§ Order for Second Reading read.
§ The UNDER-SECRETARY of STATE for INDIA (Earl Winterton)
I beg to move, "That the Bill be now read a Second time."
In 1869, the Indian Legislature passed an Act, which was based very largely on the English Act of 1857, and empowered certain courts to make decrees of dissolution of marriage and to grant other reliefs in matrimonial causes to suitors who professed the Christian religion and were residing in India at the time of presenting the petition, if the marriage had been solemnised in India or the matrimonial offence was committed there. Until the year 1921, it was assumed that the Indian courts had full jurisdiction over Europeans who, although, perhaps, they spent the greater part of their lives in India, were actually domiciled in this country. That class of people included, of course, the majority of European civil servants, and others in business who spent their lives there. That was the position until the year 1921. In that year—
§ Mr. STEPHEN
On that point of Order. May I ask whether the Noble Lord is in order in reading his speech, as he has been doing?
§ Mr. SPEAKER
When a technical and legal question is being dealt with, it is necessary to get the matter accurate. This is quite a different case from that of speeches made by hon. Members in the course of debate.
§ Earl WINTERTON
I assure the House that I have not the least desire to break any rule. I do not want to read my speech, but, when one is dealing with highly technical legal points, especially when there is a great deal of conversation going on in the House, it is necessary, in order to ensure an accurate report of a speech which will probably appear in the Indian papers, to refresh one's memory by referring to one's notes.
I was dealing with the situation as it was until a decision which was given by the President of the Divorce Court in 1921. The effect of that decision was that decrees of dissolution, if granted to persons not domiciled in India, though they might be valid in India—a question which Lord Merrivale said he was not called upon to decide—could not be recognised by the courts, of this country. I want to make it quite clear at the outset that anything that I am saying must not be taken as commenting upon, or criticising in any way, the decision which was given by the learned Judge on that occasion, but the judgment undoubtedly did give rise to great doubts and confusion in India. The situation immediately following it was that some of the High Courts, having taken the strictest view of its consequences, felt themselves debarred by it from entertaining petitions at all from non-domiciled Europeans in India, while other High Courts, on the contrary, in other provinces, believed that the judgment did not preclude them from granting dissolution of marriage to non-domiciled Europeans, though, of course, it was obvious from the judgment that those decrees would not be valid in this country.
That was obviously an unsatisfactory situation. The result of it has been, or was until quite recently, that spouses have been divorced in one province and are still matrimonially bound, or possibly may be living in a bigamous state, in an adjoining province. This confusion which has arisen, the Bill proposes to cure by Clause 3, which repeats the provision of the Indian Divorces (Validity) Act. 1921. The recurrence of a similar situation has been prevented by an Act passed in India this year, amending the Act of 1869 so as to remove all doubt that jurisdiction under the Act is confined to persons domiciled in India. The House may ask, 1211 that being so, and the Legislature in India and in this country having adjusted the different difficulties that arose as a consequence of this unexpected but doubtless perfectly proper judicial decision in 1921, what is the need for bringing in further amending legislation? I can explain that very shortly, and I think that, when I have explained it, the House will be satisfied that the action which the Secretary of State and the Government have taken is the right one.
I ought to say here that we are not concerned with what are usually known as India's "teeming millions." We are not concerned with either the Hindu or the Mohammedan inhabitants of the country; we are solely concerned with that body of persons to whom I have already referred, namely, Europeans who are not domiciled in India, but who spend the greater part of their lives there. This population and the forebears have been able, for almost as long as the procedure for the dissolution of marriage by civil Courts has existed in this country—except for the period of some nine or ten years between the time when the first Divorce Act was passed in this country and the time when a corresponding Act was passed in India—have been able to apply to the Courts in India for relief in matrimonial causes when the cause of offence arose in that country, and, unless we were to pass this Bill, we should he in the position of denying to those persons the facilities they have always enjoyed as a result of the Indian Act, until the decision in the Divorce Court here to which I have already referred. If we do not give these facilities, European inhabitants of India who wish to have recourse to divorce would either have to undertake the expense of transporting their evidence a, distance of something like 6,000 miles to this country, or they would have to adopt what I am informed on the best legal advice is the very hazardous course of relying upon commissions for taking their evidence in India, and having the case tried here. In these circumstances, my Noble Friend had no hesitation whatsoever in agreeing with the Government of India that the facilities enjoyed until 1921 by Europeans living in India—or, perhaps, the word "enjoyed" is scarcely a correct 1212 term; I should say the facilities that were open—should he restored at the earliest possible opportunity.
Now I come to one delicate matter which I must mention, although I trust my references to it w ill not open a controversy as, in my own opinion, it really has very little bearing on the Bill. That is the question whether or not this Bill extends the reasons for which divorce can be granted, or whether it does not, and whether it is desirable to do so. My answer to that question is that it only extends the grounds for divorce to a very small extent, and it does so in this way. The Bill, by specifying the grounds now to be admissible in India as being the same which are admissible in England, does give the right to petitioning wives in India to sue on the ground of adultery alone, as they can here. That is not the law as it stands at present in India, but, except in that particular, there will be no extension, as a result of the passing of this Bill, of the grounds for divorce in India.
