V. V. BEDARKAR, J. ( 1 ) THE point involved in this appeal is a very important and hotly contested one as to whether a Hindu who married according to Hindu rites in India can claim that the provisions of Hindu Marriage Act are not applicable to him as he (as the husband claims here) is not domicile of India ? This is the main question and other questions which are raised will be discussed during the course of the judgment. ( 2 ) THE facts of the case are that Nitaben (Appellant in First Appeal no. 278 of 1982) and respondent no. 1 Dhirendra Chandrakant Shukla were married in India according to Hindu rites on 22-6-1977. Thereafter the appellant-wife was taken to Nairobi in Kenya where respondent no. 1 husband was residing. There she gave birth to a male child who is named Manish. It is the allegation of the appellant-wife that she was not treated properly but was cruelly treated. Then she came back to India with her uncle-in-law and informed her parents about the treatment metted out to her and that she did not want to go to Nairobi at her husbands place. It was also known that prior to this marriage respondent no. 1 had married twice. After the appellant- wife came back to India she filed Hindu Marriage Petition no. 88 of 1979 foredecree of divorce and in the alternative for a decree of judicial separation against her husband-respondent no. 1 on the ground of cruelty. This petition was filed on 31-3-1979. thereafter amendment was carried out as per the order of the Court on 7-4-1980 wherein relief was added for a declaration that the marriage of appellant-wife (hereinafter referred to as the petitioner) with respondent no. 1 is null and void inasmuch as respondent no. 1 had a spouse living at the time of the marriage with the petitioner. ( 3 ) THE unamended petition was replied to by the respondent no. 1- husband by written statement Ex- 6. In the said written statement the allegations made by the petitioner-wife are denied. But a specific averment is made that the petitioner-wife and the respondent-husband both are Hindu by religion and they are Brahmins. It is further averred that respondent-husband is not a citizen of India nor domicile of India. 1- husband by written statement Ex- 6. In the said written statement the allegations made by the petitioner-wife are denied. But a specific averment is made that the petitioner-wife and the respondent-husband both are Hindu by religion and they are Brahmins. It is further averred that respondent-husband is not a citizen of India nor domicile of India. It was averred that he was born at Nairobi in Republic of Kenya where his father though a British subject and citizen of United Kingdom Colonies was residing and was a domicile of Kenya. The respondent- husband was never a domicile of India nor national thereof and that he was permanently residing and doing business at Nairobi in Kenya. It is alleged that the Act applies to Hindus who are domiciled within the territories to which the Act extends and to those who are outside the State territories. Therefore it was averred that it means that all Hindus domiciled in India whether they reside in India or abroad are governed by the provisions of the Act. The respondent-husband is not domiciled in India but is domiciled in the territories of Kenya and is permanently residing in Kenya and doing his business and has his permanent residence in the city of Nairobi (Kenya ). Therefore the Act is not applicable to him so far as marital relations are concerned. Then it is averred that assuming without admitting that the petitioner- wife is domiciled in India but as the respondent-husband is not domiciled in India on all the grounds stated above the provisions of the Act did not apply. ( 4 ) THE respondent-husband also raised an objection in his written statement that the Ahmedabad City Civil Court had no jurisdiction to entertain the petition filed by the petitioner-wife and requested that that issue should be decided as a preliminary issue. The respondent-husband admitted that the marriage between the parties took place at Ahmedabad but according to him that would not jurisdiction to the Ahmedabad Court more particularly when the Act did not apply to the respondent- husband. The respondent-husband admitted that the marriage between the parties took place at Ahmedabad but according to him that would not jurisdiction to the Ahmedabad Court more particularly when the Act did not apply to the respondent- husband. ( 5 ) IN paragraph 4 of the written statement it is averred with various details that negotiations before the marriage took place and at time it was specifically stated to the petitioner and her father that the respondent was twice married once with Bai Kusum Dahyabhai Desai on 15-1-1970 and again with Bai Pragna daughter of one Ambaprasad N. Shukla of Ahmedabad on 8-7-1973. It was averred that marriage with Bai Kusum was dissolved by mutual consent on 26-5-1971. Further it is averred that said Bai Kusum had embraced Islam in Republic of Tanzania the country where the law of Islam was not the law of the laud and therefore apart from the consent of both the parties the marriage had automatically dissolved. . . . . . . . . . . . . ( 6 ) THUS in terms it was the case of the respondent-husband that there was no case of cruelty and on the contrary the petitioner-wife was minded not to stay at Nairobi and after she came to India at the prompting of her parents she refused to go to Nairobi and made out a false case and the main ground is that the respondent being a domicile of Kenya the Act is not applicable and therefore the Ahmedabad Court has no jurisdiction. ( 7 ) AFTER the aforesaid written-statement was filed by the respondent husband an amendment was made by the petitioner-wife in the original petition by adding following paragraphs 2-A and 2-B:2 The petitioner states that she has come to know that the opponent was married to one Bai Kusum daughter of Dahyabhai Desai and that the marriage was solemnised on 15/01/1970. The said marriage of the opponent with Bai Kusum is still subsisting and is not dissolved by a legal and valid decree of dissolution of the said marriage. The opponent did not disclose this fact to the petitioner and the petitioner has now learnt that the opponent had a spouse living at the time of the marriage with the petitioner on 22/06/1977. The opponent did not disclose this fact to the petitioner and the petitioner has now learnt that the opponent had a spouse living at the time of the marriage with the petitioner on 22/06/1977. The petitioner states that since the spouse of the opponent that is Bai Kusum daughter of Dahyabhai Desai was living at the time of the marriage and since the marriage of the opponent with Bai Kusum was not legally and validly dissolved by a decree of competent Court the marriage of the opponent with the petitioner on 22/06/1977 is null and void and is liable to be declared null and void under sec. 11 of the Hindu Marriage Act 1955 The said marriage is in contravention of sec. 5 (1) of the Hindu Marriage Act 1955 and is therefore liable to be declared null and void under sec. 11 of the said Act. ( 8 ) THE petitioner states that she files this petition for declaration that her marriage with opponent solemnised at Ahmedabad on 27/06/1977 according to Hindu rites is null and void The petitioner stales that in case the Honble Court finds that the marriage of the petitioner with the opponent is not a void marriage the petitioner also prays for a decree of dissolution and/or judicial separation on the ground thereafter set out (meaning thereby from paragraph 3 onwards of the petition to which reference is already made ). ( 9 ) THIS amendment to the petition was replied by the respondent husband contending that he denies the contents of paragraph 2-A and that it is not true that his marriage with Bai Kusum and the fact of dissolution of the said marriage were not disclosed to the petitioner before their marriage. It is averred that the petitioner and her parents were specifically told that he had married with one Bai Kusum while he was studying as a foreign student in India and that the said marriage was dissolved on 26-5-1971 by mutual consent according to the custom of the community and the country where they resided Then it is averred that from 26-5-1971 Bai Kusum had ceased to be the wife of respondent. It is further contended that Bai Kusum was resident and domicile of United Republic of Tanzaniya (East Africa) where the law of Islam is not the law of the land which averments are already made in the earlier written statement. It is further averred that Bai Kusum had embraced Islam and then she married one Dr. Syed Nisar Ahmed Syed Mateen Ahmed on 1-12-1971 at Dar-es-Salam in the United Republic of Tanzaniya according to Islamic rites. Thereafter statements regarding divorce by mutual consent and automatic dissolution of marriage with Bai Kusum as averred in the earlier written statement are made. Therefore it is submitted that the marriage between the petitioner and respondent is not in contravention of sec. 5 (1) of the Act and therefore it is not liable to be declared null and void under sec. 11 of the Act. Again it is reiterated that the Act is not applicable to the respondent-husband. ( 10 ) IT seems that this additional ground was created because it was averred in the written-statement that marriage between Bai Kusum and the respondent was dissolved by mutual consent according to the custom of the community and the country where they resided and also that on Bai Kusum being converted to Muslim the marriage automatically dissolved. Probably considering the legal situation it was again re-affirmed in the added paragraphs that the dissolution of marriage with Bai Kusum was not legal and therefore that marriage subsists and hence the marriage of the petitioner with the respondent was in contravention of sec. 5 (1) of the Act and therefore null and void. ( 11 ) ON these pleadings the learned trial Judge raised as many as 8 issues the important being: (1) Whether the Hindu Marriage Act is not applicable to the present petition as contended in paragraphs 1 and 2 of the written statement ? (2) Whether this Court has no jurisdiction to try this petition ? (3) Whether the petitioner proves that she has been treated with physical and mental cruelty during the period she resided with the respondent as alleged in the petition ? (6) Whether there is any impediment under sec. 23 of the Hindu Marriage Act 1955 for not granting the decree as prayed ? (7) To what relief if any is the petitioner entitled ?there were also issues about collusion and reconciliation. (6) Whether there is any impediment under sec. 23 of the Hindu Marriage Act 1955 for not granting the decree as prayed ? (7) To what relief if any is the petitioner entitled ?there were also issues about collusion and reconciliation. ( 12 ) WHEN the learned trial Judge decided this petition on 4-1-82 he did not decide issue no. 1 about the applicability of the Act. He decided issue no. 2 to the effect that the Court had no jurisdiction to hear the petition. He did not decide any other issue at that time. Now it should be noted that even though the learned trial Judge did not decide issue no. 1 as he has mentioned in the finding of that issue in fact he came to the conclusion about the Court having no jurisdiction because he held that the Act is not applicable. In paragraph 45 of his judgment he has specifically observed that as the Act does not provide for extra-territorial extension over the Hindus not domiciled in India and not within the territories of India it would mean that no court in this country could have jurisdiction under the Act over such a Hindu. Against this decision of the learned trial Judge the petitioner-wife came to this Court by way of First Appeal No. 278 of 1982. It was heard by this Court (G. T. Nanavati J.) on 6-12-82. The matter was sent back to the trial Court for giving decision on all the issues. Therefore after the remand the learned trial Judge took evidence and gave another decision on 1-2-83 deciding all the issues. The second decision on all the issues is to the effect that the learned trial Judge decided issue no. 1 in the affirmative; and issue no. 3 about physical and mental cruelty also in the affirmative i. e. in favour of the petitioner-wife. It should be noted that after the amendment was carried out in the petition the learned trial Judge had raised two more issues i. e. issue nos. 3 (a) and 3 (b) as under:3 Whether the petitioner proves that the respondent had a spouse living at the time of his marriage with the petitioner ? 3 Is the petition barred by the principle of non-joinder of necessary parties ?in the earlier decision both these issues were not decided. 3 (a) and 3 (b) as under:3 Whether the petitioner proves that the respondent had a spouse living at the time of his marriage with the petitioner ? 3 Is the petition barred by the principle of non-joinder of necessary parties ?in the earlier decision both these issues were not decided. I have to mention one additional fact that after these two additional issues and especially issue no. 3 (b) were raised an amendment was sought to implead Bai Kusum as a co-respondent which was allowed. After the matter was sent back by this Court issue no. 3 (a) was decided in the negative so far as Bai Pragna was concerned and in the affirmative so far as Bai Kusum was concerned but that was subject to the application of the Act. So far as issue no. 3 (b) was concerned it was answered in the affirmative so far as Bai Pragna was concerned and so far as Bai Kusum was concerned it did not survive as she is joined as respondent No. 3. Issue about collusion was decided in the negative and issue about reconciliation between the parties was decided in the affirmative. So far as issue no. 6 about impediment under sec. 23 of the Act was concerned it was answered in the affirmative so far as relief under sec. 11 of the Act is concerned and it was answered in the negative so far as other relief was concerned i. e. so far as relief for a decree of nullity was concerned it was considered that there was impediment of sec. 23 of the Act but so far as decree for judicial separation was concerned there was no impediment. Issue no. 7 was decided to the effect that the petitioner would be entitled to a relief of judicial separation but that was also not granted holding that the Act is not applicable. This decree is now attacked by both the parties by the petitioner by way of First Appeal No. 278 of 1982 so far as issues which are decided against her are concerned and by respondent No. 1 husband by way of Cross-objections as also by way of First Appeal No. 443 of 1983 so far as issues decided against him are concerned. ( 13 ) NOW the following facts before me are not disputed: (1)ON 15-1-1970 there was first marriage between respondent no. ( 13 ) NOW the following facts before me are not disputed: (1)ON 15-1-1970 there was first marriage between respondent no. 1 and Bai Kusum Dahyabhai Desai at Ahmedabad (2) on 8-7-1973 there was second marriage between respondent no. 1 and Bai Pragna Ambaprasad Shukla at Ahmedabad which was dissolved in Kenya on 24-4-1976 (3) the present marriage between respondent no. 1 and petitioner took place on 22-6-1977 at Ahmedabad according to Hindu rites i e. in India where the Act is applicable (4)THE petitioner-wife went to Nairobi on 22-7-1977 and stayed at Nairobi and gave birth to a male-child named Minesh on 2 and by about 22-12-1978 she returned to India with the uncle of respondent no. 1 and after staying for a week at Bombay she came to Ahmedabad and filed a petition on 31 (5) Petitioner-wife had come to India with child Minesh whose custody was handedover to Shri Ramniklal uncle of respondent no. 1. ( 14 ) IT is submitted before me on behalf of the petitioner-wife as to whether in view of the admitted position that both the spouses are Hindus marriage was performed according to Hindu rites at Ahmedabad i. e. in India where the Act is applicable the question of domicile of any of the parties would in any way assume importance ? The learned trial Judge as considered earlier first decided that the Court had no jurisdiction and also held that the Act is not applicable though he did not elaborate that aspect in his decision. On second round of evidence he held the issue of cruelty in favour of the petitioner-wife. He held that the marriage with Kusum did not subsist at the date of the petition. For this two grounds were raised (1) the marriage was dissolved according to the custom of the community and (2) apostasy of Bai Kusum and therefore automatic dissolution of the marriage. ( 15 ) IN order to consider the question of custom the learned trial Judge relied on Agreement for Dissolution of Marriage Ex. 89 wherein an averment is made that the marriage between Bai Kusum and respondent no. 1 has been dissolved on the ground that the marriage between them has not been consummated and as such the marriage being a nullity was void. The words and as such the marriage being a nullity was void are added afterward. 