Sondur Gopal v. Sondur Rajini

AUTHOR: HEMANT JARWAL, UNIVERSITY OF FIVE YEAR LAW COLLEGE, UNIVERSITY OF RAJASTHAN

ABSTRACT / HEADNOTE

In the present case, The husband (Appellant) and the Wife (Respondent) got married and left for Sweden. They were granted Sweden citizenship and In the same year, they moved to Mumbai, and then they shifted to Sydney and stayed there for about 3 years. After losing his job, the Husband moved back to Sweden with his family and after getting a new job in Sydney, the couple along with their children stayed in Australia from January to December 2003. then after some time the Wife, along with the children, came back to India and refused to return to Sydney. Then the Wife filed a Petition before the Family Court, Bandra seeking judicial separation and custody of the children and the Husband questioned the maintainability of the Petition and contended that the couple was a citizen of Sweden, domiciled in Australia, which was their domicile of choice, and hence, the jurisdiction of any of the Indian Courts was barred under Section 1(2) of The Hindu Marriage Act, 1955. Therefore the Family Court on the same grounds and reasoning held that the Petition of the Wife was not maintainable. Aggrieved by the decision of the Family Court, the Wife further filed an appeal in the High Court.

However, None of these convinced the Supreme Court, and the Appeal was thereby dismissed. SC held, “In the absence of acquiring citizenship it is difficult to accept that the Appellant-Husband and his family decided to reside permanently in Australia” Thus, the High Court was correct and shifting residence to Australia with mere citizenship and lack of property in Sweden reverted domicile from what was in truth irrevocable Swedish, to the original Indian. Thereby the writ petition for judicial separation by the respondent’s wife is maintainable.

Keywords (Minimum 5): Indian Constitution, Hindu Marriage Act, 1955 , Domicile, Judicial separation, Custody of children, Maintainability,  Jurisdiction, Marriage.                             

CASE DETAILS

Judgement Cause TitleSondur Gopal v. Sondur Rajini
Case NumberCivil Appeal No. 4629 of 2005
Judgement Date15th July 2013
CourtSupreme Court of India
QuorumThe bench consisted of two judges, namely V. Gopala Gowda and Chandramauli Kr. Prasad.
AuthorJustice Chandramauli Kr. Prasad.
CitationAIR 2013 SC 2678
Legal Provisions InvolvedConstitution of India — Article 245(2)   Hindu Marriage Act, 1955—  Section 1(2), 2(1),  10,  19. 

INTRODUCTION AND BACKGROUND OF JUDGEMENT

In India,The Hindu Marriage Act guides Hindus to be in a systematic marriage bond. It gives meaning to marriage, cohabiting rights for both the bride and groom and safety for their family and children so that they do not suffer from their parental issues. The laws governing Hindu marriage, restitution of conjugal rights, judicial separation, divorce, annulment of marriage, maintenance, and guardianship are included in the Hindu Marriage Act, of 1955, which was passed by the legislature. The Hindu Marriage Act is an Act of the Indian Parliament that was approved on May 18, 1955. The Hindu Marriage Act, of 1955 was passed to protect the legal rights of Hindu brides and grooms who are joined by the holy bond of marriage.

A person may have no home but he cannot be without a domicile. In order to make the rule effective, law assigns a domicile of origin to every person at birth. This prevails until a new domicile has been acquired – the domicile of choice. The only intention required for a proof of a change of domicile is an intention of permanent residence. In other words, what is required to be established is, the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special or temporary purpose, but with a present intention of making it his permanent home and Residence alone, unaccompanied by this state of mind, is insufficient proof.

