SONDUR GOPALversusSONDUR RAJINI

                        (2013] 10 S.C.R. 706


A                         SONDUR GOPAL
                                   v.
                           SONDUR RAJINI
                   (Civil Appeal No. 4629 of 2005)
                            JULY 15, 2013
8
               [CHANDRAMAULI KR. PRASAD AND
                    V. GOPALA GOWDA, JJ.]

       Hindu Marriage Act, 1955 - ss.1(2), 2(1) and 10 - Extent
C and applicability of the Act - Extra-territorial operation - Wife's
  petition for judicial separation and custody of children -
  Maintainability of - Challenged by husband on ground that the
  parties had no domicile in India and, hence, were not
  governed by the Act - Held: The Act has extra-territorial
D operation and applies to Hindus domiciled in India even if they
  reside outside India - If the requirement of domicile in India
  is omitted a/together, the Act shall have no nexus with India
  which shall render the Act vulnerable on the ground that
  extra-territorial operation has no nexus with India - Domicile
E of origin prevails until not only another domicile is acquired
  but it must manifest intention of abandoning the domicile of
  origin - Unless proved, there is presumption against the
  change of domicile - Therefore, the person who alleges it has ·
  to prove that - Intention is always lodged in the mind, which
F can be inferred from any act, event or circumstance in the life
  of such person - On facts, no material to endorse the
  husband's claim of being domicile of Australia - The husband
  or for that matter, the wife and the children did not acquire
  Australian citizenship - The claim that the husband desired
G to permanently reside in Australia, in the face of the material
  available, can only be termed as a dream - It does not
  establish his intention to reside there permanently - Further,
  there is no whisper at all as to how and in what manner the
  husband had abandoned the domicile of origin - The
H                                706
         SONDUR GOPAL v. SONDUR RAJINI                     707


husband continued to have the domicile of origin i.e. India -      A
Both the husband and wife being domicile of India, were
covered by the provisions of the Act - Petition filed by wife,
therefore, was maintainable - Constitution of India, 1950 - Art.
245(2).                                                                 •
                                                                   B
     Private International Law - Domicile - Kinds of - Domicile
of origin and domicile of choice - Discussed.

    The respondent-wife filed petition before the Family
Court inter alia praying for decree of judicial separation
from appellant-husband under Section 10 of the Hindu C
Marriage Act, 1955 and custody of their two minor'
children.
      The appellant-husband filed interim application
questioning the maintainability of the petition on ground          o
that the parties had no domicile in India and, hence, were
not governed by the Hindu Marriage Act. The husband
pleaded that the parties were citizens of Sweden
presently domiciled in Australia which was their domicile
of choice and having abandoned the domicile of origin              E
i.e. India, the jurisdiction of the Family Court, Mumbai was
barred by the: pr1>visions of Section 1(2) of the Hindu
Marriage Act.

     The Family Court allowed the application ofappellant-
                                                           F
husband and held the petition of respondent-wife not
maintainable. In appeal, the High Court set aside the
order of the Family Court and held the petition filed by
the respondent-wife to be maintainable. The High Court
held that the husband had miserably failed to establish G
that he ever abandoned Indian domicile and/or intended
to acquire domicile of his choice and even assuming that
the '1usba~~'~ad ,~baodoned his domicile of origin and .
ac~ired d~~~cile o~ ~~eden along with citizens.hip, he                   I .
                                                                       . j   .

abandoned ·the domicile of Sweden when he shifted to
                                                                   H
    708      SUPREME COURT REPORTS            [2013) 10 S.C.R.


A Australia and in this way the domicile of India got revived.
  The order passed by the High Court was challenged
  before this Court.
          Dismissing the appeal, the Court
B      HELD: 1. From a plain reading of Section 1(2) of the
  Hindu Marriage Act, 1955, it is evident that it has extra-
  territorial operation. A law which has extra territorial .
  operation cannot directly be enforced in another State but
  such a law is not invalid and saved by Article 245 (2) of
C the CQnstitution of India. Article 245(2) provides that no
  law made by Parliament shall be deemed to be invalid on
  the ground that it would have extra-territorial operation.
  But this does not mean that law having extra-territorial
  operation can be enacted which has '110 nexus at all with
D India. Unless such contingency exists, the Parliament
  shall be incompetent to make a law having extra-territorial
  operation. [Para 13] [719-F-H; 720-A-B]
      Mis.Electronics Corporation of India Ltd. v.
E Commissioner of Income Tax & Anr. 1989 Supp (2) SCC
  642: 1989 (2) SCR 994 - relied on.
         2. From Section 1(2) of the Act, it is evident that the
    Act extends to the Hindus of whole of India except the
F State of Jammu and Kashmir and also applies to Hindus
    domiciled in India who are outside the said territory. In
    short, the Act will apply to Hindus domiciled in India even
  · if they reside outside India. If the requirement of domicile
    in India is omitted altogether, the Act shall have no nexus
G with India which shall render the Act vulnerable on the
    ground that extra-territorial operation has no nexus with
    India. This extra-territorial operation of law is saved not
    because of nexus with Hindus but Hindus domiciled in
    India. [Para 14] (720-E-G]
H
         SONDUR GOPAL v. SONDUR RAJINI                     709


