Domiciles and The Hindu Marriage Act

A person may have no home but he cannot be without a domicile. In order to make the rule effective, law assigns a domicile of origin to every person at birth. This prevails until a new domicile has been acquired – the domicile of choice [Central Bank of India v. Ram Narain, AIR 1955 SC 36]. The only intention required for a proof of a change of domicile is an intention of permanent residence. In other words, what is required to be established is, the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special or temporary purpose, but with a present intention of making it his permanent home [Kedar Pandey v. Narain Bikram Shah, AIR 1966 SC 160]. Residence alone, unaccompanied by this state of mind, is insufficient proof [Louis De Raedt v. Union of India, (1991) 3 SCC 554]. If, at all, the domicile of origin is displaced as a result of the acquisition of a domicile of choice, the rule of English law is, it is merely placed in abeyance for the time being. It remains in the background ever ready to revive and to fasten upon the propositus immediately on abandonment of his domicile of choice.

The question of what constitutes a change of domicile came up for consideration before Hon’ble Supreme Court of India in Sondur Rajini v. Sondur Gopal, (2013) 7 SCC 426. Appellant-Husband and Respondent-Wife, soon after their marriage, left for Sweden. The year was 1989. In 1997 the couple were granted Swedish citizenship. However, the same year, the couple moved to Mumbai and in 1999 they shifted to Sydney, on a sponsorship visa, which allowed them to stay in Australia for 4 years. Appellant-Husband, thereafter, lost his job in 2001. Having no longer had any sponsorship, the couple went back to Sweden in January, 2002. Ten months thereon, Appellant-Husband got another job in Sydney. January to December, 2003 the couple stayed on in Australia with their two kids. However, in December, Respondent-Wife, with the kids, came back to India on a tourist visa and refused to return to Sydney. Soon after, Respondent-Wife filed a Petition before Family Court, Bandra praying, amongst other things, a decree of judicial separation and custody of the children. Appellant-Husband, in turn, filed an Interim Application questioning the maintainability of the Petition itself. Appellant-Husband contended, he and his Respondent-Wife 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 Family Court, Mumbai was barred by Section 1(2) of The Hindu Marriage Act, 1955. Family Court allowed the Application filed by Appellant-Husband and held the Petition of Respondent-Wife to be not maintainable. However, in Appeal, High Court set aside the order of Family Court.

SC had to first decide on the question whether the Act applies to all Hindus irrespective of their domicile. If the answer twere to be in the affirmative then arguments of Appellant-Husband concerning a change of his domicile would have been rendered unnecessary. SC, however, held the following: Section 1(2) of the Act has an extra-territorial operation in as much as it lays down, the Act, “extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories“; a law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and is saved by Article 245(2) of the Constitution; it does not mean, ta law having extra-territorial operation, which has no nexus at all with India, can be enacted; if the Act were to apply to Hindus irrespective of their domicile – extra-territorial operation of the Act would be extended all over the world without any nexus to India; it is inconceivable, a law should be made by Parliament which has no relationship to India; therefore, the Act will only apply to Hindus outside the territory of India only if such a Hindu is domiciled in the territory of India; any other interpretation would render the word ‘domicile’ in the provision redundant and Legislature ordinarily does not waste its words is an accepted principle of interpretation.

Potentially therefore, Appellant-Husband could have thwarted the litigation initiated by Respondent-Wife before Family Court, Mumbai – if he could have proved, they had acquired a new domicile [domicile of choice]. Since his contention was specifically Australia was his domicile of choice and the circumstances of the cases did not allow raising of alternative pleas, SC did not at all turn on the question of Sweden – whether Sweden was ever revived as a domicile of choice and in fact, whether a domicile of choice can be revived at all.

On evidence, Appellant-Husband, in order to establish Australia as the domicile of choice relied on a residential tenancy agreement for a period of 18 months; the enrollment of his child to a school; and the commencement of proceedings for a permanent resident status. None of these however convinced the SC and the Appeal was thereby dismissed. It is interesting to note, SC held, “in the absence of acquiring citizenship it is difficult to accept, Appellant-Husband and his family decided to reside permanently in Australia”, even though in D.P. Joshi v. The State of Madhya Bharat, AIR 1955 SC 334 it has been well pointed out by a Constitution Bench, “citizenship and domicile represent two different conceptions”.

As stated earlier, the only intention required for a proof of a change of domicile is an intention of permanent residence whereas nationality depends, apart from naturalization, on the place of birth or on parentage. If a residential agreement, enrollment of kids in a school and application for permanent resident status cannot encapsulate an intention of permanent residence or at any rate a “purely fleeting” [Central Bank] intention of residence, it appears difficult to characterize the permanency of the intention at all. Certainly, to negate so easily any intention at the altar of non-acquirement of citizenship is absolutely incorrect. The analysis of SC in this regard appears unsatisfactory.

High Court [2005 (4) MhLJ 688] had noted the following: a domicile in India is a condition precedent for invoking the provisions of the Act; where Wife is a Petitioner and she is domiciled in India, a Petition under the Act can be submitted before a Court within the limits of whose jurisdiction Wife resides; residing at the parents house is satisfactory enough to prove the aforesaid residence; and a Wife’s domicile, instead of being the same as her Husband’s by virtue of only marriage, can be ascertained by reference to the same factors as in the case of any individual capable of having an independent domicile. On this view, it would have been far more easier for SC to dismiss Appellant-Husband’s Appeal. Irrespective of whether or not Appellant-Husband had a change of domicile, it is undoubted Respondent-Wife’s domicile of origin, India, had revived, owing to her disinterest in going back to Australia. This would however have necessarily involved a finding to the effect, a Wife does not follow a Husband’s domicile. A question, SC thought was rendered academic and subsequently was not gone into.