[2025] EWFC 42Case Nos: ZZ 21 D 62734 / 1660-0404-5491-6060
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 th March 2025
Before
MR. NICHOLAS ALLEN KC(Sitting as a Deputy High Court Judge)
Between
SANDEEP KUMAR CHUGHApplicantLATIKA CHUGHRespondentThe Applicant appeared in person for in personMs. Elizabeth Darlington and Ms. Annabel Barrons (instructed via Advocate)represented the RespondentHearing Hearing dates:19 th– 21 st February 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 4 th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in public and may be published.
[3]To send and receive summons from the court; 64). H’s divorce documentation gave W’s addresses as follows: W/o [W’s father] R/o 25 Shivaji Colony, Sonepat (Haryana) – 131001. At present at: 73 Neville Road, London UK – E7 9QU. Also, at Bureau Veritas Consumer Products Services pvt. Ltd F-5, Sector 8 Noida – 201301 UP (India). The second of these two address is one of the offices of W’s now former employer. 65). The bundle includes two India Post printed receipts which state that on 7th February 2022 at 11.25 am two identically weighted letters/packages were posted by the Family Court to “[W], PIN: 131001, Sonipat HR” and “[W], PIN: 201301 Noida UP”. These correspond to the two addresses that were given in H’s divorce petition. 66). It was initially suggested on W’s behalf that these receipts may be fraudulent although her case was later revised to state that she did not accept that the receipts were valid, but she did not advance a positive case in relation thereto and the burden was on H to prove they were. 67). There is no evidence whatsoever of fraud and had it been pursued I would have rejected the same. I am also satisfied H has discharged the evidential burden upon him that these receipts are genuine not least because the tracking number on one of them (EU756746852IM) matches that on the envelope which was the second of the two documents he provided on the third day (his Indian lawyers having been been able to obtain the same that day from the court file). I am therefore satisfied the divorce documentation was sent by the court to these two addresses. 68). It was also suggested by W that as the addresses on the receipts were incomplete (the equivalent she said of addressing an envelope to “W. London”) they would not have been delivered or, if they were, not necessarily to the correct address. However, these were not the envelopes but the posting receipts and the envelope addressed to W at her father’s address which was subsequently provided has the complete address of the property. 69). W then suggested that absent the tracking confirmation it was impossible to know whether the letters were delivered and if so where and who signed for them. The envelope that H subsequently provided has Hindi script on it under the words “Returned 11/02/2021”. H translated these words as “Recipient is saying she is abroad and they refused to accept it”. W translated them as “She’s outside India and the people in the house cannot take it.” Both are broadly similar and indicate that an attempt was made to deliver the envelope at W’s father’s property, it was said that W was abroad, and delivery was refused. It is of note in this context that in her oral evidence on the second day W stated that “If my father had got it, he would have signed for it” and “[i]f he had got the petition he would have told me – and as he didn’t tell me he didn’t get it”. It would appear from the subsequent provision of the envelope that at least the first of these two statement was incorrect. 70). It is of note that the outside of the envelope made it clear that the sender was the Indian Family Court. It also gave both parties’ names as if in litigation (i.e. with “v/s”), included reference to the “HMA” (i.e. the Hindu Marriage Act), gave the case number and also the date of the next hearing (4th March 2022). Therefore anyone looking at the envelope would glean some understanding of what it may contain even if they refused to accept the same. 71). The first of the two additional documents provided by H on the third morning of the hearing was an extract from the court file. It stated inter alia in the certified translation from the Hindi that (on what was clearly 4th March 2022): Paperbook is presented. Advocate of [H] is present and admitted the registry receipt and tracking report on record. It is ordered that service on [W] on basis of refusal is enough. As per the tracking report, it has been refused to accept the Process. In support of tracking report affidavit is placed on record. Last opportunity is being provided to [W’s] presence and W.S. for [W’s] presence and W.S. to be presented on date 22-03.2022. Thereafter on 29th March 2022 it is recorded that: Service on [W] on basis of refusal is enough. It has been denied to accept the Process. In Support of tracking report, affidavit is placed on record. Last opportunity for [W’s] presence and W.S. 29-03-2022. 72). The document then records that W was absent on 29th March 2022 so the petition was to proceed against her thereafter ex parte to be presented on 26th April 2022. 73). I was invited on W’s behalf to be extremely cautious of this document on the basis that it had been produced at the eleventh hour (albeit at my request at the end of the second day) and W therefore did not accept the veracity of the same. However, there is no reason for me to doubt its authenticity whether on this basis or otherwise. It is certified as authentic by a Notary Public. It is stamped as being “Valid for foreign country out of India”. I accept it was extracted from the court file by H’s Indian lawyers and it is genuine. It confirms that it was ordered that service on W on basis of refusal is enough which is consistent with what H had said in his earlier evidence. 74). The judgment of Smt Sneha Negi, Additional Principal Justice, Family Court, Gautham Budh Nagar dated 20th September 2022 – which granted H his divorce - stated inter alia as follows: Summons / notices were sent to [W] by the court, but [W] didn’t appear in the court. On date 04.03.2022 this court has considered the service of the summon as sufficient to [W], on date 29.03.2022 the subsequent proceedings were proceeded further against the respondent as ex-parte. And later: It is evident from the examination of the paper book that despite the service of the summons being served the respondent did not appear in the court … 75). In my view it is clear from the foregoing that an attempt was made to deliver the divorce documentation at W’s father’s address but he (or someone on his behalf) refused to accept it and this refusal was sufficient for the Indian court to deem good service and thereafter to hear the case notwithstanding no appearance by W. 76). FLA 1986 requires the court to ask itself four questions: a) was the divorce “effective” in India? – s46(1)(a); b) what “facts” are implied by the official Indian divorce documents, and how does the level of W’s “participation” in the proceedings govern whether they bind this court? – s48; c) were “reasonable” steps taken to give notice or the ability to participate? – s51(3)(a); and d) is there a public policy objection to recognition? – s 51(3)(c). 