DOMICILE

CH.1 INTRODUCTION

It has been universally recognized that questions affecting the personal status of a human
being should be governed constantly by one and the same law, irrespective of where the
facts giving rise to the questions may have occurred. But unanimity goes no further. In
England it has been long settled that questions affecting status are determined by the law
of the domicile of the porosities and that, broadly speaking, such questions are those
affecting family relations and family property. To be more precise, the following matters
are to a greater or lesser extent governed by the personal law; the essential validity of a
marriage; the effect of marriage on the proprietary rights of husband and wife.
Jurisdiction in divorce and nullity of marriage, though only to a limited degree,
legitimacy, legitimating and adoption; wills of movables and intestate succession to
movables.
The concept of Domicile in Common Law and Civil Law are distinct and
different from each other to a great extent. In Common Law domicile means equivalent
of a person's permanent residence and in civil law it means habitual residence. Though
the common law variant may seem very simplistic, there are two variant of the Domicile
Theory, they are Domicile of Origin and Domicile of choice. Domicile of Origin is
communicated through operation of law to each person at birth, i.e., domicile of the
father or the mother, dependent on the legitimacy of the offspring. Domicile of Choice is
that domicile that any person of full age is free to possess instead of the one he already
possesses. The English rule is marred by rules that are very complex, and often leads to
uncertainty in its outcome.

According to WW Cook, the “single conception theory” English law takes the
view that any test that determines place of a person's domicile must remain constant no
matter what the nature of the issue may be before the court.

1|Page
DOMICILE

CH.2 GENERAL RULES

There are five general rules that apply to the concept of Domicile they are:

1) No person shall be without domicile. To bring into effect this rule the law assigns
to every person a domicile of origin to every person at birth, namely to a
legitimate child. The domicile of the mother to an illegitimate child and to
foundling place where the child is found.
2) A person can never have two domiciles. This is to ensure that several factors and
domiciles don’t hurt his life. Therefore for practical reasons it is necessary that a
person shouldn't possess more than domicile. This is also called the law of the
“Law district”.
3) The fact that a domicile might signify a connection with a single system of law,
but the same law might not apply uniformly to all the classes of that people of that
particular domicile.
4) There is always a presumption that a domicile is ever continuing, the burden of
proof lies on the porosities to prove that it has changed. This factor may have a
decisive effect on his case, as the law applied will change drastically.
5) Subject to other statutory exceptions the concept of domicile shall always be
decided according to the English concept notwithstanding any other foreign
concept of law.

2|Page
DOMICILE

CH.3 DOMICILE OF ORIGIN AND DOMICILE OF CHOICE

DOMICILE OF ORIGIN
It is a well-known principle that no person can be without a domicile. For the practicality
in applying this rule the law confers a domicile on every person on birth. This is known
as the domicile of origin. It continues to exist as long as the concerned person does not
acquire another domicile. Even if a person with a view to acquire another domicile gives
up his domicile of origin, it will continue to exist as long as he does not acquire a new
domicile. The moment a person gives up his domicile of choice, his domicile of origin
revives. Since domicile of origin is attributed to every person at birth by operation of law,
the basis of domicile of origin is paternity or maternity. According to English private
international law legitimate child born during the lifetime of father has his domicile in the
country in which his father was domiciled.

A legitimate child born after the death of the father has domicile in the country in which
the mother was domiciled at the time of his birth. An illegitimate child has the domicile
in the country in which his mother was domiciled at the time of his birth. This is also the
position in Indian law except that the legitimate child born after the death of his father
has his domicile in the country in which the father was domiciled at the time of his death.
Thus the domicile of origin is not dependent upon the place where a child is born, or on
the place where a child is born, but on the domicile of the father or mother, as the case
may be. There is only one exception to his rule, viz; domicile of founding is the domicile
of the country in which he is found. Domicile of origin is a creature of law and no person
can give it up totally. Every person must have a domicile and the domicile of origin
continues to exist till a person acquires a new domicile. For the revival of the domicile of
origin it is necessary that the domicile of choice should be abandoned voluntarily.
Another important aspect of the domicile of origin is that it automatically revives by
operation of law on the abandonment of the domicile of choice, whatever time might
have elapsed after its abandonment. This rule results in arbitrariness and injustice. The
Indian Succession Act, Section 13 provides: “A new domicile continues until former
domicile is has been resumed or another has been acquired. Thus under Indian law of
domicile of choice continues until a new domicile is acquired or the domicile of origin is

3|Page
DOMICILE

resumed amino et facto. In the United States also the rule is different; the previous
domicile, whether of origin or choice, is retained till a new one is acquired.

