that the procedure isapplicable to a non-Islamic country in contrast to the earlier case of aproceeding in an Islamic country. The result of this is, as I understand it,that the position under Muslim law in India will be that after the conversionof the wife, the marriage is "cut off" that is dissolved after afixed period of time being either the expiration of three menstrual periods ofthe wife or alternatively in certain circumstances (as will be seen from otherauthorities) after the lapse of three months; unless only the husband has,before the expiration of that period, adopted the Muslim faith.

59. Reference to other authorities is to the same effect:See Hamiltons translation of the Headaya at p. 64 and the work of the HonbleMv. Md. Yusuf Khan Bahadur in the Tagore Lectures, 1891-1892 on Moslem Law,1898 Edn., Arts. 2814, in particular, and 2815 which explains and endorses thisprinciple. It will be observed that the passage at p. 65 mentions the reasonfor the difference in the procedure, between that in the Dur-ul-Islam and thatin the Dur-ul-Hurb, where it states (speaking of the position in theDur-ul-Hurb), that

the reason of this Is that Islam cannot be made an occasionof separation (as has been observed) and the requiring the other party toembrace the faith is impracticable, as the authority of the Magistrate does notextend to a foreign land, nor is it acknowledged there; yet separation isindispensable for the removal of evil; the condition, therefore, of separation(to wit, the lapse of three terms of the womens courses), must stand in theplace of separation effected by the Magistrate.

60. In Noor Jehan v. Eugene Tiscenko, (45 C.W.N. 1047 :A.I.R. (28). 1941 Cal. 582) [LQ/CalHC/1941/3] , the learned Judge held at p. 1056 that the properprocedure under Mahomedan law had not been in that case followed: on the groundthat Islam had not actually been presented to the unconverted party by theCourt acting as a Kazi. The learned Judge observes at p. 1056:

The main distinction which has been drawn by the-Muslimjurists is between a conversion which takes place in an Islamic country, where bothparties to the marriage may be brought before the Kazi, and a conversion whichtakes place in a country, which is not subject to the laws of Islam. In theformer case it is laid down in the Hedaya, that Islam is to be presented to theunconverted party by the Kazi and, on refusal to embrace the faith, the Kazimust pronounce a decree of divorce. In the latter case the dissolution of themarriage takes place automatically after the completion of three of the wifesterms because the requiring of the other party to embrace the faith isimpracticable, as the authority of the Magistrate does not extend to a foreignland nor is it acknowledged there.

Since the learned Judge is there noting the main distinctiondrawn by Muslim jurists between the position in an Islamic country wherepresentment has to be made by the Kazi and is a non-Islamic country, where thedissolution of marriage takes place automatically after a period of time (thatis without any presentment), I take it that the objection of the learned Judgeto the proper procedure not having been followed (because of non-presentment ofIslam by the Kazi) was based on a view that India was an Islamic country, Ihave referred to this aspect of the matter and indicated why I am not able toaccept that view. In my view all that was required to be done beforedissolution of the marriage became complete under the Mahomedan law, had beendone in the present case. After the conversion, dissolution will followautomatically without the necessity for any presentment of Islam by either theKazi or any Judge; and the marriage will have become automatically dissolvedafter the expiry of the period of time mentioned in the authorities, eitherthree of the wifes terms or alternatively after three months; and in any eventafter whichever period of time is the longer. I would only add that even had itbeen necessary to hold, that the procedure for presentment of Islam as in anIslamic country was obligatory, I should have considered that direction mighthave been given by myself as the Judge hearing the suit to the Registrar forhim to serve the requisite letters (repeated three times) calling on thedefendant to embrace Islam and notifying him that otherwise on the petitionersclaim a declaration would be liable to be made by the Court of the marriagehaving become dissolved under Mahomedan law. And in such a case as this, ifsatisfied, as I am in the present case that service of the letters had beensatisfactorily effected by the petitioner (or her attorney) himself instead ofby the Registrar, I should have held such service of the notice to have beenlawful and effective as being sufficient to satisfy this Court of the servicehaving been made and as equivalent for the requirements of the Mahomedan law tothe stipulated presentment by the Kazi.

61. It is clear, therefore, in the present case, if thematter were to be governed solely by Mahomedan law, as applicable to thepetitioner herself, that the petitioner is entitled to the declaration askedfor that her marriage with the respondent has been dissolved.

62. Reference to the nature of the separation mentioned inthe authorities of Mahomedan law shows clearly that the marriage is to betreated under Mahomedan law as completely dissolved; and not merely that there issome state of separation of the parties corresponding to the English notion ofjudicial separation by which the marriage itself might legally be said to becontinued though without its full obligations. This is to be noted that theMahomedan law precisely deals with and regulates cases such as this; andexpressly lays down that the marriage itself is dissolved.

63. Before passing to consider the principles of Hindu lawwhich may be said to have a bearing on this case, I should make certainobservations of a general nature. It is clear that Hindu law governs onlyHindus. And it will be seen that there is little practical necessity why the,Hindu law-givers should legislate positively to provide for the dissolution ofa marriage in circumstances such as those of the present case. One majorconsequence attached to dissolution of marriage, according to the conception ofmarriage in European countries, is that the parties are then free to marryagain. Under the Hindu law the husband has always been free to marry again, andhis position in that respect is in no way affected whether the marriage isdissolved in the legal sense of that term or whether it is not. If the wifewere a Hindu, the directions of the Hindu law-givers as to her marrying againwould be of the highest importance to her and indirectly to her husband. But,if, as I have held, her conversion is fully effective and she is no longer aHindu, I find it impossible or difficult to see how she might be affected byany directions given by Hindu law-givers, even if they had chosen to purport togive any directions concerning her. I mention this aspect of the matter asshowing, that there is no necessity to expect to find any express directions inthe Hindu authorities, which have been necessarily compiled for the use andgovernance of Hindus for the dissolution of a marriage in such a case as this,The absence of any such directions in Hindu law may be found, I think not toaffect this Courts rights to declare the marriage dissolved, if Hindu law doesnot contain any positive prohibition of such a marriage being dissolved:provided this Court is afforded the authority to make a declaration of itsbeing dissolved under powers drawn from sources other than Hindu law.Conception of divorce itself is not a focal point on which Hindu law is based.From the point of view of the husband, since he is in any case free to marryagain, dissolution has no bearing on his rights in that respect. In my opinionit is beside the point to consider how far Hindu law sanctions or does notsanction the right of women in the position o the petitioner, who has beenconverted to Islam, to marry again. She is now a Mahomedan; therefore Hindu lawwill have no control over her. Considerations of the principles of Hindu law asaffecting the wife (the plaintiff) would as I see the position only have beenuseful and profitable, if this Court had held that her conversion had fallenshort of full legal effect.

