Domicile

When Lhe cou rt is faced with an issue with a foreign element. it may use a choice
of Jaw rule to identify the system of law whose rules wi ll determine the particular
issue. Choice of law rules usuaJly have the form of an issue plus a connecting
factor. One of the connecting factors is a person's domicile. It is a jural concept
used for the purpose of establishing a connection of a person with the law of the
place with which the person is most intimately con nected. Domic ile is usually
taken to be the connecting factor in all those mailers whi...:h an: inti1mt1...:I )
connected with a person 's personal life such as marriage. di ssolution or marriage.
children, adoption, guardian~hip, succession, capacity, othe r matters relating to
famil y life. Domicile is based on the principle of Indi vidual libe rty. I lowever.
identity ing either a domicile can be diffic ult in many cases. Nevertheless. the
identification of the personal connecting factor is critica l.

Conccp t of Legal system in domicile

A person must be domiciled in a 'legal system' . This coinc ides with a state such as
France if that state possesses one system of law . But this is not so if the state is a
federal state or which, like the United Kmngdorn, contains several different districts,
each having its own legal system. Thus, a person must be domjciled in , say , Iowa
or Cal iforn ia and not in the United States. likewise a person is d0miciled in
Engl and or in Scotland but not in the United Kingdom. Al so A person may be
domic ile of one country but may have diffe re nt nationality. In fact a pL'rson can be
stateless but not without domi'cile.

Domicile
Two things are necessary when acquiring domicile. One is the inte ntion to
establish permanent home. Other is that the fact of actual presence when the said
intention is there. These two must coincide in time for acquiring domic ile. The
word permanent is an important element when considering intention and residence.
Thi s imp Iies the person has no other idea than to continue there, w ithou t looking
forward to any e vent, certain or uncertain , which might induce him to change hi s
residence. If he has in contemplation some event upon the happening o f whic h hi s
residence will cease, it is not correct to call this event a present intention of making
it a perman ent home. It is rather a prese nt intention of making it a temporary home.
though for an indefinite period. When a court is dec iding a person 's domicil e at
 any time, it makes a very careful evaluation of the tacts. The court must look back

I at till' whole of the deceased's life, at what he had clone. at what life had done to
him and at what were his inferred intentions in on.Jer to decide whether he hat.I
ac·cJ11ired a domicile in that particular pince hy the date of' hi l> death.

A person may be living at one place fo r a long time but may still not have the
fornt c<l the intention of establishing that particular place as his permanent home
anJ thus wou ld not be consi<lcred to he a domicile of that place lndefini1 e
residem:c or long residenc e docs not always imply intention of pcrmanc111
residence. /\n intention to return may be there and 1hercli1rc the pre:-.cnt resilience
would not become a person' s domicil e. See Ramsay v Liverpool Roya l Infi rmary (
Discussed later) aperson acquires a domici le at a place only if he resides there
permanently and indefinitely with an intention to li ve there permanently and
indelinitely. /\ long residence at place A with an intention to return to the place
from which he came from ( Place B) will not give you domicile of place A even ii
you urc not able 10 return and die at Plm.:c A.

Domici le denotes a social , not a politica l, attachment to a particul ar country.

Mot ive must be distinguished from intention. The fact that a person has what might
be n.:garded as an unworthy motive in going to a country , for exampl e. to escape
payment of taxes, does not prevent the court from holding that the person has
forml.!<l the necessary intention to reside pcnnanently there.
for instance , his or her residence is a result of a night from justice nr from
oppress ion or enemy invasion , may make it perhaps less likely that the requi site
intention is fonned. However. if there is adequat e evidence of s uch an intention.
there is nothing to stop the court from holding that a domi cile o r choice has been
acquired.

Genera l rules of Domici le under Private Interna tional Law

• No person can be without a domicile. A domicile is ascribed 10 a person by

law as the domicile of origin or of dependence.
• No person can simultaneously have two domicil es (at least, no more than
one for the same purpose)
• Domicile denotes the connection of a person with a terri toria l system or law
• There is a presumption of continuance of ex isting domi cile until it is provc<l
that a new domicile has been acquired
 J).3
• the question til' where u person is domiciled is determined generally 111
uccordancL, with forum law
• the t\ilcvunl stondurd ofprool'i s the civil stundanJ o f proof
No p,•r·son l'llll bl' without u domkllc.

HvL·ry person must hnvc domicile ns there is a need to connect every person with a
sysll.·tn ol' l11w for rcgu l111ing hi s lega l rclutions.( Udny v. Udny). No person can be
wi tl10u1 1111 i111.cn1io11 or hoving u ponnunent home. If none then he will be having
dl>n1 icilc of' origin or tfopcndcncc. { us per the marks you can expand and can tell
ubo111 d11111ic ilc o i' origin und domicil e ol' dependence)

No pl'rso11 l'lln simultnncomily hnvc two domiciles

No fH.:rson c11n hnvc two domici les simultaneously as a person is connected 10 a

k gnl :-.ystl.!rn by dnmidlc uml ii' he is allowed to have two domiciles the rurpose is
frustrntcd. ( lndiun Succession Act 1925)( Pradcep Jain v Union of India).

