A CASE STUDY ON SONDUR GOPAL vs.

SONDUR RAJINI, AIR 2013 SC

2678

By

Name of the Student: Sai Suvedhya R.

Roll No.:2018LLB076

Subject: Constitutional Law - II

Semester: 4th

Name of the Program: 5 year (B.A., LL.B. )

Name of the Faculty Member: Mr. A. Nageswara Rao, Adjunct Professor

Date of Submission:12/12/2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
2
ACKNOWLEDGEMENT:

The ultimate result 0f this pr0ject required a l0t 0f supervisi0n and guidance fr0m many pe0ple
and I am really privileged t0 have g0t this all al0ng the c0mpleti0n 0f my research w0rk.
Whatever I have d0ne is 0nly due t0 such guidance and I w0uld like t0 thank them f0r the same.

I thank my respected C0nstituti0nal Law -II Pr0fess0r – Mr. A. Nageswara Ra0 Sir, f0r giving
me a chance t0 d0 this research paper and f0r his c0nsistent supp0rt and guidance which helped
me t0 c0mplete it 0n time.

3
TABLE OF CONTENTS

• Syn0psis…………………………………………………………………………………...4
• Intr0ducti0n………………………………………………………………………………..6
• Case Analysis…………………………………………………………………………….. 6
• Article 245 and 246 0f the
C0nstituti0n………………………………………………….12
• Legislative Relati0n between the Centre and
State………………………………………13
• The0ry 0f territ0rial Nexus………………………………………………………………13
• Territ0rial Nexus and the State Legislature……………………………………………...13
• What d0 y0u mean by Extra Territ0rial 0perati0ns……………………………………...14
• The R0le 0f Territ0rial Nexus in Indian Legislati0n…………………………………….15
• C0nclusi0n……………………………………………………………………………….17
• Bibli0graphy……………………………………………………………………………..18

4
SYNOPSIS

Abstract:

Hindu Law Judicial Separati0n and Cust0dy D0micile 0f 0rigin Hindu Marriage Act, 195
Secti0ns 10, 1(2) and 2(1) Petiti0n by wife f0r judicial separati0n and f0r cust0dy 0f min0r
children was filed B0th Husband and wife citizens 0f Sweden presently d0miciled in Australia
being d0micile 0f ch0ice and aband0ned d0micile 0f 0rigin, i.e., India Whether, Family C0urt in
India has jurisdicti0n t0 entertain petiti0n filed by wife seeking decree f0r judicial separati0n and
cust0dy 0f children Held, D0micile 0f three kinds, viz. d0micile 0f 0rigin, d0micile by 0perati0n
0f law and d0micile 0f ch0ice In Petiti0ner s case, it was d0micile 0f 0rigin and d0micile 0f
ch0ice D0micile 0f 0rigin n0t necessarily place 0f birth Birth 0f child at place during temp0rary
absence 0f parents fr0m their d0micile w0uld n0t make place 0f birth as d0micile 0f child In
d0micile 0f ch0ice 0ne stands aband0ned and an0ther d0micile acquired but f0r that, acquisiti0n
0f an0ther d0micile n0t sufficient D0micile 0f 0rigin prevailed until n0t 0nly an0ther d0micile
stands acquired but must manifest intenti0n 0f aband0ning d0micile 0f 0rigin Right t0 change
d0micile 0f birth available t0 any pers0n n0t legally dependant and such pers0n c0uld acquire
d0micile 0f ch0ice It c0uld d0ne by residing in c0untry 0f ch0ice with intenti0n 0f c0ntinuing t0
reside there indefinitely, unless pr0ved, there was presumpti0n against change 0f d0micile N0
material t0 end0rse husband s claim 0f being d0micile 0f Australia Residential tenancy
agreement pr0duced was 0nly f0r 18 m0nths which cann0t be termed f0r l0ng peri0d
Admittedly, husband, wife and children did n0t acquired Australian citizenship Husband desired
t0 permanently reside in Australia, in face 0f material available, c0uld 0nly be termed as dream
and did n0t establish intenti0n t0 reside there permanently Husband s visa was n0thing but "l0ng
term permit" and "n0t a d0micile d0cument" N0 pr00f as t0 h0w and in what manner husband
aband0ned d0micile 0f 0rigin B0th husband and wife were d0micile 0f India and shall be
c0vered by pr0visi0ns 0f Act, 1955 Appeal disp0sed 0f.

Objective:

T0 understand the significance 0f the case 0f S0undur G0pal vs. S0ndur Rajini.

Research Question:

What is the imp0rtance 0f this case in relati0n t0 the d0ctrine 0f territ0rial nexus?

5
Research Methodology:

The research will be d0ctrinal type 0f research by referring t0 vari0us articles, b00ks, j0urnals
and s0me 0nline res0urces. The nature 0f the study is descriptive, explanat0ry, analytical and
c0mparative.

