CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW & GOVERNANCE

Conflict of Laws
PROJECT
Domicile of Origin and Domicile of Choice

Submitted By:- Submitted to:-

RAJEEV RAJ Dr. Ajay Kumar Barnwal
B.A.LL.B Assistant Professor
8th Semester
Enrolment- CUSB1513125033

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 TABLE OF CONTENTS

1. Research Methodology 04
2. Objective of Research 04
3. Introduction of Domicile 05
4. Brief History of Domicile 06
5. Importance of Domicile 06
6. Definition of Domicile 07
7. Domicile is an idea of law 08
8. Principles of Domicile 09
5. Domicile of Origin 10
6. Domicile of choice 13
 Residence 15
 Intention 16

7. Comparison between domicile of origin & choice 16

8. Judicial Response 17
9. Conclusion 19
10. Bibliography 20

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 ACKNOWLEDGMENT
During the course of writing this project, I have received the help, encouragement from my
teacher, colleagues, friends and others. I am very thankful to all of them.

I am practically very thankful to my “Conflict of Law” Associate Professor Dr. Ajay Kumar
Barnwal for encouragement and support that he provided during the preparation of the project.

I am deeply indebted to the eminent legal experts and company law experts and other scholars of
repute whose valuable work has been highly useful in writing this project.

RAJEEV RAJ

RESEARCH METHODOLOGY

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The research is based on domicile of origin & domicile of choice. Basically the data which has
been collected for the research purpose is particularly of doctrinal in nature. It has been collected
from various books, sites, magazines and newspaper articles. So basically the analysis has
been done through case study.

OBJECTIVES OF RESEARCH
 To understand the concept of domicile of origin and domicile of choice.
 To understand distinguish between domicile of origin and domicile of choice.
 To understand the recent change in the concept of domicile of origin & domicile of
choice.

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INTRODUCTION OF DOCTRINE OF DOMICILE
Domicile is considered to be a connecting factor which links a person with a particular legal
system. This legal system includes his personal law which determines the legal capacity of that
person as for example whether that person has the legal capacity to marry or how the property of
a deceased person is to be distributed. For instance a married man domiciled in England is under
the jurisdiction of England for purposes of dissolving or annulling his marriage. The concept of
domicile is not just confined to conflict of laws but also extends to tax law and in fact many
leading judgments defining domicile are tax cases.
Differences which exist between two or more legal systems provide the theoretical foundation
for the subject known as conflict of laws. Every legal system has a rule which tends to
distinguish it from others. With particular regards to matters considered as bothering on an
individual‟s civil status different legal system have established rules as to the law, which ought
to govern in those cases. These matters usually involve those aspects of the individual‟s interests
for which resort can be had to a single system of law, in making a decision as to an appropriate
law that ought to govern.
In order to identify the specific system of law that should govern these issues with regards to a
particular or individual the laws of different countries have established diverse criteria. While in
England domicile is the rule, in Italy and some other European countries it is nationality. Some
other systems tend to combine both criteria1.
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. But in a federation like the
United States, Australia, or Canada, or in a composite State like the United Kingdom, different
systems of law may prevail in different regions in respect of certain matters. In such cases, each
of the territories governed by a separate system of law is treated, for the purpose of private
international law, as a 'country', though in public international law or constitutional law it is not a
separate sovereign State. This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a
single unified system of law, with a unified system of judicial administration, notwithstanding

1
Agbede.I.O: Themes on conflicts of laws, Ibadan shaneson, 1989. P49

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the constitutional distribution of legislative powers between the Centre and the States. 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.

BRIEF HISTORY OF DOMICILE

The concept of domicile in common law is derived from the Roman law and the usus modernus
through the Canon law. According to a modern Canonist, "The term domicilium is derived from
domum colere, to foster or inhabit the home. Domicile is not any place of residence but a place
of habitual residence."
At that time the ordinary man's Diocese had authority over him in the Consistory Court in
England and a man's domicile in a Diocese was established by his habitual residence. The Bishop
of the Diocese of the domicile had jurisdiction in religious causes and in England this included
probate and matrimonial jurisdiction even before the Matrimonial Causes Act 1857 and the
Court of Probate Act 1857. English statutes dealing with marriage characterise the place where a
man dwells, of his dwelling place and domicilium is a habitation or a dwelling. Therefore
domicile is a place of residence in a diocese in roman canon law and in the English canon law
from which the English notion of domicile has evolved.

