A family court has the jurisdiction to decide matrimonial petitions filed even by a foreign nationals or people domiciled outside India, if the marriage has taken place in India in keeping with provisions of the Hindu Marriage Act, 1955.
The Bombay high court on Thursday upheld the order of a family court at Pune, which said it had territorial jurisdiction to try a petition filed by a US citizen residing in Pune, against her US-based husband.
The couple – a 35-year-old financial consultant and a 31-year-old multimedia and web designer – had married in November 2002 in Mumbai, in accordance with provisions of the Hindu Marriage Act, 1955. The husband, the financial consultant who was already a US citizen at that time, returned to the US after the marriage. The wife joined him two years later, and got US citizenship in 2007. A year later, the couple was blessed with a boy.
In March 2012, the wife came to India to attend a marriage, and decided not to go back to the US. She started living in Pune and also got her son admitted to a local school. A few months later she approached the family court in Pune, seeking permanent custody of the son.
The husband strongly contested the custody petition, contending that the family court at Pune had no territorial jurisdiction to entertain the petition filed by his wife. His plea that the wife’s case be quashed was rejected by the family court on June 14, 2013.
A division bench of justice VK Tahilramani and justice AK Menon upheld the family court's order. “The mere fact that the appellant was domiciled at the time of marriage in the United States does not take away applicability of the (Hindu Marriage) Act,” the bench said.
The bench noted the husband is a Hindu and his original domicile was in Mumbai. He continues to own property in Mumbai and cannot be deemed to have given up his domicile of origin, the court said. “In our view the appellant [husband] satisfies the requirement of being a Hindu person by birth and being a party to marriage solemnised 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,” the bench said.