  1. Applicability of Hindu Marriage Act: Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christian, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. The Hindu Marriage Act of 1955 applies to Hindus by religion, including those who are Buddhists, Jains, and Sikhs. It applies to any person who is a Hindu by birth or who has converted to Hinduism. The Act also applies to any person who is a Hindu under the definition provided in the Act. This holds even if they are not Indian citizens or reside outside India. The Act covers marriages where both parties are Hindus. It also covers marriages where one party is a Hindu, and the other party is not a Muslim, Christian, Parsi, or Jew. It is important to note that the Act does not apply to marriages of Muslims, Christians, Parsis, or Jews. They are governed by their respective personal laws. The Act applies to all Hindu marriages solemnized in India or abroad as long as they fulfill the conditions specified in the Act. It applies to both men and women. It provides provisions for divorce, maintenance, custody of children, and other related matters. 
  2. Domicile: A person is said to have a domicile in a country in which he/she is considered to have his/her permanent home. A person cannot have more than one domicile. Domicile is the country in which a person has a permanent residence. In terms of domicile, the residence does not relate to the physical aspect of maintaining a house or residence. It relates to the intention of a person to remain in a place forever unless circumstances should occur to change his/her intentions. Hence, maintenance of a residence or home does not serve to establish domicile, though it could add credence. For instance, if an Indian person moved to the USA temporarily on an H1B visa for employment purposes, his/her domicile would continue to be India, as the permanent residence of the person is still India. 
  3. Types of Domicile:
  4.  Domicile by Birth:  Domicile by birth or origin is the domicile of a person that he/she acquires it at birth from parents. The domicile of birth or origin is involuntary and continues to be the domicile of the person until the person chooses to create a permanent residence elsewhere. Most persons retain domicile by birth as their domicile, even long after moving abroad for job or education purposes.
  5.   Domicile by Choice: A person can take on a domicile by choice by taking up fixed residence in a country different from the domicile of birth. If an Indian national moves to the USA temporarily on an H1B visa, and then obtains citizenship or Green Card to stay in the USA indefinitely with no intention of returning to India, then it could be said that he/she has adopted a new domicile by choice. The person is required to prove his/her intention by acts or declaration for changing domicile. Hence, a forced residence abroad as a political refugee, fugitive, or for any other reason does not require to change in the domicile of the person, unless it is followed by voluntary adoption of the new domicile.

FACTS OF THE CASE

The factual matrix, in this case, is that the Appellant Husband and the Respondent Wife got married on 25th of June, 1989 according to the Hindu rites at Bangalore. It was registered under the provision of the Hindu Marriage Act also. After the marriage the husband left for Sweden in the first week of July, 1989 followed by the wife in November, 1989.

They were blessed with two children namely, Natasha and Smyan. Natasha was born on 19th of September, 1993 in Sweden. She is a down syndrome child. The couple purchased a house in Stockholm, Sweden in December, 1993. Thereafter, the couple applied for Swedish citizenship which was granted to them in 1997. In June, 1997, the couple moved to Mumbai as, according to the wife, the employer of the husband was setting up his business in India. The couple along with child Natasha lived in India between June, 1997 and mid 1999. In mid 1999, the husband’s employer offered him a job in Sydney, Australia which he accepted and accordingly moved to Sydney, Australia.

The couple and the child Natasha went to Sydney on sponsorship visa which allowed them to stay in Australia for a period of 4 years. While they were in Australia, in the year 2000, the husband disposed of the house which they purchased in Stockholm, Sweden. The second child, Smyan was born on 9th February, 2001 at Sydney. The husband lost his job on 7th July, 2001 and since he no longer had any sponsorship, he had to leave Australia in the second week of January, 2002.

The couple and the children shifted to Stockholm and lived in a leased accommodation till October, 2002 during which period the husband had no job. On 2nd of October, 2002, the husband got another job at Sydney and to join the assignment he went there on 18th of December, 2002. But before that on 14th of December, 2002, the wife along with children left for Mumbai. Later, on 31st of January, 2003, the wife and the children went to Australia to join the appellant- husband.

However, the wife and the children came back to India on 17th of December, 2003 on a tourist visa whereas the husband stayed back in Sydney. According to the husband, in January, 2004 he was informed by his wife that she did not wish to return to Sydney at all and, according to him, he came back to India and tried to persuade his wife to accompany him back to Sydney. 

According to the husband, he did not succeed and ultimately the wife filed petition before the Family Court, Bandra inter alia praying for a decree of judicial separation under Section 10 of the Hindu Marriage Act and for custody of the minor children Natasha and Smyan.

