2. AIR 1992 Jammu and K. Radha Krishnan Nayyar… v. Smt. Radha….) 10
3. Appeal No. 31/1998,
High Court of Bombay at Goa Monica Variato v. Thomas Variato, Letters Patent Appeal
(Ref) 10
4. AIR 1955 SC 334
D.P Joshi v. State of Madhya Bharat
(Ref) 10
5. (1975) 1 SCC 120 : AIR 1975 SC 105
Smt. Sathya v. Teja Singh
(Ref) 10
6. (1984) 3 SCC 698 : AIR 1984 SC 1224
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhur
(Ref) 10
7. (1975) 1 SCC 716 : AIR 1975 SC 1208
J. Fernandes and Company v. The Deputy Chief Controller of Imports and Exports
(Ref) 12
8. AIR 1963 SC 1895
Nibaran Chandrabag v. Mahendranath Ghughu
(Ref) 16
9. (1971) 3 SCC 167 : AIR 1971 SC 746
Ruknanand v. State of Bihar
(Ref) 16
10. (1980) 2 SCC 593 : AIR 1980 SC 1896
Gujarat Steel v. Mazdoor Sabha
(Ref) 16
11. (2000) 5 SCC 152 etc.
Chandra Prakash Shah v. State of Uttar Pradesh
(Ref) 16Sri Vijaykumar A Patil, Shri Santosh S. Nagarale and Shri Madhukar M. Deshpande
, Advocates for Petitioner;
Sri N. Ravindranath Kamalh, Advocate for Respondent.
Anand Byrareddy, J.:—
Heard the Counsel for the petitioner and the Counsel for the respondent.
2. The brief facts of the case are as follows:
The petitioner is a Goan, born of Goan parents, and had married the respondent on 26.12.2002 in accordance with the Portuguese Family Law, which is applicable to this day in the State of Goa, fol lowing the procedure under the provisions of the Portuguese Civil Code (hereinafter referred to as the ‘PC Code’). In proof of the same, the petitioner has produced a Marriage Certificate issued by the Office of Civil Registration Offices of Goa, dated 13.7.2006
3. The petitioner and respondent had met in Belgaum when they were students of Gogte Institute of Technology in the year 1998. They were classmates. It is contended that they had fallen in love and decided to get married secretly in Goa, as the respondent did not expect her parents to consent to their marriage. And the respondent, according to the petitioner, had gone over to Goa on 11.12.2002 to give the joint declaration in the office of the Sub-Registrar, Margao and again on 26.12.2002, for the solemnisation of marriage. On both days, she had returned to Belgaum on the same day to avoid raising any suspicion in the minds of her parents.
4. The petitioner contends that the petitioner and the respondent had signed a declaration as required under Article 1075 of the PC Code declaring their intention to get married and had presented it to the Office of the Sub-Registrar, Margao on 11.12.2002 A notice indicating the intention was displayed on the Notice Board of the said office inviting objections to the proposed marriage from the public within fifteen days, as required under Article 1076 of the PC Code. As there were no objections, the Sub-Registrar had solemnised the marriage in accordance with Article 1081 of the PC Code on 26.12.2002 The petitioner and the respondent were thus married under the regime of a communion of assets and are governed by the relevant provisions of the PC Code.
5. Her parents, on coming to know of the marriage on 12.4.2003, had reconciled to the fact and had thereafter arranged a formal engagement ceremony on 19.9.2003 at Belgaum and a religious marriage ceremony was also held in Goa at Ramnathi Temple Hall, Fatorda, Margao on 17.11.2003 They resided at their matrimonial home at Fatorda, Margao from 17.11.2003
6. In May 2004, the respondent had raised a complaint that she was not prepared to continue to live with the petitioner, if his mother and his bachelor brother also continued to live along with them. Since the petitioner dismissed the idea, the respondent was wholly dissatisfied. On 13.12.2005, she is said to have left for Belgaum and failed to return to their matrimonial home. The petitioner's attempts to contact her were resisted. Thereafter, the respondent is said to have instituted a matrimonial case before the Family Court, Belgaum in M.C No. 75/2006 under section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “HM Act” for brevity) on the several allegations made therein. She had also filed an application under Section 24 of the HM Act claiming maintenance and litigation expenses. The petitioner had appeared before the Family Court and filed his written statement and raised a preliminary objection, that the petition filed under the Act was not maintainable and that the Family Court at Belgaum had no jurisdiction to entertain the case. This was treated as a preliminary issue. By an order dated 5.1.2007, the Family Court has rejected the petitioner's objection. It is this, which is under challenge in the present writ petition.