IMPORTANCE OF DOMICILE
Domicile not only acts as a connecting factor but it also has an exclusively extended role. It can
be used as a jurisdictional link which is a pre-requisite for assumption of jurisdiction by the
forum or for recognition and assumption of a foreign court's jurisdiction. It also determines an
individual's right to vote, his right to hold public office, his entitlement to support in respect of
various needs such as ill-health or unemployment and his liability to various forms of taxation.
Therefore there is no person without a domicile because it is necessary to connect a person with
some legal system to regulate his legal relationships.

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DEFINITION OF DOMICILE
Domicile (the lex domicilii) has a dominating role in family and matrimonial property law and a
role in other areas such as capacity of persons to make contracts. It plays a part also in the law of
taxation. There is only one concept of domicile: accordingly, a case on whether a taxpayer has
acquired a domicile in England is also authority for the question of whether someone has the
capacity to marry or make a will.
According to Sir George Jessel - “The term domicile is incapable of definition” 2
According to Morris - “Domicile is easier to illustrate than it is to define. 3 This is probably due to
the fact that traditional definition has become rather obsolete as a result of judicial modification,
which has attended the concept overtime.
According to The Oxford Advance and Learners Dictionary define domicile as the place where
somebody lives, especially when it is stated for official or legal purpose”4.
According to The Black Law Dictionary defines the concept of the domicile as a person’s legal
home. That place where a man has his true, fixed and permanent home and principal
establishment, and to which whenever he is absent he has the intention of returning5”
Lord Cranworth attempted a definition sometimes ago in Whicker v. Hume 6 to the effect that by
domicile we mean home, the permanent home, and if you do not understand your permanent
home. I am afraid that no illustration drawn from foreign writers or foreign language will very
much help you to it” This definition by Lord Cranworth is obviously simplistic from the
subsequent judicial developments on these issues. In fact there is an opinion that the definition
by Lord Cranworth is far too simplicitic and indeed somewhat misleading.7
Lord Cranworth’s definition errs on the side of simplicity because there are circumstances in
which a person may not be residence in his place of domicile. The fact that one has lived in a
particular place for several years is irrelevant where there is intention to remain there.8
According Morris also objects to this definition on the ground that a person‟s domicile may not
always be the permanent home. In fact according to him. A person may be domiciled in a
country which is not and never has been his home; a person may have two homes but he can only
have one domicile.
He concluded that there is often a wide difference between the English concept of domicile and
population of a home. Judicial authorities have equally shown that to acquire domicile according
to the received English law, it is necessary to establish residence in a place and an intention to
reside there permanently. The English courts have with complete justification established the
2
Doucat v Geoghegeon (1878) L.R. Ch. D at 256
3
Morris, Conflict of Laws, 4th ed by J.C Mc Lean, sweet & Maxwell
4 th
6 edition by sally wehmeire (2000)
5
Bayan A. Garner; Thomos west 2004.
6
(1958) HLC 124 at 160.
7
Collier J.G.: Conflicts of Law, Cambridge, c.u.p 1994. P40
8
White v Tenant (1880) WLR 790

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principle of definition of domicile for the purpose of English rule conflict of laws according to
the concept in English law Nevertheless it is clear from decided cases that to acquire domicile in
territory, according to the received English law, it is necessary to establish residence and an
intention to remain there permanently (or indefinitely). A domicile can only be acquired by the
concurrence of these two factors. However, an intention of indefinite residence is not equivalent
to permanent residence if it is contingent upon uncertain event.9
In the case Moorhouse v. Lord10
It was held that the present intention of making a place a person’s permanent home exists only
where he has no other idea than to continue there without looking forward to any event, certain
or uncertain which might induce him to change his residence. If he has in his contemplation
some event upon the happening of which his residence will cease it is not rather a present
intention of making it a temporary home, though for a period indefinite and contingent.