DOMICILE OF CHOICE
Any independent person may acquire a domicile of choice. Whether a person has
capacity to acquire a domicile of choice is determined by the law of his existing domicile.
Under English law, before coming into force of the Domicile and Matrimonial
Proceedings Act, 1973, a minor, lunatic and married woman had no capacity to acquire a
domicile of choice, while under the Indian law a married woman can acquire a domicile
of choice under certain circumstances. For the acquisition of domicile of choice the
following two conditions must be satisfied 1) Residence in the country of domicile of
choice and 2) intention to live in the country of domicile of choice permanently. The
Indian Succession Act, 1925, Section 10 lay down, “A man acquires a new domicile by
taking up his fixed habitation in a country which is not that of his domicile of origin”.
Intention may precede the residence, but the coexistence of intention and residence is
essential for acquiring domicile of choice.

The residence of a person is a tangible fact, from which intention may be inferred, while
intention is an intangible fact which can be gathered from certain facts in which it is
manifested. “Residence” is an elastic term of which no exhaustive definition is possible.
It is differently construed in accordance with the purpose and the context in which it is
used. The meaning of the term and the sense in which it is used are controlled by
reference to the object. In Kumund v Jotindranath1 the Calcutta High Court held that
residence means a place where a person eats, drinks and sleeps, or where his family or
servants eat, drink and sleep. Intention is an act of mind and like other mental facts it can
be gathered from all events and circumstances of the life of a person. The intention must
be fixed and not fickle and must be directed towards one particular place or country. In
the case of refugees they may go to another force not voluntarily but due to pressure of
circumstances and later they may settle down there. “What is dictated in the first instance

1
(1911) 38 Cal .394

4|Page
DOMICILE

may become choice in next instance”. In that case they may acquire domicile of the
country of his refuge. In the Indian case of Mandal v. Mandal2 two Austrian domiciled
persons were married in Vienna in 1936. In 1939, on the invasion of Austria by Nazi
Germany they fled to India. Since they lived in India and had no intention of returning to
Austria. A full bench of the Punjab High Court held that they had acquired a domicile of
choice in India. In case of fugitives there exist two categories:

 Those who go to another country to escape from the consequences of their crime
and
 Those who escape from their civil liabilities.

In such cases there arises an inference that they have acquired domicile of choice in the
new country even though their departure was not voluntary but it can only be confirmed
with the length of stay of the fugitive. Similarly if there is no possibility of fugitive
escaping punishment in case he returns to his country, then it would be a natural
inference that he intended to acquire a new domicile of choice in the country which has
given him refuge. In the case of invalids those who permanently settle down in another
country because of suitability of climate naturally acquires domicile of choice but those
who go to another country for a temporary stay does not acquire domicile. In case of
public servants like Ambassadors, consuls the natural inference is that they do not acquire
domicile of choice in such countries but if a public servant continues to live in that
country even after his discharge from duties then he may acquire domicile of choice in
that country.

2
ILR (1956) Punj.215

5|Page
DOMICILE

CH.4 ACQUISITION OF DOMICILE OF CHOICE

The two requisites for acquiring a domicile of choice are residence and intention. It must
be proved that the person in question established his residence in a certain country with
the intention of remaining there permanently. Such an intention however unequivocal it
maybe per se does not suffice. These two elements of residence and intention must
concur, but this is not to say there need be unity of time in their concurrence. The
intention may either precede or succeed the establishment of the residence. The emigrant
forms his intention before he leaves England for Australia; an emigrant who flees
persecution may not form it until years later. Acquisition can be done through the
following means.

RESIDENCE
In IRC v Duchess of Portland, it was held that Residence in a country for the purposes of
the law of domicile is physical presence in that country as an inhabitant of it. Whatever
weight is given to the length of residence it is undeniable that time is not the sole
criterion of domicile. Both long residence and short residence does not constitute
negative domicile everything depends on the attendant circumstances, for they alone
disclose the nature of the person’s presence in a country. In short, the residence must
answer “a qualitative as well as a quantitative test”. Thus in Joppa v Wood it was held
that a residence of twenty- five years in India did not suffice to give a certain John Smith
an Indian domicile because of his alleged intention ultimately to return to Scotland, the
land of his birth.

THE REQUISITE INTENTION

a) The nature of intention to reside permanently or for an unlimited time in a particular
country is required for the acquisition of domicile of choice. This may however not pose
any difficulty as the word “permanently” is used in its ordinary meaning as signifying the
opposite of temporary‟. The word; “permanent” according to the Shorter Oxford English
Dictionary means “lasting or designed to last indefinitely without change” and this indeed
is the definition that most of the judges have recognized when require to consider the
nature of intention necessary for a change of domicile. In Udny v Udny, for instance,
Lord WESTBURY described the intention as being one to reside “for an unlimited time”.
6|Page
DOMICILE

A more modern statement to the same effect is that of SCARMAN J,

Who referred to an intention to reside “indefinitely”!