7. It is contended that though a religious marriage was performed on 17.11.2003, as was customary in Goa amongst all Hindu Goans, where members of the two spousal families and their friends and relatives participate. This did not imply that their marriage was to be governed by the HM Act.
8. The Counsel for the petitioner would submit that the petitioner and the respondent are governed by the Portuguese Family Law. Therefore, the matrimonial case filed under the HM Act is not maintainable. The Family Court is not a Court contemplated under the Portuguese Family Law which envisage Court constituted under Portuguese Law. That the Family Court has failed to appreciate that it is not a Court of domicile or a Court having jurisdiction over the place where the respondent resides within the meaning of Article 5 of the Portuguese Family Law. The Portuguese Family Law contains special provisions regarding dissolution of marriage with specific grounds under which a divorce can be granted which includes, adultery, conviction in a criminal case, ill-treatment or serious injuries, complete abandonment of conjugal domicile, incurable unsoundness of mind, de facto separation, contagious disease and so on.
9. It is contended that a suit for divorce can be instituted either in the Court of domicile or in the Court having jurisdiction over the place where the plaintiff has his or her residence. But should the plaintiff reside in a foreign country, the respective suit shall be instituted in the Court of Division of Lisbon, Portugal.
10. The Counsel has relied on the following authorities in support of the case that the Family Court at Belgaum does not have jurisdiction to entertain the/above said case.
-Parwatawwa, Defendant… v. Channawwa, Plaintiff…. . AIR 1966 Mysore 100.
K. Radha Krishnan Nayyar… v. Smt. Radha…. . AIR 1992 Jammu and Kashmir I.
Monica Variato v. Thomas Variato, Letters Patent . Appeal No. 31/1998, High Court Bombay at Gao.
D.P Joshi v. State of Madhya Bharat . AIR 1955 SC 334.
Smt. Sathya v. Teja Singh . 1975 1 SCC 120
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu . 1984 3 SCC 698
11. The Counsel for the respondent, on the other hand, has contended as follows:
That the Family Court has addressed the several contentions raised by the petitioner and has rightly held in favour of the respondent. There is no illegality or infirmity in the order passed by the Court below. The petitioner is guilty of suppression of material facts. The petitioner had chosen to misuse the respondent's innocence. Further, that the petitioner's remedy would be to file a petition under section 25 of the Code of Civil Procedure, 1908 before the Supreme Court of India and that this Court would have no jurisdiction to deal with the Writ Petition under Articles 226 and 227 of the Constitution of India. That the HM Act is applicable to all Hindus and that it extends to the whole of India and Hindus living in Goa are governed under the Act and therefore, the petitioner and the respondent having admittedly married according to the Hindu rites, the Family Court at Belgaum would have jurisdiction and the present petition is only in order to avoid the petitioner's liability to pay maintenance to the respondent and therefore, the petition be dismissed.
12. The Counsel places reliance on the judgment in J. Fernandes and Company v. The Deputy Chief Controller of Imports and Exports . 1975 1 SCC 716.
13. The Family Court, Belgaum has, by the impugned order, rejected the objection of the petitioner as to jurisdiction, for the following reasons:
That there is no dispute that their marriage was performed at Ramnathi Temple, Fatorda, Margao as per Hindu customs on 17.11.2003 and though the marriage was also registered under the PC Code, Article 5 of the Law of Divorce, Chapter-II, on dissolution of marriage pertaining to Portuguese Family Laws, does provide that a suit for divorce shall be instituted either in the Court of Domicile or in the Court having jurisdiction over the place where the plaintiff resides. Since the respondent, who was the petitioner in the matrimonial case, was residing at Belgaum, the said Article would provide jurisdiction to the Family Court at Belgaum.
