Sondur Gopal v. Sondur Rajini: Exploring the Domicile Conundrum
One of the salient features of the law is its territorial nature, which restricts the ‘long arm’ of justice from extending beyond a state’s territory. Unlike legislation, humans cannot be bound to a geographic location. This often leads to law and society being at odds with one another. People transgress borders and interact in different ways leading to ambiguity in the application of laws, conflicting jurisdictions, and a multiplicity of proceedings. The most obvious example of this is private laws. The juxtaposition of people from different religions, cultures, and countries with a myriad of customs and practices trying to understand and fit into legislation, makes for a potpourri that even the ablest lawyers and jurists have a hard time sorting through. Thus, when a case law can sift through the ambiguity and provide clarity as to how these issues can be addressed, it immediately becomes a landmark. Sondur Gopal v. Sondur Rajni, is one such case. In this case, the Supreme Court relied on the concept of domicile to clear the air around the extraterritorial application of the Hindu Marriage Act, 1955 (“HMA”).
Before this landmark judgment, the application of HMA with respect to foreign individuals was uncertain at best. The courts interpreted sections 1, 2, and 19 to establish their jurisdiction which had widely varying outcomes. The HMA lays down and governs the marriage and related provisions for all Hindus (including Buddhists, Sikhs, and Jains) residing in India.[i] The HMA also contemplates an extraterritorial application within itself, which extends its ambit to include Hindus who are domiciled in foreign nations but residents of India.[ii] The legislative intent seems to be amply clear here, as it seems to forego the concept of “domicile” and applies the act in a blanket fashion to all Hindus residing in the country. Thus, if a Hindu foreign national domiciled in a foreign nation stays in India, for the duration of their stay they would be subject to the HMA. Furthermore, the HMA also grants jurisdiction to the courts if the marriage was solemnized there, if the petitioner or respondent resides there or where the couple last resided together.[iii] This further reduces the reliance on “domicile” to include a foreign international within the Acts ambit, as now even if the marriage took place in India, Indian courts have jurisdiction.
The result of this expansion in the jurisdiction is that it is next to impossible for a Hindu to not be subject to the HMA. The coincidence of an extraordinary string of factors is required to render this Act ultra vires. As was demonstrated in Nitaben v. Dhirendra Chandrakant Shukla, this was possible only if both spouses do not reside in India; both spouses are domiciled outside India and the couple was married outside India.
Other nations give the jurisdiction of private law matters, to the country of domicile as such matters concern the ‘community of the country.’ They sacrifice trying to give their citizens and residents the maximum protection, with the aim of higher efficiency and simpler proceedings. On the opposite end, the law in India attempted to provide the most supportive system by enabling additional grounds for jurisdiction to further widen its ambit in the hopes of achieving some recourse. This well-intentioned step however only leads to a multiplicity of proceedings, uncertainty, ambiguity, and the person sought to be protected is left in limbo.
Sondur Gopal (“husband”) and Sondur Rajni (“wife”) got married. Whereafter, they moved to Sweden, bought a house, had two children, and eventually acquired citizenship in 1997. The couple subsequently sold their house, moved to Mumbai, and then to Australia. The husband eventually lost his job and the family returned to Stockholm. However, he soon managed to secure another position in Sydney and moved there, while the wife along with the children returned to Mumbai. In 2004, the wife informed her husband that she did not wish to return to Sydney. Thereafter, she filed for judicial separation under Section 10 of HMA and for custody of the children, in a family court in Mumbai. The husband then files an interim application questioning the maintainability of the petition on the grounds of domicile.
The Court’s reasoning for departing from this stance and upholding the High Court’s decision of maintaining the wife’s plea was based on a narrower (though apt) reading of sections 1 and 2 of the HMA, which contravened taking all Hindus under HMA’s purview. Thus, the court opined that for a marriage to be governed under the HMA, a nexus in the form of domicile is necessary, in the absence of which it would be ultra vires of the Act. If this viewpoint is acknowledged, a Hindu living anywhere in the world can seek relief from the Indian courts in matters governed by the Act. Thus, the Court did not agree with the prevailing sentiments at the time and instead based its decree on the nexus between those who legislature and those who are “legislate-d”.
The Court in Electronics Corporation of India Ltd. v. Commissioner of Income Tax established that despite the powers afforded to the legislature under Article 245 of the Constitution, a nexus with the nation is paramount. This effectively means that the legislature cannot enact laws on matters which have no relation to India. In Prem Singh v. Sm. Dulari Bai, the Calcutta High Court interpreted section 1 read with section 2(1)(a)(b), and said that the intra-territorial operation of HMA applies to all Hindus, Buddhists, Jains, or Sikhs irrespective of the question whether they are domiciled in India or not. In the present case, the Supreme Court did not endorse the view of the Calcutta High Court as such an interpretation would mean that a Hindu living anywhere in the world, can invoke the jurisdiction of the Courts in India regarding the issues that are covered under the HMA. If interpreted in this way irrespective of their domicile, this would extend the extraterritorial operation of the HMA all over the world without any nexus. The Rajasthan High Court in Varindra Singh v. State of Rajasthan, favored a similar view as the Calcutta High Court, where the court said that Section 2 of the HMA is broad enough to cover all Hindus, regardless of where they live or whether they are domiciled in Indian territory or not. This view has also been rejected by the Supreme Court as it does not lay down the law correctly. The judgment of the Kerala High Court in Vinaya Nair v. Corporation of Kochi also took a similar stance but in the opinion of the Supreme Court it was erroneous.
