LAW FOR ALL

Hindu Marriage Act - Jurisdiction of Indian court in respect of couples who applied for foreign citizenship =Whether the petition by the wife for judicial separation under Section 10 of the Hindu Marriage Act and custody of the children is not maintainable. ? Since the marriage was taken place at India and since the wife is of Indian Domicile and since the husband failed to prove that he is domicle of Australia and also failed to prove of his giving up of indian Domicle = “the husband has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice”.- “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.”- Hindu marriage Act sec. (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.”; 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. - whether a nexus with something in India is necessary.= In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.; “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.”- 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.; 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. ; 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.; Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin.- 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.