14. Further, since the petitioner and the respondent are Hindus by religion and their marriage having been performed according to the Hindu customary rights, they are governed by Hindu law and accordingly, the Family Court would have jurisdiction.
15. Further, the Family Court has also accepted the contention that even under Section 13 of the Special Marriage Act, 1954 (hereinafter referred to as the ‘SM Act’, for brevity) a wife who is the petitioner can present the petition in the Court in whose jurisdiction she resides and therefore has held that the Court would have jurisdiction. The Family Court has also accepted the contention that under Section 7 of the HM Act, the Act is applicable to citizens of India domiciled in territories to which the HM Act extends and therefore, the Court has formed the opinion that it would have jurisdiction to entertain the petition.
16. The questions that arise for consideration in the present petition are:
a) Whether this Court would have jurisdiction to decide the issues arising for consideration under Articles 226 and 227 of the Constitutions of India?
b) Whether the Portuguese Family Law or the Hindu Law would be applicable to the parties herein?
c) If Portuguese Family Law is applicable, which is the Court having jurisdiction and whether the Family Court, Belgaum would have jurisdiction?
The first question need not detain this Court for long. This Court has jurisdiction over the Family Court, Belgaum. Under Article 227 of the Constitution of India it is possible for this Court to examine whether the Family Court, Belgaum has acted without jurisdiction in proceeding to entertain the matrimonial case of the parties, in the face of legal contentions and admitted facts. The answer is in the affirmative. Nibaran Chandrabag v. Mahendranath Ghughu . AIR 1963 SC 1895., Rukmanand v. State of Bihar . 1971 3 SCC 167, Gujarat Steel v. Mazdoor Sabhaw . 1980 2 SCC 593, and Chandra Prakashshah v. State of Uttar Pradesh . 2000 5 SCC 152 etc..
17. In order to consider the second and third questions the following authorities are referred to:
(a) The Counsel for the petitioner has produced the text of a welcome address by Shri. Manohar S. Usgaocar, Senior Advocate, and the then President, of the Goa, Daman and Diu Bar Association, at a Conference on “Family Laws in Goa” while welcoming the Chief Guest, the then Chief Justice of India Shri Y.V Chandrachud. A useful reference may be made to the same. The relevant portion reads thus:
“In this Territory (Goa) we had an uniform Civil Code, which was a self contained Code covering substantive law on the civil side and having 2538 Articles. It was promulgated in Portugal by an enactment, on 1st July 1867. Article 9 of the said enactment empowered the Government to extend the Civil Code to the Overseas Colonies by introducing amendments necessitated by the special circumstances of each Colony. In exercise of such power, the Government by enactment dated 18.11.1869 extended the Civil Code to the Overseas Colonies with effect from 1 July, 1870, safeguarding the Usages and customs of Goa, Daman and Diu which had been codified and to the extent they are not against the morality and public order.
Subsequently, a new enactment was promulgated on 16.2.1888 by which special and private usages and customs of Gentile Hindus of Goa were reviewed and codified in the said enactment, like polygamy in a restricted sense and controlled by the Courts, joint Hindu family, prohibition against succession of illegitimate issues except to few persons, adoption, which were saved. The Decree dated 16.2.1888 replaced the Decree of 1852.
There are also similar enactments dated 10.1.1894 and 19.4.1912 saving the usages of non-christian inhabitants of Diu, and Daman respectively.
The Civil Code referred to above is based on the Napoleanic Code. It contains, inter alia, the law of domestic relations like family laws and of succession.
When the said Civil Code was enacted there was monarchy in Portugal. It was replaced by the Republic in 1910. Immediately thereafter important laws on family matters were enacted, to form part of the said Civil Code. They are:— The law of succession was partly changed by enactment dated 31.10.1910 The dissolution of marriage was permitted by divorce, including by mutual consent. Law was enacted on 25.12.1910 to give protection to some of the Law dated 25.10.1910 to regulate the marriages, illegitimate children and their mothers. These were extended to this Union Territory on 26.5.1911 and the last on 30.10.1913
Article 63 of the marriage law dated 25.12.1910 states that this law shall come into force simultaneously with the enforcement of the law that makes the civil registration of births] marriages and deaths compulsory.