b) Evidence of Intention - Most disputes as to domicile turn on the question whether the
necessary intention is accompanied with residence and this question often involves very
complex and intricate issues of fact. This is because “there is no act, no circumstance in a
man’s life, however trivial it may be in itself, which ought to be left out of consideration
in trying the question whether there was an intention to change the domicile. A trivial act
might possibly be weightier with regard to determining this question than an act which
was of more importance to a man in his lifetime.
Therefore to assess whether there is an intention to acquire a particular domicile, there
should be an evidence of intention that should be looked for

c) Voluntary Residence - There may be several circumstances where there maybe doubt
about the willingness of the person to acquire a particular domicile. There are certain
categories of persons who fall suspect in this category.
1) Prisoners: A prisoner retains the domicile of the country which he left before he
was imprisoned.
2) Refugees: In the case of Refugees it becomes difficult, as the factors that forced to
them to flee their domicile, and take residence at a new place, might make
become a matter of choice later on. Although there is a presumption against the
loss of domicile.
3) Fugitives from Justice: If a man leaves his domicile to escape the consequences of
a crime, the presumption is that he has left the place permanently and that there is
a fresh acquisition of a fresh domicile.

7|Page
DOMICILE

CH.5 DOMICILE OF DEPENDENTS

Minors, married women and mentally disordered persons, such as idiots and lunatics, fall
in the category of dependents. In respect of domicile the word ‘Dependent’ is applied to a
person in general who is incapable of having a domicile of his choice. The general rule is
that a dependent person has the domicile of the person he is dependent on. The domicile
dependency, as it sometimes is called, is an imposed domicile and it changes only when
the person on whom the dependent is dependent changes his domicile. A dependent
person can’t abandon his dependency. Thus, a wife who lives separately from her
husband, a minor who ran away from his parents and a lunatic who live s in another
country cannot claim a domicile of their own. It is only in one case that a dependent can
get a new domicile. This happens when a female minor marries. But then what she
acquires is the domicile of her husband. Where the person on whom they are dependent
on dies or if they have no one to depend on, then the dependent’s domicile cannot change
at all. These statements of law in respect of English law have to be read subject to certain
qualifications, since the Domicile and Matrimonial Proceedings Act, 1973 had made
some changes relating to married women and minor children.

Under English private international law, the capacity to acquire new domicile is governed
by English law and not by the law of the previous domicile or by law of the intended new
domicile.3 There are basically three classes of dependents, viz., minors, married women
and mentally disordered persons.

MARRIED WOMEN
In Gray v Formosa4, a rule was underlined that ‘domicile of a married woman is, during
covertures, the same as, and changes with the domicile of her husband’, this was the basic
common law principle of unity of the person of husband and wife. According to
Blackstone, “By marriage, the husband and wife are one person in law, i.e., the very
being and legal existence of woman is suspended during the marriage, or at least is

3
Re Beaumont, (1893) 3 Ch 490
4
(1963), P. 259

8|Page
DOMICILE

incorporated and consolidated into that of husband, under whose wing of protection and
cover she performs everything… Upon this principle of union of person in husband and
wife depends almost all the legal rights, duties and disabilities that either of them
acquired by the marriage.” This rule is also expressed by saying that the husband’s actual
and the wife’s legal domicile are one, wherever the wife maybe residing. By a valid
marriage, the domicile of the wife becomes that of the husband, and the fact that married
couple is living apart under separate agreement, or a husband has deserted the wife, does
not render her free to choose a domicile apart from his.

In Lord Advocate v Jaffery5, one Mrs. Mackinson was married on June 26, 1876 to one
Robert Mackinson who was born in Campbel town, Aberdeen and at the time of marriage
was a Chief Quartermaster in the Navy. On retiring from the Navy in 1886 till 1893, he
lived with his wife in Aberdeen. In 1893, owing to his drunken and dissipated habits, it
was arranged; at the instance of his wife that Mackinson should leave Scotland for
Australia and his passage out was paid by Mrs. Mackinson’s mother. He reached Sydney
and for some time remained in New South Wales. Sometimes before, June 1902, he went
to Queensland and resided in Brisbane where he died on January 1, 1918. On June 2,
1902, he went through a form of bigamous marriage with one Willhemina, with whom he
lived until his death, and from whom he had two children. After his departure from
Scotland no communication passed between him and his wife. In 1915, Mrs. Mackinson,
who continued to live in Aberdeen, filed a petition for divorce on the ground of her
husband’s desertion and adultery. Two main questions before the court were:

a) Whether at the date of Mrs. Mackinson’s petition, Robert Mackinson had

acquired a domicile in Queensland,
b) If so, whether Mrs. Mackinson had acquired a derivative domicile in Queensland
by virtue of the marriage then subsisting between them.

