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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4629 OF 2005

SONDUR GOPAL    APPELLANT VERSUS

SONDUR RAJINI   RESPONDENT

With CIVIL APPEAL NO.487 OF 2007

RAJINI SONDUR    APPELLANT VERSUS

GOPAL SONDUR & ORS.        RESPONDENTS

JUDGMENT  

CHANDRAMAULI KR. PRASAD,J.

CIVIL APPEAL NO.4629 OF 2005

Appellant-husband, aggrieved by the judgment  

and order dated 11th of April, 2005 passed by the  

Division Bench of the Bombay High Court in Family

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Court Appeal No. 11 of 2005 reversing the judgment  

and order dated 1st of January, 2005 passed by the  

Family  Court,  Mumbai  at  Bandra  in  Interim  

Application No. 235 of 2004 in Petition No. A-531  

of 2004, is before us with the leave of the Court.

Shorn  of  unnecessary  details,  facts  giving  

rise to the present appeal are that the marriage  

between the appellant-husband and the respondent-

wife took place 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  

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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  

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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.

After  being  served  with  the  notice,  the  

husband appeared before the Family Court and filed  

an  interim  application  questioning  the  

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maintainability of the petition itself.  According  

to  the  husband,  they  were  original  citizens  of  

India but have “acquired citizenship of Sweden in  

the  year  1996-1999  and  as  citizens  of  Sweden  

domiciled  in  Australia”.    According  to  the  

husband, the wife along with the children “arrived  

in  India  on  17th of  December,  2003  on  a  non-

extendable tourist visa for a period of six months  

and they had confirmed air tickets to return to  

Sydney  on  27th of  January,  2004”  and  therefore,  

“the parties have no domicile in India and, hence,  

the parties would not be governed by the Hindu  

Marriage  Act”.   According  to  the  husband,  “the  

parties  by  accepting  the  citizenship  of  Sweden  

shall be deemed to have given up their domicile of  

origin, that is, India” and acquired a domicile of  

choice  by  the  combination  of  residence  and  

intention  of  permanent  or  indefinite  residence.  

The husband has also averred that the domicile of  

the wife shall be that of the husband and since  

they have abandoned their domicile of origin and  

acquired  a  domicile  of  choice  outside  the  

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territories of India, the provisions of the Hindu  

Marriage  Act  shall  not  apply  to  them.  

Consequently,  the  petition  by  the  wife  for  

judicial separation under Section 10 of the Hindu  

Marriage Act and custody of the children is not  

maintainable.  According to the husband, he did  

not have any intention to “give up the domicile of  

choice namely the Australian domicile nor have the  

parties  acquired  a  third  domicile  of  choice  or  

resumed  the  domicile  of  origin”  and,  therefore,  

provisions of the Hindu Marriage Act would not be  

applicable to them. In sum and substance, the plea  

of the husband is that they are citizens of Sweden  

presently  domiciled  in  Australia  which  is  their  

domicile  of  choice  and  having  abandoned  the  

domicile of origin i.e. India, the jurisdiction of  

the  Family  Court,  Mumbai  is  barred  by  the  

provisions of Section 1(2) of the Hindu Marriage  

Act.   

As against this, the case set up by the wife  

is that their domicile of origin is India and that  

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was  never  given  up  or  abandoned  though  they  

acquired the citizenship of Sweden and then moved  

to Australia.  According to the wife, even if it  

is assumed that the husband had acquired domicile  

in  Sweden,  she  never  changed  her  domicile  and  

continued to be domiciled in India.  The wife has  

set up another alternative plea. According to her,  

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,  that  is,  

India got revived.  In short, the case of the wife  

is that both she and her husband are domiciled in  

India and, therefore, the Family Court in Mumbai  

has jurisdiction to entertain the petition filed  

by her seeking a decree for judicial separation  

and custody of the children.   

