A.P. Srivastava, J. - (1.) This is a petitioner's special appeal against an order of Mr. Justice Jagdish Sahai dismissing in limine his petition under Article 226 of the Constitution. The petitioner and the respondent were both Indian citizens domiciled in this country. They were married in January, 1947 under the Special Marriage Act of 1872. The marriage was celebrated at Mussoorie. They lived as husband and wife in this country till March, 1947 when the petitioner proceeded to England for higher medical studies. Before proceeding to England the petitioner executed a registered deed of settlement dated 13th August, 1946 in respect of his share of properties in this country whereby he gave the properties to his mother. He also executed a general power of attorney dated 23rd December, 1946 in favour of his mother. On his arrival in England he commenced his medical studies but fell in financial difficulties. The respondent went to England and wanted the appellant to provide a home for her there, but in the circumstances in which the appellant was placed that was not possible. The respondent therefore came back to India. Conditions for the appellant however improved subsequently. The appellant first joined a clinic of another doctor and then began to practise independently under the National Health Scheme of the United Kingdom. He later acquired an interest in a house in Loughton, Essex also. Relations between the appellant and the respondent did not however improve and on 20-11-1957 the respondent filed a petition under the Special Marriage Act, 1954 praying for a decree for judicial separation from the appellant. The main ground on which the petition was based was the alleged desertion of the respondent by the appellant. The petition was filed in the court of the District Judge, Saharanpur because the marriage between the parties had taken place at Mussoorie which was situated within the jurisdiction of the District Judge, Saharanpur.
(2.) The written statement was filed in that case on behalf of the appellant by his mother on 12-1-1959. Besides controverting the various allegations made by the respondent in her petition for judicial separation the appellant raised a plea of jurisdiction also. His contention was that as he had acquired English domicile the respondent being his wife could not have a different domicile. Both the parties having got domiciled in England he contended that the Special Marriage Act had ceased to be applicable. The petition for judicial separation, it was urged, could not therefore be filed under that Act in the Saharanpur court.
(3.) The district Judge framed a preliminary issue in respect of this plea. No evidence was led before him and he was requested to decide that issue on the basis of what was contained in the pleadings of the parties. After hearing arguments and considering the pleadings the learned District Judge answered the preliminary issue against the appellant. He held that the appellant had not got domiciled in England, Sec. 31 of the Special Marriage Act, 1954 applied and the petition for judicial separation filed by the respondent could, therefore, be entertained by him. Against the decision of the preliminary issue of jurisdiction the appellant filed a petition in this Court under Article 226 of the Constitution. He prayed in that petition that the order of the learned District Judge holding that he had jurisdiction to proceed with the case be quashed by a writ of certiorari. He also prayed for a writ of prohibition directing the District Judge not to proceed with the trial of the case for judicial separation. The writ petition came up for admission before Mr. Justice Jagdish Sahai. He rejected it as he was of opinion that the appellant had an alternative remedy, that the question essentially involved was a question of fact in which the High Court could not enter in its writ jurisdiction and that in any case there was nothing to show that the impugned decision of the District Judge suffered from any apparent error which could attract a writ of certiorari. The present special appeal has been filed against the rejection of the writ petition. * * * 8. The parties were admittedly married in January 1947 at Mussoorie under the Special Marriage Act of 1872. That Act had been replaced by the Special Marriage Act of 1954 and under Sec. 51(2) (a) of the latter Act the marriage of the parties must be deemed to have been solemnized under the later Act. When the respondent filed her petition for judicial separation in the court of the District Judge of Saharanpur she wanted to obtain the benefit of Sec. 23 of the Act. The petition had been filed by her in the Saharanpur court under sub-Sec. (1) of Sec. 31 which provides:- "Every petition under Chap. V or Chap. VI shall be presented to the District Court within the local limit of whose jurisdiction the marriage was solemnized or the husband and wife reside or last resided together." As the marriage of the parties had been solemnized at Mussoorie within the jurisdiction of District Judge, Saharanpur the petition under Chap-V of the Act could be presented to the District Judge, Saharanpur under this provision. The appellant, however, contended that after the marriage he had acquired domicile in England and as the respondent could not have a different domicle she too must be held to have been domiciled at the same place. Both the parties having thus got domiciled in England the provisions of the Special Marriage Act, 1954 ceased to be applicable and the respondent could not on that account either claim judicial separation under the Act or taking advantage of Sec. 31 file her petition for that relief in the court of the District Judge, Saharanpur. This contention is based on sub-Sec. (2) of Sec. 1 of the Special Marriage Act 1954 which reads:- "It (the Act) extends to the whole of India except the State of Jammu and Kashmir and applies also to citizens of India domiciled in territories to which this Act extends who are outside the territories." The argument put forward on behalf of the appellant is that the second clause of the sub-section requires three essentials to be fulfilled before it can be held that the Act applies. In the first place, the persons concerned must be citizens of India. Secondly they must be domiciled in India except the State of Jammu and Kashmir and thirdly they must be residing outside the territories of India. The second essential was absent in the present case. The parties were not domiciled in India on the date on which the matrimonial petition was filed. The Act was, therefore, inapplicable and no advantage could be taken of it by the respondent. 