Family Law

Sondur Gopal v. Sondur Rajini

Civil Appeal No. 4629 of 2005

Citation: Civil Appeal No. 4629 of 2005
Court: Supreme Court of India
Date: 15 July 2013
Bench: K.S. Radhakrishnan and Pinaki Chandra Ghose, JJ.

Facts

Sondur Gopal and Sondur Rajini were Hindus and Indian citizens.
They were married in India according to Hindu rites and ceremonies.
After marriage, the couple moved abroad and lived in Sweden for several years.
They later obtained Swedish citizenship.
Matrimonial disputes arose between them.
The wife returned to India with the children and filed a petition before the Family Court at Mumbai under the Hindu Marriage Act, 1955.
The husband objected to the maintainability of the proceedings.
He argued that:
both parties had acquired Swedish citizenship;
they were domiciled in Sweden;
the Hindu Marriage Act did not apply to them;
the Indian Family Court therefore lacked jurisdiction.
The wife contended that:
the parties remained domiciled in India;
their marriage had been solemnised in India under Hindu law;
temporary or prolonged residence abroad did not automatically change their domicile.
The dispute therefore centred on whether the parties had abandoned their Indian domicile and acquired a domicile of choice in Sweden.

Issue

Whether the parties had acquired Swedish domicile so as to exclude the application of the Hindu Marriage Act.
Whether the Indian Family Court had jurisdiction to decide their matrimonial dispute.

Rule

Domicile is different from nationality, citizenship and residence.
A person may:
reside in one country;
hold citizenship of another country;
yet retain domicile in the country regarded as their permanent home.
Every person receives a domicile of origin at birth.
A domicile of origin continues until a new domicile of choice is clearly acquired.
To establish a domicile of choice, two elements must coexist:
actual residence in the new country; and
a clear intention to reside there permanently or indefinitely.
Mere long residence abroad, employment, ownership of property or acquisition of foreign citizenship does not by itself prove abandonment of the domicile of origin.
The person asserting a change of domicile bears the burden of proving it.
Section 1(2) of the Hindu Marriage Act extends the Act to Hindus domiciled in India, including those residing outside India.

Application

The Supreme Court accepted that the parties had lived in Sweden for a considerable period and had acquired Swedish citizenship.
However, it emphasised that citizenship is not the same as domicile.
Citizenship concerns a person’s political relationship with a State, whereas domicile identifies the legal system connected with the person’s permanent home.
Therefore, the acquisition of Swedish citizenship did not automatically establish Swedish domicile.
The Court examined whether the parties had formed a settled intention to abandon India permanently.
Their conduct showed continuing links with India:
their marriage had been solemnised in India under Hindu law;
they retained family and social connections in India;
the wife returned to India with the children;
there was insufficient evidence of an irrevocable intention to make Sweden their permanent home.
The husband relied heavily on the family’s residence and citizenship in Sweden.
The Court held that these facts proved residence but not necessarily the required permanent intention.
A domicile of origin is not displaced lightly.
The evidence must clearly show that the person:
has adopted another country as a permanent home; and
has no present intention of returning to the country of origin.
The husband failed to establish this degree of permanent intention.
The Court also noted that matrimonial rights arise from the personal law under which the marriage was solemnised.
Since the parties were Hindus domiciled in India and married under Hindu law, their matrimonial relationship continued to be governed by the Hindu Marriage Act.
Living abroad could not, by itself, enable one spouse to escape the law governing the marriage.
The Court therefore rejected the contention that the Indian Family Court lacked jurisdiction merely because both parties had acquired foreign citizenship.
The judgment carefully avoided laying down that every Hindu married in India will always remain governed by the HMA regardless of a genuine change of domicile.
Its conclusion was based on the failure to prove that these parties had actually replaced their Indian domicile with a Swedish domicile of choice. (Indian Kanoon)

Conclusion

The Supreme Court held that both spouses continued to be domiciled in India.
Their Swedish citizenship and prolonged residence abroad were insufficient to prove acquisition of Swedish domicile.
The Hindu Marriage Act therefore continued to govern their marriage.
The Indian Family Court had jurisdiction to entertain the wife’s matrimonial petition.
The husband’s objection to jurisdiction was rejected.
Use this case for: foreign citizenship or long residence abroad does not by itself change domicile; permanent intention to abandon the Indian domicile must be clearly proved.