:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FAMILY COURT APPEAL NO.11 OF 2005 Mrs Sondur Rajini Nee Rajini Hosbet Suresh Hindu, Indian Inhabitant presently residing at 103, Prachi, Off.Juhu Versova Link Road, Andheri (West), Mumbai 400 058. .. Appellant. Vs Mr Sondur Gopal Hindu, Indian Inhabitant, presently residing at Song Bird, 1st Floor, 1st Langford Gardens, Bangalore 560 001 and having permanent address at 35, Vijaynagar, Hubli 580 032. .. Respondent Mr.Y.H.Muchhala i/b Mr Tushar Goradia and H.Nikumb for the appellant. Ms B.V.Nagarathn with Ms A.B.Kapadia i/b M/s Daphtary Ferreira & Divan for the respondent. CORAM CORAM CORAM : S.B.MHASE & : S.B.MHASE & : S.B.MHASE & D.B.BHOSALE, D.B.BHOSALE, D.B.BHOSALE, JJ. JJ. JJ. DATE DATE DATE : APRIL 11, 2005. : APRIL 11, 2005. : APRIL 11, 2005. JUDGMENT: JUDGMENT: JUDGMENT: (PER D.B.BHOSALE, J.) (PER D.B.BHOSALE, J.) (PER D.B.BHOSALE, J.) 1. Heard the learned counsel for the parties. Admit. Ms.Nagarathn, learned counsel, waives service for the respondent. By consent of the learned counsel appearing for the parties, taken up for final hearing. :2: :2: :2: 2. This appeal, by the wife, is directed against the judgment and order dated 1.1.2005 rendered by the Family Court in Interim Application No.235 of 2004 filed in Petition No.A-531 of 2004, allowing the said application filed by the respondent-husband under section 1(2) of the Hindu Marriage Act, 1955 (for short, "H.M.Act"). By that application, the respondent had prayed for dismissal of the petition filed by the appellant as not maintainable on the ground that the parties are citizens of Sweden and not domiciled in India. The appellant’s petition was filed inter-alia seeking a decree of judicial separation under section 10 of H.M.Act, for custody of minor children and for maintenance. 3. The factual matrix, sans unnecessary details, is as follows: The appellant and the respondent tied the nuptial knot on 25.6.1989 under the Hindu Vedic Rites at Bangalore. When they got married the respondent was working in Sweden with B.C.F.I.Philips. After marriage, the respondent left for Sweden in the first week of July, 1989 followed by the appellant in November, 1989. The couple was blessed with their first child Natasha on 19.9.1993. Unfortunately, Natasha is a down-syndrone child. In December, 1993 they purchased their own house in :3: :3: :3: Stockholm. The parties applied for Swedish citizenship in 1995-1996 which was granted to them in 1997. In June,1997 the appellant and the respondent moved to Mumbai as, according to the appellant, the employer of the respondent, viz. A.T.Kearney was setting up his business in India. Between June, 1997 and mid 1999 the respondent lived with the appellant and Natasha in India. In mid 1999, A.T.Kearney offered him a job in Sydney which he accepted and accordingly moved to Sydney, Australia. The appellant, respondent and Natasha went to Sydney on sponsorship visa 457 which allowed them to stay and work in Australia for a period of four years. While they were in Australia the respondent disposed of their house in Sweden in 2000. The couple was once again blessed with their second child Smyan on 9.2.2001 when they were at Sydney. The respondent lost his job on 7.7.2001 and since he no longer had sponsor he had to leave Australia in the second week of January 2002. They shifted to Stockholm, Sweden and lived there in a leased house till October, 2002 during which period he had no job. On 2.10.2002 the respondent got another job at Sydney, Australia with Infosis Technology Ltd. Again the respondent got temporary visa 457. He was then sponsored by Infosis. He went to Sydney on 18.12.2002. In the :4: :4: :4: meanwhile, on 14.12.2002, the appellant left for Mumbai with the children. On 31.1.2003 the appellant alongwith the children left for Australia. After a brief stay in Australia, the appellant came back to India with both the children on 17.12.2003 on a tourist visa. The respondent stayed back in Sydney. In January, 2004 for the first time, according to the respondent, the appellant informed him that she did not want to return to Sydney at all. It appears that thereafter the respondent came back to India and tried to persuade the appellant to accompany him back to Sydney. Since the appellant was determined not to go back to Sydney, she filed the petition seeking a decree of judicial separation under section 10 of H.M.Act and also prayed for permanent custody of the minor children as also for maintenance. 4. The case set up by the respondent seeking to challenge the maintainability of the petition is that the parties in the petition are citizens of Sweden and not domiciled in India and in view thereof the petition filed by the wife seeking judicial separation under the H.M.Act is hit by the provisions of section 1(2) of the said Act. A specific case set up by the respondent, in short, is that they were citizens of Sweden and are presently domiciled in :5: :5: :5: Australia, which is their domicile of choice and, therefore, the jurisdiction of the Family Court is barred by the provisions of section 1(2) of H.M.Act. As against this, the case set up by the appellant is that admittedly their domicile of origin is in India and that was never given up or abandoned though they acquired citizenship of Sweden and then moved to Australia. The respondent’s application was also challenged on the ground that even if it is assumed that the respondent acquired domicile in Sweden she never changed her domicile and continued her domicile in India. In the alternative, it was contended that even if it is assumed that she also had acquired domicile of Sweden that was abandoned by both of them when they shifted to Australia and, therefore, their domicile of origin i.e. India, got revived. In short, the case of the appellant is that the appellant and the respondent both are domiciled in India and, therefore, the Family Court in Mumbai has jurisdiction to entertain her petition seeking a decree of judicial separation. 