§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Birkenhead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF DONOUGHMORE in the Chair.]
§ Clause 1:
§ Divorce jurisdiction of High Courts in India where parties are domiciled in England or Scotland.
§ 1.—(1) Subject to the provisions of this Act, a High Court in India to which Part 457 IX of the Government of India Act applies shall have jurisdiction to make a decree for the dissolution of a marriage, and as incidental thereto to make an order as to damages, alimony or maintenance, custody of children, and costs, where the parties to the marriage are domiciled in England or in Scotland, in. any case where a court in India would have such jurisdiction if the parties to the marriage were domiciled in India:
(d) any such 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, or if the court is not satisfied that in the interests of justice it is desirable that the suit should be determined in India.
§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD) moved, in subsection (1), after "are" ["are domiciled in England"], to insert "British subjects." The noble and learned Earl said: This Amendment has been put down in my name on the Paper after consultation with my noble and learned friend Lord Merrivale and in the hope of meeting his view by making the facilities afforded by the Bill somewhat more strictly guarded. The intention underlying the Amendment is to confine the operation of the Bill to non-domiciled parties who are British subjects, in order to avoid the possible contingency that a foreign Court might, at least in principle, object to recognising an alteration in the matrimonial status of one of its nationals if that alteration had been effected as the result of the Bill otherwise than in accordance with the general principle which the Bill for special reasons infringes—namely, that in cases involving the dissolution the Court of the domicile alone has jurisdiction. I hope that that satisfies noble and learned friend.
Clause 1, page 1, line 12, after ("are") insert ("British subjects").—(The Earl of Birkenhead.)
§ LORD MERRIVALE
My noble and learned friend and those with whom he consults in these matters have been very ready to meet suggestions which I made with a view to preventing, under a some- 458 what artificial system necessary to be adopted in India, any degree of laxity which might bring discredit on the administration of the law in that respect. My noble and learned friend and his advisers have been at great pains to deal with that matter and I am satisfied that the Amendments which my noble and learned friend proposes will render this very necessary relaxation of the general principles of the law of divorce for the necessities of British subjects resident in India a procedure which will be as free as is possible to make it from grounds of objection in respect of laxity.
§ VISCOUNT HALDANE
The whole Bill is a departure from the broad principle of English law and indeed of British law, but it is a departure which has been rendered necessary in order to do justice, and I agree that the Amendment restricts the limits within which the exception to the principle can be applied properly. It is better to confine it to British subjects. There are plenty of foreigners domiciled in England and Scotland who ought not to come normally within the provisions of this Bill. I should be sorry, from the point of view of international law, to depart from what is a broad principle laid down recently in a judgment by the noble and learned Lord, Lord Merrivale, himself, and I feel it is better to make this restriction. It is very illogical, the whole thing is very illogical, but justice requires it.
§ On Question, Amendment agreed to.
THE EARL OF BIRKENHEAD moved, in subsection (1) (d), to leave out "or if the Court," and to insert "and the Court shall so refuse if it." The noble and learned Earl said: I may perhaps offer a word of explanation in relation to this Amendment. Paragraph (d) enables an Indian Court to refuse to entertain a petition under this Bill unless the petitioner can show that, by reason of official duty or poverty, or any other sufficient cause, he or she is prevented from taking proceedings in the Court of the domicile, or if—and these are the important words—
the Court is not satisfied that in the interests of justice it is desirable that the suit should be determined in India.
The effect of this Amendment, which, again, is a reasonable concession to Lord Merrivale's view, is to make the second
condition for refusal to entertain the petition in India obligatory on the Court, instead of optional, thereby ensuring that a recourse to this Bill, instead of proceeding in the Courts of the domicile, is only made in cases of general hardship.
Clause 1, page 2, line 24, leave out ("or if the Court") and insert ("and the Court shall so refuse if it").—(The Earl of Birkenhead.)
§ VISCOUNT HALDANE
I think this is an improvement. I am very suspicious of these cases. Almost invariably in divorce cases applications are made which in any other relation would be called fraudulent, and it is very desirable to impose on the Court not only the opportunity but the obligation to see that undue advantage is not taken. I think the words will do some good—not much good, as I am very suspicious of all jurisdiction of this kind—but still they will do something, and the Bill is a little better than it was without these words.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Remaining clauses agreed to.