 But the Husband questioned the maintainability of the Petition and contended that the couple was a citizen of Sweden, domiciled in Australia, which was their domicile of choice, and hence, the jurisdiction of any of the Indian Courts was barred under Section 1(2) of The Hindu Marriage Act, 1955. The Family Court on the same grounds and rationale held that the Petition of the Wife was not maintainable. Aggrieved by the decision of the Family Court, the Wife further filed an appeal in the High Court.

LEGAL ISSUES RAISED

  1. Whether the Hindu Marriage Act apply to all Hindus from around the world, irrespective of their domicile?
  2. Whether the claim of the husband that the marriage cannot be dissolved under HMA due to Swedish domicile is right?
  3. Whether by Considering the proofs brought by the Husband to the court, the Husband can be said to be domiciled in India or not?

PETITIONER/ APPELLANT’S ARGUMENTS

  1. The counsels for  Appellant submitted that he was served with notice of judicial separation and he then filed a counter-petition in the family court in Bandra, saying that such notice was by itself void as it was not maintainable.
  2. Learned counsel of  the appellant contended that they had Indian citizenship but were later domiciled in Sweden, and while he was currently residing in Australia his citizenship of Sweden along with similar conditions for his family members existed.
  3. He contented that with no proper residence in India and a mix of other citizenship’s, there existed no Indian domicile. This unique point of view expounded in court was that the domicile of the husband would be the domicile of the wife and that moving away by choice from India after marriage, the provisions of the Hindu Marriage Act no longer applied.
  4. Learned counsel for the appellant stated that the judicial separation offered under Section 10, along with custody of children, was void and he was not looking to domicile in India.
  5. Things got a little subjective and personal, and the husband declared in an affidavit that he had premarital been fascinated by Stockholm, Sweden and that he had established in his mind that this would be his land of choice unto death, thereby making it his domicile irrefutably, (at least at first).  He also argued that on a different and chronologically isolated note, following his wife’s (initial and alleged) desire to move to an English-speaking country, he retained his Swedish citizenship but almost immediately shifted domicile to Australia.

RESPONDENT’S ARGUMENTS

  1. The counsels for Respondent submitted that the domicile of the family remained Indian even though they moved to Sweden and then Australia.
    1. The learned counsel for the respondent stated that the Hindu Marriage Act itself shall apply to all Hindus irrespective of domicile.
    1. The learned counsel for the respondent contended that even if the respondent’s domicile had Also changed to Swedish then their move to Australia and residence there cancels said domicile out reverting the original place of birth as ‘domicile’.

RELATED LEGAL PROVISIONS

  1. Constitution of India — Article 245(2):  It states that “No law made by Parliament shall be deemed to be invalid on the ground that it would have the extra-territorial operation”.
    1. Hindu Marriage Act, 1955—  Section 1(2): It states that “It extends to the whole of India except the State of Jammu and Kashmir , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories”.
    1. Hindu Marriage Act, 1955—  Section 2(1): It states that “This Act applies:
  2. to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat, or a follower of the Brahmo, Prarthana, or Arya Samaj,
  3.  to any person who is a Buddhist, Jaina or Sikh by religion, and
  4.  to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi, or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. The following persons are Hindus, Buddhists, Jainas , or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas, or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina, or Sikh by religion and who is brought up as a member of the tribe, community, group, or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina, or Sikh religion”.  

  1. Hindu Marriage Act, 1955—  Section 10: It states that “Judicial separation.-

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a divorce petition might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so”

  • Hindu Marriage Act, 1955—  Section 19: It states that “Court to which petition shall be presented.-

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction:

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive”.

.

JUDGEMENT (RATIO DECIDENDI)

  1. The First thing which the Honorable Court decided on was that the Hindu Marriage Act applies only to Hindus who are domiciled within the territory of India. Section 1(2) of the Act has an extra-territorial operation.

It, however, would make no sense if the applicability of the Act was so wide that it could be enacted even when the issue had no nexus with India. It was hence, held that the Act would have an application beyond the Indian territory only when the necessary party(ies) have an Indian Domicile.