5. We heard the learned counsel appearing for the parties at great length, perused the entire material placed before us as also several judgments of the Apex Court and High Courts cited before us. :6: :6: :6: It may be noted that before we heard the learned counsel for the parties on merits, we made sincere efforts to persuade the parties to settle their dispute amicably, for and in the interest of the children. We also suggested to the parties to go for mediation, which was not acceptable to the respondent. It is against this backdrop we heard the learned counsel for the parties. 6. Mr Muchhala, learned senior counsel for the appellant, submitted that admittedly the marriage between the appellant and the respondent took place according to Hindu Vedic Rites and, therefore, the provisions of H.M.Act apply to both the parties. After taking us thorough the several documents produced on record by the respondent, Mr.Muchhala submitted that on the date of marriage both were domiciled in India. He further submitted that once the H.M.Act applies, there is no provision in the said Act stating that it ceases to apply at any subsequent stage. The issue of domicile raised by the respondent is, therefore, totally irrelevant keeping in view the scheme of H.M.Act. Mr.Muchhala firmly submitted that the parties never lost their domicile in India though they shifted to Sweden and acquired citizenship there. He next submitted that :7: :7: :7: even if it is assumed that they acquired citizenship as also domicile in Sweden in 1997, after they left Sweden permanently they abandoned their domicile in that country and as a result of which their domicile of origin got revived. Acquisition of citizenship and domicile are independent of each other and in any case it cannot be said that by acquiring citizenship of Sweden they also acquired domicile in that country. By making reference to section 19 of H.M.Act he submitted that the parties must satisfy any one of the requirements of section 19 to invest a Court with jurisdiction in a matrimonial petition. Section 19 does not speak of domicile at all. He further submitted that for an applicability of H.M.Act it is not necessary to satisfy the requirement of Indian domicile. It was further submitted that if the requirement of Indian domicile is held to be necessary for applicability of H.M.Act, it will lead to great hardship to Hindu wife who requires to go from place to place wherever her husband takes her and that will also lead to very serious social problem. Mr Muchhala, next submitted that even if the requirement of domicile is held to be necessary the relevant date for considering a domicile of the parties would be the date of marriage and not the date of filing of the petition. :8: :8: :8: According to Mr Muchhala, the husband by his unilateral decision cannot alter a system of law by which the marriage is governed. In support of his contention he placed reliance upon few judgments to which we propose to make a reference at an appropriate stage in the later part of the judgment. 7. On the other hand, Ms Nagarathn, learned counsel for the respondent, submitted that the parties being citizens of Sweden and domiciled in Australia, the petition filed by the appellant under the provisions of H.M.Act is not maintainable. For Hindus, to be a domicile in India is a condition precedent for applicability of H.M.Act as contemplated under section 1(2) of the said Act. In the instant case, the parties are not domiciled in India and, therefore, the H.M.Act itself is not applicable and the petition deserves to be rejected not only on the ground of jurisdiction but also on the ground of inapplicability of the said Act. In other words, she submitted that H.M.Act applies only to Hindus domiciled in the territories of India. She took us through several documents produced on record to contend that even on the date of marriage, the respondent was not domiciled in India and, therefore, :9: :9: :9: with the marriage the appellant followed the domicile of the respondent which was in Sweden at the relevant time. For the present, Australia being his domicile of choice, the appellant also is domiciled of Australia and therefore, she cannot maintain the petition under H.M.Act in India. According to Ms Nagarathn, the documents produced by the respondent clearly demonstrate that he was domiciled in Australia on the date of filing of the petition. It was next contended that assuming that the Family Court in India has jurisdiction and the H.M.Act