Domicile and Nationality

In Common Law countries, the connecting factor employed to

connect a person with a legal system in the matters of
personal status and succession is domicile.
Meaning: though etymologically domicile and residence have
the same meaning and are related, both are not same and
have different connotations.
American judge Oliver Wendell Holmes explains the functions
of the concept of domicile in the following words: “The
very meaning of domicile is the technically pre-eminent
headquarters that every person is compelled to have in
order that certain rights and duties that have attached to it
by the law may be determined”.
Domicile and Citizenship are wholly different concepts-
domicile refers to a person’s civil rights, citizenship to his
political status.
Domicile & Permanent home- At the root of the
concept of domicile is the concept of permanent
home- but domicile differs from permanent
home- where a person has a permanent home is
largely a question of objective fact, while to
establish a place of a person’s domicile, the state
of his mind, namely, whether he intends to make
that place his permanent home is an essential
ingredient; even if it is established that a person
intends to make a particular country his
permanent home, he cannot be said to have a
domicile if he has never been there.
General rules regarding domicile- the law imposes every
person a domicile; this is attached to a person at birth by
operation of law and is changed by a conscious act of his- at
times, it may change by a change of by circumstances, for
example if the boundaries of a country are changed.
At Common Law, a person cannot have more than one
domicile at any given time though dual citizenship is
permitted by several countries- domicile attaches to a place
i.e., a country, or a part of a country with a defined system
of law- this general rule is, however, subject to a different
rule accepted in countries such as India as far as personal
law is concerned- where there is no uniform civil code,
persons of different religions are governed by their own
personal law (so far Hindus are concerned, again different
schools of law such as Mitakshara, Dayabhaga etc govern
different sections of Hindus)
The domicile of a person is always determined by applying the
rules of the lex fori.
Position in India- whilst in federal countries such as US, it is
accepted that persons may have different domiciles in different
states, it has been held in decisions involving rules relating to
admission to educational institutions, that in India, there can
only be one domicile throughout India (Pradeep Jain v UoI AIR
1984 SC 1420)- in Perumal Nadar v Ponnuswami AIR 1971 SC
2352, SC held that the Madras Hindu (Bigamy Prevention and
Divorce) Act 1949, which only applied to Hindus domiciled in
Madras, was not applicable in a case where it was neither
pleaded nor established that the husband was domiciled in
Madras.
The Indian Succession Act, 1925 lays down detailed provisions
relating to domicile- although this Act applies only to Parsis and
Christians, if a question arises as to the succession to movables,
courts have frequently applied the principles incorporated in the
provisions (which were based on the Common Law) in other
contexts.
Part II of the Indian Succession Act, 1925 relates to domicile-
although these provisions are not meant for Hindus and
Muslims, the principles contained therein have been
applied by Indian courts to Hindus and Muslims. The
provisions are:
Sec 6- A person shall have only one domicile for the purpose
of succession to his movables.
Sec 7- The domicile of origin of a legitimate child is the
country in which his father was domiciled when he was
born and if he was born after the death of his father, the
country where his father was domiciled when he died.
Sec 8- The domicile of origin of an illegitimate child is the
country in which the mother was domiciled when he was
born.
Sec 9- A domicile of origin continues till a new domicile is
acquired.
Sec 10- A person acquires new domicile by taking up his fixed
habitation in a country which is not that of his domicile of
origin, unless he acquires such habitation as a member of
the Armed Forces or in the exercise of his profession or
calling.
Section 11- A person may acquire a domicile of choice in India
by filing a declaration to that effect before an officer
designated by the State Govt provided that he was resident
in India for a year before he makes the declaration.
Sec 12- A representative of a foreign country or members of
his family do not acquire domicile merely by residing in a
place as part of the duties of the representative.
Sec 13- A new domicile continues till the former domicile has
been resumed or a new domicile is acquired.
Sec 14 & 17- The domicile of a minor follows that of his parent
from whom he derived his domicile of origin and a minor
cannot acquire independently a new domicile.
Sec 15 & 16- By marriage, the wife acquires the
domicile of her husband, and during her marriage
her domicile follows that of her husband.
Sec 18- A lunatic cannot independently acquire a
different domicile.
Constitutional provisions-
Part II of the Constitution which deals with who can
be regarded as citizen of India uses the expression
domicile.
In Eng law, as in the laws of Commonwealth countries, and in
India, the concept of domicile as a connecting factor has
been replaced by a new connecting factor i.e., residence or
habitual residence.