89 wherein an averment is made that the marriage between Bai Kusum and respondent no. 1 has been dissolved on the ground that the marriage between them has not been consummated and as such the marriage being a nullity was void. The words and as such the marriage being a nullity was void are added afterward. It is also averred therein AND WHERE As there is a custom amongst the said Audichaya Brahmin Community and Anavil Brahmin Community to which the parties hereto respectively belong to dissolve their said marriage by consent. This aspect was relied on by the learned trial Judge who held that this proves that the marriage was not consummated at all between the two and secondly there was a custom in favour of divorce by mutual consent. But he observed that the two respondents (respondent no. 1 and Bai Kusum) belonged to the Brahmin caste in which customary divorce is a novel proposition so far as this country is concerned. He considered that an attempt has been made to propose that such custom has now developed since divorces by mutual consent do take place in this community. He relied on the oral testimony of P. P. Vyas Ex. 114 Mahendra Labhshanker Trivedi Ex. 164 and Kaushik M. Dave Ex. 173 in support thereof. He however observed that the attempt is futile so far as this country is concerned; such custom must be old and ancient while it must be well established. He further observed that however the question remains whether there is such an old and ancient custom prevalent amongst the Brahmins who have settled since generations in Kenya or Tanzania. According to his finding there is no evidence to disprove the recital of such custom in the above mentioned divorce deed and non-consumation of marriage between the two spouses. Then though he considered that the burden of proving prevalence of such custom is on respondent no. 1 there was no reason to discard the Deed of Dissolution of Marriage Ex. 89 and the oral testimony of respondent no. 1s uncle Ramniklal Kalidas Shukla Ex. 78 on this point. All this evidence will be considered by me at an appropriate stage. I am at this stage considering as to what were the findings of the learned trial Judge and on what basis. 89 and the oral testimony of respondent no. 1s uncle Ramniklal Kalidas Shukla Ex. 78 on this point. All this evidence will be considered by me at an appropriate stage. I am at this stage considering as to what were the findings of the learned trial Judge and on what basis. Then the learned trial Judge has considered that said Ramniklal has asserted that there is custom of taking divorce by mutual consent in their caste at Nairobi and there is no evidence to controvert the oral testimony of this witness Ramniklal on that point. Thereafter the learned trial Judge did not give any finding. Then in paragraph 7 of his judgment the learned trial Judge considered the aspect of conversion of Bai Kusum (respondent no. 2) to Islam. He also considered Ex. 131 which is a certified copy of the entry from the Register of Marriages at Tanzania showing that Bai Kusum married Dr. Syed Nisar Ahmed Syed Mateen Ahmed at Dar-es-Salam (Tanzania) and also the legal position in regard to conversion to Islam on the marriage appearing in paragraph 20 at page 17 of Principles of Mahomedan Law by Mulla 16 Edition and h held that because the country where Bai Kusum embraced Islam was the country of which the law of Islam was not the law of the land after three months of conversion if the husband does not embrace Islam the marriage gets automatically dissolved Both these points are very much disputed before me and therefore they will be considered at an appropriate stage. The learned trial Judge also considered that as the respondent-husband was not a domicile of India the Act would not be applicable. He came to the conclusion that cruelty was proved from the evidence led especially letter Ex. 111 written by Ramniklal (uncle of respondent no 1) to the father of the petitioner-wife. ( 16 ) HERE before me assertion of Mr. G. N. Desai learned Advocate for the appellant (petitioner-wife) is that the Act applies; that the proceedings are governed by the Act; that the marriage is a nullity in view of the fact that there is no valid dissolution of marriage between respondent no. 1 and respondent no. 2 (Bai Kusum); and that there is no bar of sec. 23 of the Act. 1 and respondent no. 2 (Bai Kusum); and that there is no bar of sec. 23 of the Act. It should be noted that the learned trial Judge also considered that after having known about the earlier marriage and the alleged divorce the petitioner remained as a wife of respondent no. 1-husband and therefore there is delay also. Then it is submitted by Mr. Desai that point of cruelty physical as well as mental is held in favour of the petitioner-wife and therefore either decree of divorce under sec. 13 of the Act should be granted or if the Act does not apply decree under sec. 9 of the Code of Civil Procedure 1908 should be granted. ( 17 ) BEFORE considering the question of custom and also question about dissolution of marriage of respondent no. 1 with Bai kusum on the point of custom as well as on the point of her embracing Islam relevant provisions on which reliance is placed for the relief of nullity of marriage shall have to be referred to. Sec. 5 (i) of the Act is as follows5 Conditions for a Hindu Marriage. A marriage may be solemnised between any two Hindus if the following conditions are fulfilled namely: (i) neither party has a spouse living at the time of the marriage. This provision would mean that if a marriage is solemnised between the parties one of whom has a spouse living at the time of the marriage then it is not a valid marriage. Then provision of sec. 11 of the Act shows as to what are void marriage. It reads:11 Any marriage solemnised after the commencement of this Act shall be null and void and may on a petition presented by either party thereto against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) (iv) and (v) of sec. 5. It is therefore that application for amendment was given to get a decree of nullity under sec. 11 of the Act. ( 18 ) NOW it is not in dispute that marriage in contravention of any of clauses (i) (iv) and (v) of sec. 5 of the Act is null and void ab initio and need not be so declared. It is therefore that application for amendment was given to get a decree of nullity under sec. 11 of the Act. ( 18 ) NOW it is not in dispute that marriage in contravention of any of clauses (i) (iv) and (v) of sec. 5 of the Act is null and void ab initio and need not be so declared. But if any party wants a declaration to mann a party with some authenticated decree of a Court than the party may file a petition and get a declaration to that effect. Therefore the real ground to be considered is whether the marriage of Bai Kusum with respondent no. 1 was subsisting at the time when the marriage between the present parties was celebrated. Of course question whether the Act is applicable or not would be keeping its shadow on these two considerations also because if the Act is not at all applicable than provisions of sec. 5 of the Act also would not be applicable. For the time being proceeding with consideration that the Act is applicable I am considering whether the case of custom of divorce by mutual consent is proved. ( 19 ) SEC. 3 of the Act deals with definitions. Clause (a) of sec. 3 of the Act defines the expressions custom and usage as under:3 In this Act unless the context otherwise requires (a) the expressions custom and usage signify ally rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group of family; provided that the rule is certain and not unreasonable or opposed to public policy; and provided further that in the case of a rule applicable only to a family it has not been discontinued by the family. The second proviso is not applicable in the instant case. Now in order that any usage can be regarded as ancient and certain it must necessarily be continuous and uniform invariable uninterrupted and notorious and as provided in this clause (a) of sec. 3 of the Act it must have been observed for a long time. The expression for a long time certainly takes out the earlier words used for custom which require it to be from time immemorial. 3 of the Act it must have been observed for a long time. The expression for a long time certainly takes out the earlier words used for custom which require it to be from time immemorial. ( 20 ) IN GOKAL CHAND V. PARVIN KUMARI A. I. R. 1952 SUPREME COURT 231 the Supreme Court has observed:a custom in order to be binding must derive its force from the fact that by long usage it has obtained the force of law but the English rule that sa custom in order that it may be legal and binding must have been used long that the memory of man runneth not to the contrary should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has by common consent been submitted to as the established governing rule of a particular locality. In that case it is also stated how a custom can be proved-A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy and such evidence may be safely acted on when it is supported by a public record of custom. Keeping this in mind I shall now proceed to consider the evidence in regard to the custom led in the instant case. . . . . . . . . . . . . . ( 21 ) FIRST witness on the count of custom examined on behalf of respondent no. 1-husband is his uncle Ramniklal Kalidas Shukla Ex. 78 This witness in the last line of his examination-in-chief has stated that in Nairobi there is custom of taking divorce by mutual consent in their community. But when he was put questions in cross-examination on this point he stated that according to his opinion even in India there is custom of taking divorce by mutual consent is Audichaya Sahastra Brahmin community (to which the parties belong) and then it is his assertion that there is like custom in their said community in Kenya. But when he was put questions in cross-examination on this point he stated that according to his opinion even in India there is custom of taking divorce by mutual consent is Audichaya Sahastra Brahmin community (to which the parties belong) and then it is his assertion that there is like custom in their said community in Kenya. Therefore it is not his case that there is any separate custom so far as Audichaya Sahastra Brahmin community in Kenya is concerned but the community follows the customs followed by Audichaya Sahastra Brahmin in India. Then he has asserted that there is no such new custom or usage started either in India or in Kenya. So again it is not his case that there is different custom in India and different custom in Kenya in the said community. He has merely stated that there is such a custom but no evidence is led in support thereof. ( 22 ) IMPORTANT witness examined on this aspect is Purshottamdas Pranjivandas Vyas Ex. 114. He is a person who held important post in the community at Ahmedabad. He was the President of the Mandal (Association ). He is examined as an omniscient witness who took part in the marriage negotiations of the present parties and also in various affairs and also who is under financial obligations of Ramniklal uncle of respondent no. 1. That apart I shall consider his evidence so far as custom in Audichaya Sahastra Brahmin community in India is concerned. He has stated that in their community divorces are obtained by mutual consent. He however could not say whether there is such usage or custom. He has stated that twice he had an occasion to sign as witness the documents pertaining to such types of divorce by mutual consent and then he has referred to the cases of two couples-Bhupendra Raval and Manormaben and Kaushikbhai Mukulrai and Kailasben alias Ritaben who took divorce by mutual consent and he had signed the documents as one of the attesting witnesses. Thus this witness is not sure whether there is custom or usage of taking divorce by mutual consent in their community and he only says that there are some instances of taking divorce by mutual consent. Thus this witness is not sure whether there is custom or usage of taking divorce by mutual consent in their community and he only says that there are some instances of taking divorce by mutual consent. During his further examination-in-chief even he was made to admit that the constitution of the Mandal of their community is a written one but therein there is no Mention about any such usage or custom of marriage or divorce by mutual consent. He specifically admitted that there is no reference to any custom of their community in the said written constitution. Then in order to show the custom or usage he made a very categorical statement that in their community divorce by mutual consent are obtained since last few years and according to him this started since last 8 to 10 years. He had to admit that so far as his knowledge goes there was no such usage or custom before 10 years and that this has been the practice now a days. During cross-examination this witness had to admit that his elder son had taken divorce through Court some 10 years back meaning thereby this custom of the community was not opted by him in the case of his own son. therefore question: in re-examination was put as to why his son was required to take recourse through Court and he replied that the wife of his son had gone away without informing anybody. Thus this witness who is examined as a leader of the community does not say of divorce by mutual consent by custom or usage as envisaged by sec. 3 of the Act. ( 23 ) NARENDRA Labhshanker Trivedi Ex. 164 examined on behalf of respondent no. 1-husband is a person who had obtained such divorce by mutual consent. His divorce with his wife Shardagauri was by mutual consent through document Ex. 167. In document Ex. 167 it has been asserted that both of them had married according to Hindu rites and also according to the custom and usage of their community. This is with reference to the marriage. So far as divorce by mutual consent is concerned there is no reference to such custom or usage. This witness was put question during the cross-examination and he stated that he does not know that there is any written constitution of their community. This is with reference to the marriage. So far as divorce by mutual consent is concerned there is no reference to such custom or usage. This witness was put question during the cross-examination and he stated that he does not know that there is any written constitution of their community. He also did not inquire whether there were any instances of divorce by mutual consent in their community. He also admitted that the Advocate who prepared document Ex. 167 did not make any inquiry about the custom in their community. He stated that he does not know whether there is any custom or usage in their community to take divorce by mutual consent. ( 24 ) ANOTHER witness Kaushik Mukundrai Dave Ex. 173 in examination-in chief chief states that he does not know whether there is any such custom (about taking divorce by mutual consent) but it is his case that as per the say of the elders divorce by mutual consent can be obtained in their community. This witness got his marriage dissolved by mutual consent with one Ritaben. Both of them belonged to Audichaya Brahmin community. He also produced at Ex. 175 document of divorce by mutual consent between him and Ritaben. Therein also there is reference to marriage according to Hindu rites and usage and custom in the community. But so far as divorce is concerned there is no such mention. It should also be noted that in earlier document Ex. 167-deed of divorce between Narendra Labhshanker Trivedi and Shardagauri who also belonged to Audichaya Sahastra Brahmin community-it was also mentioned that as both of them were not pulling on well after a good deal of thinking and after obtaining the advice of elderly persons both of them decided to separate by this divorce deed. Therefore in both the documents Exs. 167 and 175 there is no mention of custom in the community so far as divorce by mutual consent is concerned. In cross-examination this witness Kaushik Ex. 173 has admitted that Shri P. P. Vyas (Purshottamdas Pranjivandas Vyas Ex. 114) was one of the elder persons whom he consulted. Then he had to admit that he had not seen any other document pertaining to such divorce by mutual consent in their community. He also admitted that no other divorce by mutual consent took place in his presence in his community. 