IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.08.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.34838 of 2004 W.P.M.P.Nos.42032 to 42034 of 2004 R.Sridharan ... Petitioner vs. 1. The Presiding Officer, Principal Family Court, Chennai-104. 2. R.Sukanya ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Prohibition, prohibiting the first respondent from proceeding with the trial in O.P.No.569 of 2004 on its file. For Petitioner : Ms.K.M.Nalinishree For 2nd Respondent : Mr.K.Kannan O R D E R The petitioner has sought for a Writ of Prohibition, prohibiting the first respondent from proceeding with the trial in O.P.No.569 of 2004 on its file. 2. Facts leading to the present Writ Petition are as follows: The petitioner is a domicile in United States of America, since 1992 and is working as a Software Engineer. The second respondent is known to their family since childhood. Marriage between the parties to this lis was arranged by elders. The second respondent, her parents and relatives came to United States and the marriage was performed on 17.04.2002 and registered on 30.07.2002. The second respondent came to India in the second week of January 2003 for a short visit promising to return after completing a dance programme. But she began to act in films and with ulterior motive, she filed O.P.NO.569 of 2004 on the file of the Principal Family Court, Chennai for divorce under the Hindu Marriage Act, alleging cruelty. Since he was residing in United States, summons were not served and therefore, the second respondent obtained an exparte decree of divorce on 19.07.2004. On his application, the order was set aside on 23.09.2004 and the O.P., was restored. Apprehending trial, the second respondent adopted dilatory tactics and filed C.R.P.(PD)No.1695 of 2004, stating that the proceedings of the Family Court should not be published by the Media and obtained an interim stay. The petitioner has filed a counter affidavit, stating that he has no objection for the proceedings be held in camera and did not want any publicity. Therefore, by order dated 29.10.2004, this Court vacated the interim stay and the O.P., was ready for trial. Inspite of several adjournments, the second respondent has not appeared and in these circumstances, the petitioner was constrained to file the present Writ Petition for Prohibition, prohibiting the Family Court from proceeding with the trial in O.P.NO.56 of 2004. 3. According to the petitioner, the Family Court has no jurisdiction to entertain the petition for divorce under the Hindu Marriage Act, since the marriage was performed in United States of America. After the marriage, the petitioner and the second respondent were living as husband and wife in U.S.A and the petitioner, being an American citizen, the provisions of the Hindu Marriage Act, 1955 will not apply. The petitioner has further submitted that he is a domicile in United States of America and not in the territory of India and therefore, Section 1(2) of the Act would come into operation and in the above circumstances, the Family Court at Chennai cannot maintain a petition for divorce. The petitioner has further submitted that unless both the parties are domiciled in India, the petition for divorce under the Hindu Marriage Act is not maintainable. 4. The Second respondent in her counter affidavit has submitted that she got married to the petitioner on 17.04.2002 in Balaji Temple, Bridge Water, New Jercy, U.S.A., in the presence of their parents and relatives, as per Hindu Rites and Customs. Therefore, she has submitted that the rights and the obligations of the parties flow from the provisions of the Hindu Marriage Act. As per Section 19(iii)(a) of the Hindu Marriage Act, inserted by Act 50 of the Central Act, with effect from 20.12.2003, she can institute the proceedings for dissolution of the Marriage at the place where she is residing at the time of presentation of the petition and therefore, the Family Court at Chennai, is competent to decide the lis between the parties. 5. The Second respondent, while rebutting the averments made in Paragraph 6(b), 6(c) and 6(d) of the affidavit filed by the petitioner, has submitted that the petitioner has not explained as to how the O.P., is not maintainable. According to her, as the parties are governed by the personal laws applicable to them, the rights and obligations arising therefrom, can be enforced in the Forums created under the Statutes alone and therefore, the Principal Family Court, Chennai is empowered to adjudicate the dispute. The second respondent has further submitted that though the petitioner has not raised the plea of ouster of jurisdiction in the counter affidavit filed in support of the Original Petition, before the Family Court, however, he has mentioned about the application of Foreign Marriages Act, 1969 and in particular Section 18(1) of the said Act. The second respondent has further submitted that the marriage was not performed before the Marriage Officer notified under the said Act and it was also not registered before him, as required under the said law and therefore, the provisions of Foreign Marriages Act will not apply to the facts of this case. As a matter of fact, the Family Court itself can decide both the issues regarding jurisdiction and the merits of the case and therefore, the present Writ Petition is not maintainable. It is further submitted that once the petitioner submits himself to the jurisdiction of the Court by filing a counter statement on merits with documents in support of his case, it is not open to him to stall the proceedings, by instituting a Writ Petition before this Court and under these circumstances, the petitioner is not entitled to the relief sought for in the Writ Petition. 