A.K. Menon, J.
1. By the present appeal, the appellant challenges the order dated 14th June, 2013 passed by the Family Court Pune in a petition filed by the Respondent-wife seeking divorce under the provisions of Section 13(1)(ia), 25 and 26 of the Hindu Marriage Act, 1955 (the Act). The impugned order is passed on an application challenging the territorial jurisdiction of the Family Court, Pune to try the petition seeking divorce filed by the Respondent under section 13(1)(ia), 25 and 26 of the Act. While the main petition is filed by the Respondent-wife on 5th November, 2012, the present application is taken out on 22nd March, 2013 seeking framing of a preliminary issue of jurisdiction of the Family Court and dismissal of the petition for want of proper jurisdiction and in the alternative for return of the petition for filing before the appropriate Court in New Jersey, USA.
2. The facts in brief leading to the present application are:-
The Appellant (original Respondent) immigrated to U.S.A. in the year 1994 and obtained a green card. The Appellant became a naturalised US citizen. The marriage between him and the Respondent was solemnized on 21st November, 2002. The marriage was registered on the same day and the Appellant returned to U.S. The Respondent went to U.S.A. in the year 2004. The Respondent immigrated to the U.S. And after her permanent resident card (green card) was processed, she lived with the Appellant in Pennsylvania. In September, 2004, the Respondent took up employment with McCarter Theatre in Princetown, New Jersey.
3. The Respondent started her web and multimedia design business sometime in 2005. In October, 2005, the Appellant and the Respondent jointly purchased another town home in Pennington, New Jersey. In December, 2007, the Respondent acquired US citizenship. In July, 2008, the Appellant and Respondent purchased a new house in Manapalan, NJ, which was the marital home of the parties. On 29th October, 2008 the Respondent gave birth to son Reyansh. The petition discloses that the Respondent came to India along with her son Reyansh to attend marriage of the Respondent's sister in March, 2012. The Appellant also visited India on 13th April, 2012 and returned to U.S. alone. The Respondent did not return to the U.S. thereafter.
4. On 5th November, 2012 the Respondent filed the petition in the Family Court, Pune. On 21st February, 2013 the Appellant-husband filed the proceedings in the Court of New Jersey. It transpires that on 22nd March, 2013 and 16th April, 2013, the Court in New Jersey issued certain directions as regards the custody of the child holding that the New Jersey Court had jurisdiction over the issue of custody of the child while enforcing its child jurisdiction. In the meanwhile, the Appellant filed an application on 22nd March, 2013 challenging the jurisdiction of the Indian Court under section 9-A of the Civil Procedure Code. The Respondent filed her say to the application on 16th April, 2013 and by an order dated 14th June, 2013, the learned Judge of the Family Court, Pune dismissed the application. In the application (Exhibit-23), the Appellant submitted that the Respondent had filed instant proceedings surreptitiously and sought permanent and legal custody of the son Reyansh. That the Appellant was compelled to challenge the territorial jurisdiction of the Family Court on the basis of being U.S. citizen and being domiciled in U.S. prior to the marriage. The Appellant contends that the Respondent went to New Jersey, USA, her matrimonial home since 2004 where she has been gainfully employed as a graphic and web designer. She of her own accord had applied for U.S. citizenship on 8th December, 2007 and that it was done with the intention to reside permanently in U.S. It is also the contended that the Family Court had no jurisdiction to try the petition as the Respondent and the minor son Reyansh were US citizens. It is further contended that the Appellant and the Respondent last resided in New Jersey, U.S. and, therefore, only the Court in New Jersey, U.S.A. will have jurisdiction to entertain and try the petition.
5. The application was opposed by the Respondent vide her reply dated 16th April, 2013 in which the Respondent contended that a person can be a citizen of any country but may be domiciled in some other country and that the application does not consider 19(iii) of the Act or the concept of domicile. Initially the law was that domicile of a wife is that of domicile of the husband. The Respondent states that section 19(iii) of the Act entitles her to file the present petition in Pune. Lastly, she contends that prior to marriage, she was a resident of India. She was married in India as per Hindu religious rites and that after going to U.S. she had returned to Pune, India on 23rd March, 2012. She has filed the petition on 5th November, 2011 i.e. 8 months after returning to India. She contended that after her sisters marriage, she informed the Appellant of her decision to permanently stay at Pune and not go back to U.S. and that she was domiciled in Pune and she had enrolled her son in a school at Pune. The Respondent contends that the Appellant was aware of the fact that she wanted to remain back in Pune ever since she did not return back and were talking to each other and communicating through e-mails. The Appellant was aware that the Respondent had no intention of returning since the Respondent secured admission for the child in a School at Pune and had been talking frequently about this fact. Accordingly, the Respondent opposed the application. The learned Judge of the Family Court vide the impugned order rejected the application. Neither party sought to lead oral evidence.