114) was one of the elder persons whom he consulted. Then he had to admit that he had not seen any other document pertaining to such divorce by mutual consent in their community. He also admitted that no other divorce by mutual consent took place in his presence in his community. He also admitted that said Shri P. P. Vyas happens to be the maternal uncle of his wife. So this evidence on the contrary does not bring out any custom or usage in the community in question. ( 25 ) AN argument was advanced that this custom or usage must be considered to be the custom or usage applicable in Kenya. But I have already referred to the evidence of Ramniklal Shukla Ex. 78 (uncle of respondent no. 1) who says that custom in Kenya in Audichaya Sahastra Brahmin community is the same which is prevalent in India and therefore there is no different custom and if that custom in India is not proved how can this Court believe that the said custom is prevalent so far as Kenya is concerned. Here again reference to Deed of Dissolution of Marriage between respondent no. 1 and Bai Kusum Ex. 89 to which reference has already been made is necessary. It cannot be gainsaid that if husband and wife are inclined to separate themselves from each other and in order to stamp that separation with some legality parties may make statements in their own favour meaning thereby they may say that there is a custom of divorce by mutual consent in their community. That bald statement can never create an evidence to prove custom or usage. Still however in Ex. 89 it has been mentioned as under:. . . . . . AND WHEREAS there is a custom amongst the slid Audichaya Brahmin community and Anavil Brahmin community to which the parties hereto respectively belong to dissolve their said marriage by consentso this does not refer to any custom in the community in Kenya itself. It should be noted that the learned trial Judge has relied on this custom as stated earlier from the evidence on record and on the ground that that evidence is not controverted. It should be noted that the learned trial Judge has relied on this custom as stated earlier from the evidence on record and on the ground that that evidence is not controverted. But the learned trial Judge has not applied his mind as to whether this much evidence was sufficient to establish the custom of divorce by mutual consent in Audichaya Sahastra Brahmin community as envisaged by sec. 3 (a) of the Act. Unfortunately in order to consider this aspect the learned trial Judge in paragraph 6 of his judgment after remand has referred the deposition of Ramniklal Shukla Ex. 78 and observed that on page 11 he has denied the suggestion that there is no custom of taking divorce by consent in his caste either at Tanzania or at Kenya. Then he has further observed that there is no evidence to controvert the oral testimony of the witness (Ramniklal) on this point. In fact on referring to the deposition of Ramniklal on page 11 I do not find anywhere this specific denial referred to by the learned trial Judge. There is no question pertaining to Tanzania but this witness was only put questions pertaining to the custom of taking divorce by mutual consent in Audichaya Sahastra Brahmin community in India and his case was that like custom was in the said community in Kenya and that is all. He had to admit that no such new custom is started in Kenya. The learned trial judge has in para 5 of his judgment observed that in order to establish the custom so far as India is concerned respondent no. 1 has made an attempt to prove it try the oral testimony of P. P. Vyas EX. 114 Narendra Labhshanker Trivedi Ex. 165 and Kaushik M. Dave Ex. 173 and then specifically held that the said attempt is futile so far as this country (India) is concerned. He further held that such custom must be old and ancient while it must be well established. Then he turned to consider whether there is such an old and ancient custom prevalent amongst the Brahmins who have settled since generations in Kenya or Tanzania and held that there is no evidence to disprove the recital of such custom in the abovementioned divorce deed (Ex. 89) and non-consumation of marriage between the two spouses (respondents nos. 1 and 2 ). 89) and non-consumation of marriage between the two spouses (respondents nos. 1 and 2 ). Now as considered earlier Divorce Deed Ex. 89 does not refer to any custom in Kenya or Tanzania. It merely refers to the custom in general prevalent in Audichaya Sahastra Brahmin community and according to Ramniklal Ex. 78 that custom in Kenya is like the custom prevalent in India. As considered earlier the learned trial judge has rightly believed that no such custom of taking divorce by mutual consent prevailing in India in the community in question is proved and if that is so there is no evidence pertaining to a new and distinct custom prevalent in Kenya independent of custom in India and therefore that aspect cannot be believed. I am specifically observing this because from the evidence led Divorce-Deed Ex. 89 as well as deposition of Ramniklal it clearly transpires that the custom followed in Kenya is on the basis of the custom followed in India. Therefore if the basic custom is not proved its dependent custom in Kenya can never be said to have been proved. ( 26 ) BEFORE proceeding further I would observe that the learned trial Judge has placed reliance on Divorce Deed Ex. 89 as a statement of custom as well as non-consumation of marriage. Of course Mr. Nanavati for respondent no. 1 did not submit before me that because the marriage between Bai Kusum and respondent no. 1 was not consumated as per Ex. 89 it was not a marriage at all and therefore the marriage would not be subsisting he rightly did so because under the Hindu Law consumation of marriage is not a necessity to make it a valid marriage. But from the evidence on record it seems that assertion in Ex. 89 that marriage between Bai Kusum and respondent no. 1 was not consumated was also made in the interest of the parties. It is true that evidence of Ramniklal Shukla Ex. 78 to which I do not propose to refer in details clearly shows that he did not permit both the respondents to come together at Nairobi and therefore they could not consumate the marriage. But it seems that after he knew about the marriage of both the respondents in India through his brother (father of respondent no 1) he ran down to India but that he did after five months. But it seems that after he knew about the marriage of both the respondents in India through his brother (father of respondent no 1) he ran down to India but that he did after five months. For that some reference would be necessary to the evidence on record of this very Ramniklal. ( 27 ) ACCORDING to Ramniklal Shukla Ex. 78 respondent no. 1 married with Kusum on 15-1-1970 without obtaining his (Ramniklals) consent. This witness proposes to be senior in the family and intends that nobody should make any move without his consent. At that time father of respondent no. 1 was in India and he got the marriage certificate in his hand and therefore he telephoned to Ramniklal at Nairobi and asked for his advice. This happened in the beginning of April 1970. The marriage took place in January 1970 One cannot overlook the fact that when two young people marry stealthily without informing their parents that must be due to love and infatuation. Can it therefore be said that from January to April 1970 these lovebirds would not have consumated the marriage in India ? According to Ramniklal after having known about the marriage in April he went to India after about 20 to 25 days and brought respondent no. 1 to Nairobi and then he stated that Bai Kusum did not stay as wife with respondent no. 1 in their house at Nairobi. This does not vouchsafe that they must not have consumated any time in India. On the contrary Ramniklal has admitted that respondent no. 1 had the desire that his marriage with Bai Kusum must continue and so also Kusum desired the same. This he knew when he met Bai Kusum twice in India. Therefore this statement of non-consumation of marriage in Ex. 89 cannot be said to be true and likewise the statement about custom and usage cannot be said to be Gospel truth merely because a statement to that effect is made in Ex. 89. On the contrary evidence on record clearly disproves such a statement. . . . . . . . . . . . . ( 28 ) THEN comes the question about automatic dissolution of marriage. I am considering this aspect because though it is dependant upon the applicability of Hindu Law I am going to hold that provisions of Hindu Law are applicable to the parties. . . . . . . . . . . . . ( 28 ) THEN comes the question about automatic dissolution of marriage. I am considering this aspect because though it is dependant upon the applicability of Hindu Law I am going to hold that provisions of Hindu Law are applicable to the parties. That aspect will be discussed hereafter. Fact remains that Bai Kusum was a Hindu. She also married with respondent no. 1 in India according to Hindu rites. Respondent no. 1 is also a Hindu. Therefore prima facie effect of apostasy to Islam on a marriage between two Hindu spouses is to be considered. The learned trial Judge somehow or the other referred to a part of the notes in Principles of Mahomedan Law by Mulla 16 Edition appearing in paragraph 20 at page 17 and reproduced the following:conversion to Mahomedanism and Marital Rights (1) The conversion of a Hindu wife to Mahomedanism does not ipso facto dissolve her marriage with her husband. (2) According to Muslim Law a distinction is made between coversion to Islam of one of the spouses when such conversion takes place: (i) in a country subject to Muslim Law and (ii) in a country where the Law of Islam is not the law of the land. Then he considered that in the first case where one of the parties embraces Islam he or she should offer Islam to the other spouse and if the latter refuses the marriage can be dissolved and in the second case the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. Then he considered that the Law of Islam not being the law of the land in Kenya or Tanzania after a period of three months the marriage is automatically dissolved. For this he relied on the Law of Domicile Act Kenya the printed book (Chapter 37) of which is produced at Ex. 130. That is almost identical to law of domicile as brought out in Indian Succession Act from section 16 onwards. There in also the wifes domicile after the marriage is the domicile which is of her husband i. e. the wife follows the domicile of her husband. Therefore. 130. That is almost identical to law of domicile as brought out in Indian Succession Act from section 16 onwards. There in also the wifes domicile after the marriage is the domicile which is of her husband i. e. the wife follows the domicile of her husband. Therefore. considering her domicile of Kenya this provision was made applicable holding that the marriage automatically dissolved after three months of Bai Kusums embracing Islam. After reproducing the aforesaid provision from the Principles of Mahomedan Law by Mulla on page 17 para 20 the learned trial Judge observed that the marriage was automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses. In this very book by Mulla there is further aspect that this however is not the law in India. Probably this line was not taken into consideration by the learned trial Judge holding that Bai Kusum was not Indian and the law in India would not be applicable to her. Further it seems that it may be because the conversion did not take place in India but it took place in a country where the law of Islam is not the law of the land i. e. Kenya or Tanzania. Therefore he applied this principle. But can it be overlooked that Bai Kusum was a Hindu and the marriage which is claimed to have been dissolved automatically on her embracing Islam was the marriage which took place in India according to Hindu rites ? ( 29 ) ON the contrary on this point there is a very elaborate decision of the Bombay High Court in ROBASA KHANUM V. KHODADAS BOMANJI IRANI 48 BOMBAY LAW REPORTER 864. In that case the wife who was a Zoroastrian was married to a Zoroastrian man in accordance with the Zoroastrian rites in Iran. The wife was subsequently converted to Islamic faith and called upon the defendant (her husband) to embrace Islamic religion. The defendant declined to do so and so she filed a suit on the Original Side of the High Court of Bombay for a declaration that owing to her conversion to Islam her marriage with the defendant stood dissolved. The Bombay High Court held that the law which must be applicable to the case was not the Muslim personal law but the rule of justice and right or equity and good conscience. The Bombay High Court held that the law which must be applicable to the case was not the Muslim personal law but the rule of justice and right or equity and good conscience. It was further held that in accordance with that rule of justice and right or equity and good conscience the conversion of one of the parties to the marriage to Islam should not he held to dissolve the marriage. Now according to Mr. Nanavati this aspect also depends on domicile because the Bombay High Court came to the finding that the domicile of origin of the wife was in fact in India and also she had domiciled in India. The Bombay High Court also observed that the parties before it were domiciled in India and a part of the foregoing cause of action arose in Bombay. Learned trial Judge (Blagden J.) who heard the suit observed that if Mahomedan law would be applicable then the marriage would stand dissolved after three months. Then he posed a question-But what right the Moslem law givers can claim to lay down the law applicable to a mixed marriage subsisting in a non -Moslem country ?. Then he observed that if the question would have arisen in the Courts of an Islamic country those Courts would have regarded the marriage at an end meaning thereby not the Indian Courts. But the important pronouncement come in the judgment of the Division Bench (Sir Leonard Stone Kt. C. J. and Chagla J.