The  husband  in  support  of  his  case  filed  

affidavit of evidence and he has also been cross-

examined by the wife.  According to the husband  

“even  before  the  marriage  he  visited  Stockholm,  

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Sweden in Spring, 1985” and “immediately taken in  

by  the  extraordinary  beauty  of  the  place  and  

warmth and friendliness of the people”.  According  

to the husband, the first thought which occurred  

to him was that “Stockholm is the place where” he  

“wanted  to  live  and  die”.   According  to  his  

evidence, at the time of marriage in 1989, he was  

a  domicile  of  Sweden.   From  this  the  husband  

perhaps  wants  to  convey  that  he  abandoned  the  

domicile of his birth, that is, India and acquired  

Sweden as the domicile of choice.  He went on to  

say that “keeping in mind wife’s express desire to  

be in English speaking country” he “accepted the  

offer to move to Sydney, Australia”.  His specific  

evidence  is  that  “parties  herein  are  Swedish  

citizens,  domiciled  in  Australia”,  hence,  

according  to  the  husband,  “only  the  courts  in  

Australia will have the jurisdiction to entertain  

the petition of this nature”.  The husband has  

further claimed that “on 5th of April, 2004, the  

day wife had filed the petition” he “had acquired  

domicile status of Sydney, Australia”.  As regards  

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domicile status on the date of cross-examination,  

that  is,  17.11.2004,  he  insisted  to  be  the  

domicile of Australia.  It is an admitted position  

that the day on which husband claimed to be the  

domicile of Australia, that is, 05.04.2004, he was  

not  citizen  of  that  country  or  had  ever  its  

citizen but had 457 visa which, according to his  

own evidence “is a long term business permit and  

it is not a domicile document”.

The  family  court,  after  taking  into  

consideration the facts and circumstances of the  

case, allowed the application filed by the husband  

and  held  the  petition  to  be  not  maintainable.  

While doing so, the family court observed that “it  

cannot be held” that “the husband has never given  

up his domicile of origin, i.e., India.”  However,  

in appeal, the High Court by the impugned order  

has set aside the order of the family court and  

held  the  petition  filed  by  the  wife  to  be  

maintainable.  While doing so, the High Court held  

that  “the  husband  has  miserably  failed  to  

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establish that he ever abandoned Indian domicile  

and/or  intended  to  acquire  domicile  of  his  

choice”.   Even  assuming  that  the  husband  had  

abandoned  his  domicile  of  origin  and  acquired  

domicile  of  Sweden  along  with  citizenship,  

according  to  the  High  Court,  he  abandoned  the  

domicile of Sweden when he shifted to Australia  

and in this way the domicile of India got revived.  

Relevant portion of the judgment of the High Court  

in this regard reads as follows:

“15.4………It is against this factual  matrix, we are satisfied that the  respondent has miserably failed to  establish  that  he  ever  abandon  Indian domicile and/or intended to  acquire domicile of his choice.

16. Even if it is assumed that the  respondent  had  abandoned  his  domicile  of  origin  and  acquired  domicile  of  Sweden  alongwith  citizenship  in  1997,  on  his  own  showing  the  respondent  abandoned  the  domicile  of  Sweden  when  he  shifted  to  Sydney,  Australia.  Therefore,  keeping  the  case  made  out by the respondent in view and  our  findings  in  so  far  as  acquisition of Australian domicile  is concerned, it is clear that the  domicile  of  India  got  revived  

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immediately  on  his  abandoning  Swedish domicile…….”  

It is against this order that the husband is  

before us with the leave of the court.   

We  have  heard  Mr.  V.Giri,  learned  Senior  

Counsel for the appellant and Mr. Y.H. Muchhala  

and  Mr.Huzefa  Ahmadi,  learned  Senior  Counsel  on  

behalf  of  respondent.   Mr.  Giri  draws  our  

attention to Section 1 of the Hindu Marriage Act  

(hereinafter to be referred to as ‘the Act’) and  

submits that the Act would apply only to Hindu  

domiciled in India. He submits that  the parties  

having ceased to be the domicile of India, they  

shall not be governed by the Act. Mr. Muchhala  

joins issue and contends that the benefit of the  

Act  can  be  availed  of  by  Hindus  in  India  

irrespective  of  their  domicile.  He  submits  that  

there is no direct precedent of this Court on this  

issue  but  points  out  that  a  large  number  of  

decisions  of  different  High  Courts  support  his  

contention.  In  this  connection,  he  draws  our  

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attention to a judgment of Calcutta High Court in  

Prem Singh v. Sm.Dulari Bai & Anr. AIR 1973 Cal.  425, relevant portion whereof reads 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  intra- territorial operation of the Act it  applies  to  all  Hindus,  Buddhists,  Jains or Sikhs irrespective of the  question whether they are domiciled  in India or not.”