6. Mr. Muchhala, the learned Senior counsel appearing on behalf of the appellant submitted that the appellant was not domiciled in India at the time of marriage nor he had ever submitted to the provisions of Act and as a consequence, the provisions of the Hindu Marriage Act cannot apply to him. He further submitted that on the basis of material on record, it is submitted that on the date of marriage neither the Appellant or the Respondent were domiciled in India and, therefore, the Hindu Marriage Act cannot apply. Mr. Muchhala pressed into service the concept of intended domicile and submitted that the time when the marriage was fixed the respondent had already contemplated moving to the United States with intention of being domiciled there, pursuant to the marriage. According to Mr. Muchhala once such intention is established she cannot take advantage of the Hindu Marriage Act. He submitted that intended matrimonial home doctrine in Private International Law could govern the residence rights and therefore she would be subjected to law prevalent in United States on the basis of such intended matrimonial home located only in United States.
He relied upon commentary of Cheshire, North and Fawcett Private International Law Fourteenth Edition, Chapter 20 in support of his contention. Thus, according to him the respondent having decided to shift to United States and having demonstrated that she intended to do so by actually following up and obtaining citizenship of the United States by the said aforesaid doctrine applies on all fours and it must be held that she had chosen to be domiciled in United States and therefore voluntarily submitted to the laws of United States. Having chosen to be domiciled in the United States she also gave up her domicile in India. Mr. Muchhala thus submitted that the Court at Pune had no jurisdiction to try the matrimonial dispute. He further submitted that although the respondent had filed a petition in Family Court at Pune on 5th November, 2012 and on 6th November, 2012 exparte order came to be passed against the appellant, it was communicated only to the appellant on 7th November, 2012. The respondent has instituted appropriate proceedings in New Jersey Court on 19th February, 2013 and on 21st February, 2013 the New Jersey Superior Court passed an order in favour of the appellant directed the respondent to bring child Reyansh to the United States of America Embassy or Consulate in Mumbai, India within seven days of execution of the order and to surrender United States Passport and OCI card of the child and that child Reyansh be not removed from custody of the appellant till further orders of New Jersey Court.
7. On 25th February, 2013 the respondent filed an application in the Family Court at Pune seeking protection against the said order. On 1st March, 2013 the Family Court at Pune passed an order and prevented implementation of the order of removal of Reyansh from India. It is thereafter that on 21st March, 2013 that the appellant filed an application challenging the jurisdiction of the Family Court at Pune under section 12 of Hindu Marriage Act read with section 9A read with section 151 of the Code.
8. Meanwhile the respondent did not appear in the Court at United States and in April 2014 certain injunctions were passed against the respondent. At the same time the respondent opposed the appellant's application on the question of jurisdiction which application came to be dismissed on 14th June, 2013 holding that it has jurisdiction to entertain the family dispute.
9. Thereafter, on 14th January, 2014 New Jersey Court passed a final decree of divorce, child custody and distribution of the matrimonial property. It is the appellant's case that when the respondent contends that she has changed her domicile from that of her husband then burden of proof of change of domicile is on the respondent. It is further submitted that the following facts demonstrate that the respondent had no intention to change the domicile :
(a) That the respondent has not surrendered her United States citizenship.
(b) That she has not surrendered United States passport.
(c) That she has not surrendered citizenship of her son Reyansh and that the respondent continued with employment of McCarter Theatre in Princetown, New Jersey even after shifting to India till September 2013 when she finally quit the said job.
It is the appellant's contention that the family Court was obliged to frame and settle the issue indicating issues of law and facts and casting burden of proof upon each of the parties that failure to frame such an issue have resulted in miscarriage of justice. This is gravamen of the appellant's challenge.
10. On intended domicile :
Mr. Muchhala submitted that basic presumption is that at the time of marriage the respondent had chosen to be governed by the law of husband's domicile, namely, United States and this presumption could have been rebutted by the respondent but in the present set of facts it could be inferred that the parties at the time of marriage intended to establish their home in certain country and they did establish a home in the United States in reasonable time. Mr. Muchhala states that test stood completely satisfied in respect of the parties since the respondent-wife proceeded to obtain green card, took up employment and residence in United States, acquired property jointly with appellant in the United States and evidently took up citizenship in United States.
