HMAct and NRIs – Divorce N Jurisdiction

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE

Writ Petition No.1242 of 2010

Ms.Kashmira Kale .. .. Petitioner
v/s.
Mr.Kishorekumar Mohan Kale .. .. Respondent
Ms.Kokila Kalra with Mr.Abhijit Sarawate for Petitioner.
Mr.Sanjiv A. Sawant for Respondent.

CORAM : SMT.ROSHAN DALVI, J.
Date of reserving the order : 24th February, 2010
Date of pronouncing the order : 4th March, 2010

ORDER :

1.Rule, returnable forthwith.

2.This Writ Petition challenges the order of the learned
Judge, Family Court No.4, Pune, dated 14.9.2009 holding
that the Court has jurisdiction to try the Petition for
divorce filed by the Respondent-husband herein, upon
the finding that the parties matrimonial home was at
Aundh, Pune, where the parties last resided together
whilst they lived in India. It is the contention of
the Petitioner-wife that parties are domiciled in the
United States of America (the U.S.) and not in India
and hence are outside the applicability of the Hindu
Marriage Act, 1956 itself.

3. Section 1(2) of the Hindu Marriage Ac t applies only to
Hindus domiciled in the territories to which the Act
applies and the Act applies to the whole of India
except the State of Jammu and Kashmir.

4.It is also the wife s case that the matrimonial home of
the husband has been in the U.S. and hence the Pune
Family Court could have no territorial jurisdiction to
try the Petition.

5.It is further the wife s case that in a Divorce
Petition filed by her in the Court of Oakland, State of
Michigan, U.S., a judgment of divorce has already been
passed on 13th January 2009 and which is conclusive
between the parties with regard to the matter directly
adjudicated upon therein.

6. The applicability of the Act must be first considered
from admitted facts. The parties lived in the U.S.A.
prior to their marriage. The wife took education in
Texas, U.S. since August 2003. The husband was
employed in Onward Technologies Limited Pune, and was
sent on further assignment in the U.S. in February
2000. Thereafter he joined Quantum Consultants Inc. /
Quantech Global Services in November 2001 to further
his career opportunities. That Company merged with
Wipro Technologies in June 2006. The husband served as
an employee of Wipro Technologies in US working onsite
with Nissan Technical Center of America (NTCNA),
Farmington Hills, Michigan, U.S.A.

7.The parties married on 25th December 2005. At the time
of their marriage, they both were residing in the US.
They, of course, married in Mumbai according to Hindu
rites. The husband left for the US on 14th January
2006 within a month of the marriage. The wife joined
him on 22nd January 2006 also within a month of the
marriage. Thereafter they resided in the US until the
wife came to her parents home in Mumbai on 9th
December 2006. When her husband came to India the wife
joined him at Pune, but immediately left the Pune
residence and stayed with her parents in Mumbai. The
husband left for the US on 15th January 2007 and the
wife in February 2007. They lived together in the US
until December 2007. The wife came to India in the
first week of December 2007 and the husband came in the
last week of December 2007. Admittedly, for a single
night the wife lived with the husband in the husband s
parents / brother s house in Pune. The husband aga in
left for America to attend his official duty on 17th
January 2008. The wife joined the husband on 27th
February 2008 in the U.S. and lived with him in the
U.S. until September 2008.

8.The husband has been issued a Green Card. He is,
therefore, required to live at-least 180 days in each
year in the US. The wife has been issued the
Employment Authorisation Document (EAD). She is
permitted to work in the U.S.

9.The wife filed the divorce proceedings in the US in
September 2008. The summons was served upon the husband
on 27th September 2008. He returned to India and then
replied to the Petition on 13th October 2008. He also
filed his own Divorce Petition in the Pune Family Court
under Section 13(1)(i)(a)of the Hindu Marriage Act on
24th October 2008 claiming the jurisdiction of the
Court at Pune, on the ground that the Pune residence
was their matrimonial home and they ordinarily resided there.