is applicable to the parties herein, the appellant could not have invoked section 19(iiia) for filing the petition as the residence of the appellant in Mumbai was only temporary as a tourist for a period of six months and her visa was nonextendable. She further submitted that in determining an issue of domicile in the realm of private international law, two constituent elements that are necessary by the English law for existence of domicile are: residence of particular kind; and an intention of particular kind. After applying the said test of domicile, the appellant cannot maintain her petition in any court in India. Ms Nagarathn, learned counsel for the respondent, also placed reliance upon the judgments of High Courts and the Apex Court to which we will :10: :10: :10: make reference at an appropriate stage in the later part of the judgment. 8. The questions raised and involved in this appeal and the submissions advanced by the learned counsel for the parties are centered around the provisions contained in sections 1,2 and 19 of the H.M.Act, which we deem it appropriate to reproduce for better appreciation of their submissions. Sections 1, 2 and 19 read thus: "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 the Brahmo, Prarthana 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, Christain, 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. :11: :11: :11: 19. 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 civil jurisdiction-- (i) the marriage was solemnised, 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 a period of seven years or more by those persons who would naturally have heard of him if he were alive". 8.1 Section 1 provides that the H.M.Act extends to the whole of India, except the State of Jammu and Kashmir, and applies to Hindus domiciled in the territories to which this Act extends even if they are outside the said territories. Section 2 speaks about persons to whom H.M. Act applies. It provides different categories of persons, including a Buddhist, Jaina or Sikh by religion, to whom H.M.Act applies, making exception of a Muslim, Christain, Parsi or Jew by religion, unless it is proved that any other person would not have been governed by the Hindu Law or by any custom or usage as part of that :12: :12: :12: law in respect of any of the matter dealt with if this Act had not been passed. In short, section 2 defines the expression ‘Hindu’ to whom H.M.Act applies. Sub-section (3) of Section 2 provides that the expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this Section. Section 19 deals with the jurisdiction of a Court to which petition for reliefs under H.M.Act shall be presented.The clauses (i),(ii),(iii),(iiia) and (iv) of section 19 provide within whose ordinary original civil jurisdiction the petition under the provisions of H.M.Act shall be presented to. Clause (iiia) was introduced in section 19 by The Marriage Laws (Amendment) Act, 2003 (Act No.50 of 2003) with effect from 23.12.2003 which invested to the Family Court with the jurisdiction to entertain and try the petition of wife where she is residing on the date of presentation of the petition. This amendment was introduced to alleviate the hardship faced by Hindu wife as is evident from the statement of objects and reasons of Amendment Act No.50 of 2003. The statement of objects and reasons state that in case the husband and wife have separated and are residing :13: :13: :13: at two different places or two different towns far way from each other and if they intend to present petition under H.M.Act for any relief they are forced to go to a place where they resided together for filing petition. This causes hardship to a wife who generally has no independent source of income or guardian. It is thus clear that the Legislature intended to confer right on the wife to present a petition seeking reliefs under the provisions contained in H.M.Act at the place where she is residing at the time of presentation of such petition What is common in all the clauses of section 19 is the word ‘residence’. A close look at the provisions of clause (ii), (iii), (iiia) and (iv) would show that they do not specify a length and/or character of residence. However, it would not mean a residence, which is purely of a temporary nature without there being an intention to stay there permanently or for considerable length of time. A residence of a wife with her parents at the time of filing of a petition under the H.M.Act would be, in our opinion, sufficient to attract the jurisdiction of Court where the residence of her parents situate. In so far as clause (iv) is concerned, it provides that the petitioner, who is residing at the time of presentation of the petition, in a case where the :14: :14: :14: respondent is, at that time residing outside the territories to which this Act extends, shall present his/her petition to the District Court/Family Court within the local limits of whose ordinary civil jurisdiction the petitioner resides. In other words, if the respondent is residing outside the territories to which this Act extends the petitioner can maintain the petition under H.M.Act before the District Court/Family Court within the local limits of whose ordinary civil jurisdiction the petitioner is residing at