-as he then was ). The Division Bench considered the provisions of Mahomedan Law applicable to the country when one of the parties embraces Islam he or she must offer Islam to the other spouse and if the latter refuses to adopt Islam then the Judge should separate the couple. In the latter case. after the lapse of a period of three months after adoption of Islam by one of the parties the marriage is automatically dissolved. Then the Division Bench considered that it is clear that on the plaintiffs conversion to Islam her personal law by which she is governed became the Muslim law and therefore as far as her own personal law is concerned it is undoubtedly true that she is entitled to have a declaration that her marriage stands dissolved. Then the Division Bench considered that it is clear that on the plaintiffs conversion to Islam her personal law by which she is governed became the Muslim law and therefore as far as her own personal law is concerned it is undoubtedly true that she is entitled to have a declaration that her marriage stands dissolved. It was further observed that if this were to be a case in which Muslim law was to be administered then the case would present no difficulty whatsoever but the difficulty arises because the defendant was a Zoroastrian and his personal law happened to be different from that of the plaintiff. That would be applicable in the instant case also. Bai Kusum embraced Islam and so she became Muslim but respondent no. 1 was a Hindu and Muslim law was not his personal law. Then the Division Bench answered the question of domicile that arose in that case by observing:. . . . . THEREFORE. we have here a case where there is a conflict between personal laws of the two parties to the suit The question of the domicile of the parties which would have a decisive bearing upon the question if the case were to be tried in English Courts does not help us hearing. (Emphasis supplied) It has been established that both the parties are domiciled in British India but in British India there is no such thing as the law of domicile or a territorial law. In matrimonial matters there is no one law which applies to persons domiciled in British India; they are governed by their personal laws which differ from community to community. These observations would have an apt bearing on two important aspects which require to be considered in the instant case-first is about conversion to Islam by a Hindu wife on the marriage between two Hindu spouses and second is the question of domicile. Whether the question of domicile would affect the personal law of Hindus who are married in India according to Hindu rites ? The Division Bench of the Bombay High Court in the aforesaid decision further considered that if parties appearing before the Court were governed by the same personal law it would be easy to say what justice and right was according to which the case should be decided. Ordinarily it would be according to the personal law of the parties. The Division Bench of the Bombay High Court in the aforesaid decision further considered that if parties appearing before the Court were governed by the same personal law it would be easy to say what justice and right was according to which the case should be decided. Ordinarily it would be according to the personal law of the parties. But a serious difficulty arises when the plaintiff and the defendant have different personal laws and there is a conflict between those personal laws. Then relying on the decision of the Privy Council in WAGHELA RAJSANJI V. SHEKH MASLUDIN 14 INDIAN APPEALS 89 the Division Bench observed that if there was no rule of Indian law which could be applied to a particular case then it should be decided by equity and good conscience. The Division Bench therefore concluded that case must be decided according to justice and right or equity and good conscience independently of any provisions of the English law and held: We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience. Then the Division Bench considered that the parties before it were married according to the Zoroastrian rites. They entered into a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. The Division Bench also relied on the decision of Ormond J. in MUSSTT. AYESHA BIBI V. SUBODH CHAKRAVARTY (1945) 49 CALCUTTA WEEKLY NOTES 439 wherein also it was observed that the law to be administered in cases like the one before him and the one before it (Division Bench) is to administer justice and right; but therein Ormond J. had held that justice and right demands that conversion from Hinduism to Islam should put an end to the marriage with which the Division Bench dis-agreed. The Division Bench also referred to another decision of the Calcutta High Court (Lodge J.) in SAYED KHATOON V. M. OBEDIAH (1945) 49 CALCUTTA WEEKLY NOTES 745 which dissented from the view taken by Ormond J. in case of Ayesha Bibi (Supra ). The Division Bench also referred to another decision of the Calcutta High Court (Lodge J.) in SAYED KHATOON V. M. OBEDIAH (1945) 49 CALCUTTA WEEKLY NOTES 745 which dissented from the view taken by Ormond J. in case of Ayesha Bibi (Supra ). In that case Lodge J. took the view that India was not a Mahomedan country and the Mahomedan law was not the law of the land and that he could find no authority for the view that a marriage solemnized according to one personal law could be dissolved according to another personal law simply because one of the two parties had changed his or her religion and then held that it could not be just and right to grant a declaration of dissolution of marriage on the ground of conversion of one of the parties to the marriage to Islam. The Division Bench of the Bombay High Court with respect entirely agreed with the decision of Lodge J. If that is the case those principles would be aptly applicable to the instant case also. ( 30 ) MR. Nanavati wanted to make a fine distinction and that distinction is two-fold. First is that Bai Kusum did not embrace Islam in India and second is that the Court should see whether there are any provisions of law and if there are provisions of law then recourse to principles of justice and right or equity and good conscience should not be resorted to. Now so far as Hindu Law is concerned conversion to Islam does not dissolve the marriage of its own accord. But now a question is posed as to what would happen if according to Mahomedan Law i. e. the personal law of Bai Kusum marriage between her and respondent no. 1 is dissolved and if according to Hindu law or Indian law it does not stand dissolved; there would be two conflicting positions so far as marriage of Bai Kusum with respondent no. 1 is concerned. In India it may be considered to be subsisting and in other country it would stand dissolved. 1 is dissolved and if according to Hindu law or Indian law it does not stand dissolved; there would be two conflicting positions so far as marriage of Bai Kusum with respondent no. 1 is concerned. In India it may be considered to be subsisting and in other country it would stand dissolved. This aspect is also answered by the same Division Bench of the Bombay High Court in case of Robasa Khanum (Supra) by referring to the decision of the Madras High Court in BUDANSA ROWTHER V. FATMA BI (1913) 26 MADRAS LAW JOURNAL 260 wherein it was held that when a Hindu married woman was converted to Islam and during the lifetime of her Hindu husband married a Mahomedan and had several children by the second marriage the second marriage was illegal and the children who were born of this union were illegitimate. It was further held therein that where a conflict occurs between persons belonging to different religions it must apply the rules of justice equity and good conscience. It was further held therein that in testing whether the first marriage of a Hindu woman with a Hindu husband was subsisting or not at the time of her second marriage with a Muslim after she became a convert to Islam the principles of Hindu law should be applied; but in testing the validity of her second marriage the principles of Mahomedan law should be applied. ( 31 ) TO the same effect are some observations made by the Supreme Court in SMT. SATYA V. TEJA SINGH A. I. R. 1975 SUPREME COURT 105. This decision is also to be considered at length when the question about domicile will be considered. In paragraph 9 of that case the Supreme Court has observed:principles of Private International Law governing matters within The divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. So this position according to private internal law and the personal law applicable to the parties has been recognised. So the difficulty entertained by Mr. Nanavati would not be the real difficulty so as to do substantial justice to the parties who have come before the Court. So this position according to private internal law and the personal law applicable to the parties has been recognised. So the difficulty entertained by Mr. Nanavati would not be the real difficulty so as to do substantial justice to the parties who have come before the Court. In view of the aforesaid decision of the Division Bench of the Bombay High Court in case of Robasa Khanum (Supra) therefore so far as the marriage between respondent no. 1 and respondent no. 2 Bai Kusum is concerned it does not stand automatically dissolved by conversion of Bai Kusum to Islam and therefore that marriage subsists and if that marriage subsists according to section 5 of the Act one of the conditions for a Hindu marriage is not satisfied. Section 5 (i) of the Act which I have already reproduced earlier clearly provides that at the time of the marriage neither party should have a spouse living and if such is the position the marriage is ab initio void. The petitioner has asked for a declaration to that effect by amending the petition and claiming relief under sec. 11 of the Act. Therefore if Hindu law is applicable to both the respondents then the prayer of the petitioner deserves to be granted. ( 32 ) THEN comes the question of applicability of Hindu Law. That is on two grounds. First is whether the Act would be applicable because both the parties to the present proceedings are Hindus both of them married in India both of them married according to Hindu rites or it would not be applicable because respondent no. 1 though married under the circumstances aforesaid is not a domicile of India but of Kenya. I shall first consider the dispute raised on behalf of the petitioner. ( 33 ) FIRST the arguments are advanced on the strength of the provisions of the Act. Sec. 1 of the Act pertains to short title and extent. Sub-sec. (1) of it merely names the Act. Sub-sec. (2) of it is material. It reads: (2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories. It is not in dispute that first part of this sub-section (2) applies to intra-territorial jurisdiction and second part extends the jurisdiction as extra-territorial operation. It is not in dispute that first part of this sub-section (2) applies to intra-territorial jurisdiction and second part extends the jurisdiction as extra-territorial operation. Sec. 2 of the Act provides:2 This Act applies- (a) to any person who is a Hindu by religion in any of its forms or developments. . . . . . (b) to any person who is a Buddhist Jaina or Sikh by religion and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim Christian Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. It has been urged by Mr. G. N Desai that clause (c) of sub-sec. (1) of section (2) of the Act brings out an idea of domicile and clauses (a) and (b) thereof do not require factum of domicile to make the Act applicable. If domicile has to be considered then it should be referable to a person who is not a Hindu or who is not a Buddhist Jaina or Sikh by religion. If the aspects referred to in clauses (a) and (b) are absent then only it would be considered as to whether a person is domiciled in the territories to which the Act extends etc Therefore according to Mr. Desai in terms the Act will be applicable to all Hindus wherever they may be domiciled. As against this it is the submission of Mr. Nanavati that if the second part of sub-sec. (2) of sec. 1 of the Act is read it specifically provides for extension of the Act in cases of only those Hindus who are domiciled in the territories to which the Act applies but who are outside the said territories. Therefore according to Mr. Nanavati even if respondent no. 1 is a Hindu in order that the Act should be made applicable to him he must be domiciled in the territory to which the Act extends. Then if he is staying in Kenya meaning thereby outside the said territory the Act would be applicable. But if respondent no. Therefore according to Mr. Nanavati even if respondent no. 1 is a Hindu in order that the Act should be made applicable to him he must be domiciled in the territory to which the Act extends. Then if he is staying in Kenya meaning thereby outside the said territory the Act would be applicable. But if respondent no. 1 is not at all domiciled in India then it would not extend to such a Hindu. ( 34 ) APPARENTLY looking this argument of Mr. Nanavati is attractive. But it should not be forgotten that sec. 1 of the Act refers to the extension of the Act to the whole of India except the State of Jammu and Kashmir and also to the territories to which the Act is applicable and further to all those persons who are domiciles of those territories but who are outside-the said territories. Gupte in his book Hindu Law 3 Edition Volume 2 on page 640 under the caption Sub-sec. (2) while reading sec. 1 with sec. (1) (a) and (b) has in paragraph 10 stated thus:this section read with sec. 2 (a) and (b) makes it clear that in its intraterritorial operation the Act applies to all Hindus Budhists Jains and Sikhs whether they are domiciled in India or not. The provision of clause (c) of sec. 2 (1) contemplates extra-territorial operation only in the sense that persons domiciled in other territories to which the Act may extend are governed by Hindu law even though they reside outside the territories and would come within the purview of this Act. Citizenship is not a condition precedent to the application of the Act inasmuch as the Act has omitted to make residence in India a condition precedent. Alongwith this it will be worthwhile to refer to sec. 19 of the Act which gives jurisdiction to the Court. It reads:19 Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction (i) the marriage was solemnised or (iv) the petitioner is residing at the time of the presentation of the petition in a case where the respondent is at that time residing outside the territories to which this Act extends. . . Therefore the jurisdiction of the District Court in India under the Act to hear the petition would be where the marriage was solemnised. . . Therefore the jurisdiction of the District Court in India under the Act to hear the petition would be where the marriage was solemnised. In the instant case there is no dispute that the marriage between the present parties was solemnised at Ahmedabad. The second aspect is that if the marriage was not solemnised within the jurisdiction of that District Court then the District Court where the petitioner is residing at the time of the presentation of the petition would have jurisdiction In the instant case when the petition was presented the petitioner was residing within the jurisdiction of the Ahmedabad City Civil Court. Sec. 19 (iv) does not merely refer to the territorial jurisdiction of the District Court but it extends beyond the scope of consideration of domicile by providing that petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the petitioner is residing at the time of the presentation of the petition in a case where the respondent is at that time residing outside the territories to which the Act extends. Therefore when a petition is to be presented even if the marriage might have taken place somewhere else or the respondent might be residing somewhere else or at a place outside the territories to which the Act extends then also the District Court where the petitioner resides at the time of the presentation of the petition would get jurisdiction. Though the word used in this section is not domicile but residing the fact would show that extra-territorial jurisdiction was given in a case where other party was residing outside the territories to which the Act applies. Considering this provision alongwith the provisions of sec. 1 and 2 of the Act it can well be gathered that the intention of the Legislature was to make this law applicable to all Hindus irrespective of domicile and/or