DOMICILE CANNOT BE DEFINED WITH PRECISION

In the case Whicker v Hume11 defined domicile as „permanent home‟. However, you will find
many reported cases where a person has lived in a place for 30 or 40 years and has not been held
to have acquired a domicile there. After reading the cases listed above you may conclude that the
persons in question (such a person is often called the propositus) had permanent homes in
England, but in none of the four cases was a domicile acquired in England.
Therefore a person is said to have home in a country where he resides permanently without any
intention of moving. On the other hand a person does not cease to have his permanent home in a
country merely because he is temporarily residing elsewhere. But the traditional concept of
domicile has received criticism from reform agencies in England as well as in other countries
which follow English common law. This disapprobation is based mainly on two grounds, which
were also pointed out in 195412.
First point of contention relates to the extraordinary importance attached to the domicile of
origin, particularly to the revival of domicile of origin when domicile of choice is abandoned
without obtaining a new domicile of choice, and the fact that there is heavy burden of proof on
the person who asserts the change in the domicile of origin which seems to be irrational and
unjustified.
The second concerns with the difficulty attached in proving the intention required to acquire a
domicile of choice. It also concerns with regard to the doubt about the standard of proof required
to acquire a domicile of choice. All this criticism was put forward because of the ambiguities
created by the complex nature of the domicile law which not only results in time delay and
money outlay but also leads to uncertain results.
9
lbid
10
(1863) 10 HL Cas 272 at 285
11
(1858)7 HLC 124, 160
12
First report of the private international Law committee, cmnd 9068

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This research paper will discuss these criticisms in detail, looking into its brief history and the
law reform proposals recommended by the Private International Law Committee and the Bills
which were presented to make amendments in these criticised concepts of the domicile of origin.
These contentious aspects of domicile law will also be compared with corresponding facets of
American Law where these flaws were removed by amending the law of domicile adequately.

DOMICILE IS “AN IDEA OF LAW”

Domicile diverges from the notion of permanent home in three ways:
Firstly, the elements required for the acquisition of a domicile go beyond those required for the
acquisition of a permanent home. Thus, to acquire a domicile of choice in a country a person
must intend to reside in it permanently or at least indefinitely.
Secondly, the law attributes a domicile to everyone, whether they have a permanent home or
not. A vagrant, for example, has a domicile.
Thirdly, certain persons, for example children under 16, cannot acquire independent domiciles.
They may thus have permanent homes in places in which they are not domiciled, because the
person upon whom they are dependent is domiciled elsewhere.

THE PRINCIPLES OF DOMICILE

The basic principles set out most recently in F v F13 are that:
 No person can be without a domicile 14. The law assigns a domicile of origin to every
person at the time of his birth, i.e. to a legitimate child the domicile of the father, to an
illegitimate child the domicile of the mother, and to a foundling the domicile of place
where he is found. This domicile of origin continues until a new domicile i.e. domicile of
choice is acquired.
 No person can at the same time for the same purposes have more than one domicile.15
 An existing domicile is presumed to continue until it is proved that a new domicile has
been acquired.16
 Domicile connects a person with a single system of territorial law but it does not
necessarily signify a system that prescribes the same principles for all the classes of
persons. As for instance in India different rules will apply to different categories of
population according to their religion, race or caste.
The burden of proving a change of domicile lies on those who assert it. The change of a domicile
must be proved on a balance of probabilities, not beyond reasonable doubt.

13
(2009) 2 FLR 1496,1503
14
Mark v Mark (2006) 1 AC 98
15
IRC v Bullock (1976) 1 WLR 1178, 1184
16
Winans v A.G (1904) AC 287, 289

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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.

