IMPORTANT POINT
Section 1(2) of Hindu Marriage Act, 1955 has extra-territorial operation. The Hindu Marriage 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.

Headnote:(a) Hindu Marriage Act, 1955- Section 10- The respondent wife and the appellant husband were married in Bangalore in India according to Hindu rites- After marriage both the husband and wife went to Sweden, obtained Swedish Citizenship- Both of them came to India, after staying from sometime moved to Sydney Australia- The respondent wife came back to India whereas the appellant husband stayed in Sydney- The respondent wife filed petition before the Family Court Bandra (Mumbai) for judicial separation under Section 10 of the Hindu Marriage Act, and for custody of the two minor children- The husband challenged the jurisdiction of the family Court at Mumbai- 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 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- Respondent wife contended 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 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 family court held the petition to be not maintainable- 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- In appeal the Supreme Court upheld the view of the High Court and dismissed the appeal- Held that both the husband and the wife are domicile of India, and the Act will apply to them.
        (b) Hindu Marriage Act , 1955- Section 1(2)- Held, Section 1(2) has extra-territorial operation- The Hindu Marriage 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- The Act, will apply to Hindus domiciled in India even if they reside outside India.
        (c) Hindu Marriage Act ,1955 - Section 2(1)(c) - 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- Section 2 will apply to Hindus when the Act extends to that area in terms of Section 1 of the Act- The Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.
        (d) Constitution of India- Article 5- Domicile - Domicile are of three kinds, viz. domicile of origin, the domicile by operation of law and the 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.
       Result : Appeal allowed

Judgement Key Points

The court determined that both the husband and wife are domiciled in India, thereby bringing the Hindu Marriage Act within the scope of its jurisdiction (!) . It emphasized that the territorial and extraterritorial provisions of the Act extend its applicability to Hindus domiciled in India, regardless of their physical residence outside the country (!) . The evidence presented demonstrated that neither party had permanently abandoned their Indian domicile nor acquired a domicile of choice in other countries such as Sweden or Australia (!) . Based on these findings, the court upheld the jurisdiction of the family court in Mumbai, and the petition for judicial separation and custody was found to be maintainable under the Act (!) . Consequently, the court dismissed the appeal, affirming that the Hindu Marriage Act governs the marital and family law issues in this case (!) .

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” a

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2013 Supreme(SC) 636

Supreme Court of India CHANDRAMAULI KR. PRASAD, V. GOPALA GOWDA, JJ. Sondur Gopal & Another Versus Sondur Rajini & Others Civil Appeal No. 4629 of 2005 with Civil Appeal No. 487 of 2007 Decided on : 15-07-2013

IMPORTANT POINT Section 1(2) of Hindu Marriage Act, 1955 has extra-territorial operation. The Hindu Marriage 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.

Cases Referred (3)

Supreme Court of India
CHANDRAMAULI KR. PRASAD, V. GOPALA GOWDA, JJ.
Sondur Gopal & Another
Versus
Sondur Rajini & Others
Civil Appeal No. 4629 of 2005 with Civil Appeal No. 487 of 2007
Decided on : 15-07-2013

IMPORTANT POINT
Section 1(2) of Hindu Marriage Act, 1955 has extra-territorial operation. The Hindu Marriage 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.