residence The only thing is that they must be Hindus and the marriage must be performed according to Hindu rites. Here an additional ground is that the marriage was performed at Ahmedabad in India. ( 35 ) SO far as second part of sub-sec. (2) of sec. Here an additional ground is that the marriage was performed at Ahmedabad in India. ( 35 ) SO far as second part of sub-sec. (2) of sec. 1 of the Act is concerned it gives extra territorial application of the Act to Hindus domiciled in the territories to which the Act extends but who are outside those territories meaning thereby the Act applies to those who are regarded ass Hindus even if they reside outside the territories to which the Act applies or even if they leave such territories with the result that the personal law and the provisions of the Act would continue to govern them so long as they continue to have their domicile within the territories to which the Act applies. Thus it would follow that the Act would not apply to Hindus not domiciled in India but it would appear from the provisions of sec. 1 read with sec. 2 (1) of the Act that the Act would nevertheless apply to a Hindu residing in India for the duration of his residence whether he is domiciled in India or not. In fact reading of these provisions makes it clear that by making the Act applicable to all Hindus etc. under sec. 2 (1) (a) and (b) and making the Act applicable to all such persons within the territory of India irrespective of their domicile the Legislature has omitted the nexus of domicile. It would be worthwhile to consider the second part of sub-sec. (2) of sec. 1 of the Act by an example: If the persons who are domiciled in the territories to which the Act extends but are residing outside the said territories want to marry according to Hindu rites and they are Hindus they can marry in a country outside India but because they are domiciled in the territories to which the Act extends the Act would be applicable. But that extra territorial extension is to a marriage performed outside where both the spouses reside and for that domicile would be necessary. But this idea of domicile can never be imported into the marriage of two Hindus married in India according to Hindu rites. Non-applicability of the Act would be in an extreme case where both the spouses did not remain in India both the spou ses have domiciled outside India and both married outside India. But this idea of domicile can never be imported into the marriage of two Hindus married in India according to Hindu rites. Non-applicability of the Act would be in an extreme case where both the spouses did not remain in India both the spou ses have domiciled outside India and both married outside India. In such an extreme case it would be very difficult to consider whether the Act applies or not. I do not propose to make any specific observation but I am considering an extreme example just in order to show the applicability or otherwise of the Act. ( 36 ) NOW in favour of Mr. Nanavati there is one decision of the Special Bench of the Calcutta High Court in GOUR GOPAL ROY V. SMT. SIPRA ROY A. I. R. 1978 CALCUTTA 163. Before referring to that decision I would refer to an earlier decision of the Calcutta High Court in PREM SINGH V. SMT DULARI RAI A. I. R. 1973 CALCUTTA 425 wherein while considering the provisions of secs. 1 (1) and 2 (1) of the Act it was observed that as regards the intra-territorial operation of the Act it is clear that it applies to all Hindus Buddhists Jains or Sikhs irrespective of the question whether they are domiciled in India or not. It is further observed that if one of the contracting parties to the marriage is a foreigner the question of domicile assumes importance only when such marriage is prohibited either under the domestic rule or law of the land to which the foreigner belongs. ( 37 ) THE Special Bench of the Calcutta High Court in case of GOUR GOPAL ROY A. I. R. 1978 CALCUTTA 163 (SUPRA) held that secs. 1 (2) and 2 of the Act would not attract the applicability of the the Act if one of the parties is of Indian domicile. The decision of the Calcutta High Court in case of Prem Singh (Supra) was distinguished. In the case before the Special Bench of the Calcutta High Court reference was made and the point that arose for the decision was whether the Act could be applied to a person who is outside the territory to which the Act applies and is not an Indian domicile. In the case before the Special Bench of the Calcutta High Court reference was made and the point that arose for the decision was whether the Act could be applied to a person who is outside the territory to which the Act applies and is not an Indian domicile. Now unfortunately the discussion in that decision does not show as to where the marriage took place and what was the domicile of the other party. But the Special Bench on analysis of the relevant provisions of the Act and particularly those of sub-sec. (2) of sec. 1 and sec. 2 of the Act held that the Act extends to the whole of India except Jammu and Kashmir and then considered for the purposes of the reference that all persons to whom the Act applies who are within the said territory would come under the operation of the Act. It was also observed that an extraterritorial operation has also been provided for by including Hindus outside the said territory who are domiciled in the said territory. Now it should be noted that the reference before the Special Bench was whether the Act can be applied to a person who is outside the territory to which the Act applies and is not of Indian domicile ? This was a simple question and therefore without referring to the facts the decision was given on the point of law meaning thereby as to where the marriage took place. Admittedly because the names of the parties before the Special Bench were Gour Gopal Roy and Smt. Sipra Roy it can be said that the parties were Hindus. On this aspect the Special Bench observed that the parties before it were at variance on whether the Act would apply when one of the parties to the marriage is within the said territory while the other is not. The Special Bench also felt that the Act makes no provisions for such a contingency. Therefore in my view when the Act makes no provision for such a contingency as observed by the Division Bench of the Bombay High Court in case of Robasa Khanum (Supra) principles of justice and right or equity and good conscience should normally be applied. This aspect was not considered by the Special Bench of the Calcutta High Court. Therefore in my view when the Act makes no provision for such a contingency as observed by the Division Bench of the Bombay High Court in case of Robasa Khanum (Supra) principles of justice and right or equity and good conscience should normally be applied. This aspect was not considered by the Special Bench of the Calcutta High Court. Now in that case before the Special Bench the husband was living in London and he was not of Indian domicile but of Bangladesh. On these facts the trial Court was of the opinion that it would be enough if one of the parties is of Indian domicile. For this the trial Court relied on the decision of the Calcutta High Court in case of Prem Singh (Supra ). However the Special Bench of the Calcutta High Court observed that the said decision does not support the view which the trial Court had taken. In fact it was not concerned with that problem at all and therefore the order of the trial Court was set aside and the matter was sent for retrial for a decision on the question as to whether the husband had acquired the Indian domicile in the light of the legal propositions stated by the Special Bench in its judgment with which I am not concerned. It however seems that the Special Bench had before it one important aspect which probably minimised the dispute inreference. There was an attempt to effect a reconciliation and the learned Advocate for the husband stated that the husband would send the Air ticket from Calcutta to London and also a declaration that the husband would support the wife in London and the learned Advocate for the wife stated that his client would go to London upon receipt of the Air ticket and the declaration and the suit before the trial Court would be withdrawn. It probably seems that this aspect weighed with the Special Bench and therefore it did not go much deep into the dispute. But it is submitted to me that because decision in Prem Singhs case (Supra) was not approved by the Special Bench the present petitioner- wife cannot take recourse to that decision now. It probably seems that this aspect weighed with the Special Bench and therefore it did not go much deep into the dispute. But it is submitted to me that because decision in Prem Singhs case (Supra) was not approved by the Special Bench the present petitioner- wife cannot take recourse to that decision now. In fact the Special Bench did not dis-approve that decision but somehow or the other held that the said decision did not support the view which the trial Court had taken and in fact it was not concerned with that problem at all. The observation of the Calcutta High Court in Prem Singhs case (Supra) was that as regards the intra-territorial operation of the Act it is clear that it applies to all Hindus Buddhists Jains or Sikhs irrespective of the question whether they are domiciled in India or not. (emphasis supplied ). This was a clear finding and still however the Special Bench held that this decision did not support the view which the trial Court had taken meaning thereby if one of the parties is of Indian domicile the Act would be applicable. In fact the decision in Prem Singhs case clearly and categorically show that if the parties are Hindus than the question of domicile is not important. Somehow or the other this aspect was not elaborately considered by the Special Bench. But in view of the discussion made above I must say with respect that the decision of the Special Bench of the Calcutta High Court cannot be considered as laying down good law. One thing cannot be ignored that in the instant case so far as the petitioner and respondent no. 1 are concerned their personal law is Hindu Law. At an appropriate stage it will be considered as to what is the effect of this personal law and how far is goes with the person. ( 38 ) THEN the question arises as to what would be the effect of Kenyan domicile of respondent no. 1 on the petition filed in India. As considered earlier the Calcutta High Court in case of Prem Singh (Supra) (A. I. R. 1973 Calcutta 425) held that the Act applies to all Hindus irrespective of the question whether they are domiciled in India or not. 1 on the petition filed in India. As considered earlier the Calcutta High Court in case of Prem Singh (Supra) (A. I. R. 1973 Calcutta 425) held that the Act applies to all Hindus irrespective of the question whether they are domiciled in India or not. But the Special Bench of the Calcutta High Court in case of Gour Gopal Roy A. I. R. 1978 Calcutta 163 (Supra) held differently. However as considered earlier reading of sections 1 (2) 2 and 19 of the Act together clearly shows that the Act will be applicable to all Hindus who marry in India. It is now not in dispute that the personal law of the parties is Hinduism. Therefore respondent no. 1 has his personal law as Hinduism. The Bombay High Court in The STATE V. NARAYANDAS MANGILAL DAYAME A. I. R. 1958 BOMBAY 68 (F. B.) had an occasion to consider the effect of Personal Law. In that case the question before the Bombay High Court was whether the benefit of the Bombay Prevention of Hindu Bigamous Marriage Act 1946 would be available if the second marriage took place outside the province of Bombay. This would also require an observation that right from year 1946 so far as the Bombay Province is concerned there was prohibition against marriage when the first wife is living. This was the law in Bombay. But the observations which I propose to refer from the aforesaid decision of the Full Bench of the Bombay High Court are in para 5. Therein it has been observed as under:. . IN India the personal law which applies to a Hindu or a Muslim is not based upon domicile. His personal law is not the result of a particular part of India in which he happens to reside. He carries his personal law with him wher ever he goes and that personal law is not affected by his residence in any particular part of the country. The personal law is the result of certain percepts in his religion or in his sacred books which apply to him by reason of the fact that he follows a particular religion. It can be further added that this principle would be applicable even if a person goes outside the country because he carries his personal law with him. ( 39 ) MR. Nanavati for respondent no. It can be further added that this principle would be applicable even if a person goes outside the country because he carries his personal law with him. ( 39 ) MR. Nanavati for respondent no. 1 argued that the personal law of respondent no. 1 will be the personal law at the time when his family migrated to Kenya; they carried the personal law and in that personal law polygamy was permitted and therefore now sec. 5 of the Act cannot be brought into operation. In order to support his argument Mr. Nanavati relied on the decision of the Nagpur High Court in RUKHMABAI V. RAMRATAN A. I. R. 1951 NAGPUR 350. That decision pertains to law of succession. It has been observed therein that in the case of Hindus the law applicable to a migrating family is the law prevailing at its place of origin at the time of its migration and the law applicable to the family is not affected by any subsequent changes which become incorporated in the law of origin after migration. Therefore according to Mr. Nanavati if there was polygamy permitted in the community when the family of respondent no. 1 migrated to Kenya the subsequent application of the Act would not be attracted. ( 40 ) IT is true that personal law is carried in the form in which it was at the time of migration. But does it take out the consideration of any party submitting to a changed law ? In the instant case respondent no. 1 could have married outside India according to any rites and he could have stated that he is not bound by any subsequent change in the law. But he has come to India married thrice according to Hindu rites in India and still wants to say that he is not covered by the Act and therefore his right to marry the second wife which was available to him at the time of migration should be confirmed by this Court even to-day after so many years of the passing of the Act and his submission to law prevailing in Gujarat (India) by marrying at Ahmedabad according to Hindu rites. So this much would be sufficient to hold that as respondent no. So this much would be sufficient to hold that as respondent no. 1 carries his personal law and also marries according to Hindu rites in India after the Act is made applicable he is covered by the present law and that would be his personal law. . ( 41 ) STILL however it is necessary to consider how far the idea of domicile can be imported into the proceeding of the present type and whether that idea of domicile which is normally considered in England and North America requires to be imported into Indian Law of Marriages ? It should be noted that the Calcutta High Court in case of Prem Singh (Supra) has observed that there is no provision in law covering the case of two spouses one domiciled in India and the other not and if that is so what principles should be applied ? ( 42 ) IT is the submission on behalf of respondent no. 1 that it is not correct to say that the idea of domicile would not be applicable even to the Act. It is the submission that in matrimonial cases especially when status of one of the spouses is under challenge which would be a judgment in rem domicile plays an important part. Therefore it is the submission that as respondent no. 1 is not domiciled in India Indian Courts would have no jurisdiction to give any relief as the Act is not applicable at all As stated earlier