INDIAN AND COLONIAL DIVORCE JURISDICTION BILL. [H.L.] (Hansard, 11 June 1940)

§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE FOR INDIA AND BURMA (THE DUKE OF DEVONSHIRE)

My Lords, put very briefly this Bill applies the provisions of the Matri- 510 monial Causes Act of 1937, which is commonly known as the Herbert Act, to Europeans domiciled in Great Britain but normally resident in India. In 1921 the High Court here decided that the Indian Legislature was not competent to confer jurisdiction on Indian Courts to dissolve marriages the parties to which were not domiciled in India, and in consequence a number of decrees of dissolution which had been granted under the Indian Divorce Act of 1869 were found to be invalid, or at all events invalid here if not invalid in India. Parliament forthwith passed a short validating Act and further decided that it would involve great hardship to the large European population of India, the great majority of which, though they spent many years of their lives in India in the Government service or in business, returned to this country on their retirement and were not domiciled in India, if they were obliged to have recourse to the English or Scottish Courts for relief in their matrimonial affairs and could not obtain a divorce in India. Accordingly in 1926 jurisdiction was given by the Indian and Colonial Divorce Jurisdiction Act of that year to selected Judges of a limited number of High Courts in India to make decrees for the dissolution of marriages and incidental orders as to damages, alimony or maintenance, and custody of children and costs, in cases where the parties to the marriage were British subjects domiciled in England or Scotland. The Courts in England and Scotland as the case may be remain, of course, open to such persons.

The clear intention when that Act was passed—indeed it was stated in the Act itself—was that the grounds on which a decree for dissolution could be granted by one of the specified Indian Courts should "be those on which such a decree might be granted by the High Court in England according to the law for the time being in force in England." The intention therefore was quite clear, but as your Lordships will be well aware Acts of Parliament do not always achieve what they set out to do; and it is unfortunately the case that other provisions of the Act were such as to fit in appropriately only with the grounds for divorce which were available at the time the Act was passed, and to raise considerable doubts whether the wider grounds provided by the Her- 511 bert Act of 1937 can be taken into account by the Courts in India in exercising their jurisdiction under the 1926 Act. I need scarcely remind your Lordships that questions of validity in the matter of marriage and divorce are above all questions on which any doubt or uncertainty is most undesirable.

The main object of this Bill then is to make it quite clear, as was intended in 1926, and is, as I think your Lordships will agree, on the merits, appropriate, that the Indian Courts are to be governed by the law of divorce as it now stands in this country after the passage of the Matrimonial Causes Act, the Herbert Act, of 1937. I scarcely think I need take your Lordships through the clauses of the BILL. which have only this object in view, but there is one small respect in which the Bill does more than apply the law laid down by the Act of 1937 to which I will call your attention. The Act of 1926 provides that a decree granted under it in India or elsewhere should not be valid until it is registered in the High Court in England or Scotland as the case may be, and the duty of registration was left to the parties to the divorce. Experience has proved that this is an unsatisfactory arrangement, a case having occurred in which a person who had obtained a divorce under the Act proceeded to marry again, apparently found that did not work very well and then sued for a decree of nullity on the ground that the previous marriage was still subsisting, since she had taken no steps to register the decree of dissolution here, and the Courts had no option but to grant her a decree of nullity. Clause 4 of this Bill provides that registration of the Indian decree is made a function of the Courts and not of the parties to the divorce. In every other respect the Bill merely applies the Act of 1937 to Europeans resident in India.

Your Lordships may be surprised at having such a relatively trivial Bill brought before you at this very serious time, but it is long overdue, and the fact that it was not introduced before the war was due to a series of regrettable, but unavoidable, hitches. In the circumstances, my right honourable friend the Secretary of State decided that it would be right to proceed with the Bill which I have accordingly put before your Lord- 512 ships. I beg to move that the Bill be read a second time.