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2010 DIGILAW 3976 (MAD)

Deepalakshmi v. K. Murugesh

2010-09-03

K.MOHAN RAM

body2010
Judgment :- 1. The petitioner in the above C.R.P. is the wife of the respondent herein. 2. The respondent has filed F.C.O.P.No.873 of 2009 on the file of the II Additional Family Court, Chennai for divorce on the grounds of mental cruelty and adultery. 3. Pending the F.C.O.P., the petitioner herein filed I.A.No.12 of 2010 under Order 7 Rule 11 C.P.C. to reject and dismiss the F.C.O.P.No.873 of 2009. 4. The said petition has been filed on the ground that the petitioner has filed divorce petition in case No.2009 D 452 in the circuit court of the 12th Judicial Circuit Will County, Illinois, and summons was received by the respondent on 16.3.2009; as a counter blast to the proceedings, the respondent has filed F.C.O.P.No.873 of 2009 and the petition was taken on file on 3.4.2009; there is no cause of action for filing the F.C.O.P. before the Family Court at Chennai; the petitioner and the respondent have taken permanent domicile in America and hence, they have subjected themselves to the jurisdiction of the courts at America and as such the provisions of the Hindu Marriages Act are not applicable to the petitioner and the respondent since they do not have any inclination to return to India and both are green card holders at America; the respondent has purchased properties at U.S.A. and a flat for permanent residence; the Courts in India lacks jurisdiction to entertain the petition. 5. 5. The respondent herein contested the petition inter alia contending as follows:- a. The marriage had taken place at Chennai on 17.1.2009; after the marriage, the respondent had taken the petitioner to U.S.A., wherein the respondent is carrying on his business; at no point of time, it was decided or affirmed by either party that they would not return to India; the petitioner and the respondent still continue and remain as citizens of India; the respondent has no intention to stay permanently at U.S.A.; the respondent has filed a petition to dismiss the proceedings in America on the ground that prior action for similar relief is pending before the Indian Court; the competent court to decide the issues pertaining to marriage between two Hindus which has taken place in India according to the Hindu Marriage Act 1956 shall be in India; the Courts in America cannot adjudicate the issues arising under the Hindu Marriage Act between the husband and wife, whose marriage has taken place in accordance with the provisions of the Hindu Marriage Act; the case of adultery committed by the petitioner has taken place at Coimbatore in India and the witnesses to be examined in respect of adultery are available only in India and as such the Family Court at Chennai is the proper forum within whose jurisdiction the marriage has taken place; the Family court at Chennai is the proper and convenient forum for adjudicating the dispute between the parties; simply because the respondent purchased the properties that will not take away the jurisdiction of the courts in India. 6. On a consideration of the rival contentions, the Court below dismissed the petition. 7. Being aggrieved by that the petitioner is before this Court. 8. Heard both. 9. The learned counsel for the petitioner submitted that the Court below has not properly appreciated the fact that the respondent and the petitioner herein are the residents within the territories of India and their domicile of choice is at U.S.A; hence, the Hindu Marriage Act is not applicable to them. 8. Heard both. 9. The learned counsel for the petitioner submitted that the Court below has not properly appreciated the fact that the respondent and the petitioner herein are the residents within the territories of India and their domicile of choice is at U.S.A; hence, the Hindu Marriage Act is not applicable to them. The Court below has not appreciated the meaning of domicile as contemplated in the Act; the Court below has not properly considered the decisions relied upon by the petitioner; the Court below erred in holding that the petition is maintainable, even though the petitioner and the respondent are green card holders of U.S.A; the Court below has erred in taking into consideration that green card is a prelude to obtain the citizenship and therefore, only the American Courts can have jurisdiction on such persons and the Court below has misinterpreted Section 1 relating to the applicability of the Hindu Marriage Act. 10. The learned counsel further submitted that the obtaining of the green card by the petitioner and the respondent itself shows that they have acquired domicile of choice with an intention to settle permanently at U.S.A. and the only child was born to the petitioner and the respondent at U.S.A. and she is a citizen of U.S.A. and the Indian Courts cannot have any jurisdiction over that child. 11. In support of his contentions, the learned counsel for the petitioner relied upon the following decisions:- a. Kedar Pandey vs. Narain Bikram Sah ( AIR 1966 SC 160 ). b. Gour Gopal Roy vs. Smt. Sipra Roy ( AIR 1978 Calcutta 163). c. P. Remesh Kumar vs. Secretary, Kannapuram Garama Panchayat (1998-AIR (Ker)-0-95). d. Dr. David Chakravarthy Arumainayagam and another vs. Geetha Chakravarthy Arumainayagam and another (2001(2) CTC 302). e. Abdus Samad vs. State of West Bengal ( (1973) 1 SCC 451 ). f. Shilpa Aggarwal vs. Aviral Mittal and another ( (2010) 1 SCC 591 ). 12. In the decision reported in AIR 1966 SC 160 , cited supra, the Apex Court, in paragraph 10 has laid down as under:- "10. The law on the topic is well established but the difficulty is found in its application to varying combination of circumstances in each case. The law attributes to every person at birth a domicil which is called a domicil of origin. The law on the topic is well established but the difficulty is found in its application to varying combination of circumstances in each case. The law attributes to every person at birth a domicil which is called a domicil of origin. This domicil may be changed, and a new domicil, which is called a domicil of choice, acquired; but the two kinds of domicil differ in one respect. The domicil of origin is received by operation of law at birth; the domicil of choice is acquired latter by the actual removal of the individual to another country accompanied by his animus manendi. The domicil of origin is determined by the domicil, at the time of the childs birht , of that person upon whom he is legally dependent. A legitimate child born in a wedlock to a living father receives the domicil of the father at the time of the birth; a posthumous legitimate child receives that of the mother at that time. As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing to reside there indefinitely. For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material. The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or, in effect, he should have formed a deliberate intention to settle there. It is also well established that the onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shown (See Winans v. Attorney General, 1904 Ac 287). The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shown (See Winans v. Attorney General, 1904 Ac 287). In Munro v. Munro (1840) 7 Cl and Fin 842 (876), Lord Cottenham states the rule as follows: "The domicil of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and acquiring another as his sole domicil. To effect this abandonment of the domicil of origin, and substitute another in its place, it required animo et facto, that is, the choice of place, actual residence in the place then chosen, and that it should be the principal and permanent residence, the spot where he had placed larem rerumque ac fortunarum suarum summam. In fact, there must be both residence and intention. Residence alone has no effect, per se, though it may be most important as a ground from which to infer intention." 13. In the very same decision, it has further been laid down as follows:- "In order to determine the domicil of a person at a particular time, the course of his conduct and the facts and circumstances before and after that time are relevant. It must be established that the individual who is alleged to have changed his domicil of origin has voluntarily fixed the habitation of himself and his family, in the new country not for a mere special or temporary purpose, but with a present intention of making it his permanent home." 14. In (1973) 1 SCC 451 , cited supra, the Apex court, in paragraphs 6 and 7 has laid down as under:- "6......By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with a present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice. 7. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred." 15. Domicile of choice is thus the result of a voluntary choice. 7. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred." 15. In AIR 1978 Calcutta 163, cited supra, the Full Bench of the Calcutta High Court has held that domicil is a question of fact in which intention plays a vital role. Referring to the facts of that case, the Full Bench has further observed in paragraph 10 of its judgment as under: "10. The position, therefore, is that domicil of choice is dependent on (a) residence; and (b) intention of the person who resides. In the instant case, there is an affidavit and there are also certain letters which tend to reveal an intention. As to how far that intention was put into practice or given effect to, we do not know. That is a matter which the trial court has to ascertain on the basis of evidence adduced before it." 16. Ultimately, the Full Bench, remanded the matter to the trial court for a decision on the question as to whether the husband had acquired the Indian domicile in the light of the legal propositions stated by the Full Bench in that judgment. 