The trial court was of the opinion that Robert Mackinson acquired a domicile in
Queensland, but that, in the special circumstances of the case, wife’s domicile remained
Scottish; on the latter point the first appellate court reversed the judgment. The House of

5
(1921) 1 A.C. 146

9|Page
DOMICILE

Lords affirmed the judgment of the first appellate court. Lord Dunedin, pronouncing the
opinion of House of Lords, quoted the following passage from the opinion of Sir
Cresswell in Yelverton v Yelverton6. “The domicile of the husband is the domicile of the
wife; and even supposing him to have been guilty of such misconduct as would furnish
her with a defense to a suit by him for restitution of conjugal rights, she could not on that
ground acquire another domicile for herself.”

If the marriage is void, the wife does not acquire the domicile of her husband.7 But if she
goes to another country and lives with a putative husband, she may acquire a domicile of
choice there.8 But if the marriage is void on the ground that she was already a wife of
someone, she cannot acquire a new domicile. Then her domicile will remain that of her
lawful husband.9

The rule that the wife’s domicile is tagged with that of her husband has been severely
criticized.10 It is evident that in our contemporary world this is socially most undesirable.
Attempts to round of its sharpest corners have been statutory. The Domicile and
Matrimonial Proceedings Act, 1973 has now repealed the old provisions, and a wife is
now allowed her own separate domicile. New jurisdictional rules have been laid down.
Thus the English law had gone much ahead of the suggestion of the Private International
Law Committee that a wife was living separately under a decree of judicial separation
should be allowed to acquire an independent domicile.

The Domicile and Matrimonial Proceedings Act, 1973 makes fundamental changes in the
domicile of the wife. The rule of unity of domicile of husband and wife stands abolished.
The act lay down that the wife does not acquire the domicile of her husband merely by
virtue of her marriage. Now her domicile is to be ascertained the same way as the
domicile of an independent person is ascertained. Section 1(1) lays down: “… the
domicile of a married woman as at any time after the coming into force of the section
shall, instead of being same as her husband’s by virtue of only if marriage, be ascertained

6
(1859) 1 S.W. & Tr. 574.
7
White V White, (1937), P. 111; Mehta V Mehta, (1945) 2 All. E.R. 690; De Reneville v De Reneville,
(1948), P.100 (C.A).
8
Von Lorang v Adm. Of Austrian Property,(1927) A.C. 641
9
Shaw v Gould, (1868) L.R. 3 H.L. 55.
10
Graveson, 176-77; Wolff, 122; Cheshire, 167.

10 | P a g e
DOMICILE

by reference to the same factors as in the case of any other individual capable of having
an independent domicile.” The Act came into force on Jan 1 1974. A woman already
married on Jan 1, 1974, retains her husband’s domicile of dependency (but she retains it,
not as a dependent’s domicile but as of choice or origin), till she acquires another
domicile. Sub section(2) provides , “Where immediately before this section came into
force, a woman was married and then had her husband’s domicile by dependence, she is
to be treated as retaining the domicile in (as a domicile of choice, if it is not also her
domicile of origin.) Unless and until it is changed by acquisition or revival of another
domicile either on or after the coming into force of this section.”11

In the US, the rule of unity of domicile of husband and wife is not taken to the logical end
to which it was taken in English law. There, a wife living separate from her husband,
separation not amounting to desertion, can acquire her own independent domicile;
separation maybe by agreement or by a decree of court.12

In Indian statutory law also does not follow English law. The Indian Succession Act
1925, ss. 15 and ss. 16 incorporate the general rule: on marriage the wife acquires the
domicile of her husband and during covertures her domicile is the domicile of her
husband. Then it is laid down that wife can acquire her own domicile in the following
cases:

1. If the wife lives separate under a decree of the court.

2. If the husband is undergoing a life sentence.13

Indian courts have been called upon to dwell in the matter in the several different
situations like in the case of Prem Pratap v Jagat Pratap14. Here it was held that the
wife’s domicile remains that of the husband even if he deserts her. Then was the case of
Rani Saeeda Khautan v State of Bihar15 in the wake of partition. The wife of one Capt.
Kumar Singh domiciled in India, left with her mother to Pakistan. On 14th May 1950 she
visited India on a permit issued by the Indian Commission in Pakistan. On 23rd July 1950

11
IRC V Dichess of Portland, (1982) 2 W.L.R. 367.
12
William v Osenton, 232 U.S. 619.
13
R. Dolphin v Robins, (1859) 7 H.L.C. 390
14
1944 All 97
15
1951 Pat 454

11 | P a g e
DOMICILE

she was served with a notice of the Government of India to quit India. In a petition for a
writ of mandamus it was argued on behalf of the wife that she, being the wife of Indian
domiciled person, was domiciled in India and thus, cannot be asked to quit India, since by
going to another country or by any other act of her she could not, during her marriage’s
subsistence acquire any domicile of her own. Her plea was accepted by the Patna High
court. Substantially the Allahabad High court also accepted the plea of the wife. Justice
Mallick, referring to s. 16, Indian Succession Act, 1925 said that during the subsistence
of covertures in the domicile of the wife is the domicile of her husband.16

It is quite unfortunate to observe that the courts in India tend to blindly follow their
English counterparts. It is like the persuasive decisions are getting more importance.
Even though English precedents are being quietly followed, American decisions aren’t
given much importance. Our courts should have at least extended the principle of
separate domicile to those cases where husband and wife are living separate, or the
husband has deserted the wife.