Types of domicile:
Domicile of origin
Domicile of choice
Domicile of dependency
How acquired?
Domicile of origin
• The father’s domicile, where the father is alive at birth
• The mother’s domicile, where the father was not alive at
birth and in case of illegitimate child
• Where the parents were not known, the domicile was the
place in which the child was found.
Domicile of choice
• On becoming major and had subsequently settled in another
jurisdiction with the intention of making it his permanent home
• When a person moves away from a domicile of choice with the
intention of settling in another jurisdiction, but has not yet done
so, his domicile reverts to the domicile of origin until settlement in
a new permanent home has taken place
Domicile of dependency
• A child’s domicile would change when the relevant parent had
acquired a new domicile of choice
• A wife would acquire her husband’s domicile upon marriage
• A person born mentally incapacitated, or becomes mentally
incapacitated while still a minor, continues to be treated in the
same way as a dependent child until the incapacity no longer exists
Indian decisions on domicile of origin:
Kedar Pandey v Narain Bikram Sah (AIR 1966 SC 160)- Every child acquires at
birth a domicile of origin based on that of his father if the child is legitimate
and that of mother if the child is illegitimate.
DP Joshi v State of Madhya Bharat (AIR 1955 SC 334)- The domicile of origin
which every person receives at birth need not be the place where he was
born, or the country in which the parents were residing when he was born,
or the country to which his father belongs by race, or allegiance, or the
country of his nationality.
Central Bank of India v Ram Narain (AIR 1955 SC 36)- The domicile of origin,
which the law attributes to him, adheres till he acquires another domicile;
the domicile or origin adheres to him even if he has left that country with
the intention of never returning there till he has acquired a domicile
elsewhere by settling in that place with the requisite intention.
Yogesh Bhardwaj v State of UP (AIR 1991 SC 356)- The domicile of origin can
be transmitted through several generations no member of which has ever
resided for any length of time in the country of domicile of origin- the
character of domicile of origin is more tenacious, and its hold stronger and
less easily shaken off.
Domicile of wife:
In Common Law a wife is always regarded as dependent on the
husband, whether she was living with him or not and even if she
is separated from him- the rule has however, been abolished by
Australia and Canada.
The provisions of the Indian Succession Act, 1925 broadly embody
these principles and have been followed in India- when the
parents of two Muslim minors who were married migrated to
Pakistan, while their husbands did not, it was held that they
retained the domicile of their husbands, and, being minors,
could not be regarded as having migrated with the intention to
migrate (Mst Allah Bandi v GoI AIR 1954 All 456)- the SC
severely criticised the Common Law rule about domicile of
married women and described it as a tyrannical and servile rule
[Narasimha Rao Y v Venkata Lakshmi Y (1991) 3 SCC 451]- the
Law Commission in 1976 recommended enactment of a law for
the recognition of foreign divorces and had proposed that for
the purposed of recognition of foreign divorces and separation
orders, a married woman must have an independent domicile.
Domicile of children:
At Common Law, the domicile of legitimate child is
that of his father and that of illegitimate child is
that of his mother- India also follows broadly the
same. The domicile of adopted child in England is
to be determined in the same manner as that of a
natural child- that is the effect of Sec 12 of the
Hindu Adoption and Maintenance Act, 1956. At
Common Law where legitimation by subsequent
marriage is effective, a legitimated child is to be
treated as if it was legitimate.
Domicile of choice:
At Common Law, every person other than a dependent person can
acquire a domicile of choice by combining actual residence in a
place with an intention to reside permanently or indefinitely in
that place- any circumstance, which is evidence of a person’s
residence, or intention to reside there permanently or
indefinitely must be taken into consideration to determine
whether he has acquired a domicile of choice- while
determining intention, regard must be had to the motive which
induced him to take such residence, as also whether he had
freely done so, or that such residence was precarious.
No single factor is decisive of determining intention though all may
be relevant- so length of residence is only a factor to be
considered; and whether he has bought a house or is living in
lodgings and hotels, which may indicate the quality of residence
as distinguished from its length, is only a factor, though an
important factor.
Puttick v Attorney General ([1979] 3 All ER 463)- the propositus had left
Germany (domicile of origin) and lived in England primarily to avoid a
trial in Germany for attempted murder and robbery, and not to make a
home in England- held that a residence in England which had been
obtained by lies, impersonation and fraud and was therefore, illegal
would not be regarded as residence which could confer a domicile of
choice.