10.The parties resided in the US since prior to their
marriage. The husband was sent initially by the
Company in which he served in Pune, India. He left
that Company and and joined another Company in the US
 to further career opportunities . He is, therefore ,
not on deputation in the US from his employment in
India; he has his own independent personal employment
in the US chosen by himself. He has been serving in
such employment since November 2001 i.e. 4 years prior
to his marriage. The wife, who was first a student, is
now allowed to be employed in the US and is
concurrently employed.

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11.The domicile of the parties would require to be seen
based upon the aforesaid facts.

12.Black s Law Dictionary, 8th Edition at page 523 defines
 domicile thus :
domicile. The place at which a person has
been physically present and that the
person regards as home; a person s true,
fixed, principal, and permanent home, to
which that person intends to return and
remain even though currently residing elsewhere.

13.Black s Law Dictionary, 8th Edition at page 524 defines
 domicile of choice thus :
domicile of choice. A domicile
established by physical presence within a
state or territory, coupled with the
intention to make it home.

14.It further defines  matrimonial domicile thus:-
 A domicile that a husband and wife, as a
married couple, have established as their home.

15.Domicile is defined in Advanced Law Lexicon, 3rd
Edition Vol.2 as :
 The place where one has permanent residence to
which, if absent, he has the intention of
returning.
A person is domiciled in that country in which he
either has or is deemed by law to have his
permanent home.
The place at which a person is physically present
and that the person regards as home; a person s
true, fixed, principal, and permanent home, to
which that person intends to return and remain
even though currently residing elsewhere.
It has been described as a  permanent home b y
Lord Cranworth in the case of Whicker v. Hume,
(1858) 7 HLC 124 at 160, the definition which has deceptive simplicity .

16.It is further explained :
That place is properly the domicile of a person
in which he has voluntarily fixed his abode not
for a mere special or temporary purpose but with a
present intention of making it his permanent home.
Domicile of choice is that which the individual
has elected and chosen for himself to displace the
domicile previously obtained.
Domicile by operation of law as the domicile of a
wife following that of the husband is brought
about by reason of marriage.
Domicile connotes the place in which a man has
voluntarily fixed the habitation of himself and
his family, not for a special or temporary
purpose, but with the intention of making a
permanent home until some unexpected event shall
occur to induce him to adopt some other permanent home.
Every person at birth acquires a domicile of
origin. A person may change his domicile by
choice. The domicile of origin is retained until
one of choice is acquired by a combination of
residence and intention. Two things are in fact
essential to constitute a domicile of choice in a
new country, viz., residence in that country
without any animus revertendi to the country of
origin and the intention of making a permanent
home in a new country. Domicile of choice is, in
fact, a mixed question of intention and fact. (AIR
1933 Rang 193).

17.It is easy to see that both the parties have had the
intention of making the US their permanent home even
prior to their marriage. Since their parents reside in
India, they came to India to be married as per Hindu
rites. They immediately left India after the marriage.
They did that twice thereafter once in each succeeding
year. Even on the last return to India, they lived
together at not the husband s house, but his parents /
brother s house in Pune for a single night. Both the
parties left for the US thereafter and remained in the
US until the husband returned after the wife filed her
Divorce Petition and he was served the summons, only to
file his own Petition in India. The parties are
domiciled in the US and not in India.

18.To show that the husband was domiciled in India, the
husband has produced xerox copies of certain documents
as follows:-
(i) Xerox copy of his ration card which was issued on
14.11.2001 prior to his marriage which showed the
earlier ration card issued on 28.11.2000. This was
before or at the time he left for the US on deputation
of the Company in which he then served. Thereafter he
took up a fresh new independent employment in the US
and remained there since.
(ii)Xerox copy of his driving licence on 30.10.1999,
which was obtained prior to his initial departure to the US.
(iii) Voter s card issued on 8.1.1995 even prior to
the above documents.
(iv) Passport which was initially issued on
5.8.1999 prior to his initial departure to the US which
has been extended until 2019.
None of these documents shows his intention to reside
in India permanently; his Green Card shows his
intention to reside in the US.
19.Consequently, it is seen that since the parties were
domiciled in the US, the Hindu Marriage Act cannot
apply to them.