The only other point of substance with which I have to deal is one on which objection, and, I admit, serious objection, has been taken, though I think I can show that. The objection is ill -founded. It is that the Bill recognises the English and not the Scots law of divorce when application is made under it to the Indian Courts. I am well aware of the very proper importance which hon. Members of all parties representing constituencies North of the Tweed pay, when questions affecting their country or status are being discussed in the House, to having a Minister representing Scotland to deal with them, and I have therefore asked my right hon. and learned Friend the Lord Advocate to reply to any points which may he made by those who may be dissatisfied with the case which I am about to put. At the same time, although I am neither a Scotsman, except perhaps as to one-fifth of my blood, nor a lawyer, I hope, in the course of my speech in introducing the Bill, I shall satisfy any doubts which have been felt in the past. or which have been expressed in the Press and elsewhere on these points.
The first reason, in order of importance, in favour of the course taken in the Bill, and against the view which has 1213 been expressed outside, is that it is an undoubted, though, of course, a regrettable, fact that there exists in India, whether on the Bench or at the Bar little or no practical experience of Scots law. It would be, I think—it is certainly the view taken by the Secretary of State —an almost impossible task if the Indian Courts and Bar were to be required, in dealing with applications for divorce from persons domiciled in Scotland, to apply in these causes, and in these causes alone, the intricacies of Scots law, and, without any disparagement of lawyers or Judges in India, I doubt whether the results would be always liable to satisfy the Scottish litigant. I do not think it can be reasonably argued, even if this disability were removed, that the Indian Courts should be forced to apply two separate systems of divorce law to European applicants in matrimonal causes. It must be remembered, in particular, that the Act will apply to a comparatively small proportion of subjects of the of the in India. It will, in the first place, apply only to the European community in India, and it is hoped that the number of members of that community, who will have recourse to the Courts, will not he larger than it has been in the past.
§ Earl WINTERTON
No, it will not apply to the Anglo-Indian community at all. They are not in any way affected. The Bill applies to those who are domiciled in this country, and Anglo-Indians are not domiciled in this country. I am sorry if any confusion has arisen from ray speech. The Bill applies to those Europeans who are technically domiciled in this country—it is a very legal or technical point—but who have spent the whole of their lives in India. Jones or Brown goes out to India as a civil servant at 22 and remains there until he is 55, but he never loses his English or Scottish domicile. It has nothing to do with the Anglo-Indian.
§ Sir ELLIS HUME-WILLIAMS
Does it not rather depend upon what is meant by the term "Anglo-Indian." A man may reside in India, but retain his English domicile.
§ Earl WINTERTON
The old term "Eurasian," which was usually applied to the person of mixed European and Indian descent, has now been taken away, and the term "Anglo-Indian," which formerly was used to describe Europeans resident in India, has been applied to him. I was not using the term "Anglo-Indian" in the old sense. May I, in order to make it clear, say that used the word "European" as applied to Englishmen, Scotsmen and Welshmen, and the term "Anglo-Indian" as applied to those of mixed European and Indian descent. That is now the official and proper term. The Bill only applies to Europeans. There might be some person of mixed European and Indian descent who was domiciled in this country. Personally, I know only about three or four, and they are all living in England, and I think it is safe to say that the Bill could not apply to them, except in some very rare case. Quite apart from the great disability that stands in the way of asking the Indian Bench and Bar to apply the Scots law, with which they are not familiar, it would be an inconvenient way of proceeding if we had two law for a comparatively small class of litigants. I must also add that a Scotsman in India is not entitled to sue under his own law. He can sue only under English or British Indian law. Further, for the last 50 years, from the passage of the original Indian Divorce Act in 1869, Scotsmen and Scotswomen resident in India have been subject, until the decision the other day, to the provisions of the British-Indian law, and though I have made careful search, I have not been able to find that any complaint has been made.
There is one other point in connection with the objections which have been raised to this Bill in Scotland. It is said that the fact that the Bill will not allow divorce in India on the ground of desertion is a disadvantage from the point of view of a Scotsman. There, again, if the grievance be a real one, why is it that we have never heard it voiced before this year as it might have been any time since 1869, when the original Indian Divorce Act was passed? I think there has never been any objection taken. I have no hestiation in saving, to sum up, that the decision of My Noble Friend and of the Government that the scheme would be made impracticable if it were conditioned on the application of a 1215 different system of law and practice according to the domicile of the petitioner, and if the objection that Scotsmen resident in India are to be subjected to English law, although it has never been made before, and there has been something like a lapse of 50 years, were nevertheless just as valid, I should still say,. speaking with the weight and authority of the Government of India, and of the Secretary of State—and the Government of India have considered this matter very carefully—that the only reasonable way of meeting that objection would be to exclude from the scope of the Bill altogether persons living in India under the conditions I have described and domiciled in Scotland. I may say, as the House is aware, that the Scottish community in India is a most influential and important one. In Bombay and Calcutta, for example, a very large proportion of the European business men are Scotsmen. I have not the slightest doubt that there would be the greatest indignation if they were told that, as the result of opposition in some quarters in Great Britain, they were to be precluded from obtaining divorce in India, which is the only alternative.