Reference has also been made to decision of  

Gujarat  High  Court  in  Nitaben v. Dhirendra  Chandrakant Shukla & Anr. I (1984) D.M.C.252 and  our attention has been drawn to the following:

“Apparently  looking,  this  argument  of  Mr.  Nanavati  is  attractive.  But  it  would  not  be  forgotten that section 1 of the Act  refers to the extension of the Act  

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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 RLW 2005(3) Raj. 1791. Paragraphs 13 and  17 which are relevant read as follows:

“13. 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.

     xxx       xxx       xxx

17. 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”

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Lastly,  learned  Senior  Counsel  has  placed  

reliance on a judgment of the Kerala High Court  

in  Vinaya Nair & Anr.  v. Corporation of Kochi  AIR  2006  Ker.  275 and  our  attention  has  been  drawn to the following passage from Paragraph 6  

of the judgment which reads as follows:

“A conjoint reading of Ss. 1 and  2 of the Act would indicate that so  far as the second limb of S. 1(2)  of the Act is concerned its intra  territorial  operation  of  the  Act  applied to those who reside outside  the territories. First limb of sub- section (2) of S. 1 and Cls. (a)  and  (b)  of  S.2(1)  would  make  it  clear that the Act would apply to  Hindus reside in India whether they  reside  outside  the  territories  or  not.”

Rival submission necessitates examination of  

extent and applicability of the Act. Section 1(2)  

of the Act provides for extent of the Act. The  

same reads as follows:

“1. Short title and extent.-

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(1) xxx xxx xx

(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.”

From a plain reading of Section 1(2) of the  

Act, it is evident that it has extra-territorial  

operation. The general principle underlying  the  

sovereignty of States is that laws made by one  

State cannot have operation in another State. A  

law which has extra territorial operation cannot  

directly be enforced in another State but such a  

law is not invalid and saved by Article 245 (2) of  

the Constitution of India. Article 245(2) provides  

that no law made by Parliament shall be deemed to  

be invalid on the ground that it would have extra-

territorial operation. But this does not mean that  

law  having  extra-territorial  operation  can  be  

enacted which has no nexus at all with India. In  

our opinion, unless such contingency exists, the  

Parliament  shall  be  incompetent  to  make  a  law  

having  extra-territorial  operation.  Reference  in  

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this connection can be made to a decision of this  

Court  in   M/s.Electronics  Corporation  of  India  Ltd. v.  Commissioner of Income Tax & Anr. 1989  Supp (2) SCC 642 in which it has been held as  follows:

“9.But  the  question  is  whether a nexus with something in  India is necessary. It seems to us  that  unless  such  nexus  exists  Parliament will have no competence  to make the law. It will be noted  that  Article  245(1)  empowers  Parliament  to  enact  law  for  the  whole or any part of the territory  of India. The provocation for the  law  must  be  found  within  India  itself. Such a law may have extra- territorial  operation  in  order  to  sub-serve  the  object,  and  that  object must be related to something  in India. It is inconceivable that  a law should be made by Parliament  in India which has no relationship  with anything in India.“

Bearing  in  mind  the  principle  aforesaid,  

when we consider Section 1(2) of the Act, it is  

evident  that  the  Act  extends  to  the  Hindus  of  

whole  of  India  except  the  State  of  Jammu  and  

Kashmir and also applies to Hindus domiciled in  

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India  who  are  outside  the  said  territory.  In  

short,  the  Act,  in  our  opinion,  will  apply  to  

Hindus  domiciled  in  India  even  if  they  reside  

outside India. If the requirement of domicile in  

India is omitted altogether, the Act shall have no  

nexus  with  India  which  shall  render  the  Act  

vulnerable  on the ground that extra-territorial  

operation has no nexus with India. In our opinion,  

this extra-territorial operation of law is saved  

not  because  of  nexus  with  Hindus  but  Hindus  

domiciled in India.  