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Every person acquires at birth a domicile of origin.
 This is the domicile of his father at the time of his birth if he is legitimate. It is the
domicile of his mother if he is illegitimate or if his father dies before he is born.
 Foundlings have a domicile of origin in the country in which they are found.
 A domicile of origin may be changed as a result of adoption, but not otherwise.
A domicile of origin is more tenacious than a domicile of choice. It is more difficult to prove it
has been abandoned. If a person leaves the country of his domicile of origin, intending never to
return to it, he continues to be domiciled there until he acquires a domicile of choice in another
country. But if a person leaves the country of his domicile of choice, intending never to return to
it, he ceases to be domiciled in that country unless and until he acquires a new domicile of
choice, his domicile of origin revives.
As mentioned earlier, domicile of origin is a domicile ascribed to a person when he is born. Lord
Westbury remarked in Udny v Udny: "That no man shall be without a domicile, and to secure
this result the law attributes to every individual as soon as he is born the domicile of his father, if
the child be legitimate, and the domicile of the mother if illegitimate."
If a child is born after the death of the father or if an illegitimate child is later legitimated, in both
cases, the domicile of origin will remain same as that of the mother. An adopted child probably
acquires the domicile of origin of the adoptive parents as such a child is treated as if born in
lawful wedlock. The domicile of origin is conferred on the basis of origin. There are exceptional
cases like Re McKenzie, where domicile of origin of a child is determined on the basis of the
place where he was found and not on the basis of his parents' domicile. In the mentioned above
case the domicile of an illegitimate child was determined on the basis of the place where he was
found because the domicile of his mother was unknown.
The children under sixteen years and mentally disable person acquire a domicile of dependence
which changes with the change of their guardian. In later life, the child can acquire a domicile of
choice after becoming independent and can also abandon it without acquiring a new one. At that
stage the domicile of origin will revive.
The rules on the law of domicile had been laid down by the judges of the Victorian time and the
law of the domicile of origin has gained strength with time despite being criticised. Domicile of
origin is such a powerful concept that even if a person leaves his country of origin with an
intention not to return back, he is still considered to be domiciled there until he obtains a new
domicile of choice in another country. Therefore a person who has never even visited a particular
country can have the domicile of origin of that place. In Grant v Grant, a child was born in India
but his domicile of origin was held to be English following his father's domicile of origin. It
illustrates that domicile of origin is the hardest to lose among all the three types of domiciles.
Although the principle of domicile of origin was finally established in Udny v Udny, but it has
come a long way since then and has carried on proving its strength and significance since then.
As domicile is the only means of ascertaining a person‟s personal under the English law, it is
inevitable that English law should require that everybody must have a domicile. In order to make

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this rule work, the law assigns to every person a domicile at birth which is known as domicile of
origin. According to this rule, a legitimate child takes the domicile of his father.
The rules on the law of domicile had been laid down by the judges of the Victorian time and the
law of the domicile of origin has gained strength with time despite being criticised. Domicile of
origin is such a powerful concept that even if a person leaves his country of origin with an
intention not to return back, he is still considered to be domiciled there until he obtains a new
domicile of choice in another country. Therefore a person who has never even visited a particular
country can have the domicile of origin of that place. In Grant v Grant, a child was born in India
but his domicile of origin was held to be English following his father's domicile of origin. It
illustrates that domicile of origin is the hardest to lose among all the three types of domiciles.
Although the principle of domicile of origin was finally established in Udny v Udny, but it has
come a long way since then and has carried on proving its strength and significance since then.
As domicile is the only means of ascertaining a person‟s personal under the English law, it is
inevitable that English law should require that everybody must have a domicile. In order to make
this rule work, the law assigns to every person a domicile at birth which is known as domicile of
origin. According to this rule, a legitimate child takes the domicile of his father. An illegitimate
child takes the domicile of its mother. A foundling takes the domicile of the country where it is
found.17
It is suggested therefore that an illegitimate child should be presumed to take the domicile of the
head of its family. It should be stressed, however, that this rule is by no means absolute. It is
merely a presumption so that in those cases where a child is virtually reared and maintained by
the mother or her family this presumption may be rebutted. This suggestion has no other basis
than the welfare of the child. It is therefore the child‟s welfare that must be given overriding
consideration in this regard.
According to this law, almost overwhelming evidence is required to shake off the domicile of
origin.18 Its character is more enduring, its hold is stronger and less easily shaken off. 19 As put by
Lord Westbury “The domicile of origin is the creature of law and is dependent of the will of the
party, it would be inconsistent with the principle on which it is by law created and ascribed, to
suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It
revives and exists wherever there is no other domicile and does not require being reacquired or
reconstituted animo et facto a manner which is necessary for the acquisition of a domicile of
choice.20
Even Cheshire has suggested that these rules evolve in the nineteenth century when England was
a nation of enterprising pioneer’s most of whom regarded their ultimate return home as a forgone
conclusion.21 The “revival” doctrine (this is done when one abandons his domicile of choice,
such revives back the domicile of origin) as well as the enduring character of domicile of origin
17
Dicey and Morris, the conflict of laws
18
Udom v Udom (1962) L.L.R 112
19
Winans v Att.Gen (1904) A.C. 287
20
Cheshire private international law
21
Wolff m, private international law