64. The real enquiry must now be centred, therefore, on theposition under the Hindu law of the respondent, the husband; as to his rightsand duties under the terms of Hindu law in relation to the plaintiff. It wouldbe presumptuous of me to seek to lay down any abstruse principles of Hindu lawfor the purpose of the present case; it is not necessary for me to do so.

65. As to the husbands position, the fundamental principlesof Hindu law are, it would appear, clear and without controversy. Takingseriatim his various rights or obligations which normally attach to marriage itwill be seen his position comes to this:

66. Regarding re-marriage this is fully open to him asbefore. Regarding any right of cohabitation with his wife he clearly now canhave none, since cohabitation by a Hindu with a non-Hindu is not allowed. Itwill be recollected the parties are Brahmins. Any cohabitation after theconversion is then clearly and unequivocally forbidden.

67. Regarding the performance of the sacraments which areordinarily performed by married parties under the Hindu law and religion, it isabundantly clear that his wife, since her conversion, can perform none of theusual sacraments for him. He is not entitled to ask her to do so; and he isunequivocally prohibited from sharing in any such sacrament with her when sheis not a Hindu.

68. Regarding the preparation of his food, she can no longertake any part in this nor can he ask her to do so. He is unequivocallyprohibited from taking any food prepared by her.

69. Regarding any future children the wife may have by alater Mahomedan spouse it is obvious no liabilities will attach to thedefendant. The application of any doctrine such as has been at times applied toEuropean marriages, for making children born during the period of a subsistingmarriage to be treated in law as children of the parties to that marriage,cannot, it would seem, affect him as a Hindu with any liability to maintain anychild which may in future be born of the petitioner.

70. Regarding his obligation for maintenance by him of hiswife, it is clear, under Hindu law, that if a wife deserts her husband, thehusband ceases to have any liability to maintain her. It is clear, that wherethe wife has deserted her husband and in addition to that forsaken his religionand his faith, he will no longer be regarded by any Court of law as continuingunder any obligation to maintain her.

71. Clearly there is no right to restitution of conjugalrights in the sense used in relation to a Christian marriage.

72. There remains the only question about which there hasbeen some controversy: whether the Hindu husband, in the position of thedefendant in this case, would be authorised (if he were to make theapplication) to claim custody of his wife after her conversion to Islam. Duringthe hearing I was referred to the case, which is reported in Jamna Devi v. MulRaj, 49 P.R. 1907 at p. 198 : (83 P.L.R. 1908), where it was held that a Hinduwife cannot deprive her husband of the legal rights, which accrued to him atthe marriage, by simply renouncing Hinduism in favour of Islam. There the Hinduhusband brought a suit for custody of his wife: against firstly his wife andsecondly defendant 2 who was a Mahomedan with whom she was residing. Afterargument the Court held that the husband was entitled to the custody of hiswife in spite of the conversion. The whole position, it will be seen from thepassage at p. 201, was based on a refusal to apply Mahomedan law to theposition of the wife. What would have been the legal result if Mahomedan lawhad been applied is clearly appreciated in the judgment, where it was statedthat:

If Mahomedan law is applied the marriage is dissolved by themere fact that the woman is a Mussalman and the man a Hindu; this is notdenied. But it must be taken that at time of marriage the woman, marrying as aHindu, knew and Intended, as her husband did, also that the marriage could inno way whatever be dissolved.

73. It will be seen that this amounts to a statement of aprinciple opposite to that which I have already accepted earlier in thisjudgment. Suppose the parties married as Hindus had both of them becomeconverted to Islam. The trend of the remarks first quoted would seem to showthat the Court in that case, if proceedings had been brought before it fordivorce after the conversion, would have applied Hindu law only (as being thelaw of the parties at the time of marriage) and not Mahomedan law at all to thecase. I have already earlier in this judgment accepted as good law a contraryprinciple that the rights and incidence of the marriage in regard to a claim fordissolution should properly be adjudicated on the personal law of the partiesat the date when the proceedings are brought; and not at the date when themarriage is entered into. In that case the Court applying Hindu law proceededon the basis that the lady was still the plaintiffs wife and on this basisallowed his claim for her custody. Had the Court applied Mahomedan law it wouldhave held she was no longer his wife; and would have dismissed his suit for hercustody.