     3. To say that the Act applies to Hindus irrespective        A
of their domicile extends the extra-territorial operation of
the Act all over the world without any nexus, which
interpretation if approved, would make such provision
invalid. Further, this will render the words "domiciled"
in Section 1(2) of the Act redundant. Legislature ordinarily      B
does not waste its words is an accepted principle of
interpretation. Any other interpretation would render the
word 'domicile' redundant. [Para 16) [721-F-H; 722-A]

     Prem Singh v. Sm.Dulan Bai & Anr. AIR 1973 Cal. 425;         c
Varindra Singh & Anr. v. State of Rajasthan RLW 2005(3) Raj.
1791 and Vinaya Nair & Anr. v. Corporation of Kochi AIR 2006
Ker. 275 - overruled.
    Nitaben v. Dhirendra Chandrakant Shukla & Anr. I (1984)
D.M.C.252 - referred to.                                          0

     4. Section 2(1) of the Hindu Marriage Act, 1955
provides for application of the Act. This section
contemplates application of the Act to Hindu by religion
in any of its forms or Hindu within the extended meaning          E
i.e. Buddhist, Jaina or Sikh and', in fact, applies to all such
persons domiciled in the country who are not Muslims,
Christians, Parsi or Jew, unless it is proved that such
persons are not governed by the Act under any custom
or usage~ Therefore, Section 2 will apply to Hindus when          F
the Act extends to that area in terms of Section 1 of the
Act Therefore, the Act will apply to Hindu outside the
territory of India only if such a Hindu is domiciled in the
territory.of India. [Paras 19, 20) (722-G; 723-C-E]
                                                                  G
    5. It is specific case of the appellant that he is a
Swedish citizen domiciled in Australia and it is the
Australian courts which shall have jurisdiction in the
matter. In order to succeed, the appellant has to establish
that he is a domicile of Australia and, he cannot be              H
    710     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A allowed to make out a third case that in case it is not
  proved that he is a domicile of Australia, his earlier
  domicile of choice, that is Sweden, is revived. In certain
  contingency, law permits raising of alternative plea but
  the facts of the present case does not permit the husband
B to take this course. The husband in his evidence has
  stated that at the time of marriage in 1989, -he was a
  domicile of Sweden, but it is not his case that he shall be
  governed by the Swedish law or Swedish courts will have
  jurisdiction. From the aforesaid, it is evident that the
c appellant does not claim to be the domicile of Sweden but
  claims to be the domicile of Australia and, therefore, the
  only question which requires consideration is as to
  whether Australia is the husband's domicile of choice.
  [Paras 22, 24, 25] [724-D-F; 725-C, E]
D
       6. Domicile are of three kinds, viz. domicile of origin,
  the domicile by operation of law and the domicile of
  choice. The present case concerns only with the domicile
  of origin and domicile of choice. Domicile of origin is not
E necessarily the place of birth. The birth of a child at a
  place during temporary absence of the parents from their
  domicile will not make the place of birth as the domicile
  of the child. In domicile of choice one is abandoned and
  another domicile is acquired but for that, the acquisition
F of another domicile is not sufficient. Domicile of origin
  prevails until not only another domicile is acquired but
  it must manifest intention of abandoniQg the domicile of
  origin. [Para 26] [725-F-G]
      7 .1. In order to establish that Australia is their
G domicile of choice, the husband has relied on their
  residential tenancy agreement dated 25.01.2003 for
  period of 18 months; enrollment of one child in Warrawee
  Public School in April,2003; commencement of
  proceedings for grant of permanent resident status in
H Australia during October-November, 2003; and
          SONDUR GOPAL v. SONDUR RAJINI                     711