9. This contention of the appellant does not appear to be acceptable. It will be noticed that though the Special Marriage Act of 1872 also provided that it extended to the whole of India the clause "and applies also to citizens of India domiciled in territories to which this Act extends who are outside the territories" was not there in that Act. This clause was inserted for the first time in the Special Marriage Act of 1954, apparently with two ends in view. The first was that the benefit of the Act may be available not only to the citizens of this country domiciled here who are residents in this country but to the non-resident citizens also. Thus under the former Act Indian citizens domiciled in this country who happened to be in a foreign country like South Africa or England could not get married under the Act and take advantage of it. The legislature thought that the benefits of the Act should be available to those citizens also who happened to be residing outside the country and if they liked they could take advantage of the Act and be married under its provisions and be governed by it. The second purpose of introducing the clause was to make it clear that the disabilities and obligations created to the special Marriage Act would continue to apply to the citizens of the country domiciled here, irrespective of the fact that they ceased to reside in the country and were residing outside its territories. The intention thus was to give this statute extra territorial operation. For instance beg any is prohibited by the Act and is punishable under it. If a person married under the Act committed bigamy while residing outside the country he would still be liable for the offence. Had this clause not been inserted in Sec. 1(2) it would have been doubtful if the person who committed bigamy outside India would have been liable under the Act. 10. In connection with the first purpose for which this clause was inserted in sub-Sec. (2) of Sec. I of the Act it was provided in Sec. 3 of the Act that "for the purposes of this Act in its application to citizens of India domiciled in the territories to which this Act extends who are outside the said territories, the Central Government may by notification in the official Gazette may appoint Marriage Officers for the State or any part thereof and appoint such diplomatic or consular officers to be the Marriage Officers." While laying down the conditions for solemnization of the marriage in Sec. 4(e) also it was provided that if the marriage was solemnized outside the territories to which the Act extends both the parties to the marriage must be citizens of India domiciled in the said territories. 11. For a proper interpretation of Sec. 1(2) therefore the key words appear to be "and applies also." They indicate that the purpose of the clause in which they were used was to enable non-resident citizens also to take advantage of the provisions of the Act and to marry in accordance with it. Citizens of India who were residents of the country could take advantage of the Act under the first clause but citizens who happened to be residing outside the country either in Jammu or Kashmir or at any other place could take advantage of it under the second clause. But once advantage of the Act had been taken and the marriage soleminzed under its provisions, all the rights which the parties will have or the liabilities or obligations to which they would be subject would flow from the Act. It will be noticed that under the Act certain consequences follow if a marriage is solemnized under its provisions or if a marriage celebrated in other forms is registered under them. Thus if a person professes the Hindu, Budhist, Sikh or Jain religion he would be deemed to have separated from the undivided family under Sec. 19, and for the purpose of succession will be governed by Sec. 21 of the Act. Some of the disabilities to which he will be subject are mentioned in Sec. 43 and 44 of the Act. The provisions which will govern the rights of the parties with regard to divorce, judicial separation, restitution of conjugal rights and other similar matters will be governed by the other provisions of this Act. 12. The interpretation which the learned counsel for the appellant would like to put on sub-Sec. (2) of Sec. 1 of the Act is that continued domicile in the country to which the Act normally extends is an essential condition for the application of the Act and if even after getting married under the Act the parties or the husband acquires another domicile, the provisions of the Act will cease to apply and the law of the place of domicile will begin to govern the rights and liabilities of the parties. We find nothing in the words of Sub Sec. (2) of Sec. 1 of the Act which can justify this interpretation. We find it difficult to believe that by enacting the second clause of the sub-section the legislature intended to confer on both the parties to the marriage or in any case the husband the right to avoid all the liabilities and obligations under the Act simply by acquiring another domicile. In our view if the marriage was performed under the provisions of the Act, the parties would continue to be governed by its provisions for the matters provided therein wherever they may happen to be domiciled at a particular time. 13. For persons married under the provisions of the Act the Act contains elaborate provisions relating to judicial separation, divorce and restitution of conjugal rights. The forum for all these actions has been fixed and Sec. 31 provides where an action under Chap. V and VI of the Act can be started. If the parties to the present case had been married under the Act and were governed by its provisions we find no ground why the respondent could not file her petition for judicial separation under Sec. 31 of the Act in a court within whose jurisdiction the marriage had been solemnized. For the purpose of deciding which Court had jurisdiction to entertain the petition therefore the only things to be considered were whether the marriage had been solemnized within the jurisdiction of the Court, whether the parties were residing there or whether they had last resided there as husband and wife. If any one of these conditions was present Sec. 31 got attracted. 