PIL PROJECT REPORT

CONCEPT OF DOMICILE

SUBMITTED TO : SUBMITTED BY: Pranav Puri

MS KRITIKA Class : BCOM.LLB

SECTION :D
 ACKNOWLEDGEMENT
I have made this project with full dedication and zeal. A lot of people helped me in the
completion of this project. I am really thankful to my friends and peers whose faith in me kept
me going. I am also thankful to the authorities of the library of the department for the access to
the invaluable books. Most of all, I am thankful to my subject teacher, MS KRITIKA who has
always been the guiding light and a source of inspiration, for giving me an opportunity to work
on this project.

So, with the concrete efforts and utmost intentions, I hereby present this project.

-PRANAV PURI
 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 domicil 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 Domicil in Common Law and Civil Law are distinct and different from
each other to a great extent. In Common Law domicil 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 Domicil of Origin
and Domicil of choice. Domicil of Origin is communicated through operation of law to each
person at birth, i.e., domicil of the father or the mother, dependent on the legitimacy of the
offspring. Domicil of Choice is that domicil that any person of full age is free to posses 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 domicil must remain constant no matter what the
nature of the issue may be before the court.
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 domicile 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
posses more than domicile. This is also called the law of the “Law district”.
3) The fact that a domicilel 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 l 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 domicil shall always be decided
according to the English concept notwithstanding any other foreign concept of law.

ACQUISITION OF DOMICILE OF CHOICE

The two requisites for acquiring a domicil 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.
A) 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.

B) 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”. 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 domicil 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 domicil 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.

THE BURDEN OF PROOF

An alien living in England under a certificate of registration is liable to
deportation does not prevent him from acquiring an English Domicil of his choice, or deprive
him of a domicil already acquired. Therefore a person of foreign origin living in a country for a
time which qualifies him for a domicil of that county may acquire the domicile of that country
even though he is still The burden of proof that lies on those who allege a change of domicile
varies with the circumstances. In this connection there are two observations that may be made.
First, English Judges have taken the view that it requires far stronger evidence to establish the
abandonment of a domicil of origin in favor of fresh domicil than to establish the abandonment
of a domicil of origin in favor of a fresh domicile than to establish a change from domicile to
another. And by way of contrast, there is authority for the view that a change of domicil from
one country to another under the same sovereign. It is not to be lightly inferred that a man
intends to settle permanently in a country where he will possess the status of an alien, with all
the difficulties and conflict of duties that such a status involves.
CHANGE OF DOMICILE AND CHANGE OF NATIONALITY
It is important to emphasize that nationality and domicil are two different conceptions and that a
man may change the latter without divesting himself of his nationality. The mere fact that holds
the citizenship of that foreign country.

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 dependant
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.1
There are basically three classes of dependents, viz., minors, married women and mentally
disordered persons.

1
Re Beaumont, (1893) 3 Ch 490
MARRIED WOMEN:
In Gray v Formosa2, 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 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 acquires 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 Jaffery3, one Mrs. Mackinson was married on June 26, 1876 to one Robert
Mackinson who was born in Campbeltown, 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,

2
(1963), P. 259
3
(1921) 1 A.C. 146
 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 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 Yelverton4. “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.5 But if she goes to
another country and lives with a putative husband, she may acquire a domicile of choice there. 6
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.7

The rule that the wife’s domicile is tagged with that of her husband has been severely criticized.8
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
lays 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

4
(1859) 1 S.W. & Tr. 574.
5
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).
6
Von Lorang v Adm. Of Austrian Property,(1927) A.C. 641
7
Shaw v Gould, (1868) L.R. 3 H.L. 55.
8
Graveson, 176-77; Wolff, 122; Cheshire, 167.
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 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.”9

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.10

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.11

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 Pratap12. 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
Bihar13 in the wake of partition. The wife of one Capt. Kumar Singh domiciled in India, left with

9
IRC V Dichess of Portland, (1982) 2 W.L.R. 367.
10
William v Osenton, 232 U.S. 619.
11
R. Dolphin v Robins, (1859) 7 H.L.C. 390
12
1944 All 97
13
1951 Pat 454
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 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.14

It is quite unfortunate to observe that the courts in India tend to blindly follow their English
counter-parts, 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;

14
Smt. Allabandi v Union of India,1954 All. 457
 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.15

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.16 This proposition came for interpretation in Hnderson v Handerson17.

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.18 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 mother.

15
Dicey and Morris, Rule 12, p.110; Cheshire, 176
16
Michael Anthony Rodrigues v State of Bombay, 1956 Bom 729
17
(1965) 2 W.L.R. 218
18
(1929) 30 M.L.W. 691
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.
 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.19 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 another country and settles there. 20 In
the modern English law lunacy is categorized on the basis of degrees of mental disorder.