The Code of Civil Registration was enacted by the Decree dated 4.11.1912 and was enforced with effect from 1.1.1914 and the usefulness of these records and acts noted therein is multiple.
In 1930—by enactment dated 16.12.1930 many provisions of the Civil Code were substantially amended.
In 1940 there was an agreement between the State and the Holy See dated 7.5.1940 In pursuance of the same a new enactment No. 35.461 was passed, dated 22.1.1946 (w.e.f 4.9.46), whereby the Christian marriages could be performed before the Church authorities upon the production of a no objection certificate from the Registration Officer, appointed under Code of Civil Registration, and such a marriage would have civil effects if transcribed in the Office of Civil Registration. The canonical marriages were declared indissoluble by Article 4 of the said Decree. So two Catholics married canonically could not divorce, but the same relief was available to two catholics married before the Civil Registration Officer.
This was the state of affairs at the time of Liberation of this Territory of Goa, Daman and Diu in 1961. This territory became part and parcel of Union of India by the 12th amendment to the Constitution of India and all the laws in force were maintained by the Goa, Daman and Diu Administration Act of 1962. The Portuguese laws are hence internal laws.
Subsequently, many other Acts in force in the rest of the country were extended to this territory like the Transfer of Property Act, the Sale of Goods Act, the Contract Act, the Easements Act etc., and correspondingly the provisions of the Civil Code stood repealed pro tanto, but the family laws are still in force.”
To the above historical background the Counsel for the petitioner adds: That, Goa was a Portuguese Colony for over 450 years, before it was liberated and became part of India again, in 1961. The Indian Parliament has maintained all the Portuguese Laws then in force in Goa, until amended or repealed by a competent legislature. There is no serious dispute as to the above legislative history.
b) Parwatawwa, Defendant… v. Channawwa, Plaintiff…., AIR 1966 Mysore 100:
- In this Case decided by a division bench of this Court, the facts are as follows:—
One Siddalingiah died in the year 1954. His wife Siddavva, who survived him, died in the year 1956. One Channawa, claiming to be the second wife of Siddalingiah, brought a suit claiming that she was married to Siddalingiah in the year 1951 in the State of Bombay and she claimed Siddalingiah's properties as his widow to the exclusion of Parwatawwa, who was the daughter of Siddawa and Siddalingiah. Parwatawwa denied the claim. The Munsiff accepted the contention that there was a marriage between Channawwa and Siddalingiah. However, he opined that the marriage was invalid and dismissed the suit. In appeal, the District Judge found that the marriage was a valid marriage and decreed the suit. Parwatawwa was in appeal before this Court. Since the matter involved a question of some importance, it was referred to a Division Bench under the provisions of Section 6 of the Mysore High Court Act.
18. It was not in dispute that Siddalingiah was a permanent resident of the erstwhile State of Hyderabad and that when he married the plaintiff at Nilgond in the then State of Bombay, his first wife was living. After marriage, Channawwa lived with Siddalingiah in the State of Hyderabad, until his death. When the marriage between Channawwa and Siddalingiah was performed, there was a law, namely, the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (hereinafter referred to as the ‘Bombay Act’) forbidding bigamous marriages amongst Hindus. It was for this reason that the Munsiffhad held the marriage to be void. The District Judge, in appeal, however took the view that the provisions of the Bombay Act did not invalidate a marriage between spouses, one of whom was not domiciled in the State of Bombay. Since Siddalingiah had no Bombay domicile, but was a person with Hyderabad domicile and since there was no Hyderabad Law prohibiting polygamy, the marriage, it was said, was not void, although Channawwa was domiciled in the State of Bombay. It was also not in dispute that there was no law operating in the State of Hyderabad prohibiting a polygamous marriage and the Personal Law of Siddalingiah indicated that he had the capacity to contract a polygamous marriage.
