Le Mesurier v. Le Mesurier

It lays down the classical rule of jurisdiction in matrimonial causes, and it is the rule against which the whole of the Indian material on recognition of foreign divorces is measured.

The Board was considering whether residence, short of domicile, could found jurisdiction to dissolve a marriage, the English courts having so held in Niboyet v. Niboyet.

The reasoning in Niboyet contained an obvious fallacy. According to international law, the domicile for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage.

Step one — status needs a personal law. A decree of dissolution alters status, which must be the same everywhere or it is worthless. The connecting factor must therefore be a personal one.

Step two — domicile is that factor in the common law world. Residence is a fact about where a person is; domicile is the legal criterion of civil status.

Step three — the reciprocity that follows. Because the forum takes jurisdiction on domicile, it will credit a foreign court with jurisdiction on the same ground and refuse it on others — the principle of Travers v. Holley, applied to adoption in Re Valentine's Settlement.

Step four — and the price. With the unity of domicile, the rule meant that a deserted wife had to pursue her husband to his domicile.

It opens: On what basis do courts assume jurisdiction in matrimonial causes? — this is the rule to state first.

Then show the Indian statutes behaving differently, which is the difficulty of the module. The Indian family statutes contain no choice-of-law rules; they contain scope rules and forum rules. The Hindu Marriage Act, 1955 applies also to Hindus domiciled in the territories to which it extends who are outside them — a conflicts rule in all but name, with domicile as its factor. The Special Marriage Act, 1954 uses citizenship plus domicile. The Foreign Marriage Act, 1969 uses citizenship alone, and of only one party. Three neighbouring statutes, three personal connecting factors.

Then state the structural consequence, which is the single most useful point in the paper. The forum rule of the Hindu Marriage Act sends the petition to the district court where the marriage was solemnised or where the husband and wife reside or last resided together — three territorial hooks, all inside India, and none satisfied by a couple who married and lived entirely abroad. The Indian statute therefore frequently gives no forum at all, the spouse goes abroad, and the fight comes home as a recognition question under s. 13 of the Code of Civil Procedure. That is the bridge from Module 3 back to Module 2.

Finish with Satya v. Teja Singh, which refused recognition to a Nevada decree obtained by misrepresenting domicile, accepted a limping marriage rather than a decree got by trickery, and asked Parliament for a recognition statute that has never come.

It does not decide anything about recognition as such; it decides the jurisdiction of the forum, and recognition follows from it by reciprocity.