 submission of application by the husband and wife on             A
 11.11.2003 for getting their permanent resident status in
 Australia. [Para 26] [725-H; 726-A-B]
       7.2. The right to change the domicile of birth is
  available to any person not legally dependant and such          8
, a, person can acquire domicile of choice. It is done by
- residing in the country of choice with intention of
  continuing to reside there indefinitely. Unless proved,
  there is presumption against the change of domicile.
  Therefore, the person who alleges it has to prove that.         c
  Intention is always lodged in the mind, which can be
  inferred from any act, event or circumstance in the life of
  such person. Residence, for a long period, is an evidence
  of such an intention so also the change of nationality.
  [Para 27) [726-C-D]                                             D
        7.3. In the aforesaid background, when one
   considers the husband's claim of being domicile of
   Australia, no material is found to endorse this plea. The
   residential tenancy agreement relied upon by the
   husband is only for 18 months which cannot be termed E
   for a long period. Admittedly, the husband or for that
   matter, the wife and the children have not acquired the
• Australian citizenship. In the absence thereof, it is difficult
   to accept that they intended to reside permanently in
. Australia. The claim that the husband desired to F
· permanently reside in Australia, in the face of the material
 · available, can only be termed as a dream. It does not
   establish his intention to reside there permanently.
  ,Husband has admitted that his visa was nothing but a
   ~·long term permit" and "not a domicile document". Not G
  only this, there is no whisper at all as to how and in what
   manner the husband had abandoned the domicile of
   origin. In the face of it, it is difficult to accept the case of
   the husband that he is domiciled in Australia and he shall
                                                                    H
    712       SUPREME COURT REPORTS              [2013] 10 S.C.R.


A continue to be the domicile of origin i.e. India. Both the
  husband and wife are domicile of India and, hence, shall
  be covered by the provisions of the Hindu Marriage Act,
  1955. [Para 28] [726-E-H; 727-B]

B                         Case Law Reference:
          AIR 1973 Cal. 425        overruled         Para 8, 16
          (1984) D.M.C.252         referred to       Para 9, 17
          2005(3) Raj. 1791        overruled         Para 10, 18
c
          AIR 2006 Ker. 275        overruled         Para 11
          1989 (2) SCR 994         relied on         Para 13
      CIVIL APPELLATE JURISDICTION: Civil Appeal No.
D 4629 of 2005.
         From the Judgment & Order dated 11.04.2005 of the High
    Cour of Judicature at Bombay in Family Court Appeal No. 11
    of 2005.
E                                 WITH
    C.A. No. 487 of 2007.

       V. Giri, Y.H. Muchhala, Huzefa Ahmadi, Liz Mathew, M.F.
  Philip, Ejaz Maqbool, Shalini Prasad, Mrigank Prabhakar,
F Tanima Kishore, Rohan Sharma for the appearing parties.

          The Judgment of the Court was delivered by

          CHANDRAMAULI KR. PRASAD, J.
G CIVIL APPEAL N0.4629 OF 2005

       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
H 2005 reversing the judgment and order dated 1st of January,
          SONDUR GOPAL v. SONDUR RAJINI                      713
           [CHANDRAMAULI KR. PRASAD, J.]
2005 passed by the Family Court, Mumbai at Sandra in Interim        A
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- 8
  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 c
. 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 D
  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 E
  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
                                                                     F
  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 G
  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.
                                                                    H
    714      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   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
B   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
c   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
D 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
E 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
F 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
G 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
H under .Section 10 of the Hindu Marriage Act and custody of the
          SONDUR GOPAL v. SONDUR RAJINI                         715
           [CHANDRAMAULI KR. PRASAD, J.]
children is not maintainable. According to the husband, he did          A
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               B
husband is that they are citizens of Sweden presently domiciled
in Au$tralia 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.                                C

        4. As against this, the case set up by the wife is that their
  domicile of origin is India and that was never given up or
. abandoned though they acquired the citizenship of Sweden and
  then moved to Australia. According to the wife, even if it is
                                                                        0
  assumed that the husband had acquired domicile in Sweden,
  she never changed her domicile and continued to be domiciled
  in India. The wife has set up another alternative plea. According
  to her, even if it is assumed that she also had acquired domicile
  of Sweden, that was abandoned by both of them when they               E
  shifted to Australia and, therefore, their domicile of origin, that
  is, India got revived. In short, the case of the wife is that both
  she and her husband are ·domiciled in India and, therefore, the
  Family Court in Mumbai has jurisdiction to entertain the petition
  filed by her seeking a decree for judicial separation and
                                                                        F
  custody of the children.