I lowc vcr the Supreme Court of India( DP Joshi case) stated that in a federal
system n person c11n have more than one domicile implying a person may have two
domici les simultuneously but for different purposes. For example a country having
dilforcnl system of lnw in u federal setup a person may have federal domicile for
lcdcru l luws and state domicile with respect lo slate laws. TI1 is is especial!) so
when one lcgul system cun ' 1 regulate a matter governed by the other legal system.
n t1t Lh'-! requircmcnl is th at the two domiciles govern dif'lcrcnt purposes. I he~ ha,·c
been 1crmed us primary domicile and secondary domici le.

Domicile denotes the connection or u person with a territorial system or law

D0111 icile hns reforcnce to the system of" law by which the person is governed .
Fm:h nrcu having distinct set of laws would be regarded as a cou ntry for the
pu1 pose ordomicile.

Th,·n· is II presumption of continuance of existing domicile

l J11kss proved otherwise. a person continues Lo maintain his existing domic ile. The
burden of' rroof is nn the person who alleges it. Domicile o l' choice shou ld not he
light ly inforn.:d from slight indi cations or casua l words.
 Domil'ile of ~n lndepend1.•nt Nnturul person can bt.~

• Domici le of Origin
• Domi..:ile 0f chok e

Domicile of origin

The law ..:onfers a domicile on every person on birth. As ii is conferred by law it

cannot be changed. However domicile through domicile o r choi1.:c may be ac4uircd
but domicile o f orig in remains the same. A person's domicile o f origin depends on
the domicik o f one of that person's parents at the time of birth, not on the place or
birth, nor on the parents' residence at that time. TILis is so as the husis or dumicik·
or origin is paternity and maternity. In lldny v l ldn~1 for examrle. Colone l l ldny
was born and then lived in Tuscany. where his lather rrsidcd ..1s Bri1 ish consul. 1h11
hi s fath er was domiciled in Scotland. so the Colonel' s own dom icile or orig.in was
Scot land . In Central bank of India v. Ram Narayan it was stated that even ir the
person with the view to acquire another domic ile gives up hi s domicile o r origin it
wil l continue to exist so long as he does not acquire a new dom icile. In both
Eng li sh and Indian PIL domicile of origin continues to ex ist till a person acqui res a
new domicile.

The rules of domicile of origin vary across Indian and English Pl L

The rules fur the ascertainment o f the domicile of origin In English PI L arc: ( i) o
legi timate child born during I.he liretime of father takes the lather's domicile at the
time o f birth , (ii) an illegitimate child and (iii ) {possibly) fl poslhurnous chi ld, tha1
is u legitimate child born a fter the folher 's death, both take the child's mot her's
domic ile at the time of birth, and (iv) a found ling or one •.vhosc parent 's <lnrnicik is
unknown is domiciled in the place where he or she is found or born . In one
situuli on only, the domicile of an adopted child, I.he domicile o f origin can be
chunged after the child's birth. By statute an adopted child becomes therca t\er for
all legal purposes the child of the adoptive parents. so the child takes the parents'
domi cil e as his or her domicile o f' origin. A minor's domicile ma) change ulkr his
birth, but any new domicile the minor acquires is H domicile of dcprndencc and not
 ])5
of' origin (except where the child is adopted); that remains the do micik the.: chi ld
acquired at birth.

In Indi an PI L it is almost the same, one major di fference being that the legitimate.:
child born after the death of the father has as his domicile, the domicile of the
father at the time of his death.

Another major difference between English and Indian PIL is the doctrine.: or
sti ckiness of domicile of birth in English Law and stickiness of Domicile o f Choice
in Indian Law. In English PlL when a person acquires a domicile of choice the
domicile of origin subsides and remains in abeyance and revives immediately on
giving up of domicile of choice and becomes his domicile unless a new domicik lll"
choice is acquired. However in Indian PTL domicile of origin does not rev ive on
abandonment of domiciJe of choice and domicile of choi ce remains unless a new
domicile of choice is acquired or domicile of origin is resumed.

The problems of stickiness are discussed later below.

Domicilt of Choice

A domicile of choice is acquired by an independent person through combination of

two things, the fact of actual presence or residence in a country, and the requisite
int ention . The two must coincide. 1 If a person goes to a country and then leaves ii.
but later wishes to return there for good without actually returning, a domicile of
choice is not acquired. However, provided the necessary intention exists, even a
stay of a few hours will be enough to gain a domicile of cho ice (White v Te nnant) 2•
It is a lso immaterial whether intention should precede res idence or resiclem.:e may
precede intention or they should be initiated at the same moment in time. Hut as
soon as both are present domicile of the relevant place is acquired.