This is the ‘Doctrine of Territorial-Nexus’ which lays down that it is not necessary that the parties must be physically located within the territories, but that the Act must have a sufficient territorial connection.

And in the case of  Prem Singh v. Sm. Dulari Bai and Anr. There is a relevant portion where of read as follows: “On a fair reading of the above provisions, it seems clear from the first section that the Act is in operation in the whole of India except in the State of Jammu and Kashmir and applies also to Hindus, domiciled in the territories to which this Act extends, who are outside the said territories. This section read with Section 2(1)(a)(b) makes it equally clear that as regards the inter-territorial operation of the Act it applies to all Hindus, Buddhists, Jains, or Sikhs irrespective of the question of whether they are domiciled in India or not.” 

And this case was also take as a reference which was Nitaben v. Dhirendra Chandrakant Shukla & Anr.  Here it was said that that section 1 of the Act refers to the extension of the Act to the whole of India except the State of Jammu and Kashmir and also to the territories to which the Act is applicable, and further to all those persons who are domiciles of those territories but who are outside the said territories.

Yet another decision to which reference has been made is the judgment of the Rajasthan High Court in Varindra Singh & Anr. v. State of Rajasthan where it was said that Clause (a) of Sub-section (1) of Section 2 of the Act of 1955 makes the Act of 1955 applicable to all persons who are Hindu by religion irrespective of the fact where they reside.

Therefore, Section 2 of the Act of 1955 is very wide enough to cover all persons who are Hindu by religion irrespective of the fact where they are residing and whether they are domiciled in Indian territories or not” Lastly, learned Senior Counsel has placed reliance on a judgment of the Kerala High Court in Vinaya Nair & Anr. v. Corporation of Kochi. 

Such a law is valid and is saved by Article 245(2) of the Indian Constitution.

  • The court also held that the contention of the appellant was specifically that Australia was his domicile of choice: The appellant to establish Australia as the domicile of choice relied on a residential tenancy agreement for 18 months; the enrollment of his child to a school; and the commencement of proceedings for permanent resident status. None of these however convinced the SC and the Appeal was thereby dismissed.Therefore SC held, “In the absence of acquiring citizenship it is difficult to accept that the Appellant-Husband and his family decided to reside permanently in Australia”. 
  • Thus the Supreme Court held that The High Court was correct and shifting residence to Australia with mere citizenship and lack of property in Sweden reverted domicile from what was in truth irrevocable Swedish, to the original Indian. Thereby the writ petition for judicial separation by the respondent’s wife is maintainable.

CONCLUSION & COMMENTS

Therefore it was concluded that both the husband and wife were considered to be the domicile of India and in furtherance of that they were covered by the provisions of the Hindu Marriage Act, 1955, and the petition for judicial separation was entertained.

And in My Opinion the case correctly states that If the marriage has been Solemnized as per the provisions of a particular Act, then that Act would continue to apply for as long as the marriage exists. It is a universally recognized rule that applies and also affects the personal status of a person who must continue to be governed by the same law, irrespective of factors like his change in citizenship or residence. If this were not to apply, then the husband would be able to reject every petition by the wife by changing his domicile status leaving the wife with no judicial remedy, which goes against the basic structure of our constitution. The court also laid down that it would be unjust if one party could escape the petition merely because he/she has changed his domicile by his/her ‘unilateral decision’. Only if one of the parties in the case has changed the  domicile doesn’t mean that it will take away the jurisdiction of the Indian Courts.

REFERENCES

  1. Important Cases Referred

 AIR 1973 Cal 425.

 I (1984) D.M.C.252.

RLW 2005(3) Raj.

AIR 2006 Ker. 275

  • Important Statutes Referred

The Constitution of India, 1950, Art. 245(2). 

See The Hindu Marriage Act,  1955, § 1 (2).

See The Hindu Marriage Act,  1955, § 2 (1).

See The Hindu Marriage Act,  1955, § 10.

See The Hindu Marriage Act,  1955, § 19.