SONDUR GOPAL Vs SONDUR RAJINI
Bench: CHANDRAMAULI KR. PRASAD,V. GOPALA GOWDA
Case number: C.A. No.-004629-004629 / 2005
Diary number: 9537 / 2005
Advocates: LIZ MATHEW Vs
EJAZ MAQBOOL
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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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