74. Apart from these considerations, any other case is ofcourse a decision only on the facts of the particular case. In that Lahore casethe Court took the view that there would be not injustice or inequity againstthe wife if the Court ordered her to return to live with her husband, eventhough as indicated at p. 202 it was conceded that, if he remained a Hindu, shecould not live with him as his wife; and could only do so, if, (of which therewas no indication), he proposed to renounce the Hindu religion. In any eventthe Court on the facts of that case took the view that they were justified onthe facts in exercising their discretion to give custody of respondent 1 to thepetitioner. I can only say that on the facts of the present case I would nothesitate in refusing custody of the plaintiff to the husband (the respondent inthe present case), had there been any petition before me for such custody. Itmay be of some interest to observe that in this I would then be doing littlemore than acting on the same lines as in a previous decision in another case ofthis High Court, reported in Muchoo & Ors. v. Arzoon Sahoo, 5 W.R. 235.There a suit was brought by a Hindu to recover possession of his wife firstly,and secondly of the three children who were in her custody, all the childrenbeing minors. The answer of the wife was that the plaintiff having been a Hinduhad become a Christian and that she was not therefore bound to live with him.It will be seen in that case that it was the wife who remained a Hindu and thehusband who became a Christian. All Courts agreed in dismissing his claim forcustody of the wife. So it happens that the report of that case is mainlyconcerned with the disputes as to the custody of the children. There is apassage couched in general terms however at p. 236 as follows:

The pleader for the appellant further argued that no one canbe permitted so to use his right as to deprive any other person or persona oftheir rights. For instance, he says, a husband who becomes a Christian will notbe permitted to claim the person of a wife who remains a Hindoo. This is so fartrue; and in this case, the claim of the wife was rightly dismissed, but was, Ithink, dismissed simply for the reason that, admitting the husbands primafacie claim to the custody of the wife, that claim may be defeated by areasonable plea. If a wife pleads that her husband beats and abuses her in sucha way that she cannot reasonably be required to live with him, and that plea ismade out, doubtless the Court will not enforce a restitution of conjugal rights.

Then the next passage is of interest:

So also, if she pleads that the husband, by change ofreligion has placed himself in that position that she cannot live with himwithout doing extreme violence to her religious opinions and the socialfeelings in which she has been brought up, and in the enjoyment of which shemarried, that plea would also be good plea.

The case is in a sense the reverse on the facts of thepresent case. But I have no doubt from the reasons given by it, that the Courtequally would have refused an order for custody had the husband in the presentcase been claiming the custody of the wife in the circumstances of the presentcase. I need not again refer to the facts on which I have found cruelty or thecircumstances in which the husband had lived in the condition of a domisticatedson-in-law and had never himself maintained his wife. Even apart from theground of cruelty or special circumstances. I for myself would wish to besatisfied with very good reasons before I were to pass an order making itincumbent on a wife, who had become a Mahomed an, to go back to the custody ofher husband, who had remained a Hindu, in conditions where) she could only livenot as a wife at all, but at best in conditions approaching those of anordinary menial servant. It may be said that if the husband is a humane man hewill not want to treat her as a menial servant; he is, however, prevented bothbecause of his religion and because of hers from treating her substantiallyotherwise. He is wholly prevented from treating her as his wife; he is notbound to give her more than a starving maintenance, less than in the case ofmany servants. If out of generosity he wishes to increase her allowance abovethat scale it would of course be open to him to do so. In that event it mightnot be correct to say that she was in the position of a mere menial servant,but the position she would be in would be more like that of a foreign friend ina family whom the man she had once married chose, subject to his own whim and fancy,to support. He might or might not also consider it his duty to bring pressureor influence on her (by means which might be wholly unwelcome to her) to try toreconvert her. I need not go further into this aspect of the matter which doesnot directly arise in this case. But it is clear her position would be one ofmental, if not of physical, discomfort. Normally in such circumstances I shouldsay that he would have no legal right to her custody.

75. The result is that under the undisputed Hindu law asapplied to the husband in this case he is left with none at all of the ordinarylegal incidents or rights of marriage. Under English law, if the parties to amarriage want to be separated, a distinction is made between a judicialseparation and dissolution of marriage. The primary feature of such adistinction, apart from any question of maintenance, is of course, that on adissolution of the marriage both parties are free to marry again; but not sowhere there has been a judicial separation. Under English law the absence of alegal direction for dissolution of the marriage would make an enormousdifference to a husband as to his legal rights and obligations which hadresulted to him through the marriage; that is to say, if in a particular casebe were allowed no dissolution but only a judicial separation. Here theposition is very different. Let me assume for the moment that it is to betreated as settled law that Hindu law makes no provision for divorce. Even so,from the very moment of the conversion of the wife (the plaintiff), withoutmore, and without any legal proceedings, the husband (the defendant) remaininga Hindu will find himself, in so far as he is governed by ordinary undisputedprinciples of Hindu law, in no better position, for the purposes of any legalrights or incidents of his marriage with the plaintiff, than if that marriagehad been effectively and legally fully dissolved. The utmost that might beurged , on such a view that Hindu law does not recognise dissolution ofmarriage, would be that this would entitle the defendant to go about the worldsaying:

I have a wife on paper.

76. Since Hindu law does not use the language of the termsof divorce or "dissolution" as used in the European or Mahomedansystems of law, which terms are hardly applicable for a system of polygamousmarriage such as that of Hindu law it is easy to understand why it had not laiddown definitely that such a marriage in circumstances like those of this casehad been dissolved or, on the other hand, that such a marriage had not beendissolved; especially in view of the fact that the only person affected by anysuch direction would be a person (the plaintiff) no longer subject to Hindulaw.

77. I should make a brief reference to the distinction whichis referred to in the Privy Council case in Sri Balusu Gurulingaswami v. SriBalusu Ramalaksmamma, 26 I.A. 113 at p. 136 : (21 ALL. 460 P.C.) between thedirections of a religious nature on the conscience and morals and directionswhich may have the force of law. The matter is put there in this way:

In the preface to his valuable work on Hindu Law Sir WilliamMacnaughten says it by no means follows that because an act has beenprohibited it should therefore be considered as illegal. The distinctionbetween the vinculum juris and the vinculum puroris is not always discernible.They now add that the further study of the subject necessary for the decisionof these appeals has still more impressed them with the necessity of greatcaution in interpreting books of mixed religion, morality and law, lest foreignlawyers, accustomed to treat as law what they find in authoritative books andto administer a fixed legal system, should too hastily take for strict lawprecepts which are meant to appeal to the moral sense, and should thus fetterindividual judgments in private affairs, should introduce restrictions intoHindu society, and impart to it an inflexible rigidity never contemplated bythe original law-givers.

