INDIAN DIVORCES (VALIDITY) BILL [Lords], (Hansard, 22 June 1921)

§ The ATTORNEY-GENERAL (Sir Gordon Hewart)
I beg to move, "That the Bill be now read a Second time."
1470 This is an extremely simple and necessary Measure. The House is, no doubt, aware of a recent decision of the President of the Divorce Division that courts in India have no jurisdiction to dissolve, with extra-territorial effect, marriages the parties to which, though in India, are not legally domiciled there, and further, that the Indian Legislature is not competent to confer upon courts in India power to grant divorces in such circumstances. Half a century ago, in 1869, an Act known as the Indian Divorce Act was passed by the Governor General's Legislative Council, to enable certain courts in India to dissolve the marriages of Christians. It was assumed by that Legislature at that time, and it has been assumed ever since, that the powers conferred by that Act extended in the fullest sense to persons who were resident in India at the time of the institution of proceedings for divorce, even though they might not be legally domiciled there. The bulk of the European population in India, although they may spend many years of their lives in that country, retain legally the domicile of their country of origin, and during the last 50 years numerous decrees of divorce have been granted by the courts in India in perfect good faith, and numerous second marriages have been contracted in the belief that the decrees were valid even outside the limits of India. The effect of the recent judgment, therefore, is that grave doubts, to say the least, have been cast upon the validity of a number of marriages and upon the legitimacy of a number of children born of those marriages; and it is clear that the situation so created calls urgently for a remedy. It is, of course, obvious to the House that a great amount of distress of mind must have been caused to individuals and families who, through no fault of their own, have contracted unions or secured dissolutions of unions which hitherto they had no reason to suppose were not perfectly valid and legal, and that great practical difficulties may arise at any moment in connection with questions of legitimacy and inheritance.
No one seeks to question the correctness of the decision in the recent case of Keyes v. Keyes, and, indeed, I have no doubt that if there were an appeal that decision would be affirmed. But it may, perhaps, be observed that the Governor-General's Legislative Council, and the 1471 High Courts and District Courts in India, have had the support of high authority for their error. When the Bill which became the Act of 1869 was under discussion in the Legislative Council in India, Sir Henry Maine, who was then Law Member of the Council, stated it, I understand, as his opinion, that the effect of the Bill would be to confer on the Courts in India the power which is now denied. A similar view was taken, for a time at any rate, by so high an authority as Professor Dicey, and, when the question came clearly before the Calcutta High Court, that Court decided that domicile was not a necessary condition of jurisdiction in divorce under the Indian Act. Until April last, the question had never arisen as a definite issue before the Courts in this country, but now that it has been decided, it is, as I have said, clear that a remedy is urgently necessary to validate what has been done in good faith in the past. This Bill is intended to provide the remedy. It does not seek to raise the question of conferring this power on Indian Courts for the future. In other words, it accepts the legal position as defined in this respect by the judgment of the President of the Divorce Division. The question of the future is one which, I understand, is being considered, but His Majesty's Government and the Government of India are agreed that it is unnecessary to complicate the present issue. All that the Bill does, therefore, is to validate decrees which have been made in the past under the Act of 1869, and to enable the Courts in India, to proceed with and complete the trial of suits which were instituted before the date on which this Bill was passed. The effect of the Bill, therefore, will be to validate marriages the validity of which depends upon the decrees referred to by the Bill, and also to confer upon the children of those marriages the same status and rights as those which they would have had if the Court that granted the decree for dissolution of the former marriage of their parent or parents had really had jurisdiction at the time. I trust, therefore, that the House will find no difficulty in regarding this Measure as wholly non-controversial.

Sir J. D. REES
The learned Attorney-General has made it quite clear that this Bill does not propose to alter the law, 1472 but merely, while accepting the judgment of the President in the case of Keyes v. Keyes, provides for validating marriages affected by that case. When that judgment was given, however, I understood that it only applied to cases in which both the parties were domiciled out of India. Clause 1 of the Bill says that any decree granted under the Indian Divorce Act, 1869, for the dissolution of a marriage, "the parties to which" were at the time of the commencement of the proceedings domiciled in the United Kingdom, shall be deemed to be valid, and further on in the Clause the word "parties" is used again; but the decision of Sir Henry Duke does not say that, where either party is domiciled in India, the Courts have no jurisdiction. It applies, apparently, only to marriages where both parties are domiciled out of India. I do not know if it is quite clear that that is the effect of the Bill. I take it that it is, and, if that be so, what is the position where one party is domiciled out of India and the other party is domiciled in India? I take it that such cases are not affected by the judgment in Keyes v. Keyes, and that, therefore, in such cases no validating Act is required. Nevertheless, there is some kind of primâ facie doubt on that score, and I should be greatly obliged if the Attorney-General would resolve it for me. I am glad that this Bill does not in any way alter the existing law, because it would not be at all desirable that the matrimonial jurisdiction over British subjects should be surrendered, however strange it may seem, that men who spend, say, 25 years in India, continue to retain, as they do retain, their English domicile. If the reverse were the case, very strange matrimonial laws might apply, in British Colonies, Dominions, or Possessions, to persons who were merely travelling, and had no intention of losing their English domicile. The only doubt that I have is the one that I have put to the Attorney-General. The word "parties" means, I have no doubt, what it says; but what happens if it is a case of one party? Then, as I understand it, the Duke decision does not apply.

§ Sir G. HEWART
I hesitate to express a confident legal opinion on the spur of the moment. As I understand the matter, however, there is no question as to the validity of a decree of divorce granted by an Indian Court, so far as India itself 1473 is concerned. The difficulty arises when the question is whether that decree is valid outside the limits of India. Difficulties manifestly arise when persons are divorced in one place and yet are not divorced in another. And so the foundation of the international practice with regard to divorce is that if there is to be extra-territorial effect given to a decree of divorce, that divorce must have been granted by a Court whose jurisdiction was founded, not upon residence, but upon domicile. I should have thought it applies equally whether both parties or only one be domiciled in the country.

Sir J. D. REES
Does the right hon. Gentleman think Clause 1 really satisfactorily accomplishes the object he has in view when it twice uses, and deliberately uses, the word "parties"?

§ Sir G. HEWART
Yes.

Sir J. D. REES
I accept that, of course, and I have nothing more to say.

§ Captain W. BENN
We had a statement from the Leader of the House on Thursday as to the business to be taken to-night. I have no desire whatever to cause any delay in the right hon. Gentleman's suggestion, but if we start taking the Committee he may ask for the Third Beading. The time is all too short to discuss the Estimates Committee Motion. Therefore I must put in this formal protest.

§ Sir G. HEWART
I thought it was a non-controversial Bill. I will not pursue the matter.