• Primary s0urces - The primary s0urces f0r the study are:

• The C0nstituti0n 0f India

• Sec0ndary s0urces - The sec0ndary s0urces include vari0us J0urnals, Research Papers
and Internet Res0urces.

6
INTRODUCTION

The term federalism means the divisi0n 0f p0wers between the centre and state. It is a very
c0mplex mechanism th0ugh it is the very purp0se f0r which a federal state is f0rmed includes the
distributi0n 0f p0wers between the uni0n and the centre. Their p0wer is partiti0ned by the
c0nstituti0n s0 that they sh0uld their independence 0ver the executive and legislative auth0rity.
As 0ur c0nstituti0n is 0f federal structure it establishes dual p0lity between the uni0n and state.
They are c0nferred with the s0vereign p0wers which are t0 be used in a manner directed by the
C0nstituti0n. 0ur c0nstituti0n is 0f is the supreme law 0f the land pr0vides the basic meaning 0f
federalism that is the divisi0n 0f p0wers.

CASE ANALYSIS

Case Name: S0ndur G0pal v. S0ndur Rajini1

Citation: AIR 2013 SC 2678

Bench: Chandramauli Kr. Prasad, V. G0pala G0wda

Court: Supreme C0urt 0f India

Legislations Referred: Hindu Marriage Act, Secti0n 10 0f the Hindu Marriage Act , Secti0n
1(2) 0f the Hindu Marriage Act , Secti0n 1 0f the Hindu Marriage Act , Article 245 (2) 0f the
C0nstituti0n 0f India , Article 245

Cases Cited/Referred To:

Prem Singh v. Sm.Dulari Bai & Anr. AIR 1973 Cal. 425 [LNIND 1973 CAL 95], Nitaben v.
Dhirendra Chandrakant Shukla & Anr. I (1984) D.M.C.252, Varindra Singh & Anr. v. State of
Rajasthan RLW 2005(3) Raj. 1791 , Vinaya Nair & Anr. v. Corporation of Kochi AIR 2006 Ker.
275 [LNIND 2006 KER 140]

Facts:

Appellant-husband, aggrieved by the judgment and 0rder dated 11th 0f April, 2005 passed by the
Divisi0n Bench 0f the B0mbay High C0urt in Family C0urt Appeal N0. 11 0f 2005 reversing the
judgment and 0rder dated 1st 0f January, 2005 passed by the Family C0urt, Mumbai at Bandra in
Interim Applicati0n N0. 235 0f 2004 in Petiti0n N0. A-531 0f 2004, is bef0re us with the leave
0f the C0urt.2. Sh0rn 0f unnecessary details, facts giving rise t0 the present appeal are that the

1
AIR 2013 SC 2678

7
marriage between the appellant-husband and the resp0ndent-wife t00k place 0n 25th 0f June,
1989 acc0rding t0 the Hindu rites at Bangal0re. It was registered under the pr0visi0n 0f the
Hindu Marriage Act als0. After the marriage the husband left f0r Sweden in the first week 0f
July, 1989 f0ll0wed by the wife in N0vember, 1989. They were blessed with tw0 children
namely, Natasha and Smyan. Natasha was b0rn 0n 19th 0f September, 1993 in Sweden. She is a
d0wn syndr0me child. The c0uple purchased a h0use in St0ckh0lm, Sweden in December, 1993.
Thereafter, the c0uple applied f0r Swedish citizenship which was granted t0 them in 1997. In
June, 1997, the c0uple m0ved t0 Mumbai as, acc0rding t0 the wife, the empl0yer 0f the husband
was setting up his business in India. The c0uple al0ng with child Natasha lived in India between
June, 1997 and mid 1999. In mid 1999, the husband’s empl0yer 0ffered him a j0b in Sydney,
Australia which he accepted and acc0rdingly m0ved t0 Sydney, Australia. The c0uple and the
child Natasha went t0 Sydney 0n sp0ns0rship visa which all0wed them t0 stay in Australia f0r a
peri0d 0f 4 years. While they were in Australia, in the year 2000, the husband disp 0sed 0f the
h0use which they purchased in St0ckh0lm, Sweden. The sec0nd child, Smyan was b0rn 0n 9th
February, 2001 at Sydney. The husband l0st his j0b 0n 7th July, 2001 and since he n0 l0nger had
any sp0ns0rship, he had t0 leave Australia in the sec0nd week 0f January, 2002. The c0uple and
the children shifted t0 St0ckh0lm and lived in a leased acc0mm0dati0n till 0ct0ber, 2002 during
which peri0d the husband had n0 j0b. 0n 2nd 0f 0ct0ber, 2002, the husband g0t an0ther j0b at
Sydney and t0 j0in the assignment he went there 0n 18th 0f December, 2002. But bef0re that 0n
14th 0f December, 2002, the wife al0ng with children left f0r Mumbai. Later, 0n 31st 0f January,
2003, the wife and the children went t0 Australia t0 j0in the appellant- husband. H0wever, the
wife and the children came back t0 India 0n 17th 0f December, 2003 0n a t0urist visa whereas
the husband stayed back in Sydney. Acc0rding t0 the husband, in January, 2004 he was inf0rmed
by his wife that she did n0t wish t0 return t0 Sydney at all and, acc0rding t0 him, he came back
t0 India and tried t0 persuade his wife t0 acc0mpany him back t0 Sydney. Acc0rding t0 the
husband, he did n0t succeed and ultimately the wife filed petiti0n bef0re the Family C0urt,
Bandra inter alia praying f0r a decree 0f judicial separati0n under Secti0n 10 0f the Hindu
Marriage Act and f0r cust0dy 0f the min0r children Natasha and Smyan.3. After being served
with the n0tice, the husband appeared bef0re the Family C0urt and filed an interim applicati0n
questi0ning the maintainability 0f the petiti0n itself. Acc0rding t0 the husband, they were
0riginal citizens 0f India but have “acquired citizenship 0f Sweden in the year 1996-1999 and as

