Sondur Gopal v. Sondur Rajini (2013 (9) SCALE 372)

Facts of the Case

The case involves a jurisdictional challenge in a marital dispute between a Hindu couple residing abroad, centering on the applicability of Indian law.

• Marriage & Background: The couple married in Bangalore in 1989, registered under the Hindu Marriage Act (HMA). They moved internationally, residing in Sweden, Mumbai, and Sydney, Australia.

• Husband's Claim: The husband (Appellant) argued that they were Swedish citizens domiciled in Australia, and thus the HMA did not apply, making the wife's petition for judicial separation and custody not maintainable.

• Wife's Claim: The wife (Respondent) contended that their domicile of origin (India) was never abandoned. She argued that even if a Swedish domicile was acquired, it was abandoned when they moved to Australia, leading to the revival of their Indian domicile.

• Lower Court Decisions: The Family Court ruled the wife's petition not maintainable. The Bombay High Court reversed this, finding the husband failed to prove the abandonment of Indian domicile and concluding that Indian domicile was revived.

The husband appealed the Bombay High Court's judgment to the Supreme Court.

Issue

Whether the Hindu Marriage Act, 1955, applies to Hindus residing abroad, and whether the wife's petition for judicial separation and child custody was maintainable, depending on the determination of the couple's domicile.

Rule

The Hindu Marriage Act, 1955, applies to Hindus who are domiciled in India. Domicile requires both residence (factum) and the intention to reside permanently or indefinitely (animus manendi). The domicile of origin is tenacious and is retained until a domicile of choice is clearly acquired. Upon the abandonment of a domicile of choice, the domicile of origin revives automatically. [Image illustrating the legal concept of Domicile of Origin (always present), Domicile of Choice (requires Factum + Animus), and the automatic revival of Domicile of Origin upon abandonment of Domicile of Choice]

Held

The Supreme Court:

• Necessity of Indian Domicile: Reaffirmed that domicile in India is crucial for the HMA to apply to a Hindu living abroad, aligning with the principles discussed in various High Court judgments (e.g., Harmander Singh v. Mamraj).

• Husband's Failure of Proof: Found that the husband's claim of Australian domicile was unconvincing. His assertions were inconsistent (oscillating between Swedish and Australian domicile) and were undermined by facts like holding temporary visas and not establishing a permanent base.

• Tenacity of Indian Domicile: The husband failed to establish a clear and unequivocal intention to abandon his Indian domicile of origin. The Court emphasized the strong burden of proof required to demonstrate a change of domicile.

• Wife's Domicile: Since the husband's claims were not proven, the Court upheld the High Court's conclusion that the husband failed to negate Indian jurisdiction. As the wife's domicile, even if influenced by the husband's, was not firmly established outside India, Indian domicile was maintained/revived.

The Supreme Court upheld the High Court's decision, ruling that the wife's petition for judicial separation and child custody was maintainable under the Hindu Marriage Act, 1955.

Commentary

The Tenacity and Revival of Domicile of Origin

The Sondur Gopal judgment is highly significant for Non-Resident Indians (NRIs) seeking to dissolve marriages contracted in India. It reinforces two critical principles of private international law concerning domicile:

1. Tenacity of Domicile of Origin: The place where a person is born and acquires their first domicile is extremely hard to shake off. To acquire a domicile of choice in a new country, the intention to live there permanently (animus manendi) must be so strong as to negate any intention of ever returning to the domicile of origin.

2. Automatic Revival: If a person abandons a domicile of choice (e.g., leaving Sweden), but fails to establish a new one (e.g., failing to prove permanent intent in Australia), the domicile of origin (India) automatically revives.

In this case, the husband's lack of permanent status and his shifting claims were insufficient to overcome the tenacity of his Indian domicile, thereby subjecting the marriage to the jurisdiction of the Indian courts under the HMA. This ensures that the rights and obligations arising from a Hindu marriage are protected by Indian law unless the parties have clearly severed their legal link with India.