CASE ANALYSIS OF :

Sondur Gopal vs Sondur Rajini on 15 July, 2013

Bench: Chandramauli Kr. Prasad, V. Gopala Gowda

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4629 OF 2005

SONDUR GOPAL APPELLANT

VERSUS
SONDUR RAJINI RESPONDENT
Facts of the case
The Husband (Appellant) and the Wife (Respondent) got married in the year 1989 and left for
Sweden. They were granted Sweden citizenship in the year 1997. In the same year, they moved
to Mumbai and in 1999, they shifted to Sydney and stayed there for a period of about 3 years.
After losing his job, the Husband moved back to Sweden with his family in January, 2002. On
getting a new job in Sydney, the couple along with their children stayed in Australia from
January to December, 2003. The Wife, along with the children, then came back to India refused
to return to Sydney.
The Wife filed a Petition before the Family Court, Bandra seeking judicial separation and
custody of the children. The Husband questioned the maintainability of the Petition and
contended that the couple was a citizen of Sweden, domiciled in Australia, which was their
domicile of choice and hence, the jurisdiction of any of the Indian Courts was barred by virtue of
Section 1(2) of The Hindu Marriage Act, 1955. The Family Court on the same grounds and
rationale held that the Petition of the Wife was not maintainable. Aggrieved by the decision of
the Family Court, the Wife further filed an appeal in the High Court.

ISSUES INVOLVED
• Whether the Act is applicable to all Hindus from around the world, irrespective of their
domicile.
• Considering the proofs brought by the Husband to the court, whether the Husband can be said
to be domiciled in India .
• When the provisions of the Act can be invoked and when they cease to apply.
RULE OF LAW
• Section 1(2) of The Hindu Marriage Act, 1955 which gives an extra-territorial operation to the
applicability of the Act.
• Section 19 of The Hindu Marriage Act, 1955 which lays down territorial jurisdiction of courts
to entertain petitions with respect to the Act.

ANALYSIS OF THE DECISION OF THE COURT AND RATIONALE

CONTENTIONS OF THE HUSBAND (APPELANT)
The Husband contended that Australia was his ‘domicile of choice’ and proved the same with the
help of1) he had a residential tenancy agreement for 18 months, 2) enrolment of his children to a
school in Australia, and 3) commencement of proceedings for obtaining a permanent resident
status.
CONTENTIONS OF THE WIFE (RESPONDENT)
The Wife contended that merely because she and her husband had acquired Sweden citizenship
or moved to Australia did not mean that they had given up their Indian Domicile. Alternatively,
she also pleaded that even if it was assumed that she had acquired Sweden citizenship, she
abandoned it by moving to Australia, and hence by virtue of the same, her Indian Domicile is
revived. She also contended that Section 19 does not talk about the ‘domicile’ status and the
only requisite for invoking the jurisdiction under Section 19 must be the place of ‘residence’.
The requirement of domicile under Section 19 would be unfair considering most of the Indian
wives have to move along with the husband, wherever he goes.
JUDGEMENT AND RATIONALE
The first thing that the Court decided on was that the Hindu Marriage Act is applicable only to
Hindus who are domiciled within the territory of India. Section 1(2) of the Act has an extra-
territorial operation. It however, would make no sense if the applicability of the Act was so wide
that it could be enacted even when the issue had no nexus with India. It was hence, held that the
Act would have an application beyond the Indian territory only when the necessary party(ies)
have an Indian Domicile. This is the ‘Doctrine of Territorial-Nexus’ which lays down that it is
not necessary that the parties must be physically located within the territories, but that the Act
must have a sufficient territorial connection. Such a law is valid and is saved by Article 245(2) of
the Indian Constitution. With respect to the husband’s argument of his ‘domicile of choice’, the
court held that in the absence of an intention or attempt to acquire citizenship, the court could not
fairly infer that the husband had an intention of residing permanently in Australia. The
Husband’s only contention was that his ‘domicile of choice’ was Australia. Neither the court nor
the husband brought Sweden into question. Going by the decision of the court, it laid down that
it would be difficult to ascertain the intention to reside without an attempt to acquire citizenship;
the author believes that had the Husband contended that he possessed the citizenship of Sweden,
he would have better chances of the decision going in his favour.2 Further, the court held that the
word ‘residence’ is the key word in Section 19, which does not mention the duration or time
period of the act of ‘residing’. The court opined that this would not include temporary residence
without any intention to stay there for a considerable time period. On reading of Sections 1, 2
and 19 of the Act, the court concluded that residence alone would not amount to the
maintainability of the petition; domicile has to be coupled with residence in order to determine
the maintainability of the petition. In the present case, the court held that Section 19(iiia) would
be sufficient to attract maintainability of the petition as at the time of filing the petition the Wife
was residing at her parents’ home, which is situated in India. None of the provisions of the Act
state as to when the provisions of the Act can be invoked and when they cease to apply. The
court recognised ‘once competent, always competent’ rule, which meant that if the marriage
has been solemnized as per the provisions of a particular Act, then the Act would continue
to apply for as long as the marriage exists. It is a universally recognised rule that issues
which affect the personal status of a person must continue to be governed by the same
law, irrespective of fac at tors like his change in the citizenship or residence. If this were
not to apply, then the husband would be able to frustrate every petition by the wife by
changing his domicile status leaving the wife with no judicial remedy, which goes against
the basic s The court also laid down that it would be unjust if one party could escape
the petition merely because he/she tructure of our constitution. has changed his domicile
by his/her ‘unilateral decision’. The change of domicile of one party to the petition must
not take away the jurisdiction of the Indian Courts.