1St:e also section IO of The Indian Succession Act

2Michael White moved his home from West Virginia to Pennsylvania. but the same day crossed
back to take care of his wife who was sick with typhoid. He I.hen caught the disease and died in
West Virginia. It was held that residence of only a few hours was sut1icient after the proposi1us
haJ lcf'I his belongings in Pennsylvania. despite relurning to lodge wi th r.:la1i, cs for 1hc 11i!!hl in
his previous domicile of West Virginia and dying there.
 l'hc chief problems in this area concern the definitio n of the requisitt: intention anti

I 1he proof of its existence in the particular case. The requisite intentio n may be
<lcfined as Lhat of pennanent residence. The intention of pennanent residence is
one of the basic elements which crystalli zes domicile . If the person hal> with tJiii.
intention actually stayed for few momen ts also he acquires the domicile or chmt.:e
and it does not matter that he or she has a later change of mind.

Ir, however, the person intends to reside in a country for a fixed time, ~ay fi ve
years, or for an indefinite time but thinks that he or she wi II leave ).Orne da) , 1hen a
domicil e of choice is not acquired in that country . Al so, if a person is only residing
in a country for a limited purpose such as employment. or if the intention to remain
is conditional, no domici le of choice is acquired. For example in Cramer , ( 'ramcr
A woman who moved to England intending to live here if ~he and her lover
married did not acquire a domicile of choice. Both he and she were olrcady married
to other people and her intention to reside here was conditional upon 1hcm both
obtaining divorces.

In Re Furse an American who li ved in England for sixty years also acquired a
domicile of choice here as his stated intention to return to the United States i r he
ceased to be capable of an active life on his farm was found to be too vague and
indefinite. The focal point is having the required intention.

Physica l residenc e and the requisite intention must coincide al the rclevu nt I ime. Ir
they do not, it is immate rial that the intention can be shown to hu vc been
formulated at some s ubsequent time. (Bell v Kennedy)

The burden of proving the acquisition or a domicile o r choicc rests on the pcrs1111
who alleges it. The standard of prool' is that required in ordinary civ il case. that is
proof upon a balance of probabili ties. However in some cases hurdcn of proof is
c.:xtraordinarily difficult to discharge. In Rumsuy v Li verpool Royal lnlirma ry
George Bowie, a Scotsman born in Glasgow with a Scottish domicile of origin.
stopped working when he was thirty-se ven and when he was forty-six went to
I.ivcrpoo l to live with (or sponge o ff) membe rs o f hi s fom ily. I le dkd then: ngcd
 ]) 7
eighty-seven. He had only left Liverpoo l on two short trips, and refused 10 1Tturn tu
Glasgow, even for his mother' s funeral. He always took a Glasgow newspaper, and
called himself a ' Glasgow man' , stating this in his will. He made a will which was
formally invalid under English law but valid by Scots law. The House o r Lords
held that he died dom.iciled in Scotland. Though his residence in England was
lengthy, it was 'colourless' and motivated on ly by hi s attachment to ;,1 ml:mbcr ,,!'
his family who would keep him despite his disindination 10 work. Tht: burckn ul·
proving his acquisition of a domicile in England had not been discharged. In
Winans v Attorney General , an American, whose domicile of origin was in New
Jersey, came to England and took tenancies of furnished houses in Brighton, ont! or
which he kept until his death there thirty -seven years later. He spent parts of each
year in England, Germany, Scotland and Russia, but during the last four years o f
his tile, he confined himself to Brighton on medical advice. His two abiding
preoccupali ons were looking after his health and a project which never came to
fruition of building 'cigar' or ' spindle' shaped vessels for sail to the United States
in order to wrest the carrying trade from the British. He acquired pa11 or a
waterfront in Baltimore to build the ships and talked of returning there to deve lop
lhe scheme . He disliked the English and never mixed w ith the m socially. 1111.:
House of Lords held that he did not die domic iled in England ; the Crown had not
adduced sufficient evidence of any fixed or detennined purpose positi vely to
acquire a domicile of choice in England, and had not discharged the burden nf
proof incumbent upon it.

Any ev idence may be relevant to prove intention. No piece of evidence is

necessarily decisive, and evidence which is decisive in one case may be entirely
discounted in another. Declarations of the person concerned are viewed warily. For
one thing, they may be self-serving. Further, tho ugh they are admissible in
evidence, they must be scrutinized carefully to ascertain the person to whom. lhc
purpose for w hich and the circumstances in which they are made. The declaration
must be consistent with the person's other behavior, and must, in any case, be put
into effect by conduct
111 order lo abandon a domicile or choice. the requisite intention LO do so mus1 he
carried into effect and the person must actually leave the country o r the domit:ik or
choice. Ir that is not achieved, the domi cile continues Lo adhere whatever the
person's wishes. Mere intention lo abandon or mere residence in another country is
1101 enough fo r abandonment o r Domicile of choice. It is abandoned when a person
gives up residing in the country of domicile and simultaneously has no intention 10
reside there permanently. However in Ind ian PI L Domicile of choice cannot be
abandoned unless another domicile is acquired.

The capacity lo acquire a domicile of choice 1s determined by the law of his

existing Domici le.

Differences from domicile of origin

Domicile of origin and domicile of choice can be distinguished in these ways.

