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2020 Supreme(Del) 1103
IN THE HIGH COURT OF DELHI AT NEW DELHI
Hima Kohli, Subramonium Prasad, JJ.
Karan Goel - Appellant
Versus
Kanika Goel - Respondent
Mat App (F C) No. 101 of 2020; Civil Miscellaneous Application No. 21530 of 2020
Decided On : 12-10-2020
Prabhjit Jauhar, Advocate, Malvika Rajkotia, Advocate, Rytim Vohra, Advocate
The court held that the Hindu Marriage Act applies to Hindus domiciled in India, including those living outside the country. The Act allows for divorce petitions to be filed in India even if one party is domiciled outside the country. The question of domicile depends on the intention of the parties and must be proven through evidence.
Headnote:
The court examined the relevant provisions of the Hindu Marriage Act, including Sections 1, 2, and 19. The court concluded that the Act applies to Hindus domiciled in India, including those living outside the country. The court also noted that the Act allows for divorce petitions to be filed in India even if one party is domiciled outside the country. The court emphasized that the question of domicile depends on the intention of the parties and must be proven through evidence. The court held that the divorce petition filed by the respondent/wife discloses a valid cause of action and cannot be rejected based on the appellant/husband's arguments about domicile.
Fact of the Case:
The appellant/husband filed an application to challenge the dismissal of his application to dismiss the divorce petition filed by the respondent/wife. The appellant argued that the Hindu Marriage Act does not apply to them as he is a US citizen domiciled in the USA, while the respondent/wife is domiciled in India. The respondent/wife argued that the Act applies to them as they were married in India and she wants to reside in India. The Family Court dismissed the application of the appellant/husband and held that the divorce petition is not barred by law. The appellant/husband appealed the decision.
Finding of the Court:
The court examined the relevant provisions of the Hindu Marriage Act and concluded that the Act applies to Hindus domiciled in India, including those living outside the country. The court also noted that the Act allows for divorce petitions to be filed in India even if one party is domiciled outside the country. The court emphasized that the question of domicile depends on the intention of the parties and must be proven through evidence. The court held that the divorce petition filed by the respondent/wife discloses a valid cause of action and cannot be rejected based on the appellant/husband's arguments about domicile. The court also rejected the appellant/husband's argument that foreign courts have acquired jurisdiction over the matter, as the marriage was solemnized under Hindu law and can only be dissolved under the grounds set out in the Act. The court concluded that the application to dismiss the divorce petition was rightly rejected by the Family Court.
Ratio Decidendi: The court held that the divorce petition filed by the respondent/wife discloses a valid cause of action and cannot be rejected based on the appellant/husband's arguments about domicile. The court also held that foreign courts do not have jurisdiction over the matter as the marriage was solemnized under Hindu law and can only be dissolved under the grounds set out in the Hindu Marriage Act.
Result: The appeal is dismissed.
JUDGMENT
Hima Kohli, J. - The appellant/husband who is the respondent in H.M.A. 617/2018, filed by the respondent/wife, has sought to challenge the order dated 14.08.2020, passed by the learned Principal Judge, Family Courts, Patiala House Courts, New Delhi, dismissing an application filed by him under Order VII Rule 11(a) and (d) read with Order XIV Rule 2(2) of the Code of Civil Procedure (for short "CPC"), praying inter alia for the dismissal of the divorce petition for want of cause of action and on the ground that the same is barred by law.
2. A quick glance at the facts of the case, relevant for deciding the present appeal is necessary. The appellant and the respondent had got married at New Delhi on 31.10.2010, as per the Sikh rites and Hindu Vedic rites and ceremonies. The appellant/husband is a US citizen, having moved to that country with his parents in the year 1994. After their marriage, the respondent/wife moved to USA, where a civil ceremony of marriage was conducted before a Judge at Illinois, USA on 19.3.2011. The respondent/wife applied for a permanent resident status in the year 2011. The parties were blessed with a baby girl on 15.12.2014. On 07.12.2016 the respondent/wife had also applied to the U.S. authorities for obtaining US citizenship.
3. The appellant/husband and the respondent/wife came to India with their child on 25.12.2016 and according to the appellant/husband, they had pre-booked the return tickets for 07.01.2017. While in India, on 04.1.2017, the respondent/wife filed a petition for divorce under Section 13(1) (i-a) of the Hindu Marriage Act (for short ''the Act''). The appellant/husband returned alone to USA on 07.01.2017 and filed a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of irretrievable breakdown of marriage. The appellant/husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him vide ex parte order dated 13.01.2017.
4. For the sake of completing the narration of facts, it may be mentioned here that the appellant/husband had filed a writ petition in the Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child [W.P.(Criminal) 347/2017] in which certain orders came to be passed by he Division Bench. Aggrieved by the said orders, the respondent/wife approached the Supreme Court in Criminal Appeal No.635-640/2018 which was allowed vide order dated 20.07.2018, with directions to the parties to appear before the learned Family Court, Patiala House for deciding the proceedings instituted by the respondent/wife for grant of the custody of the minor child.
5. Coming back to the divorce petition filed by the respondent/wife in May, 2017, the appellant/husband moved an application under Order VII Rule 11, CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India. Since the appellant/husband has been domiciled in the USA from the year 1994 and is a citizen of USA and as on the date of filing the petition, only the respondent/wife was domiciled in India, the Act is not applicable to them. It was contended that vide order dated 13.01.2017, courts in USA have assumed jurisdiction over the matter and having done so, courts in India cannot entertain a petition under the Act on the same subject matter between the same parties. The appellant/husband also stated that the parties had entered into a pre-nuptial agreement and the said agreement would govern them. During the course of arguments advanced before the learned Family Court, the appellant/husband relied on the ''admissions'' made by the respondent/wife in the Habeas Corpus petition filed by him in the High Court for seeking production and return of the minor child, wherein she had allegedly admitted that she is domiciled in U.S.A.
6. The respondent/wife filed a reply
