ORDER

What Justice Oliver Wendell Holmes in his book ‘The Common Law’ (1881) at the very first page had said, should prelude this judgment:

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow- men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become...”

2. The estranged spouses are fighting this legal battle.

Respondent – wife has filed MC No.1761/2018 u/s. 27(1)(a) & (d) of the Special Marriage Act, 1954 r/w Sec.18 of the Foreign Marriages Act, 1969 seeking a decree for dissolution of marriage and for the retention of child custody. Petitioner – husband had filed application in I.A.No.4 u/s. 151 of CPC, 1908 “to dismiss/reject the divorce petition”; learned 1^st Addl. Principal Judge, Family Court, Bangalore, dismissed the same vide order dated 25.09.2020 holding that the native court has jurisdiction to try the subject matrimonial cause. Aggrieved thereby, petitioner is knocking at the doors of Writ Court.

3. After service of notice, respondent – wife having entered appearance through her counsel has filed the Statement of Objections on 09.03.2021 resisting the Writ Petition. Learned Senior Advocate appearing for the respondent makes submission in justification of the impugned order and the reasons on which it has been constructed. Having argued additional reasons, she seeks dismissal of the petition as being devoid of merits.

4. FACTS IN BRIEF:

(a) Petitioner – husband, is a ‘Christian by faith’ and Respondent – wife is a ‘Hindu by faith’; both they are British nationals; their marriage was solemnized on 20.02.2000 according to ‘Hindu Arya Samaj rites & customs’, in the presence of family members & friends at Mumbai; subsequently, a civil marriage ceremony was undertaken on 18.03.2000 in United Kingdoms; a Certificate of Registration evenly dated has been obtained by them.

(b) For a few years, their married life went well and the couple begot a girl child namely Tiya on 21.04.2006 in UK; this child too happens to be a British national; after this new arrival to the family, the couple has been residing in India, is not in dispute. Both they are employed too; the respondent obtained ‘Overseas Citizens of India Card’

(hereafter OCI Card) on 27.06.2006 u/s. 7B of the Citizenship Act, 1955; similarly, petitioner also obtained OCI Card on 13.07.2017; the temperamental and other differences having cropped up between the couple, the respondent filed M.C.No.1761/2018 seeking a decree for dissolution of marriage on 03.04.2018. Petitioner had filed the subject application seeking dismissal of the M.C. on the ground of lack of jurisdiction contending that it is only the English Courts that have it; the same has been rejected vide impugned order.

5. Having heard the learned counsel for the parties and having perused the petition papers, this Court declines indulgence in the matter for the following reasons:

(a) What the Apex Court observed as under in JOSEPH SHINE vs. UNION OF INDIA, (2019) 3 SCC

39 at page 76 has been profitably reproduced:

“…the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. Individual dignity has a sanctified realm in a civilised society. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity.