published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40556
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4629 OF 2005
SONDUR GOPAL APPELLANT
VERSUS
SONDUR RAJINI RESPONDENT
With
CIVIL APPEAL NO.487 OF 2007
RAJINI SONDUR APPELLANT
VERSUS
GOPAL SONDUR & ORS. RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
CIVIL APPEAL NO.4629 OF 2005
Appellant-husband, aggrieved by the judgment and order
dated 11th of April, 2005 passed by the Division Bench of the
Bombay High Court in Family Court Appeal No. 11 of 2005 reversing
the judgment and order dated 1st of January, 2005 passed by the
Family Court, Mumbai at Bandra in Interim Application No. 235 of
2004 in Petition No. A-531 of 2004, is before us with the leave of
the Court.
Shorn of unnecessary details, facts giving rise to the
present appeal are that
the marriage between the appellant-husband
and the respondent-wife took place on 25th of June, 1989 according
to the Hindu rites at Bangalore.
It was registered under the
provision of the Hindu Marriage Act also.
After the marriage the
husband left for Sweden in the first week of July, 1989 followed
by the wife in November, 1989. They were blessed with two
children namely, Natasha and Smyan.
Natasha was born on 19th of
September, 1993 in Sweden. She is a down syndrome child.
The
couple purchased a house in Stockholm, Sweden in December, 1993.
Thereafter, the couple applied for Swedish citizenship which was
granted to them in 1997.
In June, 1997, the couple moved to
Mumbai as, according to the wife, the employer of the husband was
setting up his business in India. The couple along with child
Natasha lived in India between June, 1997 and mid 1999.
In mid
1999, the husband’s employer offered him a job in Sydney,
Australia which he accepted and accordingly moved to Sydney,
Australia.
The couple and the child Natasha went to Sydney on
sponsorship visa which allowed them to stay in Australia for a
period of 4 years.
While they were in Australia, in the year
2000, the husband disposed of the house which they purchased in
Stockholm, Sweden.
The second child, Smyan was born on 9th
February, 2001 at Sydney. The husband lost his job on 7th July,
2001 and since he no longer had any sponsorship, he had to leave
Australia in the second week of January, 2002.
The couple and the
children shifted to Stockholm and lived in a leased accommodation
till October, 2002 during which period the husband had no job.
On
2nd of October, 2002, the husband got another job at Sydney and to
join the assignment he went there on 18th of December, 2002.
But
before that on 14th of December, 2002, the wife along with
children left for Mumbai.
Later, on 31st of January, 2003, the
wife and the children went to Australia to join the appellant-
husband.
However, the wife and the children came back to India on
17th of December, 2003 on a tourist visa whereas the husband
stayed back in Sydney.
According to the husband, in January, 2004
he was informed by his wife that she did not wish to return to
Sydney at all and, according to him, he came back to India and
tried to persuade his wife to accompany him back to Sydney.
According to the husband, he did not succeed and ultimately the
wife filed petition before the Family Court, Bandra inter alia
praying for a decree of judicial separation under Section 10 of
the Hindu Marriage Act and for custody of the minor children
Natasha and Smyan.
After being served with the notice, the husband appeared
before the Family Court and filed an interim application
questioning the maintainability of the petition itself.
According
to the husband, they were original citizens of India but have
“acquired citizenship of Sweden in the year 1996-1999 and as
citizens of Sweden domiciled in Australia”.
According to the
husband, the wife along with the children “arrived in India on
17th of December, 2003 on a non-extendable tourist visa for a
period of six months and they had confirmed air tickets to return
to Sydney on 27th of January, 2004” and therefore, “the parties
have no domicile in India and, hence, the parties would not be
governed by the Hindu Marriage Act”.
According to the husband,
“the parties by accepting the citizenship of Sweden shall be
deemed to have given up their domicile of origin, that is, India”
and acquired a domicile of choice by the combination of residence
and intention of permanent or indefinite residence.
The husband
has also averred that the domicile of the wife shall be that of
the husband and since they have abandoned their domicile of origin
and acquired a domicile of choice outside the territories of
India, the provisions of the Hindu Marriage Act shall not apply to
them.
Consequently, the petition by the wife for judicial
separation under Section 10 of the Hindu Marriage Act and custody
of the children is not maintainable.
According to the husband, he
did not have any intention to “give up the domicile of choice
namely the Australian domicile nor have the parties acquired a
third domicile of choice or resumed the domicile of origin” and,
therefore, provisions of the Hindu Marriage Act would not be
applicable to them.
In sum and substance, the plea of the husband
is that they are citizens of Sweden presently domiciled in
Australia which is their domicile of choice and having abandoned
the domicile of origin i.e. India, the jurisdiction of the Family
Court, Mumbai is barred by the provisions of Section 1(2) of the
Hindu Marriage Act.
As against this, the case set up by the wife is that their
domicile of origin is India and that was never given up or
abandoned though they acquired the citizenship of Sweden and then
moved to Australia.
According to the wife, even if it is assumed
that the husband had acquired domicile in Sweden, she never
changed her domicile and continued to be domiciled in India.
The
wife has set up another alternative plea. According to her, even
if it is assumed that she also had acquired domicile of Sweden,
that was abandoned by both of them when they shifted to Australia
and, therefore, their domicile of origin, that is, India got
revived.
In short, the case of the wife is that both she and her
husband are domiciled in India and, therefore, the Family Court in
Mumbai has jurisdiction to entertain the petition filed by her
seeking a decree for judicial separation and custody of the
children.
The husband in support of his case filed affidavit of
evidence and he has also been cross-examined by the wife.
According to the husband “even before the marriage he visited
Stockholm, Sweden in Spring, 1985” and “immediately taken in by
the extraordinary beauty of the place and warmth and friendliness
of the people”.
According to the husband, the first thought which
occurred to him was that “Stockholm is the place where” he “wanted
to live and die”.
According to his evidence, at the time of
marriage in 1989, he was a domicile of Sweden. From this the
husband perhaps wants to convey that he abandoned the domicile of
his birth, that is, India and acquired Sweden as the domicile of
choice.
He went on to say that “keeping in mind wife’s express
desire to be in English speaking country” he “accepted the offer
to move to Sydney, Australia”.
His specific evidence is that
“parties herein are Swedish citizens, domiciled in Australia”,
hence, according to the husband, “only the courts in Australia
will have the jurisdiction to entertain the petition of this
nature”.
The husband has further claimed that “on 5th of April,
2004, the day wife had filed the petition” he “had acquired
domicile status of Sydney, Australia”.
As regards domicile status
on the date of cross-examination, that is, 17.11.2004, he insisted
to be the domicile of Australia.
It is an admitted position that
the day on which husband claimed to be the domicile of Australia,
that is, 05.04.2004, he was not citizen of that country or had
ever its citizen but had 457 visa which, according to his own
evidence “is a long term business permit and it is not a domicile
document”.
The family court, after taking into consideration the facts
and circumstances of the case, allowed the application filed by
the husband and held the petition to be not maintainable.
While
doing so, the family court observed that “it cannot be held” that
“the husband has never given up his domicile of origin, i.e.,
India.”
However, in appeal, the High Court by the impugned order
has set aside the order of the family court and held the petition
filed by the wife to be maintainable.
While doing so, the High
Court held that
“the husband has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice”.
Even assuming that the husband had
abandoned his domicile of origin and acquired domicile of Sweden
along with citizenship, according to the High Court, he abandoned
the domicile of Sweden when he shifted to Australia and in this
way the domicile of India got revived.
Relevant portion of the
judgment of the High Court in this regard reads as follows:
“15.4………It is against this factual matrix, we are
satisfied that the respondent has miserably failed to
establish that he ever abandon Indian domicile and/or
intended to acquire domicile of his choice.
16. Even if it is assumed that the respondent had
abandoned his domicile of origin and acquired domicile
of Sweden alongwith citizenship in 1997, on his own
showing the respondent abandoned the domicile of Sweden
when he shifted to Sydney, Australia. Therefore,
keeping the case made out by the respondent in view and
our findings in so far as acquisition of Australian
domicile is concerned, it is clear that the domicile of
India got revived immediately on his abandoning Swedish
domicile…….”
It is against this order that the husband is before us with
the leave of the court.
We have heard Mr. V.Giri, learned Senior Counsel for the
appellant and Mr. Y.H. Muchhala and Mr.Huzefa Ahmadi, learned
Senior Counsel on behalf of respondent.
Mr. Giri draws our
attention to Section 1 of the Hindu Marriage Act (hereinafter to
be referred to as ‘the Act’) and submits that the Act would apply
only to Hindu domiciled in India.
He submits that the parties
having ceased to be the domicile of India, they shall not be
governed by the Act.
Mr. Muchhala joins issue and contends that
the benefit of the Act can be availed of by Hindus in India
irrespective of their domicile.
He submits that there is no direct
precedent of this Court on this issue but points out that a large
number of decisions of different High Courts support his
contention.
In this connection, he draws our attention to a
judgment of Calcutta High Court in Prem Singh v. Sm.Dulari Bai &
Anr. AIR 1973 Cal. 425, relevant portion whereof reads as follows:
“On a fair reading of the above provisions, it
seems clear from the first section that the Act is in
operation in the whole of India except in the State of
Jammu and Kashmir and applies also to Hindus, domiciled
in the territories to which this Act extends, who are
outside the said territories. This section read with
Section 2(1)(a)(b) makes it equally clear that as
regards the intra-territorial operation of the Act it
applies to all Hindus, Buddhists, Jains or Sikhs
irrespective of the question whether they are domiciled
in India or not.”
Reference has also been made to decision of Gujarat High
Court in Nitaben v. Dhirendra Chandrakant Shukla & Anr. I (1984)
D.M.C.252 and our attention has been drawn to the following:
“Apparently looking, this argument of Mr.
Nanavati is attractive. But it would not be forgotten
that section 1 of the Act refers to the extension of the
Act to the whole of India except the State of Jammu and
Kashmir and also to the territories to which the Act is
applicable, and further to all those persons who are
domiciles of those territories but who are outside the
said territories.”
Yet another decision to which reference has been made is
the judgment of the Rajasthan High Court in Varindra Singh & Anr.
v. State of Rajasthan RLW 2005(3) Raj. 1791. Paragraphs 13 and 17
which are relevant read as follows:
“13. Clause (a) of Sub-section (1) of Section 2 of the
Act of 1955 makes the Act of 1955 applicable to all
persons who are Hindu by religion irrespective of the
fact where they reside.
xxx xxx xxx
17. Therefore, Section 2 of the Act of 1955 is very wide enough
to cover all persons who are Hindu by religion
irrespective of the fact where they are residing and
whether they are domiciled in Indian territories or not”
Lastly, learned Senior Counsel has placed reliance on a
judgment of the Kerala High Court in Vinaya Nair & Anr. v.
Corporation of Kochi AIR 2006 Ker. 275 and our attention has been
drawn to the following passage from Paragraph 6 of the judgment
which reads as follows:
“A conjoint reading of Ss. 1 and 2 of the Act would
indicate that so far as the second limb of S. 1(2) of
the Act is concerned its intra territorial operation of
the Act applied to those who reside outside the
territories. First limb of sub-section (2) of S. 1 and
Cls. (a) and (b) of S.2(1) would make it clear that the
Act would apply to Hindus reside in India whether they
reside outside the territories or not.”
Rival submission necessitates examination of extent and
applicability of the Act. Section 1(2) of the Act provides for
extent of the Act. The same reads as follows:
“1. Short title and extent.-
(1) xxx xxx xx
(2) It extends to the whole of India except the State of
Jammu and Kashmir, and applies also to Hindus domiciled
in the territories to which this Act extends who are
outside the said territories.”
From a plain reading of Section 1(2) of the Act, it is
evident that it has extra-territorial operation.
The general
principle underlying the sovereignty of States is that laws made
by one State cannot have operation in another State. A law which
has extra territorial operation cannot directly be enforced in
another State but such a law is not invalid and saved by Article
245 (2) of the Constitution of India. Article 245(2) provides that
no law made by Parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation.
But this
does not mean that law having extra-territorial operation can be
enacted which has no nexus at all with India. In our opinion,
unless such contingency exists, the Parliament shall be
incompetent to make a law having extra-territorial operation.
Reference in this connection can be made to a decision of this
Court in M/s.Electronics Corporation of India Ltd. v.
Commissioner of Income Tax & Anr. 1989 Supp (2) SCC 642 in which
it has been held as follows:
“9.But the question is whether a nexus with
something in India is necessary. It seems to us that
unless such nexus exists Parliament will have no
competence to make the law. It will be noted that
Article 245(1) empowers Parliament to enact law for the
whole or any part of the territory of India. The
provocation for the law must be found within India
itself. Such a law may have extra-territorial operation
in order to sub-serve the object, and that object must
be related to something in India. It is inconceivable
that a law should be made by Parliament in India which
has no relationship with anything in India.“
Bearing in mind the principle aforesaid, when we consider
Section 1(2) of the Act, it is evident that the Act extends to the
Hindus of whole of India except the State of Jammu and Kashmir and
also applies to Hindus domiciled in India who are outside the said
territory. In short, the Act, in our opinion, will apply to Hindus
domiciled in India even if they reside outside India. If the
requirement of domicile in India is omitted altogether, the Act
shall have no nexus with India which shall render the Act
vulnerable on the ground that extra-territorial operation has no
nexus with India. In our opinion, this extra-territorial operation
of law is saved not because of nexus with Hindus but Hindus
domiciled in India.
At this stage, it shall be useful to refer to the
observation made by the High Court in the impugned order which is
quoted hereunder.
“It is, thus, clear that a condition of a
domicile in India, as contemplated in Section 1(2) of
H.M.Act, is necessary ingredient to maintain a petition
seeking reliefs under the H.M.Act. In other words, a
wife, who is domiciled and residing in India when she
presents a petition, seeking reliefs under H.M.Act, her
petition would be maintainable in the territories of
India and in the Court within the local limits of whose
ordinary civil jurisdiction she resides.”
Now, we revert to the various decisions of the High Courts
relied on by the Senior Counsel for the respondent-wife; the first
in sequence is the decision of Calcutta High Court in the case of
Prem Singh (supra). In this case, the husband submitted an
application for restitution of conjugal rights inter alia pleading
that he had married his wife according to Hindu rites in India.
After the marriage, they continued to live as husband and wife and
a daughter was born. The grievance of the husband was that the
wife had failed to return to the matrimonial home which made him
to file an application for restitution of conjugal rights. The
trial court noticed that the husband was a Nepali and he was not a
domicile in India and therefore, he could not have invoked the
provisions of the Act. While interpreting Sections 1(1) and 2(1)
of the Act, the Court held that as regards the intra-territorial
operation of the Act, it is clear that it applies to Hindus,
Buddhists, Jaina and Sikhs irrespective of the question as to
whether they are domiciled in India or not. Having given our most
anxious consideration, we are unable to endorse the view of the
Calcutta High Court in such a wide term. If this view is accepted,
a Hindu living anywhere in the world, can invoke the jurisdiction
of the Courts in India in regard to the matters covered under the
Act.
To say that it applies to Hindus irrespective of their
domicile extends the extra-territorial operation of the Act all
over the world without any nexus which interpretation if approved,
would make such provision invalid.
Further, this will render the
words “domiciled” in Section 1(2) of the Act redundant.
Legislature ordinarily does not waste its words is an accepted
principle of interpretation. Any other interpretation would
render the word ‘domicile’ redundant. We do not find any
compelling reason to charter this course. Therefore, in our
opinion, the decision of the Calcutta High Court taking a view
that the provisions of the Act would apply to a Hindu whether
domiciled in the territory of India or not does not lay down the
law correctly. One may concede to the applicability of the Act if
one of the parties is Hindu of Indian domicile and the other party
a Hindu volunteering to be governed by the Act.
As regards the passage from the judgment of the Gujarat
High Court in Nitaben (Supra) relied on by the wife, it does not
lay down that the Act applies to all Hindus, whether they are
domiciled in India or not. In fact, the High Court has held that
it extends to all those persons who are domiciles of India,
excluding Jammu and Kashmir.
So far as the decision of the Rajasthan High Court in
Varindra Singh (supra) is concerned, it is true that under Section
1(2) of the Act, residence in India is not necessary and Section 2
also does not talk about requirement of domicile for its
application. This is what precisely has been said by the
Rajasthan High Court in this judgment but, in our opinion, what
the learned Judge failed to notice is that the application of the
Act shall come into picture only when the Act extends to that
area. Hence, in our opinion, the Rajasthan High Court’s judgment
does not lay down the law correctly. For the same reason, in our
opinion the judgment of the Kerala High Court is erroneous.
Section 2(1) provides for the application of the Act. The
same reads as follows:
2. Application of Act.- (1) This Act applies –
(a) to any person who is a Hindu by religion in any of
its forms or developments, including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by
religion, and
(c) to any other person domiciled in the territories to
which this Act extends who is not a Muslim, Christian,
Parsi or Jew by religion, unless it is proved that any
such person would not have been governed by the Hindu
law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this
Act had not been passed.”
This section contemplates application of the Act to Hindu
by religion in any of its forms or Hindu within the extended
meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all
such persons domiciled in the country who are not Muslims,
Christians, Parsi or Jew, unless it is proved that such persons
are not governed by the Act under any custom or usage. Therefore,
we are of the opinion that Section 2 will apply to Hindus when the
Act extends to that area in terms of Section 1 of the Act.
Therefore, in our considered opinion, the Act will apply to Hindu
outside the territory of India only if such a Hindu is domiciled
in the territory of India.
There is not much dispute that the wife at the time of
presentation of the petition was resident of India. In order to
defeat the petition on the ground of maintainability, Mr. Giri
submits that the wife will follow the domicile of the husband and
when Sweden has become the domicile of choice, the domicile of
origin i.e. India has come to an end. According to the husband,
the parties had India as the domicile of origin, but in 1987 the
husband moved to Sweden with an intention to reside there
permanently and acquired the Swedish domicile as his domicile of
choice. After the marriage, the wife also moved to Sweden to
reside permanently there and both of them acquired Swedish
citizenship in 1996-97 thereby giving up their domicile of origin
and embracing Sweden as their domicile of choice. Further, on
account of express desire of the wife to move to an English
speaking country, the family moved to Australia in June, 1999 with
an intention to reside there permanently and initiated the process
to acquire the permanent resident status in Australia. On these
facts, the husband intends to contend that they have acquired
Swedish domicile as domicile of choice. Mr. Muchhala, however,
submits that the specific case of the husband is that he is a
Swedish citizen domiciled in Australia and, therefore, the
appellant cannot be allowed to contend that he is domiciled in
Sweden. He points out that the husband is making this attempt
knowing very well that his claim of being the domicile of
Australia is not worthy of acceptance and in that contingency to
contend that the earlier domicile of choice, i.e. Sweden has
revived.
We have bestowed our consideration to the rival submission
and we find substance in the submission of Mr. Muchhala. In
certain contingency, law permits raising of alternative plea but
the facts of the present case does not permit the husband to take
this course.
It is specific case of the appellant that he is a
Swedish citizen domiciled in Australia and it is the Australian
courts which shall have jurisdiction in the matter. In order to
succeed, the appellant has to establish that he is a domicile of
Australia and, in our opinion, he cannot be allowed to make out a
third case that in case it is not proved that he is a domicile of
Australia, his earlier domicile of choice, that is Sweden, is
revived.
In this connection, we deem it expedient to reproduce
the averment made by him in this regard:
“22……..In the instant case, it is submitted that in the
year 1996 the applicant acquired citizenship as well as
domicile of Sweden and is presently domiciled in
Australia. Thus, the Hindu Marriage Act is not
applicable to the parties herein and the Family Court
Mumbai has no jurisdiction to proceed in the matter and
the petition is not maintainable under Section 10 of the
Hindu Marriage Act, 1955.”
The appellant has further averred that the parties never
acquired a third domicile of choice, the same reads as follows:
“19…..In the instant case, there is no intention to give
up the domicile of choice namely the Australia domicile
and nor have the parties acquired a third domicile of
choice or resume the domicile of origin……….”
Further, the husband in his evidence has stated that at the
time of marriage in 1989, he was a domicile of Sweden, but it is
not his case that he shall be governed by the Swedish law or
Swedish courts will have jurisdiction. His specific evidence in
this regard reads as follows:
“7……as the parties herein are Swedish citizens,
domiciled in Australia, and hence it is only the Courts
in Australia that have the jurisdiction to entertain a
petition of this nature…….”
From the aforesaid, it is evident that the appellant does
not claim to be the domicile of Sweden but claims to be the
domicile of Australia and, therefore, the only question which
requires our consideration is as to whether Australia is the
husband’s domicile of choice.
Domicile are of three kinds, viz. domicile of origin, the
domicile by operation of law and the domicile of choice. In the
present case, we are concerned only with the domicile of origin
and domicile of choice. Domicile of origin is not necessarily
the place of birth. The birth of a child at a place during
temporary absence of the parents from their domicile will not make
the place of birth as the domicile of the child. In domicile of
choice one is abandoned and another domicile is acquired but for
that, the acquisition of another domicile is not sufficient.
Domicile of origin prevails until not only another domicile is
acquired but it must manifest intention of abandoning the
domicile of origin. In order to establish that Australia is their
domicile of choice, the husband has relied on their residential
tenancy agreement dated 25.01.2003 for period of 18 months;
enrollment of Natasha in Warrawee Public School in April,2003;
commencement of proceedings for grant of permanent resident status
in Australia during October-November, 2003; and submission of
application by the husband and wife on 11.11.2003 for getting
their permanent resident status in Australia.
The right to change the domicile of birth is available to
any person not legally dependant and such a person can acquire
domicile of choice.
It is done by residing in the country of
choice with intention of continuing to reside there indefinitely.
Unless proved, there is presumption against the change of
domicile.
Therefore, the person who alleges it has to prove that.
Intention is always lodged in the mind, which can be inferred
from any act, event or circumstance in the life of such person.
Residence, for a long period, is an evidence of such an intention
so also the change of nationality.
In the aforesaid background,
when we consider the husband’s
claim of being domicile of Australia we find no material to
endorse this plea.
The residential tenancy agreement is only for
18 months which cannot be termed for a long period.
Admittedly,
the husband or for that matter, the wife and the children have not
acquired the Australian citizenship.
In the absence thereof, it is
difficult to accept that they intended to reside permanently in
Australia.
The claim that the husband desired to permanently
reside in Australia, in the face of the material available, can
only be termed as a dream.
It does not establish his intention to
reside there permanently.
Husband has admitted that his visa was
nothing but a “long term permit” and “not a domicile document”.
Not only this, there is no whisper at all as to how and in what
manner the husband had abandoned the domicile of origin.
In the
face of it, we find it difficult to accept the case of the husband
that he is domiciled in Australia and he shall continue to be the
domicile of origin i.e. India.
In view of our answer that the
husband is a domicile of India, the question that the wife shall
follow the domicile of husband is rendered academic.
For all
these reasons, we are of the opinion that both the husband and
wife are domicile of India and, hence, shall be covered by the
provisions of the Hindu Marriage Act, 1955.
As on fact, we have
found that both the husband and wife are domicile of India, and
the Act will apply to them, other contentions raised on behalf of
the parties, are rendered academic and we refrain ourselves to
answer those.
In the result, we do not find any merit in the appeal and it
is dismissed accordingly but without any order as to costs.
CIVIL APPEAL NO.487 OF 2007
In view of our decision in Civil Appeal No. 4629 of 2005
(Sondur Gopal vs. Sondur Rajini) holding that the petition filed
by the appellant for judicial separation and custody of the
children is maintainable, we are of the opinion that the writ
petition filed by the respondent for somewhat similar relief is
rendered infructuous. On this ground alone, we allow this appeal
and dismiss the writ petition filed by the respondent.
………………………………………………………………J.
(CHANDRAMAULI KR. PRASAD)
………..……….………………………………..J.
(V.GOPALA GOWDA)
NEW DELHI,
JULY 15, 2013.
-----------------------
32
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4629 OF 2005
SONDUR GOPAL APPELLANT
VERSUS
SONDUR RAJINI RESPONDENT
With
CIVIL APPEAL NO.487 OF 2007
RAJINI SONDUR APPELLANT
VERSUS
GOPAL SONDUR & ORS. RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
CIVIL APPEAL NO.4629 OF 2005
Appellant-husband, aggrieved by the judgment and order
dated 11th of April, 2005 passed by the Division Bench of the
Bombay High Court in Family Court Appeal No. 11 of 2005 reversing
the judgment and order dated 1st of January, 2005 passed by the
Family Court, Mumbai at Bandra in Interim Application No. 235 of
2004 in Petition No. A-531 of 2004, is before us with the leave of
the Court.
Shorn of unnecessary details, facts giving rise to the
present appeal are that
the marriage between the appellant-husband
and the respondent-wife took place on 25th of June, 1989 according
to the Hindu rites at Bangalore.
It was registered under the
provision of the Hindu Marriage Act also.
After the marriage the
husband left for Sweden in the first week of July, 1989 followed
by the wife in November, 1989. They were blessed with two
children namely, Natasha and Smyan.
Natasha was born on 19th of
September, 1993 in Sweden. She is a down syndrome child.
The
couple purchased a house in Stockholm, Sweden in December, 1993.
Thereafter, the couple applied for Swedish citizenship which was
granted to them in 1997.
In June, 1997, the couple moved to
Mumbai as, according to the wife, the employer of the husband was
setting up his business in India. The couple along with child
Natasha lived in India between June, 1997 and mid 1999.
In mid
1999, the husband’s employer offered him a job in Sydney,
Australia which he accepted and accordingly moved to Sydney,
Australia.
The couple and the child Natasha went to Sydney on
sponsorship visa which allowed them to stay in Australia for a
period of 4 years.
While they were in Australia, in the year
2000, the husband disposed of the house which they purchased in
Stockholm, Sweden.
The second child, Smyan was born on 9th
February, 2001 at Sydney. The husband lost his job on 7th July,
2001 and since he no longer had any sponsorship, he had to leave
Australia in the second week of January, 2002.
The couple and the
children shifted to Stockholm and lived in a leased accommodation
till October, 2002 during which period the husband had no job.
On
2nd of October, 2002, the husband got another job at Sydney and to
join the assignment he went there on 18th of December, 2002.
But
before that on 14th of December, 2002, the wife along with
children left for Mumbai.
Later, on 31st of January, 2003, the
wife and the children went to Australia to join the appellant-
husband.
However, the wife and the children came back to India on
17th of December, 2003 on a tourist visa whereas the husband
stayed back in Sydney.
According to the husband, in January, 2004
he was informed by his wife that she did not wish to return to
Sydney at all and, according to him, he came back to India and
tried to persuade his wife to accompany him back to Sydney.
According to the husband, he did not succeed and ultimately the
wife filed petition before the Family Court, Bandra inter alia
praying for a decree of judicial separation under Section 10 of
the Hindu Marriage Act and for custody of the minor children
Natasha and Smyan.
After being served with the notice, the husband appeared
before the Family Court and filed an interim application
questioning the maintainability of the petition itself.
According
to the husband, they were original citizens of India but have
“acquired citizenship of Sweden in the year 1996-1999 and as
citizens of Sweden domiciled in Australia”.
According to the
husband, the wife along with the children “arrived in India on
17th of December, 2003 on a non-extendable tourist visa for a
period of six months and they had confirmed air tickets to return
to Sydney on 27th of January, 2004” and therefore, “the parties
have no domicile in India and, hence, the parties would not be
governed by the Hindu Marriage Act”.
According to the husband,
“the parties by accepting the citizenship of Sweden shall be
deemed to have given up their domicile of origin, that is, India”
and acquired a domicile of choice by the combination of residence
and intention of permanent or indefinite residence.
The husband
has also averred that the domicile of the wife shall be that of
the husband and since they have abandoned their domicile of origin
and acquired a domicile of choice outside the territories of
India, the provisions of the Hindu Marriage Act shall not apply to
them.
Consequently, the petition by the wife for judicial
separation under Section 10 of the Hindu Marriage Act and custody
of the children is not maintainable.
According to the husband, he
did not have any intention to “give up the domicile of choice
namely the Australian domicile nor have the parties acquired a
third domicile of choice or resumed the domicile of origin” and,
therefore, provisions of the Hindu Marriage Act would not be
applicable to them.
In sum and substance, the plea of the husband
is that they are citizens of Sweden presently domiciled in
Australia which is their domicile of choice and having abandoned
the domicile of origin i.e. India, the jurisdiction of the Family
Court, Mumbai is barred by the provisions of Section 1(2) of the
Hindu Marriage Act.
As against this, the case set up by the wife is that their
domicile of origin is India and that was never given up or
abandoned though they acquired the citizenship of Sweden and then
moved to Australia.
According to the wife, even if it is assumed
that the husband had acquired domicile in Sweden, she never
changed her domicile and continued to be domiciled in India.
The
wife has set up another alternative plea. According to her, even
if it is assumed that she also had acquired domicile of Sweden,
that was abandoned by both of them when they shifted to Australia
and, therefore, their domicile of origin, that is, India got
revived.
In short, the case of the wife is that both she and her
husband are domiciled in India and, therefore, the Family Court in
Mumbai has jurisdiction to entertain the petition filed by her
seeking a decree for judicial separation and custody of the
children.
The husband in support of his case filed affidavit of
evidence and he has also been cross-examined by the wife.
According to the husband “even before the marriage he visited
Stockholm, Sweden in Spring, 1985” and “immediately taken in by
the extraordinary beauty of the place and warmth and friendliness
of the people”.
According to the husband, the first thought which
occurred to him was that “Stockholm is the place where” he “wanted
to live and die”.
According to his evidence, at the time of
marriage in 1989, he was a domicile of Sweden. From this the
husband perhaps wants to convey that he abandoned the domicile of
his birth, that is, India and acquired Sweden as the domicile of
choice.
He went on to say that “keeping in mind wife’s express
desire to be in English speaking country” he “accepted the offer
to move to Sydney, Australia”.
His specific evidence is that
“parties herein are Swedish citizens, domiciled in Australia”,
hence, according to the husband, “only the courts in Australia
will have the jurisdiction to entertain the petition of this
nature”.
The husband has further claimed that “on 5th of April,
2004, the day wife had filed the petition” he “had acquired
domicile status of Sydney, Australia”.
As regards domicile status
on the date of cross-examination, that is, 17.11.2004, he insisted
to be the domicile of Australia.
It is an admitted position that
the day on which husband claimed to be the domicile of Australia,
that is, 05.04.2004, he was not citizen of that country or had
ever its citizen but had 457 visa which, according to his own
evidence “is a long term business permit and it is not a domicile
document”.
The family court, after taking into consideration the facts
and circumstances of the case, allowed the application filed by
the husband and held the petition to be not maintainable.
While
doing so, the family court observed that “it cannot be held” that
“the husband has never given up his domicile of origin, i.e.,
India.”
However, in appeal, the High Court by the impugned order
has set aside the order of the family court and held the petition
filed by the wife to be maintainable.
While doing so, the High
Court held that
“the husband has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice”.
Even assuming that the husband had
abandoned his domicile of origin and acquired domicile of Sweden
along with citizenship, according to the High Court, he abandoned
the domicile of Sweden when he shifted to Australia and in this
way the domicile of India got revived.
Relevant portion of the
judgment of the High Court in this regard reads as follows:
“15.4………It is against this factual matrix, we are
satisfied that the respondent has miserably failed to
establish that he ever abandon Indian domicile and/or
intended to acquire domicile of his choice.
16. Even if it is assumed that the respondent had
abandoned his domicile of origin and acquired domicile
of Sweden alongwith citizenship in 1997, on his own
showing the respondent abandoned the domicile of Sweden
when he shifted to Sydney, Australia. Therefore,
keeping the case made out by the respondent in view and
our findings in so far as acquisition of Australian
domicile is concerned, it is clear that the domicile of
India got revived immediately on his abandoning Swedish
domicile…….”
It is against this order that the husband is before us with
the leave of the court.
We have heard Mr. V.Giri, learned Senior Counsel for the
appellant and Mr. Y.H. Muchhala and Mr.Huzefa Ahmadi, learned
Senior Counsel on behalf of respondent.
Mr. Giri draws our
attention to Section 1 of the Hindu Marriage Act (hereinafter to
be referred to as ‘the Act’) and submits that the Act would apply
only to Hindu domiciled in India.
He submits that the parties
having ceased to be the domicile of India, they shall not be
governed by the Act.
Mr. Muchhala joins issue and contends that
the benefit of the Act can be availed of by Hindus in India
irrespective of their domicile.
He submits that there is no direct
precedent of this Court on this issue but points out that a large
number of decisions of different High Courts support his
contention.
In this connection, he draws our attention to a
judgment of Calcutta High Court in Prem Singh v. Sm.Dulari Bai &
Anr. AIR 1973 Cal. 425, relevant portion whereof reads as follows:
“On a fair reading of the above provisions, it
seems clear from the first section that the Act is in
operation in the whole of India except in the State of
Jammu and Kashmir and applies also to Hindus, domiciled
in the territories to which this Act extends, who are
outside the said territories. This section read with
Section 2(1)(a)(b) makes it equally clear that as
regards the intra-territorial operation of the Act it
applies to all Hindus, Buddhists, Jains or Sikhs
irrespective of the question whether they are domiciled
in India or not.”
Reference has also been made to decision of Gujarat High
Court in Nitaben v. Dhirendra Chandrakant Shukla & Anr. I (1984)
D.M.C.252 and our attention has been drawn to the following:
“Apparently looking, this argument of Mr.
Nanavati is attractive. But it would not be forgotten
that section 1 of the Act refers to the extension of the
Act to the whole of India except the State of Jammu and
Kashmir and also to the territories to which the Act is
applicable, and further to all those persons who are
domiciles of those territories but who are outside the
said territories.”
Yet another decision to which reference has been made is
the judgment of the Rajasthan High Court in Varindra Singh & Anr.
v. State of Rajasthan RLW 2005(3) Raj. 1791. Paragraphs 13 and 17
which are relevant read as follows:
“13. Clause (a) of Sub-section (1) of Section 2 of the
Act of 1955 makes the Act of 1955 applicable to all
persons who are Hindu by religion irrespective of the
fact where they reside.
xxx xxx xxx
17. Therefore, Section 2 of the Act of 1955 is very wide enough
to cover all persons who are Hindu by religion
irrespective of the fact where they are residing and
whether they are domiciled in Indian territories or not”
Lastly, learned Senior Counsel has placed reliance on a
judgment of the Kerala High Court in Vinaya Nair & Anr. v.
Corporation of Kochi AIR 2006 Ker. 275 and our attention has been
drawn to the following passage from Paragraph 6 of the judgment
which reads as follows:
“A conjoint reading of Ss. 1 and 2 of the Act would
indicate that so far as the second limb of S. 1(2) of
the Act is concerned its intra territorial operation of
the Act applied to those who reside outside the
territories. First limb of sub-section (2) of S. 1 and
Cls. (a) and (b) of S.2(1) would make it clear that the
Act would apply to Hindus reside in India whether they
reside outside the territories or not.”
Rival submission necessitates examination of extent and
applicability of the Act. Section 1(2) of the Act provides for
extent of the Act. The same reads as follows:
“1. Short title and extent.-
(1) xxx xxx xx
(2) It extends to the whole of India except the State of
Jammu and Kashmir, and applies also to Hindus domiciled
in the territories to which this Act extends who are
outside the said territories.”
From a plain reading of Section 1(2) of the Act, it is
evident that it has extra-territorial operation.
The general
principle underlying the sovereignty of States is that laws made
by one State cannot have operation in another State. A law which
has extra territorial operation cannot directly be enforced in
another State but such a law is not invalid and saved by Article
245 (2) of the Constitution of India. Article 245(2) provides that
no law made by Parliament shall be deemed to be invalid on the
ground that it would have extra-territorial operation.
But this
does not mean that law having extra-territorial operation can be
enacted which has no nexus at all with India. In our opinion,
unless such contingency exists, the Parliament shall be
incompetent to make a law having extra-territorial operation.
