Modi, J.—This is a miscellaneous first appeal against an order of the learned District Judge, Jodhpur, dated the 2nd December, 1958, under sec. 39 of the Special Marriage Act, 1954, (No. XLIII of 1954) (hereinafter referred to as the Act of 1954) read with sec. 96 of the Code of Civil Procedure in a divorce matter.

2. The petitioner is the husband Chistopher Andrew Neelakantan. His case is that he is a citizen of India and is an officer in the Air Force of the Government of India, and has been holding the post of Wing Commander in the Air Force at Jodhpur for the past several years. It is further alleged that the petitioner and the respondent Mrs. Anne Neelakantan were married in England on the 20th February, 1955 and a copy of the certificate of marriage (Annexure I) is produced in support of this. Among other allegations, which it is unnecessary to mention at this stage, the petitioners case further was that when he wanted the respondent to come over to India and live as his wife, she flatly refused. Consequently, the petitioner made the present application in the court of the District Judge, Jodhpur, on the 1st May, 1958, in which he prayed for a decree for the dissolution of his marriage with the respondent. It may be mentioned at once that the application for divorce is thus principally based on the ground of desertion. The learned District Judge has, by his order under appeal, dismissed this application summarily. Hence the present appeal.

3. The reason which prevailed with the learned District Judge in coming to the conclusion to which he did appears to be that he had no jurisdiction to deal with the matter under sec. 31 of the Act of 1854. The relevant portion of sec. 31 is in these terms :—

"31. Court to which petition should be made— (1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. (2)............"

Chapter VI deals with the subject of divorce. It is admitted by the petitioner that the marriage was solemnized in England and not within the jurisdiction of the learned District Judge. It is also conceded that at no time during their marriage, the petitioner and his wife ever resided together within the jurisdiction of the said court. In these circumstances, the position seems to me to be inescapable that so far as sec. 31 of the Act of 1954 is concerned, the present application cannot lie.

4. The contention of learned counsel, however, is that the matter should not be held to be concluded by this. His submission is that it is well-established that on general principles it is the court of domicile which has or can have jurisdiction in matters of divorce. It is further argued that a woman on her marriage acquires the domicile of her husband. From this it is contended that the respondent acquired an Indian domicile in spite of the fact that she is an English woman and has never been to India. It is further submitted that the general principle being that it is only a court of domicile of the two spouses which can grant a decree for dissolution of the marriage, it would not be open to the petitioner to seek any relief in the English courts, and that if the view adopted by the learned District Judge were accepted as correct, the petitioner would be left without any remedy whatsoever, although according to sec. 27 of the Act of 1954, which according to learned counsel fully applies to the petitioner, a petition for divorce could undoubtedly be made by him under clause (b) thereof.

5. The question which emerges for determination, therefore, may be put somewhat like this : —

"whether an application for divorce by a husband domiciled in India and living within the jurisdiction of the District Judge, Jodhpur, can be made in the Jodhpur Court under the principles of Private International Law although admittedly the marriage between the parties was not solemnized within t

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