11. In support of his contention Mr. Muchhala sought to place reliance upon the provisions of the Family Court Act, 1984 that section (1) declares that it extends to the whole of India except the State of Jammu and Kashmir and therefore was inapplicable to the appellant who was not subject to the provisions of the said Act being domiciled in the United States of America before and after the marriage. He also relied upon section (1) of the Hindu Marriage Act to contend and stressed upon the fact that section (1) sub-clause (2) specifically applies to the whole of India except to the State of Jammu and Kashmir and applies also to the Hindus domiciled in the territories of the Act and extends to those who are outside territory meaning thereby that the Act would apply to the Hindus who are domiciled in India except the Jammu and Kashmir, even if such Hindu persons were residing outside territorial limits of India. He submitted that the words "domiciled in India" which was originally appearing in the Act had been altered to read as "domiciled in the territories to which this Act extends" makes the provision clear so that it applies to all the Hindus with such domicile who may be for the time being outside the Indian territory. He submitted that by virtue of these provisions it was more then evident that the appellant cannot be subjected to the provisions of the said Act by virtue of his not being domiciled within territories concerned and in view of having expressly claimed to be domiciled in United States and since the respondent has no time questioned husband's domicile.
12. Mr. Muchhala then relied upon decision of the Supreme Court in case of Sondur Gopal Vs. Sondur Rajni (2006) 3 AIR Bom. 487 in support of his contention that Hindu Marriage Act would apply to the Hindus residing outside India but having domicile in India. He submitted that in order to save extra territorial application of the Act domicile in India is mandatory [In Sondur Vs. Sondur]. The Supreme Court held that right to change domicile is available to any person not legally dependent and such person can acquire domicile of choice by residing in country in that country indefinitely and that person who alleges domicile has to prove it. That intention of changing domicile and continuing to adopt that changed domicile is in the mind of a person and can be inferred from any act, event or circumstance in the life of such person. Applying this principle to the present set of facts, it is seen that the respondent has claimed change of domicile and has decided to be domiciled in Pune, India, has taken up employment in Pune and has secured admission of minor child Reyansh in school at Pune. This fact is also known to the appellant who has corresponded that the respondent has inquired about plans with the appellant and Reyansh's future schooling. Thus, it is the respondent's case that she is domiciled in India.
13. Mr. Muchhala then relied upon the decision of the Supreme Court in Sankaran Govindan Vs. Lakshmi Bharathi and Others AIR 1974 SC 1764 and submitted that domicile is mixed question of fact and law and that to establish domicile there must be present intention of permanent residence thereby meaning that so far as mind of a person at the relevant time was concerned, he possessed requisite intention that at the relevant time varies with nature of inquiry. He relied upon paragraph 33 of the said judgment in support of his contention that it is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every conceivable event and incident in a man's life is a relevant and admissible indication of his state of mind. That it may be necessary to examine the history of his life with the most scrupulous care and to resort even to hearsay evidence where the question concerns the domicile of a person. These observations of the Supreme Court were involved in a case where the parties were seeking to establish domicile of person (since deceased) which he possessed in the lifetime.
14. Mr. Muchhala then relied upon the judgment of the Single Judge of this Court in Kranti Mohan Guruprasad Mehra and Anr. Vs. Fatehchand Vasuram Behal AIR 1982 Bombay 263 and submitted that the decision on the objection to jurisdiction of Court is to be tried as preliminary issue and determination of such issue and the question of interim relief must follow distinct procedures. He submitted that it may be permissible for the court to adopt a composite hearing of the said preliminary issue and the interim relief and even determination of the preliminary issue at such hearing and making composite order, however, adjudication of preliminary issue would precede the decision of the interim application. That the scheme of section 9A of the Civil Procedure Code unmistakably indicates that the court is expected to determine the objection to jurisdiction as an issue in the suit which should be treated as a preliminary issue and having regard to the concept of the pleading, that it should be decided after giving the parties a full opportunity to lead all necessary material and evidence as they would have done when the issue was framed at the trial and lastly the determination of such an issue even at that stage would get a label of finality insofar as that proceedings and the suit is concerned.
15. The preliminary issue would therefore not be required to be re-heard in the second round at trial. Mr. Muchhala pressed this judgment into service to buttress his argument that in the present case the Court at Pune had not allowed the parties to lead evidence and that it had failed to frame the issues.
16. Mr. Muchhala then relied upon the decision of the Single Judge of this Court in Rev. Dr.Ignatius Dcunha and Anr. vs. Rev.Father Denish Chittarajan Kamath 1992 (1) Bom.C.R. 647 and submitted that the nature of the evidence which a party would be required to place before the Court when the Court is considering a question of granting or refusing interim relief under Order 39 would be totally different from the nature of the evidence which it would be required to place before the Court when the Court is to consider issue of jurisdiction and that issue was required to be framed for the reasons that the parties must be made aware as to what are questions to be decided by the Court so that the parties may submit evidence in the light of these issues and the burden is on either parties to prove. In that case the issue of jurisdiction has not been framed at all and it was held that merely asking the counsel to address the court on the point will not be a decision on the issue as is required by the mandate of section 9-A of the Code of Civil Procedure and therefore the Court held that there is no compliance to the provisions of section 9-A.