19. In this context, the proposition that was examined by the Division Bench of this Court was, whether after the commencement of the Constitution, there was a fusion of the then existing-multitude of domiciles and so it became impossible for a citizen of India to have any other domicile than the Indian domicile. On examination of the legal position, this Court held as follows:—
“(15) The true position, therefore, is that every person belonging to a State forming part of the Union under the Constitution has a status distinct from although subsidiary to that flowing from his Indian domicile or his political status as an Indian citizen, that status having relevance only for certain purposes. For that purpose, it may be possible to say that while a person has the primary Indian domicile which contributes to the acquisition of citizenship, he may have secondary domicile which is the domicile of the State to which he belongs, although the importance of such secondary domicile has relevance only in some spheres. The recognition of such domicile may become imperative where the higher Indian domicile does not and cannot regulate a matter governed by a State law.”
And concluded, upon an extensive study of the case law and other authorities, as follows:—
“(43) The discussion so far made yields the following two rules:
(a) Where the parties at the time of their marriage are domiciled in a country, the laws of which prohibit their marriage, the marriage is void, whether they are domiciled in the same country or in different countries,
(b) Where the laws of the country in which they are domiciled bestow on both the parties capacity for the marriage, the marriage is a good marriage.”
c) K. Radha Krishnan Nayyar v. Radha, AIR 1992 J & K 1:
In this case the parties were married at Madras beyond the territorial jurisdiction to which the Jammu and Kashmir Hindu Marriage Act, 1980 (hereinafter referred to as the “JKHM Act”, for brevity) applied. The husband filed a petition for dissolution of marriage under Section 13 of the JKHM Act in the Court of the District Judge, Jammu. The petition was dismissed on the ground of want of territorial jurisdiction. The petitioner had therefore appealed to the High Court at Jammu and Kashmir. The question of law that was considered was whether the forum of jurisdiction is to be determined with reference to the parties, or the solemnisation of marriage between them, or on the basis of their residence under Section 21 of the JKHM Act, which corresponds to Section 19 of the HM Act, both of which sections employ a phrase “residing outside the territories to which this Act extends”.
The Court held that in a case where marriage has been solemnised outside the State of Jammu and Kashmir, the forum for filing the petition has to be determined under Section 19 of the HM Act and concluded that persons who were governed by the State of Jammu and Kashmir can get relief only in the State and not in any other Court in the country under the Central Act, unless both the parties have settled and have become domicile of a place to which the State Act is not applicable but to which the Central Act alone applies. Accordingly, the Court held that since the marriage of the parties was solemnised at Madras, where the State Act was not applicable, the Trial Court had rightly dismissed the petition on the ground of jurisdiction.
d) Monica Variato v. Thomas Variato, 2000 (2) Goa L.T 149:
In this case, the appellant was a German national who had married the respondent, who was a Goan, under the Special Marriage: Act, 1954 at Mumbai. They presented a petition for divorce by mutual consent under Article 36 of the Law of Divorce, 1910 as applicable in the State of Goa before the Civil Judge, Senior Division, Mapusa, Goa. A provisional order of divorce, for a period of one year in terms of Article 39 of the Law of Divorce, was passed. After the lapse of one year, the appellant filed an application seeking a final decree of divorce. The respondent however, raised objections on a legal issue. It was contended that the appellant continuing to be a German national and their marriage having been solemnised under the provisions of the SM Act, their rights and obligations are governed by that Act and that the Law of Divorce, 1910, as applied in the State of Goa would not apply and that he no longer consented for divorce by mutual consent and sought to withdraw his consent.
By way of a rejoinder, it was contended that for a period of over ten years, preceding the filing of the joint application seeking divorce, the parties were domiciled in Goa and hence, it was not open to challenge the jurisdiction of the Court.
The application for divorce was dismissed by the Trial Court, while holding that the marriage was not transcribed before the Civil Registrar's Office. The Court concluded that there was no marriage between the appellant and the respondent under the Law of the land (Goa). Further, the Court opined that since the parties had married under the SM Act, the proper course was to apply for divorce under that Act before the Court having jurisdiction.