78. Any controversy as to how far re-marriage by a wife ispermitted or prohibited under the principles of the Hindu religion is of coursenot a subject before this Court of law. Here again the question might be: howfar a woman who was married as a Hindu but has since become by conversion aMahomedan is subject after her conversion at all to the discipline of the Hindureligion I need only remark: I cannot see how she can continue to be subjectto the discipline of a religion to which she no longer belongs. The questionhere would not be so much whether the Hindu religion prohibits a Hindu wifefrom marrying again during the life-time of her husband; but whether the Hindureligion prohibits Hindus in general or Hindu wives in particular from beingconverted to another religion And if so what sanctions, if any, the Hindu religioncan or does enforce under the discipline of its religion directly or indirectlyagainst such persons either before they take the step of conversion or as aconsequence of their taking that step. These are all, however, questions ofreligion not of law: and are not before me for decision sitting here as a Courtof law. The equally controversial subject, as a question of law, as to how farre-marriage by a wife is permitted or prohibited under the principles of Hindulaw also does not, in my view, arise as an issue for decision in this case nowthat the wife is a Mahomedan. The matter was, however, considerably discussedin argument. It may briefly be stated that, as I understood them, thesubmissions both of Mr. Sinha and of Mr. Chaudhuri were that they were inagreement that the older authorities such as Manu did not contain any expressprohibition against a woman marrying again.

79. Mr. Sinha submitted however, and I accept this ascorrect, that under the law and customs which have been superimposed on theoriginal law given by the ancient law-givers, it has come to be regarded thatordinarily Hindu marriage, at least as between Hindus, cannot be dissolved andthat a Hindu woman ordinarily cannot remarry during the life-time of herhusband.

80. In so far as the stricter view contended for by Mr.Sinha as being the modern view is dependent on custom it may be noted inpassing that no evidence of any particular custom has been given in this case.It is also to be emphasised that certain texts were quoted and relied upon byMr. Choudhury in argument which clearly show that according to certainauthorities even amongst Hindus governed by Hindu law a woman was permitted tore-marry under certain conditions during the life-time of her husband.

90. I give here, as a matter of interest, the references tothe authoritative texts of works on Hindu law which were cited to me:

91. As to re-marriage:

Manu Chap. IX verse 46 (at p. 335) (No release by sale orrepudiation.) The page references here given are to the Sacred Books of theEast, edited by F. Max Muller, Vol. 25, the Laws of Manu, translated by G.Buhler, (Oxford Clarendon Press, 1886 Edition) Chap. V. versa 162 (at p. 197)(no second husband for virtuous women) Chap. IX verses 72 and 73 (at p. 340)(abandonment in case of fraud): Cf. Chapter VIII verse 205 (at p. 291) andChap. VIII verse 224 (at p. 294). Chapter IX verses 75 and 76 (at p. 341) (wifeneed wait for her husband who goes abroad only for a fixed period): Cf. Chap.IX verses 77-79 (at p. 341). Chapter IX verses 175 and 176 (at p. 363)referring to a recognised son of a second marriage and contemplatingre-marriage of a woman abandoned by her husband or a widow), Parasara Chap. IVverses 26 and 27 (also Narada, Chap. XII verse 97) translated in the Treatiseon Hindu Law by Golap Chandra Sarker Sastri (7th Edition, 1936) (at p. 181)Another husband is ordained for women in five calamities, if the husband beunheard of, or be dead, or adopt a religious order, or be impotent, or becomeoutcasted). See also Vishnu, Chapter 35 verses 1-5.

92. For a general discussion of these and other texts:

Maynes Hindu Law & Usage (10th Edition, 1938) at p. 185(Art. 131) (that second marriages formerly allowed and explaining later glossesintroduced in certain texts). The Law relating to the Hindu Widow byTrailokyanath Mitra (Tagore Law Lectures) (1881 Edition) at p. 198(particularly as to the verse of Parasara quoted above and In relation tocustom as affecting its force). The Government Oriental Series Class B. No. 6,History of Dharmasastra (ancient and mediaeval religions and civil law) byPandurang Vaman Kane, Vol. II, Part I (1941 Edition) at pp. 610-611, 612-617and 619-622. Gooroodas Banerjee on Marriage and Stridhan (5th Edition, 1923) atpp. 204 and 207. (See also Collector of Madura v. Moottoo Ramalinga Sethupathy,12 Moo I.A. 397 at pp. 435 and 436 : (1 Beng. L.R. 1 P.C.).

93. As to prohibition of intercourse by a Brahmin withpersons of very low caste or non-Hindus and nature of severe penances imposed:

Yajnavalkya verse 294, translated in the Vyavahara Mayukhaand the Jajnavalkya Smriti by Rao Saheb Vishvanath Narayan Mandlik (1880edition) at p. 242. Manu Chap. XI verses 176 and 180 et seq. (at p. 466)(prohibition against approaching or eating food with a person of very low casteincluding as explained in the footnote a Mahomedan; which also states that ifhe does it intentionally no penance can be prescribed), Manu Chap. II verse 142(at p. 56) (as to who is a Guru); and Chap. IX verses 237 to 240 (at p. 383)(punishment for violating a Gurus bed).

94. The only point arising from any consideration of Hindulaw relating to the matters discussed in argument before me which has anydirect bearing, as I see the position, on the legal issues before me is this:After consideration of any question of Hindu Law arising in this case throughits applicability to the husband (the plaintiff) I have found no prohibition ordirection in any of the authorities cited to me which militates against thisCourt making the declaration now asked for that the marriage is dissolved: orwhich gives the husband any legal rights under Hindu Law which would beprejudiced or affected by the declaration.