     5. The husband in support of his case filed affidavit of
evidence and he has also been cross-examined by the wife.
According to the husband "even before the marriage he visited
Stockholm, Sweden in Spring, 1985" and "immediately taken               G
in by the extraordinary beauty of the place and warmth and
friendliness of the people". According to the husband, the first
thought which occurred to him was that "Stockholm is the place
where" he ''wanted to live and die". According to his evidence,
at the time of marriage in 1989, he was a domicile of Sweden.           H
    716      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A From this the husband perhaps wants to convey that he
  abandoned the domicile of his birth, that is, India and acquired
  Sweden as the domicile of choice. He went on to say that
  "keeping in mind wife's express desire to be. in English
  speaking country" he "accepted the offer to mov~ to Sydney,
B Australia". His specific evidence is that "parties' herein are
  Swedish citizens, domiciled in Australia", hence, according to
  fhe husband, "only the courts in Australia will have the
  jurisdiction to entertain the petition of this nature". The husband
  has further claimed that "on 5th of April, 2004, the day wife had
c filed the petition" he "had acquired domicile status of Sydney,
  Australia". As regards domicile status on the date of cross-
  examination, that is, 17.11.2004, he insisted to be the domicile
  of Australia. It is an admitted position that the day on which
  husband claimed to be the domicile of Australia, that is,
o 05.04.2004, he was not citizen of that country or had ever its
  citizen but had 457 visa which, according to his own evidence
  "is a long term business permit and it is not a domicile
  documenf'.

E       6. The family court, after taking into consideration the facts
  and circumstances of the case, allowed the application filed by
  the husband and held the petition to be not maintainable. While
  doing so, the family court observed that "it cannot be held" that
  "the husband has never given up his domicile of origin, i.e.,
F India." However, in appeal, the High Court by the impugned
  order has set aside the order of the family court and held the
  petition filed by the wife to be maintainable. While doing so,
  the High Court held that "the husband has miserably failed to
  establish that he ever abandoned Indian domicile and/or
  intended to acquire domicile of his choice". Even assuming that
G the husband had abandoned his domicile of origin and acquired
  domicile of Sweden along with citizenship, according to the
  High Court, he abandoned the domicile of Sweden when he
  shifted to Australia and in this way the domicile of India got
  revived. Relevant portion of the judgment of the High Court in
H this regard reads as follows:
           SONDUR GOPAL v. SONDUR RAJINI                           717
            ~HANDRAMAULI KR. PRASAD. J.]

     "15.4 ......... It is against this factual matrix, we are satisfied   A
     that the respondent has miserably failed to establish that
     he ever abandon Indian domicile and/or intended to
     acquire domicile of his choice.

     16. Even if it is assumed that the respondent had                     8
     abandoned his domicile of origin and acquired domicile
     of Sweden alongwith citizenship in 1997, on his own
     showing the respondent abandoned the domicile of
     Sweden when he shifted to Sydney, Australia. Therefore,
     keeping the case made out by the respondent in view and               C
     our findings in so far as acquisition of Australian domicile
     is concerned, it is clear that the domicile of India got
     revived immediately on his abandoning Swedish
     domicile ...... ."

     7. It is against this order that the husband is before us with        D
the leave of the court.

       8. We have heard Mr. V.Giri, learned Senior Counsel for
 the appellant and Mr. Y.H. Muchhala and Mr.Huzefa Ahmadi,
  learned Senior Counsel on behalf of respondent. Mr. Giri draws           E
. our attention to Section 1 of the Hindu Marriage Act (hereinafter
  to be referred to as 'the Act') and submits that the Act would
  apply only to Hindu domiciled in India. He submits that the
  parties having ceased to be the domicile of India, they shall not
  be governed by the Act Mr. Muchhala joins issue and contends             F
  that the benefit of the Act can be availed of by Hindus in India
  irrespective of their domicile. He submits that there is no direct
  precedent of this Court on this issue but points out that a large
 number of decisions of different High Courts support his
 contention. In this connection, he draws our attention to a               G
 judgment of Calcutta High Court in Prem Singh v. Sm.Dulan
 Bai & Anr. Al R 1973 Cal. 425, relevant portion whereof reads
 as follows:

           "On a fair reading of the above provisions, it seems
     clear from the first section that the Act is in operation in          H
    718       SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A         the whole of India except in the State of Jammu and
          Kashmir and applies also to Hindus, domiciled in the
          territories to which this Act extends, who are outside the
          said territories. This section read with Section 2(1)(a)(b)
          makes it equally clear that as regards the intra-territorial
B         operation of the Act it applies to all Hindus, Buddhists,
          Jains or Sikhs irrespective of the question whether they are
          domiciled in India or not."