At this stage, it shall be useful to refer  

to the observation made by the High Court in the  

impugned order which is quoted hereunder.

“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  

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local  limits  of  whose  ordinary  civil jurisdiction she resides.”    

Now, we revert to the various decisions of  

the High Courts relied on by the Senior Counsel  

for the respondent-wife; the first in sequence is  

the decision of Calcutta High Court in the case of  

Prem  Singh  (supra). In  this  case,  the  husband  submitted  an  application  for  restitution  of  

conjugal rights inter alia pleading that he had  

married  his  wife  according  to  Hindu  rites  in  

India. After the marriage, they continued to live  

as husband and wife and a daughter was born. The  

grievance of the husband was that the wife had  

failed  to  return  to  the  matrimonial  home  which  

made him to file an application for restitution of  

conjugal rights. The trial court noticed that the  

husband was a Nepali and he was not a domicile in  

India and therefore, he could not have invoked the  

provisions of the Act. While interpreting Sections  

1(1) and 2(1) of the Act, the Court held that as  

regards  the  intra-territorial  operation  of  the  

Act,  it  is  clear  that  it  applies  to  Hindus,  

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Buddhists,  Jaina  and  Sikhs  irrespective  of  the  

question as to whether they are domiciled in India  

or  not.  Having  given  our  most  anxious  

consideration, we are unable to endorse the view  

of the Calcutta High Court in such a wide term. If  

this view is accepted, a Hindu living anywhere in  

the  world,  can  invoke  the  jurisdiction  of  the  

Courts in India in regard to the matters covered  

under the Act.  To say that it applies to Hindus  

irrespective of their domicile extends the extra-

territorial  operation  of  the  Act  all  over  the  

world  without  any  nexus  which  interpretation  if  

approved,  would  make  such  provision  invalid.  

Further, this will render the words “domiciled” in  

Section 1(2) of the Act redundant.  Legislature  

ordinarily does not waste its words is an accepted  

principle  of  interpretation.   Any  other  

interpretation  would  render  the  word  ‘domicile’  

redundant.  We do not find any compelling reason  

to  charter  this  course.   Therefore,  in  our  

opinion, the decision of the Calcutta High Court  

taking a view that the provisions of the Act would  

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apply  to  a  Hindu  whether  domiciled  in  the  

territory of India or not does not lay down the  

law  correctly.   One  may  concede  to  the  

applicability of the Act if one of the parties is  

Hindu of Indian domicile and the other party a  

Hindu volunteering to be governed by the Act.

As regards the passage from the judgment of  

the Gujarat High Court in  Nitaben (Supra) relied  on by the wife, it does not lay down that the Act  

applies to all Hindus, whether they are domiciled  

in India or not.  In fact, the High Court has held  

that  it  extends  to  all  those  persons  who  are  

domiciles of India, excluding Jammu and Kashmir.

So far as the decision of the Rajasthan High  

Court in  Varindra Singh (supra) is concerned, it  is  true  that  under  Section  1(2)  of  the  Act,  

residence in India is not necessary and Section 2  

also does not talk about requirement of domicile  

for its application.  This is what precisely has  

been  said  by  the  Rajasthan  High  Court  in  this  

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judgment  but,  in  our  opinion,  what  the  learned  

Judge failed to notice is that the application of  

the Act shall come into picture only when the Act  

extends to that area.  Hence, in our opinion, the  

Rajasthan High Court’s judgment does not lay down  

the law correctly.  For the same reason, in our  

opinion the judgment of the Kerala High Court is  

erroneous.

Section 2(1) provides for the application of  

the Act. The same reads as follows:

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,  Christian,  Parsi  or  Jew  by  religion, unless it is proved that  any such person would not have been  

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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.”

This section contemplates application of the  

Act to Hindu by religion in any of its forms or  

Hindu within the extended meaning i.e. Buddhist,  

Jaina or Sikh and, in fact, applies to all such  

persons  domiciled  in  the  country  who  are  not  

Muslims, Christians, Parsi or Jew, unless it is  

proved that such persons are not governed by the  

Act under any custom or usage. Therefore, we are  

of the opinion that Section 2 will apply to Hindus  

when  the  Act  extends  to  that  area  in  terms  of  

Section 1 of the Act. Therefore, in our considered  

opinion, the Act will apply to Hindu outside the  

territory  of  India  only  if  such  a  Hindu  is  

domiciled in the territory of India.  