20.The jurisdiction of the Court under Section 19 of
the Hindu Marriage Act would be where the marriage was
solemnised where the Respondent, at the time of the
presentation of the Petition resided or where the
parties to the marriage last resided together. The
aforesaid chronology shows that the parties to the
marriage last resided together in the US, after the
husband left for the US on 17th January 2008 and the
wife joined him on 27th February 2008 until September
2008. In fact, it is the case of the husband in his
Petition that the parties resided for a single night
stay in his parents house at Pune before he left for
his official duties on 17th January 2008. It is also
his case in his Petition that his wife left for the US
on 27th February 2008  and joined the Petitioner (husband) .

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21.Consequently, it is seen that the parties last
resided together in the Michigan, US and, therefore,
that Court has territorial jurisdiction to decide their
divorce dispute.

22.The wife s application for divorce in the US was
filed on 25th September 2008. The husband was served
the notice / summons on 27th September 2008. The
husband was to appear and answer the wife s claim in
the Court at Oakland, Michigan, US on 26th October
2008, before which he came to India and filed his own
Petition on 24th October 2008. The husband filed his
answer to the complaint for divorce in the Court at
Oakland, Michigan, US on 3rd October 2008. He filed a
detailed Written Statement challenging the jurisdiction
of the Court as well as the case of the wife on merits
on 13rd October 2008. Thereafter he filed his own
Divorce Petition No.1020 of 2008 in the Family Court on
24th October 2008. The husband failed to attend the
Court to challenge the jurisdiction or to otherwise
defend the wife s Divorce Petition in Oakland
Michigan, US on the date of hearing.

23.A judgment of divorce came to be passed on 13th
January 2009. The judgment considered the break down of
the marriage and the various properties which were to
be divided between the husband and the wife. It held
that neither party was entitled to spousal support. It
extinguished the rights of either party in any
Insurance Policy. It ordered that each party would have
his or her own separate property clear from the other
and extinguished all the rights of either party in the
properties of the other. The wife has been awarded all
the properties in her name and her Bank Accounts and
all personal properties in her possession as also a sum
of US $ 42119.75 as her share of the funds the husband
transferred from the parties joint account totalling
to USD 87,000/-. The judgment also awarded the husband
various movable properties, including his car,
television, etc. as well as the balance in the joint
account of the parties except for US$ 42119.76. It
granted costs of US$ 2,000/- to the wife.

24.It is seen that the judgment has been passed on
merits of the claim of the wife. It has been passed
after due service of the summons upon the husband. The
husband has accepted the service of the summons and
filed his Written Statement. He thereafter did not
appear but instead came to India and filed his own
Petition within a week of filing his Written Statement
in the US.

25.The husband claims that the judgment of the Court of
Oakland, Michigan, US, is not conclusive as to the
matter adjudicated upon between him and his wife
because it was an ex-parte judgment and hence excluded
under Section 13 of the Civil Procedure Code (CPC).
Section 13 of the CPC runs thus :
 13. When foreign judgment not conclusive. – A
foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the
proceedings to be founded on an incorrect
view of international law or a refusal to
recognise the law of India in cases in which
such law is applicable;
(d) where the proceedings in which the judgment
was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach
of any law in force in India.
It can be seen seen that the judgment is given on the
merits of the case since it has granted the properties
equitably to both the husband and the wife and extinguished
liability as against one another as also the spousal
support. Since the husband did not appear to contest the
claim as shown in his Written Statement, his opposition to
the jurisdiction of the Court could not be considered. It
is, therefore, not a judgment which refuses to recognise
the law of India in cases which the law is applicable.
Upon seeing the admitted facts in paragraphs 1, 3, 4 and 5
of the Petition and the reply of paragraph 6 in the Written
Statement of the husband, it could be discerned that the
parties being resident in the USA that Court would have
jurisdiction. Besides, it could be seen from the
Defendant-husband s Written Statement that the parties
resided together until one week before he filed the Written
Statement. That would be until the end of September 2008.
The jurisdiction of that Court was, therefore, seen not
only from the wife s Petition but also from the husband s
Written Statement, since their home was in Michigan, US,
where they last resided together until the Petition was
filed and until one week prior to the filing of the Written Statement.

