INDIAN AND COLONIAL DIVORCE JURISDICTION BILL [Lords]. (Hansard, 26 June 1940)

§ The Secretary of State for India (Mr. Amery)

I beg to move, "That the Bill be now read a Second time."

Earlier this afternoon I dealt with a somewhat technical and complicated Measure affecting India, and I hope the House will be equally kind while I endeavour to explain the general purposes of an even more technical and complicated subject. At any rate, I am somewhat encouraged in the hope that this Bill may have a Second Reading without difficulty by the fact that it has 525 already passed the many legal luminaries who cluster in another place, and even more so by the absence of the hon. Member for Oxford University (Mr. A. P. Herbert), who knows more about this subject than any man ought to know and could, were he here, floor me, no doubt, with many conundrums which I could not possibly answer. In dealing with this question of the divorce law as it affects European British subjects resident in India, but intending ultimately to return to this country, and therefore not domiciled in India, it is necessary for me to go back a little into the past legal history on the matter.

In 1921, by one of those interesting legal decisions which from time to time throw perturbation and alarm into our private and public life, the High Court decided that all divorces which had been granted under the Indian Divorce Act of 1869 to such persons were invalid, or at any rate invalid outside India. Parliament accordingly passed a short validating Act rectifying that anomaly. It was, however, felt that the matter could not rest there and that undue hardship would be involved if parties resident in India were not able to secure a divorce except in the courts here. Accordingly in 1926 Parliament passed the India and Colonial Divorce Jurisdiction Act, which, while still leaving access to the courts in England and Scotland, gave access to certain judges in certain limited High Courts in India with a view to securing decrees for divorce and also such incidental decrees affecting alimony, damage, custody of children and so forth. It was the plain intention of the Act of 1926, and was actually said in so many words in the Act, that the grounds for divorce in India in future for the class of applicants concerned should be the same as those for the time being in England. Unfortunately, certain provisions in the Act of 1926 were of such a character as to cover only the provisions of the law as it stood at that date. This has raised doubt as to whether in fact the provisions of the Matrimonial Causes Act of 1937 apply in India under the Act of 1926. Clearly there is no subject on which doubt or uncertainty could be more unfortunate than on any question affecting the validity of marriage. The purpose of this Bill is to dispose of any of those doubts and to make the law the same for the parties concerned, whether 526 they apply in Indian courts or to a court in this country.

Sub-section (2) of Clause 1 disposes of doubts as to the past. It validates decrees passed in the belief that the Act of 1926 did give the power to confer divorces on the same ground as our Act of 1937. Sub-sections (1) and (3) apply to India all the applicable provisions of the Act of 1937. I ought to explain that this Measure does not deal with the matters in the Act of 1937 affecting judicial separation, nullity, or courts of summary jurisdiction, because these matters were not affected by the decision of 1921 and can still be dealt with under the powers of the original Indian Divorce Act of 1869. Nor do they apply to the provision in the Act of 1937 dealing with the relief of clergy, because that applies to conditions as regards parishioners' rights in this country which are not paralleled in India. Clause 2 gets rid of words in the Act of 1926 which were held to cast doubt upon the effect of the Act of 1926 in dealing with future legislation in this country, but retains certain limitations as to the parties who can have access to the courts in India.

There are two other minor respects in which this Bill goes beyond the task of making sure that the Act of 1937 is applicable to divorces granted in India. Under Clause 4 there is an alteration with regard to the provision for registration of divorces. Under the Act of 1926 registration was left to the petitioner. That was found to have certain unforeseen defects. In one particular case a lady, having secured a divorce, omitted, whether by oversight or by foresight, to register it before marrying again and, subsequently finding her second husband not as satisfactory as she had hoped, successfully brought an action for nullity of marriage and was free to start on her adventurous career again. This Clause ensures that the registration is done through the courts and prevents a recurrence of that difficulty. Clause 6 overcomes a possible ambiguity in the Act of 1926 under which it might have been assumed that suiters in India could apply to any of the High Courts in India and not to the one in whose jurisdiction they reside. This Clause makes that clear. Clauses 5 and 7 are purely formal. The somewhat late date in Clause 7 is to afford plenty of time for the provisions of 527 the Bill to reach India and to be available before the courts take cognisance of it.