17. Mr. Muchhala then relied upon the judgment of this Court in Meher Singh vs. Deepak Sawhny and Anr. 1998 (6) LJ 113 = 1991 (sic 1999) (1) Bom.C.R. 107 wherein the Division Bench was considering the preliminary issue of jurisdiction and while deciding the preliminary issue the parties were given an opportunity to lead evidence. Before the single Judge it was argued that when such issue is raised the court may permit the parties to lead evidence since the issue has to be tried and adjudicated finally. It was held that section 9-A was added with specific object to see that the objection with regard to jurisdiction of the court is decided as the preliminary issue and the parties may be given an opportunity to lead evidence so that to arrive at a finding on the preliminary issue the parties do not have to await the outcome of the issue.
18. Mr. Muchhala then relied upon the decision of this Court in Mukund Ltd. vs. Mumbai International Airport and Ors. 2011 (5) Bom.C.R. 456 in support of his submission. In the said judgment the Court held that it is not open to the defendant, having raised objection to the jurisdiction of the Court at the hearing of application for interim relief, to obviate adjudication of the Court upon that issue merely by postulating that the objection is not pressed for purpose of interim application. The objection to jurisdiction under section 9A is required to be determined not only for the purpose of such a motion but objection is to jurisdiction of the Court to entertain the suit itself and once raised objection must be decided as a preliminary issue. The provisions of section 9-A cannot be utilized as a matter of litigational strategy by the defendant or, for that matter, by the plaintiff for depending upon whether an ad-interim order has or has not been passed by the Court. Once the objection is raised as a preliminary issue before the application for interim relief is taken up, it must be decided as a preliminary issue. The provision was intended to prevent abuse resulting in a situation where an injunction was granted without going into question of jurisdiction.
19. Mr. Muchhala then relied upon the decision of the Supreme Court in Makhan Lal Bangal vs. Manas Bhunia and Others 2000 (1) Cal.L.J. 437 and submitted that an omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted, by the omission. The object of an issue is to tie down the evidence on a particular question so that there is no doubt on what the dispute is.
20. Mr. Muchhala then relied upon the decision of the Supreme Court in Y.Narsimha Rao and Others and Y. Venkata Lakshmi and Anr. (1991) 3 SCC 451 wherein the Apex Court held that the Courts in India have so far tried to follow the English Rules of Private International Law whether common law rules or statutory rules but further observed that marriage which took place in this country can only be customary law in force in this country.
21. Mr. Muchhala once again laid stress on the decision of this Court in Sondur Gopal Vs Sondur Rajni and in particular paragraph 10.12 which observed that in the Private International law until 1974, the rule was that the domicile of a husband was communicated to his wife immediately on marriage and it was necessarily and in inevitably retained by her for the duration of the marriage. This rule was criticised as "the last barbarous relic of a wife's servitude" and was abolished by section 1 of the Domicile and Matrimonial Proceedings Act, 1973, and after 1.1.1974 it was laid down that domicile of married woman as at any time shall on or after 1.1.1974 shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to some factors as in the case of individual capable of having an independent domicile.
22. Mr. Sarwate, learned Advocate for the respondent relied upon the decision of this Court in case of Dr. Madhusudan alias Amod Dalvi vs. Dr. Rajlaxmi Walavalkar to which one of us (Smt.V.K. Tahilramani, J) was a party and submitted that any application moved under the Hindu Marriage Act could be moved in the court having jurisdiction over the place of residence of minor. He then submitted that the parties were married under the Hindu laws and the Hindu Marriage Act would apply and naturally the provisions of Hindu Marriage Act with regard to jurisdiction of the court would come into play and continue to apply as long as marriage exists as even for dissolution of marriage. Therefore, it was submitted that system of law which would govern a marriage should remain constant and cannot change with vagaries/whims of the parties to the marriage. In that case the Court had occasion to consider Cheshire and North on Private International law wherein it has been recognised that if the domicile is to be determined on the basis of when proceedings commence then every petition filed by the wife whose husband moves from one country to another for the purpose and claim domicile there, would be frustrated by changing his domicile even between the presentation of petition or during hearing of the case.
Mr.Sarwateurged as set out in the judgment, that it would be against public policy to take different view. He submitted that the parties being Hindus if the marriage is being solemnized by Hindu Vedic rites in Mumbai, India then impliedly the appellant has submitted to jurisdiction of the court in Mumbai and cannot escape provisions of the Act citing his domicile in United States. According to him the submission of Mr.Muchhala based on the concept of intended domicile has no application in the instant case. He submitted that "domicile of origin" is always present in the background waiting to be revived and the conduct of person would show that he has reverted to "domicile of origin". He submitted that conduct of the respondent in the present case by admitting the child to school and taking up employment in Pune clearly evidenced the intention to revert to "domicile of origin" i.e. India.