When faced with the issue of whether a domicile was necessary for falling under the ambit of the HMA, the court replied in the affirmative. At first glance this interpretation of the law seems to be so palpable that it borders on self-evident, there is little need for the Court to justify its reduction of the ambit of the Act as envisaged previously in Prem Singh v. Sm. Dulari Bai. However, this step did have a monumental constitutional impact as it emphatically rejected religion as a nexus to the nation, thereby strengthening its secular nature.
Lacunae in the Judgement
This judgment could have been one of the most instrumental ones in recent memory, had the court not passed up an imperative issue as “academic”. One of the contentions raised by the husband was that the domicile of a husband should be followed by his wife. The Court could have explored similar provisions in other laws and drawn strings of commonalities. Like in the case of Nitaben v. Dhirendra Chandrakant Shukla, the Gujarat High Court while holding that the wife’s domicile follows the husband’s domicile, relied on Section 15 of the Indian Succession Act, 1925, where, upon marriage, a woman acquires the domicile of the husband, if she had not the same domicile before.[iv]
The judicial body in its function as a bulwark against the destitution of rights had the unprecedented opportunity to provide women their due when it comes to rights of self-realization and autonomy. However, the court in Sondur Gopal v. Sondur Rajini, decided to keep mum on this issue and omitted it from their judgment. This not only affects the application of all forms of personal laws on women but also places them in a position subservient to their husband’s. It explicitly robs them of any ability to make decisions and patronizes them as second-tier citizens. Our constitution does not recognize a family or a married couple as a unit (unlike other constitutions which do)[v] but bestows the entirety of our Fundamental Rights on an individual. The court turned a blind eye toward this undisputed fact and amalgamated the existence of a woman with her husband’s. In their hesitance in upsetting the status quo, the court de facto upholds patriarchy over the independence of women. The perverse principle of common law which renders the wife’s domicile dependent on her husband has been abolished in the country of its origin, for the past five decades.[vi] Yet we obstinately refuse to move past this dated practice.
The court should have taken a positive step towards affirming women’s rights by delinking the concept of marriage with that of domicile. Such an approach would enable women to discover their autonomy and shall be in keeping with international standards. Had the court ruled favorably, Indian women would have been entitled to acquire a domicile that was not contingent on their husbands suffering some infirmity.[vii] With the lacunae which exist in this space the court had full jurisdiction to step in by way of issuing guidelines and save the day, but they chose not to.
Although this issue was moot to the Court, even an obiter to this effect could have gone a long way in securing women’s rights and establishing a modicum of balance in the patriarchally tilted institute of marriage. While the court’s silence cannot be interpreted as assent to the contrary, their rejection of the discussion as academic may have done more harm than good for women and their individual rights.
Another noteworthy omission made by the court was when they didn’t consider the question of the revival of a domicile. In the present case, it was argued that Sweden should be revived as the husband’s domicile, which the court passed up as inconsequential. These issues could have had several significant policy implications if probed further.
Sondur Gopal v. Sondur Rajni lays down landmark principles with respect to how a change of domicile may be brought about and the extraterritorial application of HMA. It does away with all the maladies which plagued the previous interpretations and lays down a clear and coherent procedure that is in keeping with the accepted international standard. The court opted for a patriarchal and conservative stance in laying down the law barring which the judgment would be a lot richer and relevant for upcoming cases, had it explored some of the omitted questions. Nevertheless, this case is destined for the annals of Indian jurisprudence.
[i] §2, The Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament, 1955 (India).
[ii] §1(2), The Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament, 1955 (India).
[iii] §19, The Hindu Marriage Act, 1955, No. 25 of 1955, Acts of Parliament, 1955 (India).
[iv] §15, The Indian Succession Act, 1925, No. 39 of 1925, Acts of Parliament, 1925 (India).
[v] Article 41, The Constitution of Ireland, 1937 (Ireland) 1937.
[vi] §1(1), The Domicile and Matrimonial Proceedings Act 1973, Acts of Parliament, 1973(UK).
[vii] §16, The Indian Succession Act, 1925, No. 39 of 1925, Acts of Parliament, 1925 (India).
This blog has been authored by Ichchhit Goswami and Sriharsha Ravi Madichetty, students of Jindal Global Law School, Sonipat.