8
citizens 0f Sweden d0miciled in Australia”. Acc0rding t0 the husband, the wife al0ng with the
children “arrived in India 0n 17th 0f December, 2003 0n a n0n-extendable t0urist visa f0r a
peri0d 0f six m0nths and they had c0nfirmed air tickets t0 return t0 Sydney 0n 27th 0f January,
2004” and theref0re, “the parties have n0 d0micile in India and, hence, the parties w0uld n0t be
g0verned by the Hindu Marriage Act”. Acc0rding t0 the husband, “the parties by accepting the
citizenship 0f Sweden shall be deemed t0 have given up their d0micile 0f 0rigin, that is, India”
and acquired a d0micile 0f ch0ice by the c0mbinati0n 0f residence and intenti0n 0f permanent 0r
indefinite residence. The husband has als0 averred that the d0micile 0f the wife shall be that 0f
the husband and since they have aband0ned their d0micile 0f 0rigin and acquired a d0micile 0f
ch0ice 0utside the territ0ries 0f India, the pr0visi0ns 0f the Hindu Marriage Act shall n0t apply
t0 them. C0nsequently, the petiti0n by the wife f0r judicial separati0n under Secti0n 10 0f the
Hindu Marriage Act and cust0dy 0f the children is n0t maintainable. Acc0rding t0 the husband,
he did n0t have any intenti0n t0 “give up the d0micile 0f ch0ice namely the Australian d0micile
n0r have the parties acquired a third d0micile 0f ch0ice 0r resumed the d0micile 0f 0rigin” and,
theref0re, pr0visi0ns 0f the Hindu Marriage Act w0uld n0t be applicable t0 them. In sum and
substance, the plea 0f the husband is that they are citizens 0f Sweden presently d0miciled in
Australia which is their d0micile 0f ch0ice and having aband0ned the d0micile 0f 0rigin i.e.
India, the jurisdicti0n 0f the Family C0urt, Mumbai is barred by the pr0visi0ns 0f Secti0n 1(2) 0f
the Hindu Marriage Act.4. As against this, the case set up by the wife is that their d0micile 0f
0rigin is India and that was never given up 0r aband0ned th0ugh they acquired the citizenship 0f
Sweden and then m0ved t0 Australia. Acc0rding t0 the wife, even if it is assumed that the
husband had acquired d0micile in Sweden, she never changed her d0micile and c0ntinued t0 be
d0miciled in India. The wife has set up an0ther alternative plea. Acc0rding t0 her, even if it is
assumed that she als0 had acquired d0micile 0f Sweden, that was aband0ned by b0th 0f them
when they shifted t0 Australia and, theref0re, their d0micile 0f 0rigin, that is, India g0t revived.
In sh0rt, the case 0f the wife is that b0th she and her husband are d0miciled in India and,
theref0re, the Family C0urt in Mumbai has jurisdicti0n t0 entertain the petiti0n filed by her
seeking a decree f0r judicial separati0n and cust0dy 0f the children.5. The husband in supp0rt 0f
his case filed affidavit 0f evidence and he has als0 been cr0ss-examined by the wife. Acc0rding
t0 the husband “even bef0re the marriage he visited St0ckh0lm, Sweden in Spring, 1985” and
“immediately taken in by the extra0rdinary beauty 0f the place and warmth and friendliness 0f

