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Issues: Whether the parties were domiciled in India so as to attract the Hindu Marriage Act, 1955, and whether the petition for judicial separation and custody was maintainable before the Family Court in India.
Analysis: Section 1(2) of the Hindu Marriage Act, 1955 extends the Act to the whole of India and also to Hindus domiciled in the territories to which the Act extends who are outside those territories. The provision was construed as having extra-territorial operation only to the extent that a sufficient nexus with India exists. Section 2(1) was read with Section 1(2) to mean that the Act applies outside India only where the party concerned is domiciled in India. Domicile of origin continues until a domicile of choice is clearly established, and the burden lies on the person asserting a change of domicile to show residence in another country with intention to reside there indefinitely. On the facts, the husband failed to prove abandonment of Indian domicile and acquisition of an Australian domicile of choice; the material relied on did not establish permanent settlement abroad.
Conclusion: Both parties were domiciled in India and the Hindu Marriage Act, 1955 applied to them. The petition for judicial separation and custody was maintainable in India.
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