MINOR CHILDREN
For the purpose of domicile the minority in Indian law continues till a person attains the
age of 18years while in English law, under s. 3 of the Domicile and Matrimonial
Proceedings Act, 1973, minority terminates on the attainment of 16 years.

Domicile of natural children: in respect of natural children’s domicile, the established

rules of private international law are:

a) The domicile of a legitimate minor children, if parents have not separated during
minority ,
i) Is the domicile of the father as long as the as the father is alive and it
changes when with the domicile of the father,
ii) After the death of the father it is the domicile of the mother so long as the
mother is alive and changes with the domicile of the mother;

16
Smt. Allabandi v Union of India,1954 All. 457

12 | P a g e
DOMICILE

b) The domicile of an illegitimate child during minority is the same as that of the
mother and changes with the domicile of the mother;
c) The domicile of a minor orphan cannot be changed; and
d) When the minor attains majority he can change his domicile.17

Indian law is slightly different from English law in this aspect. Indian law recognizes
three exceptions when minor’s domicile does not follow that of his parent:

a) If the minor is married,

b) If the minor holds any office or employment in the service of Her Majesty, or
c) If the minor has set up, with the consent of the parent, any distinct business.

Both English and Indian private international law a child on attaining majority can
acquire his own domicile.18 This proposition came for interpretation in Hnderson v
Handerson19.

Adopted children: in English private international law there is yet no authority in the
domicile of adopted child. The Private International Law Committee suggests that the
rule in America should be followed i.e. the adopted child should have the domicile that
his adopted parents has. In Indian law, the authority was given by Madras High Court
that the domicile of the adopted child is the domicile of the adopting parents and change
with the change in the domicile of the adopting parents. 20 The question is: what will be
the domicile of the adopted child? On marriage the adoptive mother acquires the domicile
of her husband. If the mother does not take the child with her, then the child retains the
domicile that it had before the marriage of his mother. In case the child is taken care of
by the step-father and goes to live with his adopted mother and step father, domicile of
the adopted child changes with the mother.

Domicile of minor child after death of parents: In English private international law the
domicile of a legitimate child, after the death of the father is the domicile of the mother
and changes with the domicile of the mother, provided that the child is living with his

17
Dicey and Morris, Rule 12, p.110; Cheshire, 176
18
Michael Anthony Rodrigues v State of Bombay, 1956 Bom 729
19
(1965) 2 W.L.R. 218
20
(1929) 30 M.L.W. 691

13 | P a g e
DOMICILE

mother. However this change of domicile is not automatic. Under the Indian law the
domicile of the legitimate minor child is in the country in which his father was domiciled
at the time of his death. The Indian law does not say that the domicile of the child whose
father is dead will be that of his mother. It is like Indian law fixes the domicile of a
legitimate child with that of the father and that of an illegitimate child with his mother. If
the father or mother dies then the domicile of the child remains the same as it was at the
death of the parent.

In our contemporary world every act of guardianship is weighed on the scales of welfare
of children. It is submitted that the rule should be that the domicile of an orphan child
may be changed by his guardian with the prior permission of the court in the country in
which the child is domiciled and further that no court will accord such permission unless
it comes to the conclusion that the change would be for the welfare of the child.

Domicile of the child when the parents have separated: If parents are living separately,
legally or otherwise have obtained a decree of judicial separation then the question arises
as to the domicile of the child. According to the Domicile and Matrimonial Act, 1973the
domicile of the child continues to be that of the father unless the following things happen:

a) When the child is living with his mother and is not with his father,
b) If he has acquired the domicile of his mother by virtue, if his having lived with
her, then he will continue to have that domicile, even when he leaves his mother,
provided he is not living with his father, and
c) The child will continue to have his mother’s domicile even after the death of his
mother, if he has acquired his mother’s domicile by virtue of his having his home
with his mother, and not with his father.

It is apparent that in the two latter cases, if the child lives with his father and makes home
with him, the child will acquire the domicile of his father. It is to be noted that in case of
separation the child does not live with his mother, then he continues to have the domicile
of his father even if he is not living with his father like living with some relative or local
authority or even if the situation is such that the father is not known.

14 | P a g e
DOMICILE

Indian law has no answer to such a situation. It is submitted that the child will have the
domicile of the parent in whose custody he is living, wither under an order of the court or
de facto, and t should be that parent who should have the right to change the domicile of
the child. In case of disputes between parents, the interest of the child is the paramount
consideration.

