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TMI Blog2013 (7) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 spon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. As against this, the case set up by the wife is that their domicile of origin is India and that 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 domic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing 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 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 show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further to all those persons who are domiciles of those territories but who are outside the said territories. 10. Yet another decision to which reference has been made is the judgment of the Rajasthan High Court in Varindra Singh and 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 11. Lastly, learned Senior Counsel has placed reliance on a judgment of the Kerala High Court in Vinaya Nair and 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 Sections 1 and 2 of the Act would indicate that so far as the second limb of Section 1(2) of the Act is concerned its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 15. 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 territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 18. 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 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. 19. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... micile of choice. Mr. Muchhala, 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. 22. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wife on 11.11.2003 for getting their permanent resident status in Australia. 27. 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. 28. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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