one argument was advanced by Mr. Nanavati as to what would be the effect of this decree if at all granted in favour of the petitioner-wife in another country where the law is not applicable and I have answered that position of law by referring to the Madras decision (BUDANSA ROWTHER V. FATMA BI- (1913) 26 MADRAS LAW JOURNAL 260) referred to in the decision of the Bombay High Court in case of ROBASA KHANUM (SUPRA) and also the decision of the Supreme Court in case of BAI SATYA (SUPRA ). But then the question will crop up as to what Court would have jurisdiction and what law would cover the dispute between the present parties i. e. the petitioner-wife and respondent no. 1-husband. ( 43 ) IT is not in dispute that the marriage was solemnised in India according to Hindu rites. But then the question will crop up as to what Court would have jurisdiction and what law would cover the dispute between the present parties i. e. the petitioner-wife and respondent no. 1-husband. ( 43 ) IT is not in dispute that the marriage was solemnised in India according to Hindu rites. I am not shown what is the law in Kenya when such a decree is sought for. It is in evidence of Ramniklal Shukla Ex. 78 and some of the letters written by him to which I do not propose to make specific reference that petitioner-wife did not want to stay at Nairobi and it is the allegation on behalf of respondent no. 1 that because the atmosphere at Nairobi was not congenial to her temperament she wanted to come to India meaning thereby she had animus revertendi. But according to the settled principles and which are also applicable to Private International Law so far as India is concerned domicile of the wife goes with the domicile of the husband and therefore it is argued that she also being the domicile of Kenya Kenya Court would have jurisdiction But what law would be applicable there ? Would the Kenyan Court decide the matter pertaining to the provisions of the Hindu Marriage Act or the marriage solemnised according to Hindu rites in India ? If that position becomes doubtful can it be said that both the spouses would have no remedy to go to any other Court and if such a situation arises then the Court has to apply the principles of justice and right or equity and good conscience. ( 44 ) MR. Nanavati referred to me the provisions of four enactments which codify the Hindu law pertaining to the jurisdiction. I have considered the provisions of secs. 1 and 2 of the Act which show the extension and applicability of the Act persons to whom the Act would be applicable and also the jurisdiction of the Court. In the Hindu Succession Act 1956 sub-sec. (2) of sec. 1 provides that it extends to the whole of India except the State of Jammu and Kashmir. There is no second part in that sub-sec. (2) as is in the Act which provides for extra-territorial operation. Sec. 2 of the Hindu Succession Act is worded practically like sec. 2 of the Act. This sec. (2) of sec. 1 provides that it extends to the whole of India except the State of Jammu and Kashmir. There is no second part in that sub-sec. (2) as is in the Act which provides for extra-territorial operation. Sec. 2 of the Hindu Succession Act is worded practically like sec. 2 of the Act. This sec. 2 of the Succession Act does not contain clause (c) pertaining to domicile but it is applicable to such a person who is not a Muslim Christian Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with therein if this Act had not been passed. Therefore distinction has to be made so far as sec. 2 of the Act is concerned that it has been made applicable to all Hindus and those non-Hindus who are domiciled in the territories to which the Act extends and are persons enumerated therein. ( 45 ) SO far as the Hindu Minority and Guardianship Act 1956 is concerned sub-sec. (2) of sec. 1 thereof is almost like its counter-part under the Act (Hindu Marriage Act ). This Hindu Minority and Guardianship Act extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which it extends who are outside the territories. Sec. 3 of this Minority Act is like sec. 2 of the Act and it provides that the said Act applies to any person who is a Hindu by religion. Clause (c) of sub-sec. (1) of sec. 3 of the Minority Act is in pari materia with clause (c) of sub-sec. (1) of sec. 2 of the Act. ( 46 ) SO far as the Hindu Adoptions and Maintenance Act 1956 is concerned sec. 1 (2) thereof merely states that it extends to the Whole of India except the State of Jammu and Kashmir. Sec. 2 (1) (c) of it is like that of sec. 2 (1) (c) of the Hindu Succession Act. ( 47 ) ACCORDING to Mr. Nanavati all these Acts give the extent and also applicability. Therefore it is his contention that though in the Act (Hindu Marriage Act) sec. Sec. 2 (1) (c) of it is like that of sec. 2 (1) (c) of the Hindu Succession Act. ( 47 ) ACCORDING to Mr. Nanavati all these Acts give the extent and also applicability. Therefore it is his contention that though in the Act (Hindu Marriage Act) sec. 2 (1) (c) refers to domicile reference to domicile in the second part of sub-sec. (2) of sec. 1 of the Act cannot be ignored. He therefore wants to argue as if the Act would not be applicable to each and every Hindu but only to those Hindus who are domiciled in India. Again I have to repeat that the question here is net of respondent No. 1 only being a Hindu but the point to be considered is that he married in India according to Hindu rites and therefore it is attempted to be shown that the Court in India would have jurisdiction and also that the Act would be applicable. ( 48 ) IN MALKIAT SINGH V. STATE OF PUNJAB A. I. R. 1969 PUNJAB AND HARYANA 250 in paragraph 6 the following statement made by Professor Cheshire in his authoritative book on Private International Law 6 Edition at page 194 have been quoted:these are two different conceptions. Nationality represents a mans political status by virtue to which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Therefore it is the insistence of Mr. Nanavati that if personal rights and obligations are to be determined then the Civil Law which is applicable to domicile should be considered. But he forgets that personal law of a person is entirely different as compared to his domicile so far as notion of Hindu law is concerned. That I have already discussed. ( 49 ) IN D. P. JOSHI V. STATE OF MADHYA BHARAT A. I R. 1955 SUPREME COURT 334 similar observations have been made by the Supreme Court. That decision pertained to admission to a Medical College on the ground of place of birth. In paragraph 23 of its judgment the Supreme Court has made reference to the judgment of Lord Westbury in UDNY V. UDNY (1869 L. R. 1 SC. and DIV. That decision pertained to admission to a Medical College on the ground of place of birth. In paragraph 23 of its judgment the Supreme Court has made reference to the judgment of Lord Westbury in UDNY V. UDNY (1869 L. R. 1 SC. and DIV. 441 WHEREIN AT PAGE 457 it is observed:the political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle namely that of domicile which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party that is to say the law which determines his majority or minority his marriage succession testacy or intestacy must depend. I shall be coming to the point as to how far this point of domicile can be imported in Hindu Law and the persons who are governed by the Hindu Law because as considered earlier the Supreme Court has also in case of BAI SATYA V. TEJA SINGH A. I. R. 1975 SUPREME COURT 105 (SUPRA) considered that the idea of domicile is very much prevalent in English and non-American laws and therefore the decision must be based on that English law and testacy may be of Hindu codified laws pertaining to marriage succession minority etc. is purely dependant on the law applicable to Hindus and not merely of domicile. ( 50 ) IN CHRISTOPHER ANDREW NEELAKANTAN V. MRS. ANNE NEELAKANTAN A. I. R. 1959 RAJASTHAN 133 relied on by Mr. Nanavati the husband was an officer in Government of India and had been holding the post at Jodhpur for the past several years. He and the wife had married in England. The husband wanted the wife to come over to India and live as his wife but the wife refused. So the husband made a petition in the District Court at Jodhpur praying for a decree for the dissolution of his marriage with the respondent-wife on the ground of desertion. The District Court dismissed the petition and therefore the husband appealed to the Rajasthan High Court. So the husband made a petition in the District Court at Jodhpur praying for a decree for the dissolution of his marriage with the respondent-wife on the ground of desertion. The District Court dismissed the petition and therefore the husband appealed to the Rajasthan High Court. The Rajasthan High Court held that as the husband had admitted that the marriage was solemnised in England and not within the jurisdiction of the judge and that at no time during their marriage the petitioner and his wife ever resided together within the jurisdiction of the said Court so far as sec. 31 of the Special Marriage Act 1954 was concerned the application could not lie. It was also held that the principle that it is the Court of domicile which will have jurisdiction to deal with a matter applied and that as the husband was an Indian citizen and was domiciled in India and had been living for several years past within the jurisdiction of the District Court Jodhpur the Jodhpur District Court was the Court of his domicile; that it was well-settled that the domicile of the wife was the domicile of the husband; and that on the principles of Private International Law the Jodhpur District Court within whose jurisdiction the husband lived had a proper jurisdiction to entertain an application. While holding that the domicile of the wife was the domicile of the husband reliance was placed on sec. 15 of the Indian Succession Act 1925 because a woman on her marriage gets the domicile of her husband. That was the case under the Special Marriage Act which was certainly not applicable in England where the marriage took place. ( 51 ) IT is not understood how the aforesaid decision of the Rajasthan High Court would be helpful to Mr. Nanavati because it considers the specific provisions of the Special Marriage Act 1954 Sec. 4 of the said Act deals with Conditions relating to solemnisation of Special Marriage and clause (e) thereof provides:4 Notwithstanding anything contained in any other law for the time being in force relating to the solemnisation of marriages a marriage between any two persons may be solemnised under this Act if at the time the marriage the following conditions are fulfilled namely:. . . . . . . . . . . . . . . . . . . . . . . (e) where the marriage is solemnised in the State of Jammu and Kashmir both parties are citizens of India domiciled in the territories to which this Act extends. That was the only idea of domicile imported. But as that was the case (before Rajasthan High Court) under the Special Marriage Act and between the two spouses who were English originally reliance was placed on the following observations made by learned author Dicey in his book Conflict of Laws 7 Edition Chapter XII page 289:the principle now finally adopted by English Courts is that jurisdiction in matters of divorce depends upon domicile or in other words the question whether parties to a marriage ought to be divorced is one which concerns the community of the country where they live and have their legal home and therefore it is the country where the parties are so living at the time of the demand for divorce to which should be referred the question whether the marriage between the parties should or should not be dissolved. But this refers to both parties and is held that Divorce is one which concerns the community of the country. If this is considered in the case before me what is the concern of the Hindu-Audichaya Brahmin community in their country i. e. India ? The Rajasthan High Court referred to the decision in WILSON V. WILSON (1872) 2 P and D 435 wherein a Scotchman married a Scotchwoman in Scotland and cohabited with her in Scotland until he discovered her adultery and quoted with approval the following observations made therein:it is the strong inclination of my own opinion that the only fair and satisfactory rule to adopt on this matter of jurisdiction is to insist upon the parties in all cases referring their matrimonial differences to the Courts of the country in which they are domiciled. This was what is attempted to be relied upon. But the further observations which are material for our consideration are as follows:different communities have different views and laws respecting matrimonial obligations and a different estimate of the causes which should justify divorce. This was what is attempted to be relied upon. But the further observations which are material for our consideration are as follows:different communities have different views and laws respecting matrimonial obligations and a different estimate of the causes which should justify divorce. It is both just and reasonable therefore that the differences of married people should be adjusted in accordance with the laws of the community to which they belong and dealt with by the Tribunals which alone can administer those lawsif these observations are considered then there is no escape from the conclusion that Indian Court would have jurisdiction because that is the Court which administered the laws of the community to which the parties in the instant case belong and only the Indian Court under the Act is the Tribunal which alone can administer those laws. ( 52 ) MR. Nanavati relied on two English Decisions. The first was 709 In that case the husband whose domicile of origin was Scottish was educated in England. In 1945 he met the wife in Egypt and the parties were married there in 1947. Thereafter they separated as some matrimonial dispute took place. In 1954 the wife presented a petition for a decree of nullity on the ground of the husbands wilful refusal alternatively his incapacity to consumate the marriage. Contention was taken by the husband that as be was domiciled in Scotland the English Court had no jurisdiction. The contention on behalf of the wife was that even though the husband was domiciled in Scotland the English Court had jurisdiction since at all material times both parties were resident in England. It was held that the husband had not acquired the domicile of his choice in England and therefore the husband retained his domicile of origin viz. domicile in Scotland. It was further held that notwithstanding the Scottish domicile of the husband the Court had jurisdiction to hear the suit since both parties were resident in England. It is therefore evident that the Court did not consider or give any importance to domicile of the husband but merely rested on residence which gave jurisdiction to the English Court. There was no question of applicability of the Act. It should also be noted that in that case the marriage was not solemnised in England. Still however because there was residence the Court was stated to have jurisdiction. There was no question of applicability of the Act. It should also be noted that in that case the marriage was not solemnised in England. Still however because there was residence the Court was stated to have jurisdiction. That decision in fact would not help Mr. Nanavati and on the contrary it would show that domicile is not the only consideration in matrimonial cases. ( 53 ) THE second English decision relied on by Mr. Nanavati is in GARTHWAITE V. GARTHWAITE 1964 (2) ALL ENGLAND LAW REPORTS 233. In that case at the time of their marriage in England in 1950 the husband and wife were both of British Nationality and were both domiciled in England. In 1956 the husband obtained a decree in the State of Nevada United States of America purporting to dissolve the marriage. In 1961 at a time when for the purposes of trial of the issue of the Courts jurisdiction to entertain the proceedings it was not disputed that the husband was domiciled and resident