Reference in this connection can be made to a decision of this
Court in M/s.Electronics Corporation of India Ltd. v.
Commissioner of Income Tax & Anr. 1989 Supp (2) SCC 642 in which
it has been held as follows:
“9.But the question is whether a nexus with
something in India is necessary. It seems to us that
unless such nexus exists Parliament will have no
competence to make the law. It will be noted that
Article 245(1) empowers Parliament to enact law for the
whole or any part of the territory of India. The
provocation for the law must be found within India
itself. Such a law may have extra-territorial operation
in order to sub-serve the object, and that object must
be related to something in India. It is inconceivable
that a law should be made by Parliament in India which
has no relationship with anything in India.“
Bearing in mind the principle aforesaid, when we consider
Section 1(2) of the Act, it is evident that the Act extends to the
Hindus of whole of India except the State of Jammu and Kashmir and
also applies to Hindus domiciled in India who are outside the said
territory. In short, the Act, in our opinion, will apply to Hindus
domiciled in India even if they reside outside India. If the
requirement of domicile in India is omitted altogether, the Act
shall have no nexus with India which shall render the Act
vulnerable on the ground that extra-territorial operation has no
nexus with India. In our opinion, this extra-territorial operation
of law is saved not because of nexus with Hindus but Hindus
domiciled in India.
At this stage, it shall be useful to refer to the
observation made by the High Court in the impugned order which is
quoted hereunder.
“It is, thus, clear that a condition of a
domicile in India, as contemplated in Section 1(2) of
H.M.Act, is necessary ingredient to maintain a petition
seeking reliefs under the H.M.Act. In other words, a
wife, who is domiciled and residing in India when she
presents a petition, seeking reliefs under H.M.Act, her
petition would be maintainable in the territories of
India and in the Court within the local limits of whose
ordinary civil jurisdiction she resides.”
Now, we revert to the various decisions of the High Courts
relied on by the Senior Counsel for the respondent-wife; the first
in sequence is the decision of Calcutta High Court in the case of
Prem Singh (supra). In this case, the husband submitted an
application for restitution of conjugal rights inter alia pleading
that he had married his wife according to Hindu rites in India.
After the marriage, they continued to live as husband and wife and
a daughter was born. The grievance of the husband was that the
wife had failed to return to the matrimonial home which made him
to file an application for restitution of conjugal rights. The
trial court noticed that the husband was a Nepali and he was not a
domicile in India and therefore, he could not have invoked the
provisions of the Act. While interpreting Sections 1(1) and 2(1)
of the Act, the Court held that as regards the intra-territorial
operation of the Act, it is clear that it applies to Hindus,
Buddhists, Jaina and Sikhs irrespective of the question as to
whether they are domiciled in India or not. Having given our most
anxious consideration, we are unable to endorse the view of the
Calcutta High Court in such a wide term. If this view is accepted,
a Hindu living anywhere in the world, can invoke the jurisdiction
of the Courts in India in regard to the matters covered under the
Act.
To say that it applies to Hindus irrespective of their
domicile extends the extra-territorial operation of the Act all
over the world without any nexus which interpretation if approved,
would make such provision invalid.
Further, this will render the
words “domiciled” in Section 1(2) of the Act redundant.
Legislature ordinarily does not waste its words is an accepted
principle of interpretation. Any other interpretation would
render the word ‘domicile’ redundant. We do not find any
compelling reason to charter this course. Therefore, in our
opinion, the decision of the Calcutta High Court taking a view
that the provisions of the Act would apply to a Hindu whether
domiciled in the territory of India or not does not lay down the
law correctly. One may concede to the applicability of the Act if
one of the parties is Hindu of Indian domicile and the other party
a Hindu volunteering to be governed by the Act.
As regards the passage from the judgment of the Gujarat
High Court in Nitaben (Supra) relied on by the wife, it does not
lay down that the Act applies to all Hindus, whether they are
domiciled in India or not. In fact, the High Court has held that
it extends to all those persons who are domiciles of India,
excluding Jammu and Kashmir.
So far as the decision of the Rajasthan High Court in
Varindra Singh (supra) is concerned, it is true that under Section
1(2) of the Act, residence in India is not necessary and Section 2
also does not talk about requirement of domicile for its
application. This is what precisely has been said by the
Rajasthan High Court in this judgment but, in our opinion, what
the learned Judge failed to notice is that the application of the
Act shall come into picture only when the Act extends to that
area. Hence, in our opinion, the Rajasthan High Court’s judgment
does not lay down the law correctly. For the same reason, in our
opinion the judgment of the Kerala High Court is erroneous.
Section 2(1) provides for the application of the Act. The
same reads as follows:
2. Application of Act.- (1) This Act applies –
(a) to any person who is a Hindu by religion in any of
its forms or developments, including a Virashaiva, a
Lingayat or a follower of the Brahmo, Prarthana or Arya
Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by
religion, and
(c) to any other person domiciled in the territories to
which this Act extends who is not a Muslim, Christian,
Parsi or Jew by religion, unless it is proved that any
such person would not have been governed by the Hindu
law or by any custom or usage as part of that law in
respect of any of the matters dealt with herein if this
Act had not been passed.”
This section contemplates application of the Act to Hindu
by religion in any of its forms or Hindu within the extended
meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all
such persons domiciled in the country who are not Muslims,
Christians, Parsi or Jew, unless it is proved that such persons
are not governed by the Act under any custom or usage. Therefore,
we are of the opinion that Section 2 will apply to Hindus when the
Act extends to that area in terms of Section 1 of the Act.
Therefore, in our considered opinion, the Act will apply to Hindu
outside the territory of India only if such a Hindu is domiciled
in the territory of India.