         9. Reference has also been made to decision of Gujarat
C High Court in Nitaben v. Dhirendra Chandrakant Shukla & Anr.
    I (1984) D.M.C.252 and our attention has been drawn to the
  . following:

                 "Apparently looking, this argument of Mr. Nanavati is
          attractive. But it would not be forgotten that section 1 of the
D         Act refers to the extension of the Act to the whole of India
          except the State of Jammu and Kashmir and also to the
          territories to which the Act is applicable, and further to all
          those persons who are domiciles of those territories but
          who are outside the said territories."
E
        10. Yet another decision to which reference has been
    made is the judgment of the Rajasthan High Court in Varindra
    Singh & Anr. v. State of Rajasthan RLW2005(3) Raj. 1791.
    Paragraphs 13 and 17 which are relevant read as follows:
F         "13. Clause (a) of Sub-section (1) of Section 2 of the Act
          of 1955 makes the Act of 1955 applicable to all persons
          who are Hindu by religion irrespective of the fact where they
          reside.

G               )()()()()()()()()(


          17. Therefore, Section 2 of the Act of 1955 is very wide
          enough to cover all persons who are Hindu by religion
          irrespective of the fact where they are residing and whether
          they are domiciled in Indian territories or not"
H
                                                           .. J



           SONDUR GOPAL v. SONDUR RAJINI                          719
            [CHANDRAMAULI KR. PRASAD, J.]
     11. Lastly, learned Senior Counsel has placed reliance on          A
a judgment of the Kerala High Court in Vinaya Nair & Anr. v.
Corporation of Kochi AIR 2006 Ker. 275 and our attention has
been drawn to the following passage from Paragraph 6 of the
judgment which reads as follows:
                                                                        B
           "A conjoint reading of Ss. 1 and 2 of the Act would
     indicate that so far as the second limb of S. 1(2) of the
     Act is concerned its intra territorial operation of the Act
     applied to those who reside outside the territories. First
     limb of sub-section (2) of S. 1 and Cls. (a) and (b) of S.2(1)     C
     would make it clear that the Act would apply to Hindus
     reside in India whether they reside outside the territories
     or not."

     12. Rival submission necessitates examination of extent
and applicability of the Act. Section 1(2) of the Act provides          D
for extent of the Act. The same reads as follows:

     "1. Short title and extent.-
     (1)    )()()(                 )()()(            xx
                                                                        E
     (2) It extends to the whole of India except the State of
     Jammu and Kashmir, and applies also to Hindus domiciled
     in the territories to which this Act extends who are outside
     the said territories."
                                                                        F
     13. From a plain reading of Section 1(2) of the Act, it is
evident that it has extra-territorial operation. The general
principle underlying the sovereignty of States is that laws made
by one State cannot have operation in another State. A law
which has extra territorial operation cannot directly be enforced       G
in another State but such a law is not invalid and saved by
Article 245 (2) of the Constitution of India. Article 245(2)
provides that no law made by Parliament shall be deemed to
be invalid on the ground that it would have extra-territorial
operation. But this does not mean that law having extra-territorial     H
    720       SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A operation can be enacted which has no nexus at all with India.
  In our opinion, unless such contingency exists, the Parliament
  shall be incompetent to make a law having extra-territorial
  operation. Reference in this connection can be made to a
  decision of this Court in Mis.Electronics Corporation of India
B Ltd. v. Commissioner of Income Tax & Anr. 1989 Supp (2)
    sec 642 in which it has been held as follows:

                  "9.But the question is whether a nexus with
          something in India is necessary. It seems to us that unless
          such nexus exists Parliament will have no competence to
c         make the law. It will be noted that Article 245(1) empowers
          Parliament to enact law for the whole or any part of the
          territory of India. The provocation for the law must be found
          within India itself. Such a law may have extra-territorial
          operation in order to sub-serve the object, and that object
D         must be related to something in India. It is inconceivable
          that a law should be made by Parliament in India which
          has no relationship with anything in India."