95. I will pass now to another point on which there has beena considerable discussion. That is as to the jurisdiction and powers of thisCourt to administer personal laws to parties in such case as this, where thequestion of marriage is concerned. At the outset I would emphasise the vitaldistinction between the question of jurisdiction and the question of what lawis to be administered by the Court. As to this, the vital character of thedistinction is emphasised for example in such a book as Diceys Conflict ofLaws, where he divides his work into two separate books, one of which isdevoted to considerations of jurisdiction and another different book is devotedto the question concerning choice of law. He very aptly remarks there inconsideration of the rules he is laying down on the subject of Choice of Law asfollows:

Their object is the determination of the body of law, whichis to be selected by the High Court (meaning the English Court), when calledupon to decide any case, which has in it a foreign element. The rules containedin Book III (i.e., this book) have nothing to do with the jurisdiction eitherof the High Court (meaning the English Court) or of foreign Courts. But thougha question as to the choice of law is itself a totally different thing from aquestion of jurisdiction, there exists occasionally a difficulty indiscriminating at a glance between the two inquiries; for a question as to thechoice of law may look like a question as to jurisdiction. That this is so maybe shown by the following illustration: A brings in England an action against Xfor an assault at Paris; Xs defence is that the assault was by French lawjustifiable, and that A therefore cannot, in an English Court, recover damagesfor it. The defence looks like an objection to the jurisdiction of the Court;but this appearance will be found on examination to be delusive. Whatever bethe technical form of Xs defence, he in substance pleads, not that the HighCourt has no right to adjudicate upon an assault committed in France, but thatthe question whether X was or was not guilty of an assault, i.e., of anunlawful attack upon A, must be determined in England by reference, not to thelaw of England, but to the law of France.

Similarly in the present case there may be a tendency toconfusion between the question, whether this Court has jurisdiction toentertain the present suit for a declaration that the marriage of thepetitioner has been dissolved, and the different question, whether when theCourt has jurisdiction to entertain this suit the petitioner has, under theparticular personal law to be administered in the case, any legal right to begiven the declaration.

96. In regard to jurisdiction the matter is now governed byS. 223, Government of India Act. It is there enacted that the jurisdiction ofthis High Court should be the same as immediately before the commencement ofPart III of this Act". This provision corresponds to S.106 Government ofIndia Act of 1915. There it is enacted, somewhat to the same effect, that thisHigh Court should have such original jurisdiction and powers as are vested init by Letters Patent, and subject to the provisions of any such Letters Patentall such jurisdictions, powers and authority "as are vested in it at thecommencement of the Act." This provision in its turn thus relates back tothe Act establishing the High Courts of 1861, and to the Letters Patent of 1862made thereunder for a period of three years only, and thereafter to the LettersPatent of 1865 still in force. It will be seen that S. 9 of the Act of 1861expressly lays down that this High Court should "have and exercise allsuch civil, criminal...and matrimonial jurisdiction", as originaljurisdiction, and all powers and authority as may be by Letters Patent granted;and save as by such Letters Patent may be otherwise directed

all jurisdiction and every power and authority whatsoever inany manner vested in any of the Court in the same Presidency abolished underthe Act at the time of the abolition of such last-mentioned Courts.

97. Clause 35 does not appear to touch the present case.

98. Under Cl. 12, Letters Patent of 1865, it is expresslylaid down that this High Court "in the exercise of its ordinary originalcivil jurisdiction shall be empowered to receive and determine suits of everydescription." It is clear from the heading or the marginal note to theclause, original jurisdiction as to suit, that by the use of the wordempowered jurisdiction is conferred on the Court. Since this is done in termsof S. 9 and without the exclusion of causes of action relating to Hindu andMahomedan marriages, it is also clear that the words suit of everydescription are not cut down in any respect as to the subject-matter ofjurisdiction. It is true they are cut down in certain respects as to locality;but that is a totally different matter. In my view, the question ofjurisdiction is clearly concluded by Cl. 12, Letters Patent, and there is noneed to look further back. The present suit is one in which the claim is for adeclaration under S. 42, Specific Relief Act. There is no doubt that a part ofthe cause of action has arisen within the local limits. The meaning of Cl. 12,Letters Patent, in regard to the subject-matter of the causes of action, ofwhich this Court is given jurisdiction, seems to me clearly beyond doubt thatfor all persons who come within the local jurisdiction of the High Court asdefined for its local limits or for the extension of its local limits whereleave has been granted, the Court is given full and complete jurisdiction toentertain such a suit as this concerning the marriage between parties who wereoriginally Hindus but of whom one now is a Hindu and another a Mahomedan.

99. In regard to the other question as to the law to beadministered by this Court in such a case as this, where the question is oneconcerning the marriage, the enactments are not so clear. The matter is nowgoverned by S. 223, Government of India Act, 1935, where it is stated that thelaws to be administered in this High Court shall be the same as immediatelybefore the commencement of Part III of this Act. This provision again relatesback to S. 112, Government of India Act, 1915. The directions of that clauserequire careful consideration. It will be seen that it is there enacted thatthis High Court

shall in matters of inheritance and succession to lands rentsand goods and in matters of contract and dealing between party and party, whenboth parties are subject to the same personal law or custom having the force oflaw, decide according to that personal law or custom, and when the parties aresubject to different personal laws, or customs having the force of law, decideaccording to the law or customs to which the defendant is subject.