There are one or two other points with which I ought to deal. It may be asked why is the Bill so framed to apply in the first instance only to persons domiciled in England, Wales, or Scotland, and not to other persons of European descent living in other parts of the Empire? My answer is, first, that five years have elapsed since the mischief to be cured arose, and it certainly would not brook the long delay which would be necessary if one were to approach all the different countries of the Empire and ask them to adopt the principle of the Bill, and, secondly, that the Bill, with its present scope, will cover the great majority of the population affected, because the great majority of the European population in India come from the British Isles. It is quite true that persons domiciled in Northern Ireland will obtain no benefit under the Bill, and will figure among those excluded, but the reason for that is that persons in Northern Ireland are not able to obtain divorce in their own country. Therefore, it seemed to my Noble Friend that there was no logical or reasonable 1216 ground for giving them facilities in India which they do not possess in their own country.
There is one other point, or rather sub-point. It may be said that the remedy provided by the Bill, besides being available only to a limited number of persons, will be limited in its effect even where they are concerned, because, though it provides for the recognition of the decrees of Indian Courts by the Courts in England and Scotland, it will not ensure their recognition by the Courts of ether parts of the Empire or any foreign country. I do not think there is really very much in that objection. It is largely a theoretical objection. It really amounts to nothing more than admitting that this Parliament is not omnipotent. No doubt it would be more convenient if it were possible to make this Empire-wide legislation, but the time that would have been taken in negotiations would have rendered it impossible to bring the Bill forward at the present time. I hope it will be possible in the course of time to extend the Bill to other parts of the Empire if those countries are willing to adopt it, and if the Secretary of State for the Colonies, responsible for the representation of those countries in this House, is willing to apply it.
There is every safeguard in the Bill to see that its provisions are not abused and are judicially administered. The Indian Courts, which acquire jurisdiction under the Bill, are considerably more restricted than is the case with the Indian Act, which still applies to Christians domiciled in India and which empowers all High Courts and Courts of District Judges. The powers under this Bill are not merely confined to the High Courts, but they are confined to selected Judges of those Courts, and although, as I have said before, I am not a lawyer, I see no reason to think, as the result of past experience, that anything but the greatest confidence can be placed in the decisions which those selected Judges of the High Courts will give. I should add that when my Noble Friend was preparing this Bill he had the advice, as I have already said, not merely of the Government of India—that, of course, he would naturally seek in any case—but also of an expert Committee representing beside the India Office, the Colonial Office, the 1217 Home Office, the Lord Chancellor's Department, and, perhaps most important of all, Lord Merrivale, the President of the Divorce Court, who gave the original decision.
§ Earl WINTERTON
I am sorry. The hon. and gallant Member is quite right in correcting me for not having mentioned the Scottish Office. The Scottish Office was also represented. This Committee made the recommendation upon which this Bill is founded, so therefore I conclude, as I began, by saying the practical effect, which is really a very simple one, though the Title is somewhat lengthy and some of the provisions appear complicated, can be stated shortly. It is merely to legalise, with all possible safeguards, most carefully devised as the result of all sorts of expert advice, the facilities which have been held, erroneously no doubt, to be available for many years to Englishmen, Welshmen and Scotsmen resident in India and which,, as the result of the judgment in the Divorce Court, were found to be not so available, and the object of the Bill is to restore the position as it was before that decision.
§ Sir E. HUME-WILLIAMS
I think this is a very badly-needed Bill, and I very much welcome its appearance. Indeed, I rather think it might have gone a little further than it does. If a man is residing in India—because the Bill has no application unless when a man who is presenting the petition is residing in India, —and when the offence on which the petition is founded has taken place in India, I should have thought it would be common sense that. the Bill should apply. But paragraph (d) provides that although the petitioner resides in India, and the offence may have been committed in India, and consequently all the evidence is procurable with the least expense in India, he cannot bring his action there if he is domiciled in England, unless he proves that by reason of his official duties, poverty, or any other sufficient cause, he is prevented from taking proceedings in the Courts of the country in which he is domiciled. I should have thought that is a very undue and not at all sensible limitation of the powers of the Bill. If it is right that a person who is resident in India at the 1218 time he wants to petition, and the whole of whose evidence lies in India, but who happens to be domiciled in England, shall bring his suit in India, which is obviously the common-sense thing to do, why should there be any limitation to that right at all? If his duty keeps him in India, why should he come to England at all If it is a remedy that he is entitled to, it is a remedy to which there should be no limitation whatever.
I have only one doubt about the Bill which I want to suggest in order that perhaps at some time it may receive the consideration of the Government. The grounds on which a decree may he granted are those on which such a decree might be granted by the High Court in England, and therefore what you have to apply to the case being tried in India is solely the law of England, which is by no means of necessity the same as the law in India. I do not know if the Indian Courts, in considering matters of divorce between, say, Mohammedans or one of the castes of India consider the law of caste at all. I know that in Egypt, as far as the law of succession goes, the treaties between England and Egypt provide that the Egyptian Courts shall as far as possible apply the law of the religious community. I do not know if there is the same sort of rule in India. Suppose two Indian Mohammedans come and reside and carry on their business in England and consequently become domiciled here, and then return to their domicile of origin, India, and while they are there one has a cause of complaint against the other, and desires to present a petition for divorce, might it not be as well that the law of India should be applicable to their case and they should not be confined solely to the law of England? The law of India may not give any special remedy to Mohammedans or Mussulmans or a member of any sect who is seeking divorce in England, but if it does, it is worthy of consideration that these people would be deprived of the rights which the law of India gives them.. I suggest that paragraph (a) of 'Clause I should read something like this:The grounds on which a decree for the dissolution of dissolution of such a marriage may he granted by any such Court should be those on which such a decree might be granted by the High Court of England, or if their domicile of origin is India, according to the law of India.1219 I think that would do no harm, and supposing such rights exist, they would be preserved.