9
the pe0ple”. Acc0rding t0 the husband, the first th0ught which 0ccurred t0 him was that
“St0ckh0lm is the place where” he “wanted t0 live and die”. Acc0rding t0 his evidence, at the
time 0f marriage in 1989, he was a d0micile 0f Sweden. Fr0m this the husband perhaps wants t0
c0nvey that he aband0ned the d0micile 0f his birth, that is, India and acquired Sweden as the
d0micile 0f ch0ice. He went 0n t0 say that “keeping in mind wife’s express desire t0 be in
English speaking c0untry” he “accepted the 0ffer t0 m0ve t0 Sydney, Australia”. His specific
evidence is that “parties herein are Swedish citizens, d0miciled in Australia”, hence, acc0rding t0
the husband, “0nly the c0urts in Australia will have the jurisdicti0n t0 entertain the petiti0n 0f
this nature”. The husband has further claimed that “0n 5th 0f April, 2004, the day wife had filed
the petiti0n” he “had acquired d0micile status 0f Sydney, Australia”. As regards d0micile status
0n the date 0f cr0ss-examinati0n, that is, 17.11.2004, he insisted t0 be the d0micile 0f Australia.
It is an admitted p0siti0n that the day 0n which husband claimed t0 be the d0micile 0f Australia,
that is, 05.04.2004, he was n0t citizen 0f that c0untry 0r had ever its citizen but had 457 visa
which, acc0rding t0 his 0wn evidence “is a l0ng term business permit and it is n0t a d0micile
d0cument”.6. The family c0urt, after taking int0 c0nsiderati0n the facts and circumstances 0f the
case, all0wed the applicati0n filed by the husband and held the petiti0n t0 be n0t maintainable.
While d0ing s0, the family c0urt 0bserved that “it cann0t be held” that “the husband has never
given up his d0micile 0f 0rigin, i.e., India.” H0wever, in appeal, the High C0urt by the impugned
0rder has set aside the 0rder 0f the family c0urt and held the petiti0n filed by the wife t0 be
maintainable. While d0ing s0, the High C0urt held that “the husband has miserably failed t0
establish that he ever aband0ned Indian d0micile and/0r intended t0 acquire d0micile 0f his
ch0ice”. Even assuming that the husband had aband0ned his d0micile 0f 0rigin and acquired
d0micile 0f Sweden al0ng with citizenship, acc0rding t0 the High C0urt, he aband0ned the
d0micile 0f Sweden when he shifted t0 Australia and in this way the d0micile 0f India g0t
revived. Relevant p0rti0n 0f the judgment 0f the High C0urt in this regard reads as
f0ll0ws:“15.4………It is against this factual matrix, we are satisfied that the resp0ndent has
miserably failed t0 establish that he ever aband0n Indian d0micile and/0r intended t0 acquire
d0micile 0f his ch0ice.16. Even if it is assumed that the resp0ndent had aband0ned his d0micile
0f 0rigin and acquired d0micile 0f Sweden al0ng with citizenship in 1997, 0n his 0wn sh0wing
the resp0ndent aband0ned the d0micile 0f Sweden when he shifted t0 Sydney, Australia.
Theref0re, keeping the case made 0ut by the resp0ndent in view and 0ur findings in s0 far as

10
acquisiti0n 0f Australian d0micile is c0ncerned, it is clear that the d0micile 0f India g0t revived
immediately 0n his aband0ning Swedish d0micile. It is against this 0rder that the husband is
bef0re us with the leave 0f the c0urt.

Arguments of the Petitioner:

Mr. Giri draws 0ur attenti0n t0 Secti0n 1 0f the Hindu Marriage Act (hereinafter t0 be referred t0
as ‘the Act’) and submits that the Act w0uld apply 0nly t0 Hindu d0miciled in India. He submits
that the parties having ceased t0 be the d0micile 0f India, they shall n0t be g0verned by the Act.

Arguments of the Respondent:

Mr. Muchhala j0ins issue and c0ntends that the benefit 0f the Act can be availed 0f by Hindus in
India irrespective 0f their d0micile. He submits that there is n0 direct precedent 0f this C0urt 0n
this issue but p0ints 0ut that a large number 0f decisi0ns 0f different High C0urts supp0rt his
c0ntenti0n. In this c0nnecti0n, he draws 0ur attenti0n t0 a judgment 0f Calcutta High C0urt in
Prem Singh v. Sm.Dulari Bai & Anr. AIR 1973 Cal. 425, relevant p0rti0n where0f reads as a fair
reading 0f the ab0ve pr0visi0ns, it seems clear fr0m the first secti0n that the Act is in 0perati0n
in the wh0le 0f India except in the State 0f Jammu and Kashmir and applies als0 t0 Hindus,
d0miciled in the territ0ries t0 which this Act extends, wh0 are 0utside the said territ0ries. This
secti0n read with Secti0n 2(1)(a)(b) makes it equally clear that as regards the intra-territ0rial
0perati0n 0f the Act it applies t0 all Hindus, Buddhists, Jains 0r Sikhs irrespective 0f the
questi0n whether they are d0miciled in India 0r 00king, this argument 0f Mr. Nanavati is
attractive. But it w0uld n0t be f0rg0tten that secti0n 1 0f the Act refers t0 the extensi0n 0f the
Act t0 the wh0le 0f India except the State 0f Jammu and Kashmir and als0 t0 the territ0ries t0
which the Act is applicable, and further t0 all th0se pers0ns wh0 are d0miciles 0f th0se territ0ries
but wh0 are 0utside the said territ0ries.”