The present case is clearly not one of inheritance orsuccession. There is no comma after the word contract and the phrase inmatters of contract and dealing between party and party appears to be a singlecategory so that the words dealing between party and party are used ejusdemgeneris to the phrase matters of contract. If this is so, the question in thepresent case is clearly not within that category. It was submitted by both, Mr.Choudhury and the Advocate-General that the words dealing between party andparty were ejusdem generis with the preceding words the matters of contract.I agree with this view. Even, however, if the words dealing between party andparty were not so used, and were intended to include additional matters, theyare not such a phrase by which it can be intended in my view to include aquestion relating to the marriage. I cannot take the view that if it had beenmeant to include matrimonial matters or questions of marriage such as are thesubject-matter of the present case in the directions given under S. 112, thenthis would have been done only by the use of the words dealing between partyand party and not by some more apt phrase. It follows that the provisioncontained in S. 112 for the law to be applied has no application in the presentcase. It follows further more that, since the matter falls outside thissection, there are no express directions contained in the Government of IndiaAct, 1915, as to any particular law, which is to be applied by this Court in asuit such as the present concerning a question of a marriage either of Hindusor Mahomedans. We are then thrown back to the Letters Patent of 1865, Cl. 19,which lays down that this High Court shall in its ordinary original civiljurisdiction apply such law or equity which would have been applied by thesaid High Court to such case if these Letters Patent had not issued. This meansto say the law or equity, which would have been applied by the Supreme Court.This then takes us back to the Charter establishing the Supreme Court of 1774.Though the words are expressed in general terms it is of the utmost importanceto observe that in Cl. 14 of that Charter it is ordained that the Supreme Courtshould "give judgment......according to justice and right." The onlyother directions contained in that Charter, which might have any bearing on thepresent case are those contained in Cl. 18, ordaining that the Supreme Courtshould be a Court of equity and should have full power and authority toadminister justice in a summary manner as nearly as may be according to therules and procedure of the High Court of Chancery in Great Britain. The resultis that the only express direction given to this High Court as to the law to beadministered in the present case is the direction to administer justice andright.

100. I should mention that attention was called by theAdvocate. General to Ss. 17 and 18 of the Act of Settlement, 1781. Theprovisions in these sections must clearly be taken into account. In regard toS. 17, the wording is the same as that already discussed and is matters ofcontract and dealing between a party and party which I have already held to beoutside the present case. The question remains whether S. 18 affects thepresent matter. There it is laid down as follows:

In order that regard should be had to the civil andreligious usages of the said natives; Be it enacted that the rights andauthorities of fathers of families and masters of families according as thesame might have been exercised by the Gentoo or Mahomedan law, shall bepreserved to them respectively, within their said families....

This section has normally been taken as protecting forexample the rights of a karta of a Hindu joint family, to save him from anydanger of prosecution for criminal conversion, where he is dealing with theproperty of the family under the well-known authority of Hindu law as itsmanager. The Advocate-General, without pressing any contention either way,places the matter for consideration as to whether S. 18 is not to be taken asimposing a legal direction on this Court making it necessary to protect thedefendant in such a case as this from being deprived of the rights in relationto his marriage in respect of the petitioner even after she had become aMahomedan. So far as I know, the section has never been interpreted in such away. Apart from this absence of any authority in any previous decisionsfavouring such a view, the wording itself of the section shows in my view thatthis section is not intended to govern the present case. It will be seen fromwhat has already been stated, that where the petitioner has become a Mahomedanit is difficult to see how she can remain a part of her former Hindu family inany sense which would allow this Court to restore to the Hindu husband hisrights over her as a Hindu wife. Furthermore the section may be said to beg thevery question which has to be decided in the present case for if the Court hasno legal right to make the declaration of dissolution of marriage, then thesection is not needed and the husband will retain his rights. If the Court haspower and authority to make the declaration, then the petitioner has had hermarriage with her husband dissolved; and she is no longer his wife or a part ofhis family or in any respect within the protection of the section. Section 18cannot, therefore, in my view, be invoked as making it obligatory for this Courtto decide this case only by Hindu law. The section in my view has no bearing onthe present case and affords no assistance in the choice of law to beadministered in this case.

101. We came now, therefore, finally to the question what,if any, personal law is this Court to administer in this case having regard tothe direction contained in the Charter of the Supreme Court that this Court isto administer "justice and right". The question how far this HighCourt was entitled to administer personal law (being in that case Jewish law)to the parties in a dispute regarding succession was elaborately consideredrecently by Das, J. in the case of Jacob v. Jacob, 48 C.W.N. 513 : (A.I.R. (33)1946 Cal. 90) [LQ/CalHC/1944/6] . The question there was whether the Jewish law or the English lawshould be administered for the decision of the case by this High Court. Being amatter of succession it was clear that either law could effectively be applied.If the English law were applied the right of primogeniture would be appliedwith the result that the eldest son would take the estate to the exclusion ofhis younger brothers. If on the other hand the Jewish law were to be applied,the right of primogeniture would not apply and the elder would share the estatewith his younger brothers.

102. I have followed with interest the careful account givenby Das J. of the course of the successive enactments governing the law to beadministered by this High Court, and the interesting extension which was notedby him (at p. 526 left column of the report) as contained in S. 112, Governmentof India Act, 1916, in its express directions for the application in matters ofcontract and the other matters there mentioned, of the personal laws of allcommunities, including Jewish law (in preference to the standard law generallyin force throughout British India) in contrast to previous directions, whichhad been confined to the application of personal law in those matters, only inthe case of Hindus and of Mahomedans.

103. I fully agree, respectfully, with his decision in thatcase; as also with the main conclusion arrived at by him, in so far as Iunderstand it to be this, that where there is a general law expressly laid downor settled for British India for adjudication of certain subject-matters, thenunless there is an express direction contained in some statute making itincumbent on a Court to apply, in place of that general law, a differentspecial personal law of a particular community, the Court may be bound to applyonly the general law.

104. But I do not wish to be taken to accord my completeadherence to the language of certain passages of his judgment, if read strictlyas being of universal effect. The observations in those passages were obiter tothe matter, which had to be decided in that case, which was one of contract(and/or succession) and not of marriage; and were not necessary for thedecision of that case. They may be found to be entirely correct in dealing withsome other case, in which a question of marriage is directly or in directly concerned,where there is a residue of general law which can be applied in the event ofthe special personal law of a particular community not being applied. I do not,however, feel bound to accept those passages as universally applicable to allcases, or to the present case. To make my view dear, I will quote here three ofsuch passages:

If the Letters Patent of 1862 and of 1865 did not allow anypersonal laws other than those of Mahomedans and Hindus to be applied at all(and) if the Government of India Act, 1915 did not allow the application of anypersonal law to any matter not specified therein, it is not for this Court toapply the same (at p. 527, right column).

