Introduction:
Domicile is a concept under private law of nations law or conflict of laws that identifies a person having a foreign element with a territory subject to a single system of law which is considered as the personal law. Domicile may be defined as a connecting factor to link an individual with a specific system of which also incorporates personal laws that determine the person’s legal capacity. Consistent with modern Canonists, the term domicilium springs from domum colere which suggests to foster or inhabit the house and it’s not anywhere of residence but an area of a customary residence. But the domicile’s general common meaning is permanent home as in the case of Whicker v Hume[1] observed by Lord Cranworth. Domicile is governed by lex domicilii (law of the domicile) as against lex patriae (law of the nationality) which is that relationship between a private individual and a country. It is distinct from habitual residence as there is much less focus on future intent. Domicile supersedes an established residence in the international conventions handling conflict of laws and other private law matters.
In India, an essential requirement for acquiring Indian citizenship is domicile although the constitution does not expressly define the term ‘Domicile’. It generally means a place or permanent home where a person stays with the purpose of living there for an indefinite period[2]. Here domicile is not only the residence, it is also residence combined with an aim to live permanently in that place. The latter implies a purely physical fact of just being and living in a particular place. The ambit of domicile is not just confined to conflict of laws but also extends to tax laws since many leading judgments defines domicile as tax cases.
General Principles
In respect of domicile, there are four general rules under the private law of nations of both the Indian and English.
- Every individual should get a domicile
- An individual shouldn’t get more than one domicile
- Presumption on existing domicile until it’s proved that a replacement domicile had been acquired
- Link with a specific system of law.
Every person has to be with a domicile
The practical necessity of linking every person with some legal system is the base of this rule, by which questions relating to family relations and family properties can be determined. It had been observed in the case of Udny vs. Udny[3], that no person shall be without a domicile and this result’s secured through the domicile of origin as the law attributes the father’s domicile to each individual once he is born.
A legitimate child acquires a father’s domicile whereas an illegitimate child acquires a mother’s domicile and involuntary prevails till acquiring a new domicile. Domicile is essential for every individual since it connects them with the nation and its laws. An individual has the freedom to change his domicile if he wishes to but without a domicile, he has no freedom to live.
Not more than one domicile
Domicile represents a connection of a territorial subject with a particular single legal system of law, which is sometimes called a ‘law district’[4]. The law district in a federal state where the legislative authority is distributed between central and state legislatures is generally the state where the concerned person has established his home. Though, it is possible that a person can have two domicile that is a domicile of his origin and a domicile of his choice. There are two sets of govt in countries having a federal system: i. Federal govt. ii. State or regional govt. He may have a federal domicile for the purpose of federal law and a regional domicile for the purpose of regional law. The Indian constitution however recognizes only one domicile like in citizenship. This impression is clarified in Joshi VS. Madhya Bharat[5] and N.Vasundara VS. State of Mysore[6], that as state has independent power to make laws with respect to marriage, divorce, succession, etc. They can implement different legal systems for the purpose of domicile.
The supreme court in Pradeep Jain vs. Union[7] of India held that the word domicile conveys the idea of intention to reside permanently or indefinitely for admission to technical or medical institutions within a state and not within technical sense as used in the private law of nations.
Presumption in favor of an existing domicile
Presumption in the favor of the continuance of an existing domicile is recognized in both English and Indian law. An existing domicile is presumed to be in effect until it is proved that a replaced new domicile has been acquired. Hence the burden of proving a changing his domicile lies invariably on those who allege that the change occurred. The court has to decide in favor of the existing domicile if the evidence adduced is conflicting or is not convincing.
Link with system of law
A person is governed by that system of law in which the domicile is connected. The assumption is that the same system of laws prevails all over the country except in matters relating to succession, marriage, and other personal laws. The question on where an individual is domiciled in subjects involving foreign elements is to be determined in consistence with the English concept of domicile and not in accordance with the foreign concept. Domicile means domicile in the English sense for the aim of English Private law of nations.
Hence under English law, an individual domiciled in England may acquire a domicile of choice in other countries if he satisfies English rules although he may fail to satisfy that country’s rules. This position is different in India. An individual having an Indian domicile isn’t sufficient since it’s necessary to seek out to which community he belongs as law differs from community to community.