There is not much dispute that the wife at  

the  time  of  presentation  of  the  petition  was  

resident  of  India.   In  order  to  defeat  the  

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petition  on  the  ground  of  maintainability,  Mr.  

Giri  submits  that  the  wife  will  follow  the  

domicile of the husband and when Sweden has become  

the  domicile  of  choice,  the  domicile  of  origin  

i.e. India has come to an end.  According to the  

husband, the parties had India as the domicile of  

origin, but in 1987 the husband moved to Sweden  

with an intention to reside there permanently and  

acquired the Swedish domicile as his domicile of  

choice. After the marriage, the wife also moved to  

Sweden  to  reside  permanently  there  and  both  of  

them  acquired  Swedish  citizenship  in  1996-97  

thereby  giving  up  their  domicile  of  origin  and  

embracing  Sweden  as  their  domicile  of  choice.  

Further, on account of express desire of the wife  

to move to an English speaking country, the family  

moved to Australia in June, 1999 with an intention  

to  reside  there  permanently  and  initiated  the  

process to acquire the permanent resident status  

in Australia. On these facts, the husband intends  

to  contend  that  they  have  acquired  Swedish  

domicile  as  domicile  of  choice.  Mr.  Muchhala,  

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however,  submits  that  the  specific  case  of  the  

husband is that he is a Swedish citizen domiciled  

in Australia and, therefore, the appellant cannot  

be  allowed  to  contend  that  he  is  domiciled  in  

Sweden. He points out that the husband is making  

this attempt knowing very well that his claim of  

being the domicile of Australia is not worthy of  

acceptance and in that contingency to contend that  

the earlier domicile of choice, i.e. Sweden has  

revived.  

We  have  bestowed  our  consideration  to  the  

rival  submission  and  we  find  substance  in  the  

submission  of  Mr.  Muchhala.  In  certain  

contingency,  law  permits  raising  of  alternative  

plea but the facts of the present case does not  

permit  the  husband  to  take  this  course.  It  is  

specific  case  of  the  appellant  that  he  is  a  

Swedish citizen domiciled in Australia and it is  

the  Australian  courts  which  shall  have  

jurisdiction in the matter.  In order to succeed,  

the  appellant  has  to  establish  that  he  is  a  

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domicile  of  Australia  and,  in  our  opinion,  he  

cannot be allowed to make out a third case that in  

case it is not proved that he is a domicile of  

Australia, his earlier domicile of choice, that is  

Sweden, is revived.  In this connection, we deem  

it expedient to reproduce the averment made by him  

in this regard:

“22……..In the instant case, it is  submitted that in the year 1996 the  applicant  acquired  citizenship  as  well as domicile of Sweden and is  presently  domiciled  in  Australia.  Thus, the Hindu Marriage Act is not  applicable  to  the  parties  herein  and the Family Court Mumbai has no  jurisdiction  to  proceed  in  the  matter  and  the  petition  is  not  maintainable  under  Section  10  of  the Hindu Marriage Act, 1955.”

The  appellant  has  further  averred  that  the  

parties never acquired a third domicile of choice,  

the same reads as follows:

“19…..In the instant case, there is  no  intention  to  give  up  the  domicile  of  choice  namely  the  Australia domicile and nor have the  parties  acquired  a  third  domicile  

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of choice or resume the domicile of  origin……….”

Further,  the  husband  in  his  evidence  has  

stated that at the time of marriage in 1989, he  

was a domicile of Sweden, but it is not his case  

that he shall be governed by the Swedish law or  

Swedish  courts  will  have  jurisdiction.   His  

specific evidence in this regard reads as follows:

“7……as  the  parties  herein  are  Swedish  citizens,  domiciled  in  Australia, and hence it is only the  Courts in Australia that have the  jurisdiction  to  entertain  a  petition of this nature…….”