77). I shall address these four questions in turn. s46(1)(a) 78). Based on Ms. Munira’s expert opinion, which I accept, I find that a court in India would find the divorce was effective. As she states the decree of divorce “is Valid as far as the Jurisdiction, domicile, and grounds are concerned”. She concluded that the divorce “would be considered valid under the relevant personal laws, provided that the essential requirements of the respective laws were met, which can now only be decided … in the Set aside application.” 79). Ms. Munira also opined that although a decree nisi had been made by the date of the Indian divorce this would not have been recognised as a divorce decree granted in a foreign jurisdiction. s48 80). FLA 1986 deals with the evidential position of any express or implied facts in relation to the divorce, and differentiates between two scenarios namely(i) where both parties “took part in the proceedings” (s48(1)(a)), in which case any such findings are conclusive evidence of the facts found; and(ii) in any other case, such findings are “sufficient proof unless the contrary is shown” (s48(1)(b)). FLA 1986 s48(3) states that “a party to the marriage who has appeared in judicial proceedings shall be treated as having taken part in them”. 81). In A v L (Overseas Divorce) [2010] 2 FLR 1418 Sir Mark Potter P stated at [70]: There is no statutory guidance as to the precise meaning of the word 'appeared' in this context. However, it is plainly a word which requires something more than mere proof of service, whether by means of the active participation in the proceedings of the party concerned, either in person or through a representative, or at the very least by means of some formal step taken, at least equivalent to the entry of an appearance in English proceedings. 82). Neither party referred me to s48. However, as it is accepted that W took no active part in the Indian divorce proceedings before the decree was made (whether in person or through a representative) I proceed on the basis she did not “appear” in the proceedings before they were concluded, and therefore this opens up the possibility for me to decline to find the facts expressed or implied within those proceedings are true. s51(3)(a) 83). In this context much emphasis was placed on W’s behalf on the fact there is no reference in the Indian divorce proceedings to the Power of Attorney dated 10th August 2021. It was said (i) despite the breadth of its wording it needed to be specifically admitted/accepted/registered in each separate set of proceedings for it to be valid; (ii) W had originally executed it in relation to the Restitution of Conjugal Rights proceedings having received notice from the court by email of a hearing on 12th August 2021 and her wanting her father to attend on her behalf;(iii) H had confirmed to the SJE that it was not filed with/submitted within the divorce proceedings; and(iv) the SJE confirmed the same stating that it was “not accepted and recognized by the Family Court of Noida” and in the divorce decree of 20th September 2022“there is no whisper about the Power of Attorney of [W]”. 84). Against this background it was said on W’s behalf that if satisfied (as I am) H has discharged the evidential burden in relation to the postal receipt I am required to consider: a) the propriety of the attempt to serve W at her father’s address when the Power of Attorney did not extend to the divorce proceedings in India (and W could not file it in relation to them as (it is said) she did not know about them) and it is not referred to in any of the divorce documents; and b) the divorce documents imply that W can be served (or at least contacted) at her father’s address (i.e. H had made a positive statement that W could be contacted at that address when he knew she was not living there) and I ought to conclude the Indian court did not fully understand W was not living in India at all or was under a misapprehension that she was when it ordered service at that address to be good service. 85). In other words, it was suggested that (i) the Indian court may have erroneously authorised service on W’s father acting as W’s agent without the Power of Attorney having formally been admitted or registered; or (ii) the Indian court may have thought there had been service at address W was living at when this was not the case. In either case, despite the Indian court having been satisfied as to service, I should conclude that reasonable steps had not been taken to give W notice of the proceedings. 86). In support of this submission reference was made to Duhur-Johnson in which the husband sought a stay of the English divorce arguing the court was bound to recognise his Nigerian divorce as valid. The Nigerian court had ordered substituted service by the posting of the divorce petition to the property at which the wife supposedly lived but H had not informed the Nigerian court or his lawyers that W lived, or might live, in England. By the husband's failure to inform either his Nigerian court or his lawyers about the likelihood of the wife being in England, it was held the Nigerian court had been misled in a material way and hence the divorce was not recognised. Given that in this case H knew that W was not living at her father’s property but was living in England and there was no order (or at least H had not produced an order) where there court had formally directed substituted service at W’s father’s address then a fortiori one attempt at service at this address was not “reasonable steps”. 87). Accompanying the first document H provided on the third morning of the hearing was an extract of what he said were the relevant procedural rules. I believe they were taken from the Code of Civil Procedure 1908 The First Schedule Order V (Issue and Service of Summons) (as amended). The relevant parts are as follows (emphasis added):[9]Delivery of summons by Court.— (1). Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or senteither to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court. (5). When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant: Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons. 88). It is clearly unsatisfactory these rules were provided to me when they were and I have not had the benefit of SJE opinion specifically addressing these particular rules (albeit the Code of Civil Procedure 1908 is referenced several times in the SJE’s report). However, doing the best I can I am satisfied that(i) the Indian court was satisfied that W had an “agent” resident within the jurisdiction of the court (i.e. her father) who was empowered to accept the service of the summons and, as there was no direction otherwise, the summons was validly served on him by an approved method; and(ii) the court was satisfied that W’s agent had refused to take delivery of the summons when tendered to him and had declared that the summons had been duly served on W. This is of course consistent with what was recorded by the court on 4th March 2022 and in the Indian judgment of 20th September 2022. 89). I consider the focus on the Power of Attorney is something of a red herring. I am not tasked with determining whether service of the process at W’s father’s address would only be “reasonable steps” if it were done pursuant to his holding a Power of Attorney to act on W’s behalf and if this is affected by whether or not the Power of Attorney had been formally admitted/registered within the Indian divorce proceedings. The question for me is ultimately a simple one: given that W was living in England and not India (and H knew this to be the case) in giving her father’s address as (in effect) her primary address for service and where (as I have found) the court attempted to serve the documents but receipt was refused (for whatever reason) did H take “reasonable steps” to notify W of the divorce proceedings in advance of them taking place taking into account all the circumstances and the nature of the overseas proceedings, and judging the same by English standards as a question of fact. 90). I am satisfied that H did. This is the case whether or not there was a specific order of the Indian court directing service on W’s father, whether or not the Indian court knew about the Power of Attorney (H stating to the SJE that the court was “updated” and “informed” about it but it was not “submitted”) and whether or not it had been formally accepted and recognised in relation to these proceedings. 91). I do not consider that although H knew W was living in England “reasonable steps” required her to be served in this jurisdiction at 73 Neville Road (being her “last known address”) or otherwise. In this context it is of note that when it was suggested to H that he knew W was living at that address he said it was a “random guess” as it was where the parties used to live in shared accommodation. It is certainly unlikely that W would have wanted H to know where she was living in England (having returned there with N without informing him) and this is also consistent with the fact that when W filed her English divorce petition on 30th July 2021, she filed a C8 (confidential contact details) giving the Neville Road address. 92). Ms. Darlington relied on paragraph [41] of Mostyn J’s judgment of 12th November 2021 in which, having referred to the issue by W of divorce proceedings, states that H “has not responded to the divorce petition. In his evidence before me, the father appeared unwilling to consider divorce at this stage”. She submitted this supported the fact that W was not made aware of H’s divorce petition even though H had applied for the same on 5th July 2021. In his evidence H stated he had been seeking to convey that if W agreed to come back to India he would withdraw his application. Whether or not this is correct, I do not consider that these words can bear the weight that Ms. Darlington seeks to put upon them: both because it could be a reference solely to the English proceedings and because in any event this was not the focus of that hearing. 93). Ms. Darlington also relied on an email from W sent to H’s then solicitors (Goodwins Family Law) on 19th July 2023. This was sent in reply to an email from H’s solicitors of the same date. I assume W had been served with H’s Application Notice dated 18th July 2023 in which he sought a stay of W’s financial remedy application “as the Financial Matters have been dealt with in India” and said “[H’s] Divorce Application was already issued in the Indian Court and finances are dealt with within those proceedings. A letter is attached to this application from [H’s] Indian Lawyer dated 18 July 2023.” In her email in reply W stated inter alia as follows: Thanks for sending these documents over to me. This is the first time I had ever heard of the divorce proceedings [H] is mentioning. He never mentioned anything about the divorce being filed and the decree granted to him in 2022 to any of the courts in India or in the UK till date. Can you please ask [H] to provide the Original Certified copy of the Divorce Judgement and the Divorce Decree for which the translation has been attached. In addition, please ask [H] to provide all the statements/evidences that he filed during his divorce case in the Court in India with complete details including the date of filing, Name and address of the Court and the Judge who dealt with the case, any interim orders and notice(s) of service to the applicant [W]). 94). I do not consider that W is being entirely truthful in this email. It may be that given service of the divorce documents was refused W had not previously seen any of the Indian divorce documentation. However, as W accepted in answer to one of my questions, she has a “normal” relationship with her father and they frequently spoke about the various court cases in India in which she and he were involved whether as a party or (in his case) also as representing W. I find that whoever was asked to receive the envelope with the summons (whether it was W’s father or another individual) and refused to accept it informed W of the same particularly given what was written on the outside of the envelope. I am therefore satisfied notwithstanding what W said in this email this was not the first time that she had heard of the divorce proceedings. 95). I also do not consider that it can be said that the Indian court did not know W was not living in India at all or was under a misapprehension that she was. The SJE report states that the Family Court of Noida in India “was aware” that W was living in the UK before the case was filed (internal page 5 of 29). This is consistent with the fact that the divorce petition itself states W is “at present” at the 73 Neville Road address and paragraph 26 of the petition states H “came to know” that W was in London. This suggests the Indian court did understand that W was not living in India and/or was not under a misapprehension that she was. 96). Ms. Darlington was also critical of what she described as the somewhat evolving nature of H’s case and, in particular, he had not suggested until the final day of the hearing that the divorce documentation had been served at W’s father’s address but receipt had been refused. Whilst this is a valid criticism, I consider it carries less weight when a party is acting in person in what is a complex case. Further, W’s case also evolved in light of the additional documentation that was produced. I do not consider that this has any real bearing on the issues I have to determine. 97). For completeness, I note that (i) although H’s divorce petition gave two email addresses for W he was aware from an email from W sent on 8th September 2021 that she had blocked receipt of any emails from him and they would all be deleted on arrival. He therefore could not have served the divorce proceedings on her by this route; and (ii) the bundle included W’s application dated 8th August 2023 seeking to set aside the Indian divorce decree. It was accepted on W’s behalf that above the word “Applicant” is W’s father’s signature. There is no express reference to (or record of) the fact that this had been filed pursuant to the Power of Attorney. 98). In light of my findings and this analysis I am satisfied that reasonable steps were taken and/or W had a reasonable opportunity to participate in the divorce proceedings. 99). If I am wrong about the foregoing and the fact that H served the proceedings at W’s father’s address and the work address of her employer meant that he did not take such steps to give notice as should reasonably have been taken and/or he did not give W such opportunity to take part in the proceedings as should reasonably have been given and/or W was being wholly truthful in her email of 19th July 2023, then I would still not exercise my discretion (“may be refused”) in favour of not recognising the divorce. I do not consider that W should be able to take advantage of the fact that service of the divorce summons/notice at her father’s address was refused. In my view this would be the appropriate exercise of the two-stage process as described in Olafisoye v Olafisoye (No. 2) (Recognition) – namely were the appropriate steps taken, and if not, should the court separately exercise its discretion. If the appropriate steps were not taken I would still therefore not exercise my discretion for this reason. 100). In reaching this conclusion I bear in mind the comments in Olafisoye v Olafisoye (No. 2) (Recognition) per Holman J at [36] that “[t]he effect of non-recognition here of a divorce which is effective in the country where it was made is the create a so-called ‘limping marriage’ i.e., that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.” s51(3)(c) 101). I have already rejected W’s initial submission (one that in the end was not pursued) that the postal receipts on which H relies were manufactured. Having done so there is no basis upon which I can decline to recognise the divorce on public policy grounds. 102). I shall therefore recognise H’s Indian divorce. 103). In reaching this decision I recognise that there are times when H’s credibility has been properly impugned. These include: a) the hearing before Recorder Stirling on 14th July 2021 when is recorded that that “both parties confirmed no divorce proceedings, including any associated financial proceedings, had been instigated in any jurisdiction.” This is clearly untrue as H had applied for a divorce nine days earlier; and b) the first hearing before me on 23rd May 2023 I was told by H that he had made an application to stay the English proceedings but neither W, her McKenzie Friend nor the court court had any record of receiving the same and H was unable to locate the same in his email ‘sent’ folder. I therefore directed H to file the application “previously made” by 20th June 2023 but it was a new application notice for a stay not an earlier one that H’s then solicitors filed on 18th July 2023. I am therefore satisfied that H had not filed an application for a stay as of 23rd May 2023. 104). Although these are both instances of H not having told the truth they are not material to my analysis and decision. Jurisdiction 105). Given my decision above I do not need to go on to consider the issue of the jurisdictional validity (or otherwise) of W’s divorce petition of 30th July 2021. However in case I am wrong as to the foregoing I shall do so. 106). Following the UK’s departure from the European Union, the law as to jurisdiction is as set out in DMPA 1973 s5(2) (as amended): (2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) on the date of the application— (a). both parties to the marriage are habitually resident in England and Wales; (b) both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there; (c). the respondent is habitually resident in England and Wales; (c.a) in a joint application only, either of the parties to the marriage is habitually resident in England and Wales; (d) the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made; (e) the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made; (f). both parties to the marriage are domiciled in England and Wales; or (g). either of the parties to the marriage is domiciled in England and Wales. 107). H is of course the respondent for the purposes of DMPA 1973 s5(2). As noted above it is (c) (i.e. “the respondent is habitually resident in England and Wales”) and (g) (i.e. “either of the parties to the marriage is domiciled in England and Wales”) upon which W now relies and in relation to which she wishes to amend her petition from (a) (i.e. “both parties to the marriage are habitually resident in England and Wales”). Habitual residence 108). I sought to summarise the principles relating to habitual residence in TI v LI [2024] EWFC 163 (B) at [91] as follows: a) habitual residence connotes a genuine connection between a person and a member state (Z v Z (Divorce: Jurisdiction)[2010] 1 FLR 694 per Ryder J at [42];V v V (Divorce: Jurisdiction)[[2011] 2 FLR 778] per Peter Jackson J (as he then was) at [39]); b) the definition of habitual residence is“the place where the person has established, on a fixed basis, the permanent or habitual centre of his interests, with all the relevant factors being taken into account for the purpose of determining such residence”(L-K v K (No. 2) [2007] 2 FLR 729 per Singer J;Marinos [v Marinos [2007] 2 FLR 1018]]; Z v Z). It is not possible to have more than one habitual residence at the same time (Marinosat [38];Z v Zat [41]); c) inTan v Choy[2015] 1 FLR 492 at [31] Aikens LJ identified that habitual residence required the satisfaction of three tests (i) that there is a permanence or stability in the residence of the individual in the relevant territory; (ii) that this location is the centre of the person’s interests; and(iii) the individual has, at the time, no other habitual residence; d) the interpretation of habitual residence involves not a purely quantitative evaluation of the time spent by a person in a particular place but instead a qualitative evaluation of all the facts pertaining to an individual’s links with a place (Z v Zat [37]). The enquiry is highly fact specific. An individual’s centre of interests is identified by taking into account all relevant factors, including both intention and objective connecting factors (Z v Zat [41]). Intentions matter in the sense of the reasons for a party’s actions (V v Vat [38]); e) the centre of interests does not have to be permanent but rather habitual (L-K v K (No. 2)at [38]) it must have a stable character (Z v Z at [41]); f) the establishment of a centre of interests can take place over a long or a short time; length of time is not a conclusive factor (L-K v K(No. 2)at [38];Z v Zat [37] and [40]); and g) there is nothing to prevent the acquisition of an habitual residence simultaneously with the loss of a previous habitual residence or immediately after arriving in a country (Marinosat [89-90]). 109). Although Ms. Darlington made submissions in relation to H’s habitual residence in England and Wales she did not press this particularly hard. I consider that she was right not to do so. Given that H has lived and worked in India since 27th June 2019 (save for the period of time he worked in the USA which was extended by Covid-19), has no family (save for W and N) in this jurisdiction and has family responsibilities in India, I reject the submission that H was habitually resident in England and Wales as at 30th July 2021. Domicile 110). Ms. Darlington’s primary focus was in relation to W’s domicile and therefore, as it is common ground that W has domicile of origin in India, whether she had (re)acquired a domicile of choice in England and Wales between 8th May 2021 (the date that she and N returned to England) and 30th July 2021 (the date of filing of her petition). 111). The common law concept of domicile was summarised in Barlow Clowes International Limited v Henwood [2008] BPIR 778 per Arden LJ (as she then was) at [8]: (i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it. (ii) No person can be without a domicile. (iii) No person can at the same time for the same purpose have more than one domicile.(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.(v) Every person receives at birth a domicile of origin.(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice.(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious … 112). In Udny v Udny (1869) LR 1 Sc & Div 441 Lord Westbury stated: Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established … 113). In Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178 Buckley LJ stated that Lord Westbury's phraseology in Udny v Udny required some further definition: … I do not think that it is necessary to show that the intention to make a home in the new country is irrevocable or that the person whose intention is under consideration believes that for reasons of health or otherwise he will have no opportunity to change his mind. In my judgment, the true test is whether he intends to make his home in the new country until the end of his days unless and until something happens to him to make him change his mind. 114). A domicile of choice is therefore acquired by the combination of (i) residence in a country (which is this context means physical presence as an inhabitant); and (ii) an intention of permanent or indefinite residence (the animus manendi). These two elements must also co-exist. 115). The question whether a person has acquired the necessary intention sufficient to change a domicile is a question of fact and the burden of proof lies upon the propositus (i.e. W in this case). As to the standard of proof there are several authorities which suggest that it may go beyond the mere balance of probabilities. Whether or not this is correct, it has been said on numerous occasions (see for example Steadman v Steadman [1976] AC 536) that the burden of proving a domicile of origin has been lost is a very heavy one. This is because it has something of an ‘adhesive’ quality given (i) the burden is on whoever alleges that they have acquired a domicile of choice to prove it; and (ii) the acquisition of a domicile is regarded as a serious matter which is not lightly to be inferred from slight indications or casual words (Winans v Another v Attorney-General [1904] AC 287 and Re Fuld, Decd (No, 3), In the Estate of; Hartley and Another v Fuld and Others [1968] P 675). 116). The court will view a person’s conduct as a whole. Every case has to be assessed separately, with particular attention to the history and personality of the person in question. The importance of any one fact is relative: the real question is what the proper conclusion is to be drawn from all the circumstances. 117). In their position statement Ms. Darlington and Ms. Barrons summarised their case as follows:[70]W points to the following indicators in support of her position that at the time of the petition the UK was her domicile of choice: a). From 2012 she had lived and worked in the UK; b). [K] was born in the UK; c). W was granted indefinite leave to remain in 2017; d). They resided in the property [in London], which they regarded as their permanent home in the UK; e). W has been employed in the UK since 2014 with her most recent employment commencing in January 2018; she was on maternity leave from 1st February 2019 with the intention of returning to work in October 2019 (however this was delayed due to being unable to travel back from India); f). W has paid all necessary taxes and NI contributions in the UK; no declaration of a transfer of residence for tax purposes was made either in the UK or India; g). In May 2017 W registered a company in her name and opened business accounts in the UK with the intention of starting and operating her own business; the company remains active, although W was removed as a director by H upon her return to the UK in May 2021; h). Between 2012 and June 2019 W was outside the UK for a total of 136 days only, including holidays; i). W maintained her bank account in the UK which contained approximately £20,000; j). W was compelled to accept temporary employment in India only in November 2020 in order to support herself and the children; k). [N] arrived in the UK at 6 months. She attended nursery and subsequently enrolled in school in the UK. [N] has always considered the UK her home; l). [N] participated in swimming, music, drama and gymnastics clubs; m). W continued to maintain close relationships and social connections with friends, colleagues, and community members during her absence. She regularly communicated with them and considered the UK to be her permanent home; n). W has kept her healthcare registration in the UK. 118). As I have set out above Mostyn J found W intended permanently to relocate to India in June 2019 and this finding is no longer challenged on W’s behalf. It could, perhaps, be argued that as this finding was not specifically made in the context of a determination of W’s domicile this does not bind me into finding that if W had acquired a domicile of choice in England prior to that date her domicile of origin revived on her return to India. This is not something that was argued before me. Whether or not I am bound by the finding of Mostyn J, this is a conclusion I reach in any event. The question is therefore whether W acquired (or reacquired) a domicile of choice in England on her subsequent return. 119). Given that(i) no person can be without a domicile; and(ii) any circumstance that is evidence of a person's residence, or of their intention to reside permanently or indefinitely in a country, must be considered in determining whether he or she has acquired a domicile of choice there is no restriction on a domicile of choice being (re)acquired within a short space of time. Therefore the fact that only about seven weeks elapsed between the date W returned to England and the date of filing of her petition is just one fact or circumstance to be considered when considering the proper conclusion to be drawn. 120). I also consider that as part of considering “any circumstance” it is relevant that W was returning to England rather than moving to England for the first time. Therefore although many of the matters relied upon by W as set out above pre-date when her domicile of origin revived on her permanent relocation to India (assuming she had previously acquired a domicile of choice) they remain part of all the circumstances for me to consider. 121). Not all of the factors relied upon by W have equal weight (and some may have little or no weight). However taking them cumulatively and also given (i) the circumstances of W’s return to England; (ii) she came with N;(iii) she would also have come with K had she been able to do so;(iv) within a month she had made an FLA 401 application for an occupation order that would permit her to move back into the family home in London;(v) she opposed H’s application for summary return of N to India; and(vi) I am satisfied that she was more likely reacquiring a domicile of choice in this jurisdiction rather than acquiring one for the first time, I have come to the conclusion that it has been proved that by the date of filing of her divorce petition W had acquired a domicile of choice in this jurisdiction. This is the case even if the standard of proof goes beyond a mere balance of probabilities. 122). In reaching this conclusion, I also bear in mind that in January 2024 W acquired British citizenship through naturalisation and surrendered her Indian passport in April 2024 because of her renunciation of Indian citizenship and her acquisition of citizenship of another country. She has not chosen also to obtain (as H has) Overseas Citizenship of India). This action of course post-dates W’s divorce petition by some considerable time. It can therefore do no more than at its highest shed some (retrospective) light on W’s intentions as at late July 2021 but these actions are certainly consistent with someone who has acquired a domicile of choice in this country. 123). H did not address me at all in relation to domicile (or indeed habitual residence) in his submissions save to submit it would be unfair to allow W potentially to amend her petition at this stage and I should refuse her request that I do so. As a litigant in person, it would not have been easy for him to do so. However, I have considered the points he made in writing namely (i) at the time of filing her petition W continued to work remotely for the Indian company Bureau Veritas which is based in Noida; (ii) the SJE considered the Indian divorce to be valid as W “was domiciled in India preceding one Year of the petition”; and (iii) a statement was made to the Indian courts on W’s behalf on 11th February 2025 (as recorded in the Supreme Court’s judgment of that date) that W is “ready to come” to India with N in mid-March 2025. 124). As to the first of these points, W was working remotely before she returned to England and thereafter she simply continued to do so. As to the second, different countries may have differing definitions of domicile, the SJE is an expert in Indian law, and this is an issue for me to determine. As to the third, I am satisfied that this is solely to visit her family in India (and as I understand it also to attend before the Indian court on 18th March 2025 to prove her bona fides) and W will only do so if satisfied that H (or his family) will not seek to retain N if she does so. The position is not one of an unqualified “returning to India” as H implied in his witness statement. 125). For completeness I should record that H also said he did not refer to the issues of habitual residence and domicile as “he was told the focus is on the validity of Indian divorce, so in future if needed he should be given the opportunity to address this point as well.” I am unsure what H was (or was not) told and by whom but I do not consider his comments to be well-founded given that on 6th February 2025 I expressly adjourned W’s application dated 3rd February 2025 to amend the grounds of her petition to be considered at the hearing which began on 19th February 2025. Disposal 126). Although I shall recognise H’s Indian divorce decree I do not consider that it is appropriate for me to dismiss W’s application for divorce given the ongoing proceedings in relation to the Indian decree. As I have already observed, if W is ultimately successful in India and the decree is set aside then my recognition consequently ‘falls’ as there will be no foreign divorce for the English court to recognise. 