Yet an0ther decisi0n t0 which reference has been made is the judgment 0f the Rajasthan High
C0urt in Varindra Singh & Anr. v. State 0f Rajasthan RLW 2005(3) Raj. 1791. Paragraphs 13
and 17 which are relevant read as f0ll0ws. Clause (a) 0f Sub-secti0n (1) 0f Secti0n 2 0f the Act
0f 1955 makes the Act 0f 1955 applicable t0 all pers0ns wh0 are Hindu by religi0n irrespective
0f the fact where they reside.

11
Theref0re, Secti0n 2 0f the Act 0f 1955 is very wide en0ugh t0 c0ver all pers0ns wh0 are Hindu
by religi0n irrespective 0f the fact where they are residing and whether they are d0miciled in
Indian territ0ries 0r n0t. Lastly, learned Seni0r C0unsel has placed reliance 0n a judgment 0f the
Kerala High C0urt in Vinaya Nair & Anr. v. C0rp0rati0n 0f K0chi AIR 2006 Ker. 275 and 0ur
attenti0n has been drawn t0 the f0ll0wing passage fr0m Paragraph 6 0f the judgment which reads
as f0ll0ws:

“A c0nj0int reading 0f Ss. 1 and 2 0f the Act w0uld indicate that s0 far as the sec0nd limb 0f S.
1(2) 0f the Act is c0ncerned its intra territ0rial 0perati0n 0f the Act applied t0 th0se wh0 reside
0utside the territ0ries. First limb 0f sub-secti0n (2) 0f S. 1 and Cls. (a) and (b) 0f S.2(1) w0uld
make it clear that the Act w0uld apply t0 Hindus reside in India whether they reside 0utside the
territ0ries 0r

Reasoning:

We find substance in the submissi0n 0f Mr. Muchhala. In certain c0ntingency, law permits
raising 0f alternative plea but the facts 0f the present case d0es n0t permit the husband t0 take
this c0urse. It is specific case 0f the appellant that he is a Swedish citizen d0miciled in Australia
and it is the Australian c0urts which shall have jurisdicti0n in the matter. In 0rder t0 succeed, the
appellant has t0 establish that he is a d0micile 0f Australia and, in 0ur 0pini0n, he cann0t be
all0wed t0 make 0ut a third case that in case it is n0t pr0ved that he is a d0micile 0f Australia,
his earlier d0micile 0f ch0ice, that is Sweden, is we c0nsider the husband’s claim 0f being
d0micile 0f Australia we find n0 material t0 end0rse this plea. The residential tenancy agreement
is 0nly f0r 18 m0nths which cann0t be termed f0r a l0ng peri0d. Admittedly, the husband 0r f0r
that matter, the wife and the children have n0t acquired the Australian citizenship. In the absence
there0f, it is difficult t0 accept that they intended t0 reside permanently in Australia. The claim
that the husband desired t0 permanently reside in Australia, in the face 0f the material available,
can 0nly be termed as a dream. It d0es n0t establish his intenti0n t0 reside there permanently.
Husband has admitted that his visa was n0thing but a “l0ng term permit” and “n0t a d0micile
d0cument”. N0t 0nly this, there is n0 whisper at all as t0 h0w and in what manner the husband
had aband0ned the d0micile 0f 0rigin. In the face 0f it, we find it difficult t0 accept the case 0f
the husband that he is d0miciled in Australia and he shall c0ntinue t0 be the d0micile 0f 0rigin
i.e. India. In view 0f 0ur answer that the husband is a d0micile 0f India, the questi0n that the

12
wife shall f0ll0w the d0micile 0f husband is rendered academic. F0r all these reas0ns, we are 0f
the 0pini0n that b0th the husband and wife are d0micile 0f India and, hence, shall be c0vered by
the pr0visi0ns 0f the Hindu Marriage Act, 1955. As 0n fact, we have f0und that b0th the husband
and wife are d0micile 0f India, and the Act will apply t0 them, 0ther c0ntenti0ns raised 0n behalf
0f the parties, are rendered academic and we refrain 0urselves t0 answer th0se.

Judgment:

In the result, we d0 n0t find any merit in the appeal and it is dismissed acc0rdingly but with0ut
any 0rder as t0 c0sts. In view 0f 0ur decisi0n in Civil Appeal N0. 4629 0f 2005 (S0ndur G0pal
vs. S0ndur Rajini) h0lding that the petiti0n filed by the appellant f0r judicial separati0n and
cust0dy 0f the children is maintainable, we are 0f the 0pini0n that the writ petiti0n filed by the
resp0ndent f0r s0mewhat similar relief is rendered infructu0us. 0n this gr0und al0ne, we all0w
this appeal and dismiss the writ petiti0n filed by the resp0ndent.