Domicile of Married Minor Child: Before January 1, 1974, the position in English law
was that a minor child on marriage retained the domicile of his father or mother, i.e., its
original domicile of dependency, while the minor child acquired the domicile of her
husband. Now under Domicile and Matrimonial Act, 1973, the position is that a minor
child attains capacity to acquire independent domicile on marriage, applying to both
males and females. The Indian law is still stuck to the situation before January 1, 1974.
The domicile of a female minor on her marriage changes on her marriage to the domicile
of her husband.21 It is seen that if the husband is minor and thus, has a domicile of
dependency of either the father or mother, then the domicile of the minor married female
child will be the same as that of her husband and will change with the change in the
domicile of her husband. Even when she becomes a widow while being a minor, her
domicile will be that of her husband had when he died. She cannot acquire back her pre-
marriage domicile of origin. Even when the minor widow becomes a major she would
continue to have the domicile of her dead husband, unless she acquires a domicile of her
choice.

LUNATICS
In English private international law there is no direct authority on the domicile of
lunatics. It seems that an independent person who becomes insane cannot change his
domicile, as he is incapable of exercising his will. It seems that even his guardian cannot
change it. Thus it seems that the lunatic will retain the domicile which he had when he
became a lunatic (i.e. when he began to be legally treated as insane) even if he goes to

21
Section 15, Succession Act, 1925

15 | P a g e
DOMICILE

another country and settles there.22 In the modern English law lunacy is categorized on
the basis of degrees of mental disorder.

It is submitted that if they have sufficient ability to form the necessary intention, they
should be able to change their domicile. It is also submitted that those who are kept under
guardianship should also be able to acquire new domicile, if their guardianship thinks it is
proper to do so. The guardian court or the court of protection should be able to accord
permission to the guardian to do so whenever it is thought to be in the interest of the
child.

In Indian law we have a statutory provision in s. 18, Indian Succession Act, 1925 which
runs: “An insane person cannot acquire a new domicile in any other way than by his
domicile following the domicile of another person.” The Act does not specify who this
“another person” is. But it seems clear that if the lunatic is a minor then it is the parent on
whom he is dependent and if lunatic is a married woman, then it is her husband. It is
submitted that if the lunatic is a major and has a guardian, then this “another person”
should be guardian of the lunatic. There is no reason why Indian courts should follow the
old English decision in Urquhart v Butterfield23which lays down that a major lunatic’s
domicile remains static, i.e., it remains the same as it was at the time when he legally
began to be treated as insane.

22
Urquhart v Butterfield, (1887) 37 Ch. D. 357; Hepburn v Skirving, (1861) 9 W.R. 764
23
(1887) 37 Ch. D. 357

16 | P a g e
DOMICILE

CH.6 DOMICILE AND NATIONALITY

Nationality represents a person’s political status, by virtue of which he owes allegiance to

some particular country; domicile indicates his civil status and it provides the law by
which his personal rights and obligations are determined. Nationality depends apart from
naturalization, on the place of birth or on parentage; domicile is constituted by residence
in a particular country with the intention of residing there permanently. It follows that a
person may be a national of one country but domiciled in another. At present many
countries in Europe and South America adopt nationality as the criterion of personal
laws, whilst the common law jurisdictions of the commonwealth and the USA, among
others, still stand by test of domicile.

17 | P a g e
DOMICILE

CH.7 MERITS AND DEMERITS OF DOMICILE

The English preference for domicile is based on two grounds. First domicile means the
country in which a person has established his permanent home and secondly domicile
furnishes the only practicable test in case of political units as U.K. Canada, Australia
where the same nationality embraces a number of diverse legal systems. The expression
national law is meaningless when applied to a British national because it is one system in
England another in Scotland same is the case for a Canadian. The law related to domicile
has certain vices. It will not infrequently happen that the legal domicile of a person is out
of touch with reality, for exaggerated importance attributed domicile of origin, coupled
with technical doctrine of revival, may well ascribe to a person a domicile in the country
which by no stretch of the imagination can be called his home. Also equally irrational
results may ensure from the view, sometimes inspired by the English Courts that long
residence is not equivalent to domicile if accompanied by the contemplation of some
uncertain event the occurrence of which will cause a termination of residence. Thirdly,
the ascertainment of a person’s domicile to such an extent on proof of his intention, the
most elusive of all factors, that only too often it will be impossible to identify it with
certainty without recourse to courts.

18 | P a g e
DOMICILE

CH.8 COMPARISON BETWEEN DOMICILE OF ORIGIN AND

CHOICE

The domicile of origin comes into existence by operation of law, independently of the
volition of a person and every person gets it on birth. On the other hand, the domicile of
choice is a domicile which is acquired by the free volition of the person concerned. For
its acquisition the existence of animo et facto is necessary. There is a very strong
presumption in favour of the continuance of the domicile of origin. In comparison with
domicile of choice, domicile of origin, in the words of Lord Macnaughten “is more
enduring, its hold is stronger and less easily shaken off”. Domicile of origin cannot be
abandoned easily. Since it is a creature of law and not of free will, domicile of origin
cannot be lost by mere abandonment. Until a domicile of choice is acquired, the domicile
of origin continues. In Bell.v.Kennedy24 Bell, who had his domicile of origin in Jamaica,
with a view to acquire a domicile of choice in Scotland left Jamaica. He reached Scotland
and lived there with his mother-in-law and was looking for an estate to purchase. Yet he
had not firmly made up his mind to settle in Scotland. Then his wife died. The Court held
that till then he had not lost his domicile of origin. On the other hand, the domicile of
choice is lost by the moment it is abandoned. If a new domicile of choice is not acquired
the domicile of origin revives. Another outstanding feature of domicile of origin is that it
is never lost; when a domicile of choice is acquired, it remains in abeyance. As soon as
the domicile of choice is abandoned or lost it immediately revives, even if all contacts
with the country of the domicile of origin have been lost.

24
(1868) L.R 1 Sc & Div. 307

19 | P a g e
DOMICILE

CH.9 CONCEPTS OF RESIDENCE

Dissatisfaction with nationality as a connecting factor has led to a realization of the

defects of domicile also. This has several consequences. One has been attempts in
England to reform the concept of domicile. The failure, over many years to reform
domicile has led, it its turn, to a tendency to reject it as a connecting factor in favor of
residence. One of the main forces in this direction has been the fact that the Hague
Conventions have relied on “habitual residence” as a connecting factor. The Rome
Convention on contract choice of law also utilizes this concept, but now in the
commercial sphere. The wheel has been turned full circle as purely domestic legislation
has also adopted “habitual residence” as a major connecting factor in matrimonial
jurisdiction. Nonetheless, although habitual residence is increasingly being used as an
alternative connecting factor, it would be wrong to induce a general substitution of
habitual residence for domicile. For the connection between a person and a country
provided by habitual residence is not sufficiently strong to justify that persons affairs
always being determined by the law of that country.

Ordinary Residence
“Ordinary Residence” has been known as a connecting factor in English law for some
time. It used to forma basis for service of a claim form out of the jurisdiction; it used to
be a basis of jurisdiction in matrimonial causes in the case of a petitioning wife; it used to
be a criterion for obtaining security for costs; it is a significant connecting factor for the
purposes of immigration and social security law; it is an important connecting factor in
taxation statutes; it has been the criterion used for determining eligibility for a mandatory
student award from the local authority; used as the basis for determining whether a
student is a home or overseas student for the purpose of payment of university fees, and
for designating the local authority to be responsible in a care order.

There is some authority on the meaning of “ordinary residence”, though its precise
meaning has caused difficulty. One judge went so far as to say that the adjective adds
nothing to the noun. Lord Scarman in giving the judgment of the House of Lords in Shah

20 | P a g e
DOMICILE

v Barnet London Borough25, said that this adjective brings out two important features of
ordinary residence, namely residence must be adopted voluntarily, i.e. not by virtue of
kidnapping or imprisonment, and for settled purposes, which can include for the purposes
of “education, business or profession, employment, health, family or merely love of the
place”. The words “ordinary residence” should be given their natural and ordinary
meaning, and not an artificial legal construction, which will be the same regardless of
context unless it can be shown that the statutory framework requires a different meaning.

Ordinary residence does not connote continuous physical presence, but physical presence
with some degree of continuity, notwithstanding occasional temporary absences. It is a
question of construction of a statute whether the word “lawful” should be implied so as to
qualify the ordinary residence. Moreover, it can be argued that, as a matter of general
principle, a person should not benefit from his own unlawful conduct.

Each case must, of course, depend on its own peculiar facts but the authorities show that
even absence for a considerable time will not terminate a person’s ordinary residence if it
is due to some specific and unusual cause. Again, the significance of a comparatively
prolonged absence will be weakened if, during the relevant period, the propositus has
maintained a house or flat in England ready for immediate occupation.

Habitual Residence
The courts have repeatedly followed the judgment of Lord Scarman in R v Barnet London
Borough Council, ex p Shah26 , holding that there is no difference in principle between
the traditional concept of ordinary residence and the more fashionable concept of habitual
residence and that they both refer to a person’s abode in a particular place or country
which he has adopted voluntarily and for settled purposes as part of the regular order of
his life for the time being, whether of short or of long duration. Habitual residence is a
concept without the various legal artificialities of domicile, such as the doctrine of revival
and analogies with that concept are not appropriate.

25
[1983] 3 All ER 226
26
[1982] Q.B. 688

21 | P a g e
DOMICILE

Residence
Before a child or adult can be habitually resident in a country he must be resident there.
This does not necessarily require physical presence at all times. Temporary absence, for
example on holiday or for educational purposes or for an attempt to effect reconciliation
with an estranged spouse will not bring an end to habitual residence. Indeed, it can
continue despite considerable periods of absence. A habitual residence in England has
been held to continue despite a period of some two years nine months residing in Hong
Kong. However, it is a question of statutory construction whether the world “lawfully”
should be implied into a statutory provision which uses the concept of habitual residence.
Indeed, it is only right that persons with longstanding links with England should have
their personal affairs dealt with in England and subject to English Law.