The above decision is no longer good law; the House of Lords had held that
the object of the rules determining domicile is to discover the system of
law with which a person is most closely connected; that such a
connection despite the illegality of his presence in the UK did not
therefore, offend against any general principle that a person could not be
permitted to acquire a benefit from his own criminal conduct, and that if
a person had chosen to make his home in a new country for an indefinite
period, it was appropriate that he should be connected to that country’s
system of law; it held, therefore, that a wife who was staying illegally in
England had acquired domicile of choice in England (Mark v Mark [2005]
3 All ER 912).
A Frenchman who had left France to avoid sentence
of imprisonment in France and had come to
England, married a French woman living in
England, and had carried on a business jointly
with the wife, was found to have formed the
requisite intention and had, therefore, acquired a
domicile of choice in England (re Martin,
Loustalan v Lousstalan [1900] P 211).
An Italian, who was regarded as an alien in England,
and was liable to deportation, was nevertheless
held to have acquired a domicile of choice in
England [Boldrini v Boldrini and Martini [1932]
P9(CA)].
Position in India:
Indian courts follow the Common Law rules-
Sankaran Govindan v Lakshmi Bharathi (AIR 1974 SC 1764)- Mathew J
observed:
“Domicile is a mixed question of law and fact and there is perhaps no
chapter in law that has from such extensive discussion received less
satisfactory settlement... The traditional statement that, to establish
domicile, there must be a present intention of permanent residence
merely means that so far as the mind of the person at relevant time was
concerned, he possessed the requisite intention. The relevant time varies
with the nature of the inquiry. It may be past or present. If the inquiry
relates to the domicile of the deceased person, it must be ascertained
whether at some period in his life he had formed and retained a fixed
and settled intention of residence in a given country. One has to consider
the tastes, habit, conduct, actions, ambition, heath, hopes and projects
of a person, because they are all considered to be keys to his intention to
make a permanent home in a place.
Central Bank of India v Ram Narain (AIR 1955 SC 36)- SC with
approval Craignish v Hewitt [1892] 3 Ch 180 in which it was
held that a domicile of choice is acquired if a person has
established a fixed habitation in a place without any
present intention of removing from it.
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 an intention to reside permanently or for an
unlimited period of time- even residence for a short period
of time would suffice if it is coupled with the requisite
intention (Yogesh Bhardwaj v State of UP AIR 1991 SC 356).
A mere residence even for ten years, is not enough if it cannot
be established that the propositus had the requisite animus
manendi (intention to live permanently or for an indefinite
period (Louis De Raedt v UoI AIR 1991 SC 1886)
Thomas Edmund Teighmouth Shore v Hugh Carcy Morgan
[(1935) ILR 62 Cal 869]- when a person whose domicile of
origin was British came to India as a missionary and lived in
India for over 60 years, with only short visits to Britain- it
was held that he acquired a domicile of choice in India.
The question of domicile had been considered in several
decisions arising under the Indian Divorce Act 1869, under
which a court only had jurisdiction to grant matrimonial
relief if the parties were domiciled in India.
Where Hindus, whose domicile of origin was Indian, went to
Sweden where they acquired Swedish nationality, and then
to Australia, but there was no evidence that they had
intended to make Australia their permanent home, their
domicile of origin continued, and, consequently, relief could
be granted under the Hindu Marriage Act, 1955 [Sondur
Rajni v Sondur Gopal (2005) 4 Mah LJ 688].
Nationality
Nationality and Habitual Residence have been advanced as
alternatives to domicile as a method to determine the
personal law- some writers favour the replacement of
domicile with nationality.
Nationality is now used to determine the personal law in a
number of jurisdictions in Europe- partly this can be
attributed to rise of nationalism in 19th century Europe and
partly it is a consequence of the Code Napoleon- while the
conflict is between two jurisdictions within a single state/
country, then domicile has its importance (as in UK
between England and Scotland)- the rules relating to
nationality were vague at Common Law and difficulties
would have arisen in defining English nationality within the
context of UK- after the British Nationality Act, 1948, the
subject of nationality was subject to a considerable degree
of political controversy.
Those who advocate nationality argue that it is
more certain than domicile, and that it can only
be changed by the authorities within a State- it is
not surprising that federal Common Law countries
are attracted to the concept of domicile.
Those who oppose nationality as a connecting
factor point to the problems posed by cases of
multiple nationality, statelessness or those
difficulties when one State disapproves the
citizenship laws of another State.