Thus although the jurisdiction of this High Court inexercise of Ordinary Original Civil Jurisdiction was by Cls. 11 and 12 madeflexible and enlarged, yet in the matter of the laws to be administered by itin exercise of its ordinary original civil jurisdiction it was relegated to theposition of the Supreme Court Of Calcutta. This statutory restriction cannot beignored and must be recognised and accepted by the Court. The result may beparadoxical but it appears to be that a Court was found to entertain all civilsuits but that Court was not provided with all the necessary laws (at p. 523,right column).

Thus the personal law or custom of all communities can now(i.e. since the Government of India Act, 1915), in the special matters, beapplied whereas previously only the personal law and custom of Mahomedans andGentoos in those specified matters could be applied, by this High Court in theexercise of its Ordinary Original Civil Jurisdiction. It will be noticed,however, that the specified matters are matters of inheritance and successionto lands, rents and goods and contracts and dealing between party and party,Marriage and caste and religious usages and institutions which were included inthe Regulations governing the Mofussil Courts wore not included in the Act ofSettlement in connection with Hindu or Mahomedan laws and are not included in thematters specified in the Government of India Act, 1915. Therefore, personallaws relating to marriage or caste or religious usages and institutions of noneof the communities are even now to be recognised by any of the High Courts Inexercise of its Original Civil Jurisdiction except in so far as they may bematerial for the purpose of determining matters of inheritance and successionto lands, rents and contract and dealing between party and party. In thisrespect the Mofussil Courts of Bengal have wider power to apply, as principlesof justice equity and good conscience, the personal law of all communities inall matters under S. 37, Bengal Agra and Assam Civil Courts Act of 1887; andthis Court, in exercise of its Civil Appellate Jurisdiction under Cl. 21,Letters Patent of 1865 is empowered to apply the same personal law of marriageand caste of all communities (at p. 526).

105. That was as the learned Judge found a case concerning aquestion of contract (see p. 615). In that case the question substantially waswhether there was a special statutory enactment providing for a specialpersonal law (Jewish law) to be administered; when, in the absence of such aspecial statutory provision, the general provisions would govern the case, andthe standard law of the Court for British India (English law) would beadministered. Here the question is not the same. There is no general provisionexisting, which would have the effect that English law would be administered asstandard in the absence of any special statutory provision making an exceptionto it. Here the position is if a personal indigenous law of some sort (eitherHindu or Mahomedan or both) is not administered, the effect will be that theCourt will be deprived of jurisdiction altogether, since there will be no lawwhich it can administer at all.

106. The correct position in my view is this. Where a Courtis given jurisdiction, it will be for the Court, as I see the position, to makethe choice of law to be applied by it to the case. If there are statutorydirections making a particular choice of law obligatory, it will be bound tomake the choice of law in accordance with these directions. Where there are nostatutory directions, it will make its own choice of law in accordance withgeneral juristic principles as best it can.

107. It is of interest to note, that in the judgment in thatcase it is conceded, that the personal law of a community was correctlyadministered in the Mofussil Courts only by virtue of general directions foradministering the principle of "justice equity and good conscience",without any specific directions in the case of the personal laws of communitiesother than Hindu and Mahomedan. A passage to this effect is as follows (at p.519):

On the other hand the Mofussil Courts under theirRegulations freely administered the Mahomedan law where both the parties wereMahomedans or the Hindu law where both the parties were Hindus and in all othercases they applied what they considered to be rules of justice, equity and goodconscience. The only prohibition enjoined on those Courts was that they werenot to import any English or foreign law. It was therefore open to and easy forthe Moffussil Courts to apply, not only in some matters but in all matters, thepersonal laws, not only of Mahomedans and Gentoos but of all communities asprinciples of justice equity or good conscience just as the Supreme Court inexercise of its civil jurisdiction let in the English law and equity as rulesof justice and right.

108. It will be seen therefore that even prior to the Act of1915 the position with regard to the mofussil Courts was this: Firstly, it wasclear that the Court had jurisdiction. Secondly, there was an absence of anyexpress statutory enactment giving positive direction as to any specificpersonal law to be applied. Thirdly, the mofussil Courts were prohibited bytheir Regulations from administering English Jaw. Fourthly, the moffussilCourts under the general guise of justice, equity and good conscience freelyand habitually administered Jewish law or other personal laws in addition toHindu and Mahomedan laws in their Courts. Now the position here as I see it inthis High Court in regard to the present case regarding the question ofmarriage is very similar. Firstly this High Court has clearly jurisdiction forthe reasons I have already shown. Secondly, there is the absence of an expressdirection as to what specific personal law has to be administered. Thirdly,this High Court is prevented from administering in the present case English lawnot as the mofusail Courts are by reason of any enactment or regulation, but bythe inherent impossibility arising from the nature of the English law as tomarriage and the nature of the subject-matter of this suit which is a questionbetween a Hindu and a Mahomedan regarding their marriage. In passing I wouldsay with confidence, that no enunciation of law can make it possible for me,either where there might be two Hindu parties (man and wife) or where theremight be two Mahomedan parties (man and wife) or in a case such as the presentnamely where there is one Hindu party the husband and one Mahomedan party thewife, in any question connected with their marriage, to adjudicate the caseaccording to English law. I can no more do this than I could decide a questionbetween an English man and his wife as to a Christian marriage by applyingeither the Hindu or the Mahomedan law. Therefore the application of plainEnglish law of marriage to the present case is out of the question. Fourthly,this High Court has been given the general direction of statutory force toadminister "justice and right." In these circumstances, I conceive itto be open to this Court and the duty of this Court to administer theirpersonal law to the parties in the guise of justice and right. The onlyquestion that would remain is, whether that law should be the Mahomedan law ofthe petitioner, or the Hindu law of the respondent, or such a consideration ofthe inter-reaction of both laws as will not commit a violation to the legalrights of either and as will be in conformity with justice and right.