From the aforesaid, it is evident that the  

appellant does not claim to be the domicile of  

Sweden but claims to be the domicile of Australia  

and, therefore, the only question which requires  

our consideration is as to whether Australia is  

the husband’s domicile of choice.

Domicile are of three kinds, viz. domicile of  

origin, the domicile by operation of law and the  

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domicile of choice. In the present case, we are  

concerned  only  with  the  domicile  of  origin  and  

domicile of choice.  Domicile of origin is not  

necessarily  the place of birth. The birth of a  

child at a place during temporary absence of the  

parents from their domicile will not make  the  

place of birth as the domicile of the child. In  

domicile of choice one is abandoned and another  

domicile is acquired but for that, the acquisition  

of another domicile is not sufficient. Domicile of  

origin prevails until not only  another domicile  

is acquired but it must manifest  intention of  

abandoning  the  domicile  of  origin.  In  order  to  

establish  that  Australia  is  their  domicile  of  

choice,  the  husband  has  relied  on  their  

residential tenancy agreement dated 25.01.2003 for  

period  of  18  months;  enrollment  of  Natasha  in  

Warrawee Public School in April,2003; commencement  

of  proceedings  for  grant  of  permanent  resident  

status in Australia during October-November, 2003;  

and submission of application by the husband and  

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wife  on  11.11.2003  for  getting  their  permanent  

resident status in Australia.  

The right to change the domicile of birth is  

available to any person not legally dependant  and  

such a person can acquire domicile of choice.  It  

is done by residing in the country of choice with  

intention  of  continuing  to  reside  there  

indefinitely.  Unless proved, there is presumption  

against the change of domicile.  Therefore, the  

person  who  alleges  it  has  to  prove  that.  

Intention is always lodged in the mind, which can  

be inferred from any act, event or circumstance in  

the life of such person.  Residence, for a long  

period, is an evidence of such an intention so  

also the change of nationality.  

In the aforesaid background, when we consider  

the husband’s claim of being domicile of Australia  

we find no material to endorse this plea.  The  

residential  tenancy  agreement  is  only  for  18  

months which cannot be termed for a long period.  

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Admittedly, the husband or for that matter, the  

wife  and  the  children  have  not  acquired  the  

Australian citizenship. In the absence thereof, it  

is  difficult  to  accept  that  they  intended  to  

reside  permanently  in  Australia.  The  claim  that  

the  husband  desired  to  permanently  reside  in  

Australia, in the face of the material available,  

can  only  be  termed  as  a  dream.   It  does  not  

establish  his  intention  to  reside  there  

permanently.  Husband has admitted that his visa  

was nothing but a “long term permit” and “not a  

domicile document”.  Not only this, there is no  

whisper at all as to how and in what manner the  

husband had abandoned the domicile of origin. In  

the face of it, we find it difficult to accept the  

case  of  the  husband  that  he  is  domiciled  in  

Australia and he shall continue to be the domicile  

of origin i.e. India. In view of our answer that  

the husband is a domicile of India, the question  

that the wife shall follow the domicile of husband  

is rendered academic.  For all these reasons, we  

are of the opinion that both the husband and wife  

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are domicile of India and, hence, shall be covered  

by the provisions of the Hindu Marriage Act, 1955.  

As on fact, we have found that both the husband  

and wife are domicile of India, and the Act will  

apply to them, other contentions raised on behalf  

of  the  parties,  are  rendered  academic  and  we  

refrain ourselves to answer those.

In the result, we do not find any merit in  

the  appeal  and  it  is  dismissed  accordingly  but  

without any order as to costs.

CIVIL APPEAL NO.487 OF 2007

In view of our decision in Civil Appeal No.  

4629  of  2005  (Sondur  Gopal  vs.  Sondur  Rajini)  

holding that the  petition filed by the appellant  

for  judicial  separation  and  custody  of  the  

children is maintainable, we are of the opinion  

that the writ petition filed by the respondent for  

somewhat similar relief is rendered infructuous.  

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On this ground alone, we allow this appeal and  

dismiss the writ petition filed by the respondent.

………………………………………………………………J.  (CHANDRAMAULI KR. PRASAD)

                        ………..……….………………………………..J.      (V.GOPALA GOWDA)

NEW DELHI, JULY 15, 2013.  

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