19
Section 15, Succession Act, 1925
20
Urquhart v Butterfield, (1887) 37 Ch. D. 357; Hepburn v Skirving, (1861) 9 W.R. 764
 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
Butterfield21which 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.

DOMICILE OF MARRIED WOMAN

The abolition of dependency

Until 1974 the rule was that the domicile of a husband was communicated to his wife immediately
on marriage and it was necessarily and inevitably retained by her for the duration of marriage.
This rule was much criticized as the last barbarous relic of a wife’s servitude and was abolished
under Section 1 of the Domicile and Matrimonial Proceedings Act. The domicile of a married
woman at any time on or after 1 January 1974 shall instead of being the same as her husband’s
by virtue only of marriage, be ascertained by reference to the same factors as in the case of any
other individual capable of having an independent domicile. This means that a married woman is
to be treated as capable of acquiring a separate domicile; though in vast majority of cases she and
her husband will, independently acquire the same domicile. It is, however quite possible for

21
(1887) 37 Ch. D. 357
happily married spouses to have separate domiciles as where, for example, a student at an English
university who is domiciled in New York marries a fellow student domiciled in England, both
intending at the end of their studies to go and live in New York. The 1973 act also deals with
transitional problems of the domicile of dependence of a wife acquired before 1974. A woman
married before 1974 who therefore acquired her husband’s domicile on marriage is to be treated
as retaining that domicile as a domicile of choice if it was not the wife’s own domicile of origin,
until its changed by acquisition of a new domicile of choice or revival of the domicile of origin
on or after 1st January 1974. This meant that after that date, the wife’s domicile is not to be treated
as dependent on her husband but as her own domicile of origin, or of choice until she acquires a
new domicile of choice or until her domicile of origin revives.

DOMICILE AND NATIONALITY CONTRASTED

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.

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.

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 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 Jotindranath22 the Calcutta High Court held that residence means a place

22
(1911) 38 Cal .394
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 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. Mandal23 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.

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

23
ILR (1956) Punj.215
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.

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

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

25
[1983] 3 All ER 226
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.

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

26
[1982] Q.B. 688
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.

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

27
[1999] 1 WLR 1937
28
1998 SLT 180
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.

Voluntarily
There is a further requirement in relation to adults that the residence must have been voluntary.
A serviceman who is stationed on a base abroad can be regarded as voluntarily resident in that
country (he could have left the armed forces if he did not want to accept the posting) and, having
made the family home there, he and his family will take this country as their habitual residence.

Abandonment
A person can cease to be habitually resident in a country in a single day if he or she leaves it with
a settled intention not to return it but to take up long term residence in another country instead.
For example, in Moran v Moran the parents, who were habitually resident in California, agreed
that the mother and child should return to Scotland for a year, whilst the father remained in
California to deal with business problems. It was held that the child’s habitual residence ceased
as from the date of departure from California. The abandonment of a habitual residence can take
place without acquisition of another habitual residence somewhere else, with the inevitable result
that a person has no habitual residence. Moreover, because an habitual residence can be
abandoned in one day but not acquired until there has been residence for a period showing that
residence has become habitual, this gap when there is no habitual residence will correspondingly
last for that period. It has even been accepted that, exceptionally, for the purposes of making
particular legislation effective, it may be necessary to ensure that there is no gap.

Children
The habitual residence of a child is not fixed but may change according to the circumstance of
the parent or other principal carer with whom the child lives and who is lawfully exercising rights
of custody. If the parents are living together and the child is living with them it will take the
parents habitual residence. There is a problem if the child is born abroad whilst on holiday to
parent’s habitual resident in England. It has been said, obiter, that in these circumstances it is
possible for the child to take a habitual residence in England from Birth. If both parents have joint
parental responsibility, neither parent can unilaterally change the child’s habitual residence by
removing or retaining it wrongfully and in breach of the other party’s rights. Both parents must
consent to the change of habitual residence. In the unusual situation where a married couple lived
with the children, and yet each parent had a different habitual residence, the habitual residence of
the children could only change if the parents had a common intention to change their residence.

It follows that before a child can be habitually resident in a country it must be resident there. Thus
for a child’s habitual residence to change to that of another country the child has to leave the
country in which he is resident and reside in that other country. If one parent has sole lawful
custody for the child, his situation with regard to habitual residence shall be the same as that of
this parents. According to the Court of Appeal, in Re M (Minors) (Residence Order: Jurisdiction)
a lawful custody refers to the child being in the physical care of that parent. If a child has been
made a ward of the court, a parent cannot then change its habitual residence without leave of the
court. It is not clear at what age a person ceases to be a child for the purposes of habitual residence
but it is likely that this is at 16. As with an adult, a child may have no habitual residence.

REFORMS
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.

BIBLIOGRAPHY

1)PRIVATE INTERNATIONAL LAW BY PARAS DIWAN

2)WWW.lawteacher.com

3)www.legalrescue.com