2013 (7) TMI 1165 - SC - Indian Laws

Summary

Issues Involved:
1. Maintainability of the petition under the Hindu Marriage Act.
2. Domicile of the parties and its impact on the jurisdiction of the Family Court.
3. Applicability of the Hindu Marriage Act to Hindus domiciled outside India.

Summary:

1. Maintainability of the Petition:
The husband challenged the maintainability of the wife's petition for judicial separation and custody of children u/s 10 of the Hindu Marriage Act, arguing that they were Swedish citizens domiciled in Australia, thus the Act did not apply to them. The Family Court upheld this view, but the High Court reversed it, holding that the husband failed to establish abandonment of Indian domicile.

2. Domicile of the Parties:
The husband claimed they had acquired Swedish domicile and later Australian domicile, abandoning their Indian domicile. The wife contended that their Indian domicile was never abandoned or was revived upon moving to Australia. The Supreme Court examined the evidence, including residential agreements and the husband's visa status, and concluded that the husband did not prove an intention to permanently reside in Australia. Thus, the parties retained their Indian domicile.

3. Applicability of the Hindu Marriage Act:
The Supreme Court analyzed Section 1(2) of the Act, which extends to Hindus domiciled in India even if residing outside India. The Court emphasized that the Act's extra-territorial operation is valid only if there is a nexus with India, which is ensured by the domicile requirement. The Court rejected the broader interpretations of the Act's applicability by various High Courts, affirming that it applies to Hindus domiciled in India.

Conclusion:
The Supreme Court dismissed the appeal, affirming that both parties were domiciled in India and thus governed by the Hindu Marriage Act. Consequently, the wife's petition was maintainable. The related civil appeal was allowed, rendering the husband's writ petition infructuous.