This order of the Trial Court was appealed against before a Single Judge of the High Court-of Bombay at Goa. It was contended that a Portuguese male and a foreigner contracting a marriage in a Code pertaining to marriages. On the other hand,- it was contended by the respondent that SM Act had not been extended to the State of Goa as when the Act was enacted, Goa was not a part of India. The Single Judge dismissed the petition while holding that the petition filed under Chapter III of the Law of Divorce, 1910, as applicable in the State of Goa was not maintainable. The reason being that the parties had married under the SM Act and that it was open for the parties to apply for a divorce under Section 28 of the SM Act. The same was challenged before a Division Bench of the High Court.
The Division Bench of the Bombay High Court at Goa opined that since the marriage was admittedly solemnised under the SM Act at Mumbai and thereafter the parties having been domiciled and having had their habitual residence in Goa, if the tests of Private International Law are applied, the law to be applied would be the Law as applicable in the State of Goa and in that situation, the SM Act would not apply. The Court opined that the above view would be the view if principles of English Private International Law are made applicable and the observations of the Supreme Court of India and for the purpose of Private International Law, the marriage solemnised at Mumbai can be deemed to be a marriage in a foreign country and since the parties are domiciled in Goa, Proceedings for divorce would be as per the law enforced in the State of Goa. But, insofar as the marriages performed under the Personal Laws prevailing in the constituent States of the Union, it is the Personal Law that Would be applicable. Insofar as the parties before the Court were concerned, it would be the SM Act. Though it was on the ground that they are domiciled in Goa, that the appellant had approached the Court, or alternatively, that the respondent was of Goan origin, as there was no evidence on record, to come to any finding on that ground and since there was no material on record to hold that at the time of marriage, the respondent was governed by the Personal Law in force in Goa, including the law of divorce, the appeal was dismissed.
e) D.P Joshi v. State of Madhya Bharat, AIR 1955 SC 334:
The Supreme Court, while addressing the question whether there can be a Madhya Bharat domicile apart from Indian domicile, has held that domicile has reference to the system of law by which a person is governed and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. But it might well happen that laws relating to succession and marriage might not be the same all over the country and that different areas in the State might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.
f) Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 : AIR 1984 SC 1224:
The wife was the appellant before the Supreme Court. She had married the respondent in Punjab and they had moved to England where a boy was bom to them in the next year. Within a short while, after the birth of the boy, the relationship between the parties was strained. The respondent-husband was trapped by the Police when he was negotiating with a ‘hit man’ to have the appellant run over by a car. He was convicted and sentenced to a prison term of three years. After his release from prison, while the appellant was away at work, he had removed the boy from England and brought him to India. The appellant had obtained an order of the High Court of Justice (Family Division) in England under which the boy became a Ward of that Court. She came to India and filed a petition before the jurisdictional Judicial Magistrate seeking the custody of the child. The Magistrate dismissed the petition accepting the contention of the respondent that he was the natural guardian of the minor. The appellant thereafter, preferred a writ petition before the Punjab and Haryana High Court and the petition was dismissed.
In addressing whether the English Court had jurisdiction to decide the question of child's custody, the Supreme Court has opined that the modem theory of Conflict of Laws recognises and in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the off-springs of marriage. The spouses in this case had made England their home where this boy was bom to them. The father could not therefore deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, nor in the normal movement of the matrimonial home, but, by the act which was gravely detrimental to the peace of that home and the fact that the matrimonial home of the spouses was in England establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses.
20. Haying regard to the above facts and circumstances and the legal position that emerges from a reference to the above authorities, it is found as follows: There is no dispute that the parties were married according to the Portuguese Family Law, that is applicable within the State of Goa, and had set up their matrimonial home at Fatorda, Margao. It is the Portuguese Family Law which would apply, insofar as their matrimonial relationship is concerned. The fact that the petitioner and the respondent underwent a Hindu marriage ceremony at a later point of time, would not have the effect of the parties becoming subject to the provisions of the HM Act. The HM Act not having been extended to the State of Goa as on the date of their marriage, (26.12.2002) the said Act and the provisions thereunder would not apply.