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26.The judgment is, therefore, not ex-parte as claimed
by the husband; it is given on the merits of the case.

27.The term  ex-parte has been defined inB lack s La w
Dictionary, 8th Edition at page 616 thus :
 Done or made at the instance and for the
benefit of one party only, and without notice to, or
argument by, any person adversely
interested; of or relating to court action
taken by one party without notice to the other.

28.It is further explained in Advanced Law Lexicon 3rd
Edition Vol.2 at page 1680 thus:
Ex parte. (Lat.) From, of, or by one side, or
one party; hence partial, done for or by one
party; On the application of one party.
From one side.
(On behalf of), a proceeding by one party in
the absence of other. (Wharton).

29.It can, therefore, be seen that if an order is
obtained by a party without notice to the other side,
it would be an ex-parte order or judgment. If a notice
is given and a detailed reply is filed on merits, it is
for the parties to appear before Court, whether or not
the party submits to the jurisdiction of the Court. It
is only upon such appearance that the husband can
challenge the jurisdiction of the Court which he has
sought to do in writing. If he fails to that and
allows an order to be passed, it cannot be an ex-parte
order. In any case, it cannot be an order without
seeing the merits of the case. The order itself read
with the pleadings of the parties would reflect
consideration of merits. The judgment for divorce dated
13th June 2009 is, therefore, conclusive between the parties.

30.The aforesaid admitted chronology and the aforesaid
admitted acts of the parties show :
(a) that the parties were domiciled in the USA; the
Hindu Marriage Act did not apply.
(b) The parties last resided together in Oakland
Michigan, US. The Court in Oakland, Michigan, US had
territorial jurisdiction to try their divorce dispute.
The parties resided for but one night in Pune after
which the parties left for the U.S.A. to reside
together for several more months until they finally
parted. Hence the Pune Court was not the Court in the
jurisdiction of which the parties last resided together.
(c) The judgment of divorce passed by the Court of
Oakland Michigan, US, as a foreign judgment, is
conclusive as to the rights between the parties, it
having been decided on merits after the Written
Statement of the husband was filed and after which he
absented himself and resorted to a second parallel proceeding.

31.The order of the learned Judge of the Family Court,
Pune, concluding that the parties last resided together
in Pune and even though their residence is for a single
day it would give the Court jurisdiction based upon the
judgments cited in the impugned order suffers from a
material irregularity and is required to be interfered
with, since it assumes territorial jurisdiction not
vested in it and since the Act itself does not apply to
the parties consequent upon their domicile in the US
and also because the rights between the parties have
been settled by a judgment conclusive between them. The
husband may be entitled to challenge the judgment in
the Court in which it is pronounced following the due
legal process required in that jurisdiction consequent
upon his absence, if need be. However, the husband
cannot confer jurisdiction on the Court in Pune in
which the parties never resided together for any length
of time in their own matrimonial home, they having had
their matrimonial home in the US.

32.Consequently, the order of the learned Judge, Family
Court No.4, Pune, dated 14.9.2009 is set aside.
Accordingly, the Writ Petition is allowed. Rule is made absolute.

33.There shall be no order as to costs.
This order is stayed for 6 weeks.
(SMT.ROSHAN DALVI, J.)

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