Standard of Proof
The changing attitude of courts towards the standard of proof required to establish the change in the domicile of origin was evident. The presupposition against the popular change of domicile in cases like Winans v Attorney-General[8] and IRC v Bullock[9] as a high standard of proof was demanded for determining such change. The burden of proof is remarkably strong and heavy when a change of domicile of origin is alleged.
Over time the courts changed their attitude towards the harshness of the proof and several other judges indicated that the burden of proof isn’t massive as used to be earlier. In Henderson v Henderson[10], Sir Jocelyn. P suggested that the quality and standard of proof goes beyond a mere balance of probabilities when a change in domicile of origin is alleged. But Scarman. J in Re Fuld upheld the decision Court of Appeal in Buswell v IRC[11] by rejecting the quality and standard required in cases of criminal nature. Similar cases substantiate that domicile of origin isn’t that irksome to prove or lose the change in one’s domicile of origin.
Kinds of Domicile
Domicile of Origin
A Domicile of origin is attached to every individual the moment he’s born. The domicile of the father at the time of the birth indicates a domicile of origin for every person of legitimate birth and that of the mother if the child is illegitimate and posthumous. Hence the domicile of origin has no necessary reference to the country where the person is born or the country in which the parents are residing or the country to which the father belongs by race or allegiance or the country of the infant’s nationality and continues till the person doesn’t acquire any other domicile. Domicile of origin is a creature of law supported by the paternity or maternity domiciles and no person can give it up totally.
Both England and Indian concept of domicile are similar to each other. In England, the concept of domicile of origin originated from Common Law and it attaches to every individual attributed at birth, depending upon the appropriate parent through whom it is traced in law. Similarly, it’s theoretically possible for persons to enjoy a domicile of origin for several generations albeit none of the persons residing in such country for a considerable length of time.
In India, the rule appears to be slightly different. The domicile of the posthumous child is going to be the country during which the father was domiciled at the time of his father’s death.[12] In Central Bank of India v. Ram Narain[13], The domicile of origin adheres even if the individual has left the country with an intention of never returning there, till acquiring another domicile. This domicile of origin remains connected to the person until he acquires a different domicile or until the law itself attaches a different domicile called the domicile of choice and the domicile of dependency respectively.
Tenacity and Revival of Domicile of Origin
An independent person is allowed to give up his domicile of origin but the domicile of origin prevails until a new domicile is acquired. The character of the domicile of origin is more tenacious with a stronger hold. Domicile of origin automatically revives the moment the person loses or voluntarily gives up the domicile of choice. The strong tenacity of the domicile of origin makes it hard to lose the domicile after acquiring it and at the same time automatically revives in case the domicile of choice is extinguished. It’s proved to be persistent as the domicile of origin survives until he has acquired a domicile of choice albeit the person who leaves the country of origin has the intention of never returning.
The English courts have emphasized the domicile of origin’s tenacious character for centuries as evident in the case of Bell v Kennedy[14], Bell of Jamaican domicile of origin was uncertain on deciding whether he should settle down in Scotland or England after leaving Jamaica. Here the House of Lords held that Bell’s Jamaican domicile of origin is not vanished or lost.
Domicile of Choice
An independent individual can acquire a domicile of choice. It can be acquired by a combination of (I) actual residence and (II) intention to remain in the place permanently or for an indefinite period. The domicile of origin is received by operation of law at birth while the domicile of choice is acquired by the actual removal to another country accompanied by his place of residence, settlement, or permanent home. The traditional approach of existing intention to permanently reside to establish domicile merely meant that he possessed the intention required as far as at the relevant time, the mind of the person was concerned. This relevant time may be passed or present and varying according to its nature of the inquiry.