14. In this view of the case the question whether the appellant had or had not acquired domicile in England was really immaterial. Even if he had acquired domicile there he could not either evade or defeat the provisions of the Act and contend that the respondent could not start her action under the Act in the Saharanpur court. On the basis of the allegation of having acquired domicile in England, therefore, the appellant could not oust the jurisdiction of the District Judge, Saharanpur and get any writ issued prohibiting him from proceeding with the trial of the martimenial petition filed by the respondent. In this view of the matter it is unnecessary for us to go into the question whether the finding of the learned District Judge that the appellant had not acquired domicile in England was reviewable by this Court or not. The question was a mixed question of fact and law inasmuch as the question of acquiring domicile in another country necessarily depends on the intention with which a person resides in that country. What that intention is essentially a question of fact. But it may be necessary in order to find out that intention to apply principles of law and to that extent a question of law gets involved. The learned single Judge treated the finding of the District Judge that the appellant had not acquired domicile in England and did not have the necessary animus as a finding on a question of fact and was of the opinion that in writ proceedings a disputed question of fact could not be gone into and it was not permissible to review the finding of the District Judge on that point. The learned counsel for the appellant rightly points out that in taking this view it was overlooked that if the jurisdiction of Saharanpur court really depended on the acquisition or otherwise of the appellant's domicile in England, the question became a jurisdictional question and in the case of such jurisdictional question even if it is a question of fact, it is open to the Court to go into the question and find out whether it has been correctly decided or not. Various authorities have been cited in support of this contention but it is not necessary for us to refer to all of them. The proposition of law is not disputed and will be found stated in Chaube Jagdish Prasad v. Ganga Prasad, A.I.R. 1959 S.C. 492 . 15. The learned single Judge however appears, if we may say so with respect, to be perfectly justified in his view that a writ of certiorari can be issued only if the impugned order suffers from an error apparent on the face of the record. A distinction has, in this connection, to be made between a mere error and an error apparent on the face of the record. A writ of certiorari can be issued only in the latter case and not in the former. Under Article 226 of the Constitution the High Court does not exercise appellate powers. If the finding of the District Judge on the question whether the appellant had acquired domicile in England or not (even if it is a mixed question of law and fact) is only erroneous it can be challenged successfully and upset in an appeal filed against the final decision in the matrimonial case. The appellant could expect this Court to interfere with the finding at the present stage in writ proceedings only if he could satisfy the court that the order was erroneous on the face of the record. The Supreme Court in Satyanarayan Laxminarayan Hedge and others v. Mallikarjun Bhavanappa Tirumate, A.I.R. 1960 S.C. 137 described what was not an error of that kind by saying. "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record." The impugned order of the District Judge appears to be an order of this kind. It cannot be said to be erroneous on the face of the record. Whether the requisite intention to acquire domicile-in England existed or not has to be inferred in the case from certain facts and circumstances stated in the pleadings. No evidence had been led. Even affidavits had not been filed before the District Judge. The written statement that was filed on behalf of the appellants was not signed or verified by him personally. His mother had done that for him as his attorney. In such circumstances if two conclusions were possible and the District Judge reached one of them and not the other, it could not be contended that he had committed an error which was not only apparent but apparent on the face of the record. On this ground too the learned single Judge appears to have been justified in refusing to interfere with the impugned order at the instance of the appellant. 16. Learned counsel for the parties addressed us also on merits of the question whether the appellant had acquired domicile in England. They are, however, agreed that in case the interpretation suggested by the appellant in respect of sub-Sec. (2) of Sec. 1 of the Special Marriage Act, 1954 was not acceptable to us we need not consider the question on merits and express any opinion about it. That may prejudice one or both of the parties in subsequent stages of the matrimonial proceedings. We therefore refrain from considering the question on merits or saying anything about it. In this view of the case it is also not necessary for us to consider the request of the learned counsel for the appellant that the issue of jurisdiction should be reopened and the appellant be allowed to examine himself or to file an affidavit to strengthen his case that he had acquired foreign domicile. 17. As the appellant has filed to satisfy us that the matrimonial petition started by the respondent in the Court of District Judge, Saharanpur was not entertain able by it could and could not proceed in that Court none of the reliefs claimed by the appellant could have been granted. His petition was therefore rightly dismissed by the learned single Judge and the appeal must consequently fail. 18. It is dismissed with costs. Appeal dismissed.;