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appear to rest on the assumption that a man belongs to his country of origin much more that to
the country of his choice. But this assumption has been dismissed as archaic and meaningless in
an age of migratory population. Perhaps, a better explanation for the development of rules of
domicile of origin in its rigid sense from the view of Rabel who wrote that; “The doctrine of
domicile of origin was maintained and developed to satisfy the natural desire of a home country
from which innumerable colonizer have gone out into the world”22
While a person may easily sever his connection with the country of his nationality (where that is
the connecting factor) he remains, for all times, a miserable prey to his domicile of origin. 23
Undoubtedly, the revival doctrine of domicile of origin runs counter to the fundamental principle
of domicile as it may locate a person’s domicile in a country which cannot be regarded as his
home by any stretch of the imagination.
The rule of domicile of origin might have been good law in an era where families were born and
when they lived and died in the same community and when the ties, both material and
sentimental, which bind one to his birth place, were strong.24 But under the present political
arrangement in Nigeria where state boundaries bear little relation to ethnic loyalty, to adopt such
rules will be socially undesirable if not legally embarrassing. Moreover the mobility of society
generally has provoked, even in England, an almost unanimous critism of this rule and the
recommendation for its change. Indeed the English rules of domicile of origin have found a place
in American law.25

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

22
Rabel: E, The conflict of Laws; a comparative study
23
Cheshire: private international law
24
Goodrich & scoles conflict of law (1964)39
25
Beale Treatise on the conflicts of laws (1935)

13
reference to the object. In Kumund v Jotindranath 26 the Calcutta High Court held that residence
means a place where a person eats, drinks and sleeps, or where his family or servants eat, drink
and sleep. Intention is an act of mind and like other mental facts it can be gathered from all
events and circumstances of the life of a person. The intention must be fixed and not fickle and
must be directed towards one particular place or country. In the case of refugees they may go to
another force not voluntarily but due to pressure of circumstances and later they may settle down
there. “What is dictated in the first instance 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. Mandal 27
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.
Any person who is not dependent on another (i.e. one who is not a child or a mentally disordered
person) can acquire a domicile of choice or may change his domicile by taking up residence in
another country with the intention of remaining there permanently.28
The two requisite here is residence and intention and they are normally referred to as “factum
and animus” respectively. It is not essential that the “factum and animus” should come in any
particular order so long as it comes at a point in time. These two factors must coincide before the
law will recognize a change of domicile. Residence however long in a country will not result in
the acquisition of domicile of choice, if the necessary intention is lacking. 29 Conversely intention
however strong to change a domicile will not have the result if the necessary residence in the
new country is lacking. A new domicile is not acquired until there is not only a fixed intention
establishing a permanent residence in the new country, but until also this intention has been
carried out by actual residence there.30 Hence, a domicile cannot be acquired in itinere, it is
necessary not only to travel, but to arrive. It is very difficult to keep the two requirements of

26
(1911) 38 Cal .394
27
ILR (1956) Punj.215
28
lbid at 17
29
Jopp v Wood (1865) 4 D.J.
30
Bell v Kennedy (1868) L.R Sc

14
residence and intention watertight compartments, but in the nearest of clarity of exposition they
must be considered separately. However, residence and intention are separate but interrelated
concepts.
Every independent person can acquire a domicile of choice by the combination of residence and
intention of permanent or indefinite residence.

