SONDUR GOPAL Vs. SONDUR RAJINI

JUDGEMENT

(1.) Appellant-Husband, aggrieved by the judgment and order dated 11th of April, 2005 passed by the Division Bench of the Bombay High Court in Family Court Appeal No. 11 of 2005 reversing the judgment and order dated 1st of January, 2005 passed by the Family Court, Mumbai at Bandra in Interim Application No. 235 of 2004 in Petition No. A-531 of 2004, is before us with the leave of the Court.

(2.) Shorn of unnecessary details, facts giving rise to the present appeal are that the marriage between the appellant-husband and the respondent-wife took place on 25th of June, 1989 according to the Hindu rites at Bangalore. It was registered under the provision of the Hindu Marriage 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 sponsorship, he had to leave Australia in the second week of January, 2002. The couple and the children shifted to Stockholm and lived in a leased accommodation till October, 2002 during which period the husband had no job. On 2nd of October, 2002, the husband got another job at Sydney and to join the assignment he went there on 18th of December, 2002. But before that on 14th of December, 2002, the wife along with children left for Mumbai. Later, on 31st of January, 2003, the wife and the children went to Australia to join the appellant- husband. However, the wife and the children came back to India on 17th of December, 2003 on a tourist visa whereas the husband stayed back in Sydney. According to the husband, in January, 2004 he was informed by his wife that she did not wish to return to Sydney at all and, according to him, he came back to India and tried to persuade his wife to accompany him back to Sydney. According to the husband, he did not succeed and ultimately the wife filed petition before the Family Court, Bandra inter alia praying for a decree of judicial separation under Section 10 of the Hindu Marriage Act and for custody of the minor children Natasha and Smyan.

(3.) After being served with the notice, the husband appeared before the Family Court and filed an interim application questioning the maintainability of the petition itself. According to the husband, they were original citizens of India but have "acquired citizenship of Sweden in the year 1996-1999 and as citizens of Sweden domiciled in Australia". According to the husband, the wife along with the children "arrived in India on 17th of December, 2003 on a non-extendable tourist visa for a period of six months and they had confirmed air tickets to return to Sydney on 27th of January, 2004" and therefore, "the parties have no domicile in India and, hence, the parties would not be governed by the Hindu Marriage Act". According to the husband, "the parties by accepting the citizenship of Sweden shall be deemed to have given up their domicile of origin, that is, India" and acquired a domicile of choice by the combination of residence and intention of permanent or indefinite residence. The husband has also averred that the domicile of the wife shall be that of the husband and since they have abandoned their domicile of origin and acquired a domicile of choice outside the territories of India, the 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.