        14. Bearing in mind the principle aforesaid, when we
E consider Section 1(2) of the Act, it is evident that the Act
  extends to the Hindus of whole of India except the State of
  Jammu and Kashmir and also applies to Hindus domiciled in
  India who are outside the said territory. In short, the Act, in our
  opinion, will apply to Hindus domiciled in India even if they
F reside outside India. If the requirement of domicile in India is
  omitted altogether, the Aft shall have no nexus with India which
  shall render the Act vulnerable on the ground that extra-territorial
  operation has no nexus with India. In our opinion, this extra-
  territorial operation of law is saved not because of nexus with
G Hindus but Hindus domiciled in India.

        15. At this stage, it shall be useful to refer to the
    observation made by the High Court in the impugned order
    which is quoted hereunder.
H
         SONDUR GOPAL v. SONDUR RAJINI                             721
          [CHANDRAMAULI KR PRASAD, J.]
            "It is, thus, clear that a condition of a domicile in India,   A
     as contemplated in Section 1(2) of H.M.Act, is necessary
     ingredient to maintain a petition seeking reliefs under the
     H.M.Act. In other words, a wife, who is domiciled and
     residing in India when she presents a petition, seeking
     reliefs under H.M.Act, her petition would be maintainable             B
     in the territories of India and in the Court within the local
     limits of whose ordinary civil jurisdiction she resides."

      16. Now, we revert to the various decisions of the High
Courts relied on by the Senior Counsel for the respondent-wife;            C
the first in sequence is the decision of Calcutta High Court in
the case of Prem Singh (supra}. In this case, the husband
submitted an application for restitution of conjugal rights inter
alia pleading that he had married his wife according to Hindu
rites in India. After the marriage, they continued to live as
husband and wife and a daughter was born. The grievance of                 D
the husband was that the wife had failed to return to the
matrimonial home which made him to file an application for
restitution of conjugal rights. The trial court noticed that the
 husband was a Nepali and he was not a domicile in India and
therefore, he could not have invoked the provisions of the Act.            E
While interpreting Sections 1(1} and 2(1} of the Act, the Court
 held that as regards the intra-territorial operation of the Act, it
 is clear that it applies to Hindus, Buddhists, Jaina and Sikhs
 irrespective of the question as to whether they are domiciled
 in India or not. Having given our most anxious consideration,             F
we are unable to endorse the view of the Calcutta High Court
in such a wide term. If this view is accepted, a Hindu living
anywhere in the world, can invoke the jurisdiction of the Courts
in India in regard to the matters covered under the Act. To say
that it applies to Hindus irrespective of their domicile extends           G
the extra-territorial operation of the Act all over the world without
any nexus which interpretation if approved, would make such
provision invalid. Further, this will render the words "domiciled"
in Section 1(2) of the Act redundant. Legislature ordinarily does
not waste its words is an accepted principle of interpretation.            H
    722       SUPREME COURT REPORTS                  [2013] 10 S.C.R.


A   Any other interpretation would render the word 'domicile'
    redundant. We do not find any compelling reason to charter this
    course. Therefore, in our opinion, the decision of the Calcutta
    High Court taking a view that the provisions of the Act would
    apply to a Hindu whether domiciled in the territory of India or
s   not does not lay down the law correctly. One may concede to
    the applicability of the Act if one of the parties is Hindu of Indian
    domicile and the other party a Hindu volunteering to be
    governed by the Act.

       17. As regards the passage from the judgment of the
C .Gujarat High Court in Nitaben (Supra} relied on by the wife, it
  does not lay down that the Act applies to all Hindus, whether
  they are domiciled in India or not. In fact, the High Court has
  held that it extends to all those persons who are domiciles of
  India, excluding Jammu and Kashmir.
0
        18. So far as the decision of the Rajasthan High Court in
   Varindra Singh (supra} is concerned, it is true that under
  Section 1(2) of the Act, residence in India is not necessary and
  Section 2 also does not talk about requirement of domicile for
E its application. This is what precisely has been said by the
  Rajasthan High Court in this judgment but, in our opinion, what
  the learned Judge failed to notice is that the application of the
  Act shall come into picture only when the Act extends to that
  area. Hence, in ol.ir opinion, the Rajasthan High Court's
F judgment does not lay down the law correctly. For the same
  reason, in our opinion the judgment of the Kerala High Court
  is erroneous.