 Residence
Residence means physical presence „as an inhabitant31. It is not necessary that residence should
be of long duration.
In an American case32, part of a day was enough. An immigrant can acquire a domicile
immediately on arrival if he or she intends to settle.
In Puttick v Att-Gen33, it was held that a domicile of choice cannot be acquired by illegal
residence (in this case it was claimed by a member of a German terrorist group). It may not
follow that an English court would say that domicile of choice could not be acquired by illegal
residence in a country outside the United Kingdom: for example, an Al-Qaida member with a
domicile of origin in Saudi Arabia living permanently in Germany.
A Full Bench of the Kerala High Court in T. J. Poonen v. Rathi Varghese after considering
various decisions gave the following propositions:
 To constitute residence it is not necessary that the party or parties must have his or their
own house.
 To constitute residence the stay need not be permanent; it can be temporary, so long as
there is animus manendi or an intention to stay for an indefinite period.
 Residence will not take in a casual stay in, or flying visit to a particular place; a mere
casual residence in a place for a temporary purpose, with no intention of remaining, is
not covered by the word reside.
 Residence connotes something more than stay; it implies some intention to remain at a
place, and not merely to pay it a casual visit.
 As emphasized by the Supreme Court, by staying in a particular place, in order to
constitute „residence‟, the intention must be to make it his or their abode or residence,
either permanent or temporary.
 The expression last resided also means the place where the person had his last abode or
residence, either permanent or temporary.
 Where there has been residence together of a more permanent character, and a casual or
brief residence together, Courts have taken the view that it is only the former that can be
considered as residence together for determining the jurisdiction. 8. The question as to

31
IRC v Duchess of Portland (1982) ch 314
32
(1980) fam 1
33
AIR 1967 KERLA

15
 whether a particular person has chosen to make a particular place his abode, is to be
gathered from the particular circumstances of each case.

 Intention
Intention is intention to reside permanently or indefinitely in a country, that is not for a limited
period or a particular purpose. If the person will leave upon the occurrence of a contingency, this
possibility will be ignored if the contingency is vague and indefinite (e.g. winning the lottery),
but if it is clearly foreseen and reasonably anticipated (e.g. coming to the end of employment), it
may prevent the acquisition of a domicile of choice.
Naturalisation is relevant, but it is not decisive as a matter of law. It is a circumstance and any
circumstance which is evidence of a person’s residence, or his intention to reside permanently or
indefinitely, must be considered in determining whether he has acquired a domicile of choice in
that country.
Most disputes as to domicile turn on the question of whether the necessary intention
accompanied the residence. A court has said 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 of
more weight with regard to determining this question than an act which was of more importance
to a man in his lifetime34.
Cheshire, North and Fawcett (p.164) say:
Nothing must be neglected that can possibly indicate the bent of the resident’s mind. His
aspirations, whims, amours, prejudices, health, religion, financial expectations.
A person whose domicile is in question may testify as to his intention, but courts view the
evidence of an interested party with suspicion. Declarations of intention made out of court may
be given in evidence by way of exception to the hearsay rule. Declarations of intention must be
examined by considering the persons to whom, the purposes for which, and the circumstances in
which they are made, and they must further be fortified and carried into effect by conduct and
action consistent with the declared expressions62. It has been said that to acquire a domicile of
choice there must be a residence freely chosen, and not prescribed or dictated by any external
necessity, such as the duties of office, the demands of creditors or the relief from illness35.

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
34
Drevon v Dreon (1864) 34 LJ ch 129, 133
35
Udny v Udny (1869) LR 1 Sc

16
which is acquired by the free volition of the person concerned. For its acquisition the existence
of animo et facto is necessary. There is a very strong presumption in favour of the continuance of
the domicile of origin. In comparison with domicile of choice, domicile of origin, in the words of
Lord Macnaughten “is more enduring, its hold is stronger and less easily shaken off”. Domicile
of origin cannot be abandoned easily. Since it is a creature of law and not of free will, domicile
of origin cannot be lost by mere abandonment. Until a domicile of choice is acquired, the
domicile of origin continues. In Bell.v.Kennedy 36 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.