The Indian law lays down that an individual can acquire a new domicile by taking up a fixed living accommodation in a country that is not that of his domicile of Origin[15]. Intention is an intangible fact gathered from certain tangible facts like the residence of a person is a tangible fact from which intention may be inferred. Several decisions of Indian courts illustrate that it follows the rules and principles of common law. Domicile of choice is a combination of the residence with intention. Residence is a physical fact describing bodily presence as an inhabitant. Even the residence in the place for a short period must be coupled with the intention required to reside either permanently or for an unlimited time. Mere residence will not suffice if it can’t be established that the porosities had the requisite animus manendi that’s the intention to live. In Louis de Raedt v. Union of India[16]
When a person having domicile of origin as the British came to India as a missionary but lived in India for over 60 years with only short visits to Britain. It was held that a domicile of choice in India is acquired by him and a declaration to that effect itself was not sufficient as it had to be established that the person had acquired an Indian domicile of choice. In English law, every independent person acquires a domicile of choice by combining an intention to reside permanently in the place with actual residence in that place.
A residence obtained by lies, impersonation, and fraud was illegal and wouldn’t be regarded as residence which could confer a domicile of choice in England[17]. The court may have regard to the motive in determining the requisite intention of the individual to reside indefinitely or permanently which induced him to take up such residence and check whether it was freely or precariously done.
Domicile of Dependent Person
The domicile of the dependent person is mostly counted upon with the domicile of a particular independent individual on whom he or she depends in their life. Generally, dependents that are married women, minors, and mentally deficient persons were considered incapable of acquiring a domicile on their own, so their domicile followed that of the person they were regarded as being dependent on. Dependent persons are reasoned incapable of acquiring a domicile of choice. It is also called as imposed domicile since it changes when the domicile of the person on whom he or she is dependent on changes and also cannot abundant his domicile of dependency. In English law, a wife separated from the husband or a minor living in her own separated house away from parents or a lunatic living in a different country from that of the guardian cannot acquire a domicile of their own.
Domicile of Married Woman
Married women acquire the domicile of the spouse as she is under cove, influence, power, protection, and dependence of husband, this domicile changes with the domicile of spouse. The women can only acquire a domicile of choice after the termination of marriage or death of the husband. Under Indian law, the wife acquires and retains the domicile of a husband during the period of coverture[18] but it can be suspended only if (I) Wife is living separately under a decree of court (II) Husband is undergoing a life sentence.
Domicile of Minor
A minor is a person who is under the age of 18 in Indian law and below the age of 16 in English law. Minors only after attaining majority can have domicile of choice. The domicile can be classified as:
- Natural Children
- Domicile of legitimate children is the domicile of the father
- The domicile of Illegitimate children is the domicile of the mother
- Orphanage minor cannot change domicile
- Adopted Children have domicile of adopting parent
According to English Private International Law, a legitimate child will get the domicile of his father if he is alive at the time of his birth but the child born after the death of his father gets the domicile of his mother. Under Indian law, the child will get the domicile of the country in which the father resided at the time of death. The domicile of a child whose paternity or maternity is unknown is the domicile of the country he is found.
Domicile of Lunatics
A person considered insane isn’t allowed to have a domicile of choice. Under common law, a mentally retarded person cannot acquire a domicile of choice and sustains the domicile he had before he began to be legally stained as insane and they have to be treated as dependent children if born mentally retarded or becomes retarded during childhood. In Indian law, section 8 of the Indian Succession Act 1925 provides that a lunatic can’t acquire a domicile independently though there are no Indian decisions on this subject.
Other Domiciles
Fugitives and Refugees
In such cases a presumption arises in their favor that they acquired a domicile of choice in the country of their refuge as the inference drawn here is that they left their country for good although their departure is not voluntary, it cannot be said that they intended to settle temporarily. In the case of Re Martin, Loustalan v. Loustalan[19], the observation of the court was that all these reasoning equally applies to fugitives running away from their civil liability. The political refugee retains his domicile there if that he intends to return to the country from which he has fled soon after the political situation changes unless the desired political change is so improbable that this intention is treated as merely an exile and discounted.
The person can acquire a domicile of choice in the country to which he has fled if his intention is not to return even after the political situation has changed. The intention to abandon domicile will readily be presumed in case of a fugitive from criminal justice unless the punishment he seeks to escape is trivial or the prescription barring liability to punishment is a relatively short period.