JUDICIAL APPROACH ON THE GIVEN ISSUE IN PREVIOUS JUDGMENTS OF

COURTS.
Every person, irrespective of whether or not he has a home, necessarily has a domicile. Every
person acquires domicile of origin by virtue of his birth. It was held in Central Bank of India v.
Ram Narain4 that the domicile of origin prevails until it is voluntarily abandoned by acquiring a
‘domicile of choice’. The proof of ‘domicile of choice’ is the intention of permanently residing
in that particular place. It was held in Kedar Pandey v. Narain Bikram Shah5 that the intention to
reside in the new place on a permanent basis, rather than a mere temporary basis, is required for
a change of domicile. Louis De Raedt v. Union of India6 further laid down that mere proof of
residence would not suffice as well; the intention of establishing a permanent home is necessary.
There are two major elements required to prove a ‘domicile of choice’- factum and animus.
Factum denotes the physical presence of the person at a particular place, while Animus denotes
the intention to reside at that place permanently. Moreover, domicile of origin is never
permanently abandoned on the acquisition of the domicile of choice. It is merely placed in
abeyance and revives the moment the domicile of choice is given up.
VALIDITY OF DIVORCE DECREES
It was held by the Supreme Court in Y. Narasimha Rao v. Y. Venkata Lakshmi9 that even when
a foreign court adjudicates on a matter, it must do so in accordance with the matrimonial laws
that the parties have been married under. Further, in Veena Kalia v Jatinder Nath Kalia10, the
Court of Canada granted a decree of divorce to the couple, which was not in accordance with the
Indian Law. The Supreme Court of India held that such a divorce decree will not be binding
considering that it was not in accordance with the Indian Law. There has also been a stance
taken in Neerja Saraph v. Jayant Saraph11 where the NRI husband seeked to obtain a divorce
with his wife residing in India in a foreign court. It was held that no foreign court can annul a
marriage between a non-resident Indian and an Indian woman if the marriage has been
solemnised in India.12Similarly in Satya v Teja Singh13, both the husband and wife got married
in India and also resided in India. The husband after some time, got a job in the US and settled
there. He seeked to obtain a divorce from the Nevada Court. It was held that such a decree would
have no recognition in India because the Nevada Court has no jurisdiction to issue the same.
In Kashmira Kale v. Kishore Kumar Mohan Kale , the couple was domiciled in the US
and had obtained a divorce decree from the US. The matter came in front of the
Bombay High Court whether the US Divorce Decree could be considered a valid one or
not. The Court held that Section 1(2) of the Act applies to all Hindus, irrespective of
where they stay. And if the couple is domiciled in another country, and obtains a
divorce decree in the same country will be deemed to be a valid one. The court in under
the provisions of the Act, the decree Electronics Corporation of India Ltd. v.
Commissioner of Income Tax that a territo 15 emphasised on the requirement of domicile
under the Act. It opined rial nexus is necessary for the Indian courts to take jurisdiction
of cases application of the Act is extraterritorial. , The court emphasised Section 19(iv) of
the Act in Dhirendra Chandrakant Shukla 16 . even if the Nitaben v. It opined that the
petitioner can file a petition under the Act if he/she is ‘residing’ in India, regardless of
where the other party is residing.
SUGGESTIONS FOR IMPROVEMENTS OF THE CURRENT SITUATION ON ISSUE -
SUGGESTIONS WITH RESPECT TO SECTION 19 IN SPECIFIC
There is a lot of debate regarding the applicability of Section 19 of the Act. Over the years, in
various judgements, the intention of the legislature with respect to the Article has been
differently interpreted. There are two major views that are interpreted: 1) Section 19 repeatedly
states the word ‘reside’ and does not prescribe any such duration for the same, and 2) a conjoint
reading of clauses (ii), (iii), (iiia) and (iv) of Section 19 would show that the legislature implied