in the State of New York the wife presented a petition for a declaration that her marriage to the husband was a valid and subsisting marriage. It was held that by seeking a declaration that her marriage was subsisting the wife asserted the existence of a state of affairs which would deprive the Court of matrimonial jurisdiction. because on the basis that her marriage was valid and continuing she had the foreign domicile of her husband and (apart from statutory exceptions under sec. 18 of the Matrimonial Causes Act 1950 the English Court had no jurisdiction to grant matrimonial relief against a husband domiciled abroad. This English decision is very much relied on by Mr. Nanavati. But as is clear prior to the Matrimonial Causes Act 1950 all English decisions in matrimonial cases were mainly based on domicile of the spouses and the aspect how far those decisions would be applicable to Indian Courts will be considered hereafter. But in the case referred to above there is no question as to what law would be applicable. It was merely based on domicile. ( 54 ) IT was argued by Mr. Nanavati that at the time when the petition was presented neither the petitioner nor respondent No. 1 had Indian domicile and therefore this Court would have no jurisdiction. Again it is arguing in a circle. It was merely based on domicile. ( 54 ) IT was argued by Mr. Nanavati that at the time when the petition was presented neither the petitioner nor respondent No. 1 had Indian domicile and therefore this Court would have no jurisdiction. Again it is arguing in a circle. Main stress is on the non-applicability of the Act. But if jurisdiction is to be sought then under sec. 19 of the Act jurisdiction is certainly with the Court. So the question is whether point of domicile has to be considered at the time of the submission of the petition even so far as the facts applicable to the parties are concerned ? ( 55 ) ATTEMPT is made to rely on some decisions under the Indian Divorce Act 1869 In fact as early as in 1914 in NAUSSERWANJI PESTONJI WADIA V. ELEONORA WADIA A. I. R. 1914 BOMBAY 211 (2) a Division Bench of the Bombay High Court held that the matrimonial jurisdiction of the Indian Courts is in no way based upon domicile. That was the case under the Indian Divorce Act which provided that no Court can grant relief for a decree of nullity of marriage except where the marriage has been solemnised in India and the petitioner is resident in India at the time of presenting the petition and no Court can grant any relief under the said Act other than a decree of dissolution of marriage or of nullity of marriage except where the petitioner resides in India at the time of presenting the petition. So in that case only question of residence was important and not of domicile. ( 56 ) THEN there is a Full Bench decision of the Bombay High Court in ALFRED WILKINSON V. GRACE EMILY NORAH WILKINSON A. I. R. 1923 BOMBAY 321 Now at the lime that decision was given the Indian Divorce Act did not contain any conditional for domicile. Macleod C. J. observed that jurisdiction is matrimonial causes was not based on a so-called matrimonial domicile when the Indian Councile Act was passed in 1861. It was further observed that the Indian Divorce Act did not confer jurisdiction on the Courts to dissolve the marriages of non-domiciled parties. Macleod C. J. observed that jurisdiction is matrimonial causes was not based on a so-called matrimonial domicile when the Indian Councile Act was passed in 1861. It was further observed that the Indian Divorce Act did not confer jurisdiction on the Courts to dissolve the marriages of non-domiciled parties. It was also observed that a country by its Municipal Law may lay down its own tests for creating jurisdiction within its own boundaries even in cases where the status of the parties is involved. But it was observed that when the jurisdiction of the Court is exercised according to the rules of International Law as in the case where the parties have their domicile within its form its decree dissolving their marriage ought to be respected by the Tribunals of every civilised country. Marten J. held that the High Court had no jurisdiction to dissolve their marriage (of the parties who were not domiciled) notwithstanding that it was solemnised in India and that adultery was committed in Indian. At that time as stated earlier there was no requirement of domicile as is in the present Indian Divorce Act. I would refer to sec. 3 of the Indian Divorce Act which is as follows:2 Extent of Act. This Act extends to the whole of India except the State of Jammu and Kashmir. Extent of Power of Grant Relief. Nothing hereinafter contained shall authorise any Court to grant any relief made under this Act. except where the petitioner or respondent profess the Christian religion or to make decrees of dissolution of marriage except where the parties to marriage are domiciled in India at the time when the petition is presented; or to make decrees of nullity of marriage except where the marriage has been solemnised in India and the petitioner is resident in India at the time of presenting the petition or to grant any relief under this Act other than a decree of dissolution of marriage or of nullity of marriages except where the petitioner resides in India at the time of presenting the petition. This Divorce Act specifically provides that for a decree of dissolution of marriage parties must be domiciled in India at the time when the petition is presented. This Divorce Act specifically provides that for a decree of dissolution of marriage parties must be domiciled in India at the time when the petition is presented. But therein also for a decree of nullity of marriage requirement is only that the marriage is solemnised in India and the petitioner is resident in India at the time of presenting the petition. So for this decree domicile is not necessary. Before me is a case of Hindus for nullity of marriage and if the consideration of the judgments under the Indian Divorce Act is to be extended then why the provision for nullity of marriage under that Act be ignored ? The subsequent decisions under the Indian Divorce Act for dissolution of marriage are based on the factum of domicile because there is specific provision in the law. But when the decision in case of Alfred Wilkinson (supra) was given there was no such provision. Still however it has been observed by the Full Bench in that decision as under:the argument that the Legislature intentionally made residence the test of jurisdiction and not domicile must also include the proposition that the Legislature omitted or declined to recognise that in matrimonial causes which involved dealing with the status of the parties the Courts follow the principles of International Law unless they are expressly excluded by the Municipal Law. While coming to this conclusion the Full Bench observed:. . RELIEF not involving the status of the parties may be granted under the Act if the condition of residence is satisfied but that is in accordance with the principles and rules of the Ecclesiastical Courts which by sec. 22 of 20 and 21 Vic. Ch. 85 were to be acted upon by the Matrimonial Court in all suits and proceedings other than proceedings for the dissolution of marriage. Therefore for dissolution of marriage domicile was considered to be necessary even though it was not in the Act holding that there was no express bar on principles of International Law. Reliance was also placed on the rules of International Law which now in India can never be made applicable. Therefore for dissolution of marriage domicile was considered to be necessary even though it was not in the Act holding that there was no express bar on principles of International Law. Reliance was also placed on the rules of International Law which now in India can never be made applicable. ( 57 ) IN LALJI RAJA SONS V. FIRM HANSRAJ NATHURAM A. I. R 1971 SUPREME COURT 974 the question for consideration before the Supreme Court was whether a decree passed by Bankura Court in West Bengal in 1949 could be considered to be a foreign decree vis-a-vis the Court at Morena in the former Madhya Bharat State for the purposes of the Code of Civil Procedure (i. e. sec. 13 ). But that decision merely considers as to what would be the effect in a personal action to which none of the causes of jurisdiction apply of a decree pronounced in absentem by a foreign Court to the jurisdiction of which the defendant has not in any way submitted. In SIRDAR GURDYAL SINGH V. THE RAJAH OF FARIDKOTE (1894) 21 INDIAN APPEALS 171 it was held that such a decree by International Law is an absolute nullity. But the Board qualified those observations by the following words:he is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the Courts of every nation except (when authorised by spacer local legislation) in the country of the forum by which it was pronounced. Thus it was held that a decree would be executable in a country where it was pronounced and cannot be executable in any other country. This does not solve the problem posed before me. On the contrary is supports the proposition causes and before me and which I have accepted that this decree passed by an Indian Court would be valid in India and may not be valid in Kenya or Tanzania where respondents reside or claim to he domiciled. But that would not the issue of domicile which is very hotly contested before me. ( 58 ) THE important decision to be considered is in case of SMT. SATYA V. TEJA SINGH A. I. R. 1975 SUPREME COURT. 105 (SUPRA ). I have already referred to this decision to some extent. But that would not the issue of domicile which is very hotly contested before me. ( 58 ) THE important decision to be considered is in case of SMT. SATYA V. TEJA SINGH A. I. R. 1975 SUPREME COURT. 105 (SUPRA ). I have already referred to this decision to some extent. But here be tore me an attempt is made to bring in Private International Law for matrimonial purposes and a contention is raised that this would be entirely based on domicile. In that decision the Supreme Court has observed:it is a well-recognised principle the Private International Law is not the same in all countries. There is no system of private International law which can claim universal recognition. Hence the question whether a decree of divorce passed by a foreign Court is entitled to recognition in India must depend principally on the rule of Private International Law as recognised in Indian. It is no doubt true that whether it is a problem of municipal law or of Conflict of Laws. every case which comes before an Indian Court must be decided in with Indian Law. (Emphasis supplied) in that case before the Supreme Court consideration was about sec. 13 of the Code of Civil Procedure and recognition of a decree in Nevada State Court in U. S A. granting divorce to the husband when the wife had not appeared. On facts the Supreme (Court found that the husband neither resided in nor was the domicile of Nevada State and by making an assertion that he had resided in Nevada within the jurisdiction of the Nevada Court for a particular time obtained a decree by fraud. But reliance is placed on that judgment by both the parties because some questions of Private International Law are discussed. It is considered as to whether the point of domicile would be applicable. But the important observation in my opinion would be irrespective of any other observations in the judgment as reproduced above with emphasis supplied. The Supreme Court has also observed:principles of Private International Law governing matters which the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. This I have referred to earlier. The Supreme Court has also observed:principles of Private International Law governing matters which the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. This I have referred to earlier. It is further observed therein:the principles of the American and English conflict of laws are not to be adopted blindly by Indian Courts. Our notions of a genuine divorce and of substantial justice and the distinctive principles of our public policy must determine the rules of our Private International law. The Supreme Court has also mentioned that an awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining such rules. In that case the wife had filed an application for maintenance under the Code of Criminal Procedure 1898 The Punjab and Haryana High Court held that when the petition for divorce was filed by the husband in Nevada Court and claimed to be domicile of Nevada the wife under the Private International Law also had her domicile in Nevada. For this the principles enunciated in LE MESURIER V. LE MESURIER 1895 APPEAL CASES 517 and other English decisions were relied on. The Supreme Court observed that the said finding was the corner-stone of the judgment of the High Court and the High Court had applied old English rule that during marriage the domicile of the wife without exception follows the domicile of the husband and then proceeded to consider whether the decree of Nevada Court should be recognised or not. In paragraph 9 the Supreme Court has specifically observed:we cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles very greatly and are moulded by the distinctive social political and economic conditions obtaining is these countries. Questions relating to the personal status of a party depend in England and North America upon the law of his domicil. . . In paragraph 26 it is observed that the English Law on the subject has grown out of a maze of domiciliary wilderness but English Courts have by and large come to adopt the same criteria as the American Courts for denying validity to foreign decrees of divorce. Then question was considered as to what would be the effect of foreign decree of divorce. Then question was considered as to what would be the effect of foreign decree of divorce. Then it was stated that the archaic rule of English Law is that wifes domicile follows that of the husband. The Supreme Court also considered the decisions which caused great hardship to deserted wives for they had to seek the husband in his domicile to obtain against him a decree of divorce recognizable in England and therefore the Law Reform (Miscellaneous Provisions) Act 1949 was passed. Mr. Nanavati relied on the observations of the Supreme Court in paragraph 36 wherein after considering the various English decisions it is observed:. . . . . . We have treated the development of the English Law of divorce prior to the passing of the Act of 1971 (Recognition of Divorces and Legal Separations Act 1971 as we have in India no corresponding enactment. Besides the judgment of the High Court is wholly founded on English decisions and the respondents counsel also based his argument on these decisions. ( 59 ) MR. Nanavatis submission is that if there is no corresponding law to Recognition of Divorce and Legal Separation Act 1971 then the old English decision should be made applicable under matrimonial jurisdiction to India also. I am afraid I cannot accept this request The Supreme Court has specifically observed that the decision in any case should be given according to the Act prevalent in that country and also considering the point of public policy. If the question of public policy is to be considered it cannot be ignored that there are many Indians who stay abroad. They come to India for marrying Indian girls and take them as their wives to their own country. If matrimonial life is not successful is it in the interest of public policy that such a wife who is deserted or sent back to India would have no remedy in Indian Courts even though marriage has taken place between the parties according to Hindu rites and in India merely because the husband is domiciled elsewhere ? If matrimonial life is not successful is it in the interest of public policy that such a wife who is deserted or sent back to India would have no remedy in Indian Courts even though marriage has taken place between the parties according to Hindu rites and in India merely because the husband is