2014 Supreme(Bom) 2270

IN THE HIGH COURT OF BOMBAY
V.K. Tahilramani, A.K. Menon, JJ.
Ravindra Harshad Parmar - Appellant
Vs.
Dimple Ravindra Parmar - Respondent
Family Court Appeal No. 72 of 2014 with Civil Application No. 77 of 2014 and Civil Application No. 165 of 2014 and Civil Application No. 416 of 2014
Decided On: 11.12.2014

Headnote:Civil Procedure Code, 1908 - Section 9-A, Order XIV, Rules 1 and 3 Hindu Marriage Act, 1955, Sections 13 and 19(iii) Issue of jurisdiction. - Where jurisdiction was only issue left to be decided, therefore, it is not mandatory for Court to frame issue regarding jurisdiction formally. It is in discretion of the Court whether a formal issue is required to be framed or not. In the instant case the only issue to be decided is whether the Court has jurisdiction. Both sides were aware that Exhibit-23 was being heard and decided. The impugned order is passed in detail and has considered all contentions raised. The Family Court has proceeded to decide the very issue raised. No other issue was sought to be raised or could have arisen in view of the material on record namely the application. Apart from his reply no other issue arose for consideration from the application Exhibit-23 and the affidavit of respondent in support of application Exhibit-23 and the rejoinders. Even from the documents pertaining to the proceedings in the United States filed, no other issue arose for consideration. The court therefore cannot be faulted for not framing a formal issue and scheduled a separate hearing of the same.

       Hindu Marriage Act, 1955 - Sections 1(2), 2(1)(a), 5 and 19(iii) Jurisdiction to entertain divorce petition. Since concept of intended domicile is not applicable to case hence initiation of matrimonial proceedings in India is not prevented. The doctrine of intended domicile propounded on behalf of the appellant essentially arose from the issue of "Capacity to marry". The author is of Fourteen the diction have in their treatise on the Private International Law observed in detail that the intended matrimonial home doctrine related to capacity to marry and in this respect while assessing capacity to marry it was observed that capacity to marry is governed by what is conveniently called dual domicile doctrine i.e. marriage would be invalid unless both contracting parties at the time of marriage are found that they had capacity to contract that particular marriage. Under the alternative doctrine of intended matrimonial home, there is basic presumption that the capacity is governed by the husband’s domicile at the time of marriage generally country of which the parties intended to establish permanent home. Thus, this doctrine of intended matrimonial home essentially relates back to capacity of person concerned to marry. In the instant case the doctrine cannot be applied and the contention of the appellant that domicile of husband be considered cannot be accepted as the parties concerned did not continues to be domiciled in the United States as is evident from the conduct of the respondent who by moving to Pune, India has demonstrated her intention not to continue to be domiciled in the United States.

       Hindu Marriage Act, 1955 - Sections 13(1)(i-a), 1(2), 2(i)(a) Petition for divorce. Since marriage between parties solemnized in India as per Hindu rites hence merely because appellant husband was domiciled at time of marriage in U.S.A., applicability of Act cannot be taken away. There cannot be dispute as both the parties are Hindus at the time marriage and it is nobody’s case that either of them was disqualified by reason of non-compliance of conditions under Section 5. In the present case, the evidence shows that the marriage was performed at Arya Samaj. It is not the case of the appellant that Arya Samaj wedding did not constitute a Hindu marriage ceremony as contemplated under Section 7 of the Act. Once it is established that marriage between the parties was performed as per Hindu rites, the Hindu Marriage Act would apply by virtue of Section 2(1)(a). Senior counsel for the appellant relied on Section 1 and Section 1(2) and in particular territorial applicability of the Act and at the material time the marriage did take place within territory of India. The mere fact that the appellant was domiciled at the time of marriage in the United States does not take away applicability of the Act. The appellant is a Hindu, his domicile of origin was Mumbai India, his domicile of choice was the United States of America. He owns and continues to own property in Mumbai and cannot be deemed to have given up his domicile of origin. The appellant satisfies the requirement of being a Hindu person by birth and being a party to marriage solemnized between him and the respondent, both Hindus. In the facts and circumstances of the case that the Hindu Marriage Act does in fact apply.