     19. Section 2(1) provides for the application of the Act. The
G same reads as follows:

          2. Application of Act.- (1} This Act applies -

          (a} to any person who is a Hindu by religion in any of its
          forms or developments, including a Virashaiva, a Lingayat
H         or a follower of the Brahma, Prarthana or Arya Samaj,
          SONDUR GOPAL v. SONDUR RAJINI                723
           ~HANDRAMAULI KR. PRASAD, J.]
     (b) to any person who is a Buddhist, Jaina or Sikh by           A
     religion, and

     (c) to any other person domiciled in the territories to which
     this Act extends who is not a Muslim, Christian, Parsi or
     Jew by religion, unless it is proved that any such person       B
     would not have been governed by the Hindu law or by any
     custom or usage as part of that law in respect of any of
     the matters dealt with herein if this Act had not been
     passed."

     20. This section contemplates application of the Act to         C
Hindu by religion in any of its forms or Hindu within the extended
meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all
such persons domiciled in the country who are not Muslims,
Christians, Parsi or Jew, unless it is proved that such persons
are not governed by the Act under any custom or usage.               D
Therefore, we are of the opinion that Section 2 will apply to
Hindus when the Act extends to that area in terms of Section 1
of the Act. Therefore, in our considered opinion, the Act will
apply to Hindu outside the territory of India only if such a Hindu
is domiciled in the territory of India.                              E

     21. There is not much dispute that the wife at the time of
presentation of the petition was resident of India. In order to
defeat the petition on the ground of maintainability, Mr. Giri
submits that the wife will follow the domicile of the husband and    F
when Sweden has become the domicile of choice, the domicile
of origin i.e. India has come to an end. According to the
husband, the parties had India as the domicile of origin, but in
1987 the husband moved to Sweden with an intention to reside
there permanently and acquired the Swedish domicile as his           G
domicile of choice. After the marriage, the wife also moved to
Sweden to reside permanently there and both of them acquired
Swedish citizenship in 1996-97 thereby giving up their domicile
of origin and embracing Sweden as their domicile of choice.
Further, on account of ex~ress desire of the wife to move to         H
    724       SUPREME COURT REPORTS                    [2013) 10 S.C.R.


A an English speaking country, the family moved to Australia in
  June, 1999 with an intention to reside there permanently and
  initiated the process to acquire the permanent resident status
  in Australia. On these facts, the husband intends to contend that
  they have acquired Swedish domicile as domicile of choice.
B Mr. Muchhala, however, submits that the specific case of the
  husband is that he is a Swedish citizen domiciled in Australia
  and, therefore, the appellant cannot be allowed to contend that
  he is domiciled in Sweden. He points out that the husband is
  making this attempt knowing very well that his claim of being
c the domicile of Australia is not worthy of acceptance and in that
  contingency to contend that the earlier domicile of choice, i.e.
  Sweden has revived.

       22. We have bestowed our consideration to ttie rival
  submission and we find substance in the submission of Mr.
0
  Muchhala. In certain contingency, law permits raising of
  alternative plea but the facts of the present case does not
  permit the husband to take this course. It is specific case of
  the appellant that he is a Swedish citizen domiciled in Australia
E and it is the Australian courts which shall have jurisdiction in
  the matter. In order to succeed, the appellant has to establish
  that he is a domicile of Australia and, in our opinion, he cannot
  be allowed to make out a third case that in case it is not proved
  that he is a domicile of Australia, his earlier domicile of choice,
F that is Sweden, is revived. In this connection, we deem it
  expedient to reproduce the averment made by him in this
  regard:

          "22 ........ ln the instant case, it is submitted that in the year
          1996 the applicant acquired citizenship as well as domicile
G         of Sweden and is presently domiciled in Australia. Thus,
          the Hindu Marriage Act is not applicable to the parties
          herein and the Family Court Mumbai has no jurisdiction to
          proceed in the matter and the petition is not maintainable
          under Section 10 of the Hindu Marriage Act, 1955."
H
         SONDUR GOPAL v. SONDUR RAJINI                         725
          [CHANDRAMAUU KR. PRASAD, J.]
    23. The appellant has further averred that the parties never       A
acquired a third domicile of choice, the same reads as follows:

     "19 ..... ln the instant case, there is no intention to give up
     the domicile of choice namely the Australia domicile and
     nor have the parties acquired a third domicile of choice          8
     or resume the domicile of origin .......... "

     24. Further, the husband in his evidence has stated that
at the time of marriage in 1989, he was a domicile of Sweden,
but it is not his case that he shall be governed by the Swedish
law or Swedish courts will have jurisdiction. His specific             C
evidence in this regard reads as follows:

     "7 ...... as the parties herein are Swedish citizens,
     domiciled in Australia, and hence it is only the Courts in
     Australia that have the jurisdiction to entertain a petition      D
     of this nature ...... ."