A thing that is a very serious difficulty in the administration of English law is the fact that in questions of divorce, the Divorce Court has no jurisdiction over those who are domiciled in any other country, so that in England when the parties come before the Divorce Court, even though the offence may have been committed in this country and consequently all the evidence is available here, if the husband is domiciled in India or Australia or any other British Dominion, the parties have to return to the Colony in which they are domiciled and are put to all the expense and trouble of getting the evidence in England and sending it out. If it is right that this restriction as to domicile should be removed as to India, why should it not be removed as to England as well? I hope, if the Bill passes, the Government will take that into consideration. We are always talking now, very wisely and happily, about the increased unity of the Empire. It does not apply to restitution of conjugal rights, but if it is right that in India in divorce cases the Courts should have jurisdiction over those residing in India, though domiciled in another country, it would be equally right that the Courts in England should have jurisdiction over those domiciled in India. Surely what is good for one is good for the other. It would remove a great injustice in England because cases often come before the Courts in England, and it turns out that the parties, although British subjects, although in every case belonging to the Empire, happen to be domiciled ill Canada, Australia or some other British Dominion. This is a very much wanted reform in India, and it is equally wanted in England. I hope the Government will have time during the remainder of their, I hope, considerable term of office to take this question into consideration.
§ Captain BENN
I should have wished someone with legal knowledge would have spoken on this particular point of the Scottish question rather than myself, but it is a fact that this Bill has created some misgivings in Scotland, and not merely among the lay population. One 1220 branch of the legal profession at least has circularised Members of Parliament on the subject. In principle, we all understand what the point is. It is whether married people who come before these Courts shall be treated in the matter of divorce according to the rules that prevail in their country of domicile, or according to the English rules. As against that contention, which prima facie has much to recommend it, the Under-Secretary advances two objections. He does not deny that it is an equitable demand. He does not say there is anything wrong, and the hon. Baronet the Member for Bassetlaw (Sir E. Hume-Williams) has been asking for all sorts of Amendments to adjust a difference here and a difference there which, if they are well found. I, make an even stronger case than the Scottish demand. The Under-Secretary's first reason is that there has been no complaint for a number of years, and his second is that Scots law in reference to marriage is so complicated that it would be impossible for the Courts to administer it. I think those are very insufficient grounds. I am surprised to hear that among the eminent legal luminaries who are at the disposal under the Bill for deciding these cases, there are not those who can give judgment according to Scots law, and it is the more remarkable inasmuch as there is a very large Scottish population in India. He says that, if you pass this Bill, you come up against a very large population of Scots who will object to the action you are taking. If there are so many Scots in India, why not let the English people in India be judged according to Scots law instead of putting the Scottish people under a law that is totally alien to them? I should not like to pass even an elementary examination in the differences between the two matrimonial laws, but I know there are great differences as to the grounds of divorce and alimony and other questions of that kind. My wife, who is a Scotswoman, has often told me of the vast superiority of the Scottish marriage laws over the English.
§ Captain BENN
I must make further inquiries in the light of what the hon. Baronet says. The Under-Secretary may say it is going too far to oppose the 1221 Second Reading, but I think he would gratify public opinion in Scotland in its just demands if he would say that in Committee he will favourably consider some amendment of the Bill to meet the case. If a case can be made, and an Amendment of a practical kind suggested in Committee, I ask that the Lord Advocate should promise to consider it.
Mr. K I DD: The hon. and gallant Member for Leith (Captain Benn) has introduced this subject. Anything that I say is rather by way of inviting some observations from the Lord Advocate in regard to the Scottish position. Very strong representations have come from Scotland with respect to this Bill. Indeed, the only bodies which are really qualified to express an opinion are unanimous in their objections to the Bill. Those objections come, in the first place, from the Faculty of Advocates, who are unanimous in their objection. Another objection comes from the Society of His Majesty's Writers to the Signet, who again are unanimous, and with the same unanimity we have an objection from the Society of Procurators in Glasgow. All these bodies, and they represent the legal opinion of Scotland, are united in objecting to the Bill, first, fundamentally, and, secondly, in detail. What I would ask the Lord Advocate to do in reply is to give us some enlightenment upon several points. Will he state for the benefit of the House what is the difference, if any, between the law relating to divorce in England and the law relating to divorce in Scotland? Secondly, is there any difference in the law of England as against the law of Scotland with regard to the effect of divorce upon the estates of parties?
