The time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs.

1. The petitioner in the above C.R.P. is the wife of the respondent herein.

2. The respondent has filed F.C.O.P.No.873 of 2009 on the file of the II Additional Family Court, Chennai for divorce on the grounds of mental cruelty and adultery.

3. Pending the F.C.O.P., the petitioner herein filed I.A.No.12 of 2010 under Order 7 Rule 11 C.P.C. to reject and dismiss the F.C.O.P.No.873 of 2009.

4. The said petition has been filed on the ground that the petitioner has filed divorce petition in case No.2009 D 452 in the circuit court of the 12th Judicial Circuit Will County, Illinois, and summons was received by the respondent on 16.3.2009; as a counter blast to the proceedings, the respondent has filed F.C.O.P.No.873 of 2009 and the petition was taken on file on 3.4.2009; there is no cause of action for filing the F.C.O.P. before the Family Court at Chennai; the petitioner and the respondent have taken permanent domicile in America and hence, they have subjected themselves to the jurisdiction of the courts at America and as such the provisions of the Hindu Marriages Act are not applicable to the petitioner and the respondent since they do not have any inclination to return to India and both are green card holders at America; the respondent has purchased properties at U.S.A. and a flat for permanent residence; the Courts in India lacks jurisdiction to entertain the petition.

5. The respondent herein contested the petition inter alia contending as follows:-

a. The marriage had taken place at Chennai on 17.1.2009; after the marriage, the respondent had taken the petitioner to U.S.A., wherein the respondent is carrying on his business; at no point of time, it was decided or affirmed by either party that they would not return to India; the petitioner and the respondent still continue and remain as citizens of India; the respondent has no intention to stay permanently at U.S.A.; the respondent has filed a petition to dismiss the proceedings in America on the ground that prior action for similar relief is pending before the Indian Court; the competent court to decide the issues pertaining to marriage between two Hindus which has taken place in India according to the Hindu Marriage Act 1956 shall be in India; the Courts in America cannot adjudicate the issues arising under the Hindu Marriage Act between the husband and wife, whose marriage has taken place in accordance with the provisions of the Hindu Marriage Act; the case of adultery committed by the petitioner has taken place at Coimbatore in India and the witnesses to be examined in respect of adultery are available only in India and as such the Family Court at Chennai is the proper forum within whose jurisdiction the marriage has taken place; the Family court at Chennai is the proper and convenient forum for adjudicating the dispute between the parties; simply because the respondent purchased the properties that will not take away the jurisdiction of the courts in India.

6. On a consideration of the rival contentions, the Court below dismissed the petition.

7. Being aggrieved by that the petitioner is before this Court.

8. Heard both.

9. The learned counsel for the petitioner submitted that the Court below has not properly appreciated the fact that the respondent and the petitioner herein are the residents within the territories of India and their domicile of choice is at U.S.A; hence, the Hindu Marriage Act is not applicable to them. The Court below has not appreciated the meaning of domicile as contemplated in the Act; the Court below has not properly considered the decisions relied upon by the petitioner; the Court below erred in holding that the petition is maintainable, even though the petitioner and the respondent are green card holders of U.S.A; the Court below has erred in taking into consideration that green card is a prelude to obtain the citizenship and therefore, only the American Courts can have jurisdiction on such persons and the Court below has misinterpreted Sec