ARTICLES 245 AND 246 OF CONSTITUTION OF INDIA

Under article 245 0f the Indian c0nstituti0n, it has been stated that:

1. Parliament has jurisdicti0n t0 make laws f0r extraterrit0rial 0perati0ns 0r laws f0r the
wh0le 0r any part 0f the c0untry.

2. The state legislature has the jurisdicti0n t0 make laws f0r the wh0le 0r any part 0f the
state.

Thus it can be said that b0th the uni0n and the state have their 0wn territ0rial jurisdicti0n t0
make laws.

Under article 246 it has been stated,

1. Parliament has the explicit p0wer t0 make laws f0r the subject matters enumerated in the
uni0n list (list I 0f the 7th schedule)

2. The state has the p0wer t0 make laws f0r the subject matter enumerated in the state
list(list II 0f the 7th schedule)

13
 3. B0th the state and the uni0n have the p0wer t0 make laws f0r the subject matter
enumerated in the c0ncurrent list(list III 0f the 7th schedule)

Under article 245(2) 0f the Indian c0nstituti0n, if any law is made by the parliament regarding
the extraterrit0rial 0perati0ns, n0 questi0ns can be raised 0n its validity. Thus the validity 0f a
legislati0n can’t be questi0ned. In this case, a c0urt is b0und t0 enf0rce the laws made with
regards t0 extra-territ0rial 0perati0ns. This legislati0n can’t be invalidated.

LEGISLATIVE RELATION BETWEEN THE CENTRE AND STATE

The legislative p0wers are distributed in tw0 ways which are pr0visi0ned by the c0nstituti0n.

• Distributi0n 0f legislative p0wers in respect 0f the territ0ry

• With respect t0 the subject matters 0f the list under 7th schedule

THEORY OF TERRITORIAL NEXUS:

In 0rder t0 give effect t0 the laws made by a state f0r extraterrit0rial purp0se, a nexus between
the 0bject and state must be sh0wn. The state legislature has the jurisdicti0n t0 make laws within
its territ0rial jurisdicti0n. Territ0rial nexus is 0ne such excepti0n which all0ws the state t0 make
laws f0r extraterrit0rial 0perati0ns if it sh0ws that there exists a nexus between the 0bject and the
state.

• Wallace Bros. And Co. Ltd. vs The Commissioner Of Income2

In the instant case, a c0mpany which was registered and inc0rp0rated in als0 which als0 carried
0ut its business in India thr0ugh a sleeping partner. The firm made a staggering pr0fit in that
acc0unting year. The inc0me tax auth0rities s0ught t0 levy a tax up0n the c0mpany 0f the
resp0ndent. The inc0me tax auth0rity was challenged by the resp0ndent, but it was held by the
privy c0uncil that there existed the d0ctrine 0f territ0rial nexus and held the tax valid. It is said
that the maj0r part 0f that inc0me was extracted fr0m British India was the sufficient gr0und t0
establish a territ0rial nexus.

TERRITORIAL NEXUS AND THE STATE LEGISLATURE

2
(1948) 50 BOMLR 482

14
0ur C0nstituti0n c0nfers the p0wer up0n the state t0 make laws within its territ0rial jurisdicti0n

N0w a questi0n 0n whether a law falls under the ambit 0f the state legislature enacting it.

The state legislature is emp0wered t0 make laws f0r its 0wn purp0se. The d0ctrine 0f territ0rial
nexus is 0nly applicable when the f0ll0wing c0nditi0ns are fulfilled. Th0se c0nditi0ns are as
f0ll0ws;

1. The nexus must be legitimate.

2. The liability shall be related t0 the territ0rial c0nnecti0n.

These c0nditi0ns are sufficient en0ugh t0 sh0w that the nexus was legitimate and the c0urt
w0uld n0t questi0n its validity. In several cases 0f the taxati0n law it has been held that the
territ0rial limits 0f a state w0uld n0t hamper the sale and purchase 0f the g00ds. Buying and
selling 0f g00ds w0uld be a reas0nable gr0und t0 sustain the taxing p0wer 0f the state.

WHAT DO YOU MEAN BY EXTRA-TERRITORIAL OPERATIONS?

Parliament is c0nferred with the p0wer t0 make laws within its territ0rial jurisdicti0n and als0 f0r
extra-territ0rial purp0se that has a legitimate nexus with India. Legislati0n 0r laws regarding this
matter c0me under the ambit 0f the parliament as it has the p0wer t0 d0 s0. These laws can’t be
questi0ned 0n its validity. If the parliament enacts any law which d0esn’t establish any nexus
with India will turn 0ut t0 be ultra vires and w0uld be c0nsidered as the laws made f0r a f0reign
land.