I see very little objection to the Bill from the Englishman's point of view. He is to have really the facilities of the Indian courts for the administration of English law. On the other hand, this Bill entirely subverts the law of domicile as far as Scotland is concerned. Here is a point which I have in mind, as belonging to the junior branch of the legal profession. The Lord Advocate will agree with me that in Scotland the effect of divorce upon the estate of the parties is really the same as the effect of death. Suppose there is a marriage contract between husband and wife; on divorce, the guilty party loses all rights 1222 under the contract. Is that the law also in England? I want the Lord Advocate, before we are committed to a Bill which is so stubbornly opposed by every body in Scotland qualified to oppose it, by every body representative of opinion in Scotland on this matter, and while reserving one's rights to oppose the Bill in toto, to give us the information for which I have asked.
I also ask, finally, assuming this Bill be proceeded with—where Scottish domicile is to be subverted, where Scotsmen are to be subjected to a mixture of Indian procedure and English law—whether, if we are to make all these concessions, the Lord Advocate is prepared to conjoin the Lord President of the Court of Session with the Lord Chancellor in framing the Regulations for the conduct of such divorce? I do not want to speak with undue force, but I come back to this point, that the Englishmen have no real objection to the Bill, as far as I can see. All the valid objections must come from Scotland. The only injury being done is being done to Scotland. The only rights that are being jeopardised are the rights of the Scottish spouses, so to speak. For all these reasons, I trust the Lord Advocate will give us information in his reply which will satisfy the Faculties to which I have referred, and will allay the uncommonly keen resentment of Scotland as a whole towards the provisions of the Bill.
§ Mr. H. WILLIAMS
This Bill, as far as it goes, is a good Bill. I want to emphasise, very briefly, a point raised by the hon. and learned Member for Basset-law (Sir E. Hume-Williams). In Clause 2, His Majesty may, by Order in Council, provide for applying the provisions of the Act, etc., to various parts of His Majesty's Dominions. The parts that are exempted from its application are the self-governing Dominions. I raise this point, because I wish the House to note that this Bill is not limited to India, although up to now the discussion has related entirely to India. It can be made, presumably, to apply to any Crown Colony. I am wondering why it has not been made to apply to the self-governing Dominions, and why steps have not been taken to arrange for that. I do not know whether it is reciprocal legislation or not, or whether this Parliament possesses the power to enact the necessary reciprocal 1223 legislation. There are a great man people in this country suffering hardships and unable to release themselves from their husband or their wife as the case may be, although they have every justification for seeking divorce. They are unable to do so, because of this mystery known as domicile. I am sure that no one except a lawyer really understands what domicile means, and I am not certain that the lawyers really understand what it means.
I am thinking particularly of two cases in my own constituency, which have been brought to my notice. Possibly there are other cases in my constituency, and there must be a large number of other cases all over the country, of people who have married in this country, whose husbands have left them and have taken up residence in some other part of the Empire and, in some mysterious way, have acquired what is known as domicile in that part of the Empire. Accordingly, their wives—in the cases I have in mind wives are concerned—are unable to take any proceedings whatsoever in the English Courts to free themselves from their husbands, although they know that they have committed offences which would entitle the wife to obtain a divorce if the offence had been committed in this country, and if the husband were still domiciled in this country. The unfortunate thing is that in the bulk of these cases the hardship is Upon poor people. If they were well-to-do they could proceed to Australia, Canada or whatever part of the Empire it might he and initiate proceedings in the Courts there and obtain release, but being poor persons they are unable to bear the expense. Unfortunately, if they apply to the Poor Persons' Department at the Law Courts, that department is unable to assist them, because it can only assist them in respect of proceedings taken in the Courts at home. I hope that either in this Bill or in some future Bill steps may be taken to remove this injustice and the further injustice to which attention has been drawn by the hon. and learned Member for Bassetlaw.
§ Sir ROBERT HAMILTON
As one who has bad to administer the divorce laws of a British Colony and has come up against the great difficulty caused by the question of domicile, I realise very fully, as I hope the House does, what 1224 a great benefit this Bill, when it becomes an Act, will confer upon British people living in India. It has always seemed to me ridiculous that when people go to live in a Colony or in India and spend the best part of their lives there, 25 and 30 years perhaps, although their legal domicile may be in England or Scotland, that they should not be able to get a remedy for an offence under the divorce laws in the country in which they are passing their lives. In regard to what fell from the last speaker, I think it was a little ill-timed for him to suggest that this Parliament at this time should legislate in a matter like this for the self-governing Dominions. That, I think, must be a matter which must be left for the self-governing Dominions themselves. As the Noble Lord said in moving the Second Reading of the Bill, it may be very desirable that legislation of this sort should be Empire-wide, but that must be a matter which will take time to negotiate and arrange with the different Dominions concerned.
I should like particularly to refer to the question of Scotland as affected by this Bill. The Noble Lord said that one of the reasons against permitting the Courts in India to administer the Scottish law was that it was practically impossible to tall upon the High Courts in India to administer the Scottish law. I do not see that that is so. Every Court of law has, on occasion, to take evidence as to a foreign law which it has to apply, and I do not think it would be impossible for the High Court in India to apply, if necessary, the Scottish law.
§ Earl WINTERTON
That was not my real objection. I said that if they did so, there was no logical reason why they should not apply Scots law in all other cases where Scotsmen were concerned.