domiciled elsewhere ? Public policy demands that Courts must guarantee proper recourse to a remedy to such a girl or wife or a spouse who would claim jurisdiction in Indian Court because marriage has taken place in India and parties belong to Hindu religion which is the religion prevalent in India As already considered in Satyas case (Supra) the Supreme Court has emphasised that principles of the American and English Conflict of Laws are not to be adopted blindly by Indian Courts and the notions of a genuine divorce and of substantial justice and the distinctive principles of our public policy must determine the rules of our Private International Law. Even though the Supreme Court considered the question of domicile in the last line of paragraph 48 it was observed that even applying the Le Mesurier doctrine the Nevada Court would have no jurisdiction to pass the decree of divorce. In paragraph 53 the Supreme Court has specifically asserted that so long as the law is not properly amended the Courts shall have to exercise residual discretion to avoid flagrant injustice for no rule of Private International Law could compel a wife to submit to a decree procured by the husband by trickery. Here is not a case of a decree by trickery. But can it be said that the petitioner-wife can only invoke the jurisdiction of Kenyan Court even though according to the marriage and personal law of the parties the Act is applicable ? On this consideration therefore I come to the conclusion that the Act is applicable to the parties and therefore sec. 5 of the Act would certainly be applicable to the marriage between the petitioner and respondent no. 1 as at the time of the marriage according to Hindu law the marriage between respondent no. 1 and respondent no. 2 (Bai Kusum) was subsisting and therefore the marriage between the petitioner and respondent no. 1 is null and void. 5 of the Act would certainly be applicable to the marriage between the petitioner and respondent no. 1 as at the time of the marriage according to Hindu law the marriage between respondent no. 1 and respondent no. 2 (Bai Kusum) was subsisting and therefore the marriage between the petitioner and respondent no. 1 is null and void. ( 60 ) WHEN I have come to (he conclusion that the marriage is null and void and decree should be granted in favour of the petitioner wife question whether there was cruelty or not would go into the background. But because this Court specifically remanded the matter for deciding the petition on all issues this Court also being a Court of fact being the First Appellate Court. I would like to consider that aspect. . ( 61 ) IT is true that from the tenor of the letters produced it seems that the wife did not find it congenial to stay at Nairobi. She was all throughout home-sick. She has made a ground that she did not know that respondent no. 1 had earlier married. But from the discussion made by the learned trial Judge on appreciation of evidence I concur with his finding that this case of the petitioner cannot be believed. Negotiations went on for a number of times. Therefore the case of the petitioner-wife that when she once went in a social gathering she knew that respondent no. 1 was married earlier and that gave a shock to her cannot be considered. It may be that there may be some thiing in the family due to which the wife did not like the atmosphere at Nairobi. But it also seems that there was some tussle when the petitioner was pregnant. Respondent no. 1s side wanted the child to be born at Nairobi so that he can get Kenyan citizenship and also domicile but the petitioner-wife was insisting to come to India. Somehow or the others this did not materialise and she gave birth to a male child at Nairobi. Respondent no. 1s side wanted the child to be born at Nairobi so that he can get Kenyan citizenship and also domicile but the petitioner-wife was insisting to come to India. Somehow or the others this did not materialise and she gave birth to a male child at Nairobi. Apart from the consideration of psychological trend of the mind of the petitioner-wife and even assuming for the sake of argument that whatever she stated was stated with a view to show that there was mental cruelty it is her case that she was not allowed to write letters and any letter if written was censored and thereafter she was permitted to post the letter. Whenever there was telephonic talk relatives of respondent no. 1 used to stand near her and therefore under the circumstances she could not write anything or tell anything on phone to her parents. This cannot be believed. The petitioner is an educated lady. In Nairobi there are many Audichaya Brahmins and also Indians. According to her once she had gone to a social gathering where she came to know about the earlier marriages of respondent no. 1. It is not her case that she was completely interned in the house so that she could not go out and write letters. Under these circumstances I am not prepared to believe that respondent no. 1 put so much control on her that she could not convey anything to her father. Therefore it cannot be said that whatever she has deposed is true. ( 62 ) EX. 111 is a letter written by Ramniklal Shukla (uncle of respondent no. 1) from Nairobi on 1-2-1979 to the father of the petitioner-wife. This is a very detailed letter giving out all that happened at Nairobi during the stay of the petitioner. He came to know about the allegation that respondent no. 1 had slapped the petitioner once and when she was pregnant he had also given her a kick at night. On page 6 of this letter Ex. 111 there is mention of some dispute after the child was born. There was occasion of some marriage in the beginning of December and for which the petitioner-wife was requested to attend. The petitioner insisted on going to India and respondent no. 1 told her as to why she wanted to go and also told her that Nimesh (son) had some skin infection. There was occasion of some marriage in the beginning of December and for which the petitioner-wife was requested to attend. The petitioner insisted on going to India and respondent no. 1 told her as to why she wanted to go and also told her that Nimesh (son) had some skin infection. At that time it is alleged the petitioner stated that she would go away keeping Nimesh there. This discussion went on upto 2. 00 a. m. and respondent no. 1 had given a slap to the petitioner. This is an admission. Earlier incident is on page 8 of this letter This refers to allegation made by the father of the petitioner to Vyasji (witness Purshottamdas P. Vyas Ex. 114) that respondent no. 1 had given a kick to the petitioner when she was pregnant. It is the assertion of Ramniklal in this letter that respondent no. 1 had not given a kick but the petitioner was running in 8th month of pregnancy and she had gone near respondent no. 1. According to the suggestion in this letter she wanted cohabitation but respondent no. 1 refused because some untoward incident might happen and there would be trouble. According to this letter the petitioner did not agree and therefore at that time respondent no. 1 wanted to get down from the cot and in doing so his leg touched the petitioner. At that time Ramniklal was at home. When respondent no. 1 went out of the room Ramniklal asked him as to what had happened. At that time it was 11. 00 p. m. Respondent no. 1 narrated the entire incident to him. It is well nigh impossible to believe this story because as considered earlier Ramniklal is the head in the family. Everybody seems to be under his thumb including the father of respondent no. 1. When respondent no. 1 married with Bai Kusum he was forcibly taken to Nairobi from India by this very Ramniklal even though the father of respondent no. 1 was in India. Therefore it is practically impossible to believe that respondent no. 1 would be bold enough to tell him about the proposed cohabitation. Anyway even if it was so stated it can very well be considered that this cannot be a true story but a story created by respondent no. 1. Therefore it is very clear that kick was given by respondent no. 1 would be bold enough to tell him about the proposed cohabitation. Anyway even if it was so stated it can very well be considered that this cannot be a true story but a story created by respondent no. 1. Therefore it is very clear that kick was given by respondent no. 1 to the petitioner when she was pregnant. ( 63 ) MR. Nanavati made two-fold arguments on these two incidents. First is that they are stray incidents and second is that even though this had happened till she came back to India she had never informed anybody. Now one cannot appreciate the circumstances under which the petitioner was at Nairobi. She had no occasion to inform anybody. So far as the incident regarding kick is concerned she was having a child and was all throughout insisting on going to India and ultimately that insistence did not fructify. Therefore she might hot have told anybody nor written letter. But the fact remains that kick was given to the petitioner when she was pregnant. The second incident is of slap which took place just before petitioners coming to India. Therefore merely because some time has elapsed it cannot be said that this act of cruelty was condoned by the petitioner because immediately after she came to India she filed a petition and made allegations about the physical cruelty to her. Striking of blows can certainly be said to be legal cruelty to justify grant of a decree on the ground of cruelty. We cannot ignore the fact that the petitioner is B. Com. and respondent no. 1 is B. Sc. (Agriculture ). Both belong to well-to-do families Both are educated. Therefore what would be the effect of such cruelty on an educated spouse has to be considered. Though normally in order to establish a case of cruelty against her husband the wife must prove more than isolated acts of violence. But each case will depend on its own facts especially on the social status of the parties their education and family background. If this is considered even a slap to an educated wife would be sufficient cruelty because that is left the only way in which the husband can expose his justified indignation even if it is so. Giving a kick to a pregnant woman would certainly be an act of cruelty which has happened in the instant case. If this is considered even a slap to an educated wife would be sufficient cruelty because that is left the only way in which the husband can expose his justified indignation even if it is so. Giving a kick to a pregnant woman would certainly be an act of cruelty which has happened in the instant case. Therefore on the point of cruelty I completely concur with the finding of the learned trial Judge. ( 64 ) SO far as operation of sec. 23 of the Act is concerned arguments are advanced firstly on the strength that so far as sec. 11 of the Act is concerned sec. 23 of the Act would be applicable. Under see. 23 (e) of the Act the only exception to sec. 11 of the Act is that if the Court is satisfied that the petition is not presented or prosecuted in collusion with the respondent then a decree can be passed. Therefore it is stated that so far as sec. 11 of the Act is concerned only exception is under sec. 23 (1) (c) of the Act otherwise the decree can be passed if there is connivance or condonation of the act or acts complained of and that the petitioner is not taking advantage of his or her own wrong. It is therefore submitted on behalf of respondent no. 1 that the petitioner was taking advantage of her own wrong because she did not want to stay at Nairobi and came to India and till then she never disclosed to anybody about the slap or kick given to her by respondent no. 1. So as she was not minded to remain in Nairobi it was her own wrong and therefore she cannot take advantage of it. Secondly as argued earlier cruelty is condoned. But as considered there is no condonation of cruelty under the circumstances of the instant case. It cannot be overlooked that in sec. 23 only exception to sec. 11 of the Act is given so far as collusion is concerned. That does not mean that sec. 23 would be applicable to sec. 11 of the Act because here is a case of a marriage which is null and void and therefore if the marriage is ab initio void there is no question of any condonation or even delay which is a ground urged before me. Under sec. That does not mean that sec. 23 would be applicable to sec. 11 of the Act because here is a case of a marriage which is null and void and therefore if the marriage is ab initio void there is no question of any condonation or even delay which is a ground urged before me. Under sec. 23 (1) (d) of the Act decree can be passed only if there has not been any unnecessary or improper delay in instituting the proceeding. ( 65 ) LEARNED author S. V. Gupte in his book Hindu Law referred to earlier has in paragraph 106 on page 708 put a posure as to whether the Court would be entitled to refuse relief under sec. 11 on the ground that the petitioner had his or her previous spouse living at the time of such marriage and the petitioner would be taking advantage of his or her own wrong or disability ? Then it is stated that under sec. 11 of the Act the Court has the discretion to pass a decree declaring the marriage void as perhaps the word may suggests. But even if the Court refuses to grant a decree under this section the marriage would be nonetheless void if it has taken place in contravene tion of any of the three conditions specified in clauses (i) (iv) and (v) of sec. 5 of the Act. Therefore such a marriage being void ab initio the consideration as to any party taking advantage of his or her own wrong is not material. Same would be applicable to the question of delay. ( 66 ) ONE argument advanced is that proviso to sub-sec. (2) of sec 23 of the Act is to the effect that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii) (iii) (iv) (v) (vi) or (vii) of sub-sec. (1) of sec. 13. This is pertaining to attempt on the part of the Court for reconciliation. The learned trial Judge has observed that if the husband would have come there was possibility of reconciliation because he was ready to accept the wife. But when the question is of the marriage being ab initio void in my view the point of reconciliation would not arise Therefore this ground of sec. 23 of the Act also would not be available. But when the question is of the marriage being ab initio void in my view the point of reconciliation would not arise Therefore this ground of sec. 23 of the Act also would not be available. ( 67 ) IT was argued before me that if the petition cannot be held to be maintainable under the Hindu Marriage Act then under the ordinary civil law according to the Code of Civil Procedure decree could be passed. I do not want to enter into that aspect because I have already considered that the Act is applicable and decree sought for by the wife should be granted. ( 68 ) I do not also propose to consider whether in view of the fact that the petitioner has established cruelty if the decree for nullity of marriage cannot be granted then decree for judicial separation at least should be granted. That question also is besides the point as I have now come to the conclusion that the marriage is null and void. But otherwise on facts on proof of cruelty decree of judicial separation can be passed as held by the learned trial Judge. He denied that decree because he held that the Act is not applicable while I now hold that the same is applicable. ( 69 ) IN the result First Appeal No. 278 of 1982 filed by the petitioner-wife (appellant) is allowed with costs all throughout and the cross-objections filed by respondent No. 1 husband are dismissed with costs. The marriage between the parties i. e. the petitioner-wife and respondent No. 1 husband is declared null and void by a decree of nullity of marriage in favour of the petitioner. This declaration is given under sec. 11 of the Hindu Marriage Act 1955 ( 70 ) FIRST Appeal No. 443 of 1983 filed by Dhirendra Chandrakant Shukla (husband) is dismissed with costs. Order accordingly. .