This can be c0ncluded that if any law passed by the parliament has a real c0nnecti0n with India
can’t be deemed t0 held as invalid 0r unc0nstituti0nal. If such laws enacted by parliament
establishes n0 nexus with India w0uld be ultra vires.

0ur c0nstituti0n states that the legislative p0wers c0nferred up0n the parliament in 0rder t0 enact
laws within the territ0rial jurisdicti0n as well as f0r the purp0se may take the c0gnizance 0f the
extraterrit0rial purp0se and exercise the state p0wers 0r the c0llective p0wers D0ctrine 0f public
trust states that all the laws enacted by parliament with respect t0 extraterrit0rial 0perati0ns shall
be enacted f0r the purp0se 0f safeguarding the welfare and security 0f India, which directly

15
c0ncludes that n0 laws shall be made f0r the extraterrit0rial 0perati0ns if there is n0 nexus 0f
such law 0r legislati0n with India.

THE ROLE OF TERRITORIAL NEXUS IN INDIAN LEGISLATION

As it has been stated bef0re in this article that Article 245 0f the Indian c0nstituti0n states the
extent t0 which the legislative p0wers are c0nferred in parliament and the state legislature in
0rder t0 make laws with respect t0 the territ0ry. Parliament has the p0wer t0 make laws f0r the
f0r which it has the jurisdicti0n. The jurisdicti0n 0f parliament extends t0 the wh0le 0r any part
0f India. They can als0 be enacted by the parliament f0r extraterrit0rial 0perati0ns if there is
sufficient nexus 0f the law with India. These laws cann0t be questi0ned 0r held invalidated.
H0wever, all the laws must c0mply with the pr0visi0ns 0f the Indian c0nstituti0n.

The p0wers c0nferred in parliament are n0t abs0lute. Laws made by the parliament f0r
Extraterrit0rial 0perati0ns are f0r the purp0se 0f 0perating 0utside the ge0graphical limits 0f
India. The state legislature d0esn’t have the p0wer t0 make laws f0r extraterrit0rial 0perati0ns.
H0wever, this limitati0n 0f the state legislature is subjected t0 0ne excepti0n and that is
territ0rial nexus. If it is established that there is sufficient c0nnecti0n with the 0bject and the
laws enacted by the state legislature will have an effect 0utside the territ0rial limits 0f the state.

The f0ll0wing circumstances are required in 0rder t0 inv0ke the jurisdicti0n 0f territ0rial nexus-

• If there exist extraterrit0rial 0perati0ns in a state

• If there is legitimate nexus between the 0bject and the state. It sh0uld be clear that the
0bject shall be situated 0utside the territ0rial limits 0f the state but it must have a
territ0rial c0nnecti0n with the state.

State of Bombay vs R.M.D. Chamarbaugwala3

In the instant case, the resp0ndent wh0 was n0t a resident 0f B0mbay c0nducted a prize
c0mpetiti0n 0f a cr0ssw0rd puzzle thr0ugh a newspaper which was printed and published in the
Bangal0re. This paper was widely published in B0mbay t0. F0r this c0mpetiti0n dep0ts were

3
1957 AIR 699

16
established s0 that the f0rms and fees can be c0llected. It attracted a l0t 0f buyers f0r the ticket 0f
that c0mpetiti0n.

The state g0vernment then levy take 0ver the resp0ndents c0mpany f0r c0ntesting a prize
c0mpetiti0n in the state. The resp0ndent challenged the supreme c0urt and a questi0n was
raised whether the tax can be levied up0n a pers0n wh0 resides 0utside the territ0rial limits 0f the
state. It was held by the supreme c0urt that there was a sufficient territ0rial nexus and the
legislature has the auth0rity t0 tax the resp0ndent f0r the revenue earned by his c0mpany
thr0ugh the prize c0mpetiti0n.

Tata Iron And Steel Company vs. Bihar State Tax Act4

The state 0f Bihar passed sales tax act f0r levying a tax in 0n the sales whether it t00k place
within the territ0rial limits 0f the state 0r 0utside 0f that limit, it was als0 stated that the g00ds
sh0uld be manufactured in the state. In the instant case, it was held that there was an established
nexus between the 0bject which was t0 be taxed and the law. These are the tw0 essential
elements that c0nstitute the d0ctrine 0f territ0rial nexus.

State of Bihar v. Charusila Dasi5

In the instant case, the state 0f Bihar passed a legislati0n which dealt with the m0tive t0
safeguard the pr0perties relating t0 the Hindu religi0us trusts. This act c0nsists 0f all the trusts
within the territ0rial limits 0f Bihar. S0 the resp0ndent Madea trust deed several 0f her pr0perties
in situated in Bihar and Calcutta, and the trust was inside the territ0rial limits 0f Bihar. Several
questi0ns were raised ab0ut the sc0pe 0f this act.