6. Referring to Section 1(2) of the Hindu Marriages Act, Ms.K.M.Nalini Shree, learned counsel appearing for the petitioner submitted that as the marriage between the parties was solemnized in Balaji Temple, Bridge Water, New Jercy, United States of America and since the petitioner is not a domicile in India, Section 1(2) of the Hindu Marriage Act, which extends to the whole of India, except Jammu and Kashmir, cannot be made applicable to the Hindus, who are domiciled outside the territories to which the Act extends. She further submitted that when the second respondent herself had admitted in her counter affidavit that the petitioner is a resident of USA, supported by the passport issued by the authorities at St.Francisco., USA, the Petitioner's domicile is clearly established and therefore, she submitted that the Principal Family Court, Chennai has no jurisdiction to apply the provisions of the Hindu Marriage Act or Family Courts Act to adjudicate upon the dispute between the parties. According to her, domicile of a person is a place, in which, habitation is fixed without any personal intention of removing therefrom. In support of her contention, she relied on a decision of the Supreme Court in Central Bank of India Ltd., v. Ram Narain reported in AIR 1995 SC 36. 7. Placing reliance on a decision of the Calcutta High Court in Gour Gopal Roy v. Sipra Roy reported in AIR 1978 Cal. 163, learned counsel for the petitioner submitted that Section 1(2) of the Hindu Marriage Act, extends to the whole of India, except Jammu and Kashmir, to all persons to whom the Act applies, should be within the territory and it excludes those who are domiciled outside the territorial jurisdiction, to which, the provisions of the Act applies. According to her, the provisions of the Foreign Marriage Act alone would apply to the facts of the present case and in view of the Foreign Marriages Act, the question of applying Private International Law does not arise. 8. Placing reliance on a decision in Chandrika v. Bhaiyalal reported in AIR 1973 SC 2391, learned counsel for the petitioner submitted that though the petitioner has filed his counter statement and contested the matter before the Family Court, Chennai, it is always open to him to raise the question of territorial jurisdiction at any stage. As the Family Court lacks jurisdiction, the petitioner has prayed for a Writ of Prohibition, prohibiting the Family Court from proceeding with the trial in O.P.No.56 of 2004. 9. Per contra, Mr.K.Kannan, learned counsel for the second respondent has submitted that the marriage was solemnized according to Hindu Marriage Act and therefore the provisions of the Act are applicable to the parties to the marriage. He further submitted that the petitioner had himself submitted to the jurisdiction of the Family Court and agreed for the trial "in Camera" in a collateral proceedings in C.R.P.(PD)No.1695 of 2004 and therefore, it is not open to the petitioner to raise the plea of jurisdiction in this Writ Petition. According to him, both the parties to the marriage were originally domiciled in the territory to which the Act extends and therefore, the Matrimonial Original Petition is maintainable. Heard the learned counsel appearing for the parties and perused the materials available on record. 10. Before adverting to the facts of the case, it is relevant to extract few judgments of the Supreme Court, as to when a Writ of Prohibition could be issued by High Courts. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like Certiorari, Prohibition and Mandamus in United Kingdom, yet the basic principles and norms apply to the writ must be kept in view, as observed by the Supreme Court of India in T.C.Basappa v. Nagappa reported in AIR 1954 SC 440. 