109. I have followed, and with great respect, fully agreewith the distinction drawn by his Lordship Das J. between the indigenous lawswhich were administered (in preference to English law which was prohibited) bythe mofussil Courts in the guise of justice, equity and good conscience and theEnglish law which was ad. ministered in preference to personal laws by thisHigh Court as a successor to the Supreme Court. I see, however, nothing inconsistentwith the judgment in that case in this Court administering personal Hindu orMahomedan law in a question of marriage, when the matter cannot be governed atall by English law.

110. The only previous case in this High Court to which myattention has been drawn, or which I have been able to trace, which is anyauthority to the contrary of the granting of a decree in the present case isthe case reported in In the matter of Ram Kumari, 18 Cal. 264 [LQ/CalHC/1891/13] (cited above).There the petitioner, originally a Hindu woman, had originally marriedaccording to Hindu rites. Subsequent to the marriage she had become a convertto Islam and had married a Mahomedan. She was then charged with, and convictedof, an offence under S. 494, Penal Code, for bigamy. It was held on theparticular facts of that case that her original Hindu marriage had not beendissolved; and that as the validity of her second marriage depended on theMahomedan law and as that law would not allow plurality of husbands the secondmarriage must be void if the first marriage was valid. It was held accordinglythat the conviction was right. It will be seen that there are various importantmatters in which that case differs from the present case. One of the grounds onwhich the Court came to this decision was firstly that the petitioner had nevergiven any notice to her former husband and secondly that she had never obtainedthe intervention of the Courts of justice, as she might have done, byinstituting a suit after notice to the husband for a declaratory decree thatunder the Mahomedan law, which was her personal law since her conversion, herformer marriage was dissolved and that she was competent to marry again. It wasin those circumstances only that it was held that her previous marriage was notdissolved. It will be further seen as I have already noticed that it was thereheld that British India was not a foreign country within the meaning of Islamiclaw. As the consequence of this, it would have been necessary for her to givenotice to her husband to embrace the Mahomedan faith; and it was therefore heldthat she could only have had her marriage declared dissolved by a Kazi or ajudicial Court of this country; and as that had not been done her marriage wasnot dissolved. Having regard to these various matters I do not consider thatthe decision in that case stands-in the way of my passing a declaratory decreeas asked for in the present case.

111. Since that case there has recently been the decision ofthe trial Court and the Court of appeal in the Tischenko case : (A.I.R. (28)1911 Cal. 582 and A.I.R. (29) 1942 Cal. 325 [LQ/CalHC/1941/190] S.B.). The observations of theCourt of appeal in that case are directly relevant to such a case as thepresent. While the case was decided on the sole point of want of domicile, theirLordships in the Appeal Court expressly reserved their opinion on such mattersas have arisen directly in the present case. As I understand however theobservations in the judgments of all the three members of the Court, eventhough these may have been obiter, seem clearly to indicate that in a case suchas this, where the parties are domiciled in India, they would have held that asuit under S. 42 for a declaration of dissolution of marriage would lie. Mydecision in the present case as I read those judgments is therefore fully inconsonance with the observations of all the three learned Judges in the Courtof Appeal.

112. I want furthermore to record that my present decisionis only following what has been, as far as I know, the established practice ofthis High Court, to grant declarations of dissolution of marriage in such casesas the present. In this respect I follow with pleasure the separate decisionsof two eminent previous Judges of this Court, that of his Lordship Buckland J.and his Lordship Panckridge J. The decision of the last mentioned learned Judgein 1929 in Mt. Ayesha Bibi v. Bireswar Ghose Mazumdar will be found reported in33 C.W.N. (note section) at p. 179, while the unreported decision in the othercase of Chelimutnessa Bibi v. Surendra Nath Sen in 1924 is there referred to(Reference in passing may also be made to 33 C.W.N. (Notes section) at p. 187,where there was discussion of certain aspects of the matter by acorrespondent). It may be emphasised that the declaration now sought for andbeing made by me is a declaration under S. 42, Specific Relief Act, subject toall the limitations as to the parties who will be bound thereby which areimposed by the terms of the Specific Relief Act itself. On the point of a partybeing entitled to come to this High Court by virtue of S. 42, Specific ReliefAct, for a declaration regarding his or her rights in relation to a question ofmarriage, it was expressly observed by his Lordship Nasim Ali J. in Tischenkoscase: (A.I.R. (29) 1942 Cal. 325 [LQ/CalHC/1941/190] S.B.) on appeal (cited above) that in hisopinion such a suit would lie. From the perusal of the judgment of his Lordshipthe late Acting Chief Justice Ameer Ali it will readily be seen that there isconsiderable thought and learning underlying the observations briefly given byhim in the judgment in that case. From the trend of his observations he wouldappear to have said enough to indicate that his opinion also had it beennecessary to decide such a case as the present case would clearly have been thesame as the decision I have arrived at; and furthermore that the administrationof the personal Mahomedan law to parties in such a case as this would be in nosense contrary to public policy. It is to be observed that in this case thehusband, the defendant has offered no objection to the declaration being madeas prayed for by the plaintiff. Having regard to the foregoing considerations Ihave accordingly to grant the decree in favour of the plaintiff as prayed for.

113. The plaintiff has asked for a formal order giving herthe costs of this suit although it has been indicated on her behalf that shedoes not propose to press for it. I make the order that the plaintiff is tohave the costs of this suit but as of an ordinary undefended suit only so thatthe defendant will not be liable for any extra costs entailed by the extrahearings when the Advocate-General and Mr. Sinha appeared as amicus curiae.

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Ayesha Bibi vs. Subodh Ch. Chakravarty (02.03.1945 - CALHC)