23. Mr.Sarwate then relied upon decision of this Court in Family Court Appeal No.237 of 2013 dated 20th February, 2014 to which one of us (Smt.V.K.Tahilramani, J.) was a party, where the question as to the jurisdiction of the Family Court in India arose, to try the matter involving a foreign citizen who was domiciled outside the Indian territory. He referred to paragraphs 18 and 20 of the said judgment in support of his submission that the appellant admittedly being a Hindu and having solemnised the marriage by Hindu Vedic rites in Pune, India has submitted himself to the jurisdiction to this court and having married in India as per the provisions of the Hindu Marriage Act, the appellant cannot avoid being subjected to the jurisdiction of this Court by setting up issue of domicile.
24. In that case, as in the present, the intention of the appellant to return to his roots was evidenced from the fact that he was owner of the immovable property in Mumbai bought in the name of himself and parents of the respondents and his domicile of origin stuck to him. He submitted that both the parties being United States citizens did not alter the position of the appellant, the respondent unequivocally has displayed her intention to be domiciled in India. He submitted that when the wife was given right to adopt legal proceedings in India by virtue of section 19(iii), such provision cannot be defeated by raising technical plea on account of foreign citizenship of the husband and domicile in United States notwithstanding the respondent has in that behalf opted for domicile alongwith the appellant. The domicile and citizenship of opposite parties is immaterial since the marriage was solemnised in India as per Hindu Marriage Act and coupled with the fact that the respondent himself owns the property in Pune albeit jointly with his parents.
25. Mr.Sarwate then relied upon the judgment in the decision of Y.Narasimha Rao (supra) and relied upon the observations in paragraph 13 and 21 and submitted that the court had laid down that protection of women was of utmost importance. The Supreme Court further held that the parties ought to know their rights and when they marry under a particular law, they cannot be heard to make a grievance about it at later stage or bypass it by subterfuge as in that case. The Apex Court was adverting to the fact that domicile of the wife no longer follows that of her husband.
26. Mr.Sarwate further submitted that it is not necessary that a formal issue be framed if the issue itself was heard and decided by the Family Court. According to him under section 10(3) the Family Court had power to lay down its own procedure with a view to arrive at the truth of facts alleged by one party and denied by the other notwithstanding the provisions of section 10(1) that provides that the provisions of Code of Civil Procedure and any other law for the time being in force shall apply to the suits and proceedings before the Family Court.
27. Mr.Sarwate further submitted that marriage between the parties was registered under the provisions of the Maharashtra Regulations of Marriage Bureaus and Registration of Marriage Act, 1998 and relied upon the certificate of registration of marriage issued under section 6(1)(e) of the said Act. The certificate records that the marriage between the appellant and respondent took place at Arya Samaj. Section 6 of the Act enjoins upon the husband a duty to submit memorandum for registration of marriage on solemnisation of the marriage.
28. In rejoinder Mr.Muchhala contended that the fact of marriage is not in dispute, however, according to Mr.Muchhala the marriage did not take place in accordance with the Hindu Marriage Act. He, therefore, states that the Hindu Marriage Act does not apply. He submitted that under section (1) of the Hindu Marriage Act it applies to the Hindus domiciled in whole of India except Jammu and Kashmir and to those who are domiciled within Indian territory but who are outside the said territory. Since the appellant is not domiciled in Indian territory the act does not apply to him. To query from the court as to effect of Section 2 namely applicability of the Act to any person who is Hindu by religion, Mr.Muchhala submitted that section 2 would not apply since his client was not domiciled within the territory to which the Act applies as contemplated in Section 1. In a nutshell Mr.Muchhala's submission is that since the appellant is domiciled in the United States outside the Indian territory at all material times has not married under the Hindu rites he is not subject to the provisions of the Hindu Marriage Act.
29. Having considered the rival contentions in our view the following questions arise :
Firstly, whether the trial Court could have decided the issue of jurisdiction in the manner done in the present case or whether it should have framed a formal issue and thereafter proceeded to hear the application Exhibit-23. Secondly, whether the concept of intended domicile would prevent the respondent from initiating the proceedings in India. Thirdly, whether the marriage between the parties was solemnized according to Hindu rites. In other words, whether it was according to the provisions of Hindu Marriage Act and mere registration under the Act does not entail applicability of the Hindu Marriage Act to the appellant husband.