the time of presentation of the petition. It is, thus, clear that a condition of a domicile in India, as contemplated in Section 1(2) of H.M.Act, is necessary ingredient to maintain a petition seeking reliefs under the H.M.Act. In other words, a wife, who is domiciled and residing in India when she presents a petition, seeking reliefs under H.M.Act, her petition would be maintainable in the territories of India and in the Court within the local limits of whose ordinary civil jurisdiction she resides. Everything depends on the attendant circumstances. A conjoint reading of section 1, 2 and 19 of H.M.Act would, thus, show that a residence alone is not sufficient to maintain a petition seeking reliefs under H.M.Act. A residence coupled with domicile in India would be necessary to maintain such petition in :15: :15: :15: the courts in India. In so far as the present case is concerned, whether the appellant was domiciled in India when she filed petition in the Family Court at Bombay will be considered in the latter part of the judgment. However, it may be noticed that the appellant prior to her marriage was residing in Mumbai with her parents and presently also she stays with her parents in Mumbai and, therefore, if she is held to be a domicile in India, under sub-section (iiia) of section 19 her petition would be maintainable in the Family Court, Mumbai. The submission of Ms.Nagarathn, learned counsel for the respondents that short stay in India cannot be termed as residence so as to confer a jurisdiction to the court in India under section 19 of H.M.Act is not tenable and must be rejected. Similarly, the contention of Mr.Muchalla, learned senior counsel for the appellant that for application of H.M.Act and entitling a wife to file petition in India seeking relief thereunder a condition of domicile in India is not necessary, is without substance and not tenable and, therefore, deserves to be rejected. 9. Since, in our opinion, a domicile of India is a condition precedent for invoking the provisions of H.M.Act, what would be the relevant time, whether a :16: :16: :16: date of marriage or of petition, is the question we would now like to address before going to the principle question involved in this appeal. For addressing this question, the observations made by the Apex Court in Y.Narasimha Rao and ors Vs. Y.Narasimha Rao and ors Vs. Y.Narasimha Rao and ors Vs. Y.Venkata Y.Venkata Y.Venkata Lakshmi and Anr, (1991) 3 supreme Court Lakshmi and Anr, (1991) 3 supreme Court Lakshmi and Anr, (1991) 3 supreme Court Cases Cases Cases 451 451 451 may be useful. In paragraph 17, the Apex Court has observed that "the marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law". The Apex Court was considering the application of a foreign judgment in matrimonial dispute between the husband and wife. In paragraph 21 the Apex Court further observed that "the parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to by-pass it by subterfuges. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence- permanent or :17: :17: :17: temporary or ad hoc, forum, proper law etc and ensuring certainty in the most vital field of national life and conformity with public policy". In the present case, admittedly, the marriage was solemnised by Hindu Vedic Rites and registered under H.M.Act. It may be noticed that none of the provisions of H.M.Act lay down the time and condition under which it will cease to apply. In other words, once the provisions of H.M.Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to bundle of rights and obligations between the parties to the marriage and their progeny. Therefore, the system of law which should govern a marriage, should remain constant and cannot change with vagaries/whims of the parties to the marriage. We may briefly glance at Cheshire & Cheshire & Cheshire & North North North Pvt International Law Pvt International Law Pvt International Law, wherein the learned Author at page 134 points out that "it has been universally recognised that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred". The time at which the domicile is to be determined is when the proceedings under H.M.Act are commenced, is :18: :18: :18: accepted then every petition filed by the wife whose husband moves from one country to another for the purposes of job or for any purpose whatsoever, he would be able to frustrate a petition brought by the wife by changing his domicile even between the presentation of the petition and the hearing of the case. The rule is "once competent, always competent" and this will be so even if the party domiciled in India at the time of their marriage has since changed his domicile, disassociated himself from the determination of his status by the Court in India. The proposition of law canvassed, that the time at which the domicile is to be determined is when the proceedings are commenced, therefore, cannot be accepted, in so far as the petitions under H.M.Act is concerned, inasmuch as it would be against the public policy in this country and which may create a serious social problem. The Hindu society is deeply interested in maintaining integrity of the institution of the marriage. Once the parties have selected H.M.Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation