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IN THE HIGH COURT OF BOMBAY
SONDUR RAJINI
Versus
SONDUR GOPAL
Decided On Date: 11/04/05
Hindu Marriage Act, 1955 - Sections 10 and 1(2) - Petition under Section 10 of Act for judicial separation. - In absence of nothing on record to show that husband had ever given up his domicile of origin, i.e. India, Family Court has jurisdiction to entertain petition under Section 10 of H.M. Act. - The respondent-husband prayed for dismissal of the petition filed by the appellant as not maintainable on the ground that the parties are citizens of Sweden and not domiciled in India. The appellant’s petition was filed inter alia seeking a decree of judicial separation under Section 10 of Hindu Marriage Act, for custody of minor children and for maintenance. The appellant and the respondent tied the nuptial knot on 25.6.1989 at Bangalore. When they got married the respondent was working in Sweden. After marriage, the respondent left for Sweden followed by the appellant. The couple was blessed with their first child. They purchased their own house in Stockholm. The parties were granted Swedish citizenship in 1997. In mid 1999, he accepted job in Sydney and accordingly moved so Sydney, Australia. The respondent lost his job on 7.7.2001. The respondent stayed back in Sydney. In January, 2004 for the first time, according to the respondent, the appellant informed him that she did not want to return to Sydney at all. Since the appellant was determined not to go back to Sydney, she filed the petition seeking a decree of judicial separation. The case set up by the respondent seeking to challenge the maintainability of the petition is that the parties in the petition are citizens of Sweden and not domiciled in India and in view thereof the petition filed by the wife seeking judicial separation under the Hindu Marriage Act is hit by the provisions of Section 1(2) of the said Act. A party to the matrimonial petition, who asserts that he has acquired a domicile of his choice, has to prove his intention on the basis of conceivable events and incidents in his life which would be relevant indications of his state of mind. The respondent had not ever given up his domicile of origin. However, his pleadings clearly demonstrate that till 1997 his domicile was in India and it prevailed until he acquired citizenship and domicile of Sweden and immediately within less than a year of acquisition of citizenship of Sweden he left that country and abandoned first domicile of his choice. Thereafter, he shifted to Australia. There also he could not continue for long time and he was required to shift out of Australia. He also stayed in India for two years. The parties never gave up their domicile of origin though they changed their place of residence from one country to another and they acquired citizenship of Sweden. It cannot be said the physical fact of shifting to Australia was ever accompanied by the required state of mind. The respondent has miserably failed to establish that he ever abandoned Indian domicile and/or intended to acquire domicile of his choice. The Family Court was wrong in proceeding on the assumption that when the parties acquired citizenship in Sweden they abandoned domicile of origin i.e. India and acquired domicile of Sweden. Even if that is taken as true and correct that would not help the respondent to contend that he acquired domicile of Australia. The Family Court was wrong in holding that domicile can be acquired without owning a house or change in ones habits and their stay in Australia for two and half years in the beginning and second time for about a year or so, before the appellant came to India for a break, was sufficient to hold their domicile in Australia. AIR 1978 Cal 163; (1990) 3 SCC 355; AIR 1955 SC 334; AIR 1956 Bom 729; (1991) 3 SCC 451; AIR 1932 Lahore 468; AIR 1953 SC 36; AIR 1966 SC 160; AIR 1971 SC 1836 - Relied.
Hindu Marriage Act, 1955 - Section 10 - Succession Act, 1925, Section 4 - Applicability of Acts. - Indian Succession Act is not applicable in the matter of judicial separation and custody of minor children. This matter is covered by Hindu Marriage Act.
( 1 ) D. B. BHOSALE, J. :- Heard the learned counsel for the parties. Admit. Ms. Nagarathn, learned counsel, waives service for the respondent. By consent of the learned counsel appearing for the parties, taken up for final hearing.
( 2 ) THIS appeal, by the wife, is directed against the judgment and order dated 1-1-2005 rendered by the Family Court in Interim Application No. 235 of 2004 filed in Petition No. A-531 of 2004, allowing the said application filed by the respondent-husband under section 1 (2) of the Hindu Marriage Act, 1955 (for short, "h. M. Act" ). By that application, the respondent had prayed for dismissal of the petition filed by the appellant as not maintainable on the ground that the parties are citizens of Sweden and not domiciled in India. The appellant's petition was filed inter-alia seeking a decree of judicial separation under section 10 of H. M. Act, for custody of minor children and for maintenance.
( 3 ) THE factual matrix, sans unnecessary details, is as follows : The appellant and the respondent tied the nuptial knot on 25-6-1989 under the Hindu vedic Rites at Bangalore. When they got married the respondent was working in sweden with B. C. F. I. Philips. After marriage, the respondent left for Sweden in the first week of July, 1989 followed by the appellant in November, 1989. The couple was blessed with their first child Natasha on 19-9-1993. Unfortunately, natasha is a down-syndrone child. In December, 1993 they purchased their own house in Stockholm. The parties applied for Swedish citizenship in 1995-1996 which was granted to them in 1997. In June, 1997 the appellant and the respondent moved to Mumbai as, according to the appellant, the employer of the respondent, viz. A. T. Kearney was setting up his business in India. Between june, 1997 and mid 1999 the respondent lived with the appellant and Natasha in india. In mid 1999, A. T. Kearney offered him a job in Sydney which he accepted and accordingly moved to Sydney, Australia. The appellant, respondent and Natasha went to Sydney on sponsorship visa 457 which allowed them to stay and work in Australia for a period of four years. While they were in Australia the respondent disposed of their house in Sweden in 2000. The couple was once again blessed with their second child Smyan on 9-2-2001 when they were at sydney. The respondent lost his job on 7-7-2001 and since he no longer had sponsor he had to leave Australia in the second week of January, 2002. They shifted to Stockholm, Sweden and lived there in a leased house till October, 2002 during which period he had no job. On 2-10-2002 the respondent got another job at Sydney, Australia with Infosis Technology Ltd. Again the respondent got temporary visa 457. He was then sponsored by Infosis. He went to Sydney on 18-12-2002. In the meanwhile, on 14-12-2002, the appellant left for Mumbai with the children. On 31-1-2003 the appellant along with the children left for australia. After a brief stay in Australia, the appellant came back to India with both the children on 17-12-2003 on a tourist visa. The respondent stayed back in sydney. In January, 2004 for the first time, according to the respondent, the appellant informed him that she did not want to return to Sydney at all. It appears that thereafter the respondent came back to India and tried to persuade the appellant to accompany him back to Sydney. Since the appellant was determined not to go back to Sydney, she filed the petition seeking a decree of judicial separation under section 10 of H. M. Act and also prayed for permanent custody of the minor children as also for maintenance.
( 4 ) THE case set up by the respondent seeking to challenge the maintainability of the petition is that the parties in the petition are citizens of sweden and not domiciled in India and in view thereof the petition filed by the wife seeking judicial separation under the H. M. Act is hit by the provisions of section 1 (2) of the said Act. A specific case set up b
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