127). In the circumstances I shall therefore maintain the stay in relation to the suit and W’s financial remedy proceedings that I first imposed on 5th February 2024. If W’s application to set aside the Indian decree fails, the decree nisi shall automatically be set aside, her divorce proceedings will be dismissed (including her application notice of 3rd February 2025 to amend the jurisdictional basis of her petition) and likewise her financial remedy application. If, however, W’s application to set aside the Indian divorce decree is successful, W has liberty to apply to lift the stay in relation to the suit and the financial remedy application. 128). I make the following observations if W does apply to lift the stay: a) the current jurisdictional basis of W’s divorce petition is the habitual residence of both parties. I have found that an alternative jurisdictional ground, that of W’s domicile of choice, would have been the correct one; b) W’s counsel have been unable to find authority on whether the court may give permission to amend the jurisdictional ground cited in a divorce petition after the granting of decree nisi/conditional order or whether the appropriate course is (say) an application for rescission; c) given the date of W’s petition (30th July 2021) the procedural rules are those in force before the rule changes on 6th April 2022 which coincided with the introduction of (so-called) ‘no fault’ divorce. FPR 2010 r7.13 (as then in force) state (i) no permission is required to amend a divorce petition prior to the filing of an Answer or an application for decree nisi; and (ii) permission is required to amend a divorce petition after to the filing of an Answer or an application for decree nisi. The rules are, however, silent as to whether a petition can be amended after decree nisi and if so whether permission is needed (although if it can be it is logical that permission would be required); d) it could the case that the court cannot make such an amendment: the rules should be interpreted as meaning it is only prior to the making of the decree nisi when the petition can be amended. If so I assume the appropriate application would be for the decree nisi to be rescinded and permission then given to amend the jurisdictional grounds of the petition and the other party then be given an opportunity to file an Answer. This would be consistent with cases such as Cazalet v Abu-Zalef [2024] 1 FLR 565 which state that the circumstances in which a decree nisi can be rescinded include (as listed in Re A and B (Rescission of
Order
Change of Circumstances) [2022] 1 FLR 1143 and in NP v TP (Divorce: Application for Rescission of Order) [2023] 1 FLR 270 per Cobb J) “innocent (or otherwise) misstatement of the facts on which the original decision was made” which may suggest that once a decision is made on a particular jurisdictional basis or set of facts that decision would need to be set aside/the decree nisi rescinded rather than simply amending the application form; e) the contrary argument would be one drawn from authorities such as:(1) Rogers-Headicar v Headicar [2004] EWCA Civ 1867 and R v R [2006] 1 FLR 389 both of which suggest that it is the question of whether there is jurisdiction rather than the basis on which it is pleaded that is important (and the court is therefore not bound to accept the statement of jurisdiction made);(2) M v P (The Queen’s Proctor Intervening) [2019] 2 FLR 813 where Sir James Munby P allowed the amendment of a petition post decree absolute where it had wrongly relied on two years’ separation and the applicant wanted to substitute unreasonable behaviour. Munby P thought this could be done by a purposive use of FPR 2010 r4.1(6). However, this was an amendment to the MCA 1973 s1(2) “fact” on which the petitioner relied to establish the ground for divorce (i.e. the marriage has broken down irretrievably) and not the jurisdictional ground;(3) X v Y (Rectification of Decrees) [2020] 2 FLR 981 (Fam) where Sir Andrew McFarlane P allowed by the use of r4.1(6) the amendment of a petition which had incorrectly given the date of the parties’ second marriage. However, again this was not an amendment to the jurisdictional ground; and(4) The Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211 where all the divorce applications were submitted on the first anniversary of their marriages, in other words, a day early. Albeit in the different context of the void/voidable debate, the Divisional Court (Sir Andrew McFarlane P and Her Honour Judge Lynn Roberts sitting as a Deputy High Court Judge) was critical of artificial and overly technical distinctions being drawn in this area and seemed to prefer a more purposive approach. However, in M v P, X v Y and The Lord Chancellor v 79 Divorced Couples all the parties were seeking/hoping for the same result which was consistent with taking a purposive approach. The same might be said of HK v SS (Reconciliation between conditional order and final order. Exercise of discretion r.7.19(6)(b)) [2025] EWFC (B) per His Honour Judge Simmonds. This is obviously not true in this case and may suggest that more caution would need to be exercised; and f) it might also be argued that there is no need for the petition to be amended at all in relation to a jurisdictional ground. If the pleadings are not binding or determinative (i.e. jurisdiction either exists or it does not) and a decree has already been made, then query the advantage or necessity of amending the petition. The core exercise is that the court satisfies itself that it has jurisdiction an applicable ground and unlike in M v P (as to the wrong ‘fact’) or X v Y (as to the wrong date of marriage) the court does not need to amend the decree itself as the ground for jurisdiction to entertain the petition is not recorded on the face of the decree. 129). The above simply serves to demonstrate that this may well not be a straightforward procedural issue to determine. Given my decision to recognise the Indian decree it will now only arise if W is ultimately successful in relation to her set aside application in India and she applies (successfully) to lift the stay which shall remain in place. Given (at least so far as counsel were aware) the absence of any direct authority on the point I do not consider that it is appropriate for me to make such a determination unless and until it does. 130). I also observe that there remain several factual questions unanswered in this case including: a) how H was able to cancel the Home Rights Notice which W first registered on 15th September 2020 when she first became aware that H was seeking to rent out the family home to which W objected. W alleges (and I suspect this may be right given H’s oral evidence) H used the Indian divorce decree of 28th September 2022 for this purpose and effected its cancellation in January 2023; b) whether when H remortgaged the family home (which he could only do after removing the Home Rights Notice) it was simply for a better rate or whether he raised upto £336,390 as the letter from HSBC dated 24th April 2023 stated that they had “sent the funds”. I use the word ‘upto’ as it is accepted there was an existing mortgage that would have needed to be discharged and understand W believes a further c. £285,000 may have been advanced. W only reinstated the Home Rights Notice on 22nd June 2023; c) whether W was asked to leave her employment with Bureau Veritas in July 2021 because of an intervention by H; and d) how W was able to obtain a CMS assessment for N from March 2022 when H was clearly outside the jurisdiction (with the assessment not being discharged ab initio until October 2023 when the CMS were informed H was not habitually resident in the UK). 