• First, the domicile of origin is ascribed to a person by law and dol'. s not
depend on his or her own acts or intentions, every person gets it on birth; a
domicile of choice is acquired if a person goes to live in a country with the
intention of remaining there permanently. Secondly, it is more tenacious
than a domicile of choice.
• A domicile of origin can only be lost by intentional acquisition of ano1hcr
one, but a domicile of choice can be losl simply by leaving tht: rl'.k"anl
country intending not to return as an inhabitant. If that should harren , lhl.'n
unless another domicile of choice is acquired, the domicile of origin revi ves(
English)
• /\nyone over the age of minority can acquire a domicile of choice. Up 10 that
point a minor has either a domicile of origin wh ich continues, or a domicile
of dependency fo llowing tJ1e requisi1e parenl which has supplanled the
domicih.:: of origin.
• There is a strong presumption of the continuance of Domicile of Origin . It is
more enduring it hold is stronger and less easily shaken of. Domicil of origin
is abandoned only by acquiring another domicile. In Bell v Kennedy who'il'
domicile of origin was in Jamaica left Jamaica as he said ' for good' to Lake
 up d~1:'ic~le of_ choice Scotland . However even a fltir rr nd,inp S•·otlnnrt tl H•
requisn~ 1m_ent1on to remain permanently wus nut fornll'd and 111· 1·111,ld t1111
m~ke hi~ mm~ up as between Scotland and Eng lund . The r o1111 held 1h11 1 lw
still retained his domicile of o rigin.
• There is a concept of revival of Domicile or
O rigin aR it is kept in alwynrwr
in English law but no concept of revival of Do mic ile o f C hoict·.

Domicile of dependence

Married Women, minors and menta l patients - lunatics idio ts arc considcn.:d 10
either be incapable of fanning the necessary intention or considered to be
dependents. They are considered to be taking the domicile o f the person on whom
they are dependent and they follow their domic ile implying that their domi c ile
changes when the person on whom dependent changes thei r domicil e. Domicile or
dependents cannot be abandoned. This is so even ir the residence o f the dependent
is different Ii-om that on whom dependent. l lowever the person o n whom
dependent can change and by virtue of it domic ile of dependent may change. Fo r
example a female minor on marriage takes domicile of her husband . However the
courts have also held otherwise in some cases depending on the interest o f the
dependent. Also in case where the person on whom dependent dies and/ or when.:
Lhere is no one on whom dependent then the do mi cile of dependent cannot 1:hangl·
at all unless he becomes independent. Also Domic ile of dependency o f married
woman has been heavily criticized.

a. Married women

In case of English law until 1 January 1974, as a matter of law, a married woman
automatically possessed the domi ci le of her husband even if he and she li ved apa rt
and even though they were judic ia lly separated. Only if' the ir marriage was void or
after it had been annulled or dissolved or after her husband 's death could she have
her own domicile, separate from his. The rule was based on the common law
 J)\0
principle of lhe unity of husband and •ri . .
/ woman is incorporated d l"d w, e_ and the legal existence ol the married
wing and protection shean conso • ated •~to. that of the husband under whose
h . . . performs everything, the rule was supponcd hy clc·-ir
:u~oni m ~e highest courts. (Lord Advocate v Jaffrey}3. AC for Alberio v ( ·uuk'
~ e c angmg world, such a doctrine was regarded as incomp~tible with <.:hanging
views _as to lhe equality of the sexes and was seen as rendering the wife
subo:dma~e to _her husband. It could also cause problems where a wife sought
matnmonial relief and the jurisdiction of the court was founded on domicile.It was
termed as the !ast barbarous relict of wife's servitude by lord Denning in vray v
Formosa and 1s severely criticized and socially most undesirable. Even if li ,,ing
separately or even if the husband had deserted her or judicial separated also then
also would have domicile of husband. However, by the Domicile and Matrimonial
Proceedings Act 1973, from and after I January i 974, the domicile of a married
woman is ascertained in the same way as that of an individual capable of having an
independent domicile. This rule applied to women who were married either before
or after that date.
In case of Indian law see section 15 and section 16 of the Indian Suc.:1.:c.:ssio11 /\ct
1925. The judicial decisions to the may also be found in Prem Pn.llap v JagaL
Pratap where India domiciled man married a German Domiciled woman and later
on deserted her. In a suit for maintenance in Indi a the wife was held to have the
domicile of husband during coverture. Also in Saeeda Kha1un v Stale or Hihar
Saeeda Khatun wife of an India Domiciled person ten for Pak istan al'ler pan ition
but husband remained Domiciled in India. She later came back. Alter being served
a notice by government of India to quit India it was held that she held the domicile

i A husband and wife were domiciled in Scotland. The husband left to live in Quec::nsland wi1h
the consent of his wife. He contracted a bigamous marriage in Queensland . The wife remained in
Scotland where she died. Proceedings were brought in Sco1land to determine: the domicik o ( 1h.:
wife. On appeal to the House of Lords. ii was niled that the wife was domiciled in Q11eensland.
even though she had never visited there
4 the facts were as follows: a wife acquired a decree of judicial separation where she lived : she
then presented a petition for divorce. Her husband retained his domicile of origin in Ontario. On
appeal 10 the Privy Council. it was held 1ha1 the Albena court had no jurisdil.:tion 10 hear 1h.:
divorce petition because jurisdiction was dependent on domicile and the w~man rema!ned
domiciled in Ontario. In giving judgment for the Privy Council, Lord Mem valc cxrlaml·d 1he
rationale as being:
... the contention that n wife judicially separated from her husband is giwn choice of a fll'\\
domicile is contrary 10 the general principle on which the unity of 1he domicile of lhe nwrricd
pair depends.
 J)\I
of Lhe husband during coverture and sh b .
• d . e Y gomg lo another country or hv any act
oJ· 11er own uring subsistenee o f marnag~
· · •
cannot acquire any domicile of her own.
b. Minors/ Infant

English Law

• As a dependent domicile, Lhis would change with that of the parent.

• The domicile o f dependence of a legit imate minor is if the parents have not
separated, that of the person' s father. and changes automatically il'the father
changes his own domicile. After the fa ther dies it is normally the domicile
of molher5 and changes with it save in those situations where the rnoth~r
leaves the child with a relative when moving LO a new country
• The domicile of origin and dependence of an illegitimate child is that or his
1nother when the ch ild is born.
• A fter Lhe mother of an illegitimate chi ld has died, or both parents have died
in the case of a legitimate chi ld, the child will continue with the previous
domicile of dependence until he is capable or acquiring an inckpc11<.kn1
domicile.
• In case of legitimated child usually from the date of legitimation the
domicile follows that of the father till the father is alive.
• in the case of an adopted child, such a ch ild will treated as if he were the
natural child of his adopted parents. Thus, from the date or adoption. if not
earlier, he will have the domici le of his parents
• In cases of a legitimate child whose the parents are living apart and where
the child has a home with the mother, then the ch ild wi ll acquire the

~ aller the father's death follow that of the person·s mother. But if the person·s mothi:r changes
her domicile. the minor's domicile does not necessarily alter. The mo1her has a pll\\cr Ill ..:hang<·
the minor's domicile along with her own. but she must posi1ively chanl!e it and musl 1w1 ahswin
rrom doing so. If she does exercise this power she must not. it seems. do so fraud ulently. that is
for a purpose other than for the benefit or welfare of the minor. Thus in Re Beaumont: Mr and
Mrs B were domiciled in Scotland. They had several children all of whom hud a Sco11ish
domicile of origin and of dependence. The father died and Mrs BI.hen married N. Thi:y "ent ll•
live in England where they acquired a domicile. They took all the children to liw wilh them wi1h
the exception of Catherine. who was lefi in Scotland with her aunt. with whom she had livo.:d
since her father"s death. Catherine attained her majority and shonly thereafter died in Srn1 land.
·me Court or Appeal held that Cathcrini: died domiciled 111 S..:otlunJ. sin..:i: her 111 0 1h..:i h.iJ 111 1
1

exercised her power 10 alter her domicile.

 domicile of the m other and . h .
r. h h • •
1at er e will acquire the d 0 . .in s ue a c 1rcumstanc
f · e, ·r
1 I1e 11ves
· with the
. . . . m 1c 11e o the father
• Mmonty m India continues till 18 . .
. · . years. In Engl and 11 1s I<> years or till
marriage. So m E ngland if . .
. . person marries he 1s deemed to acq ui re a rapaci 1y
to I1ave dom1cile of choice.
• A lso after attaining maJ·ori·ty
exercised.
or on marriage domi cile or choke may IK·

Indian law

Generally common law principles arc applied but free to adapt, alter and
modify according to need and circumstances. The Indian Succession Acl
applies to limited persons only.

See section 7, 8 and 14 of The Indian Succession Act. Sec also Shara.fat Ali 11
State of UP6, M11khtar A/1n1ed v State of UP 7 and Rasheed /lasan ,, Union of
ln,lia8•

Also Indian law fixes the domicile of orig in of the posthumous father legitimate
child with that of the father and that of an illeg itimate child with that o f the mother.
According 10 section 14 it fo llows the domicile o f parent from whom he dcrivcd
domici le of' origin . It fol lo ws that if that parent is dead it cannot lw changed ;ind
w ill remain the last domicile of the parent. Sec also sct'tion 17

0
The petitioner was born in India but post partition with minority still subsisting went 10
Pakistan. His father died afterwards domiciled in India. Ile had a1tained majoril) hy 1hcn I k
came back 10 India subsequent to his lather's death to look after his mo1l1cr. On hcing asl-.cd 11,
quit India, in a wril petilion filed by him it was held that he foll owed the domici le of his father
during his minority and thus had Indian Domicile. This was so as and his subse4m·111 nrt. w nd11e1
or declaration did not indicate otherwise.
7
The petitioner during his minority had gone to Pakistan. But his father re nrnim:d in lndiu
Before attaining majority he obtained Pakistan Passport and Ind ian visa nn hi:, dn:laratu,n 1ha1 hl·
was a Pakistan nalional. On expiry of visa he was asked to quit India. It wus held 1hn1 he did nnt
have the capacity to acquire Independent Domicile during his minflrity nnd folhl\vl·d lhc lncli1111
domicile of his father
K The minor petilioner's father left for Pakistan leaving him hehind. Till' fo ther neq111n:d Pnki~l1111
citizenship and domici le. The minor remained in lndin. I Ill' rn11r1 hclJ 1h"11f! h 1h.- t1..111i. it.- 111 rh,·
child follows 1hat of the father but ii cannot be applinl 111 1:asc ur uhaml1111111,·111 11 1 ,·liild 111 111,
domicile of origin while the father acquires another
c. Mental patients

lt appears that the domicile of a mentally disordered person cannot be changed by

the person's own act since he or she is incapable of forming the requisite intention,
and thus that person retains the domicile he or she had on becom ing insane. There
is authority for the proposition that if a person becomes insane during that person ·s
minority and the insanity continues, the domicile of dcpcndcni..:l' can hl' dwngi..:d h)
an alteration of the domicile of the parent upon whom that pi..:rson is uepe11de111.
even if this takes place after he or she auains majori ty. I lowcver, if that person
becomes insane after he or she attains majority, the domicile cannot be changed.

In Indian law see also section I 8. This other person is not spci..:i lieu. The
circumsta nces of lunatic minor or lunatic married women ar,· covered. It is not
clear what happens when lunacy acquired in majority. The law seems to suggest it
remain the same as that at the time of initiation of lunacy. It there is a guardian for
such a lunatic it is open to question.

Problem s in revival doctrine of English Law and stickines s doctrine.· in Indian

Law/ Problems of domicile
• In the American case Re Jones's Estate: Jones was born in Wales with an
English domicile o f origin. He fathered an illegitimate daughter. To escape
payi ng for this sin, he went in 1883 to the United States, married there.
amassed a fortune, and became an American citi zen. By Iowa law he
acquired a domicile in Iowa. In May 191 4 his wife died. I le decided to leave
Iowa and return to live out his days with his sister in Wa les. In May 1915 he
sailed in the Lusitania from New York but il was sunk in the /\t lant ic off
Ireland bv. a German submarine. Bv. Iowa law his i!legitimate daughter
succeeded to his estate but by English law ii went to his brothers and sisters.
The Supreme Court of Iowa held that, since his domicile of choke cnnti nu.:d
 until he acquired anoth d b
. . . er an ecause he never got to England he died
dom1c1led 1n lowa Th" · . h di . . ·
. . · IS IS ar Y satisfactory in that it frustrated Jones ·s
intentions which were to · h" . . -
. . '. reacquire 1s connection with English law and 10
. having any respo ns1·b·1·
avoid r h" -1 . .
1 1ty ,or 1s I leg1t1mate daughter. II is also j ust as
a1t1fic ial as the rev·1va l o f th e dom1c1
· ·1e o f orig
· ·inOJ, s ince
•
11
•
makes the
devolution of a person 's es tate de pend on the law of a countrv wh ich that
person has left, wishing never to return to it. ·
• It is very tough to prove intention or the lack of it( see above d iscussion)

• T he rules on the changing of a domicile or

de pendence for minors are not
satisfactory. Where children are li ving in more complex arrang,e111c:111s with
time spent at each parent or in an alternat ive hou sehold. idcn1 il~,inµ th l"
domic ile of the child with one parent may become lar rc1110\.<:U from thl.'.
realities of the child's life.

• Also, the law of domicile does not seem to have developed rules for
identi rying the domicile of children of same sex rel a l ions hirs. A -;o lul i1 in
might be that a child of such a relationship will be treated ana logous ly to an
illegitimate child. Therefore, the child will take the domicile o f the ' mother'
identifi ed on the birth certificate as the d1ild 's domici le of ori gin . The

<>The tenacity and persistc.mce of domicik o r origin im plies 1ha1 it returns as 'h110111ernng· durin!:'
a prrson's lili:Li1111: and even ufler his death. fnr inst;mn· in ~ucc"C ~sin11 111:it 1c·1 , ( Inc· 111 1hv
n::markuble cases in this regard is Re.: O'Kcefr cm;.:. wl11:rc i'"hlr) L>'K,·c·fc· \,as hM11 111 India. kq11
her Bri1ish ci1i2.enship a ll her life, spenl forty seven yc.:ars of her life in llaly when: ~hl· di..-d. B111
the courl held that she had an Irish domicile of origin at the lime or hcr dealh a lthough. the ,1111_,
connec1ion between Mary and lreland was her lhree weeks visit in Ireland ,md lhe foci that her
father was born in Ennis. Co Clare. Despite 1hr facl that hrr l:,t her had r1cqui rc'd a n,·w dumici k
of choice but due 10 her fa ilure to acquire a new domicile s he was dccmc·d h• he d.. 1111,i kd in the·
place where her father was domic.iled nt the lime of her hir1h. Thi~ cas1: imli,11tes 1h:11 .1 p,, ~., n
can retain tho: domic ilc of bis origin cvc-n whi::n he lms nl• eonnc:,ti,111 1\ 1lh 1hc· ,, ,11111r~ " ' h,,
origi n. Graveson gave an example: A has dom ic ile o r origin in Scotland. Al the .1ge of 22 he
went 10 New York and settled there. lie lived there uni ii he was s ixt). whe11 he ,kc.:ickd to
establish a domicile in California. Atler severing a ll conneclions wi th Ne\, York /\ left tor
California. but died o n the way. His domicile of origin rcviwd the 11101111.:111 he- ld1 r-,;"°'' Yo ri-.
and sino:c he could not acquire anolher domicile of choice. he dicd domiciled in Sc11tlund. 11
would bt: immnteriul cvt:n if at no time he haJ set foot i11 S1:ot l1111d. Y11 u .:u11 al~11 di ~cu,;~ lhl·
probk m whii:h I gave in class The Ship lo Auslrnli11 l x1111111lr.
0
 ]) }s
child 's d · ·1 .
om1c 1 e of depend ence will foll
c hanges . T his solutio n ·11 \
0\.1 that pare nt s dom ic ile a, i1
w1 not su ffice when th · h. .
panne rship ln add"f h . ere is a c ild ol a ma le-malt:
1 ion, w at If the relatio •h · b aks
•
then Lives with th th ns 1P re down und the chi ld
e o er parent?

