A marriage took place between Appellant(husband) and Respondent(wife) on June 25, 1989, in Bangalore, registered under the Hindu Marriage Act.
The husband moved to Sweden in July 1989, followed by the wife in November 1989.
Two children were born: Natasha (Down syndrome) in 1993, and Smyan in 2001.
The family lived in Sweden until 1997, then moved to Mumbai due to the husband's job, staying until 1999.
Moved to Sydney, Australia, in 1999 on a sponsorship visa, stayed until January 2002, then moved back to Stockholm until October 2002.
The husband got another job in Sydney in October 2002, but the wife and children returned to Mumbai in December 2003.
The Family Court had declared the wife's petition for judicial separation and child custody as not maintainable.
Husband's Argument:
Claimed that they are Swedish citizens domiciled in Australia.
Asserted that they have abandoned their domicile of origin (India) and therefore the Hindu Marriage Act does not apply.
Wife's Argument:
Argued that their domicile of origin (India) was never abandoned.
Even if Swedish domicile was acquired, it was abandoned when they moved to Australia, reviving their Indian domicile.
The High Court, found that the husband failed to prove abandonment of Indian domicile. The Court concluded that the Indian domicile was revived when the Swedish domicile was abandoned.
The Appellant (husband) is now challenging the Bombay High Court's judgment which reversed the Family Court's decision.
ISSUE
The question was whether the Hindu Marriage Act applies to Hindus who are not domiciled in India and whether the petition is maintainable or not.
RULE
Judgment underscores the principle that domicile in India is crucial for applying the Hindu Marriage Act to Hindus residing abroad.
HELD
The application of the Hindu Marriage Act requires domicile in India.
Various High Court judgments (Calcutta, Gujarat, Rajasthan, Kerala) were analysed, discussing the Act's applicability to Hindus outside India.
In Harmander Singh v. Mamraj: The Rajasthan High Court dealt with a similar issue, examining whether the Hindu Marriage Act could be invoked by an Indian Hindu residing abroad. The court concluded that the Act’s applicability extends to those who retain their domicile in India, regardless of temporary residence in another country.
The Supreme Court emphasized that domicile in India is necessary for the Act to apply to a Hindu living abroad.
The husband contended he had domicile in Australia at the time of the wife's petition.
The husband was inconsistent in his claims, oscillating between Swedish and Australian domicile, which weakened his argument.
The husband did not establish a clear abandonment of Indian domicile.
Given the facts, including temporary visas and lack of citizenship in Australia, the husband's claim of Australian domicile was unconvincing.
The wife's domicile, even if influenced by the husband's status, was not firmly established outside India.
The Supreme Court upheld the High Court's decision that the wife's petition for judicial separation and child custody is maintainable under the Hindu Marriage Act, as the husband's domicile claims were not sufficiently proven to negate Indian jurisdiction.
COMMENTARIES NOTE
Similarly, in Varindra Singh v State of Rajasthan, it was held that where petitioners who were Hindus residing in Canada but were married under the Hindu Marriage Actin India, the Registrar cannot refuse registration of their marriage under the Rules framed under the Hindu Marriage Act.
Where a lady, a national and domiciled in Bangladesh, marries a man domiciled in India, it was held that the wife would automatically acquire Indian domicile on her marriage and the Hindu Marriage Actwould be applicable; foreign nationality of a defendant by itself does not preclude an Indian court from proceeding against such foreign national.
When marriage is solemnized under Hindu law, the fact that the husband had migrated to New Jersey and obtained U.S. citizenship was held to be immaterial for purposes of applicability and jurisdiction of the Hindu Marriage Act.