ORDER :- The question for consideration in both these matters is whether the High Court will have jurisdiction to entertain matrimonial matters irrespective of whether the husband and wife reside at Madras or last resided together at Madras or not?

2. As pointed out in Thelma Agnes Kershaw v. Archibald Cyril Kershaw, AIR 1930 Lahore 916, in cases under the Divorce Act, the question of jurisdiction is of paramount importance and does not fall to be determined purely on allocation of the onus of proof. In these cases, it is the duty of the Court, apart from any objection that might have been taken by one or other of the parties, to enquire into and set out in the judgment, facts which show clearly that it possesses jurisdiction to pronounce a decree for dissolution of marriage.

3. Apart from the preamble, the sections relevant in the Indian Divorce Act, 1869 (now the Divorce Act) are Sections 3(1), 3(3), 3(4), 4, 6, 8, 10, 11, 16, 18, 20, 22, 23 and 45. We have also to advert to Clause 35 of the Amended Letters Patent and Ss. 15 and 24 of the Code of Civil Procedure. We may have occasion to refer to S. 482 of the Code of Criminal Procedure.

4. Sengottuvelan, J. in Dexter S. Anthony v. June P. Anthony (1985) 2 Mad LJ 200 has made a thorough study of the position relating to jurisdiction. It is worthwhile to advert to the various portions of the judgment of the learned Judge.

5. The learned Judge has referred to the speech in the Legislative council on 26th March, 1869 by the Hon'ble Mr. Maine in paragraph 8 of his judgment. The speech would indicate that the Legislature never intended to confer a concurrent jurisdiction on both the High Court and the District Court. The learned Judge has extracted the relevant portion of the speech quoted at pages 74 and 75 of the Law of Divorce by the Hon'ble Sir Henry Rattigan, Kt, Second Edition, which is as follows :

"On the question whether the District courts should be allowed a jurisdiction in divorce cases, there was a difference of opinion. The main reason why the Select Committee had given this jurisdiction was that the refusal of it would amount to a denial of relief to large classes of persons affected by the Bill. It would be a mere mockery of Europeans and East Indians in distant cities, and Native Christians in mofussil villages, to tell them to come to the High Courts in the Presidency towns for judgments of divorce. It is however said that the District Courts are not equal to those duties. That argument is one which should be looked upon with great distrust. If it be established that certain new legal rights and remedies should be created for the benefit of any class of Her Majesty's subjects, and the Indian Courts are incompetent to administer them, the proper inference should be that the Courts should be reformed, not that the rights and remedies should be refused. But the charge is, in truth, often hastily made, and, moreover, there is nothing specially difficult in questions of divorce. They are important on account of their social importance, but for the most part, involve very simple questions of fact. .....If, however, it be once granted that the District Courts must have jurisdiction, their exercise of it is, by this Act fenced round with many safeguards. The High Court can call up at any time any case that presents special difficulty. ..... The Act applies to the decrees of District Courts the same principle which is applied in India to capital sentences, and required that they be confirmed by the High Court. And the High Court has full powers of calling for fresh evidence."

6. The preamble to the Indian Divorce Act runs as follows :

"Whereas it is expedient to amend the law relating to divorce of persons professing the Christian religion, and to confer upon certain Courts jurisdiction in matters matrimonial, it is hereby enacted as follows" :

Section 3(1) states that "High Court" means, with reference to any area in a State, the High Court for that State and in the case of any

Click Here to Read the rest of this document