The Hindu Marriage Act, 1955 applies to Hindus domiciled in the territories to which the Act extends who are outside the said territories.

( 1 ) THIS reference has been made under the Second Proviso to Rule 1 of Chapter II of the Appellate Side Rules by a Division Bench consisting of Mr. Justice S. K. Datta and Mr. Justice H. N. Sen.

( 2 ) THE point that arises for our decision is whether the Hindu Marriage Act, 1955 can be applied to a person, who is outside the territory to which the Act applies and is not of Indian domicil.

( 3 ) IN the Rule before the Division Bench the petitioner Gour Gopal Roy, husband of the opposite party, Sm. Sipra Roy, had challenged an order of the learned Judge of the 9th Bench, City Civil Court, Calcutta in a Matrimonial action holding that the court had the jurisdiction to try the proceedings.

( 4 ) SUB-SECTION (2) of Section 1 of the Hindu Marriage Act, 1955 provides as follows :"it extends to the whole of India except the State of Jammu and Kashmir, an'd applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories. "

( 5 ) THE point for consideration of the Special Bench is about the scope and extent of the operation of the Hindu Marriage Act, 1955. On an analysis of the relevant provisions of the Act particularly those of Sub-section (2) of Section 1 and of Section 2 it appears that the Act extends to the whole of India except Jammu and Kashmir. For our purposes in this reference, all persons to whom it applies who are within the said territory would come under the operation of the Act. An extraterritorial operation has also been provided for by including Hindus outside the said territory who are domiciled in the said territory.

( 6 ) THE parties here are at variance on whether the Act would apply when one of the parties to the marriage is within the said territory while the other is not. It appears that the Act makes no provisions for such a contingency.

( 7 ) THE contention of the petitioner was that he was living outside the said territory, namely, in London. He was not of Indian domicil but of Bangladesh domicil. in the circumstances, the City Civil Court had no jurisdiction to try the matrimonial action against him.

( 8 ) BEFORE the City Civil Court, the learned lawyer appearing for the wife, did not dispute that the husband was of Bangladesh domicil and had Pakistani domicil prior to the emergence of Bangladesh. But before us various materials have been relied on which may lead to a different conclusion. For instance an affidavit has been filed by one Susen Nandi, affirmed on the 11th July, 1977 and various letters have also been shown to us. The purpose of relying on the said affidavit and the said letters appears to be that when the negotiations for marriage were going on, the husband had given the assurance that he would purchase a house in or near Calcutta; he would settle down in India and permanently reside here. It also appears that immediately after the marriage the wife applied for a passport and was given an Indian passport. We do not wish to express any opinion either on the value or credibility of these materials but if the facts, now stated before us, be found to toe correct, it may be possible to conclude that at the time of marriage the husband had acquired Indian domicil and had continued to retain the domicil.

( 9 ) DOMICIL is a question of fact in which intention plays a vital role. In Cheshire's Private International Law, Eighth Edition at page 154 it is stated "to put it more precisely, the acquisition of a domicil of choice requires not only residence in a territory subject to a distinctive legal system, but also an intention by the propositus to remain there permanently. There must be the act and there must be the intention. It is, therefore, essential to ascertain what degree of permanency of residence must lie within the contemplation of the propositus. This is not difficult if the word permanent is used in its correct sense signifying the opposite of 'temporary'. According to the Shorter Oxford English Dictionar