CASE BRIEF
Appellants- Sondur Gopal
Respondents- Rajani Sondur
Decided On: 15/07/2013
Statues Referred – Constitution of India, Hindu Marriage Act
Facts:
The appellant was the husband and the respondent wife.
- They had gotten married on 25th June,1989 in present day Bengaluru, all rituals and ceremony had taken place according to Hindu custom and rites. Their marriage was registered as per section 8 also within the Hindu Marriage Register.
- Shortly within a span of five months the couple left for Sweden (Stockholm). They lived a decent life there and welcomed their first child. 4 years later they bought a house there and by 1997 got their Swedish citizenship in the year 1997 for which they had applied earlier.
- For 8 long years they were living in Sweden and were also resided there, the settlement of their child in Sweden plays a serious role in solving the legal issue.
- the husband moved back to India for a few of years with business plans indicating a desire to remain in India with his wife along his side and all this while their Swedish property remained intact.
- Later they moved to Sydney, Australia in 1999 on an employment offer with a 4 year sponsorship visa and all working papers. During that period their second child was born and the Stockholm house was sold
- Soon enough this job was lost and they again moved to Sweden where their citizenship remained but resided in a leased accommodation.
- Another employment opportunity was offered in Sydney where the husband willingly and clear headedly shifted his life center to. While his family went back to Mumbai on a tourist visa and refused to join him, he stayed back in Sweden. Once, the wife-respondent said, he came to Mumbai to urge his family and most significantly his wife to hitch him in Sydney. She vehemently refused. When he had no intention of returning to India, she filed a petition for legal separation and asking for custody of the children.
Issue
Husband claimed that the marriage cannot be dissolved under HMA due to Swedish domicile.
Contentions by Parties-
Appellant’s Arguments
He was served with notice of judicial separation, 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.
He 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.
He contented that with no proper residence in India and mix of other citizenships 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.
He 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.
Things got a little subjective and personal, and the husband declared in an affidavit that he had premaritally 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 be Australian.
Respondent’s Arguments –
She contended that the domicile of the family remained Indian even though they moved to Sweden and then Australia.
She added that even if her husband’s domicile changed to Swedish, her own personal domicile always remained Indian in her head
She also contended that even if her domicile had ALSO changed to Swedish, their move to Australia and residence there cancels said domicile out reverting the original place of birth as ‘domicile’.
She also said that the Hindu Marriage Act itself shall apply to all Hindus irrespective of domicile.
Judgment
The court’s bench comprising held the following: Chandramauli Kr. Prasad, V. Gopala Gowda:
Section 1(2) of the Act has an extra-territorial operation in as much as it lays down that the Act, “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“; that, a law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and is saved by Article 245 (2) of The Constitution; that, that however does not mean that a law having extra-territorial operation, which has no nexus at all with India, can be enacted; that, if the Act were to apply to Hindus irrespective of their domicile – the extra-territorial operation of the Act would be extended all over the world without any nexus to India; that, it is inconceivable that a law should be made by the Parliament which has no relationship to India; that, therefore, the Act will only apply to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India; that, any other interpretation would render the word ‘domicile’ in the provision redundant and that, the Legislature ordinarily does not waste its words is an accepted principle of interpretation.
His contention was specifically that Australia was his domicile of choice : Appellant in order to establish Australia as the domicile of choice relied on a residential tenancy agreement for a period of 18 months; the enrollment of his child to a school; and the commencement of proceedings for a permanent resident status. None of these however convinced the SC 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”,
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
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.
Prepared by Faigha Naz