§ Sir R. HAMILTON
The matters here affected are matters of status. It is not like a question of contract; it is a matter of status which affects the children as well. While on that point, I should like to refer to Clause 1 (1, d), which provides thatAny Court may refuse to entertain a petition in such a case if the petitioner is unable to show that by reason of official duty, poverty or any other sufficient cause, he or she is prevented from taking proceedings in the Court of the country in which he or she is domiciled.….1225 If that is so, I would draw the attention of the House to the fact that one Scotsman may get his case decided by this law in India and another Scotsman may get his case decided at home simply because the Court may refuse to accept jurisdiction in the case. I should like to know what the Lord Advocate has to say on that point. If the Bill goes further, it will need a considerable amount of amendment, and very close attention will have to be paid to certain points to which it is not necessary at the present time to draw attention. I think that, on general principle, the House will agree that a Bill of this nature is desirable.
§ Mr. G. HUTCHISON
I want to reinforce what the hon. and gallant Member for Leith (Captain Benn) said regarding the opinion of the various legal societies in Scotland on this Measure. I have in my hand the report of the Society of Procurators in Glasgow, the Society of His Majesty's Writers to the Signet and the report of my own Faculty, the Faculty of Advocates. Without exception, these Faculties have made up their mind unanimously in regard to this matter. The Society of Procurators in Glasgow say:In the opinion of the committee, the Bill should be withdrawn.The Faculty of Advocates say:The Committee strongly disapprove of the Bill in its present form.I do not know whether I am in order, but I would make the humble suggestion that, if this Bill goes before a Committee of the House, the additional Members on that Committee should be Scottish Members, so that we shall have a full representation of Scottish opinion. I would like to know whether the Scottish Bench and Bar were consulted on this matter. As I understand that 80 per cent. of the Anglo-India population in India are Scottish people, I should like to know if this was done or not. It is a very big proportion, and, considering its size, Scottish legal opinion should be consulted very fully before this Measure becomes law. On the point raised by the hon. Member for Orkney and Shetland (Sir R. Hamilton), it does not seem to me to be a very difficult matter to deal with these cases by English counsel in India according to Scottish law. As the Lord Advocate and the Solicitor- 1226 General for Scotland and every member of the Scottish legal societies know, it is a common occurrence that, when Scottish appeals on very intricate matters come before the House of Lords, they are often pled by members of the English Bar. I hope that the Lord Advocate and the Under-Secretary for India will fully consider these matters before they pass this Bill into law.
§ The LORD ADVOCATE (Mr. William Watson)
I think it is right that I should at this stage make some reply, particularly to the points raised by hon. Members interested in Scotland; but, first of all, may I say, with reference to the points which have been referred to by more than one speaker, that in the provision of Clause 1, Sub-section (1, d)—the hon. and learned Member for Bassetlaw (Sir E. Hume-Williams) referred to this point, and so did the hon. Member for Orkney and Shetland (Sir TI. Hamilton)—it was thought right that there should be some restriction, or rather that it should be made clear that it was only people who required to take steps in India who should be allowed to take advantage of the Bill. It may be that these restrictions have been drawn too tight. That is a matter which may well be considered in Committee. That is the object of it, because it must be borne in mind that any remedy given under this Bill is a remedy in addition to that which an Englishman or Scotsman has in his own country, that is to say, the remedy is always available in your own country.
The hon. and learned Member for Bassetlaw referred to another point, which raises a very big question indeed. He took the illustration of a husband and wife who were Mahommedans, and had become domiciled British subjects in this country, and then went back to India. That is raising a very big question as to whether they were to be entitled if they chose to elect to have Indian law applied to them in these matrimonial issues, or the English law, which was the law of their domicile. That is a question which might be raised not only between England and India, but between many other countries, and would involve a reconsideration of the whole basis on which the law of domicile with regard to divorce is based at the present time, and I can hardly think that is a 1227 matter we can possibly touch in a Bill of this kind. Therefore, I do not think I can say more about it.
Probably the hon. Member for Reading (Mr. H. Williams) has been sufficiently answered by what was said by the hon. Member for Orkney and Shetland. It is quite obvious that we could not undertake to legislate on a question of this kind in relation to the self-governing Dominions. It is more a matter for them, and they must be consulted at the very least, and equally with regard to the Colonies and Dependencies other than the self-governing Dominions within the Empire, the delay which would be necessary to get matters of that kind arranged would be inconsistent with the urgency of this Bill. Therefore, we thought it right to give a power to deal with that matter by Order in Council. May I say that the one phrase in Clause 2, which may have excited the interest of some Members—" subject to the necessary modifications "—means the modifications which are necessary as to the particular form of the Court which is found varying in different Colonies or Dominions. There is nothing more intended than that.
I turn to the Scottish question. I make no complaint whatever of this question being raised; indeed, I am very glad it has been raised, because there has been a great deal of misunderstanding, and not a little want of knowledge, on the part of some of the societies and others—I do not blame them—who have passed Resolutions upon this topic. But, as I understand it, the complaint is put on two grounds. The first one is rather a technical, legal ground. The second one is very largely a sentimental ground, and naturally so. The first ground is that domicile alone should rule the question of the Court of remedy. It might be said in answer, that that comes very curiously from any Scottish lawyer, because in a well-known case in the House of Lords more than one of their Lordships referred to the fact that the Scottish Court had been singularly astute in getting jurisdiction in matrimonial cases on grounds other than those of domicile. But I would rather meet it on its merits.