17. In 1998 AIR Kerala 95, cited supra, the High Court of Kerala, has laid down as under:- "Therefore, the Act will apply to a Hindu outside the territory of India, only, if he is a Hindu domiciled in the territory of India. Therefore, only those Hindus having permanent residence in India will be covered by the Hindu Marriages Act. In other words, the petitioners wife, a Buddhist, can be taken as a Hindu for the purpose of application of this Act, as contained in Section 2(1)(b), if she should also satisfy the application clause as contained in Section 1(2)(b) of the said Act. For that, she shall be Domicile of India residing in Japan. Domicile means permanent resident. The petitioners wife is not a permanent resident of India and therefore the Act does not apply to her. So the marriage between the petitioner and his Japanese wife is not a Hindu Marriage to be registered under Section 8 read with the Rules framed there under. Domicile means permanent resident. The petitioners wife is not a permanent resident of India and therefore the Act does not apply to her. So the marriage between the petitioner and his Japanese wife is not a Hindu Marriage to be registered under Section 8 read with the Rules framed there under. Therefore, the petitioner is not entitled to any of the reliefs prayed for. The Original Petition fails. The Original Petition is dismissed." 18. In 2001 (2) CTC 302, cited supra, the learned Single Judge of this Court, has laid down as follows:- "14. The decisions relied on above clearly indicate that the question of jurisdiction can be tried as a preliminary issue and although it is a mixed question of fact and law, in view of the clear averments made in the main suit itself is not maintainable before this Court. As adverted to, the language employed in section 2 of the Indian Divorce Act, wherein it is categorically stated that the parties to the marriage should domicile in India is a condition precedent for filing a petition before this Court. When once it is admitted by the respondent himself that the applicant is domiciled in United Kingdom, I am of the view that the question of jurisdiction goes to the root of the matter and it can be tried as a preliminary issue. When once the court comes to the conclusion that the main suit itself is not maintainable on the ground of jurisdiction, it is not necessary that the parties have to be directed to undergo an ordeal of the trial in respect of other issues also." Hence, the point is answered accordingly." 19. While dealing with the custody of the child, the Apex Court, in ( (2010) 1 SCC 591 , has observed as follows:- "The Delhi High Court while passing the impugned order took into consideration both the questions relating to comity of courts as well as interest of the minor child which is of paramount consideration. It is the English court which had the most intimate contact with the issue in question to decide the same. The fact that the minor child has been declared a ward of the English court till she attained majority, is also a matter of considerable importance. It is the English court which had the most intimate contact with the issue in question to decide the same. The fact that the minor child has been declared a ward of the English court till she attained majority, is also a matter of considerable importance. The Delhi High Court did not commit any error in relying on the doctrine of comity of courts since the question of what is in the interest of the minor still has to be considered by the UK court." 20. Countering the said submissions, Mr.G.Masilamani, the learned Senior Counsel on behalf of the respondent made the following submissions:- 21. Both the petitioner and the respondent are Indian citizens by birth; both are Hindus; both got married at Chennai as per the Hindu rites and customs; as the respondent is staying at U.S.A. in connection with his profession and business, the petitioner/wife went along with him to U.S.A. and both are holding green cards; it is not stated in the petition as to what is the green card; but it is admitted that both of them are not citizens of U.S.A.; both of them have not relinquished their Indian citizenship; the green card holder can live at U.S.A. and carry on their avocation and the terms and conditions are not known; it has not been disputed that a female child was born at U.S.A. and she is aged about nine years and she is a citizen of U.S.A.; since the marriage has been performed as per the Hindu rites and customs and in accordance with the Hindu Marriage Act, the petitioner and the respondent are governed by the Hindu Marriage Act; Hindu law can be administered only by the Courts in India; since the Circuit Court of the 12th Judicial circuit Will County, Illinois, in which the petitioner has filed O.P. can only administer the local law but not the Hindu Marriage Act and therefore, according to the learned Senior Counsel, the Family Court at Chennai alone has got jurisdiction. 22. The learned Senior Counsel submitted that assuming that two courts have got jurisdiction and by virtue of the respondent/husband has chosen the court at India and the wife/petitioner has chosen the court at U.S.A., whether the option of one party in choosing one court will extinguish the jurisdiction of the Indian Court. 23. 