   . 25. From the aforesaid, it is evident that the appellant does
not claim to be the domicile of Sweden but claims to be the
domicile of Australia and, therefore, the only question which
                                                                       E
requires our consideration is as to whether Australia is the
husband's domicile of choice.

      26. Domicile are of three kinds, viz. domicile of origin, the
domicile by operation of law and the domicile of choice. In the
present case, we are concerned only with the domicile of origin        F
and domicile of choice. Domicile of origin is not necessarily
the place of birth. The birth of a child at a place during temporary
absence of the parents from their domicile will not make the
place of birth as the domicile of the child. In domicile of choice
one is abandoned and another domicile is acquired but for that,        G
the acquisition of another domicile is not sufficient. Domicile
of origin prevails until not only another domicile is acquired but
it must manifest intention of abandoning the domicile of origin.
In order to establish that Australia is their domicile of choice,
the husband has relied on their residential tenancy agreement          H
    726       SUPREME COURT REPORTS                   [2013) 10 S.C.R.


A dated 25.01.2003 for period of 18 months; enrollment of
  Natasha in Warrawee Public School in April,2003;
  commencement of proceedings for grant of permanent resident
  status in Australia during October-November, 2003; and
  submission of application by the husband and wife on
B 11.11.2003 for getting their permanent resident status in
  Australia.

         27. The right to change the domicile of birth is available
    to any person not legally dependant and such a person can
c   acquire domicile of choice. It is done by residing in the country
    of choice with intention of continuing to reside there indefinitely.
    Unless proved, there is presumption against the change of
    domicile. Therefore, the person who alleges it has to prove that.
    Intention is always lodged in the mind, which can be inferred
0   from any act, event or circumstance in the life of such person.
    Residence, for a long period, is an evidence of such an
    intention so also the change of nationality.

        28. In the aforesaid background, when we consider the
  husband's claim of being domicile of Australia we find no
E material to endorse this plea. The residential tenancy
  agreement is only for 18 months which cannot be termed for a
  long period. Admittedly, the husband or for that matter, the wife
  and the children have not acquired the Australian citizenship.
  In the absence thereof, it is difficult to accept that they intended
F to reside permanently in Australia. The claim that the husband
  desired to permanently reside in Australia, in the face of the
  material available, can only be termed as a dream. It does not
  establish his intention to reside there permanently. Husband has
  admitted that his visa was nothing but a "long term permit" and
G "not a domicile document". Not only this, there is no whisper at
  all as to how and in what manner the husband had abandoned
  the domicile of origin. In the face of it, we find it difficult to accept
  the case of the husband that he is domiciled in Australia and
  he shall continue to be the domicile of origin i.e. India. In view
H
          SONDUR GOPAL v. SONDUR RAJINI                       727
           [CHANDRAMAULI KR. PRASAD, J.]
of our answer that the husband is a domicile of India, the            A
question that the wife shall follow the domicile of husband is
rendered academic. For all these reasons, we are of the
opinion that both the husband and wife are domicile of India
and, hence, shall be covered by the provisions of the Hindu
Marriage Act, 1955. As on fact, we have found that both the           8
husband and wife are domicile of India, and the Act will apply
to them, other contentions raised on behalf of the parties, are
rendered academic and we refrain ourselves to answer those.

      29. In the result, we do not find any merit in the appeal and   c
it is dismissed accordingly but without any order as to costs.

CIVIL APPEAL N0.487 OF 2007

      30. In view of our decision in Civil Appeal No. 4629 of
2005 (Sondur Gopal vs. Sondur Rajini) holding that the petition       D
filed by the appellant for judicial separation and custody-Of the
children is maintainable, we are of the opinion that the writ
petition filed by the respondent for somewhat similar relief is
rendered infructuous. On this ground alone, we allow this appeal
and dismiss the writ petition filed by the respondent.                E

 8.8.8.                                    Appeals disposed of.