JUDICIAL RESPONSE
In a recently reported decision of Naina Saini v. State of Uttarakhand, 37 a Single Judge of the
Uttarakhand High Court has revisited the law relating to domicile of a person to declare that
there is no separate domicile for each State and there is only one domicile for the entire country.
The decision was rendered in the wake of the challenge to the decision of the Uttarakhand local
authority's order denying OBC domicile certificate to the petitioner on the ground that though
she was born in Uttarakhand but since she had married a person from Delhi, she no longer
possessed the domicile of the State of Uttarakhand. The High Court held otherwise.
In the case of Dr.Pradeep Jain v. Union of India, the Supreme Court observed: “The entire
country is taken as one nation with one citizenship and every effort of the Constitution makers is
directed towards emphasizing, maintaining and preserving the unity and integrity of the nation.
Now if India is one nation and there is only one citizenship, namely, citizenship of India, and
every citizen has a right to move freely throughout the territory of India and to reside and settle
in any part of India, irrespective of the place where he is born or the language which he speaks or
the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse
throughout the territory of India and is entitled to equality before the law and equal protection of
the law with other citizens in every part of the territory of India, it is difficult to see how a citizen
having his permanent home in Tamil Nadu or speaking Tamil language can be regarded as an
outsider in Uttar Pradesh or a citizen having his permanent home in Maharashtra or speaking
Marathi language be regarded as an outsider in Karnataka. He must be held entitled to the same
rights as a citizen having his permanent home in Uttar Pradesh or Karnataka, as the case may be.
To regard him as an outsider would be to deny him his constitutional rights and to derecognise
36
(1868) L.R 1 Sc & Div. 307
37
AIR 2010 utr 36

17
the essential unity and integrity of the country by treating it as if it were a mere conglomeration
of independent States”.
Also, in the case of Dr.Yogesh Bhardwaj v. State of U.P, the Supreme Court observed:
“Domicile', being a private international law concept, is inapposite to the relevant provisions,
having no foreign element, i.e., having no contact with any system of law other than Indian,
unless that expression is understood in a less technical sense. An expression, which has acquired
a special and technical connotation, and developed as a rule of choice or connecting factor
amongst the competing diverse legal systems as to the choice of law or forum, is, when
employed out of context, in situations having no contact with any foreign system of law, apt to
cloud the intended import of the statutory instrument.

In the case of Mr. Louis De Raedt v. U.O.I the Supreme Court observed: “For the acquisition of
a domicile of choice, it must be shown that the person concerned had a certain State of mind, the
animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove
that he had formed the intention of making his permanent home in the country of residence and
of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind,
is insufficient. The burden to prove that the petitioners had an intention to stay permanently in
India lies on them. The fundamental right of the foreigner is confined to Article 21 for life and
liberty and does not include the right to reside and settle in this country, as mentioned in Article
19(1)(e), which is applicable only to the citizens of this country. The power of the Government
in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution
fettering this discretion. The legal position on this aspect is not uniform in all the countries but so
far the law that operates in India is concerned, the Executive Government has unrestricted right
to expel a foreigner”.

In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court observed: “As pointed out
above, the present decree dissolving the marriage passed by the foreign court is without
jurisdiction according to the Act as neither the marriage was celebrated nor the parties last
resided together nor the respondent resided within the jurisdiction of that court. The decree is
also passed on a ground that is not available under the Act, which is applicable to the marriage.
What is further, the decree has been obtained by appellant 1 by stating that he was the resident of
the Missouri State when the record shows that he was only a bird of passage there and was
ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the
requirement of residence of 90 days with the only purpose of obtaining the divorce. He was
neither domiciled in that State nor had he an intention to make it his home. He had also no
substantial connection with the forum.

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CONCLUSION
The concept of domicile in common law and civil law are different from each other. In common
law domicile means equivalent of a person’s permanent residence and in civil law it means
habitual residence. In common law there are two variant of the domicile theory –
1) Domicile of origin
2) Domicile of choice
Domicile of origin is communicated through operation of law to each person at birth, i.e.
domicile of the father or the mother, dependent on the legitimacy of the offspring. Domicile of
origin every person acquires at birth a domicile of origin. A domicile of origin may be changed
as a result of adoption, but not otherwise.
Domicile of choice is that domicile that any person of full age is free to possess
instead of the one he already possesses. Any person who is not dependent on another can acquire
a domicile of choice and may change his domicile by taking up residence in another country with
the intention to reside permanently.
If a person leaves the country of his domicile of origin, intending never to return
to it, he continues to be domiciled there until he acquires a domicile of choice in another country.
But if a person leaves the country of his domicile of origin, intending never to return to it, he
ceases to be domiciled in that country unless and until he acquires a new domicile of choice, his
domicile of origin revives.

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BIBLIOGRAPHY
Dicey and Morris; Private International Law (8th ed.1969)
Goodrich and Scoles; Conflict of laws (1964)39
Graveson; conflict of laws (1969) 6.
Morris, Private International Law 4th ed by J.C Mclean Sweet & Maxwell 1993

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