11. In S.Govindan Menon vs. Union of India reported in AIR 1967 SC 1274, the Supreme Court held that the jurisdiction for grant of Writ of Prohibition is primarily supervisory and object of the Writ is to restrain courts or inferior Tribunals from exercising jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine court or tribunals of inferior or limited jurisdiction within their bounds. The writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but also in a case of departure from the rules of natural justice. But the Writ does not lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of the proceedings. The writ cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go out side its jurisdiction. A clear distinction has therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction than the matter is coarum non judice and a writ of prohibition will lie to the Court or inferior tribunal forbidding it to continue proceedings therein in excess of jurisdiction. This view was taken following the decision of Regina Versus Controller General of Patents and Designs reported in (1953) 2 WLR 760. 12. In Thirumala Tirupathi Devasthanam and another versus Thallappaka Ananthacharyulu and another (2003) 8 SCC 134 at paragraph 14 the Honourable Supreme Court of India held as follows: 14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of the rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights. The principles, which govern the exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. 13. In the light of judicial pronouncements of the law of the land, on the exercise of extraordinary jurisdiction to issue prohibitory Writs, the provisions of the Hindu Marriage Act, Special Marriage Act, Foreign Marriage Act are required to be extracted for examination, whether the Family Court, Chennai lacks jurisdiction to entertain the matrimonial Original Petition, to adjudicate the dispute, leading to the prayer for divorce between the spouses, where one of the party is an American National and said to have acquired domicile of that country, where the marriage between them is admittedly solemnised as per Hindu Rites and Customs. 14. Sections 1 and 2 of the Hindu Marriage Act, 1955 deals with short title, extent and Application of the Act and they are as follows: "1. Short title and extent:- (1) This Act may be called the Hindu Marriage Act, 1955 (2) 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. 2. Application of Act:- (1) This Act applies- (a) 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 Brahmo, Prathana or Arya Samaj (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) 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." 15. Section 19 of the Hindu Marriage Act, 1955 is extracted hereunder: "19. Court to which petition shall be presented:- Every petition under this Court 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 presentation of the petition, resides, or (iii) the parties to the marriage last resided together, 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 a period of seven years or more by those persons who would naturally have heard of him if he were alive." 16. Section 31 of the Special Marriage Act (43 of 1954) reads as follows: "31. Court to which petition should be made: (1) Every petition under Chapter V or Chapter VI shall be presented to the district Court within the local limits of whose original civil jurisdiction- (i) the marriage was solemnized; or (ii) the respondent, at the time of presentation of the petition, resides; or (iii) the parties to the marriage last resided together; 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 a period of seven years by those who would naturally have heard of him if he were alive. (2) Without prejudice to any jurisdiction exercisable by the Court under sub-section (1), the district Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories." 17. Section 4 of the Foreign Marriage Act (33 of 1969) contemplates conditions relating to solemnization of Foreign Marriages and it reads as follows: "A marriage between parties one of whom atleast is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely:- (a) neither party has a spouse living, (b) neither party is an idiot or a lunatic, (c) the bridegroom has completed the age of twenty-one years and bride the age of eighteen years at the time of marriage, and (d) the parties are not within the degrees of prohibited relationship. Provided that where the personal law or a custom governing at least one of the parties permits of a marriage between them, such marriage maybe solemnized, notwithstanding that they are within the degrees of prohibited relationship." 18. Sections 5 and 6 of the Foreign Marriage Act read as follows: "5. Notice of intended marriage:- When a marriage is intended to be solemnized under this Act, the parties to the marriage shall give notic thereof in writing in the form specified in the First Schedule to the Marriage Officer of the District in which atleast one of the parties to the marriage has resided for a period of not less than thirty days immediately preceding the date on which such notice is given, and the notice shall state that the party has no resided. 