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 the law assigns a domicile of origin to every person at birth.  This prevails until a new domicile has been acquired – the domicile of choice. (See, 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 that 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 of temporary purpose, but with a present intention of making it his permanent home. (See, Kedar Pandey v. Narain Bikram Shah, AIR 1966 SC 160). Residence alone, unaccompanied by this state of mind, is insufficient proof. [See, Lous De Raedt and Ors. 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 that 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 the Hon’ble Supreme Court of India in Sondur Rajini v. Sondur Gopal [(2013) 7 SCC 426]. The brief facts of the case were these: The Appellant-Husband and the 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. The 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, the Appellant-Husband got another job in Sydney. January to December 2003 the couple stayed on in Australia with their two kids. However, in December, the Wife, with the kids, came back to India on a tourist visa and refused to return to Sydney. Soon after, the Respondent-Wife filed a Petition before the Family Court, Bandra praying, amongst other things, a decree of judicial separation and custody of the children. The Appellant-Husband, in turn, filed an interim application questioning the maintainability of the Petition itself. The Husband contended that he and his 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 the Family Court, Mumbai was barred by the provisions of Section 1(2) of the Hindu Marriage Act, 1955 (the “Act”). The Family Court allowed the application filed by the Husband and held the Petition of the Respondent-Wife to be not maintainable. However, in appeal, the High Court by the impugned order set aside the order of the Family Court.

The SC had to first decide on the question whether the Act applies to all Hindus irrespective of their domicile. If the answer to that question were to be in the affirmative then the arguments of the Appellant-Husband concerning a change of his domicile would have been rendered unnecessary. The SC, however, held the following: that, Section 1(2) of the Act has an extra-territorial operation [in as much as it lays down that 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”]; that, 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 of India; that, that however does not mean that a law having extra-territorial operation, which has no nexus at all with India, can be enacted; that, if the Act were to apply to Hindus irrespective of their domicile – the extra-territorial operation of the Act would be extended all over the world without any nexus to India; that, it is inconceivable that a law should be made by the Parliament which has no relationship to India; that, 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; that, any other interpretation would render the word ‘domicile’ in the provision redundant and that, the Legislature ordinarily does not waste its words is an accepted principle of interpretation.

Potentially therefore, the Appellant-Husband could have thwarted the litigation initiated by the Respondent-Wife before the Family Court, Mumbai – if he could have proved that they had acquired a new domicile (a domicile of choice). Since his contention was specifically that Australia was his domicile of choice (and the circumstances of the cases did not allow raising of alternative pleas) the SC did not at all turn on the question of Sweden (eg., 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, the 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 that the SC held that – “in the absence of acquiring citizenship it is difficult to accept that the Appellant-Husband and his family decided to reside permanently in Australia – even though in D.P. Joshi v. The State of Madhya Bharat and Anr., AIR 1955 SC 334 it has been well pointed out by a Constitution Bench that, “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 an intention of residence that is not “purely fleeting” (Central Bank) – 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 the SC in this regard appears unsatisfactory.

The High Court in its impugned judgment, 2005 (4) MhLJ 688 had noted the following: that, a domicile in India is a condition precedent for invoking the provisions of the Act; that, where the 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 the Wife resides; that, residing at the parents house is satisfactory enough to prove the aforesaid residence; and that 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 the SC to dismiss the Appellant-Husband’s appeal. Irrespective of whether or not the Husband had a change of domicile, that the Wife’s domicile of origin (India) had revived, owing to her disinterest in going back to Australia, is undoubted. This would however have necessarily involved a finding to the effect that a Wife does not follow a Husband’s domicile – a question that the SC thought was rendered academic and subsequently was not gone into.