INDIAN AND COLONIAL DIVORCE JURISDICTION BILL. [H.L.] (Hansard, 4 May 1926)

§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)
My Lords, the Bill to which I ask a Second Reading is one which I believe in its general principle gives rise to no difference of opinion and which presents few details which are likely to be the subject of controversy. I may in a sentence explain to your Lordships the circumstances in which legislation has become imperative. The view was taken, acted upon and generally accepted among the Indian lawyers and laid down by Indian Judges for a long period of years, that where Englishmen and Englishwomen were resident in India, who had retained their English domicile expecting and intending to return to this country when their labours in India were concluded, they had jurisdiction in those cases to deal with proceedings for divorce.
It is, I think, evident that if this view had been suspected to be erroneous it would have been necessary to provide for the case supposed by legislation, because the only alternative would be that such persons would be compelled to come to the Courts of this country while they were resident in India in order to obtain the relief of divorce. Your Lordships can readily imagine the complete impracticability of such a suggestion. They would have to go to the prohibitive expense of bringing witnesses over to this country, of undertaking an impossible voyage, or else of facing the necessity that their most important witnesses would be examined on commission. No one can suggest that that would be a reasonable arrangement. It is just those witnesses who ought to be before the Court in whose hands the decision rests.
Litigation arose some year or so ago in which this matter for the first time was raised in a form which required a decision from an English Court — a decision which would make it clear whether, in the eye of English law, the 40 Indian Courts possessed this jurisdiction. My noble and learned friend Lord Merrivale, who presides with so much experience and distinction over the Probate, Admiralty and Divorce Division, reached the conclusion that the Indian Courts, in fact, possessed no such jurisdiction and had proceeded upon a mistaken view of their own powers. I certainly desire to throw not the slightest doubt upon the authority of the decision which my noble and learned friend laid down. He gave, as he always does, the greatest possible attention to the matter and he brought to bear upon it a degree of experience which is possessed by few other people in this country and, therefore, I accept the conclusion reached by the noble and learned Lord. Having accepted the decision, it becomes necessary to correct the matter, because the question of policy was not, of course, for my noble and learned friend. He, as a Judge, had to construe the law as the law was when the matter was presented to him sitting judicially. This matter must be corrected. This Bill corrects it in its main outline in the only conceivable manner and, in the Committee Stage, if there are any matters of detail that attract the interest of any of my noble and learned friends, they will find me, providing the principle in the Bill is not impaired, very ready to consider their views. I beg to move.

§ VISCOUNT HALDANE
My Lords, I have no doubt that this Bill is a necessary Bill. Quite recently in a judgment delivered by Lord Merrivale for the Privy Council, the law was laid down that, right through the British Empire, domicile is a test of jurisdiction. That has not always been thought to be the case. India is not the only exception. In Scotland for a long time the idea of matrimonial domicile prevailed. Now that is exploded by decisions of your Lordships' House. But during the War there was exceptional jurisdiction, analagous to this, given in the case of soldiers who were here and who could not get to the tribunals of their domicile. Now this Bill proposes to apply the same principle, but with very carefully limited exceptions.
It is the more important to see what it does because, by Order in Council, the 41 provisions of the Act may be extended, with the necessary modifications, to other parts of the Dominions of the Crown other than the self-governing Dominions. It is obvious that the changes to that extent affect the Empire. However, I notice that by the second proviso the restrictions are very carefully laid down. The analogy of the High Court here, in exercising jurisdiction, is to be observed. Again, by a very remarkable provision, the Court may refuse to entertain a petition if the petitioner is unable to show that by reason of official duty or other-reason, he or she is prevented from taking proceedings in the Courts of the country in which he or she is domiciled. With these exceptions the scope of the Bill is much narrower than people would in the first instance think and, in the cases for which it is reserved, it seems to me a desirable piece of legislation. I should certainly offer no opposition to the Second Reading.

§ LORD MERRIVALE
My Lords, if I may venture to say a very few words upon this Bill, I should like to concur in what has been said by my noble and learned friend, the noble Earl, with regard to the necessity of this Bill. Nobody who is familiar with the situation that arises with regard to British subjects usually resident in India is unaware of the necessity for tome means of dealing with matrimonial difficulties that arise. Steps are taken in this country, but most inadequately and at great cost and with some degree of uncertainty. I agree entirely with the necessity for the Bill. I think the Kill does not offend against any sound principle in respect of the general control over the law of divorce. It substitutes a qualification for approaching the Courts other than the qualification of domicile, but it proposes to do it with the sanction of this Legislature which is entitled to regulate the rights of persons domiciled here, and it does it by a method entirely consistent with our law.
There are two points to which I would like to call the attention of the noble Earl. I doubt whether you can safely make the jurisdiction of the Court in personal matters of the most absolute importance depend upon the presence in the jurisdiction of the complainant. The ordinary principle is that the Court must have jurisdiction over the de- 42 fendant, which is much more important. I rather suspect that the draftsman of the Bill has been a little misled by the fact that where you proceed upon domicile you have got your jurisdiction over both the parties. The domicile of one will be the domicle of the other. I do, however, ask my noble friend to consider whether you can safely enact that an Indian Court may exercise jurisdiction by reason of the presence within the area of jurisdiction of the complainant it is quite contrary to common principle with regard to present law.
The other point to which I wish to call attention is subsection (1) (d) of Clause 1. There are excellent safeguards in this subsection, but I rather suspect that the "may" in the first line is intended to be a peremptory direction. I think when it comes to be considered that it will prove that the judicial discretion which is to be exercised must be exercised in a particular way. I would ask my noble friend whether it is not better to say shall" if that is meant, and if it is not said in the first line of subsection (1) (d) whether at any rate if the Court is not satisfied that in the interests of justice it is desirable that the suit should be determined in India, then the direction should be absolute. I am sure ray noble friend will not misunderstand the desire with which I refer to these matters. I sympathise entirely with the object of the Bill and I feel its necessity.

§ THE EARL OF BIRKENHEAD
My Lords, I am indebted both to the noble Viscount, Lord Haldane, and to Lord Merrivale for the observations they have made. I think the most convenient method of dealing with the two points raised by Lord Merrivale is that I should discuss them with the persons who, with myself, have been responsible for this Bill and by private communication or otherwise before the Committee stage I will see whether I cannot satisfy the noble Lord's wishes.