Lex Domicilii

Domicile which is a private international law or conflict of laws concept identifies a

person, in cases having a foreign element, with a territory subject to a single system of
law, which is regarded as his personal law. A person is domiciled in the country in which
he is considered to have his permanent home. His domicile is of the whole country, being
governed by common rules of law, and not confined to a part of it. No one can be without
a domicile and no one can have two domiciles. A domicile of origin is attributed to every
person at birth by operation of law. This domicile is not decided by his place of birth or by
the place of residence of his father or mother, but by the domicile of the appropriate parent
at the time of his birth, according as he is legitimate or illegitimate. It is possible for the
domicile of origin to be transmitted through several generations no member of which has
ever resided for any length of time in the country of the domicile of origin. When a person
is referred to as domiciled in a country, the expression 'country' is used in private
international law as a term of art denoting, in the words of dicey, the whole of a territory
subject under one sovereign to one body of law. There is no State-wise domicile within the
territory of India. A man who is domiciled in India is domiciled in every State in India and
identified with a territorial system of legal rules pervading throughout the country. He is
'domiciled' in the whole of this country, even though his permanent home may be located
in a particular spot within it. Thus, the concept of domicile varies from country to
country and from jurisdiction to jurisdiction.
DOMICILE V RESIDENCE
The word domicile should not be confused with a simple residence. The residence is a
physical fact and no volition is needed to establish it. The animus manendi is not an
essential requirement of residence, unlike in the case of a domicile of choice. Thus, any
period of physical presence, however short, may constitute residence provided it is not
transitory, fleeting or casual. The intention is not relevant to prove the physical fact of
residence except to the extent of showing that it is not a mere fleeting or transitory
existence to insist on an element of volition is to confuse the features of residence with
those of 'domicile'. A person is ordinarily resident in a country if his residence there is not
casual or uncertain, but is in the ordinary course of his life. A man may be ordinarily
resident or habitually resident in more than one place. While 'ordinary residence' is the
physical residence in regard to which intention is irrelevant, except to show that the
residence is not merely fleeting, 'habitual residence' may denote a quality of endurance
longer than ordinary residence, although duration, past or prospective, is only one of the
many relevant factors, and there is no requirement of any particular minimum period. If a
person resided there for the specific and limited purpose of education, he was ordinarily
resident in that country, even if his permanent residence or real home was outside that
country or his future intention or expectation was to live outside that country. The
education, business, profession, employment, health, family, or merely love of the place
are some of the reasons commonly regarded as sufficient for a choice of regular abode. It
is only lawful residence that can be taken into account. If a man stays in a country in
breach of immigration laws, his presence there does not constitute ordinary residence.
While residence and intention are the two essential elements constituting the 'domicile of
choice' residence in its own right is a connecting factor in a national legal system for
purposes of taxation, jurisdiction, service of summons, voting etc.
IMPORTANCE OF DOMICILE
The determination of domicile of an individual has a great legal significance. It helps in
identifying the personal law by which an individual is governed in respect of various
matters such as 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,
illegitimacy, legitimation and adoption. The domicile is the legal relationship between an
individual and a territory with a distinctive legal system, which invokes that system as his
personal law. It is well settled that the domicile of a person is in that country in which he
either has or is deemed by law to have his permanent home. The notion, which lies at the
root of the concept of domicile, is that of permanent home. But it is basically a legal
concept for the purpose of determining, what is the personal law applicable to an
individual and even if an individual has no permanent home, he is invested with a domicile
by law. There are two main classes of domicile: domicile of origin that is communicated
by operation of law to each person at birth, that is the domicile of his father or his mother
according as he is legitimate or illegitimate and domicile of choice which every person or
full age is free to acquire in substitution for that which he presently possesses. The
domicile of origin attaches to an individual by birth while the domicile of choice is
acquired by residence in a territory subject to a distinctive legal system, with the intention
to reside there permanently or indefinitely.
Each person who has, or whom the law deems to have, his permanent home within the
territorial limits of a single system of law is domiciled in the country over which the
system extends; and he is domiciled in the whole of that country even though his home
may be fixed at a particular spot within it.
The Constitution recognises only one domicile, namely, domicile in India. Art. 5 of the
Constitution is clear and explicit on this point and it refers only to one domicile, namely,
"domicile in the territory of India. The legal system, which prevails throughout the
territory of India, is one single indivisible system.
TYPES OF DOMICILE
The law of domicile in India can be traced under the Indian Succession Act, 1925. The
domicile under the provisions of the Act can be classified under the following categories:
(i) Domicile of origin,
(ii) Domicile of choice, and
(iii) Domicile by operation of law.
(i) Domicile of origin
Every person must have a personal law, and accordingly everyone must have a domicile.