21. The reasoning of the Family Court that in terms of Article 5 of the Law of Divorce, 1910, in force in the territories of Goa, Daman, and Diu, does provide that a suit for divorce shall be instituted either in the Court of domicile or in the Court having jurisdiction over the place where the plaintiff has his or her residence, would enable the respondent to institute the petition for divorce at Belgaum is clearly a mis-interpretation of the legal position. Chapter-2, Article 5 of the Law of divorce dealing with contested divorce, provides for grounds and procedure of a contested divorce. Article 5 in particular, reads as follows:—
“A suit for divorce shall be instituted either in the Court of domicile or in the Court having jurisdiction over the place where the plaintiff has his residence; but should the plaintiff reside in a foreign country, the respective suit shall be instituted in the Court of Division of Lisbon.”
From a reading of this provision, it would follow that a suit for divorce by parties governed by the Portuguese Family Law within the State of Goa can file the same in the Court of domicile within Goa or in the Court having jurisdiction over the place where the plaintiff resides (also within the State of Goa). It cannot be construed that a plaintiff who is residing outside the State of Goa could also file a suit or petition for divorce without the State of Goa, as in the present case, in a place where he or she is residing outside Goa. The Courts, in the rest of India, would have no jurisdiction to entertain a suit (petition) under the Provisions of the Portuguese Family Law pertaining to divorce.
22. On the question whether there can be a domicile apart from Indian domicile, in respect of persons who are Indian citizens, the observations of the Apex Court in D.P Joshi's case supra is relevant. The Apex Court has held that domicile has reference to the system of law by which a person is governed. The assumption insofar as the domicile of a country is that the same system of law prevails all over that country. But it might well happen that laws relating to succession and marriage might not be the same all over the countiy and different areas in the state might have different laws in respect of those matters. In that ease, cach area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.
(emphasis supplied)
23. The reasoning of the Division Bench of the Bombay High Court at Goa in Monica Veriato, supra, is also relevant. The Court was applying the principles of English Private International Law as well as the views expressed by the Apex Court in this regard. In the said case, it is to be seen that a marriage between the parties was solemnised under the Special Marriage Act, 1954, at Mumbai and thereafter, the parties having been domiciled at Goa, a question having arisen as to the law applicable in the State of Goa, it was held that since the parties were domiciled at Goa, the Special Marriage Act, 1954 would not apply and that the marriage solemnised at Mumbai can be deemed to be a marriage in a foreign country and that the proceedings for divorce would necessarily have to be as per the law enforced in the State of Goa. By the same token of reasoning, it may be said that the respondent's petition for divorce, even if it is construed as one being under the Portuguese Civil Law, would be akin to the suit being instituted in a foreign country. By virtue of the very Article indicating that if the plaintiff is residing in a foreign country, (though for all purposes the State of Karnataka is not a foreign country vis-a-vis the State of Goa) the law as applicable would indicate that the suit can only be instituted in the Court of domicile. Since the respondent does not reside within the State of Goa, as she is presently residing at Belgaum, it would follow that alternatively, her suit will have to be instituted in the Court of Division at Lisbon. Since this would create a practical difficulty and an expensive one, it would be more appropriate if the respondent were to institute the suit in the place of domicile within the State of Goa. Though the respondent is now living at Belgaum, on the premise that if there was a possibility of reconciliation, her domicile would be that of the petitioner at Goa, it can safely be said that a suit by the respondent would lie in the State of Goa in terms of Article 5 before the Court of domicile.
24. The farther reasoning of the Family Court that the parties are Hindus by religion and since their marriage has been performed according to the Hindu customary rites and that it would be governed by the Hindu law, is incorrect for reasons as already stated.
25. The further opinion of the Family Court that in terms of Section 7 of the HM Act, the Act would be applicable to citizens of India domiciled in territories to which the HM Act extends and hence the Family Court would have jurisdiction, is also incorrect, since the HM Act does not extend to the State of Goa.
26. In view of this, it can be said that the Portuguese Family Law would apply to the parties and the Court having jurisdiction would be the Court of domicile, within the State of Goa.
27. -Accordingly, the writ petition is allowed. In the result, the impugned order at Annexure-G is quashed. The Family Court, Belgaum, is directed to return the Matrimonial case, in M.C No. 75/2006, to the respondent to be presented before the Court having jurisdiction. All contentions as between the parties on merits of the matrimonial dispute, other than as are answered hereinabove, are left Open.