22. The learned Senior Counsel submitted that assuming that two courts have got jurisdiction and by virtue of the respondent/husband has chosen the court at India and the wife/petitioner has chosen the court at U.S.A., whether the option of one party in choosing one court will extinguish the jurisdiction of the Indian Court. 23. According to the learned Senior Counsel, simply because the petitioner has opted the jurisdiction of the court at U.S.A. that will not extinguish the jurisdiction of the Family Court at Chennai. The learned Senior counsel submitted that no revision or appeal is provided against the interlocutory order under the Family Courts Act; as far as the matrimonial matters are concerned, the word domicile shall be interpreted with broader construction and not with narrow construction; natural assumption or presumption as to the citizens domicile is the country of their birth; such a presumption can be dislodged only by evidence and acquisition of citizenship is not a sine quo non for acquiring domicile. 24. The learned Senior counsel submitted that the question of domicile is a matter of proof but not an assumption; to decide the question of domicile, evidence has to be let in the main O.P.; to decide whether the petitioner and the respondent have acquired domicile in U.S.A. lot of oral and documentary evidence is required and that can be done only at the final disposal of the main O.P. The learned counsel further submitted that for deciding the issue of adultery as alleged by the respondent against the petitioner lot of oral and documentary evidence is available at Coimbatore in India and therefore, shifting of the forum will effectively prevent the respondent from adducing the evidence; family court is governed by its own rules and the rules governing the family courts in U.S.A are different; appeal against the family court judgment lies to the Division Bench of the High Court and right of appeal is provided under the Hindu Marriage Act as well as the Family Courts Act on facts and law and therefore, the Family Court at Chennai is a forum of convenience. 25. The learned Senior counsel submitted that what is the inconvenience that will be caused to the petitioner if the divorce petition filed by the respondent is tried by the family court at Chennai has not been stated in the petition. 25. The learned Senior counsel submitted that what is the inconvenience that will be caused to the petitioner if the divorce petition filed by the respondent is tried by the family court at Chennai has not been stated in the petition. If the question of divorce is allowed to be decided by the Circuit Court at U.S.A. it will be the forum of inconvenience as far as the respondent is concerned as he cannot adduce evidence at U.S.A as he can at Chennai. 26. In support of the aforesaid contentions, the learned Senior Counsel relied upon the decision of the Division Bench of this Court reported in (R. Sridharan vs. The Presiding Officer, Principal Family court and another). 27. In the said decision, the question that arose for consideration is as to whether the Indian Courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act even in cases where the opposite party is a foreign national having his domicile outside India. In paragraphs 12 and 17, the Division Bench has laid down as under:- "12. The Hindu Marriage Act, as it originally stood besides its coverage to the whole of India, also applied to all Hindus domiciled in India. The Act was subsequently amended and it was given an extended application. Accordingly, "domicile in India" was substituted by a new clause "domiciled in the territories to which this Act extends". This amendment was made with a specific purpose to extend the provisions of the Act to all Hindus with such domicile, even though for the time being, they are outside the said territories. Because of this amendment, it was not open to a person governed by Hindu Law to contest the matter on the sole ground that he is residing outside India and as such the Act has no application to him." "17. There is no dispute that the appellant and the second respondent are governed by the provisions of the Hindu Marriage Act. The appellant was originally an Indian citizen and on his migration to United States of America, he acquired citizenship in the said country. The appellant has no case in his counter or in his affidavit filed in the writ petition that the marriage was not conducted in accordance with the Hindu custom or that he was not one governed by the provisions of the Hindu Marriage Act. The appellant has no case in his counter or in his affidavit filed in the writ petition that the marriage was not conducted in accordance with the Hindu custom or that he was not one governed by the provisions of the Hindu Marriage Act. When the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be made under the said Act. The appellant cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile. " 28. In the decision reported in (1991) 3 SCC 451 (Y.Narasimha Rao and others vs. Y. Venkatalakshmi and another), the Apex Court, in paragraph 7, has laid down as under:- "7. Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act") only the District Court within the local limits of whose original civil jurisdiction – (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis County, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable break down of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act." 29. In the very same decision, in paragraph 15, the Apex Court has laid down as under:- "15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. In the very same decision, in paragraph 15, the Apex Court has laid down as under:- "15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise." Further, in para 17, it has been laid down as follows:- "17. ..... The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law." 30. In the case of Mrs.Sondur Rajini vs. Mr. Sondur Gopal (Family Court Appeal No.11 of 2005), the High Court of Bombay, while considering the question as to whether the domicile of India is a condition precedent for invoking the provisions of H.M.Act, has observed as under, after considering the decision reported in (1991) 3 SCC 451 (Y.Narasimha Rao and others vs. Y. Venkatalakshmi and another), at length. "In the present case, admittedly, the marriage was solemnised by Hindu Vedi Rites and registered under H.M.Act. It may be noticed that none of the provisions of H.M.Act lay down the time and condition under which it will cease to apply. In other words, once the provisions of H.M.Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to bundle of rights and obligations between the parties to the marriage and their progeny. In other words, once the provisions of H.M.Act apply, it would continue to apply as long as the marriage exists and even for dissolution of the marriage. The Hindu marriage gives rise to bundle of rights and obligations between the parties to the marriage and their progeny. Therefore, the system of law which should govern a marriage, should remain constant and cannot change with vagaries/whims of the parties to the marriage. We may briefly glance at Cheshire & Not Pvt International Law, wherein the learned Author at page 134 points out that " it has been universally recognized that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or of where the facts giving rise to the question may have occurred." The time at which the domicile is to be the proceedings under H.M.Act are commenced, is accepted then every petition filed by the wife whose husband moves from country to another for the purposes of job or for any purpose whatsoever, he would be able to frustrate a petition brought by the wife by changing his domicile even between the presentation of the petition and the hearing of the case. The rule is "once competent, always competent" and this will be so even if the party domiciled in India at the time of their marriage has since changed his domicile, disassociated himself from the determination of his status by the Court in India. The proposition of law canvassed, that the time at which the domicile is to be determined is when the proceedings are commenced, therefore, cannot be accepted, in so far as the petitions under H.M.Act is concerned, inasmuch as it would be against the public policy in this country and which may create a serious social problem. The Hindu society is deeply interested in maintaining integrity of the institution of the marriage. Once the parties have selected H.M.Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. Therefore, we are of teh considered opinion that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. Therefore, we are of teh considered opinion that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India." 31. The learned Senior Counsel basing reliance on the aforesaid decisions submitted that since the issue relating to the domicile is a triable one, it cannot be decided on the basis of the affidavit filed but it has to be proved on the basis of the evidence to be let in before the Family Court, at Chennai. 32. I have considered the submissions made on either side and perused the materials available on record and also the decisions relied on by them. 33. The admitted facts are that both the petitioner and the respondent are Indian citizens by birth; both are Hindus; both got married at Chennai as per the Hindu rites and customs and the marriage was registered under the Hindu Marriages Act; the respondent is staying at U.S.A. in connection with his professional business; after the marriage, the petitioner/wife had gone along with him to U.S.A. and both of them are holding green cards. It is also admitted that both of them have not relinquished their Indian citizenship. 34. The contention of the learned counsel for the petitioner is that though the petitioner and the respondent are the citizens of India and both of them have acquired green cards at U.S.A. and as such the domicile of their choice is U.S.A. and India is not their domicile and therefore, the provisions of the Hindu Marriages Act are not applicable to them. The fact that both of them have obtained green cards which itself shows that they did not have any inclination or intention to return back to India but it is their intention to stay permanently in U.S.A. Therefore, the Hindu Marriages Act is not applicable to them. 35. In Kedar Pandey Vs. The fact that both of them have obtained green cards which itself shows that they did not have any inclination or intention to return back to India but it is their intention to stay permanently in U.S.A. Therefore, the Hindu Marriages Act is not applicable to them. 35. In Kedar Pandey Vs. Narain Bikram (AIR 1966 Supreme Court 160), the question was with regard to succession to the property of a person who died in England which arose from a decree in a suit for partition. To answer this question, the domicile of deceased had become relevant to find out whether English Law of succession or Indian Law for Succession would apply. The observations made by the apex Court in paragraphs 9 and 10 of the Judgment reads thus : "9. The crucial question for determination in this case, therefore, is whether Narain Raja had acquired the domicil of choice in India. 10. The law on the topic is well established but the difficulty is found in its application to varying combination of circumstances in each case. The law attributes to every person at birth a domicil which is called a domicil of choice, acquired; but the two kinds of domicil differ in one respect. The domicil of origin is received by operation of law at birth; the domicil of choice is acquired later b y the actual removal of an individual to another country accompanied by his animus manendi. The domicil of origin is determined by the domicil, at the time of the childs birth, of that person upon whom he is legally dependent. A legitimate child born in a wedlock to a livery father receives the domicil of the father at the time of the birth; a posthumous legitimate child receives that of the mother at that time. As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing to reside there indefinitely. For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. For this purpose residence is a mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material. The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the enquiry should have formed a fixed and settled purpose home in the country of residence, or in effect, he should have formed a deliberate intention to settle there. It is also well established that the onus of proving that a domicil has been chosen in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin continues unless a fixed and settled intention of abandoning the first domicil and acquiring another as the another as the sole domicil is clearly shown." (emphasis supplied) 36. In Gour Gopal Roy vs. Smt Sipra Roy, (AIR 1978 Calcutta 163), the trial Court on the basis that one of the parties was of Indian domicile, had assumed jurisdiction under the Hindu Marriages Act. The Full Bench of the High Court while dealing with the case held that the view taken by the trial Court was not correct and remanded the matter for decision on the question as to whether the husband had also acquired Indian domicile in the light of the legal proposition that a domicile of choice is dependent upon (a) residence; and (b) intention of the person who resides. 37. From the aforesaid two decisions, it is seen that the domicile of origin is received by operation of law at birth; the domicile of choice is acquired later by the actual removal of the individual to another country accompanied by his animus manendi. Any person not under disability may at any time change his existing domicile and acquire for himself a domicile of choice by the fact of residing in a country other than that of his domicile of origin with the intention of continuing to reside there indefinitely. 38. It is also well established that the onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost. 38. It is also well established that the onus of proving that a domicile has been chosen in substitution for the domicile of origin lies upon those who assert that the domicile of origin has been lost. In AIR 1978 Calcutta 163, the Full Bench of the High Court concluded that the trial court was not correct and remanded the matter to the trial Court for deciding the question of domicile on the basis of the evidence to be adduced therein. Therefore, in the considered view of this Court, the aforesaid two decisions does not support the contentions of the learned counsel for the petitioner. 39. In (1973) 1 SCC 451 , it has been categorically laid down that the burden of proving a change in domicile is on those who allege that a change has occurred. Therefore, in this case, the burden is on the petitioner herein to prove that the respondent has changed his domicile. 40. The facts in 1998 AIR Kerala 95 are totally different and therefore, it is not applicable to the case on hand. 41. The decision reported in 2001(2) CTC 302 has been cited in support of the proposition that the question of jurisdiction can be tried as a preliminary issue and there cannot be any dispute over that proposition. 42. The decision reported in (2010) 1 SCC 591 relates to the custody of the child and it has no relevance to the issue to be decided in the case on hand. 43. A Division Bench of this Court, in the decision reported in (R. Sridharan vs. The Presiding Officer, Principal Family Court and another), has laid down as follows: "17. There is no dispute that the appellant and the second respondent are governed by the provisions of the Hindu Marriage Act. The appellant was originally an Indian citizen and on his migration to United States of America, he acquired citizenship in the said country. The appellant has no case in his counter or in his affidavit filed in the writ petition that the marriage was not conducted in accordance with the Hindu custom or that he was not one governed by the provisions of the Hindu Marriage Act. When the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be made under the said Act. When the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be made under the said Act. The appellant cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile. " 44. The said decision squarely applies to the facts of the case. In this case also, the petitioner and the respondent are governed by the provisions of the Hindu Marriages Act and both of them are Indian citizens and both of them have acquired domicile of choice at U.S.A. but they still continue to be the citizens of India and their marriage was conducted in accordance with the Hindu rites and customs and both of them are governed by the provisions of the Hindu Marriages Act. When the marriage was solemnised under the Hindu law, the proceedings for divorce have also to be conducted under the said Act. The petitioner cannot take any exception to the proceedings in India under the provisions of the Hindu Marriages Act merely on account of his/her domicile of choice. 45. In (1991) 3 SCC 451 , the Apex Court has laid down as under:- "7. Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the "Act") only the District Court within the local limits of whose original civil jurisdiction – (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis County, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. 46. In the said decision, the Apex Court has further laid down as under: "15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. 46. In the said decision, the Apex Court has further laid down as under: "15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise." 47. Further, in the same decision, in para 17, it has been laid down as follows:- "17. ..... The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law." 48. Thus, it is clear that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. 49. After referring to the decision of the Apex Court reported in Y. Narasimha Rao and others vs. Y. Venkatalakshmi and another ( (1991) 3 SCC 451 ), a Division Bench of the Bombay High Court in Re Mrs. Sondur Rajini vs. Mr. 49. After referring to the decision of the Apex Court reported in Y. Narasimha Rao and others vs. Y. Venkatalakshmi and another ( (1991) 3 SCC 451 ), a Division Bench of the Bombay High Court in Re Mrs. Sondur Rajini vs. Mr. Sondur Gopal (Family Court Appeal No.11 of 2005), has laid down as follows:- "The rule is "once competent, always competent" and this will be so even if the party domiciled in India at the time of their marriage has since changed his domicile, disassociated himself from the determination of his status by the Court in India. The proposition of law canvassed, that the time at which the domicile is to be determined is when the proceedings are commenced, therefore, cannot be accepted, in so far as the petitions under H.M.Act is concerned, inasmuch as it would be against the public policy in this country and which may create a serious social problem. The Hindu society is deeply interested in maintaining integrity of the institution of the marriage. Once the parties have selected H.M.Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. Therefore, we are of the considered opinion that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India." 50. Thus once the parties have selected H.M.Act as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. 51. Therefore, this Court is of the considered view that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriages Act and not the date when an application is made for matrimonial reliefs. 51. Therefore, this Court is of the considered view that the time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriages Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India. 52. The position, therefore, is that domicile of choice is dependent on (a) residence ; and (b) intention of the person who resides. In the instant case, there is an affidavit and a counter affidavit and from that this Court, at this stage, cannot ascertain the intention of the parties as to how far that intention was put into practice or given effect to. That is a matter which the trial court has to ascertain on the basis of evidence adduced before it. 53. For the aforesaid reasons, I am unable to countenance the submissions of the learned counsel for the petitioner. This Court does not find any error in the order passed by the court below. Accordingly, the revision petition fails and the same is dismissed. No costs. Connected M.P. is also dismissed.