He receives at birth a domicile of origin, which remains his domicile, wherever he goes,
unless and until he acquires a new domicile. The new domicile, acquired subsequently, is
generally called a domicile of choice. The domicile of origin is received by operation of
law at birth and for acquisition of a domicile of choice one of the necessary conditions is
the intention to remain there permanently. The domicile of origin is retained and cannot be
divested until the acquisition of the domicile of choice. By merely leaving his country,
even permanently, one will not, in the eye of law, lose his domicile until he acquires a new
one. This proposition that the domicile of origin is retained until the acquisition of a
domicile of choice is well established and does not admit of any exception.
(ii) Domicile of choice
The domicile of origin continues until he acquires a domicile of choice in another country.
Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or
his domicile of origin, which remained in abeyance, revives. The burden of proving a
change of domicile is on him who asserts it. The domicile of origin is more tenacious. "Its
character is more enduring, its hold stronger and less easily shaken off. The burden of
proving that a domicile of origin is abandoned is needed much heavier than in the case of a
domicile of choice. No domicile of choice can be acquired by entering a country illegally.
The domicile of choice is a combination of residence and intention. Residence, which is a
physical fact, means bodily presence as an inhabitant. Such residence must be combined
with intention to reside permanently or for an unlimited time in a country. It is such
intention coupled with residence that acquires him a new domicile. It is immaterial for this
purpose that the residence is for a short duration, provided it is coupled with the requisite
state of the mind, namely the intention to reside there permanently. If a man intends to
return to the land of his birth upon a clearly foreseen and reasonably anticipated
contingency, such as, the end of his studies, he lacks the intention required by law. His
tastes, habits, conduct, actions, ambitions, health, hopes, and projects are keys to his
intention. That place is properly the domicile of a person in which he has voluntarily fixed
the habitation of himself and his family, not for a mere special and temporary purpose, but
with a present intention of making it his permanent home, unless and until something
(which is unexpected or the happening of which is uncertain) shall occur to induce him to
adopt some other permanent home.
The only intention required for a proof of a change of domicile is an intention of
permanent residence. What is required to be established is that the person who is alleged to
have changed his domicile of origin has voluntarily fixed the habitation of himself and his
family in, the, new country, not for a mere special or temporary purpose, but with a
present intention of making it his permanent home. On the question of domicile at a
particular time the course of his conduct and the facts and circumstances before and after
that time are relevant.
(c) Domicile by operation of law. (Married womens domicile).
The rules of Private International Law in India are not codified and are scattered in
different enactments such as the Civil Procedure Code, the Contract Act, the Indian
Succession Act, the Indian Divorce Act, and the Special Marriage Act etc. In addition,
some rules have also been evolved by judicial decisions. In matters of status or legal
capacity of natural persons, matrimonial disputes, custody of children, adoption,
testamentary and intestate succession etc. the problem in this country is complicated by the
fact that there exist different personal laws and no uniform rule can be laid down for all
citizens. The distinction between matters which concern personal and family affairs and
those which concern commercial relationships, civil wrongs etc. is well recognised in
other countries and legal systems. The law in the former area tends to be primarily
determined and influenced by social, moral and religious considerations, and public policy
plays a special and important role in shaping it.
We cannot also lose sight of the fact that today more than ever in the past; the need for
definitive rules for recognition of foreign judgments in personal and family matters, and
particularly in matrimonial disputes has surged to the surface. Many a man and woman of
this land with different personal laws have migrated and are migrating to different
countries either to make their permanent abode there or for temporary residence. Likewise
there is also immigration of the nationals of other countries. The advancement in
communication and transportation has also made it easier for individuals to hop from one
country to another. It is also not unusual to come across cases where citizens of this
country have been contracting marriages either in this country or abroad with nationals of
the other countries or among themselves, or having married here, either both or one of
them migrate to other countries. There are also cases where parties having married here
have been either domiciled or residing separately in different foreign countries. This
migration, temporary or permanent, has also been giving rise to various kinds of
matrimonial disputes destroying in its turn the family and its peace. A large number of
foreign decrees in matrimonial matters are becoming the order of the day.
The jurisdiction assumed by the foreign court as well as the grounds on which the relief is
granted must be in accordance with the matrimonial law under which the parties are
married. The exceptions to this rule may be as follows: (i) where the matrimonial action is
filed in the forum where the respondent is domiciled or habitually and permanently resides
and the relief is granted on a ground available in the matrimonial law under which the
parties are married; (ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests the claim which is based on a
ground available under the matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of the relief although the jurisdiction of the
forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It
does no injustice to any of the parties. The parties do and ought to know their rights and
obligations when they marry under a particular law. They cannot be heard to make a
grievance about it later or allowed to bypass it by subterfuges as in the present case. The
rule also has an advantage of rescuing the institution of marriage from the uncertain maze
of the rules of the Private International Law of the different countries with regard to
jurisdiction and merits based variously on domicile, nationality, residence -- permanent or
temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field
of national life and conformity with public policy. The rule further takes account of the
needs of modern life and makes due allowance to accommodate them. Above all, it gives
protection to women, the most vulnerable section of our society, whatever the strata to
which they may belong. In particular it frees them from the bondage of the tyrannical and
servile rule that wife's domicile follows that of her husband and that it is the husband's
domiciliary law, which determines the jurisdiction and judges the merits of the case.