First of all, however, let me visualise the situation. Since 1869, the year of the 1228 Indian Marriage Act, Scotsmen domiciled in Scotland, but resident in India, pro fessing the Christian faith, have taken advantage of the very provisions we have in this Bill now, and it was not until 1921, more than 50 years later, when that had become a well-established thing in India, that any legal doubt was cast upon it. Since the decision of the English Court, which no one questions now—it is because we accept it that this Bill is, rendered necessary—hut since the decision in 1921 some of the Indian Courts have taken different views, despite that decision, as regards jurisdiction in India, and it is essential now that we should deal with this matter in the same way. The first question is whether that facility to domiciled Scotsmen, which has existed since 1869, is to continue or not. I agree at once it is an exception to the technical and very good doctrine of domicile, but the fact is it has existed since 3869 without complaint, as far as we know, and has worked perfectly well. If anything, in this Bill the facilities granted are stricter than under the Act of 1869. For instance, a district Judge in the Indian Courts had jurisdiction under the Act of 1869. He will no longer have it. It is only High Court Judges who will be entitled to deal with it, and in some minor respects the conditions are somewhat stricter. It may be, as I say, that your doctrine is to have nothing but domicile, but the real question is whether those who love that pure doctrine are prepared to deprive the very large number of Scotsmen who are in India, many of them long resident there, and also Scotswomen, of this facility which they have had all these years. That is the practical question, and I should hope there would be no hesitation in saying that they ought to be allowed to have that remedy continued.
I come to the next question, which is if you are going to give the remedy, why not Scots law instead of English law That is a very practical difficulty. If it were practicable, that suggestion might very well, and I have no doubt would be, adopted. I think this matter is very well put in the Report of the Committee which dealt with this matter. What they said was:Another practical, and in our opinion, very cogent, reason for avoiding provisions which would require Scots law, practice, and procedure to be applied by Indian 1229 Courts to parties domiciled in Scotland is that there is little or no experience of that law available either on the Bench or at the Bar of Indian Courts; such provisions would therefore impose upon the Indian Courts an obligation which they would not be qualified to perform. Moreover, Anglo-Indian law in general, in so far as it is not suigeneris, is based upon English and not upon Scots law; Scotsmen are no less subject, therefore, if they reside in India than an Englishman or Indian to a system which in many important respects differs from that of their own country.I would like to say at once that as regards matrimonial law, with one exception, there is practically no difference in the grounds of divorce in the two countries at the present time, and that one exception is the law of divorce for malicious desertion, which you find in the Scottish law, but not the English law. Frankly, I say at once I would be very 10th to allow any Court to decide any question in these desertion cases, unless they were fully acquainted with the technicalities of Scottish law, regarding what is known as wilful and persistent desertion for the space of four years. And, remember, that divorce for desertion is not excluded as it stands now and as it has stood since 1869 and long before; that is to say, it is open all the time in Scotland. There is no restriction of that remedy. As regards the other grounds, these are the same, as far as I know, with one, exception, which is known in England, and, as far as know, has never been raised in Scotland, that of bestiality as a ground for divorce, we need not waste time over that question. Therefore, really when you come to it there is no material difference.
§ Sir E. HUME-WILLIAMS
Is there not this distinction, that when a divorce is obtained in Scotland, the marriage settlement ipso facto ceases?
§ The LORD ADVOCATE
That is the very point to which I was coming. Observe that the Bill itself safeguards that, because if the hon. and learned Member will look at Sub-section (4, d) there is an express provision that rules shall be madefor preventing, in the case of a decree dissolving a marriage between parties domiciled in Scotland, the making of an order for the securing of a gross or annual sum of money.Observe how that would work out. That means that the only order that can be 1230 made in India in the case of a Scotsman would be an order for a weekly or other periodical amount.
§ The LORD ADVOCATE
The hon. and learned Member should read the very thing I have read out. In the case of a Scotsman, that cannot be so done. The only order that can be given is what we would call weekly aliment, and that cannot be made effective in Scotland -anti/ it is registered there, and it then is subject to the jurisdiction of the Scottish Courts, and can be stopped at once. Surely it is only fair, in a case of a Scottish divorce in India, if the spouse who gets the divorce can make effective an order for weekly sustenance in India that that relief should be given 'I But that spouse cannot- make the order or decree in any way effective in any respect in this country until that decree is registered, and in the case of domiciled Scots, it is then subject to the control of the Scottish Court, and can be terminated at once. I suggest that is strict enough in the Bill as it stands, but, if not, it is a matter for Committee.
§ Captain BENN
Will the Lord Advocate take steps to keep the Bill on the Floor of the House, so as to sec that Scottish Members may have an opportunity of moving Amendments?
§ The LORD ADVOCATE
I understand that the Bill is to be kept on the Floor of the House, but the Bill has been most carefully drawn, and that was the important distinction between English and Scottish law, that the decree, when registered, not only would have effect just as a Scottish decree, but any Order which happened to be made for a weekly aliment or payment of some of the aliment, can be stopped at once in Scotland, and is subject immediately to the jurisdiction of the Scottish Courts.