30. We propose to address the third question first, namely, applicability of the Hindu Marriage Act. The facts as appearing from the record reveals that marriage between the parties was solemnized on 26th November, 2002 in Mumbai. The fact of the marriage being performed in accordance with the Hindu rites is really non issue inasmuch as the order Exhibit-5 in Petition No.B-16 records that marriage between the petitioner and the respondent took place in accordance with Hindu Vedic rites. This finding is reiterated in the said order. This finding has not been challenged by the appellant either in the Family Court or in this Court. The appellant has filed an application seeking the interim relief being Civil Application No.165 of 2014 in the above appeal. By consent the order has been passed on 30th May, 2014 Exhibit-B to the said civil application. In the order of the Family Court dated 27.12.2013, there is no grievance in the said application (or elsewhere) alluding to any dispute apropos the fact that the marriage was performed in accordance with the Hindu Vedic rites applicability of the Hindu Marriage Act. None of the grounds of appeal seek to fault the impugned order on the basis of non applicability of the Hindu Marriage Act by reason that the marriage was not in accordance with the Hindu rites. A perusal of the Hindu Marriage Act, 1955 reveals that section 5 provides for the conditions of Hindu marriage. Section 5 is set out below for case and reference :
"5. Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party :-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."
31. Furthermore, in the application before the Family Court made on behalf of the respondent under section 1(2) of the Hindu Marriage Act, 1955 read with section 9-A read with section 9 of the Code of Civil Procedure which seeks dismissal of the proceedings, the respondent (appellant herein) pleaded as under :
"The respondent states that he was a US citizen and domiciled there prior to marriage. The marriage between the petitioner and him was solemnized with Hindu rites and rituals at Mumbai. Subsequent to the marriage, the Petitioner went to New Jersey, USA to her matrimonial home in 2004. The petitioner since 2004 has been gainfully working in USA as a graphic and web-designer. She on her own accord applied for the US citizenship and subsequently on 8th on December, 2007 the Petitioner was granted the US citizenship. This was done with an intention to make US her permanent abode. Hence from 2004 for all practical purposes the Petitioner was domiciled in USA .. .. ..."
In view of the admissions on oath it is established beyond doubt that the marriage ceremony was in accordance with the Hindu rites.
32. There cannot be dispute as both the parties are Hindus at the time marriage and it is nobody's case that either of them was disqualified by reason of non compliance of conditions under section 5. In the present case, the evidence shows that the marriage was performed at Arya Samaj. It is not the case of the appellant that Arya Samaj wedding did not constitute a Hindu marriage ceremony as contemplated under section 7 of the Act. Once it is established that marriage between the parties was performed as per Hindu rites, the Hindu Marriage Act would apply by virtue of section 2(1)(a). Reliance is placed by Mr.Muchhala, learned senior counsel for the appellant on section 1 and section 1(2) and in particular territorial applicability of the Act and at the material time the marriage did take place within territory of India. The mere fact that the appellant was domiciled at the time of marriage in the United States does not take away applicability of the Act. The appellant is a Hindu, his domicile of origin was Mumbai India, his domicile of choice was the United States of America. He owns and continues to own property in Mumbai and cannot be deemed to have given up his domicile of origin. In our view the appellant satisfies the requirement of being a Hindu person by birth and being a party to marriage solemnized between him and the respondent, both Hindus. In the facts and circumstances of the case we are of the view that the Hindu Marriage Act does in fact apply.
33. Apropos the first question,we are unable to appreciate this submission that the Family Court failed to formally frame/settle the issues since there really was only one issue, namely, whether or not the Family court had jurisdiction in the facts of the case. We shall now consider the effect of section 9-A of the Code of Civil Procedure, 1908. Section 9-A is reproduced below:
"Section 9-A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue -
(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit."
This Maharashtra amendment requires the court to determine at the hearing of any application for the interim relief, the issue as to jurisdiction of Court as a preliminary issue before granting any Interim order. The Court is mandated not to adjourn such application to the hearing of suit. It is case of the appellant that the Family Court in India has no jurisdiction to entertain the petition for divorce and that correct forum is the Court in United States. In fact the prayer in the application Exhibit-23 which has led to the impugned order states that a preliminary issue of jurisdiction be framed and decided and that the interim application and interim relief granted may be vacated. In the alternative, the appellant seeks an order that the petition may be returned for presentation before the appropriate jurisdiction, namely, New Jersey.
