DR. SUNIL CHANDRA BHATTA CHARYA Vs. SMT. ALO BHATTACHARYA AND ANOTHER

JUDGEMENT

(1.) This is a petitioner's special appeal against an order of Mr. Justice Jagdish Sahai dismissing in limine his petition under Art. 226 of the Constitution. The petitioner and the respondent were both Indian citizens domiciled in this country. They were married in Jan., 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 Aug., 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 Dec., 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 Art. 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 Jan. 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:-