ROSETTA EVELYN ATTAULLAH V. JUSTIN ATTAULLAH AIR 1953 CAL 530
FACTS
Both parties were Christians.
Rosetta Evelyn lived in Calcutta, India, and her parents were long-term residents there.
Justin Attaullah was born in Mardan (now in Pakistan) and worked for the British Embassy in Kabul.
Justin did not reside in India except for brief visits around his marriage in 1948 and subsequent short stays.
After their marriage, the couple lived in Kabul, with Rosetta returning to India several times.
The petitioner, Rosetta Evelyn Attaullah, sought a dissolution of her marriage under Section 10 of the Indian Divorce Act of 1869.
The Additional District Judge of Alipore granted an ex parte decree, as neither the respondent (Justin Attaullah) nor the co-respondent appeared in court.
Upon reaching the High Court for confirmation, the respondent contended that the Alipore Court lacked jurisdiction.
RULE
Mere temporary or transitory residence, even for an extended period, is insufficient to establish a new domicile without the intention of permanent residence. The burden of proving a change of domicile lies with the party asserting it, requiring clear and cogent evidence.
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.
HELD
Upon Indian Independence on August 15, 1947, British India was divided into India and Pakistan.
Individuals domiciled in British India had to acquire a new domicile in either India or Pakistan after the partition.
The respondent's domicile was critical in determining jurisdiction under Section 2 of the Divorce Actof 1869.
Winans v. Attorney General (1904) AC 287: This case discussed that a change of domicile does not necessarily involve a change of allegiance.
The domicile is the combination of residence and the intention of permanent or indefinite residence.
Despite Justin's application in 1948 expressing an initial intention to settle in India, he did not follow through.
Justin did not establish a permanent residence in India, and his employment and habitual residence remained in Kabul.
The court concluded that Justin Attaullah did not acquire Indian domicile either 'ipso facto' post-Partition or by choice through subsequent actions.
Consequently, the court ruled that neither party was domiciled in India at the time the divorce petition was filed.
The High Court dismissed the petition for dissolution of marriage on the grounds that the court lacked jurisdiction, as the parties were not domiciled in India at the relevant time.
COMMENTARY
Domicile of Choice
It is however open to a person sui juris to change his domicile. By acquiring a new domicile, a man loses his domicile of origin or any old domicile. Until a new domicile, is acquired, a man retains his domicile of origin (section 9):
Continuance of domicile of origin. —The domicile of origin prevails until a new domicile has been acquired.