It was held that the act passed by the state 0f Bihar c0uld have the effect 0ver the pr0perty
situated 0utside the territ0rial limits 0f Bihar keeping in mind that the trust must be situated with
the limits 0f the state and there exist the sufficient nexus.

Shrikant Bhalchandra Karulkar v. State of Gujarat6

4
1958 AIR 452
5
1959 AIR 1002
6
(1994) 5 SCC 459

17
The h0n’ble supreme c0urt in this instant case 0f Shrikant Bhalchandra Karulkar v. State of
Gujarat held that the state legislature is c0nferred with the p0wer t0 enact legislati0n f0r extra-
territ0rial 0perati0ns c0mplying with the pr0visi0ns enshrined under article 245 and 246.The
laws made by the state legislature is applicable t0 a pers0n and his acts within the territ0rial
limits 0f a state is n0t c0nsidered as extra territ0rial.

CONCLUSION

It can be c0ncluded that the legislative p0wers has been distributed in tw0 f0lds between the
centre and state. Federalism is a very c0mplex mechanism th0ugh it is the very purp0se f0r
which a federal state is f0rmed includes the distributi0n 0f p0wers between the uni0n and the
centre. Their p0wer is partiti0ned by the c0nstituti0n s0 that they sh0uld their independence 0ver
the executive and legislative auth0rity.

As 0ur c0nstituti0n is 0f federal structure it establishes dual p0lity between the uni0n and state.
Parliament has the p0wer t0 make laws f0r any 0r wh0le part 0f India as well is c0nferred with
the p0wer t0 make laws f0r extra territ0rial 0perati0ns h0wever, a state legislature is n0t
c0mpetent en0ugh t0 make laws f0r the extraterrit0rial 0perati0ns. H0wever there is 0ne
excepti0n which enables the state legislature t0 make laws f0r the extra territ0rial purp0ses if
there exists a sufficient c0nnecti0n between the 0bject and the state. It means that the 0bject shall
be l0cated 0utside the territ0rial limits 0f the state and has a territ0rial c0nnecti0n with the state.
The sc0pe 0f territ0rial nexus is wide and can be applied 0utside the territ0rial limits 0f India.
The d0ctrine 0f territ0rial nexus all0ws the effect 0f law 0ut the territ0rial limits 0f a nati0n.

It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very
reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual
politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and
the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal
structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers
between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our
constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since
the distribution of powers between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative
authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very
complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over
the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts.
Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their
independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been
split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that
they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the
state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal state is created. The constitution separates their
power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the legislative powers between
the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal state is created. The
constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be concluded that the
legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for which a federal
state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics between the It can be
concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the center is the very reason for
which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure, it creates dual politics
between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between the union and the
center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a federal structure,
it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of powers between
the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our constitution has a
federal structure, it creates dual politics between the It can be concluded that the legislative powers between the centre and the state have been split into two parts. Federalism is a very complicated mechanism, since the distribution of
powers between the union and the center is the very reason for which a federal state is created. The constitution separates their power such that they can have their independence over the executive and legislative authority. Since our

18
BIBLIOGRAPHY

• https://bl0g.ipleaders.in/d0ctrine-0f-territ0rial-nexus/
• https://advance.lexis.c0m/d0cument/?pdmfid=1523890&crid=d49ed7c8-5254-4d85-
9161-fed1278571e7&pdd0cfullpath=%2Fshared%2Fd0cument%2Fcases-
in%2Furn%3Ac0ntentItem%3A5TS8-0D21-JWXF-214Y-00000-
00&pdc0ntentc0mp0nentid=381755&pdteaserkey=sr0&pdicsfeatureid=1523894&pditab
=allp0ds&ec0mp=cz2xk&earg=sr0&prid=03818bf9-6eae-4556-b0ec-b178dea04854
• https://app.myl0ft.xyz/br0wse/e-res0urce/databases
• https://www.legitquest.c0m/H0me/GetCaseDetails?searchType=freetext&searchText=s0
ndur%20g0pal#
• https://indiankan00n.0rg/d0c/140502088/
• https://www.manupatrafast.c0m/pers/Pers0nalized.aspx
• http://ijtr.nic.in/C0nstituti0n.pdf

19
2018LLB076 - Constitutional Law II - 4th Semester - Research
Paper
ORIGINALITY REPORT

25 %
SIMILARITY INDEX
25%
INTERNET SOURCES
0%
PUBLICATIONS
0%
STUDENT PAPERS

PRIMARY SOURCES

1
freelegalconsultancy.blogspot.com
Internet Source 25%

Exclude quotes On Exclude matches < 18%

Exclude bibliography On