an intention of permanently staying at a place, instead of mere temporary residence. Further,
Section 1(2) clearly gives the applicability of the Act and it mandates an Indian Domicile for the
same, instead of residence. For any Act to be uniformly applied across states, the vagueness and
ambiguity of it must be reduced by making it as explicit as possible and by reducing the chances
of varied interpretations. An amendment must be introduced to the effect that it clearly states as
to how far the application of the ‘Indian Domicile’ is applicable under the section. The author
believes that the reasoning given in Sondur Gopal v. Sondur Rajini that even if an Act is given
an extra-territorial applicability, the cases that the Indian Courts take cognizance of must have
some territorial nexus with India is absolutely correct. It makes no sense if the Indian Courts
were to take cognizance of cases from all over the world on grounds that the parties concerned
belong to the Hindu religion. Hence, the requirement of an Indian Domicile is a necessity within
the provisions of Section 19, and the section must be given an amendment clarifying the same.
With the Indian society making progress from a highly male biased society to somewhat gender
neutral (though there are still miles to achieve, but we also have come a long way from the year
1955), it is inevitable that the laws need some alteration as well from time to time. Section 19
uplifted the women by inserting clause (iiia) which stated that if the wife was a petitioner, she
could file a petition within the jurisdiction of the court she is residing in. However, the author
believes that with changing times, the clause instead of only giving this right to women must
give this right to petitioners in general, be it the wife or the husband. This would be a general
neutral provision, completely harmless in nature and would also take the convenience of the
husband into account.
SUGGESTIONS WITH RESPECT TO DECISION IN SONDUR GOPAL V. SUNDUR
RAJINI
The decision in Sondur Gopal v. Sondur Rajini is problematic in the sense that if a person cannot
prove his intention to reside in a place by his residential tenancy agreement, or the enrolment of
children to a school in that place, or a permanent resident status, it will become very difficult for
people to prove intention to reside. Further, it is highly erroneous for the court to state that it was
difficult to ascertain intention to reside in the absence of attempt or intention to acquire
citizenship. This is especially erroneous because citizenship and residence are two completely
different concepts. It was also held in D.P. Joshi v. The State of Madhya Bharat17 that
“citizenship and domicile represent two different conceptions.” The following important points
were laid down in Sondur Rajini v. Sondur Gopal18: 1) an Indian Domicile is a prerequisite for
application of the Act, 2) if the Wife is a Petitioner and is domiciled in India, the petition is
maintainable even if the Husband is domiciled elsewhere; 3) Wife residing at her parents’ house
is a satisfactory condition to prove her residence; and 4) Wife’s domicile is not necessarily the
same as her Husband’s. It can be determined as is done usually in the case of any individual
capable of having an independent domicile. It would have been way easier to declare
maintainability of the petition on these grounds, which also seem to be valid and logical
grounds for the same. The rationale behind providing maintainability to the petition is
highly erroneous. 19
To conclude, the author believes that the final decision of the court of granting
maintainability to the petition was correct however, the rationale behind the same was
not. The interpretation of Section 19 with respect to requirement of an Indian Domicile
and the entire rationale behind is extremely appropriate, and the legislature must
incorporate the same by way of an amendment so as to reduce chances of varied
interpretation by courts in future decisions. it Lastly, the courts must adopt a reasonable un
iform practice of determining whether a ‘domicile of choice’ has been acquired unlike
what has been done in Sondur Gopal v. Sondur Rajini.