Niboyet v. Niboyet

It is the decision that the Privy Council overruled in reasoning in Le Mesurier v. Le Mesurier, and it is therefore the beginning of the story that Satya v. Teja Singh traces. It also anticipates, by a century, the answer that modern legislation eventually adopted.

The spouses were actually resident in England but were not domiciled there, and dissolution of their marriage was sought in the English courts.

The English courts could dissolve the marriage of spouses actually resident in England though not domiciled there.

Step one — the practical ground. The parties lived in England; their life, and the consequences of the marriage's breakdown, were there.

Step two — why the Privy Council rejected it. In Le Mesurier v. Le Mesurier the Board found an obvious fallacy in the reasoning and laid down the domiciliary rule: 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 three — the cost of the rule that displaced it. Combined with the unity of domicile — Lord Advocate v. Jaffrey, and Att. Gen. for Alberta v. Cook, where even a judicially separated wife could acquire no separate domicile — the domiciliary rule meant that deserted wives had to seek the husband in his domicile to obtain a decree that would be recognised.

Step four — the eventual vindication of the residence idea. England escaped by a sequence the Supreme Court described as something like a game of chess between the judiciary and the legislature, ending with the Recognition of Divorces and Legal Separations Act 1971, which recognises an overseas divorce if at the date of institution either spouse was habitually resident in that country or either spouse was a national of that country, subject to refusal where notice was not given or where recognition would manifestly be contrary to public policy.

It opens: Trace the development of jurisdiction in matrimonial causes. Begin here, move to Le Mesurier, then to the hardship, then to the 1971 Act — and end with India.

End with India, because that is where the marks are. India has no such Act. Satya v. Teja Singh says so and supplies a residual judicial discretion in its place; and the Court's call for legislation, repeated nineteen years later in the recommendations of Neeraja Saraph v. Jayant V. Saraph, has not been answered. Every Indian question on the recognition of foreign matrimonial decrees should end by saying so.

It does not decide anything that remains English law; its reasoning was displaced, and its result was reached again only by statute and on different connecting factors.