34. There was no occasion to frame other issues since the appellant therein had not filed any other pleading or written statement or other documents so as to raise other issues. In any case the court was not bound to consider any other issue at the preliminary stage. The court has proceeded to decide the issue on the basis of facts that had been stated in the application and the reply of the respondent on merits. The respondent did not at any stage oppose framing of such issue and the only other question is whether the parties were denied an opportunity to lead the evidence. In the present case the respondent has at no stage contested the appellant's claim to be domiciled in United States. On the other hand though it appears to be admitted fact that the appellant was at all material times domiciled in United States, we must not lose sight of the fact that the appellant had invested in the property at Lower Parel in his name and that of his parents and the respondent. The fact that he has purchased property and continues to hold property in his own name is definite indicator of the fact that he did have intention to hold this property and probably return to the domicile of origin. It is the appellant's case that he has purchased property for his parents. If that were so there were no reason to include name of the respondent as well in the purchase documents. We are inclined to believe that the respondent harboured an intention to return to his domicile of origin in future.
35. We are of the view that reliance upon decision of Y.Narsimha Rao (supra) does not carry case of the appellant any further since we are not concerned to the applicability of foreign judgment in the matrimonial dispute and recognition of divorce by the court of United States of America except to the extent that the parties were married in India and were governed by the Hindu Marriage Act. In that case the husband though not domiciled in India technically satisfied the resident requirement of 90 days for invoking jurisdiction of the foreign court. The respondent wife contested the petition without submitting to the jurisdiction of foreign court and held that decree was enforceable and appellant played fraud on the foreign court by placing incorrect pleadings in respect of jurisdiction on facts.
36. It was further observed in paragraph 10.14 of Sondur Gopal (Supra) that domicile of a married woman does not follow that of her husband. She is capable of having, an independent domicile and if the domicile of origin is displaced as a result of the acquisition of a domicile of choice, the domicile of origin is merely placed in abeyance for the time being. It remains in the background ever ready to revive and to fasten upon the propositus immediately he abandons his domicile of choice. These principles are culled out from the various judgments of the Supreme Court, High Courts and also the Indian and English Private International law. These principles are of great relevance in the matter concerning domicile of choice. Thus, keeping these principles in view, we proceed to examine the merits of contentions to see whether domicile of the respondent in United States of America was displaced as a result of her having come back to India, taken up job at Pune and admitting her child to school at Pune. In the Indian context, the admission of child to school assume great significance given strict limitations of time and age at which children may be admitted to a school. We are of the view that admitting the child to a school in Pune is definitely one of the factor that would establish intention of the respondent to change her domicile from United States to India. The intention of not returning to United States at least for the time being.
37. It has been held by this Court in Rhodia Ltd. and Ors. vs. Neon Laboratories Ltd. AIR 2002 Bom. 502 that even if the defendant seeks return of the plaint, as opposed to dismissal, the Court is not precluded from deciding the issue of jurisdiction which is what the Family Court has proceeded to do. The grievance of the petitioner is that the Family Court ought to have formally framed the issues. In the instant case, the only issue that could have been framed is that of the jurisdiction. No other issue could have been framed by the Court in absence of complete pleadings or documents giving rise to other issues. The appellant had at no stage filed the written statement or other pleadings or documents giving rise to other issues except for the application Exhibit-23 and affidavits in support and rejoinder.
38. It is therefore necessary to consider whether failure to frame a formal issue before deciding the substance of issue is fatal to the order. In this behalf it is appropriate that we consider the provisions of Order 14 of the Code of Civil Procedure. Rule 1 of Order 14 requires framing of issues and provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other which form the subject of distinct issue. The material from which the issues may be framed are set out in Rule 3 of Order 14 and such material or allegations made on oath made by the parties or on their behalf including those in the pleadings or answers and contents of documents produced by the party. Order 14 makes it clear that when an issue of jurisdiction can be decided as preliminary issue but it is not mandatory for the court to frame an issue formally. The object of section 9-A was to obviate the need to go into detailed hearings including for the interim relief if and when the Court has no jurisdiction to hear the main dispute itself to begin with or if and when the claim itself is time barred. In such a situation, to relegate the parties to await trial of the suit or proceedings and in the meantime impose upon the parties the interim relief is not desirable if the maintainability can be decided at the preliminary stage with or without leading evidence. If the situation involved fact and law it may be necessary to lead the evidence. However, it is for the parties to decide whether or not to lead the evidence. In the present case the parties have chosen not to lead evidence. The appellant has not alleged that he wished to lead evidence but yet was denied the opportunity. On the other hand it was submitted on behalf of the appellant that it was for the respondent to lead evidence to prove domicile in India and that the respondent has not disputed the appellant's domicile in the United States.