131). However, these issues do not arise for determination at least at this stage. 132). I do not consider the stay can simply be open ended. There will therefore be a default provision that W’s divorce proceedings and her financial remedy application shall both stand dismissed automatically on the tenth anniversary of my order if the Indian divorce decree has not been set aside by then/the proceedings finally determined and W has not applied to extend the stay in advance of that date. If the Indian decree has been set aside W should also apply to lift the stay by this date. 133). I record for completeness that Ms. Darlington and Ms. Barrons stated that if I was not persuaded as to the alternative jurisdictional grounds as they subsisted at the date of W’s petition, it would be W’s intention upon her petition being dismissed to file a further petition adopting the approach taken in in Chai v Peng [2015] 1 FLR 637. Given my findings this is not an issue I need to consider further. Conclusion 134). I therefore conclude that (i) the divorce was valid and effective under Indian law; and (ii) this court should recognise the same. 135). H’s application for recognition of the Indian divorce is therefore granted. 136). I do not, however, dismiss W’s divorce proceedings at least not at this stage. I maintain the stay in relation to the suit and W’s financial remedy proceedings I first imposed on 5th February 2024. If W’s application to set aside the Indian decree ultimately fails, the decree nisi shall automatically be set aside, her divorce proceedings will be dismissed and likewise her financial remedy application. If, however, W’s application to set aside the Indian divorce decree is successful, W has liberty to apply to lift the stay in relation to the suit and the financial remedy proceedings. 137). There will be a default provision that W’s divorce proceedings and her financial remedy application shall both stand dismissed automatically on the tenth anniversary of my order if the Indian divorce decree has not been set aside by then/ the proceedings finally determined and W has not applied to extend the stay in advance of that date. If the divorce decree has been set aside an application to lift the stay is also to be made by the same date. 138). Having found that W had acquired a domicile of choice in this jurisdiction as at the date of filing of her divorce petition, consideration of the consequences of this shall be deferred unless and until W makes an application for the stay to be lifted. 139). H indicated that if he was successful in his application (as he has been in relation to recognition but not in relation to the jurisdictional basis of W’s petition) I should order that W bear 50% of the costs of the SJE report. 140). This is a so called ‘clean sheet’ case to which FPR r28.2 and CPR Part 44 (as amended) apply so there is no presumption either of no order for costs or that costs ‘follow the event’ with the unsuccessful party paying the costs of the successful party. My view is the appropriate order in this case is no order for costs and I so order. 141). I shall continue to reserve all proceedings in this jurisdiction to myself. 142). Permission is granted to the parties for this judgment to be disclosed into any relevant proceedings in India. Addendum 143). I circulated this judgment in draft to the parties on 26th February 2025 and asked to be sent suggested editorial corrections and any requests for clarification in the usual way. I received a small number of suggested corrections from both parties on 3rd March 2025 and have incorporated most of the same. I received no requests for clarification. 144). Ms. Darlington and Ms. Barrons confirmed they were instructed by Mrs. Chugh to seek permission to appeal on the grounds that I wrongly found that reasonable steps were taken to serve W when (i) H knew she was not living at the address at which the documents were served but was in fact living in England; (ii) there was no order for substituted service before the Indian courts; (iii) there was no evidence that W’s father saw the envelope containing the documents, still less the contents thereof; and/or (iv) I failed to take into consideration the fact that the Indian court had subsequently set aside the decree (i.e. the Indian court was not satisfied that there had been effective service). 145). I do not consider these grounds either individually or collectively justify permission to appeal being granted. Without prejudice to the generality of the foregoing I observe (as I have done above) that H disputed the Indian court has set aside the decree and it was agreed this was not a dispute I could resolve. Permission to appeal is therefore refused. 146). In accordance with the Practice Guidance: Transparency in the Family Courts: Publication of Judgments issued by the President of the Family Division on 19th June 2024 I indicated to both parties my provisional view that it was appropriate for this judgment to be published. Neither party objected to the same. 147). I also raised with the parties the issue of anonymisation beyond that which I had provided for in the draft judgment (given that technically this case was heard in open court). On Mrs. Chugh’s behalf it was said she had no issue whether the parties’ names were anonymised or not.H sought full anonymisation. Having carried out the “balancing exercise” espoused in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 which has regard to the interests of the parties and the public as protected by ECHR Articles 6, 8 and 10, considered in the particular circumstances of this individual case, I do not consider there are grounds for any greater anonymisation than I have already provided for. My reasons for this include (i) the case was technically one heard in open court; and (ii) none of the Indian judgments involving the parties appear to be anonymised. 148). That is my judgment. NICHOLAS ALLEN KC