Therefore, I hope I have satisfied the House that we look at it from a practical point of view, While I entirely understand the general view of a pure, legal doctrine of domicile and also the sentiment that if you could get it you should have Scots law instead of other law, when you look at it from a practical point of view, and consider what has happened ever since 1869 without any difficulty or 1231 trouble, in no other way can we continue to give that facility to Scots domiciled here though resident in India but as proposed in this Bill. I do suggest to my countrymen that they should not seek to deprive all our countrymen in India of that which has been available to them all these years,, on grounds which, however understandable, are not really practicable in these days.
§ 6.0 P.M.
§ Mr. MOLES
I need hardly say that I do not rise to enter into the general merits of this discussion, which, on the purely legal side, is one for a lawyer, and on the moral side, would be a fit subject for a group of theologians; but I rise to call attention to a statement made by the Noble Lord that the Bill is not to apply to Northern Ireland for the reason that persons in Northern Ireland have no facilities for divorce. It is true that the procedure in our Courts of law is different from the procedure in the Courts of law in Scotland and England, but surely it is not to be laid down in this House that British citizens abroad who are required to conform to all the conditions of citizenship are not to have all the privileges of citizenship, and that an Englishman and a Scotsman are to find themselves in one category and that an Irishman, and particularly an Ulsterman, is to find himself in another. On one occasion in this House an attempt was made to have the duty on whisky made lower in Ireland than elsewhere, and Mr. Gladstone, standing at that Box, said:I do not conceive it to be any part of the rights of man that an Irishman should be able to get drunk cheaper than a Scotsman or an Englishman.Surely if an Englishman and a Scotsman are to have facilities for divorce provided in this Bill, while an Ulsterman is not, that must be a denial of some parts of the rights of British citizens. I think the Noble Lord, though I have no doubt he spoke upon very good legal advice, must be somewhat in error in the statement he made. I can state to him quite definitely, and from personal knowledge, that in this very year 1926, the Parliament of Northern Ireland had before them a Divorce Bill which was duly passed into law. So the statement that there are no facilities for divorce in Northern Ireland 1232 is not correct. All I rise to do is to ask the Noble Lord, in the event of the Government of Northern Ireland acting, as they have a right to do, under Clause 2 of the Bill, to have it extended to them so that Ulstermen resident in India will have the same facilities for divorce as they would have, and as they now have, in Northern Ireland. As far as I can gather from the Bill, while the Scotsman would enjoy the right that he would have in the Scottish Courts, and an Englishman would have the same rights as he would in the English Courts, an Ulsterman who is domiciled in the same legal sense is not to have even the limited rights that he has in his own country. Surely that cannot be just. I ask the Noble Lord to keep an open mind upon this point until the Committee stage is reached, and, should the Government of Northern Ireland make an appeal that Ulstermen should enjoy the same facilities of divorce that they have in their own country and have the facilities of this Bill extended to them in the same way as Scotsmen and Englishmen have, that that would be agreed to.
§ Sir E. HUME-WILLIAMS
Supposing there is a marriage settlement executed between the parties at the time of marriage and that the parties are subsequently divorced, according to Scottish law, as I understand it, that puts an end to the marriage settlement altogether. In England an application has to be made by the successful party if it is desired to put an end to the marriage settlement, and the Court has discretion in the matter. Supposing a decree is granted to an Englishman who is domiciled in Scotland, does it put an end to that right or does it give a right to him to make an application to the Courts as he has in England?
§ The LORD ADVOCATE
As I have stated, a decree of divorce, as soon as it is registered in Scotland, will have effect as a Scottish decree, and it treats the offending spouse as being dead for the purposes of the marriage settlement; but the settlement survives
§ Earl WINTERTON
May I say, in answer to the right hon. Gentleman the Member for Belfast South (Mr. Moles), that I made inquiry of various legal authorities and I was informed that there was no power of divorce in 1233 Northern Ireland, but I agree that other considerations will arise if, as the right hon. Gentleman now states, a Bill has been passed in the Parliament of Northern Ireland. I will look into the matter and consult with my learned friends. The reason why this Bill does not apply to Northern Ireland is the perfectly reasonable and logical one that at the time this Bill came before the House of Lords, there was no right of divorce in Northern Ireland and therefore it could not be put into this Bill.
§ Mr. MOLES
I can state quite definitely, as I have already informed the House, that in this year 1926 a Divorce Bill was promoted in the Parliament of Northern Ireland. I will therefore ask the Noble Lord that, as far as possible, he will keep his mind open on this subject during the remaining stages of the Bill.
§ Captain BENN
How does it come that an Act of Parliament is passed by the Parliament of Northern Ireland and that a Minister in this House denies its existence?
§ Earl WINTERTON
I do not deny it. I said that, now when it is reported that such a Bill was passed, I will at once look into it and consult with my learned Friends. I say it may be that when this Bill was introduced in the House of Lords the Parliament of Northern Ireland had not passed the Divorce Bill into law.
§ Question, "That the Bill he now read a Second time," put, and agreed to.
§ Bill read a Second time.
§ Bill committed to a Committee of the Whole House for To-morrow.—[Earl Winterton.]