39. On behalf of the respondent it is contended that there was no occasion to lead further evidence since it is admitted position that the child Reyansh has been admitted to school at Pune, India is indicative of the wife's intention to moving in India. In our view no further evidence was called for to establish the wife's return to her domicile of origin. The fact that she may have retained United States citizenship and passport is of no avail. It is in discretion of the court whether a formal issue is required to be framed or not. In the instant case the only issue to be decided is whether the court has jurisdiction. Both sides were aware that Exhibit-23 was being heard and decided. The impugned order is passed in detail and has considered all contentions raised. The Family Court has proceeded to decide the very issue raised. No other issue was sought to be raised or could have arisen in view of the material on record namely the application. Apart from his reply no other issue arose for consideration from the application Exhibit-23 and the affidavit of respondent in support of application Exhibit-23 and the rejoinders. Even from the documents pertaining to the proceedings in the United States filed, no other issue arose for consideration. The court therefore cannot be faulted for not framing a formal issue and scheduled a separate hearing of the same.
40. In the present case the issue of jurisdiction being raised being indisputably a mixed question of fact and law, the parties could have chosen to lead the evidence. The impugned order records that the marriage between the petitioner and the respondent is solemnized in Mumbai in accordance with the Hindu Vedic rites, yet the appellant has contended that he is domiciled outside beyond the territorial limits to which the Hindu Marriage Act and that the court has no territorial jurisdiction. The respondent (original petitioner) has claimed independent domicile and relied upon the provisions of section 19(iii) of the Hindu Marriage Act which entitles the wife to present a petition to the Court within local limits of which the wife resides as on the date of presentation of the petition. The impugned order considers the contentions of both the parties in great detail. Neither party sought to lead the evidence.
41. It is seen that the appellant had proceeded to urge the application made under section 1(ii) Exhibit-23. Neither party had any reservation in proceeding with hearing of the application and the learned Judge of the Family Court found that after considering all the facts on record read with section 1(2) and section 19 of the Hindu Marriage Act held that the Family Court had territorial jurisdiction to entertain and try the petition.
42. The appellant challenged the said order first by filing Writ Petition No.8317 of 2014. This writ petition came to be dismissed as not maintainable since the order of the Family Court deciding jurisdiction of this Court was not a interlocutory order. The order finally decided the question of jurisdiction and this court observed that the appellant ought to have filed the appeal against the impugned order. The present appeal is really the result of dismissal of said writ petition. In the said order passed by this Court on 20th December, 2013 this Court observed that the objection raised to the effect that the Family Court has neither framed issue nor recorded the evidence since it was never the appellant's case that he desire to lead evidence. In fact the appellant did not ever seek to lead evidence. In our view in the facts and circumstances of the present case, the absence of a formally framed issue cannot render the order bad. In the present case there can be no doubt about the preliminary issue raised. It was one of jurisdiction of the Family Court. In the facts of this case the omission to frame a formal issue would not in our view effect the adjudication of such issue as long as the impugned order discloses that the issue was decided as a preliminary issue.
43. Apropos the concept of intended domicile, we have allowed Mr.Muchhala to urge the issue of doctrine of intended domicile although it was not specifically urged before the Family Court so as to obviate any grievance on that count. The doctrine of intended domicile propounded on behalf of the appellant essentially arose from the issue of "Capacity to marry". The learned authors of Fourteenth edition have in their treatise on the Private International Law observed in detail that the intended matrimonial home doctrine related to capacity to marry and in this respect while assessing capacity to marry it was observed that capacity to marry is governed by what is conveniently called dual domicile doctrine i.e. marriage would be invalid unless both contracting parties at the time of marriage are found that they had capacity to contract that particular marriage. Under the alternative doctrine of intended matrimonial home, there is basic presumption that the capacity is governed by the husband's domicile at the time of marriage generally country of which the parties intended to establish permanent home. Thus, this doctrine of intended matrimonial home essentially relates back to capacity of person concerned to marry. In the instant case the doctrine cannot be applied and the contention of the appellant that domicile of husband be considered cannot be accepted as the parties concerned did not continues to be domiciled in the United States as is evident from the conduct of the respondent who by moving to Pune, India has demonstrated her intention not to continue to be domiciled in the United States.
44. In the circumstances the appeal fails and it is dismissed as such. All applications are disposed of. No order as to costs.
45. At this stage, Mr.Muchhala, Senior Advocate for the Appellant prayed that the Family Court may be directed not to proceed with the matter before it for a period of 8 weeks. Mr. Sarwate, learned counsel for the Respondent on the other hand submits that the Family Court be allowed to continue with the hearing of the maintenance application which is pending for a long time. In view of the appellant's challenge to the jurisdiction of the Family Court, we consider it appropriate to defer the hearing of the matter before the Family Court. In our view, it would be sufficient to stay the proceedings before the Family Court for a period of 6 weeks from today to enable the Appellant to approach the Supreme Court. In the circumstances, the Family Court shall not hear Petition No.PA-1265 OF 2012 and application therein for a period of six weeks from today.