Rosetta Evelyn Attaullah v. Justin Attaullah (AIR 1953 Cal 530)

Facts of the Case

The case concerns the jurisdiction of Indian courts to dissolve the marriage of Christian parties, determined by the husband's domicile.

• Parties: Both were Christians. Rosetta Evelyn Attaullah (Petitioner) lived in Calcutta, India. Justin Attaullah (Respondent) was born in Mardan (now in Pakistan) and was employed by the British Embassy in Kabul, Afghanistan.

• Marriage and Residence: The couple married in 1948. After marriage, they lived in Kabul. Justin's residence in India was limited to brief visits around the marriage and short subsequent stays.

• Petition: Rosetta sought the dissolution of her marriage under Section 10 of the Indian Divorce Act of 1869 in the Alipore Court.

• Decree and Challenge: An ex parte decree was granted. However, when the matter reached the High Court for confirmation, the respondent (Justin) contested the confirmation, arguing that the Alipore Court lacked jurisdiction.

Issue

Whether the parties were domiciled in India at the time the petition for dissolution was presented, as required by Section 2 of the Indian Divorce Act of 1869, which conditions the court's jurisdiction on the parties' domicile.

Rule

To acquire a domicile of choice, two elements must be proven:

1. Physical presence in the new territory (factum).

2. Intention to reside there permanently or indefinitely (animus manendi).

Mere temporary or transitory residence, even if extended, is insufficient to establish a new domicile without the requisite intention. The burden of proving a change of domicile lies with the party asserting it and requires clear and cogent evidence.

Held

The Calcutta High Court:

• Post-Partition Domicile: Noted that upon Indian Independence on August 15, 1947, individuals domiciled in British India had to acquire a new domicile in either India or Pakistan. The husband's domicile was critical for determining matrimonial jurisdiction.

• Definition of Domicile: Cited Winans v. Attorney General (1904) AC 287, which defined domicile as the combination of residence and the intention of permanent or indefinite residence. [Image illustrating the two elements required for Domicile of Choice: a physical residence location and a permanent-intent-thought bubble]

• Failure to Prove Animus Manendi: Despite Justin's initial application in 1948 expressing an intention to settle in India, the Court found that he did not follow through on this intention. His employment and habitual residence remained in Kabul. His visits to India were brief and temporary.

• Conclusion on Domicile: The Court concluded that Justin Attaullah did not acquire Indian domicile, neither automatically post-Partition (ipso facto) nor by his subsequent actions (domicile of choice).

• Jurisdictional Bar: Since the essential requirement of Section 2 of the Indian Divorce Act, 1869,—that the parties must be domiciled in India at the time of the petition—was not met, the High Court ruled that the lower court lacked jurisdiction.

The High Court dismissed the petition for dissolution of marriage on jurisdictional grounds.

Commentary

The Sanctity of Domicile of Origin

This case strongly affirms the principle that the domicile of origin is tenacious and is retained until a new domicile (domicile of choice) is effectively acquired. As stated in Section 9 of the Indian Succession Act:

Continuance of domicile of origin. —The domicile of origin prevails until a new domicile has been acquired.

In matrimonial law, the concept of unity of domicile means the wife's domicile (domicile of dependency) follows the husband's. Therefore, for the Indian court to have jurisdiction, the husband's Indian domicile was essential.

Matrimonial Jurisdiction

This ruling is a classic example of Private International Law being applied domestically. Jurisdiction for dissolving a marriage is universally recognized as belonging to the court of the country where the parties are domiciled at the time of the petition. The failure of Justin Attaullah to establish the necessary permanent intention meant the marriage bond could not be dissolved by an Indian court, even if the wife was resident there.