JUDICIAL RESPONSE
A judgment of the Bombay High Court setting aside the parallel proceedings for divorce
of the Family Court, Pune and upholding a divorce decree passed by the Court of Oakland,
State of Michigan, USA, dissolving a Hindu Marriage on the principle of breakdown, has
evoked a new stream of thought with which the author respectfully differs. The verdict,
Kashmira Kale v. Kishore Kumar Mohan Kale , 2011 (1) Hindu Law Reporter
(HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under
the Hindu Marriage Act between the same parties upsets the settled law.
The parties married in Mumbai in 2005 according to Hindu rites, lived in the USA and
intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce
proceedings in the US whose jurisdiction was challenged by the husband in the US.
Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family
Court, claiming it to be the competent Forum for adjudication of their dispute. The
husband did not pursue the wife's divorce petition in the US any further and in January
2009, the US Court dissolved the marriage and divided the assets of the parties. However,
the Family Court in Pune in September 2009 held that it still had the jurisdiction to try the
husband's petition for divorce in India. In appeal, the Bombay High Court set aside the
order of the Family Court, Pune, and upheld the US Divorce Decree dissolving the Hindu
marriage.
The conclusions drawn by the Bombay High Court that the parties were domiciled in the
US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous.
Furthermore, the non-application of the HMA to Hindus was misconstrued and the
application of the breakdown principle without considering the written statement of the
husband challenging the jurisdiction of the US Court were factors which did not lend an
imprimatur to the foreign decree which did not take into consideration the provisions of
the HMA under which the parties were married.
Noticing that section 1 (2) of the HMA applies only to Hindus in the territories to which
the HMA applies but not considering that it also "applies to Hindus domiciled in the
territories to which this Act extends who are outside the said territories" left the contention
only half noticed. To add to it, section 2 of the HMA prescribing application of the Act to
Hindus, irrespective of domicile, nationality or citizenship, renders the decision of the
Bombay High Court fallacious. Earlier precedents on the point enunciated by different
High Courts stipulate that HMA applies to all Hindus irrespective of domicile or residence
if they have married in India according to Hindu rites. Thus, it has been held that HMA
has extra territorial application as a Hindu carries with him his personal law of marriage
and Courts in India have jurisdiction to try their matrimonial disputes regardless of change
of nationality or new domicile.
In Naveen Chander Advani v . Leena Advani, 2005 (2) HLR 582, the Bombay High
Court held that the family Court in Pune wrongly declined to entertain a matrimonial
petition relating to a marriage where parties who last resided and married in the USA
according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with
matters under the HMA/SMA.
Equally flawed is the view of the Bombay High Court that since the parties last resided
together in Michigan, USA, the U.S Court has territorial jurisdiction to decide their
divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme
Court in Jagir Kaur v . Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of
jurisdiction, speaking of last residence of a person with his wife, can only mean his last
residence in the territories of India. It cannot obviously mean his residing with her in a
foreign country for an Act cannot confer jurisdiction on a foreign Court. The Bombay
High Court in Meera v. Anil Kumar, 1992 (2) HLR 284 also held that "last resided" in
section 19 of the HMA means last residence in India and the High Court in India within
whose jurisdiction the parties last resided together can take cognizance of the matter.
Flowing from the same stream of thought, the Punjab and Haryana High Court has held
that any temporary residence would confer jurisdiction to try the matrimonial dispute. This
settled view militates against the erred conclusion of the Bombay High Court that
temporary stay at Pune or Mumbai could not mean last residence in India as parties last
resided together in the USA.
Above all, the view of the Bombay High Court disagrees with the celebrated view of the
Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 clearly
holding the rule that the jurisdiction assumed by the foreign Court as well as the grounds
on which the relief is granted must be in accordance with the matrimonial law under which
the parties are married. Three exceptions were culled out to this rule by the Supreme
Court. Firstly, permanent foreign residence and invoking of relief on a ground available in
matrimonial law under which parties were married. Secondly, voluntary submission to
foreign jurisdiction coupled with contest on merits abroad on grounds available under
matrimonial law under which parties were married. Thirdly, parties unconditionally
consent to grant of relief although jurisdiction of Foreign Court is not in accordance with
provisions of matrimonial law of parties.
The law of domicile in India is crystal clear and is free from any ambiguities. The same is
important for resolving the conflict of laws in India. There seems to be an ignorance of
the concept in its true perspective in India and even by Indian Courts.