There is not much dispute that the wife at the time of
presentation of the petition was resident of India. In order to
defeat the petition on the ground of maintainability, Mr. Giri
submits that the wife will follow the domicile of the husband and
when Sweden has become the domicile of choice, the domicile of
origin i.e. India has come to an end. According to the husband,
the parties had India as the domicile of origin, but in 1987 the
husband moved to Sweden with an intention to reside there
permanently and acquired the Swedish domicile as his domicile of
choice. After the marriage, the wife also moved to Sweden to
reside permanently there and both of them acquired Swedish
citizenship in 1996-97 thereby giving up their domicile of origin
and embracing Sweden as their domicile of choice. Further, on
account of express desire of the wife to move to an English
speaking country, the family moved to Australia in June, 1999 with
an intention to reside there permanently and initiated the process
to acquire the permanent resident status in Australia. On these
facts, the husband intends to contend that they have acquired
Swedish domicile as domicile of choice. Mr. Muchhala, however,
submits that the specific case of the husband is that he is a
Swedish citizen domiciled in Australia and, therefore, the
appellant cannot be allowed to contend that he is domiciled in
Sweden. He points out that the husband is making this attempt
knowing very well that his claim of being the domicile of
Australia is not worthy of acceptance and in that contingency to
contend that the earlier domicile of choice, i.e. Sweden has
revived.
We have bestowed our consideration to the rival submission
and we find substance in the submission of Mr. Muchhala. In
certain contingency, law permits raising of alternative plea but
the facts of the present case does not permit the husband to take
this course.
It is specific case of the appellant that he is a
Swedish citizen domiciled in Australia and it is the Australian
courts which shall have jurisdiction in the matter. In order to
succeed, the appellant has to establish that he is a domicile of
Australia and, in our opinion, he cannot be allowed to make out a
third case that in case it is not proved that he is a domicile of
Australia, his earlier domicile of choice, that is Sweden, is
revived.
In this connection, we deem it expedient to reproduce
the averment made by him in this regard:
“22……..In the instant case, it is submitted that in the
year 1996 the applicant acquired citizenship as well as
domicile of Sweden and is presently domiciled in
Australia. Thus, the Hindu Marriage Act is not
applicable to the parties herein and the Family Court
Mumbai has no jurisdiction to proceed in the matter and
the petition is not maintainable under Section 10 of the
Hindu Marriage Act, 1955.”
The appellant has further averred that the parties never
acquired a third domicile of choice, the same reads as follows:
“19…..In the instant case, there is no intention to give
up the domicile of choice namely the Australia domicile
and nor have the parties acquired a third domicile of
choice or resume the domicile of origin……….”
Further, the husband in his evidence has stated that at the
time of marriage in 1989, he was a domicile of Sweden, but it is
not his case that he shall be governed by the Swedish law or
Swedish courts will have jurisdiction. His specific evidence in
this regard reads as follows:
“7……as the parties herein are Swedish citizens,
domiciled in Australia, and hence it is only the Courts
in Australia that have the jurisdiction to entertain a
petition of this nature…….”
From the aforesaid, it is evident that the appellant does
not claim to be the domicile of Sweden but claims to be the
domicile of Australia and, therefore, the only question which
requires our consideration is as to whether Australia is the
husband’s domicile of choice.
Domicile are of three kinds, viz. domicile of origin, the
domicile by operation of law and the domicile of choice. In the
present case, we are concerned only with the domicile of origin
and domicile of choice. Domicile of origin is not necessarily
the place of birth. The birth of a child at a place during
temporary absence of the parents from their domicile will not make
the place of birth as the domicile of the child. In domicile of
choice one is abandoned and another domicile is acquired but for
that, the acquisition of another domicile is not sufficient.
Domicile of origin prevails until not only another domicile is
acquired but it must manifest intention of abandoning the
domicile of origin. In order to establish that Australia is their
domicile of choice, the husband has relied on their residential
tenancy agreement dated 25.01.2003 for period of 18 months;
enrollment of Natasha in Warrawee Public School in April,2003;
commencement of proceedings for grant of permanent resident status
in Australia during October-November, 2003; and submission of
application by the husband and wife on 11.11.2003 for getting
their permanent resident status in Australia.
The right to change the domicile of birth is available to
any person not legally dependant and such a person can acquire
domicile of choice.
It is done by residing in the country of
choice with intention of continuing to reside there indefinitely.
Unless proved, there is presumption against the change of
domicile.
Therefore, the person who alleges it has to prove that.
Intention is always lodged in the mind, which can be inferred
from any act, event or circumstance in the life of such person.
Residence, for a long period, is an evidence of such an intention
so also the change of nationality.
In the aforesaid background,
when we consider the husband’s
claim of being domicile of Australia we find no material to
endorse this plea.
The residential tenancy agreement is only for
18 months which cannot be termed for a long period.
Admittedly,
the husband or for that matter, the wife and the children have not
acquired the Australian citizenship.
In the absence thereof, it is
difficult to accept that they intended to reside permanently in
Australia.
The claim that the husband desired to permanently
reside in Australia, in the face of the material available, can
only be termed as a dream.
It does not establish his intention to
reside there permanently.
Husband has admitted that his visa was
nothing but a “long term permit” and “not a domicile document”.
Not only this, there is no whisper at all as to how and in what
manner the husband had abandoned the domicile of origin.
In the
face of it, we find it difficult to accept the case of the husband
that he is domiciled in Australia and he shall continue to be the
domicile of origin i.e. India.
In view of our answer that the
husband is a domicile of India, the question that the wife shall
follow the domicile of husband is rendered academic.
For all
these reasons, we are of the opinion that both the husband and
wife are domicile of India and, hence, shall be covered by the
provisions of the Hindu Marriage Act, 1955.
As on fact, we have
found that both the husband and wife are domicile of India, and
the Act will apply to them, other contentions raised on behalf of
the parties, are rendered academic and we refrain ourselves to
answer those.
In the result, we do not find any merit in the appeal and it
is dismissed accordingly but without any order as to costs.
CIVIL APPEAL NO.487 OF 2007
In view of our decision in Civil Appeal No. 4629 of 2005
(Sondur Gopal vs. Sondur Rajini) holding that the petition filed
by the appellant for judicial separation and custody of the
children is maintainable, we are of the opinion that the writ
petition filed by the respondent for somewhat similar relief is
rendered infructuous. On this ground alone, we allow this appeal
and dismiss the writ petition filed by the respondent.
………………………………………………………………J.
(CHANDRAMAULI KR. PRASAD)
………..……….………………………………..J.
(V.GOPALA GOWDA)
NEW DELHI,
JULY 15, 2013.
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