A Period of Time
The formulation in Re J (A minor) (Abduction: custody rights) requiring residence for a n
appreciable period of time, has been followed in numerous cases. However, more
recently the House of Lords in Nessa v Cheif Adjudication Officer27 has adopted rather
different wording. Lord Slynn said that, as a matter of ordinary language, a person is not
habitually resident in any country unless that person has taken up residence and lived
there for a period which shows that the residence has become “habitual” and will or is
likely to continue to be habitual. It follows that there may be a gap between habitual
residence in one state and acquisition of habitual residence in another. A person may
have no habitual residence at all. However, it may be that for the purposes of making a
particular legislation effective, an example being the founding of jurisdiction, it may be
necessary that a person is habitually resident in some state. In other words, there would
not be a gap.

It is a question of fact whether and when the requisite habitual residence has been
established. This depends very much on the circumstances of the particular case. In V v. B
(A minor) (Abduction) an habitual residence was acquired after less than three months’
residence in Australia, the parties according to the plaintiff, having decided to settle there.

27
[1999] 1 WLR 1937

22 | P a g e
DOMICILE

A settled intention
There must be a degree of settled intention or purpose. This is not concerned with being
settled in a country. There is no need to show a person intended to stay there permanently
or indefinitely. The settled intention can be for a limited period, a period limited by the
immediate purpose such as employment, even short-term employment of no more than
six months. Thus a person can be habitually residence in a country even though he
intends at some future date to move to another country. In Watson v Jamieson28 there was
a settled purpose where children went to live with their father in Scotland for two years,
the understanding between he separated parents from the outset being that the children
would then go to live with their mother, who lived in New Zealand for two years. The
children were held to be habitually resident in Scotland.

The longer the period of residence, the easier it becomes. Thus in M v M (Abduction:
England and Scotland) it was clearly important in finding this settled purpose that the
parties had actually been living in Scotland for as long a period as two years. In these
cases involving a period of short residence, the residence was for a temporary purpose
and this was fatal to the acquisition of a habitual residence. When it comes to establishing
an intention to settle, this was shown in one cases by the fact, inter alia, that the family
furniture was sent to that country.

28
1998 SLT 180

23 | P a g e
DOMICILE

CH.10 CONCLUDING REMARKS

Attempts in the 1950s and 1960s at the wholesale reform of the law of domicile were
unsuccessful because they were thought to be too radical. More recently, the English and
Scottish Law Commissions put forward in a join Report a set of proposals for reform of
the major rules which, at least as regards the ease of change of domicile were more
conservative.

The Law Commission started off on the basis that it should be a little easier to acquire a
new domicile. To achieve this, it was proposed that the standard of proof in all
acquisition cases should be the normal civil standard, and that it should be sufficient to
show that a person intended to settle in the country in question for an indefinite period.
When it comes to domicile issues other than that of ease of change of domicile, a bolder
line was taken which would have led to major improvements in the law.

The domiciles of origin, choice and dependency would have been abolished, to be
replaced by a domicile for children and a domicile for adults. This would have greatly
simplified the law. No special tenacity would have been given to the domicile received at
birth and the doctrine of revival would have been replaced by a rule that an adult’s
domicile would continue until another domicile was obtained. All in law, the Law
Commissions’ proposals represented “a further important step in the process of
improving the structure, effectiveness and fairness of the rules of domicile”, and were
supported by the judges of the Family Division. In Scotland, the law in relation to the
domicile of persons under 16 has been reformed. Influenced, at least in part, by the Law
Commissions’ proposals, Scots law provides that were the parents are domiciled in the
same country and the child has a home with a parent or with both of them, the child is
domiciled in the same country as its parents.

24 | P a g e
DOMICILE

BIBLIOGRAPHY

 Private International Law by S R Garimella (CLP)

 Abla J Mayss, LLM, PhD, Licence en Droît ,”Principles of Conflict of Laws”,
Cavendish Publishing Limited, London, Sydney,3Rd ed,1999.
 J. G AUTOR COLLIER, John Greenwood Collier,” Conflict of Laws”,
Cambridge University Press, 2001
 http://abookmedhin.files.wordpress.com/2010/12/principles-of-conflict-of-
laws.pdf 4.
 http://books.google.co.in/books?id=gOYveQFbMakC&printsec=frontcover&sour
ce=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
 http://en.wikipedia.org/wiki/Conflict_of_lawshttp://www.bsos.umd.edu/gvpt/lpbr/
subpages/reviews/stark0207.htm
 http://www.legalserviceindia.com/articles/frpca.htm

25 | P a g e