• A domic i le of depe n d ence w h.1ch more acc urately refl ected a close
.
connec t1on betwee n the c h"ld d
I an a country, rathe r than a possibh abscn1
parent , would be prefera ble. ·

Possib le solutio ns to these problem s in the law of dom ici le. if the y rea lly are
it
seriou s proble ms, are either to regard the law as beyond redemp t ion and abando n
10
as a connec ting factor or make anothe r connec ting fac1or as an a llt'rn<ll iH·
domic ile . Nation ality is, in general, anifi cial, ins ullicientl) pcn,on al ancJ
a
unsatis factory despite its genera l use by civilian law countri es. Citi;,,.c nship is
matter of politica l will o f a state, can be withhe ld or withdra wn . a nd a per.;on ma~
have no citizenship or many citizenships.

So now the concep t of habitua l res idence is increasingly being adopte d( will he
discus sed later in class)

Important Statutes

Sec Section 4, 5, 6, 7, 8, 9, 10, ti, 13, 14, 15, 16, 17, 18 of Th<' Indian
Succes sion Act 1925.

Domicile_ Special c,ases

• The terminally ill

In those cases where a person has been diagnosed as seriously or lt•rmina ll~
ill and then travels to a foreign country to live oul the re mainde r of his dnys.
either to seek a better climate or to be close to relative s. il is open to
a rgumen t that such a choice is nol truly free and that it would be revolti ng to
commo n sense and human ity to argue that there hat.I ht'cn a l.'hangl' 11r
 ::l> 'b
domi cile. In each case the di . . be be , . .
. . ' stmc u on will
exerc1s1n g a p refer ence ·, n ,,,h· h t\\ een the 1nd1\iidual wt,,1 ,··s·
' , tc case a d · · . '
. om1c lle mu~ be nrqu irl•d .111d ihos l'
cases where the individua l is actm g unde r a nee . . ,. . h
. .
ic ile will n ot be es~lt ) · in t c ln11c:-r cnsc. rhc.·
ong1 nal dom Iost. ~1oo rhouse \ I d 11 \\ ho go for
con vale scen ce or te .or · lOSl'
c ount ry but if th m~r ary st~y do not acqu ire a dom ici le or the other
un
. . e case is of findi ng more cong enia l weather it ma, renec t
1nte ntton to stay permanentJy.
·

• Priso11ers
or hi ~
The e ssen ce o f impr isonm ent is that the individual is deprivc.·d
circu msta nces. 1he
perso nal freed om to mov e from place to place . In these
l's~l'd hcln n: hi,
priso ner will cont inue to retai n the dom icile that he po..;..;
impr ison men t.

• Refugees
r which refugee
In such case s, much w ill depe nd on the circumstances unde
situatio ns. there
statu s has been soug ht. lt is sometimes argu ed that, in such
o f wa11ime . where
is a presu mpti on again st a chan ge o f domici le. In cases
ng home. then no
th e indi vidua l has not aban done d the possibi lity of returni
ly impossil:ik 111
new dom icile w ill be acqu ired but , in cases where it is clear
try. then a new
retur n hom e and the refug ee intends to stay in the new coun
do mici le is acqu ired. Whic h impli es that what is dicta ted
in the first instam.:l.'
v Mand al two
may beco me after ward s a matte r o f choice. In Manda(
on invas ion h)
Aust rian domi ci led perso ns were married in Vien na and
llt' goin g baL'k .
Germ any. they fled to India and li ved there with no intention
.
They were held to have acqu ired a domi cile o f choic e in India

• Fugitives
Inten tion in every case has to be focused on. If there is
no poss ibi lity or
presum ption of
fugitive escap ing puni shme nt when ever he goes back a
J-lowe vl.'r ii is
domi cile of the country in which taken ret'uge arises.
rebut table .