Invalids
Invalids who go to another country for convalescence or for a temporary stay to improve their health or settle down as they find the climate more congenial fall under this category. The elements like special motive of residence or a non-voluntary choice makes it unconvincing that a domicile has been acquired. In Hoskins v. Mathews[20], an English domiciled person had an injury in his spine and went to Florence solely because he thought the warmer climate of Italy might benefit his health. He lived there throughout the rest of his life and died there at the age of seventy. The court held that he domiciled in Florence intending to settle there and he was exercising a preference not acting upon a necessity.
Public Servants
Public servants are stationed in foreign countries by their governments like ambassadors, consuls, staff in embassies, legations or government news agencies etc. The natural inference is that they retain their existing domicile without acquiring a domicile of choice in such countries[21]. But the public may acquire a domicile of choice in that country if continues to live in that country after termination of the job. In Stone v. Stone[22] a member of the US Armed Force stationed in Europe used to spend all his holidays in England and wanted to settle down in Europe on retirement from his post. The court held that the person acquired a domicile of choice in England. Public servants generally do not form the intention of settling in the country to where they are accredited but if they intend to reside there permanently or indefinitely then they can acquire a domicile of choice in that country like everybody else.
Involuntary Residence
Voluntary and free intention to settle down in a country is the main requirement to acquire a domicile. The mere reason of residing the country in his Majesty’s civil, military, naval, or air force service in the exercise of any profession or calling casts doubt on the freedom of the intention and hence is not deemed to have taken up his fixed habitation in that country[23]. The residence of persons liable to deportation will be precarious and the person is unlikely to form an intention to remain. The acquired domicile of choice is not lost merely because a deportation order has been made against him. That happens only when he is deported. However, he acquires the domicile of choice if he forms the necessary intention voluntarily.
Conclusion
Domicile is considered as a legal connection between an individual and a place in which the person voluntarily fixed his abode not for a special or testamentary purpose but with a present intention of making it has a permanent home and this is regarded as a relative term varying in meaning according to different situations of taxation, divorce, interstate succession etc. to which it is applicable. The courts must however inevitably focus on the concrete problems brought before it to avoid neglecting the social and economic requirements of the situation. The law of domicile has to be crystal clear and free from any ambiguities especially for resolving the conflict of laws.
References:
[1] (1858) 10 HLC 124
[2] Burgin and Fletcher: Conflict of law, 3rd (End), 60; Central Bank of India v. Ram Narnia, AIR 1955 sc 36
[3] (1869) L.R. 1SC
[4] Private international law, Author- Cheshire and North’s, oxford publication, 64.
[5] 1955 AIR 3334, 195 SCR (1)1215
[6] 1971 AIR(SC) 1439, 1971 (2) SCC 22
[7] 1984 AIR 1420, 1984 SCR (3) 942
[8] [1909] UKHL 593
[9] [1976] STC 409
[10] (1843) 3 Hare 100, 67 ER 313
[11] [1974] STC 266, 273
[12] Indian Succession Act, 1925, s.7; D.P Joshi v. State of M.B. and Pradeep jain v. Union of India (1984) 3SCC 654
[13] AIR 1955 SC 36
[14] (1866-69) L.R. 1 Sc. 307
[15] Section 10, The Indian succession act 1925.
[16] AIR 1991SC 1886
[17] Puttick v. Attorney –General (1980).
[18] Section 15 and section 16 of Indian Succession Act, 1925
[19] [1900] p 211
[20] (1856) 8 D.M. & G. 13,26
[21] Section- 12 of the Indian Succession Act, 1925
[22] (1959) 1 All. ER 194.
[23] Explanation to Section-10, The Indian Succession Act, 1925
Other Sources:
- Conflict of Laws, Atul M Setalvad, Lexis Nexis Butterworths Wadhwa, Nagpur, 1st Edition, Reprint 2011
- Private international law, Author- Cheshire and North’s, oxford publication.
- Paras Diwan: Private International Law,4th (End), Deep & Deep Publication
- Dicey: Conflict of Laws, 6th (Ed.)
- First Report of the Private International Law Committee, Cmnd 9068
- www.jusimperator.org, Volume 1 Issue 2
- https://s3-eu-west-2.amazonaws.com/107-PRIVATE-INTERNATIONAL-LAW-THE-LAW-OF-DOMICILE.pdf
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