Section 1(2) of the Hindu Marriage Act, 1955, lays down as under:
“(2) It extends to the whole of India and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.”
So, it implies that this Act applies to the whole of India, and it also applies to Hindus domiciled in India who are outside India.
Thus, if a Hindu has domicile in India but is living outside India, this Act will still apply to him or her. But, if there is a Hindu living in another country, who is not domiciled in India, then this Act will not apply to that person.
In that sense, the Hindu Marriage Act has extra-territorial operation (i.e., it applies even outside India) but its extra-territorial operation is applicable only to those Hindus who are domiciled in India even though they may be outside India.
At this stage, I may also point out that Section 2 of this Act makes it clear that this Act also applies to a person who is a Buddhist, Jaina or Sikh by religion. It also applies to a person in India who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. However, this Act does not apply to people belonging to Scheduled Tribes, as defined in the Constitution, unless otherwise notified by the Government of India.
Thus, the meaning of the word “Hindu” used in this Act is quite wide.
In the case of Sondur Gopal v. Sondur Rajini, (2013) 7 SCC 426, the Supreme Court affirmed that the Hindu Marriage Act applies also to Hindus who are domiciled in India.
It may be pointed out that domicile is the status of being a lawful permanent resident in a particular territory. A person can remain domiciled in a territory even after he has left it, if he has maintained sufficient links with that territory or has not displayed an intention to leave it permanently, for example, if that person has moved to a different state but has not yet formed an intention to remain there indefinitely.
In the above case, while referring to the issue of domicile, the Supreme Court pointed out that:
“Domiciles are of three kinds viz. domicile of origin, the domicile by operation of law and the domicile of choice. In the present case, we are concerned only with the domicile of origin and domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child. In domicile of choice one is abandoned and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin.”
“The right to change the domicile of birth is available to any person not legally dependent and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile. Therefore, the person who alleges it has to prove that. Intention is always lodged in the mind, which can be inferred from any act, event or circumstance in the life of such person. Residence, for a long period, is an evidence of such an intention so also the change of nationality.”
Thus, the Hindu Marriage Act applies also to Hindus living outside India if they continue to have domicile in India.