• Diplu mat.'i, empl oyees , milit ary force s

 rhe 19th century view was th ]) )7
.
employees and service personnat Iservice and .d
. ·1 res, ence abroad by dirloma1s.
o f dom1c1 e because the 'd e would not no II .
res rma
ce was lin ked t d Y. give rise to a cha nge
only to endure for a limited 1 en . 0
• . utJes that were intended
1t ·1s a question of natu period of time The ·
abroad may a .
d · recent vie w, however, is that
re an decree and that a soldier on
settl th cqu1re a new domicile if there is evi active serv ice
e ere on ce he becomes fi dence that he intend s to
D Id
( on a so n r. ·
ree arom his obligation lo reside the
v Do na ldson ; Stone v Stone) re.

Ho we ve r in India sec section 12 Th

e Indian Succession Act 1925

Ca ses

l . Ll oy d Ev an s, wh ose par ent

s we re British sub jects, was bor
18 64 an d we nt to Jav a in 1880. n in Wales in
He sta yed unt il 1917. ma n-y ing
wo ma n. He ret urn ed briefl y to a Dutch
England before settlin g in Bru sse
bu yin g a ho use the re. Wi th gre ls in 192 2.
at reluct anc e he wa s per sua ded
13 elg ium in l 94 0 wh en the Ge to leave
nn ans invaded. I-le cam e to En gla nd and
die d the re in Jul y 1944, sti ll und
ecided wh eth er to return to Be lgi um or
e mi gra te to Au str ali a. Wynn Par
ry J. in holdin g that he remain ed
in Be lgi um , rul ed that those wh do mi cil ed
o asse11e<.1 that the domi cil e or
choice had
be en aba nd on ed bo re the onus
probandi and that the intention to
an d the act of aba nd on ing mu st aba nd on
be unequi vo cal. Th us, altho ugh he
to En gla nd and die d before he had has fl ed
dec ide d wh eth er to ret urn to Belgi
em igr ate to Au str ali a, he wa s hel um or
d to rem ain do m ici led in Be lgi um
2. in Re Fu/d's Es tate (No 3) is wo
rthy of con sid era tio n.
(a} the do mi cil e of ori gin adh ere s
- unless dis pla ced by sat isf act ory
of the acq uis itio n and con tin uan ce evi den ce
of the do mi cil e of c hoi ce:
(b) do mi cil e of cho ice is acq uir ed
only if it be aff irm ati vel y sho wn
pro positu s is res ide nt within a ter that the
ritory, sub jec t to a distin cti ve leg
with the intention formed independe al sys tem.
ntly of external pressures ol' resi<.ling
the re indefinitely; and
 ( c) it foU ows that , tho ugh
. . . .
ong m wit h the inte ntio n ofa man has left .
th . .
. . e terrnory of his domicile or
rern tory , yet 1f his min d bnev er retu min g th h .
. • oug he be resident in a new
uns atis fact ory as to wha t . h" e not mad e L1 .d
P
is 1s stat e of m· d h" or ev, enc c he lacking or
m , ts dom ,clle. .
of origin adh eres .
3. Son dur Gop al v Son dur Raj ni
D om ici le of orig in · .
15 not
nec essa ri ly the plac e of hirth . The domicile nf the
re 1eva nt par ent at the t"1
me o b.1rt1l may be diff erent from his rcsidcn
• f
that um e. Als o the b"rth f cl' at
I O a c h"ld
I duri. ng tem pora ry abse nce of. th1..·
purl 'nh
from the ir dom icil e will not mak e the plac
e of birth as the domicile of the
c hild . In dom icil e of cho ice one is aban
don ed and another dom icile is
acq uire d but for that, the acq uisi tion of ano
ther dom icile is not sufficient.
Dom ic ile of origin prev ails until not only anot
h-.:r domi cile is acquired but it
must man ifes t inte ntio n of aba ndo ning the dom
icile of orig in.
Narsi mha Rao Y v Ven kata Lak shmi

The sup re me cou rt of India has seve rely crit

icized the com mon I .aw rule
abo ul the dom icile o f married wom en and
term ed it as tyrannical and a
serv ile rule .

Add itio nal not e on Ma rrie d wom en

It can also be argu ed that it is ultra vire s Arti

cle 15 of the con slilution or
Indi a. The law com mis sion of Indi a in
one of its repo11s has also
reco mmend ed inde penden t domicile of mar ried
wom en.
Add itio nal not e on dom icile and nationality

Dom icile is pref erre d in case whe re one nati

ona lity cov ers di vers e legal
systems. Her e nati ona l law beco mes mea ning
less whe n app lies to say a
Oritish subj ect becomes mea ning less. As
legal syst em of Scotlan d is
differen t from that of Eng land or Irela nd. So
dom icile is mor e app ropr iate .
Howeve r it may hap pen that both domicile or
nati ona lity hap pen to lK· out 0 1·
touch of reality but this poss ibility is muc h
bigg er in nationa l it). I Im, l'' o.:r
intention is more elus ive for to prov e domicile
. National ity is far easier 10
understand and prov e or disp rove . Also a pers
on may hav e dual nationalilies
 ]) )j
0 Jso. Nationality cann
ot always determine
is subject.( federal the internal lu,., tu ,\ hi
sy stems) ch u pe rson
So it can be said th
at na tio nality yields
taw and d om ic il e yi a predictable but freq
elds an appropriate uent ly inap propriate
th ough frequ entl y un
predicta ble la"'