6. Marriage Notice Book:- The Marriage Officer shall keep all notices given under section 5 with the records of his office and shall also forthwith enter a true copy of every such notice in a book prescribed for that purpose, to be called the "Magistrate Notice Book", and such book shall be open for inspection to all reasonable times, without fee, by any person desirous of inspecting the same." 19. Section 17 of the Foreign Marriage Act deals with registration of foreign marriages and it reads as follows: "17. Registration of foreign marriages:- (1) Where- (a) a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between the parties of whom one at least was a citizen of India; and (b) a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this Section, the Marriage Officer may, upon payment of the prescribed fee, register the marriage. (2) No marriage shall be registered under this section unless at the time of registration it satisfies the conditions mentioned in section 4. (3) The Marriage Officer may, for reasons to be recorded in writing, refuse to register a marriage under this section on the ground that his opinion the marriage is inconsistent with international law or the comity of nations. (4) Where a Marriage Officer refuses to register a marriage under this Section the party applying for registration may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such appeal. (5) Registration of a marriage under this section shall be effected by the Marriage Officer by entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses. (6) A marriage registered under this Section shall, as from the date of registration, be deemed to have been solemnized under this Act." 20. Section 18 of the Foreign Marriage Act (33 of 1969) reads as follows: "18. Matrimonial reliefs to be under Special Marriage Act, 1954  (1) Subject to the other provisions contained in this Section, the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954, shall apply in relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one atleast is a citizen of India as they apply in relation to marriages solemnized under that Act. Explanation:- In its application to the marriages referred to in this sub-section, Section 24 of the Special Marriage Act, 1954, shall be subject to the following modifications, namely:- (i) the reference in sub-Section (1) thereof to clauses (a), (b), (c) and (d) of Section 4 of that Act shall be construed as a reference to clauses (a), (b), ( c) and (d) respectively of Section 4 of this Act, and (ii) nothing contained in Section 24 aforesaid shall apply to any marriage:- (a) which is not solemnized under this Act; or (b) which is deemed to be solemnized under this Act by reason of the provisions contained in Section 17: Provided that the registration of any such marriage as is referred to in sub-Clause (b) may be declared to be of no effect if the registration was in contravention of sub-section (2) of Section 17." 21. As domicile and nationality of the petitioner being the core objection of the petitioner to contend that the Family Court has no jurisdiction to entertain the petition under Hindu Marriage Act, let me reproduce the definition of the word 'domicile' as extracted in Union of India and others versus Dudhnath Prasad reported in (2000) 2 SCC 20 and how the word should be interpreted in a given case. "20. In Tomlin's Law Dictionary, "domicile" has been defined as "the place where a man has his home". 21.In Whicker v. Hume [(1858) 28 LJ Ch. 396], it was held that a a person's domicile means, a generally speaking, the place where he has his permanent home. 22.In Mc.Mullen v. Wadsworth [(1889) 14 AC 631], it was observed that "the Roman law still holds that 'it is not by naked assertion but by deeds and acts that a domicile is established'". 23.Lord Macnaghtenin in Winams v. A.G. [1904 AC 287] observed that: "Domicile of origin, or, as it is sometimes called, perhaps less accurately, domicile of birth, differs from domicile or choice mainly in this---that its character is more enduring, its hold stronger and less easily shaken off." 24.In Ross v. Ross [1930 AC 1], Lord Buckmaster while dealing with a case relating to change of domicile observed that: "Declarations of intention are rightly regarded as determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression. 26.Etymologically, "residence" and "domicile" carry the same meaning, inasmuch as both refer to the "permanent home", but under private international law, "domicile" carries a little different sense and exhibits many facts. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. "Domicile" may also take many colors; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In private international law, "domicile" jurisprudentially has a different concept altogether. It plays an important role in the conflict of laws. The subject has been elaborately considered by Dicey in his book Conflict of Laws (6th Edn.) as also in another book by Phillimore on domicile. An equally valuable discussion is to be found in Private International Jurisprudence by Foote and by Westlake on private international law. 28.In view of the above, the concept of "domicile" as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, "domicile" and "residence" are relative concepts and have to be understood in the